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 agency has proposed fines of nearly $1.5 million in the case.
“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.
- Remove employees from the hazardous conditions in the trench.
- Train the workers in how to identify and address hazards associated with trenching and excavation work.
- Provide a ladder at all times so employees could exit the trench.
- Support structures next to the trench that posed overhead hazards.
- Provide employees with hardhats and eye protection.
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. OSHA cited Atlantic Drain trenching work sites for similar hazards in 2007 and 2012.
The walls of an unprotected trench can collapse suddenly and with great force, trapping and engulfing workers before they have a chance to react or escape. Protection against cave-in hazards may be provided through shoring of the trench walls, sloping the soil, or by using a protective trench box. Employers must ensure that workers enter trenches only after adequate protections are in place to address cave-in hazards. More information about protecting employees in trenches and excavations can be found here and here.
“We want to emphasize to all employers that trenching hazards can have catastrophic consequences if they are not addressed effectively before employees enter a trench,” said Blanton.
Atlantic Drain has 15 working days from receipt of the citations and proposed penalties to meet with Blanton, and to contest the citations before the independent Occupational Safety and Health Review Commission.
Indictments Against Company, Owner
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. OSHA and the department’s Regional Office of the Solicitor worked with the department’s Office of the Inspector General, the Boston Police Department’s Homicide Unit and the Suffolk County District Attorney’s Office during the course of the investigation.
On Feb. 8, Suffolk County District Attorney Daniel F. Conley, announced the manslaughter indictments, saying that as with all unnatural fatalities within the city of Boston, experienced prosecutors from his office responded to the scene and led the death investigation that followed, overseen by the chief of his homicide unit and assisted by Boston Police homicide detectives.
“We allege that Mr. Otto and Atlantic Drain Services willfully, wantonly, and recklessly failed to take the standard safety precautions that could have averted that tragedy,” said Conley. “And we further allege that they provided fraudulent records in response to federal subpoenas during the investigation that followed – and failed entirely to provide those records to the Suffolk County Special Grand Jury.”
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. The shoring can be accomplished in a number of ways, including with wooden planks or metal trench boxes designed specifically for this purpose.
“The evidence has established that the defendants were well aware of this shoring requirement, as well as the grave danger that workers would be exposed to without it, because they’d incurred two separate OSHA violations in the past 10 years for failing to follow it,” said Conley. “In fact, as a result of those violations, they were 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 attorney general’s office alleged that Kevin Otto and Atlantic Drain Services knew the risk posed by a 14-foot trench without proper shoring – and that they chose to run that risk rather than take reasonable precautions.
“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.”
In the weeks that followed the tragedy, Suffolk County prosecutors and federal safety inspectors subpoenaed certain documents from Atlantic Drain Services. Those agencies allege the defendants provided OSHA with paperwork that agency believes had been doctored.
“Those documents appear to bear forged dates and signatures indicating that employees had attended various safety trainings required after the earlier OSHA violations in 2007 and 2012 when in fact they had not,” said Conley. “The defendants then concealed those documents from the Suffolk County Grand Jury.”
The grand jury investigation not only revealed evidence of an alleged crime at the Dartmouth Street dig site, but also suggested a cover-up of past misconduct.
“The evidence in its totality 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,” said Conley, adding, “We can never relieve the pain and anguish of the two families that Mr. Higgins and Mr. Mattocks left behind. But we will do everything in our power to find some measure of justice for them in a Suffolk County courtroom. Moreover, we’re putting employers in Boston and Suffolk County on notice – if you defy the regulations meant to protect working men and women, you will answer for the consequences.”
Conley is calling on the commonwealth’s legislature to raise the maximum penalty for a corporate entity convicted of manslaughter. Massachusetts law currently caps corporate liability at $1,000 in the event of a manslaughter conviction. “That amount hasn’t been raised in almost 200 years, and it’s woefully inadequate to the circumstances of this case,” he noted.
“As prosecutors, there is no requirement that we prove motive in our cases. Whether it was greed, haste or indifference that led Kevin Otto and Atlantic Drain to forego their responsibilities isn’t for us to say. But Robert Higgins, Kelvin Mattocks, and generations of laborers just like them dug the tunnels, built the homes, and raised the towers that help make this city great. We won’t forget their sacrifice, and we won’t let their deaths go unanswered,” said Conley.