regulatory agenda

As I wrote last week, workers in this country are facing an epidemic of trench collapse deaths this year and OSHA is taking note.

Today OSHA issue a Press Release announcing that it will “launch enhanced enforcement initiatives to protect workers from known industry hazards.” According to OSHA Assistant Secretary Doug Parker,

“The Occupational Safety and Health Administration is calling on all employers engaged in trenching and excavation activities to act immediately to ensure that required protections are fully in place every single time their employees step down into or work near a trench. In a matter of seconds, workers can be crushed and buried under thousands of pounds of soil and rocks in an unsafe trench. The alarming increase in the number of workers needlessly dying and suffering serious injuries in trenching incidents must be stopped.”

According to OSHA, 22 workers have been killed in trench collapses this year, which equals the full year toll in 2019 and 2020 and more than last year’s total of 15.

5 incidents this year have been double fatalities.  Two workers, aged 20 and 39, were killed in a trench late last month in Jarrell, Texas, when the unprotected trench more than 20 feet deep collapsed upon them as they worked. Earlier this year, OSHA cited a company after a worker was killed in a trench shortly after escaping a partial collapse in the same trench.

OSHA already has a National Emphasis Program for trenches and excavations where compliance officers will perform more than 1,000 trench inspections nationwide, and will stop by, and inspect, any excavation site during their daily duties to prevent trench collapses.

So what’s new?

The Press Release states that

To stress the dangers of disregarding federal workplace safety requirements for trenching and excavation work, OSHA enforcement staff will consider every available tool at the agency’s disposal. These actions will place additional emphasis on how agency officials evaluate penalties for trenching and excavation related incidents, including criminal referrals for federal or state prosecution to hold employers and others accountable when their actions or inactions kill workers or put their lives at risk.

So, higher penalties? More criminal prosecutions?  Although OSHA’s maximum penalties are set by law, the agency has discretion over how high individual penalties are, how many violations will be cited, and whether penalties will be “serious” or “willful,” which carry much higher penalties.

OSHA’s hands are more tied when it comes to criminal prosecutions.  The Occupational Safety and Health Act (OSHAct) only allows a criminal prosecution when there has been a willful violation related to a workplace fatality. Those cases are almost always referred to the Justice Department which then must decide whether to prosecute. Because the OSHAct makes a criminal prosecution a misdemeanor instead of a felony, DOJ is often reluctant to put the resources into prosecuting such cases.

One thing OSHA can do is to work more closely with local prosecutors to pursue homicide cases. A Washington construction employer just served jail time for a fatal trench collapse. Further back, the Manhattan district attorney won a manslaughter conviction against the general contractor, Harco Construction, for the 2015 trenching death of a young undocumented immigrant construction worker, 22-year old Carlos Moncayo. The foreman for the excavation company, Sky Materials, was convicted of criminally negligent homicide and reckless endangerment, and sentenced to one to three years in jail.

The New York state legislature has passed Carlos’s Law which would significantly increase penalties against companies for construction incidents that result in criminal convictions.  Governor Kathy Hochul is considering whether to sign the bill.


12 thoughts on “OSHA Warns Employers About Trench Collapses”
  1. I have not been keeping up with the inexcusable and unforgiveable workplace deaths the way Jordan Barab does. But I have looked at some cases. I found that for many of the most outrageous cases, where employers should have known the risks, the descriptions in the online OSHA information does NOT reveal the criminal recklessness of the company and/or on-site supervisors. A taste of that is in this article: of March 2020. Better information about the recklessness would help the local prosecutors. We can do better.

  2. Thank you for the update. Have been “investigating” some recent fatalities. Man who died in NC earlier this month was son of company owner. Have already found multiple cases involving a company owner or relative of.
    The brief states, “Every one of these tragedies could have been prevented had employers complied with OSHA standards,” Parker continued.
    If that is the case, why did OSHA issue no citations (per the OSHA website) for this case?
    This was a very experienced supervisor who was not even in the hole. Am guessing he simply did not recognize that the ground he was walking on was not stable. And he worked for a company which, in looking at their website, places an emphasis on safety. So, I would think this poor man had received training as a competent person.

    Today I spoke to a senior manager of one the nation’s largest trench box manufacturers. Described a specific circumstance involving trench boxes and was looking for guidance since such guidance is not found in OSHA standards or the tabulated data. After a lengthy discussion, was told he would have to get back to me. At one point he stated, “That is something that the competent person has to decide.” No way…this is an engineering issue. I told him that if I asked three different competent persons what was “safe” in this situation they would likely give very different answers. Between the call and an internet search I had 30 minutes invested and still don’t have an answer.
    OSHA needs a way to reach the really small contractors who don’t have dedicated safety professionals and who don’t have time to spend 30 minutes hunting for an answer concerning a trench box. I recognize it’s easier said than done. But until we do, these fatalities will continue.

    1. TB, I write on just a few occupational safety and health topics. I wrote about trench deaths, not because I know when to use a box or shoring, but when federal or state OSHA has previously cited the company for trenching violations. By that point, the company officials are “on notice” of the requirements.
      I like your thought that OSHA needs a way to reach the really small contractors who don’t have dedicated safety professionals and who don’t have time to search for expert answers. (To that I would add: … who won’t spend time searching for needed guidance.) OSHA has several interactive diagnostic systems, called the OSHA Advisors. You can find them on The Department created similar tools for other DOL agencies.
      IF someone or a panel of experts could agree on decision-logic (e.g., IF the trench is deeper than ___, AND the soil is A or B or C…, AND it has NOT rained by so much?? in the last ___, THEN here is your guidance and options; and so forth.) If OSHA and the Solicitor’s Office agreed, then the Office of the Assistant Secretary for Policy could program the system. The difference between this and a website full of guidance is that the system asks the user the information it needs to give approved, expert guidance. The OSHA RECORDKEEPING ADVISOR is an example, see (I wrote the logic under close guidance of OSHA and SOL.)

      1. I like the idea of the decision logic, but I cannot see it happening. There are just too many variables that could be left out that would allow a company to state, “…but I was following the decision logic.” The attorneys would never buy it.
        To anyone out there who has never run their own small business, it may be difficult to comprehend the number of hours involved. My brother does…at an age he should be retired. Despite suffering a crippling 20-foot fall on the job and open heart surgery, he is still at it. He has no choice. He works 7 days per week. After getting home, he has to call customers and work the books. He works easily over 12 hours per day. He has not had a vacation in many years.
        So, anyone out there who hasn’t done it should try it for a while and see how motivated they are to be searching the OSHA website at 10PM when you have not even had dinner and need to wash clothes for tomorrow. This is reality. This is what many small employers face. Some people seem to think that companies have a person sitting at the desk all day doing the administrative stuff who would have time to research safety. That is often not the case. As safety professionals, we know how easy it can be to blow 30 minutes looking for an answer to a safety question. Am not implying they have no responsibility.
        Trenching/excavation is a unique challenge. I work around it every day. We routinely run into stuff we did not account for. One cannot plan for safety nearly as efficiently as certain other jobs. GPRS does not always catch everything. I am blessed to have an extremely wealthy client who is understanding and permits us to run over budget. Try doing that with a homeowner. They could care less about safety if it is going to cost them more.

  3. Last week two people were buried in a 20 foot deep unshored trench in Shoreline, WA, a suburb of Seattle. The company had been cited twice before for trenching violations by the state OSHA.

  4. Here are two more fatality cases from this year, both of which involved family members working in the family business.

    Involved pole barn construction
    59 and 68 year-old brothers who worked for the family business. One was a 30-year firefighter.

    33 year-old male was a member of the family that owns the business
    Took place in a housing development

  5. Would a threat of prosecution and jail time prevented this man from losing his life? That might work to wake up executives of large corporations, but what about the small mom-and-pops who do this work? If an 87 year-old man is working in trenches to support his family, those drivers likely outweigh any perceived costs of doing business. Many of these fatalities occur in residential settings where the priority of owners is to get the job done as quickly and cheaply as possible.

  6. The case I am most familiar with involving owner Numrich killing worker Felton included the following violations. no readily available means of egress, use of vibrating tools in the trench, spoil pile next to the trench, improperly shored trench. Everything they need to do it safely was onsite and had been used in the past. The owner had been trained by our state OSHA and was knowledgeable about the rules. Yeah it would have taken a little longer to get the ladder off the truck and stick it in the hole.
    I will bet that the tiny companies that heard about Numrich doing jail time, put the ladder in the trench now.

    1. I do not know the facts of this case and Numrich could be the biggest creep on the face of the earth. That said,
      -Is there evidence that he forced the worker to be in the trench against his will by threatening his employment?
      -Did the employee raise concerns before entering that were ignored? Was there a history of employees raising concerns that resulted in threatened employment?
      -Did he forbid the worker to get a ladder off the truck and tell him to “get to work” without it?
      -Was the worker trained to be able to recognize the hazards?
      Regardless, Numrich IS ultimately responsible, but for me there is a difference in terms of culpability. People who work in such small construction businesses are frequently tight, ie I read Numrich was going to buy the crew lunch when the collapse took place. I would not be surprised that Numrich cared about this man and was rattled by his death. Somebody made a comment on the internet that they knew each other since childhood.
      Let’s think about this. Every day around this country senior managers in Corporate America expect poorly trained workers to work on improperly maintained and downright dangerous equipment easily capable of killing a person…sometimes without written procedures or readily available safety equipment. They deny capital requests to fix the equipment, eliminate training and/or safety positions, knowing full well their employees are endangered. They have vast resources at their fingertips, but turn their head the other way. They make millions of dollars to make risk decisions, unlike the small business owner who is often struggling to get by. They are no less guilty then Numrich. We all know we will NEVER be able to touch these guys because of politics, so we make some small business owner the sacrificial lamb. Numrich could be guilty as hell, but punishing him will do little to affect the OVERALL risk of workers dying on the job. A Numrich at the senior manager level in Corporate America could have tens of thousands of lives in his/her hands and an appalling history of crippling injuries and/or fatalities. Have worked for them myself and been subtly told to hit the road if I didn’t like it…as have many of us. THESE are the people that need to find religion to really make an impact on safety, not the small business owner. I say this in no way downplaying the tragic death of the employee and Numrich’s ultimate responsibility to ensure the safety of his workers. .

  7. According to a NIOSH review of multiple national data bases, trenching and excavation hazards during construction activities resulted in 759 deaths from 1992 through 2006. Nearly half of the deaths occurred in small companies with 10 or fewer workers.

    Census of Fatal Occupational Injuries data from 2011 through 2014 show that the largest percentage of fatalities involved small contractors with 10 or fewer employees. The largest percentage of fatalities were at residential sites or highway jobs, although a few were on farms and schools.

    The problem is with small employers…10 or less…not big companies with lots of resources. I would bet the owners of many of these small companies often get in the holes themselves, at times, and, in that sense, have a vested interest in excavation safety. One reason some owners may get into this business is because they have limited funds, and since most of the equipment for excavation work can be rented, there is a low bar for entry into the business. These are the owners doing it all…estimating, transporting workers, training workers, billing, etc…it’s a 7-day per week job for many. Telling them to visit the OSHA website is not the way to reach them.

    Who are taking bids on school and highway jobs? …government entities. And are they rewarding companies with the best safety practices, or are they are going after the low bidder?
    Who are taking bids on residential sites and farms? …private owners who want things done as cheaply as possible and are not willing to pay more for the contractor with best safety practices?

    We are all aware of our country’s problem with aging infrastructure. More and more trenching work now involves emergency and/or repair work, and sometimes this allows limited time for planning. Repairs may require hand-digging in previously disturbed soil. Workers may run into cross trenching, pipes and conduits that make the soil more unstable and makes installing trench boxes more difficult.

    The system rewards the guy who cuts corners. In this type of business, with increasing competition and clients not willing to pay extra for safety, the guy who wants to do the right thing is in a tough position. So, let’s throw the owner in jail and/or give them huge fines and that will teach the company to do better in the future, right?. Chances are, a little employer will fold up under such circumstances. And who will fill the void? …another inexperienced outfit with limited resources.

    Throwing the CEO of a 100k employee public corporation in jail…now THAT could have a ripple effect that could positively impact the safety of a huge number of people. But we all know that will not happen due to politics. Throwing some tiny company owner in jail and/or fining him hundreds of thousands of dollars will likely result in nothing more than the owner’s family losing their home and/or provider and a few employees losing their jobs and going to work for a company that may be no better. What is that accomplishing? Will it scare all of the other little company owners into compliance? These guys are in a very dangerous and dirty business with tight margins. They are not there for fun. They are likely there to put food on the table for their families. And that motivation drives many a man today to do whatever it takes to provide, even if it means taking some chances to do so, ie doing something illegal.

    These “dangerous” little employers get a lot of stuff done cheap in this country….just as many immigrants who do the work we don’t want to do in agriculture allow us to eat well for much cheaper than other countries. Some don’t like the illegal immigrants and don’t like 100 people being killed in trenches in a year, but we tolerate it so we can have more money in our pocket, don’t we?. Without these little employers, some homeowners could not afford to get certain work done. And how would people feel if politicians told them they were raising taxes to ensure that we only have the safest companies building highways and schools? We know the answer.

    We’ve got to clearly define the problem before throwing solutions at it. In this case, the “problem” is very small companies who do unique work for which planning and budgeting for safety is uniquely difficult. This isn’t like a work where someone can easily plan for fall protection. These owners go to safety classes that teach them the OSHA standard, but then have to rely on a little pamphlet from a rental company to teach them the nuts and bolts of how to install a trench box or hydraulic shoring. Throwing the book at the little guy when we’ve got fat cat senior managers in public companies killing or crippling thousands of people every year while running dangerous equipment to failure to save maintenance costs, knowing that every day their employees are exposed…and not dedicating budgets for safety, making site personnel beg for capital to make safety improvements…that to me is much more egregious and premeditated than the little excavation company that makes a split decision today to take a risk on a job. I’m not condoning the latter. I’m simply raising the question…where should OSHA be putting its focus? How can we make a concerted effort nationwide to “reach” these little employers? Threatening them will only drive them away…just as threatening employees on a worksite negates trust and drives safety problems underground.

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