Deadly Hazard

THE REPORTS COME IN WITH AN almost numbing regularity.

Gilbertsville, Pa., April 2004: Two men are running a sewer pipe to a home when the trench wall splits off and buries them. Forty-three-year-old Brian Bealer dies in the trench; after three hours, rescuers free 42-year-old Gary Vroman, Bealer's longtime friend and co-worker. From his hospital bed, Vroman tells reporters that losing his friend is “really tough.” (Reading Eagle)

Newark, Ohio, July 2004: Forty-year-old plumber Gary Dillon, working on a residential sewer hookup, is buried in 4 feet of earth. A coroner's report says the man died instantly from “blunt force injury to the head.” Seeing no shoring or benching in the trench, OSHA starts an investigation. (Columbus Dispatch)

Knox County, Tenn., September 2004: Fifty-two-year-old Ed Kimbell, co-owner of a construction company, is buried by loose soil in a 23-foot-deep trench for storm drains at a new subdivision. His son and another employee are unable to free him; rescue workers take several hours to recover the body. OSHA fines the company $8,000 for several violations but says a misjudgment of the risk, not the violations, caused the fatality. Kimbell's surviving co-owner, a friend for more than 25 years, tells a reporter that Kimbell was “a wonderful person.” (Knoxville News-Sentinel)

New Rochelle, N.Y., April 2005: Fifty-nine-year-old Thore Christensen is buried in a trench collapse while connecting a sewer line to a house. A self-employed subcontractor on the site, Christensen may not fall under OSHA regulations. But city officials charge the prime contractor on the site with permit violations. (Westchester Journal-News)

As home building has taken off in a red-hot market, so too have residential trench accidents. Foundation excavation and trenching for sewer hookups create a risk on virtually every home construction site. Unfortunately, say experts, the vast majority of residential dirt work is performed without regard for OSHA rules and without any meaningful protection for workers in the hole.

In the Kansas City, Mo., area where he operates, foundation contractor Dan Bromley says, “the big danger is residential sewers. The big guys doing sewer work on commercial jobs are usually out there shoring and that sort of thing. But residential guys—they just come out, dig a trench, and slap it in there. It seems like we have a plumber killed every year in this area. I don't know why they aren't following the rules. It's just crazy.”

OSHA TRIGGER: By law, trenches deeper than 4 feet require benching, shoring, or a trench box. On site, however, the rules are often ignored.

Foundation work has also caused fatalities in the vicinity, Bromley notes. In one case, collapsing soil pushed a waterproofing worker up against a residential basement wall: “Dirt came off and hit him and knocked a snap tie through the back of his skull,” says Bromley. “Then another time, a man was working by himself on a commercial job, and he got buried from the waist down. It crushed his pelvis, and he bled to death internally.”

OSHA offices investigate so many fatal trench collapses that they're ready with canned phrasing for their press releases: “The walls of an excavation can collapse suddenly and with great force, stunning and burying workers beneath tons of soil before they have a chance to react or escape.” For contractors and their employees working below grade, death is like a silent partner who never calls: When he wants his cut, he just shows up.

No type of accident is more traumatic and potentially more devastating to a business than a trench fatality. On the day it happens, the immediate event can be uniquely agonizing. Co-workers and employees of other contractors on the site—often relatives of the victim—work frantically, and often in vain, to extricate the victim before he suffocates. Their lack of training places them at risk: Would-be rescuers entering an unstable trench can easily become victims themselves. Also, unskilled attempts to save a victim using a backhoe or excavator are likely to kill the trapped worker instead.

All too often, rescue is impossible—in the dry phrasing of emergency response reports, “the team determines that the rescue operation is now a body recovery operation.” In that case, rescue personnel slow down and emphasize safety for rescue workers in the trench. It typically takes many hours—often a whole day—to locate and remove a body. Meanwhile, family members and co-workers—who may still cling to hope—stand and wait.

OSHA investigates every reported worker death. But despite the agency's fearsome reputation, OSHA penalties in the case of a cave-in are often the least of the employer's worries. John Tomich, director of OSHA's Albany, N.Y., area office, says, “People sometimes feel there is a disconnect between the fatality and the size of the penalties—thinking that a fatality should automatically draw penalties of hundreds of thousands of dollars. I have to explain to them that the law was never intended to be a crime and punishment situation.” It's the rule violation, not the death, that draws the fine, explains Tomich, and the amount is determined by formula. Small companies with no history of citations could be fined just a few thousand dollars even after a fatality, while a larger company with repeated or “willful” violations might draw fines of $70,000 and up just for violating trenching rules, even if no one has been injured.

But, in some cases, a trench death can fall on a company like a hammer blow. OSHA fined Pennsylvania firm Wagner Excavating Services more than $382,000 after employee William Partin died in a sewer trench in June 2004. OSHA investigators said that the company had been cited before, making the case a “repeat” violation. They also said the company had been warned about the hazard, and that an unused trench box was lying near the spot where the man was buried—all signs that the violation was “willful.”

Wagner now faces a new and potentially even more costly consequence: In April, Partin's widow filed suit for damages in a Pennsylvania court.

And in the case of an excavation death, even criminal penalties are not out of the question. In October 2004, a Michigan judge convicted the Lanzo Construction Co. of felony charges after a worker died in a sewer trench; the corporation was sentenced to two years' probation (personal criminal charges against the company's owner were dropped). Lanzo Construction still faces possible OSHA civil penalties of $650,000 proposed by the state, as well as a civil lawsuit brought by the victim's family.

Ted Cushman is a freelance writer based in Great Barrington, Mass.

Excavation work can trigger an inspection any time.

If you have employees working below grade, OSHA's mind is down in the dirt with them. OSHA regulations 1926.651 and 1926.652 are definite about the requirements for benching, shoring, means of escape, ongoing supervision by a “competent person,” and training workers to recognize unsafe conditions.

Since 1985, OSHA has had a “national emphasis program” targeting trench and excavation work. In practice, that means that an open excavation on your site is an open invitation for OSHA to stop and inspect. “If our people are out driving somewhere in the course of their daily activities, and we see an excavation or a trench, we can stop and we should stop,” says Albany OSHA area director John Tomich.

While OSHA has slighted residential sites in years past, Tomich says he's heard enough from commercial contractors about the unfairness of that policy. “They ask me why I'm always focusing on them and letting residential guys get away with anything.” But when commercial construction in his jurisdiction slowed down a few years ago while residential work picked up, Tomich says, his office made a transition to more residential inspections: “I tell my guys to strike a balance between commercial and residential jobs, and they do.”

If inspectors do see a trench and stop, they are not limited to inspecting the trench—they may inspect the entire jobsite and issue citations for fall protection violations, electrical problems, saws without guards, or any other rule violation. And while OSHA doesn't have authority to order a work stoppage, it can ask the employer to voluntarily pull employees out of an unsafe situation like an unshored trench. “For the most part they do,” says Tomich—and if they don't, violations are likely to be termed “willful” and draw heavier fines.

In the case of a trench, the chain of responsibility for worker safety may be unclear, notes Tomich. “You could have an excavator's guy and a surveyor's crew down there with the plumber laying pipe. And each employer is responsible for their own people.” Employers have a valid defense if they can show that they did not create the condition and had no way to avoid it or to provide interim protection, says Tomich, but that's a hard case to make.

And Tomich has little patience for employers who he senses are not making a good faith effort. “A lot of people don't see what we see,” he says. “They'll say to me, ‘Why are you busting my chops? You are just too passionate about all this.' But I say, ‘You know, I have seen a lot of people die.' ” His office investigates a worker fatality, on average, once a month, says Tomich. “We have sat and watched people die in a trench while people were trying to rescue them. And we engage the family, we engage the co-workers. Those are the walking wounded. And so if I can annoy you, and rattle your cage, and be in your face to do the right thing, I will—because it may be your lucky day. Because by changing your attitude a little bit, and getting you to take that little extra time, I may save your life.”