Original Source: NPR

Kelvin “Chuck” Mattocks was at a doctor’s appointment in downtown Boston one October Friday when his boss called. Mattocks was supposed to be off, but his supervisor at the drain company said he needed him to finish a job in the city.

Mattocks, 53, agreed to forfeit his day off, and by lunchtime, he and co-worker Robert “Robby” Higgins, 47, were working in a 12-foot-deep trench in front of a townhouse in an upscale neighborhood in the city’s South End. They were installing a sewer line when, suddenly, the walls of the trench collapsed.

“I’m looking down, and the guys are down there working,” carpenter Ken Bruneau said in an interview with NPR.

Bruneau was working inside the house and stepped outside for a cigarette break when he saw the trench give way.

“And next thing you know, I seen part of the trench engulf them from the waist down. Real quick. Like, whoosh!’’ he said.

The heavy mud pressed against their bodies, making it impossible for the men to breathe. Kevin Otto, the boss and owner of the company where the men worked, was nearby and yelled for the workers to get out. But it was too late. A fire hydrant near the trench fell into the hole, immediately flooding it. Bruneau recalled watching helplessly as the two men disappeared under the muddy water.

“I knew they were done,” Bruneau said.

Mattocks, a father of six, and Higgins were smothered in a dense slurry of mud and water.

The men are two of the more than 250 people across the country who died over the last decade when trenches they were working in collapsed, according to an investigation by NPR, Texas Public Radio and 1A. In every instance, the deaths were preventable, experts say. All but one of the victims were male; the youngest was 16. In many cases, the companies failed to follow basic government rules for making trenches safe.

“There’s no reason, really, that any worker in this country should be dying in a collapsed trench,” said Jordan Barab, who was deputy assistant secretary for the Occupational Safety and Health Administration (OSHA) during the Obama administration. “All trench collapse deaths are preventable if the employer complies with well-recognized OSHA standards.”

NPR, Texas Public Radio and 1A examined hundreds of pages of OSHA inspection reports, court records, personnel files, lawsuits, police records, arrest affidavits, 911 calls, state safety reports and news releases and analyzed 10 years of OSHA workplace accident data. We also interviewed relatives of victims, prosecutors and other lawyers, current and former OSHA administrators, construction certification trainers, plumbers, engineers, local government officials, forensic experts, rescue workers and witnesses.

Among our findings:

• Companies fined by OSHA, whose role is to ensure workplace safety, sometimes ignored the penalties and faced no consequences, including one that still owes more than $1.4 million imposed after the deaths of two employees eight years ago.
• At least 10 of the companies that employed workers who were killed had been sanctioned previously by the federal agency for failing to protect employees doing excavation/trench work. One was cited five times in four years; another four times in as many years. 

• While those who violate OSHA standards can be criminally charged, authorities rarely brought charges. When they did, most offenders got off with a fine, probation or little time in jail.
• The regulatory agency can issue imminent danger notices at job sites if trenching violations pose a threat of serious physical harm or death to workers, but it seldom does.

Trenches are found throughout the U.S.: on the side of highways, at large construction sites and at new home builds. Thousands of construction workers, plumbers, utility workers and others toil in trenches across the country every day.

Trenches — glorified ditches — can vary by size, but OSHA’s most basic definition is that a trench is any narrow excavation made below the surface of the ground that is deeper than it is wide. They typically are no wider than 15 feet and no deeper than 20 feet and are often dug to install sewer and water lines and other underground utilities at commercial and residential sites. Because of their depth and the myriad ways that different soil types, external vibrations and weather can affect their stability, trenches can collapse without warning, offering little time to escape. One cubic yard of soil can weigh 3,000 pounds, about the weight of a Mini Cooper or other small car. In a collapse, the soil can move rapidly, depending on the depth of the trench and other variables.

Trench boxes, which are often rented for anywhere from hundreds to thousands of dollars per day or week, are critical pieces of construction safety equipment that minimize the chance of injury or death for a worker inside a trench. They are often made of solid metal, such as steel or aluminum. They keep the trench walls stable and prevent soil from dumping on top of workers inside if the trench collapses. OSHA requires some type of protective system, such as a box, for any trench deeper than 5 feet.

“That system is the strongest system for entering and exiting a trench,” said Candelario Vazquez, a health and safety organizer at Workers Defense Project in Austin, Texas, who has trained workers in OSHA safety courses.

Though trenches can be extremely dangerous for workers, the standard ways to avoid trench collapses resulting in deaths are widely known, easily accomplished and fairly cheap — and they’re required by federal law.

Deaths from trench collapses in the U.S. have fluctuated over the last decade, with the number peaking at 40 in 2022, up 60% from the previous year, according to data from the Bureau of Labor Statistics. These deaths come despite OSHA’s measures to help prevent collapses.

“I think OSHA needs to do more than what they’re doing,” said Aubrey Fryday.

Fryday’s son, Nathan, died in Lockhart, Texas, when a 12-foot-deep trench he was working in collapsed in August 2016. He was 22. His employer, Mercer Construction Co., a Texas-based business, failed to use a protective system, which OSHA found was a violation of its regulations, records show. The company was fined $126,051.

Fryday said that OSHA needs to be more aggressive when it comes to protecting workers like her son and the hundreds of others who have died in trench cave-ins over the last decade.

“They’re just all getting too lazy and sitting behind their desks and doing nothing,” she said.

OSHA officials insist that the agency is proactive when it comes to going after companies where trenches have collapsed.

“We’re doing everything we can … to protect workers every day for America,” Scott Ketcham, the agency’s director of construction, said in an interview with NPR. “When we find them, we cite them, and when we cite them, we hold them accountable.”

Ketcham acknowledged, though, that more needs to be done.

OSHA said it conducts between 1,500 and 2,000 trenching inspections annually, about 6% of all workplace inspections done yearly, Ketcham said. That includes those that occur after a worker has died. The agency has 840 compliance officers to handle all worksites in the country — more than 7 million of them.

“It would take around 186 years for OSHA to inspect every workplace in the country just once,” Barab said. “That means that unless a worker is killed, there’s a major incident or a worker files a complaint, an employer is unlikely to ever see an OSHA inspector.”

Since the passage in 2021 of President Biden’s Bipartisan Infrastructure Deal, which calls for rebuilding roads and bridges and upgrading airports and ports, hundreds of thousands more construction workers are expected to be put in the field throughout the country. Many of them will likely work in trenches.

Trench collapses often occur when employers cut corners, such as failing to install shoring equipment like hydraulic cylinders that hold back the dirt walls of a trench or boxes and timbers that prevent a potential collapse from harming workers. That’s what happened that led to the deaths of Mattocks and Higgins in Boston, according to agency and court records, and interviews. Otto, who owned Atlantic Drain Service Company Inc., did not provide “basic safeguards against collapse” and failed to provide safety training, OSHA records showed.

“The deaths of these two men could have and should have been prevented,’” Galen Blanton, OSHA’s New England regional administrator, said in a press release months after the two deaths. “Their employer, which previously had been cited by OSHA for the same hazardous conditions, knew what safeguards were needed to protect its employees but chose to ignore that responsibility.”

Multiple violations

Twice before the 2016 cave-in involving Mattocks and Higgins — in 2007 and 2012 — OSHA had fined, warned and sanctioned the business for unprotected trenches, agency records show.

The 2007 incident occurred in front of the Four Seasons Hotel near downtown Boston. Michael Grover, an OSHA compliance officer who inspected the scene after the agency received a complaint, heard and saw dirt sloughing off the sides of the trench, according to his court testimony. Otto told the compliance officer that he would protect the trench, but did not, Grover testified. OSHA issued Otto a willful violation, which means the company either intentionally ignored safety requirements or was indifferent to them. It required him to train his workers and document it.

Willful violations are the most severe penalty OSHA hands down, and they carry higher fines than serious violations and the possibility for criminal penalties or prosecution.

In the 2012 violation, the Boston Fire Department came upon an Atlantic Drain Service Company Inc. worksite and found a worker in a 10-foot-deep unprotected trench, according to court records. OSHA cited Otto’s company again.

Four years later when the trench collapsed at the South End townhouse worksite, killing Mattocks and Higgins, OSHA found that Otto didn’t provide the men with hard hats, eye protection or a ladder so they could get out of the trench.

“Chuck would always say ‘work ain’t never killed nobody,’” his sister, Melinda Mattocks-Ushry, said in an interview with NPR. “But I tell this story to say that work killed my brother.”

Otto’s violations were so egregious that authorities charged him with two counts of manslaughter for the deaths of Mattocks and Higgins. A Suffolk County Superior Court judge found Otto guilty in 2019, sentenced him to two years in the Suffolk County House of Corrections and three years’ probation, and banned him from doing trench work deeper than 4 feet during that time, according to court records. Otto dissolved Atlantic Drain Service Company Inc. in April 2021, according to Massachusetts corporation records. It’s unclear why OSHA did not move to shut down the company after the 2016 deaths.

“We do hold recalcitrant employers accountable and we do follow up on them within the powers that the OSHA Act allows us to,” Ketcham said.

Since his release from jail in October 2023, Otto started another company, Drain Away Inc., a drain cleaning business, state records show. Otto, who is listed as the company president, treasurer, secretary and director, did not return two calls from NPR seeking comment.

Otto’s previous company — Atlantic Drain Service Company Inc. — is just one of at least 10 that employed workers who died after having previously been sanctioned by OSHA for failing to protect employees doing excavation-type work, agency records and interviews show. One employer was cited for violations a month after agency officials sanctioned him for the death of a worker.

On April 6, 2019, Dalbert Burton, 43, was installing a 4-inch PVC sewer line at a new housing development in Sugarcreek Township, a Dayton, Ohio, suburb. He was in an unprotected 11-foot-deep trench and noticed that the dirt was loose, so he called his boss, Richard Westendorf, who owned Payne Enterprises Inc., a Dayton-based plumbing contractor. Westendorf said he was in Florida at the time.

“He called me and told me that it was caving in,” Westendorf, 75, said in a recent interview with NPR.

Westendorf said he instructed Burton to “redirect the sewer around the loose soil,” but Burton ignored his advice, he said. The trench collapsed, suffocating the husband, father and grandfather who had worked for the company for five years.

“I regret that he didn’t listen to me,” Westendorf said. “It cost him his life.”

“You don’t mess around with dirt. You’ve got to respect it.”

OSHA initially fined the company $145,860 in connection with Burton’s death, but later reduced it to $85,000. Westendorf told NPR that he paid the fine by the due date because he “didn’t want to risk going to jail.”

Burton’s widow received $750,000 from workers’ compensation, said Westendorf, who added that he paid for the man’s funeral.

“It seemed like the right thing to do,” he said.

What Burton’s family may not have known at the time was that it wasn’t the first time Westendorf and his company had run afoul of OSHA. In 2017 and 2018, the agency cited him for various trench safety violations, federal agency records showed. It again penalized him in July 2019, three months after Burton’s death. Westendorf said the other sanctions were for his failure to have trench boxes, ladders and other equipment to keep workers safe.

“Sometimes I did [have them]; sometimes I didn’t,” he admitted.

Westendorf said he shuttered his plumbing contracting business a year ago after 30 years, though the company is still listed as active with the state of Ohio.

“All the builders in the Dayton area, they thought I was a liability,” he said. “It is what it is.”

Westendorf continues to operate an ice business.

In December 2016, Donald “DJ” Meyer, 33, was killed when he climbed into a 16-foot-deep unprotected trench in suburban Kansas City, Mo., to retrieve a cellphone that he had dropped, according to Belton, Mo., Fire Marshal Chris Beal. He was digging to find a sewer stub for a home, according to OSHA records.

“He jumped down in the hole to get it and left the backhoe running, and the vibrations shook the earth,” Beal said in an interview with NPR.

Meyer tried to run to a nearby ladder, but there was too much dirt, which crushed and suffocated him, Beal said. Rescue crews spent nine hours retrieving Meyer’s body.

“It’s a horrible, tragic story,” Beal said. “It was unbelievable.”

Meyer was a plumber and widower raising his 8-year-old son.

OSHA initially cited the company, Arrow Plumbing LLC of Blue Springs, Mo., for five serious and two willful violations related to Meyer’s death, and proposed fines totaling $294,059, agency inspection reports show. OSHA later slashed the penalties by about 72%, but didn’t explain why.

A month after Meyer’s death, OSHA found that the company was in violation again, this time for not having a “competent person” on-site to inspect the excavation area before work started at a job site in Kansas City. The agency found that an employee working in a trench at least 8 feet deep was “exposed to a collapse of the excavation walls,” and issued a $126,749 penalty, according to OSHA records. The company contested it and the agency reduced it to $42,250 in September 2018. In 2020, OSHA inspectors responding to a complaint found another Arrow employee working in an unprotected trench without head protection. The company agreed to pay $299,590 in fines.

Ketcham acknowledged that OSHA does reduce fines, particularly for a smaller company that is unable to pay, if they can show they’re correcting the problem.

Bryan Fryday, who lost his son, said the OSHA fines imposed on companies that skirt federal regulations resulting in death are woefully insufficient because they don’t inflict adequate financial pain on the violators.

“Companies should be responsible and fearful,” he said. “Like, ‘OK, this is what we have to do to make it safe.’”

In some instances, even after OSHA reduces fines and sends them to the Treasury Department for collection, companies still ignore the penalties. OSHA fined Otto’s company in Boston more than $1.4 million after the 2016 deaths of Mattocks and Higgins.

“We held him accountable,” Ketcham said. “We cited him. We collected penalties.”

When told that Otto, in fact, defaulted on the debt and now owes more than $1.7 million — according to OSHA’s own records — Ketcham declined to discuss the case in detail.

“We attempted through debt collection to get penalties from that individual,” he said. “I’m not going to comment on Mr. Otto.”

Ketcham acknowledged that OSHA needs to do more to hold accountable companies that repeatedly violate OSHA trenching regulations.

“That is a top priority right now,” he said.

Criminal charges are rare

OSHA has the power to refer serious violators to prosecutors, but when asked how many times it has done so on open or closed investigations since 2013, agency officials declined to provide NPR with statistics.

“OSHA is limited in the information it can share regarding ongoing criminal investigations,” the agency said through a spokesperson.

NPR compiled a database of trench collapse deaths between 2013 and 2023 and found in instances where workers perished in trench collapses, about 5% of employers were criminally charged. And they often got off with little punishment.

Phillip Numrich, owner of Alki Construction LLC, a plumbing and sewer repair business in the Seattle area, was charged with second-degree manslaughter in 2018 in connection with the death two years earlier of employee and longtime friend Harold Felton in Washington state. Felton was working in a 6-to-8-foot-deep trench cutting a new pipe that had been put into place at a West Seattle home when the cave-in occurred, burying him under more than 6 feet of mud, prosecutors wrote in a legal brief filed as part of Numrich’s sentencing. Felton, 36, died of compression asphyxia, which means that something forceful pressed against his chest or abdomen area. The trench lacked the required shoring, prosecutors wrote.

During a hearing with state labor investigators, Numrich acknowledged that he was required to have the proper shoring but did not, according to the legal brief. The state cited and fined him $51,500, but cut it in half. Then, prosecutors stepped in. It was the first time in Washington state that an individual employer had been charged with manslaughter in connection with the death of an employee, said Patrick Hinds, a deputy prosecutor with the King County Prosecuting Attorney’s Office.

“This particular case was an important marker in the criminal justice response to worker safety,” he said.

Prosecutors reduced Numrich’s charges to attempted reckless endangerment. He pleaded guilty and received 45 days in jail and a $25,000 fine, court records showed. Neither Numrich nor his attorney in the matter, Cooper Offenbecher, returned several calls seeking comment.

Rosario Martinez-Lopez thought that he would install drywall or do carpentry work when he arrived at the residential construction site that June morning in 2018 in Granby, Colo. That’s what Bryan D. Johnson, owner of ContractOne Inc., hired him to do. Instead, Martinez-Lopez ended up with a shovel in a 7-to-8-foot trench, installing a main water line, according to the arrest affidavit. Johnson had earlier used a mini-excavator to remove dirt.

Suddenly, the trench collapsed, crushing the 50-year-old Martinez-Lopez. His son, Moises Martinez, was also at the job site and helped rescuers retrieve his father’s body. The victim was pronounced dead at a local hospital.

“Bryan Johnson conducted all aspects of his construction site without the slightest attention to the safety of employees on the scene,” according to a Grand County, Colo., arrest warrant affidavit obtained by NPR. “He did not … slope the trench walls, did not have a trench box … and did not have appropriate access to ingress/egress.”

A subsequent OSHA investigation found that Johnson never trained Martinez-Lopez or other employees about the dangers of trench work. Authorities determined that there was probable cause to arrest him and charge him with criminally negligent homicide.

Johnson pleaded guilty to two counts of reckless endangerment and one count of third-degree assault and was sentenced to eight months in jail, court records show.

David Michaels, a former OSHA assistant secretary, said the federal agency should turn to criminal prosecutions more for trench deaths, because the fines they levy are often too small to be adequate deterrents, he said.

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