Just Another Trench Death: Well Covered For A Change

A few days ago I wrote about a new federal program that was using violations of environmental and other laws to generate huge fines and jail terms against employers whose willful violation of OSHA regulations ended in the death of a worker. Laws other than the Occupational Safety and Health Act had to be used because the OSHAct itself doesn't allow for large enough penalties to deter serious and willful violations of OSHA standards.

But the question I asked at the end of that review was

Where does this leave the guys crushed in collapsing trenches or who fall two stories from an unsafe scaffold -- and no environmental law as violated? OSHA handed down 446 willful citations in Fiscal Year 2004 (compared with 607 in FY 1999). It is unclear how many of those involved the death or serious injury of a worker, but the handful of cases that OSHA is able to prosecute with the assistance of the EPA or Postal Service will mostly likely not apply to more than a small handful of these.

This is one of those stories, covered in an excellent article in the Staten Island Advance:


Lorenzo Pavia was buried alive in a West Brighton trench collapse 16 months ago. His oldest son is now head of the family:

Jesus was saddled with one intractable burden: facing the reality that the gruesome death of his father -- a 39-year-old Mexican worker who was buried under thousands of pounds of earth when a deep trench caved in because it was unshored -- will not automatically lead to jail time or a multi-million dollar settlement.

"My father never wanted to go in," said Jesus of the trenches that were a common part of his father's job for Formica Construction. Polite and soft-spoken, Jesus' eyes narrowed and his jaw clenched as he recalled the evenings his father would return from work complaining. "If they don't do the job, they don't get out of work. So what's my father gonna do?"

For Jesus, justice will likely amount to little more than $550 paid to his mother, Paula Pavia, every 15 days in workers' compensation. The yearly sum of $13,383 will come until she remarries or passes away.

An investigation by the federal Occupational Safety and Health Administration revealed that Ken Formica, the site supervisor and Pavia's employer, made a conscious decision to violate the safety standard that all trenches deeper than five feet must be shored or sloped.

"It was my mistake," Formica told OSHA in his deposition, two months after the accident.

Yet the company was fined just $14,000, about $3,000 less than what the city fines firms for posting signs without a permit.

The City of New York, as well as OSHA are increasing the amount of outreach and training they are doing to try to prevent trench collapses. But there are problems:

Experts say the agency lacks the manpower to widely enforce its rules. This is a problem since small construction firms trying to cut costs will often choose time over safety, they add.

For instance, the simplest, quickest type of shoring is a box that can be dropped into an open pit known as a trenchbox, said Jordan Barab, an ex-official with the federal Occupational Safety and Health Administration who writes extensively about the issue on his worker safety Web log.

But when there are multiple utility lines, as there were in the trench that killed Pavia, shoring becomes a much more painstaking, time-consuming process, said Barab. Workers need to install separate braces as they dig further down.

"There are a lot of little construction companies around, everyone's trying to underbid everyone else, time is money," he said. "Everyone thinks maybe my luck will hold out this time."

Ken Formica may have been relying on luck on a cold December afternoon in 2003, when he and his men set about hooking up a sewer main for new townhouses at the corner of Taylor Street and DeGroot Place. Lorenzo Pavia and a second man, John Paci, then 66, descended a 15-foot trench that was muddy at the bottom from heavy rain and snow that fell just two days before.

In his OSHA deposition, Formica said he often chose Pavia for trench work because he was "my most skilled." When asked what his policy was for excavation safety, he told the investigator, "Make it safe. Make a safe hole."

But when pressed for details, he revealed that his company had no written safety and health program, and that he lacked basic knowledge required to ensure a safe trench, such as soil types.

At about 3 p.m., the workers were done, and Formica, watching his men from the driver's seat of an excavator, told them to come out of the hole.

"They were walking towards the ladder, and that's when it collapsed," he told OSHA.

Horrified at seeing Pavia swallowed entirely by earth, Formica grabbed the wheel of the excavator. But instead of scooping out Pavia, the backhoe decapitated him. The autopsy showed that by that time, Pavia had already been asphyxiated.

Pavia's is not, of course, an isolated case:

The percentage of construction fatalities in which the victim was Hispanic more than doubled between 1993 and 2003, to 23 percent from 11 percent, according to the U.S. Dept. of Labor's Bureau of Labor Statistics.

"There's all these safety rules and regulations, and they're never followed," said Jeffrey Manheimer, a Manhattan-based personal injury lawyer who specializes in workplace injury cases among day laborers.

Citing the statistic that most fatalities happen on non-union job sites, he added that the workers "certainly don't have the clout to complain about any conditions."

Staten Island hosts its share of Mexican workplace tragedies. In September, 2003, Port Richmond resident Pedro Munoz de Leon was crushed and killed by the boom of a crane that snapped off, as he was working on dry dock in West Brighton. Not long before that, Librado Velasquez, a 44-year-old worker from Port Richmond, had his right arm and leg crushed in a forklift accident while working in New Jersey.

Lorenzo Pavia died in a notorious type of construction accident, a trench cave-in. In 2003, 15 of the country's 48 trench cave-in fatalities, or 31 percent, were Hispanic, according to BLS data. OSHA's analysis of internal investigations puts the percentage even higher, at 44.

Experts say trench cave-ins happen in part because people underestimate the soil's speed and power.

"It's like a car falling on you," said Scott Schneider, director of occupational safety and health for the Labors' Health and Safety Fund of North America. "It can collapse in about half a second. You don't have time to get out."

Finally, I want to extend some much deserved praise to the journalist who wrote this article, Heidi Shrager of the Staten Island Advance. You all know that one of my pet peeves is preventable trench collapses -- and the other is journalists who write short formulaic articles about workplace deaths that leave the impression that these "accidents" are somehow surprising, unexpected and just plain bad luck.

Those few journalists who take the time to talk to people and do the research necessary to show that most of these tragedies are preventable, and that the safeguards this society has established are not working effectively -- deserve our praise, our support and our thanks. I believe it was David Barstow's two series in the New York Times that forced the federal government to finally start looking for more creative ways to issue meaningful penalties against some employers. And if we have any hope of making more significant changes in this country,it will be journalists like Heidi Shrager writing similar stories in small papers around the country about the thousands of preventable deaths that happen every year.

Good journalism and organizing.

But with the demise of the AFL-CIO's health and safety department and total corporate/Republican control in Washington, the media may be our best hope for now.

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