There have been 22 trenching and excavation fatalities in the first six months of 2022 compared to 15 in all of 2021. Given this alarming increase, OSHA announced the launch of an “enhanced enforcement initiative” to supplement its National Emphasis Program on trenching.

As a part of its enhanced enforcement initiative, OSHA intends to perform “more than 1,000 trench inspections nationwide.” The OSHA announcement notes that “[e]very one of th[e fatalities] could have been prevented.” Recent trends in OSHA enforcement of trenching violations have shown an increase in pursuit of criminal violations.

Historically, criminal charges were somewhat limited to extreme circumstances. Atlantic Drain Service Co., Harco Construction LLC / Sky Material Corp, and ContractOne Inc., are a few recent examples of when negligent homicide and felony manslaughter charges were pursued. In each of these cases, the employers knew of the dangers associated with trenching, but failed to take basic safety measures.

OSHA views criminal prosecution as an effective enforcement tool and believes that prosecuting criminal cases can change the industry. Under the “enhanced enforcement initiative” OSHA enforcement staff will consider every available tool at the agency’s disposal and will place additional emphasis on how agency officials evaluate penalties for trenching and excavation related incidents, including criminal referrals for federal or state prosecution to hold employers and others accountable when their actions or inactions kill workers or put lives at risk.

The “enhanced enforcement initiative” is OSHA’s self-titled notice to the industry. Violations of the OSHA trenching and excavation standard may result in criminal prosecution.