Expect more criminal charges in trench deaths

Editor’s Note: This series of articles examines the business and human costs of trench-collapse fatalities in the United States. Click here to see the full set of articles in this series.

Expect more criminal charges in trench deaths

By Don McLoud

A distraught co-worker is assisted by firefighters following a trench collapse January 26, 2016, in Seattle that killed Harold Felton. Felton’s employer, Alki Construction owner Phillip Numrich, has been charged with second-degree manslaughter, which is the first felony charge in Washington State in a worker’s death. Photo credit: Greg Gilbert / The Seattle Times

Alki Construction failed to properly install aluminum hydraulic shoring in the trench that collapsed on Harold Felton in Seattle, according to Mark Joseph, a certified safety and health officer with the Washington State Department of Labor & Industries (L&I). One of the two shores the workers used was more than 4 feet above the bottom of the 8- to 10-foot-deep trench, which is against L&I regulations. The trench should have had four shores on the long end of the trench, and it should have had end shoring on the two short sides at the end of the trench, according to Joseph.

Jay Herzmark had never tried to get anyone arrested before.

But when the retired industrial hygienist from the University of Washington’s Environmental Health and Safety Department found out a worker had died in a trench collapse in his county, he felt something had to be done.

“No one should die in a trench,” he says.

Herzmark was no stranger to worker issues, having been active in the Washington Federation of State Employees union and a former director of the Seattle Chapter of the National Council for Occupational Safety and Health.

The trench collapse, however, launched his activism to a new level.

The Washington State Department of Labor & Industries (L&I) had cited Alki Construction owner Phillip Numrich with a willful violation in the death of his employee Harold Felton and fined him $51,500. The case might have ended there, but Herzmark’s efforts led to the first felony charge in Washington for a worker’s death, according to L&I.

The second-degree manslaughter charge, filed by the King County Prosecutor’s Office on January 8, 2018, is one of six trench-collapse deaths since 2015 in which a local prosecutor has filed charges. In two of those cases, one in New York City and another in Santa Clara County, California, three people were sentenced to a year or more in prison.

Buoyed by the recent convictions and filing of criminal charges, some workers’ advocates hope to see more such local prosecutions around the country. They believe the maximum penalty under federal occupational safety laws for a worker’s death, a misdemeanor that carries up to six months in jail, is too lax to deter worksite negligence. They also say the Occupational Safety and Health Administration doesn’t refer enough cases to the U.S. Justice Department for criminal prosecution.

“The (OSHA) cases aren’t referred over to the Justice Department very often, and even when they are, the Justice Department doesn’t see it necessarily as the best case to spend the resources on,” says Katie Tracy, policy analyst for the Center for Progressive Reform.

But local prosecutors don’t face such constraints.

“At the local level, prosecutors can bring criminal charges into situations where federal OSHA couldn’t,” she says. “And they can also charge as a felony where federal OSHA can’t.”

‘You’ve got to do more than that’

Steven Smith was working on a nearby masonry project on October 21, 2016, when he saw a water main collapse that sent torrents of water into a collapsed trench and down Dartmouth Street in Boston. The photo shows him trying to assist at the scene. He connected a chain to a street plate that covered part of the trench and called for a backhoe operator to help lift the plate. Smith has since filed a lawsuit against Atlantic Drain Service seeking $200,000 to recoup costs for hospital expenses and therapy following the incident in which two workers trapped in the trench died. Photo credit: Mark Garfinkel/Boston Herald

Sometime shortly after 10:35 a.m. January 26, 2016, Harold Felton entered a trench he and other workers for Alki Construction had dug beside a house in Seattle, Washington.

The trench was 8 to 10 feet deep, 6 feet long and 21 inches wide, according to L&I.

About 10 minutes later, Felton’s co-worker, Maximillion Henry, heard him yell, according to a Seattle Police Department report. He ran to the trench but could not see Felton. The co-worker jumped into the trench and began digging. He called the company owner, Phillip Numrich, who had gone to buy lunch. Numrich told the worker to call 911. When Numrich returned to the site soon after, both men tried to dig out Felton.

They eventually reached Felton’s back and heard “coughing, spitting and muffled breathing,” according to the report. The Seattle Fire Department arrived, ordered both men out of the trench and began rescue efforts.

Felton’s body was found underneath the dirt about 7 feet down, crouched with his arms bent toward his diaphragm, the report said. It took hours to recover the body. The 36-year-old worker left behind a wife and 4-month-old daughter.

“He must have fallen in the hole,” Numrich later told a police officer, according to the police report. “That’s the only thing that makes sense. He knew not to go in there. He knew to stay 2 feet back. Those are the rules.”

The police department ruled the collapse an accident and turned the case over to L&I.

L&I investigators determined that the trench was dug in Type C soil, the least stable. It was not properly shored, had no ladder and had been left open for 10 days during rainy weather. Felton and other workers were using vibrating tools and a trenchless pipe extension process that loosened the soil in and around the trench.

Felton was attaching the new line at the house, using a Sawzall vibrating hand tool, when the trench collapsed, according to Mark Joseph, an L&I certified safety and health officer.

“Numrich did not intervene to stop Felton from using the Sawzall,” Joseph said in a probable cause statement. “Instead, Numrich left the jobsite to buy lunch for all three so that they could eat after Felton and Henry finished attaching the sewer.”

He also determined the company had used an aluminum hydraulic shoring system, but had not installed it properly and had only used two shores. The trench should have had four shores on the long end of the trench, and it should have had end shoring on the two short sides at the end of the trench.

“As a result, the shoring in place was wholly inadequate and, based on Numrich’s status as the ‘competent person’ and his statement during his interview that he was aware of trench safety issues, he should have known that the shoring was inadequate,” Joseph stated.

On July 21, 2016, L&I cited Alki Construction with eight violations, two of which were “willful,” the most serious level. The willful violations were for not having the trench properly shored and because Numrich, who was the designated competent person on the jobsite, did not ensure that Felton stayed out of the trench that was exposed to possible cave-ins.

On September 1, 2016, L&I announced the $51,500 in fines. The fines were reduced two months later to $25,750.

“I thought, ‘You’ve got to do more than that,’” Herzmark recalls. “That’s probably manslaughter.”

So Herzmark reached out to the nonprofit Center for Progressive Reform, which had been looking into criminal cases brought by local prosecutors for worker fatalities.

The organization, based in Washington, D.C., had created a manual to help local activists initiate grassroots efforts to seek such prosecutions. Using the manual as his guide, Herzmark filed a petition with 120 signatures from labor leaders, attorneys, political leaders and workplace safety professionals with the King County Prosecutor’s Office calling for criminal charges against Numrich.

Herzmark wasn’t sure what would happen next, if anything.

“I’d never done this before,” Herzmark says. “I knew it was really difficult. I’ve been working in this field for 30 years, and I know that hardly anyone ever goes to jail.”

A little over a year after he submitted the petition, the King County Prosecutor’s Office made state history by announcing it had filed a felony manslaughter charge against Numrich.

“We alleged that the defendant’s criminal negligence caused Harold Felton’s death,” said Mindy Young, senior deputy prosecuting attorney. “The evidence shows an extraordinary level of negligence surrounding this dangerous worksite.”

After Numrich was charged, he was released on personal recognizance. He currently awaits trial. Attempts to reach Numrich for comment were unsuccessful.

‘Penalties higher for killing fish than for workers’

Criminal prosecution is rare for workplace deaths, and it’s even rarer for someone to be sentenced to prison.

Between 1970 and 2016, about 400,000 workers died on the job, but only 93 of those deaths resulted in criminal prosecution under the federal Occupational Safety & Health Act, according to the 2017 “Death on the Job” report by the AFL-CIO.

Total jail time for all 93 cases combined was a little over nine years.

Compare that to federal environmental protection laws, where in fiscal year 2016 alone, 184 criminal cases were prosecuted with total sentencing of 93 years in prison, according to the report.

Fines for workplace deaths are also low when compared to environmental violations.

Jordan Barab, former OSHA deputy director who writes the “Confined Space” newsletter on workplace safety and labor issues, says workplace deaths typically result in OSHA fines in the tens of thousands; whereas, EPA fines can rise to millions of dollars.

According to the AFL-CIO’s 2017 “Death on the Job” report, in fiscal year 2016, the average OSHA penalty for a worker fatality was $14,767. For a willful violation, the OSHA fine averaged $41,592.

In contrast, the average fine and ordered restitution for the 184 EPA criminal cases in fiscal year 2016 was $1,125,000, according to report data.

“If you’re planning to die on the job, make sure you take a bunch of fish with you, because the penalties will be much higher for killing fish than they would be for killing workers,” Barab says of the discrepancy.

Ignoring repeated warnings

No firm data exist on the number of criminal prosecutions on a federal, state and local level for trench-collapse death cases. However, since 2015, charges have been filed in at least eight cases in which workers died in a trench collapse, according to a Center for Progressive Reform database and Equipment World research. Local prosecutors filed all but two of those eight cases; the U.S. Justice Department filed the other two after referral by OSHA.

One of the most publicized recent criminal prosecutions of a trench-collapse death – and one most often cited by workers’ advocates – occurred in New York City in 2016.

On April 6, 2015, an inspector at a worksite in New York City’s Meat Packing District had several times warned the site’s supervisor and foreman to keep workers out of an unprotected trench. Not long after the last warning, the trench collapsed on Carlos Moncayo, a 22-year-old undocumented worker from Ecuador. He was crushed to death.

At trial in 2016, the foreman for the excavation subcontractor, Wilmer Cueva, was sentenced to one to three years for felony criminally negligent homicide and misdemeanor reckless endangerment.

After Cueva’s conviction, site supervisor Alfonso Prestia accepted a plea deal of probation and community service for criminal negligent homicide.

Prestia’s employer, Harco Construction, ended up paying $10,000, the maximum fine the court could impose, after being convicted of second-degree manslaughter, criminally negligent homicide and reckless endangerment in June 2016. The company was also fined $140,000 by OSHA.

Cueva’s employer, Sky Materials, reached a plea deal to pay a $10,000 fine on the manslaughter charge. OSHA also fined Sky $100,000.

On the second anniversary of Moncayo’s death, April 6, 2017, District Attorney Cyrus Vance Jr. called for tougher criminal penalties against companies convicted in worker death cases.

“A $10,000 fine,” he said, “is but a rounding error on a multi-million-dollar building contract.”

Flooded trench leads to charges in Boston

Suffolk County District Attorney Dan Conley, right, announces manslaughter charges in the 2016 deaths of two men in a trench collapse in Boston. With Conley are Assistant D.A. Michael V. Glennon, left, who responded to the scene, and Assistant D.A. Lynn Feigenbaum of the Senior Trial Unit, who led the grand jury investigation that culminated in criminal charges against Atlantic Drain Service and its owner, Kevin Otto.

Another trench-collapse case that has caught the attention of workers’ advocates occurred in Boston in 2016.

Kevin Otto and his company, Atlantic Drain Service, were charged in 2017 with two counts of manslaughter, one count of misleading investigators and six counts of concealing a record. They also face nearly $1.5 million in fines from OSHA for 18 violations, including repeat violations.

The charges followed the deaths of Robert Higgins, 47, and Kelvin Mattocks, 53, who were working in an unprotected, 12-foot-deep trench when dirt caved in, covering them to the waist, then the water main at a fire hydrant burst, according to the Suffolk County Prosecutor’s Office.

“The trench was flooded in seconds, and neither Higgins nor Mattocks was able to escape,” the Prosecutor’s Office said. “Both died at the scene, and it would be almost six hours before their bodies were recovered.”

The prosecutor’s office also charged the company with concealing a record and misleading an investigator. The office said Atlantic Drain provided OSHA with doctored records to indicate the two workers had been trained in trench safety and had proper safety equipment.

Otto and Atlantic Drain have pleaded not guilty and filed to dismiss the charges, arguing that insufficient evidence was provided to the grand jury to determine probable cause. A judge rejected the request for dismissal of the charges in April.

Veronica White, attorney for Otto and Atlantic Drain, said the cause of the trench collapse was a hydrant pipe failure that allowed water to rush into the trench. Her expert witness, Dr. Marthinus C. Van Shoor, has submitted a signed affidavit saying that shoring can’t protect a trench against a rapid inrush of water.

“The collapse of the trench was an unfortunate accident,” White said. “…There was no criminal intent.”

She said the charges were the result of public pressure on the Prosecutor’s Office, and the OSHA investigation was not completed before the grand jury was presented evidence. “Once all evidence is made available, through request or order of the court, we expect to move forward in determining lawful avenues to dismiss this case,” White said.

The trial is scheduled for January 2019, according to the prosecutor’s office.

Setting a precedent?

Seattle firefighters respond January 26, 2016, to a trench collapse that killed Alki Construction worker Harold Felton. It took several hours to recover Felton, who was found 80 inches down in this trench, crouched with his arms bent toward his diaphragm, according to a police report. The 36-year-old worker left behind a wife and 4-month-old daughter.

“In the past, there’s been this hang-up on seeing workplace fatalities as crimes. People just see them as these unfortunate accidents,” says Tracy, with the Center for Progressive Reform. “The police don’t even investigate a lot of these as crimes. They just call OSHA. OSHA does an inspection and issues a fine. It’s literally considered an accident in almost every single case.”

With Herzmark’s efforts in Seattle and convictions in New York City and a few other areas around the country, Tracy expects local prosecutors’ perceptions will gradually change about seeking criminal charges in workplace fatalities.

“I’ve talked to other prosecutors,” she says, “and they’re like, ‘Well, where’s an example of a case? Has this happened before successfully?’

“Now we have concrete examples of successful prosecutions that they can look at, and they’re not necessarily afraid to try something new.”

Jordan Barab, former federal OSHA deputy director, also believes more trench-collapse death cases should be criminally prosecuted, and he believes all trench-collapse cases should be considered willful violations by OSHA.

“These are well-known hazards, and the solutions for preventing workers from getting hurt or killed in trenches are also well-known,” he says. “It should be the responsibility of any business owner who has a business involving digging trenches to understand how to abate those hazards and to do it.”

Herzmark says he plans to urge state regulators to refer more workplace death cases to police and prosecutors for criminal investigation. Until jail time becomes a real possibility, he says, “people are going to continue to do what they do.”

He says he’s also ready should another case deserving criminal prosecution catch his attention.

“If I could find another case, I would do it,” he says. “I would be all over it.”