OSHA not always holding accountable employers who skimp on safety : NPR

Kelvin “Chuck” Mattocks was at a doctor’s appointment in downtown Boston one October Friday when his boss called. Mattocks was supposed to be off, but his supervisor at the drain company said he needed him to finish a job in the city.

Mattocks, 53, agreed to forfeit his day off, and by lunchtime, he and co-worker Robert “Robby” Higgins, 47, were working in a 12-foot-deep trench in front of a townhouse in an upscale neighborhood in the city’s South End. They were installing a sewer line when, suddenly, the walls of the trench collapsed.

“I’m looking down, and the guys are down there working,” carpenter Ken Bruneau said in an interview with NPR.

Bruneau was working inside the house and stepped outside for a cigarette break when he saw the trench give way.

“And next thing you know, I seen part of the trench engulf them from the waist down. Real quick. Like, whoosh!’’ he said.

The heavy mud pressed against their bodies, making it impossible for the men to breathe. Kevin Otto, the boss and owner of the company where the men worked, was nearby and yelled for the workers to get out. But it was too late. A fire hydrant near the trench fell into the hole, immediately flooding it. Bruneau recalled watching helplessly as the two men disappeared under the muddy water.

“I knew they were done,” Bruneau said.

Ken Bruneau, a carpenter, was an eyewitness to the 2016 trench collapse on Dartmouth Street in Boston’s South End that killed two workers.

Ryan Christopher Jones for NPR

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Ryan Christopher Jones for NPR

Mattocks, a father of six, and Higgins were smothered in a dense slurry of mud and water.

The men are two of the more than 250 people across the country who died over the last decade when trenches they were working in collapsed, according to an investigation by NPR, Texas Public Radio and 1A. In every instance, the deaths were preventable, experts say. All but one of the victims were male; the youngest was 16. In many cases, the companies failed to follow basic government rules for making trenches safe.

“There’s no reason, really, that any worker in this country should be dying in a collapsed trench,” said Jordan Barab, who was deputy assistant secretary for the Occupational Safety and Health Administration (OSHA) during the Obama administration. “All trench collapse deaths are preventable if the employer complies with well-recognized OSHA standards.”

NPR, Texas Public Radio and 1A examined hundreds of pages of OSHA inspection reports, court records, personnel files, lawsuits, police records, arrest affidavits, 911 calls, state safety reports and news releases and analyzed 10 years of OSHA workplace accident data. We also interviewed relatives of victims, prosecutors and other lawyers, current and former OSHA administrators, construction certification trainers, plumbers, engineers, local government officials, forensic experts, rescue workers and witnesses.

Among our findings:

• Companies fined by OSHA, whose role is to ensure workplace safety, sometimes ignored the penalties and faced no consequences, including one that still owes more than $1.4 million imposed after the deaths of two employees eight years ago.     

• At least 10 of the companies that employed workers who were killed had been sanctioned previously by the federal agency for failing to protect employees doing excavation/trench work. One was cited five times in four years; another four times in as many years. 
• While those who violate OSHA standards can be criminally charged, authorities rarely brought charges. When they did, most offenders got off with a fine, probation or little time in jail.
• The regulatory agency can issue imminent danger notices at job sites if trenching violations pose a threat of serious physical harm or death to workers, but it seldom does.  

Trenches are found throughout the U.S.: on the side of highways, at large construction sites and at new home builds. Thousands of construction workers, plumbers, utility workers and others toil in trenches across the country every day.

Trenches — glorified ditches — can vary by size, but OSHA’s most basic definition is that a trench is any narrow excavation made below the surface of the ground that is deeper than it is wide. They typically are no wider than 15 feet and no deeper than 20 feet and are often dug to install sewer and water lines and other underground utilities at commercial and residential sites. Because of their depth and the myriad ways that different soil types, external vibrations and weather can affect their stability, trenches can collapse without warning, offering little time to escape. One cubic yard of soil can weigh 3,000 pounds, about the weight of a Mini Cooper or other small car. In a collapse, the soil can move rapidly, depending on the depth of the trench and other variables.

Trench boxes, which are often rented for anywhere from hundreds to thousands of dollars per day or week, are critical pieces of construction safety equipment that minimize the chance of injury or death for a worker inside a trench. They are often made of solid metal, such as steel or aluminum. They keep the trench walls stable and prevent soil from dumping on top of workers inside if the trench collapses. OSHA requires some type of protective system, such as a box, for any trench deeper than 5 feet.

“That system is the strongest system for entering and exiting a trench,” said Candelario Vazquez, a health and safety organizer at Workers Defense Project in Austin, Texas, who has trained workers in OSHA safety courses.

Though trenches can be extremely dangerous for workers, the standard ways to avoid trench collapses resulting in deaths are widely known, easily accomplished and fairly cheap — and they’re required by federal law.

Deaths from trench collapses in the U.S. have fluctuated over the last decade, with the number peaking at 40 in 2022, up 60% from the previous year, according to data from the Bureau of Labor Statistics. These deaths come despite OSHA’s measures to help prevent collapses.

“I think OSHA needs to do more than what they’re doing,” said Aubrey Fryday.

Fryday’s son, Nathan, died in Lockhart, Texas, when a 12-foot-deep trench he was working in collapsed in August 2016. He was 22. His employer, Mercer Construction Co., a Texas-based business, failed to use a protective system, which OSHA found was a violation of its regulations, records show. The company was fined $126,051.

Fryday said that OSHA needs to be more aggressive when it comes to protecting workers like her son and the hundreds of others who have died in trench cave-ins over the last decade.

A photo of Nathan Fryday hangs on the wall of his family’s home in Laurel Hill, Fla.

Photo from the Fryday family/‎

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Photo from the Fryday family/‎

“They’re just all getting too lazy and sitting behind their desks and doing nothing,” she said.

OSHA officials insist that the agency is proactive when it comes to going after companies where trenches have collapsed.

“We’re doing everything we can … to protect workers every day for America,” Scott Ketcham, the agency’s director of construction, said in an interview with NPR. “When we find them, we cite them, and when we cite them, we hold them accountable.”

Ketcham acknowledged, though, that more needs to be done.

OSHA said it conducts between 1,500 and 2,000 trenching inspections annually, about 6% of all workplace inspections done yearly, Ketcham said. That includes those that occur after a worker has died. The agency has 840 compliance officers to handle all worksites in the country — more than 7 million of them.

“It would take around 186 years for OSHA to inspect every workplace in the country just once,” Barab said. “That means that unless a worker is killed, there’s a major incident or a worker files a complaint, an employer is unlikely to ever see an OSHA inspector.”

Since the passage in 2021 of President Biden’s Bipartisan Infrastructure Deal, which calls for rebuilding roads and bridges and upgrading airports and ports, hundreds of thousands more construction workers are expected to be put in the field throughout the country. Many of them will likely work in trenches.

Trench collapses often occur when employers cut corners, such as failing to install shoring equipment like hydraulic cylinders that hold back the dirt walls of a trench or boxes and timbers that prevent a potential collapse from harming workers. That’s what happened that led to the deaths of Mattocks and Higgins in Boston, according to agency and court records, and interviews. Otto, who owned Atlantic Drain Service Company Inc., did not provide “basic safeguards against collapse” and failed to provide safety training, OSHA records showed.

“The deaths of these two men could have and should have been prevented,’” Galen Blanton, OSHA’s New England regional administrator, said in a press release months after the two deaths. “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.”

Melinda Mattocks-Ushry visits her brother’s grave at a cemetery in the outskirts of Oriental, N.C., on Dec. 5, 2023.

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Madeline Gray/for NPR

Family photos sit on the counter at Melinda Mattocks-Ushry’s home in New Bern, N.C. Her brother Kelvin “Chuck” Mattocks was killed in 2016 at a Boston construction site when a trench he was working in collapsed.

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Madeline Gray/for NPR

Multiple violations

Twice before the 2016 cave-in involving Mattocks and Higgins — in 2007 and 2012 — OSHA had fined, warned and sanctioned the business for unprotected trenches, agency records show.

The 2007 incident occurred in front of the Four Seasons Hotel near downtown Boston. Michael Grover, an OSHA compliance officer who inspected the scene after the agency received a complaint, heard and saw dirt sloughing off the sides of the trench, according to his court testimony. Otto told the compliance officer that he would protect the trench, but did not, Grover testified. OSHA issued Otto a willful violation, which means the company either intentionally ignored safety requirements or was indifferent to them. It required him to train his workers and document it.

Willful violations are the most severe penalty OSHA hands down, and they carry higher fines than serious violations and the possibility for criminal penalties or prosecution.

In the 2012 violation, the Boston Fire Department came upon an Atlantic Drain Service Company Inc. worksite and found a worker in a 10-foot-deep unprotected trench, according to court records. OSHA cited Otto’s company again.

Four years later when the trench collapsed at the South End townhouse worksite, killing Mattocks and Higgins, OSHA found that Otto didn’t provide the men with hard hats, eye protection or a ladder so they could get out of the trench.

“Chuck would always say ‘work ain’t never killed nobody,’” his sister, Melinda Mattocks-Ushry, said in an interview with NPR. “But I tell this story to say that work killed my brother.”

Otto’s violations were so egregious that authorities charged him with two counts of manslaughter for the deaths of Mattocks and Higgins. A Suffolk County Superior Court judge found Otto guilty in 2019, sentenced him to two years in the Suffolk County House of Corrections and three years’ probation, and banned him from doing trench work deeper than 4 feet during that time, according to court records. Otto dissolved Atlantic Drain Service Company Inc. in April 2021, according to Massachusetts corporation records. It’s unclear why OSHA did not move to shut down the company after the 2016 deaths.

Assistant District Attorney for Suffolk County Lynn Feigenbaum led a case in 2019 that convicted Kevin Otto of manslaughter in the death of two workers at an on-site accident in South Boston.

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Ryan Christopher Jones for NPR

“We do hold recalcitrant employers accountable and we do follow up on them within the powers that the OSHA Act allows us to,” Ketcham said.

Since his release from jail in October 2023, Otto started another company, Drain Away Inc., a drain cleaning business, state records show. Otto, who is listed as the company president, treasurer, secretary and director, did not return two calls from NPR seeking comment.

Otto’s previous company — Atlantic Drain Service Company Inc. — is just one of at least 10 that employed workers who died after having previously been sanctioned by OSHA for failing to protect employees doing excavation-type work, agency records and interviews show. One employer was cited for violations a month after agency officials sanctioned him for the death of a worker.

On April 6, 2019, Dalbert Burton, 43, was installing a 4-inch PVC sewer line at a new housing development in Sugarcreek Township, a Dayton, Ohio, suburb. He was in an unprotected 11-foot-deep trench and noticed that the dirt was loose, so he called his boss, Richard Westendorf, who owned Payne Enterprises Inc., a Dayton-based plumbing contractor. Westendorf said he was in Florida at the time.

“He called me and told me that it was caving in,” Westendorf, 75, said in a recent interview with NPR.

Westendorf said he instructed Burton to “redirect the sewer around the loose soil,” but Burton ignored his advice, he said. The trench collapsed, suffocating the husband, father and grandfather who had worked for the company for five years.

“I regret that he didn’t listen to me,” Westendorf said. “It cost him his life.”

“You don’t mess around with dirt. You’ve got to respect it.”

OSHA initially fined the company $145,860 in connection with Burton’s death, but later reduced it to $85,000. Westendorf told NPR that he paid the fine by the due date because he “didn’t want to risk going to jail.”

Burton’s widow received $750,000 from workers’ compensation, said Westendorf, who added that he paid for the man’s funeral.

“It seemed like the right thing to do,” he said.

What Burton’s family may not have known at the time was that it wasn’t the first time Westendorf and his company had run afoul of OSHA. In 2017 and 2018, the agency cited him for various trench safety violations, federal agency records showed. It again penalized him in July 2019, three months after Burton’s death. Westendorf said the other sanctions were for his failure to have trench boxes, ladders and other equipment to keep workers safe.

“Sometimes I did [have them]; sometimes I didn’t,” he admitted.

Westendorf said he shuttered his plumbing contracting business a year ago after 30 years, though the company is still listed as active with the state of Ohio.

“All the builders in the Dayton area, they thought I was a liability,” he said. “It is what it is.”

Westendorf continues to operate an ice business.

In December 2016, Donald “DJ” Meyer, 33, was killed when he climbed into a 16-foot-deep unprotected trench in suburban Kansas City, Mo., to retrieve a cellphone that he had dropped, according to Belton, Mo., Fire Marshal Chris Beal. He was digging to find a sewer stub for a home, according to OSHA records.

“He jumped down in the hole to get it and left the backhoe running, and the vibrations shook the earth,” Beal said in an interview with NPR.

Meyer tried to run to a nearby ladder, but there was too much dirt, which crushed and suffocated him, Beal said. Rescue crews spent nine hours retrieving Meyer’s body.

“It’s a horrible, tragic story,” Beal said. “It was unbelievable.”

Meyer was a plumber and widower raising his 8-year-old son.

OSHA initially cited the company, Arrow Plumbing LLC of Blue Springs, Mo., for five serious and two willful violations related to Meyer’s death, and proposed fines totaling $294,059, agency inspection reports show. OSHA later slashed the penalties by about 72%, but didn’t explain why.

A month after Meyer’s death, OSHA found that the company was in violation again, this time for not having a “competent person” on-site to inspect the excavation area before work started at a job site in Kansas City. The agency found that an employee working in a trench at least 8 feet deep was “exposed to a collapse of the excavation walls,” and issued a $126,749 penalty, according to OSHA records. The company contested it and the agency reduced it to $42,250 in September 2018. In 2020, OSHA inspectors responding to a complaint found another Arrow employee working in an unprotected trench without head protection. The company agreed to pay $299,590 in fines.

Ketcham acknowledged that OSHA does reduce fines, particularly for a smaller company that is unable to pay, if they can show they’re correcting the problem.

Bryan Fryday, who lost his son, said the OSHA fines imposed on companies that skirt federal regulations resulting in death are woefully insufficient because they don’t inflict adequate financial pain on the violators.

“Companies should be responsible and fearful,” he said. “Like, ‘OK, this is what we have to do to make it safe.’”

Bryan and Aubrey Fryday and their son Hayden (center), age 20. In 2016, Hayden’s older brother Nathan, 22, was killed when the walls of a trench collapsed on him while he was working construction in Lockhart, Texas.

Colin Hackley/for NPR

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Colin Hackley/for NPR

In some instances, even after OSHA reduces fines and sends them to the Treasury Department for collection, companies still ignore the penalties. OSHA fined Otto’s company in Boston more than $1.4 million after the 2016 deaths of Mattocks and Higgins.

“We held him accountable,” Ketcham said. “We cited him. We collected penalties.”

When told that Otto, in fact, defaulted on the debt and now owes more than $1.7 million — according to OSHA’s own records — Ketcham declined to discuss the case in detail.

“We attempted through debt collection to get penalties from that individual,” he said. “I’m not going to comment on Mr. Otto.”

Ketcham acknowledged that OSHA needs to do more to hold accountable companies that repeatedly violate OSHA trenching regulations.

“That is a top priority right now,” he said.

Criminal charges are rare

OSHA has the power to refer serious violators to prosecutors, but when asked how many times it has done so on open or closed investigations since 2013, agency officials declined to provide NPR with statistics.

“OSHA is limited in the information it can share regarding ongoing criminal investigations,” the agency said through a spokesperson.

NPR compiled a database of trench collapse deaths between 2013 and 2023 and found in instances where workers perished in trench collapses, about 5% of employers were criminally charged. And they often got off with little punishment.

Phillip Numrich, owner of Alki Construction LLC, a plumbing and sewer repair business in the Seattle area, was charged with second-degree manslaughter in 2018 in connection with the death two years earlier of employee and longtime friend Harold Felton in Washington state. Felton was working in a 6-to-8-foot-deep trench cutting a new pipe that had been put into place at a West Seattle home when the cave-in occurred, burying him under more than 6 feet of mud, prosecutors wrote in a legal brief filed as part of Numrich’s sentencing. Felton, 36, died of compression asphyxia, which means that something forceful pressed against his chest or abdomen area. The trench lacked the required shoring, prosecutors wrote.

During a hearing with state labor investigators, Numrich acknowledged that he was required to have the proper shoring but did not, according to the legal brief. The state cited and fined him $51,500, but cut it in half. Then, prosecutors stepped in. It was the first time in Washington state that an individual employer had been charged with manslaughter in connection with the death of an employee, said Patrick Hinds, a deputy prosecutor with the King County Prosecuting Attorney’s Office.

“This particular case was an important marker in the criminal justice response to worker safety,” he said.

Prosecutors reduced Numrich’s charges to attempted reckless endangerment. He pleaded guilty and received 45 days in jail and a $25,000 fine, court records showed. Neither Numrich nor his attorney in the matter, Cooper Offenbecher, returned several calls seeking comment.

Rosario Martinez-Lopez thought that he would install drywall or do carpentry work when he arrived at the residential construction site that June morning in 2018 in Granby, Colo. That’s what Bryan D. Johnson, owner of ContractOne Inc., hired him to do. Instead, Martinez-Lopez ended up with a shovel in a 7-to-8-foot trench, installing a main water line, according to the arrest affidavit. Johnson had earlier used a mini-excavator to remove dirt.

Suddenly, the trench collapsed, crushing the 50-year-old Martinez-Lopez. His son, Moises Martinez, was also at the job site and helped rescuers retrieve his father’s body. The victim was pronounced dead at a local hospital.

“Bryan Johnson conducted all aspects of his construction site without the slightest attention to the safety of employees on the scene,” according to a Grand County, Colo., arrest warrant affidavit obtained by NPR. “He did not … slope the trench walls, did not have a trench box … and did not have appropriate access to ingress/egress.”

A subsequent OSHA investigation found that Johnson never trained Martinez-Lopez or other employees about the dangers of trench work. Authorities determined that there was probable cause to arrest him and charge him with criminally negligent homicide.

Johnson pleaded guilty to two counts of reckless endangerment and one count of third-degree assault and was sentenced to eight months in jail, court records show.

David Michaels, a former OSHA assistant secretary, said the federal agency should turn to criminal prosecutions more for trench deaths, because the fines they levy are often too small to be adequate deterrents, he said.

“When a worker is hurt or killed in a trenching collapse, OSHA should very much consider a referral of that event to a local district attorney who could take on the criminal case,” said Michaels, a professor at George Washington University’s Milken Institute School of Public Health. “If employers see that an employer is sent to jail because a worker is sent to a trench, that will have a much bigger impact on them than fear of an OSHA fine.”

Michaels said the responsibility for raising fines and possible criminal penalties is up to Congress, but that there is more OSHA could be doing on its own.

“I think the default for trenching regulation violations should be a willful violation with a much higher fine, unless it’s really clear that the employer really had no idea that they could be endangering their workers,” he said.

He said that a willful violation determination is up to the OSHA area offices that investigate trench deaths. An NPR analysis found that while most violations after a trench fatality were labeled “serious,” fewer than 10% were considered “willful.”

Maria del Carmen Martin, 69, holds a memorial card from the funeral of her late son, Jack Martin, a journeyman plumber who died in a workplace accident in 2019 when a trench that he was laying pipe in collapsed.

Meridith Kohut for NPR

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Meridith Kohut for NPR

Texas deaths

Trench work can be so precarious that OSHA also requires companies to have an experienced supervisor on-site with authority to stop work in a trench if they consider it unsafe, said Vazquez, the health and safety organizer in Austin, Texas, who has trained workers in OSHA safety courses.

It was that kind of danger that concerned Jack Martin. Martin was installing a 6-inch sewer line behind a shopping center in November 2019 in Houston, a job he had done dozens — if not hundreds — of times during his more than two decades as a plumber. Suddenly, the interior wall of the trench collapsed, trapping the 41-year-old father, who left behind an 18–year-old daughter.

Martin’s dad, Larry, said his son had expressed concern about his safety and had repeatedly asked his employer, Best Plumbing LLC, to get trench boxes for the workers.

“He told me, he says, ‘Dad, you know, I’ve already asked them a couple of times and they told me no, they’re too expensive,’” Larry Martin recalled his son telling him.

Larry Martin, 68, holds some of his late son’s tools and a pipe from the last plumbing job they worked together.

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Meridith Kohut for NPR

After Martin’s death, OSHA cited Best Plumbing LLC for not having a protective system, such as a trench box, and ladders or other means for workers to exit the trench. The federal agency fined the company $18,892, but later reduced it to $11,335, records show.

Best Plumbing owner Vincent Horvath declined to comment on the incident and why he lacked the required protective system.

Jimmy Lee Alvarado, 20, dreamed of following his father into the construction industry, just as Jack Martin had followed his father into plumbing.

“He was inspired by his dad, and what he did,” Jimmy’s mother, Maria Bocanegra, said. “And he was like, ‘I wanna be like Dad one day and do everything that he does and have what he has.’”

So, it was no surprise that the two ended up working at the same site in Jarrell, Texas, in June 2022. Alvarado’s father, Juan Bocanegra, worked for WBW Construction LLC. Alvarado and another man, Jose Vargas Ramirez, 39, were temps provided by a staffing agency based in Moline, Ill., records showed.

Alvarado, a father of two, and Ramirez were connecting sewer lines in a 23-foot-deep trench when part of it collapsed, crushing them beneath rocks and mud, according to OSHA records.

Jimmy Lee Alvarado’s tape measure that was recovered after he was killed in a trench collapse.

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Ilana Panich-Linsman for NPR

Maria Bocanegra has a shrine in her home to her son Jimmy Lee Alvarado.

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Ilana Panich-Linsman for NPR

An OSHA investigation alleges that WBW Construction failed to provide trench protection and exit ladders at regular intervals, two of the same failures the federal agency identified in Jack Martin’s death in Houston in 2019. Alvarado and Ramirez allegedly were more than 130 feet away — instead of 25 feet required by OSHA for trenches 4 feet or deeper — from the nearest point in the trench where they could exit. Also, OSHA claims that the trench collapse was caused when the foreman began to cut across the trench to build a smaller trench, referred to as a “side cut.” The federal agency’s investigation alleged that there were three appropriate trench boxes on-site that could have protected the two men, but were not used.

Alvarado’s dad was the foreman.

“[Juan] had him go down there because it was his job and he had to get it done,” Maria Bocanegra said.

Juan Bocanegra declined to comment.

Because OSHA alleges that two of the violations were considered “willful,” if the agency proves that, it could refer the company for potential prosecution once the case is closed.

The U.S. Attorney’s Office for the Western District of Texas said that OSHA has not referred the case to them. OSHA has fined WBW Construction LLC $250,272. The company is contesting the alleged violations and the penalties.

“WBW Construction LLC willfully sent these workers into an unprotected trench and ignored federal safety requirements,” OSHA Area Director Casey Perkins said in a December 2022 news release. “Now, two workers’ families, friends and co-workers are left to grieve their tragic, and avoidable, deaths.”

Maria Bocanegra said she first learned of the collapse from her 18-year-old son, Kevin, who was also working at the site that day.

“He was the one that called me and told me that — he was crying and I couldn’t understand him — but he told me that Jimmy had gotten trapped under and that they couldn’t get him out,” she said.

WBW’s management had her husband, the site foreman, sign a statement in English, though he could not read or speak it well, Maria Bocanegra said. She read it weeks later and questioned who penned it. NPR and Texas Public Radio have not been able to independently verify the statement.

“I … realized that it wasn’t him that actually wrote out or said what was said,” she said. “It was more them putting to him what to say.”

Bocanegra said she found multiple errors, including her son’s last name and their address, and knew that her husband wouldn’t have made such mistakes.

Travis Parks, general counsel for the WBW Development Group and its affiliates, including WBW Construction, declined to comment, citing ongoing litigation and the company contesting the penalty imposed by OSHA.

Few protections for public employees

Three employees of the city of Eutaw, Ala., were working on a broken sewer line in the Branch Heights public housing project shortly before 5 p.m. in April 2023, when part of the trench wall collapsed, trapping 46-year-old worker Tony Rice under mud, asphalt and concrete.

“All I could hear was Tony saying, ‘I can’t breathe, I can’t breathe, I can’t breathe,”’ Garreon Holsey, 22, one of the workers who escaped, told police at the time.

No one in the city of 3,000 or rural Greene County was trained in trench rescues, and they didn’t have the necessary equipment like a vacuum truck to suck the water and mud out of the hole, said Christopher Jones, the county’s EMS director.

“It was awful,” Jones told NPR in a recent interview. “It happened so fast. There was nothing we could do because it was a dangerous situation.”

The closest rescue crews were in Tuscaloosa, about 35 minutes away. When they arrived, they worked frantically to save Rice. After nearly nine hours, rescuers retrieved the lifeless man.

“I knew it was going to be a body recovery at that point,” Jones said.

Unlike the other trench collapse deaths investigated by OSHA, no state-level or federal OSHA investigators looked into Rice’s death because he worked in one of nearly two dozen states where local and state government employees — about 8 million — are left out of the workplace protections provided to private and federal employees, according to the Bureau of Labor Statistics.

“There will be no investigation, there will be no penalties, there will be no lessons learned, no follow-up,” said Barab, the former OSHA deputy assistant secretary who served under Obama. “It just kind of gets dropped.”

When Congress passed the Occupational Safety and Health Act that created the federal regulatory agency in 1970, it specifically excluded public employees from the newly established protections. The legislation, though, encouraged states to develop their own job and health safety programs, and those states were required to cover their public employees. The act also allowed states to set up “public employee only” state plans where the state would cover public employees and federal OSHA would continue covering the private sector, Barab said. Some states have set up such plans, including Massachusetts, whose public employee health and safety plan covers more than 430,000 public employees. Twenty-three states, including Alabama, Missouri and Texas — and the District of Columbia — have not established protections for their own employees.

NPR found at least four instances in the past decade of trench collapses killing public employees in states without OSHA protections. The lack of workplace protections for local and state employees in those states hinders accountability for — and prevention of — worksite danger.

“They can’t file an OSHA complaint no matter how unsafe conditions are,” Barab said. “There’s no one to complain to.”

Josh Brooks survived a trench collapse on a construction site near Joe Davis Stadium in Huntsville, Ala.

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Andi Rice/for NPR

OSHA requires daily soil testing when trench work is taking place. Because Alabama is one of the states where public employees are not covered by the federal agency’s workplace protections, no testing was required.

“Testing the soil isn’t hard to do, but it takes a little more time … and a lot of trenching is done in an emergency situation where a pipe breaks, so there’s not that kind of time,” said Ruth Ruttenberg, a consultant and former OSHA senior economist who authored a 2019 study on trench fatalities. “But if you know that you have a potentially fatal work situation, it’s really necessary … to take that into account and do the safe thing for the workers.”

Wendell, Idaho, city employee Jerrad Durfee, 43, had expressed concern to his family about working in trenches. He wasn’t trained for that kind of work, his mother said. He grew up in the town of 3,000 residents about 25 miles from Twin Falls and also worked as a volunteer firefighter. Idaho is among the states where city and county workers have no OSHA workplace protections.

“He didn’t really like being down there, but he was told to do it, so he did it, because he liked his job,” Durfee’s mother, Ynes Durfee, said in an interview with 1A. “But he was scared.”

Durfee was inside a 6-foot-deep trench in an alley with a jackhammer shortly before noon one September day in 2013. He was breaking up rocks when the walls caved in, burying him in nearly 2 feet of dirt, according to the police report. Levi Diehl, another worker, was nearby and heard the jackhammer stop. He ran to the area where Durfee was and saw the collapsed trench. He scrambled to remove the dirt from Durfee’s head and shoulders. He told authorities that Durfee gasped for air but there was no pulse. Durfee was pronounced dead at the scene.

Durfee’s longtime best friend, Brad Murphy, said he is angry that no one was punished for the fatal cave-in.

“Wendell’s just going on about its daily life and there’s still no consequences,” Murphy said. “It’s about them being accountable.”

This story is a collaboration from NPR’s Station Investigations Team, which supports local investigative journalism; Texas Public Radio; and 1A. Kahwit Tela, NPR’s Ida B. Wells Society intern, also contributed to this story.