An investigator's photo of the soil surge and block wall collapse that killed a construction worker in Poughkeepsie, N.Y., in 2017.
Photo: OSHA Review Commission document
A federal prosecutor has charged a small apartment developer-contractor and its owner with a willful violation of safety rules over a 2017 jobsite collapse in Poughkeepsie, N.Y., that killed a worker.
The company, OneKey LLC, has for several years been contesting a proposed $280,000 federal fine related to the fatality. The Occupational Safety and Health Administration Review Commission had upheld the fine in a draft order but had not made a final decision.
The U.S. attorney in New York City, Damian Williams, brought the charges Aug. 3, the fifth anniversary of the accident, in the form of a court information. Unlike an indictment, an information does not require review by a grand jury and is instead reviewed by a judge, who determines if a crime was probably committed warranting a trial.
The charges, announced in tandem with the U.S. Dept. of Labor, were filed in federal court in Manhattan. They disclose for the first time the name of the victim, Maximiliano Saban, who was employed by a subcontractor.
On the Hackensack, N.J.-based company's website, OneKey states it is a builder, general contractor and construction manager that offers services under lump-sum, guaranteed maximum price and negotiated procurement.
Federal prosecutors now charge OneKey and the individual they say controlled the company and its work at the jobsite, Finbar O'Neill, with ignoring a soil compaction plan prepared by an engineer. The plan involved moving soil surcharges, or mounds, from place to place to compact material below it.
OneKey and O'Neill's attorney said in a statement that his client is innocent and will prove it in a trial.
"This case results from a tragic accident, but the government's attempt to criminalize this accident five years after its occurrence is also tragic and ill-conceived," wrote the attorney, Scott A. Resnick. OneKey and O'Neill "have always prioritized worker safety and take nothing more seriously."
The engineer, whose identity was not disclosed, required the temporary 15-ft-high surcharge mounds to be sloped at a 45-degree angle, or a one-to-one ratio of elevation to distance. No retaining walls were part of the plan.
But OneKey and O'Neill decided to build a temporary retaining wall composed of 6-ft-long, 1.8-ton concrete bin blocks. The blocks "would cut into the one-to-one slope" required by the engineer, according to the U.S. attorney, and "hold back the pile of dirt" to facilitate work on the different buildings in the development.
After the retaining wall was constructed along one building location at the site, a project superintendent talked to O'Neill about extending it to another part of the site for the next building. The superintendent advised O'Neill that he should consult the engineer because "in sum and substance" it "could kill someone," said the U.S. attorney. O'Neill responded, the U.S. attorney charged, "in sum and substance, that he didn't care."
It isn't clear when the OSHA Review Commission will make a final determination about the safety penalties.
Deputy Editor Richard Korman, who has edited ENR's Risk Review newsletter since 2012, helps run ENR's business and legal coverage and investigations, selects ENR's commentary and op-ed viewpoint submissions and oversees editorial content on ENR.com. He has been a fellow on drone safety with the McGraw Center for Business Journalism at the Craig Newmark Graduate School of Journalism at CUNY. In 2015 he won the Timothy White Award from American Business Media for investigations of individual surety fraud and workplace bullying. Richard's freelance writing has appeared in the Seattle Times, the New York Times, Business Week and the websites of The Atlantic and Salon.com. He admires construction projects that finish on time and budget, pay before the earth completes its annual orbit of the sun, record zero fatalities or serious injuries and assign risk to parties who control an activity or willingly finance the risk.
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