Confessions of a T&E Attorney

By Adele L. Abrams, Esq., ASP, CMSP Law Office of Adele L. Abrams PC www.safety-law.com

As an OHS attorney and safety professional for over 30 years, I deal in disaster: over 400 fatal workplace accidents to date. Many of these have involved trenching and excavation (T&E), which is no surprise since it is one of the “Fatal Four” causes of construction fatalities. According to the Bureau of Labor Statistics, between 2011–2016, there were 130 deaths attributable to T&E activities. The private construction industry accounted for 80 percent of these, and while 38 percent occurred at industrial premises, an equal number were at private residences, and 20 percent in street or highway settings. Notably, public sector employees are not covered by federal OSHA (state plan states and state agencies in the federal OSHA states of NJ, NY, IL, and CT do cover these state and municipal workers), so the fatalities attributable to public sector activities in trenches are likely underreported.

While in law school, T&E meant “Trusts and Estates.” In my practice, it signifies “Trenching and Excavations”—the cause of so many preventable injuries and deaths. The root causes of these tragedies generally come down to three factors: short cuts, improper delegation of authority to those who lack power, and the absence of effective training. In the aftermath of these tragedies, clients often claim that the event was idiosyncratic, unforeseeable. That’s really not true, although these are among the “affirmative defenses” that I have argued over the years in mitigation of OSHA allegations. be told to stay in the shallow end, yet in my experience, OSHA often has photos showing that they strayed into the deeper areas during the course of their work—justifying a citation. hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.” This element of control is key, and the competent person will be viewed as an agent of management by OSHA, and their negligent actions will be imputed to the company to enhance the negligence classification. They may also become the target of criminal action if a case turns deadly.

Let’s explore the intricacies of T&E safety law and performance failures.

2Improper Delegation of Authority

Short Cuts

The first causal factor is the short cut. Employers may justify that the workers “will only be in the trench for a few minutes” or they may argue that it is difficult or “infeasible” to place a trench box into an excavation that already contains utility pipes or where they will be installed. They may argue that the type of soil “looks stable” (usually without performing any tests)—inevitably OSHA will disagree, after the fact, with their soil classification and OSHA will perform the tests.

To be sure, there are times when installing a trench box may not be feasible, but those are extremely limited. Moreover, there are alternative methods of supporting the ground during trench entry, including shoring using boards, or benching the area. Some employers also argue that if a trench varies in depth, perhaps from four to seven feet across its length, but the workers are “directed” to stay in the shallow end, they can avoid using support systems. OSHA will usually measure the depth from multiple points, and once it is five feet or deeper (or in very unstable soil), support will be required. Workers may

The second cause that I often encounter is lack of a truly competent person to oversee the controls and to direct the workforce. More often than not, the competent person is an hourly worker, often bilingual, who has no authority to hire, fire, or direct the workforce. Some do have the necessary OSHA training, but the effectiveness may be questionable. After conducting training for one contractor who had received a willful OSHA T&E citation, and covering the competent person requirements, when I asked for questions, the first one was, “When will this company hire someone competent?”

OSHA issued a revised Compliance Directive on its construction excavation standard, 29 CFR Part 1926, Subpart P, in July 2021. See CPL 02-00-165. The 53-page Compliance Directive details OSHA protocol for examining training, safety equipment, review of excavation protection programs, documenting employee exposure, and interviewing them. With respect to competent person requirements, OSHA stresses that the designated person must be “capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary,

3Poor Training

The third fatal flaw at trenching operations is poor or absent training. What does OSHA require for effective training on the hazards of trenching and excavation? To begin with, the training needs to be in a language and vocabulary that the workers will understand. I have been that trainer who shows up, only to find out that half the class does not speak English (and I do not speak Spanish). I have had showdowns with clients because I refused to certify that training was provided if the person could not understand what I was communicating. A citation for lack of training can result in a civil penalty of up to $145,000, but falsification of training records can net you a criminal sentence in federal prison. To the trainers reading this, just say NO to demands to sign off on training that you know was not effective. It isn’t worth it, and the consequences of poor training can be deadly and hard to deal with personally, if you know that inadequate training was a factor. It is also important for those who use temporary workers from a staffing agency, a union hiring hall, or subcontractors to perform their trenching and excavation activities to ensure that they also have the mandatory training, and that it is documented. Too often, either due to assumptions or lack of communication, the general contractor (GC) believes that the laborers provided have the requisite training and puts them to work immediately. In one such case, after the temporary laborer was killed in a trench, neither their direct employer nor the GC had any training records—in fact the GC’s safety officer left the scene, wiped his computer files, and was never seen again. Both the labor agency and the GC got cited in the fatality, but the GC bore the heavier burden as the entity in control of the worksite. It is also important to remember that if OSHA issues a willful citation in conjunction with a fatality, this can be reviewed for criminal referral to the U.S. Department of Justice (or the Attorney General, in a state plan state). What needs to be covered in T&E training, besides ensuring that the training is delivered in the right language and vocabulary (and also taking into account the literacy levels of workers if written materials will be used)? Ideally, after training is delivered, the participants will be able to:

1. Understand excavation risk factors

2. Identify excavation and trenching hazards

3. Recognize employer requirements for excavation safety

4. Understand the role of a competent person for excavation

5. Describe trench protective systems and other excavation hazard controls

6. Apply best practices for excavation safety

7. Understand the challenges of trench rescue operations.

Since 2018, OSHA has had a National Emphasis Program (NEP) on Trenching and Excavation that both federal OSHA and the state plan states must follow. See CPL 02-00-161. The original OSHA NEP on trenching started in 1985—clearly this is an old and pervasive safety issue, and more progress is needed. Under the current NEP, if an inspector drives by an open trench and is able, they are supposed to check and see if the ground is supported, if a ladder is available for safe access and egress, confirm that spoil piles are not situated where they can fall into the trench, and consider nearby traffic and vibration of heavy equipment (in addition to soil classification) when considering the potential for collapse.

OSHA says that employees exposed to potential cave-ins must be protected before the trench reaches “imminent danger of collapse” and OSHA believes there is a potential for collapse in virtually all excavations. OSHA will shoot video, take soil samples (from two different locations) and trench measurements, and otherwise document worksite conditions through sketches and photographs. They will also interview workers to determine their training levels and who is in control of the worksite.

OSHA can expand the scope of the inspection beyond T&E if there are other violations or hazards in plain view or if workers raise concerns during private interviews.

The bottom line is that trench hazards are pervasive and wellknown, yet workers continue to be injured or killed during excavation activities. In just seconds, workers faced with a trench collapse can be buried in thousands of pounds of soil. The basics are simple: ensure a safe way to enter and exit the trench, provide cave-in protection, keep materials away from the edges of the excavation, watch for water and environmental hazards, and ensure that the competent person inspects the trench before allowing workers to enter. Prevention can avoid deadly situations and the need for a T&E attorney.