Kathleen Henderon
American
Society of Safety Engineers
Cave-ins
remain a serious hazard to construction employees. According to the
Bureau of Labor Statistics for 2001, the Construction industry accounted
for approximately 92% of all fatalities from cave-ins. Because trenches
and excavations are often located in plain view, they are prime targets
for OSHA inspections. Fatalities, injuries, and OSHA citations can
be alleviated with training, supervision, and proper shoring and sloping
procedures. But for many employees engaged in trenching and excavation
work, understanding and complying with these procedures can be difficult.
Additionally, employees may not appreciate the seriousness of cave-in
hazards or that the collapse of a 5 foot deep trench could result
in death or serious injury. The first line of defense is the competent
person who can detect hazards and initiate action to eliminate them.
Requirements for a Competent Person
The OSHA standards contain two prerequisites for a competent person:
(1) someone who is capable of identifying hazards and (2) someone
who has authorization to take prompt corrective measures to eliminate
those hazards. 29 C.F.R. § 1920.650(b). In the context of trenching
and excavation hazards, such a person would not only have to know
the OSHA standards for trenching and excavation at 29 C.F.R. §§ 1926.650-
652, but should also have field experience in identifying hazards
and the most effective means to protect employees. However, knowledge
and experience alone do not suffice. The competent person must have
the authority to stop work if necessary and to initiate immediate
action to correct hazards. It is critical that employers impart to
their competent persons the expectation that this authority be invoked
whenever necessary. In the case where the competent person is not
a part of management and who has minimal supervisory responsibilities,
employers should emphasize and communicate that the competent person's
safety instructions are to prevail over directions involving operations
and productivity. It is not uncommon for willful OSHA citations to
be affirmed based upon a competent person's or supervisor's observation
of a hazard and failure to act to correct it, especially in the context
of trying to quickly finish the job. Given the fact that a cave-in
can occur unpredictably within seconds, a competent person's failure
to stop the job and correct the hazard can also have fatal consequences.
In addition to providing technical training and refresher training
to competent persons, employers should also communicate the expectation
that the trenching safety standards are to be strictly adhered even
at the cost of productivity. Safety can more than pay for itself in
avoidance of OSHA penalties, limiting insurance liability, workers
compensation and loss productivity. Reinforcement of this message
from employers will ensure that competent persons know the expectation
that safety comes first and the incentive or temptation to take shortcuts
may be minimized.
The Inspection
Regardless of the depth of the excavation, the OSHA standards require
that a competent person inspect the excavation and its adjacent areas.
29 C.F.R. § 1926.651(k)(1). An inspection must be done "prior to the
start of work and as needed throughout the shift." The competent person
should consider all of the factors present on the site that may increase
the hazard of cave-in such as the proximity to vehicles and heavy
machinery, rain or water accumulation, and other construction work
in the area, as may be applicable. The presence of additional hazards,
which go uncorrected, could make the difference between a serious
versus a willful OSHA citation or affect the amount of the penalty.
For example, in Cedar Construction Company v. OSHRC, 587 F.2d 1303
(D.C. Cir. 1978), the court affirmed willful citations of the trenching
standard after finding that the section of the trench which caved-in
was in a backfilled area and that there was a danger of excessive
vibration from a well-traveled highway nearby. There were also problems
with groundwater in the trench. The court concluded that those factors
made the hazardous trench more apparent and supported the willful
violation.
The competent person's inspection should include the following:
- Utilities. The locations of sewer, telephone, fuel, electric
and water lines should be determined before digging of the excavation.
The OSHA standards require that utility companies or owners be
contacted for such information. If they cannot respond within
24 hours (unless a longer period is required by the applicable
state or local law), digging of the excavation may commence with
caution. The competent person should have detection equipment
or other means to locate utility installations
- Safe Means of Egress. The competent person should ensure that
a ladder or ramp or other means of safe egress is provided in
excavations of 4 feet or more in depth so that no employee has
to travel laterally more than 25 feet in order to leave the trench.
The competent person should make frequent inspections to ensure
that as employees' work locations change, the means of egress
is relocated as necessary to ensure that it remains within the
25-foot travel distance limit. In Dakota Underground, Inc. v.
Secretary of Labor, 200 F.3d 564 (8th Cir. 2000), a willful citation
for not maintaining a ladder within 25 feet of employees was affirmed.
The court rejected the employer's argument that the ladders were
moved periodically and that it merely failed to move one ladder
for a short period of time. It was noted that the competent person
on site could see that the ladder was not properly located and
there was a record of past trenching violations. Particular attention
should be given to ensure that the ramps comply with the requirements
of the standards. 29 C.F.R. 1926.651(c)(1). Surface treatments
on ramps are required to prevent slipping and the ramps shall
be designed so that they do not displace and provide safe egress.
- Vehicular Traffic. If employees are working near traffic, the
competent person should ensure that employees are provided with
and wear garments which are made of reflective or high-visibility
material. It may also be necessary to establish barricades to
steer traffic away from the excavation area. 29 C.F.R. § 1926.202.
- Equipment. The competent person should consider the equipment
that is or may be in use in the vicinity of the excavation. The
standards prohibit employees from being underneath loads handled
by lifting or digging equipment. Competent persons should ensure
that employees remain clear of equipment and that effective communication
and procedures are in place to prevent operators of equipment
from lifting loads over employees.
- Water Accumulation. The OSHA standards prohibit employees from
working in excavations in which "there is accumulated water, or
in excavations in which water is accumulating, unless adequate
precautions have been taken." 29 C.F.R. § 1926.651(h)(1). Support
or shield systems, water removal measures, or a safety harness
and lifeline may be used as possible precautions. If water removal
equipment is used, it should be tested by the competent person
beforehand to ensure it is operable. The standard requires that
the competent person monitor its use.
- Stability of Adjacent Structures and Surface Encumbrances.
Adjacent structures to include buildings, walls, sidewalks and
pavements and surface encumbrances should be inspected to ensure
that they do not pose a hazard. Where necessary, shoring, bracing,
and underpinning shall be installed. In Secretary of Labor v.
Rawson Contractors, Inc., OSHRC 02-1921 (ALJ April 28, 2003),
a serious citation was affirmed for failure to provide employees
working in a trench with protection against the potential cave-in
from a pavement collapse. Five feet of the pavement on which an
excavator rested was not sufficiently supported and the front
two feet of the excavator treads were also unsupported. The excavator
could have caused the pavement to collapse, with both the excavator
and pavement falling into the excavation.
- Lose Rocks & Soil. The excavation itself should be examined
by the competent person for loose rocks or soil. The standard
requires that such materials be removed or that a protective barrier
be installed if they pose a potential hazard by falling or rolling
from the excavation. 29 C.F.R. § 1926.651(j)(1).
- Fall Protection Hazards. Fall protection may also be necessary
for employees who are working outside and around the excavation
area. It may be necessary to install guardrails around sections
where there is a potential for passersby or employees to fall
into the excavation.
- Hazardous Atmospheres. Testing of hazardous atmospheres inside
the excavation must be conducted if a hazardous atmosphere could
reasonably be expected to exist due to landfill areas or the presence
of hazardous chemicals nearby. 29 C.F.R. § 1926.651(g). If there
is a potential for a hazardous atmosphere, the competent person
should ensure that emergency rescue equipment is readily available.
29 C.F.R. § 1926.651(g)(2).
- Soil Testing and Sloping. The OSHA standards require that employees
be protected from cave-ins by a protective system in accordance
with 29 C.F.R. § 1926.652(b) or (c) unless the excavation is "made
entirely of stable rock" or it is less than five feet deep "and
examination of the ground by a competent person provides no indication
of a potential cave-in." With respect to excavations which do
not fall within either of these exceptions, the competent person
should conduct a soil test. Appendix A to Subpart P - Soil Classification
details the methods by which soil and rock deposits are classified.
They are considered to be either Type A, Type B or Type C. All
soils are considered to be Type C unless otherwise determined
after testing by a competent person in accordance with the OSHA
standards. Classification of soil is based upon at least one visual
and at least one manual analysis. Visual tests are conducted of
the excavation in general based upon observations of the particle
sizes and whether any cracks, clumps, layers or fissures exist.
Manual tests are conducted to determine the quantitative and qualitative
properties of the soil and how it responds to alteration. This
may be done by means of a test of plasticity (or ball or rope
test as it is sometimes called); a dry strength test; a thumb
penetration test (considered by some experts as the least reliable);
a drying test; or a strength test by means of a pocket penetrometer
or hand-operated shearvane. Because the maximum slope of a trench
depends in part upon the type of soil, it is important that the
competent person test the soil before work begins and frequently
thereafter to determine the soil type. If the soil conditions
change, further sloping or additional protection may be necessary.
It is a good practice to make soil testing routine. It will not
suffice as a defense to an OSHA citation, if for example, a trench
is properly sloped for Type B soil, when the soil was not first
tested and determined to be Type B soil. Once the soil type or
types (if the soil is layered or if more than one type of soil
exists within the excavation) are determined, the competent person
can select the appropriate protective system. The sloping and
benching design requirements for excavations are set forth in
Appendix B to Subpart P-Sloping and Benching of the OSHA standards.
The competent person must exercise care to ensure that the slope
or benching configuration is permissible for the applicable soil
type or types involved. Sloping or benching for excavations which
are greater than 20 feet deep must be designed by a registered
professional engineer. Once the protective system or slope or
benching configuration is determined and before employees are
permitted to enter the excavation, the competent person should
inspect the excavation to ensure that it complies with the configuration
and sloping requirements and/or that the protective system is
properly installed. The slope and configuration of the excavation
and the protective system should be inspected throughout the job.
- Protective Equipment. Trench boxes and support systems should
be inspected to ensure that they are free from damage and are
used in a manner consistent with the manufacturer's recommendations
and so that they will be effective in protecting employees. If
timber shoring is used to form a protective system it must comply
with the requirements in Appendix C to Subpart P-Timber Shoring
for Trenches to the OSHA standards.
- Spoil Piles. The competent person should evaluate the site
and determine the best location for spoil piles so that they do
not pose a hazard and can easily be kept at a distance of 2-feet
or more from the excavation as it is being dug and extended if
necessary.
Discipline. A violation of the OSHA standard may not exist
if it was due to employee misconduct. Employee misconduct consists
of the following elements: (1) a work rule prohibiting the violative
condition; (2) effective training and communication of the work rule
to employees; and (3) enforcement of the work rule. Dakota Underground,
2001 OSHD (CCH) 32,319 (Commission Decision OSHRC Docket No. 97-2079
March 20, 2001), citing DCS Sanitation Management, Inc., 82
F.3d 812 (8th Cir. 1996). Verbal reprimands of employees may not suffice,
particularly if there is a repeated pattern for reoccurrence or if
the reprimands are summarily dismissed by employees. In Dakota
Underground, employees never received anything other than a verbal
warning and employees knew that if they worked inside an unprotected
excavation they would not be fired if they were caught. An effective
enforcement program is necessary for the competent person to be able
to exercise his authority to require employees to comply with safety
rules.
Training and Supervision of Competent Persons
The employer should
have a program or procedures in place to evaluate its competent persons
and ensure that they are knowledgeable in the OSHA standards requirements
and that they are conscientious with respect to their responsibilities
as competent persons. Checklists and routine spot inspections may
be useful for this purpose.
Constant Vigilance
Competent persons must be mindful of three
considerations which apply to trenching and excavation hazards: (1)
trenches are potentially deadly, therefore, no shortcuts should ever
be taken when it comes to safety; (2) conditions change, requiring
that the excavation and its areas be inspected often throughout the
job; and (3) a trench is a high visibility item, something that is
likely to trigger an OSHA inspection. Consider for example the case
of Rawson Contractors, OSHRC Docket No. 99-0018 (Commission
Decision March 27, 2000) in which willful violations of the trenching
and excavation standards were cited as a result of two OSHA compliance
officers who happened to drive by the site and notice a large spoil
pile. They stopped and found a 20-foot deep excavation with nearly
vertical walls. Trench boxes had been used in the excavation, but
the competent person had ordered that they be removed when they interfered
with installation of rebar supports. Employees were told to enter
the trench and finish the job without any protection system in place.
Finally, employers should recognize that one OSHA inspection may precede
another, even in the same day. In Globe Contractors, Inc. v. Herman,
132 F.3d 367 (7th Cir. 1997), the first OSHA inspection was triggered
by an anonymous complaint. The OSHA compliance officer went to the
site, which was located alongside a public road in Appleton, Wisconsin,
and observed two employees, one of whom was the foreman, climbing
out of a trench that was between 10.5 to 11.5 feet deep. Two hours
later the compliance officer returned with another compliance officer
to witness the same foreman standing inside the trench. A willful
citation was issued and affirmed for failure to protect employees
against cave-ins. Employers who invest in training of their competent
persons and communicate their expectations that safety comes first
have taken an aggressive step towards protecting their employees and
ensuring compliance with OSHA.
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