Sandy Says: What Should Be the Cost To Employers Who Ignore Their Responsibilities?

Robert Higgins and Kelvin Mattocks went to work on a fall day in Boston, just like any other day. On that day – Oct. 21, 2016 – the approximately 12-foot deep, unshored trench in which they were working collapsed, trapping them in soil up to their waists.

As their coworkers scrambled to dig them out, an adjacent fire hydrant supply line snapped, filling the trench with water. Despite the desperate efforts of their coworkers, the men died at the scene.

An investigation by OSHA found that their employer, Atlantic Drain Service Co. Inc., failed to provide basic safeguards against collapse and did not train its employees – including Higgins and Mattocks – to recognize and avoid cave-in and other hazards.

"The deaths of these two men could have and should have been prevented," said Galen Blanton, OSHA's New England regional administrator. "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."

OSHA's inspection determined that Atlantic Drain and owner Kevin Otto, who oversaw the work on the day of the fatalities, did not install a support system to protect employees in an approximately 12-foot deep trench from a cave-in and prevent the adjacent fire hydrant from collapsing or train the workers in how to identify and address hazards associated with trenching and excavation work, among other violations.

As a result, OSHA cited Atlantic Drain for a total of 18 willful, repeat, serious and other-than-serious violations of workplace safety standards and is proposing $1,475,813 in penalties for those violations. Federal regulations require any excavation deeper than five feet, and any adjacent utilities, be shored up to prevent the sort of cave-in that occurred in Boston. Atlantic Drain Services had incurred two separate OSHA violations in the past 10 years – in 2007 and 2012 – for failing to follow it, so was well-aware of federal requirements. As a result of those previous violations, the company was to undergo extensive training on how to implement cave-in protection. But there was no shoring in place at the Dartmouth Street dig site when Robert Higgins and Kelvin Mattocks were buried alive.

The OSHA investigation is just the beginning for Atlantic Drain and owner Kevin Otto. In February, a Suffolk County grand jury indicted the company and Otto on two counts each of manslaughter and other charges in connection with the deaths.

Suffolk County District Attorney Daniel F. Conley, when announcing the manslaughter indictments, said that Otto and Atlantic Drain Services "willfully, wantonly and recklessly failed to take the standard safety precautions that could have averted that tragedy." Conley's office also alleges that they provided fraudulent training records in response to federal subpoenas.

"That isn't an accident. That isn't negligence," Conley added. "That's wanton and reckless conduct, and we believe it cost two men their lives."

According to Conley, "The evidence … suggests that Atlantic Drain Services and Kevin Otto gambled with their employees' lives and safety, and that Robert Higgins and Kelvin Mattocks paid the ultimate price."

As a prosecutor, there is no requirement that Conley prove motive. Was it haste; did Otto not want to take the time to properly shore the trench? Was it indifference to obvious workplace hazards? Was Otto unconcerned about the health and safety of his employees?

We'll never know why Kevin Otto and Atlantic Drain decided to ignore their responsibility to workplace safety and health, but Robert Higgins and Kelvin Mattocks paid the ultimate price. While the OSHA fine is significant, what price will Otto and his company pay if convicted of manslaughter? According to Conley, current Massachusetts law caps corporate liability at $1,000 in the event of a manslaughter conviction.

As one EHS Today audience member commented: "I am not a believer in the idea that financial penalties encourage good or lawful behavior, but a $1,000 cap on liabilities for someone dying is wrong. In 1998, I took a spontaneous trip to Belize and stayed for three weeks. It cost me more than $1,000 in fines because Logan (Airport in Boston) determined my car was abandoned. There's no way to make any sort of sense out of a system that issues parking tickets costing more than the fines for killing somebody."