Workers told their employer an excavation to replace a storm drain at a Milford job site had become too “deep and dangerous,” according to federal investigators. Records show they were directed to enter the 8-foot-deep trench anyway.
The trench collapsed minutes later, killing 28-year-old Jose Alberto Barajas Martinez and severely injuring two of his coworkers on Dec. 5.
Occupational Safety and Health Administration investigators later concluded the excavation lacked basic cave-in protections required by federal safety rules. The agency cited Whispering Creek LLC for five violations and proposed $231,714 in penalties before a settlement reduced the amount to $49,000.
Federal records obtained by The Enquirer provide new details about the collapse as Clermont County prosecutors review the case for possible criminal charges against company owner David Baumgardner.
Baumgardner, who was at the scene of the trench collapse, said he considered Barajas a friend and said the loss has deeply affected him. “I actually saved one of the workers myself,” Baumgardner said. “You try to provide an opportunity for people to make a better life for themselves, and it can ruin your whole life personally.”
Agency investigators determined Baumgardner had real time-time knowledge of the depth and layout of the collapse because he was at the worksite. He told investigators that he had used cave-in protections in the past. Investigators wrote Baumgardner showed “conscious disregard,” by sharing his knowledge of requirements in interviews yet failing to apply them.
The case highlights a persistent workplace danger: Trench cave-ins remain one of the leading causes of death in construction despite long-standing safety requirements.
Landscaping company facing citations for lack of mandated protections
When investigators got to the Whispering Creek work site, they saw multiple extension ladders in the trench. But after interviewing first responders and watching their body camera footage, investigators determined there were no ladders in the trench before emergency workers started their rescue.
The 37-year-old company provides landscaping and pool installation services in Cincinnati, Dayton and Columbus. Baumgardner told the federal agency he employs about eight workers on average each year.
The workplace safety agency first proposed four serious citations and one willful citation for Whispering Creek.
Investigators said the company did not conduct acceptable inspections of the work site, did not properly train workers to identify trenching hazards, did not provide a safe way to exit the trench and did not keep the excavated soil and equipment at a safe distance from the trench’s edge.
Agency standards require worksites use protective systems such as a trench box, sloping or shoring for all trenches deeper than 5 feet. Investigators determined the trench had none of these in place to keep it from caving in.
An investigator asked Baumgardner why he did not use a trench box and records state he responded that the workers were not deep enough. Records state that Baumgardner acknowledging that protective systems requirements for trenching are depth-based shows “plain indifference.”
According to the agency’s field operations manual, a violation is serious if there is a great possibility that death or serious physical harm could result from workplace conditions.
Fines for workplace fatality reduced by almost 80%
The company’s five citations came with $231,714 in fines, but Baumgardner will not have to pay most of it because of an informal settlement agreement between his company and the agency.
The agreement combined two of the citations and lowered the classification of the willful citation to serious. Records reviewed by The Enquirer don’t explain why the agency downgraded the citation.
An informal settlement allows the local agency director to change penalties depending on the situation and the employer’s safety improvements.
The reduction is a large one, but it’s not uncommon, said University of Cincinnati law professor Anne Marie Lofaso, a labor and employment expert.
“The mission is to make workplaces safe. How do you make workplaces safe? You penalize companies that violate the law and get them on the record,” Lofaso said. The agency needs to do this in a way that’s within its budget, she added.
In order to keep the fines lowered to $49,000, the agreement states that Whispering Creek must fix the violations, pay the fines by March 2029 and waive its right to fight the citations. Baumgardner must also get a third-party consultation to train employees on trench safety within 90 days of the agreement.
Agency records show Whispering Creek had not been inspected or cited by the agency before the trench collapse.
2 men hospitalized after collapse, company’s response
It’s been more than eight months since the trench collapsed. One survivor has returned to work with Whispering Creek, Baumgardner told The Enquirer. The other is still recovering.
Emergency responders told an agency investigator that one worker who survived the collapse had eight fractures. The second worker had two fractured ribs.
Both workers suffered a range of serious internal harm, including arterial, cardiac and lung injuries. They also both developed the potentially life-threatening condition rhabdomyolysis, in which damaged muscle tissue breaks down and releases harmful substances into the bloodstream.
According to a family GoFundMe, one survivor was Jaime Barajas, the father of the man who died in the collapse. The Enquirer left messages with a few of Barajas’ family members but did not receive a response.
Baumgardner said the employees have been paid workers compensation. “We helped them out as much as we can,” he said.
Baumgardner told The Enquirer he expected felony charges. As of Aug. 14, no charges were listed in Clermont County Common Pleas Court records. A police report from the incident lists possible charges of reckless homicide and negligent assault.
The Clermont County Prosecutor’s office is reviewing the case. Stephanie Ross, the office’s administrator, said Aug. 10 that she had no information to share on any potential criminal charges.
A ‘well-known’ hazard
Trench collapses are a well-known excavation hazard, yet they remain one of the leading causes of death in the construction industry, according to the workplace safety agency. Between 2003 and 2017, 373 workers died in trenching incidents, according to the Centers for Disease Control and Prevention.
Labor law expert Lofaso said the agency doesn’t have the resources to inspect every workplace regularly. In 2025, the agency had about 1,651 inspectors responsible for roughly 12 million workplaces − enough to inspect each workplace once every 191 years, according to an April 2026 report from the American Federation of Labor and Congress of Industrial Organizations. In 2023, that figure was once every 186 years.
“You could go your whole business life without being inspected,” Lofaso said. Referring to Whispering Creek, she added, “At least now they’re being inspected.”
This article originally appeared on Cincinnati Enquirer: Workers warned trench was unsafe before fatal collapse
Reporting by Gillian Stawiszynski, Cincinnati Enquirer / Cincinnati Enquirer
USA TODAY Network via Reuters Connect
By Gillian Stawiszynski, Cincinnati Enquirer | USA TODAY Network
