MassCOSH Rallies Response to Double Fatality

October 27, 2016

Labor, legal and community leaders released a statement today calling for a state and federal investigation into the drowning deaths of Robert Higgins and Kelvin Mattocks, and prosecution of Atlantic Drain Services, to the full extent of the law, if the company is found to have violated federal safety requirements, as they have over the past eight years. The Massachusetts Coalition for Occupational Safety and Health (MassCOSH), the Massachusetts Bar Association’s Workplace Safety Task Force, the Boston Metropolitan District Building Trades Council, the Massachusetts Building Trades Council, and Plumbers and Gasfitters Local 12 also urged state officials to fix gaping holes in the state’s law that have repeatedly put workers, first responders and the public at grave risk during water and sewer projects.

“Atlantic Drain Services’ long history of willful OSHA violations show a clear and repeated disregard for human life that has shattered lives,” said MassCOSH Executive Director Marcy Goldstein-Gelb. "It's not enough for us to just collectively mourn the loss of these two men. With other workers’ lives still at stake, changes must be made at the local, state and federal level to prevent this from ever happening again and we won’t rest until they are."

OSHA reports show Atlantic Drain Services has a lengthy history of willful violations, meaning the company knew a particular safeguard was required, and chose not to provide it. These violations include citations for workers lacking oxygen underground and for conditions that could lead to trench cave-ins. OSHA also reports Atlantic Drain Services has yet to pay well over $74,000 in fines incurred over the years for putting its workers at risk.
“Every worker deserves the right to a safe workplace,” said Brian Doherty, head of the Greater Boston Building and Construction Trades. “It’s unconscionable that any contractor would cut corners that put workers in harm’s way. It undermines other contractors doing the right thing. There is no space for this in our region – and we have to stand collectively against it.”
The groups are calling on OSHA to launch a full investigation into Atlantic Drain Services to seek out any wrongdoing. If the company is found responsible for the death of the two men, the groups are calling on the agency to pursue prosecution of Atlantic Drain Services under Title 29 U.S.C. § 666(e) which provides criminal penalties for ‘any employer who willfully violates a safety standard prescribed pursuant to the Occupational Safety and Health Act, where that violation causes the death of any employee.’ The groups also are asking the District Attorney to conduct a criminal investigation into Atlantic Drain Services practices.
"Construction is a dangerous business and accidents happen," said Frank Callahan, President of the Massachusetts Building Trades Council. "At a certain point, when a contractor repeatedly ignores safety standards, it is no longer an accident - it is negligence, and criminal prosecution is needed."
According to Wrongful Death Attorney Doug Sheff, unlike some other states, Massachusetts law provides unique penalties for companies who are reckless with human life and safely, and special rights for family members.
"Our Courts and Legislature need to protect working families and do more to prevent such tragedy,” said Sheff, who chairs the Massachusetts Workplace Safety Task Force. “Survivors who will suffer for the remainder of their lives. While we remain dedicated to improving conditions for workers, the families of this senseless loss have significant rights currently, and the Courts should enforce them."
To prevent workers from suffering a similar fate and ensure the safety of the public and first responders, the groups are calling upon state officials to fix the permitting law that allowed OSHA violators like Atlantic Drain Services to obtain a permit.
The groups are also calling upon the legislature to pass bills that are already before them that can help avert worker injury or death. An Act to further define Standards of Employee Safety (S2190), a bill that passed the Senate last year would ensure that municipal employees who work in trenches and do other dangerous work would have the same federal safety measures as workers in the private sector.  It would change the current law, which doesn’t specify that public employers must follow OSHA requirements.

Another bill pending in the legislature would extend licensure requirements to draining companies like Atlantic Drain Services that call for stronger protection for workers so that we never lose another man or woman to preventable accidents.
Plumbers & Gasfitters Local Union 12 Business Manager Harry Brett estimates there are “a couple of thousand” drain cleaners in Massachusetts that have no governmental oversight. He has seen many people call the plumbing board when something goes wrong “assuming [Massachusetts Board of Examiners of Plumbers] can resolve it. But the board has no authority to act.”

Finally, the groups are calling upon the Baker Administration to make it a priority to strengthen state vendor certification to ensure that public funds are not used to contract employers with a history of OSHA violations. Business with a history of putting workers and the public at risk should not be able to grow wealthy off of taxpayer funds.

“This is not the first time that Massachusetts workers have died working in trenches and it won’t be the last unless we change the way we do business in Massachusetts,” said Massachusetts AFL-CIO President Steven Tolman. “Lack of compliance by contractors requires stronger enforcement. We need to fix the gaping holes in our safety net.”