OSHA Issues Citations For 18 Regulation Violations That Resulted in the Death of Two

Kiley Law Group, LLC

Atlantic Drains is facing fines close to $1.5 million as its owner pleads not guilty to manslaughter charges

According to Occupational Safety and Health Administration, OSHA, each year in the US more than 800 construction workers lose their lives while performing their job. As the agency points out, one of the most hazardous types of construction work is trenching. According to various statistics, between 40 and 70 workers die each year in trenching-related accidents. Most of those accidents are due to cave-ins, which also means that they are preventable if necessary precautions and safety measures are in place.

Sadly, last October, a failure to provide such measures led to the death of two construction workers in Boston. Kelvin Mattocks, 53, and Robert Higgins, 47, were digging a 14-foot trench on Dartmouth Street, in the South End area of Boston, when a burst pipe and subsequent flooding of the trench resulted in a cave-in. According to witnesses, the workers had no chance to escape.

Kelvin Mattocks

Robert Higgins

Information provided by OSHA states that “one cubic yard of soil can weigh as much as a car, nearly 3,000 pounds” – therefore, cave-ins such as the one described above usually take a deadly toll. OSHA regulations specify that all trenches deeper than 5 feet, unless they are cut into solid rock, must be protected against cave-ins and that it is the responsibility of the employer to provide such protection. Mattocks and Higgins worked for the Atlantic Drain Service Co, a company that has an unfortunate history of occupational safety violations. Atlantic Drain have been fined twice in the last 10 years – in 2007 and 2012 – but have failed to pay the fines. OSHA labeled the company a severe violator and placed it in a program for “recalcitrant employers that endanger workers by committing willful, repeat, or failure-to-abate violations”. The program required the company to provide its employees with special training. How is it possible, then, for such flagrant negligence on the part of Atlantic Drain to have recurred, this time leading to the above-mentioned tragedy? According to Suffolk District Attorney prosecutors, the company falsified documents certifying that the employees attended the training when in fact they had not. Commenting on this fact in February, Suffolk District Attorney Dan Conley said: “That isn’t an accident. That isn’t negligence. That’s wanton and reckless conduct, and we believe it cost two men their lives”. He also announced that both the owner of Atlantic Drain, Kevin Otto, as well as the company were charged with two counts of manslaughter. The company’s owner declined to comment at the time but he pleaded not guilty to the charges.

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“That isn’t an accident. That isn’t negligence. That’s wanton and reckless conduct, and we believe it cost two men their lives” – Dan Conley

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As the company has been previously cited by OSHA for the same conditions that resulted in the tragedy on Dartmouth Street, this time the agency is taking more decisive action. Earlier this month OSHA’s New England Regional Administrator stated that Atlantic Drain was being cited for 18 violations for which penalties amounting to $1,475,813 were proposed. Penalties so high are uncommon in New England – in the past 20 years there were only two cases in which proposed fines exceeded $1 million, according to Ted Fitzgerald, Regional Director for Public Affairs of the US Labor Department. The reason for very high penalties in the case of Atlantic Drain is that it is believed the violations were willful and repeat. Indeed, in the official ‘Citation and Notification of Penalty’ document issued by OSHA, only one violation is classified as other-than-serious. The rest were found to be either serious, willful, or repeat. The document mentions, among others, the following violations:

• failure to initiate and maintain safety inspections of the site, materials, and equipment
• failure to provide the employees with training in the recognition and avoidance of unsafe conditions
• failure to provide sufficient means of egress corresponding to the circumstances of the work site∗
• failure to provide a support system for the trench, such as shoring, bracing, or underpinning
• failure to excavate the trench according to safety regulations – the angle of the excavation was too steep and therefore hazardous

The cause-and-effect link between the violations and the tragedy that occurred seems to be self-evident. According to Galen Blanton, OSHA’s New England Regional Administrator, “The deaths of these two men [Mattocks and Higgins] could have and should have been prevented. 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”. It can be only hoped that the strong stance and decisive action, taken both by OSHA and the prosecutors will become warning examples for other construction companies to revise their safety practices so that tragedies like the one that occurred on Dartmouth Street last October do not make the news anytime soon.

∗In case of trenches deeper than 4 feet, the employer is obliged to provide a ramp or other exit so that the workers do not have to make “more than 25 feet of lateral travel” trying to exit the trench

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