Workers replacing a storm drain at an Ohio job site warned that a trench had become dangerously deep, but federal investigators say they were told to enter it anyway — minutes before it collapsed, killing one worker and severely injuring two others.

Jose Alberto Barajas Martinez, 28, was killed in the December 5 collapse near Milford. The Occupational Safety and Health Administration later found the roughly 8-foot-deep trench had no protection against a cave-in, despite federal rules requiring safeguards for trenches deeper than 5 feet, according to records obtained by the Cincinnati Enquirer.

OSHA investigators concluded that workers had told their employer, Whispering Creek LLC, that the excavation had become "too deep and dangerous." Records show they were directed to enter the trench anyway. The trench collapsed minutes later.

Barajas Martinez died at the scene. Two coworkers, including his father Jaime Barajas, were severely injured. Emergency responders told investigators that one survivor had eight fractures, while the second worker had two fractured ribs. Both workers suffered serious internal injuries, including arterial, cardiac and lung damage, and developed rhabdomyolysis, a potentially life-threatening condition in which damaged muscle tissue breaks down and releases harmful substances into the bloodstream.

The agency cited Whispering Creek for five violations and initially proposed $231,714 in penalties. However, an informal settlement agreement reduced the amount to $49,000. The agreement combined two citations and downgraded a willful citation to serious.

Federal investigators determined that company owner David Baumgardner had real-time knowledge of the depth and layout of the trench because he was at the worksite. Investigators wrote that Baumgardner showed "conscious disregard" by sharing his knowledge of safety requirements in interviews yet failing to apply them.

When investigators arrived at the Whispering Creek worksite, 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.

OSHA standards require worksites to 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. 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."

The 37-year-old company provides landscaping and pool installation services in Cincinnati, Dayton and Columbus. Agency records show Whispering Creek had not been inspected or cited by OSHA before the trench collapse.

Baumgardner told The Enquirer 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."

One survivor has returned to work with Whispering Creek, Baumgardner tsaid. The other is still recovering. Baumgardner said the employees have been paid workers compensation. "We helped them out as much as we can," he said.

Clermont County prosecutors are reviewing the case for possible criminal charges against Baumgardner. A police report from the incident lists possible charges of reckless homicide and negligent assault. As of August 14, no charges were listed in Clermont County Common Pleas Court records.

Baumgardner told The Enquirer he expected felony charges. The Clermont County Prosecutor's office is reviewing the case, but administrator Stephanie Ross said August 10 that she had no information to share on any potential criminal charges.

Under the informal settlement agreement with OSHA, Whispering Creek must fix the violations, pay the $49,000 fine 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.

Trench collapses 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.

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