OULD OSH to Protect CSHOs Conducting Trench Inspections?

By Lawrence P. Halprin, Esq. Ch.E., J.D., M.B.A. In Finance Partner, Keller & Heckman LLP

n July 14, 2022, OSHA issued a national news release (see pages 12–13) to make the country aware of an “alarming rise in trench-related fatalities,” and to announce it was launching enhanced enforcement initiatives to protect workers from known industry hazards.” While the greatest risk of trenching activities is clearly to employees who enter the trench, there is also a significant risk to personnel who must access the top surface of the ground at the edge of the trench, including OSHA inspectors (“CSHOs”). That is the focus of this article.

According to the OSHA Compliance Directive for the Excavation Standard (“the Excavations Directive”),1 “OSHA believes there is a potential for a cave-in or collapse in virtually all excavations.”

If there is a potential for a cave-in or collapse in virtually all excavations, that strongly suggests there is a potential for the adjacent ground to collapse into the trench and take anyone standing on that ground into the trench.2 The measures implemented for the “protection of employees in excavations” against caveins/collapses pursuant to §§ 1926.651 and 1926.652 should also protect someone on the adjacent surface from that type of event.3 In other words, when the Certified Safety & Health Official (CSHO) is gathering information about the trenching activity at the site—the qualifications of the individual designated as the competent person for excavations, what soils are present, what soil testing was performed, how long the excavation has been open, what protective system has been implemented, dimensions of the trench, purpose of the trench— the CSHO is not only looking out for the employees at the site but also the CSHO’s well-being. Since a CSHO is not familiar with the conditions at a trench site and does not know whether appropriate protective systems have been installed, maintained, and adjusted as necessary in light of any significant changes in conditions, OSHA has established a simple rule for its CSHOs: “Never enter a trench excavation, regardless of depth.” OSHA relies on training and the application of other safety measures to protect CSHOs from the substantial remaining risks.

An obvious and significant hazard for a CSHO required to access the top surface of the ground at the edge of the trench is the fall hazard but that is not even mentioned in the Excavations Directive and it was not an oversight. A June 24, 2002 OSHA Letter of Interpretation4 clarifies this issue and reads as follows:

This is in response to your letter . . . requesting an interpretation of fall protection requirements when working around trenches. Specifically, you ask if fall protection is required around vertical walled trenches that have a depth 6 feet or greater; if there are any exceptions to fall protection around trenches implied or stated; and whether a controlled access zone be used in lieu of fall protection.

29 CFR 1926.501(b)(7) provides:

(i) Each employee at the edge of an excavation 6 feet (1.8 m) or more in depth shall be protected from falling by guardrail systems, fences, or barricades when the excavations are not readily seen because of plant growth or other visual barrier; *

(ii) Each employee at the edge of a well, pit, shaft, and similar excavation 6 feet (1.8m) or more in depth shall be protected from falling by guardrail systems, fences, barricades, or covers.

Under these provisions, if the trench is not readily visible because of plant growth or other visual barrier, fall protection is required.2 Thus, unless the trench you are describing is obscured from view, there is no requirement for fall protection to be provided.5

*Note also that §1926.651(f) of the Excavations standard requires that: when mobile equipment is operated adjacent to an excavation, or when such equipment is required to approach the edge of an excavation, and the operator does not have a clear and direct view of the edge of the excavation [where a CSHO might be standing], a warning system shall be utilized such as barricades, hand or mechanical signals, or stop logs. If possible, the grade should be away from the excavation.

It is unclear why OSHA concluded its CSHOs should take the same approach rather than taking the opportunity to be a role model for enhanced safety, even if the trench is only four feet deep, the fall protection threshold for the soft-headed employees in general industry. If CSHOs are not required to use fall protection in these situations, the safest approach for the CSHOs would be for OSHA to tell them to stay away from the edge of the trench. Unfortunately, given the current technology generally available to CSHOs, and the on-site tasks required of CSHOs, that approach simply will not work.

The Excavations Directive requires CSHOs to obtain various measurements (including “the depth, width, and length of the excavation in several locations), soil samples from different locations (and levels if there is stratification) of the trench, and photographs of the trench. In carrying out that assignment, the Excavations Directive indicates that the equipment available to the CSHO may include a “Small Unmanned Aerial System (SUAS)” (portable drone):

Note: If a Small Unmanned Aircraft System (SUAS) is available, SUAS videos and photos can often provide a good view of the site and document the working conditions. Procedures from current SUAS policy guidance shall be followed at all times.

If the SUAS is not available, or cannot perform all these functions, or the CSHO cannot employ it effectively, or the Solicitor’s Office cannot validate calibration and accuracy of measuring devices, then CSHOs are apparently left to the methods of ancient times. The Excavations Directive states:

Ways to obtain measurements while minimizing exposure to potential excavationrelated hazards:

(1) Count rungs of a ladder which may be present in the excavation and then calculate the total length or height based on the distance between the rungs.

(2) Use reference objects with known dimensions such as wood, a concrete vault, etc., to assist in estimating the depth and width.

(3) Measure the height of an employee who was observed/photographed in the excavation (with employees’ permission).

(4) Use an engineering rod (trench rod) horizontally with an eyebolt attached at the end, a string threaded through the eyebolt and a plumb bob attached to the string. . . . The telescoping rod should be placed on the ground. The plumb bob should touch the ground at the bottom of the excavation and the string should be taut. Tape or hold the string tight to the trench rod to ensure that the length of the string remains unchanged. Remove the trench rod from the excavation and measure the length of the string from the eyebolt to the end of the plumb bob with a measuring tape. Document and take a photo of the measurement.

Arguably, a stiff fishing rod and reel with a plumb bob would be more practical than approach number 4, above. Approach number 2 appears to have limited practicality. Getting an employee’s permission to take a photograph of the employee for potential use in an enforcement action does not seem promising. A recent case demonstrated the problem with approach number 1, above.

Section 1926.652(a)(1) provides that “each employee in an excavation shall be protected from cave-ins by an adequate protective system . . . except when . . . excavations are less than 5 feet (1.52m) in depth and examination of the ground by a competent person provides no indication of a potential cavein.” In Secretary v. A-1 Sewer and Water Contractors, Inc.,6 there was a factual dispute as to whether the depth of the trench was at least five feet. The CSHO relied on a ladder rung count of rungs with known spacing; the employer successfully argued that the ladder was angled against the wall of the trench rather than vertical, the angle was unknown and, therefore,

OSHA had not carried its burden of proof. Taking judicial notice of the “Pythagorean Theories [sic],” the administrative law judge (“ALJ”) assigned to the case vacated the citation.

In critiquing the CSHO’s selected approach for determining the depth of the trench, the ALJ’s opinion inadvertently highlighted the hazards faced by the CSHO:

It was not impossible or impractical for the CSHO to have had the ladder and measuring rod be placed directly vertical to the excavation wall to obtain the depth measurement. It would have taken the CSHO little time and effort to ensure the vertical placement of the ladder and measuring rod when taking his measurements. In this case, where the issue boils down to “approximately” seven inches from having the regulation apply or not apply (from 4 ft. 11 inches to approximately 5 ft. 6 inches as set forth in the Citation), being thorough and complete in the correct placement of the measuring rod and ladder would have not placed the measurements of Complainant into question.

In addition, the CSHO testified he was trained and had used in the past a method which would been better to use in this case to obtain accurate measurements when entry into a trench is not feasible. He referred to that method as a “fish tape” method. This method is where fish tape is put on the top of a measuring rod and then dropped into the trench to obtain measurements. Tr. 50–51. This certainly would have avoided the geometry principle invoked by Respondent to invalidate the method and measurement taken by the CSHO in this case.

In short, the opinion seems to imply that a CSHO, presumably with a good faith concern about the possibility of a trench cavein/collapse, is expected to either:

(1) Walk to the top edge of the trench with a trench pole in one hand (assuming no spoils pile or other material or equipment blocks the way), pull the ladder into a vertical position against the trench wall, place the trench pole into a vertical position against the trench wall, ensure both the ladder and trench pole are vertical in the x and y axes (which may require balancing the ladder on one leg), ensure neither the ladder nor the trench pole is sitting on a large mound or in a deep divot that would distort the measurement, and note and memorize the measurement (assuming a second CSHO is not there to take a photograph, which might increase the risk of a cave-in/collapse); OR

(2) Get down on the ground near the top edge of the trench to place the horizontal trench rod flat on the ground (removing any materials or equipment that might be in the way), extend the rod far enough out to allow the line to clear the entire wall of the trench (which, in other situations, may be (albeit inadequately) benched or sloped), and do whatever is necessary to be sure the plumb bob has reached the floor of the true floor of the trench rather than either a large mound, a divot, etc.

It is unclear how this would be accomplished in a situation such as that presented in Secretary v. Conie Construction7 where “the Secretary demonstrated that in order to comply with the standard [1926.652], the top of the excavation would have to have been 28 feet wide, instead of the 20 to 22 feet it actually was, to have been sloped ¾ to 1.”

If safe measurement was not enough of a challenge, the CSHO is also directed to look for evidence of fissures, seeping water, soil stratification and soil disturbance8, and obtain soil samples:

[T]he CSHO should collect at least two soil samples from different locations. The number of soil samples taken is a matter of judgement based on observed conditions and the size of the project. If the project is so large that more than one crew is working in separate locations, samples should be taken in each area where employees are working.

If examination of the excavation side walls reveals visible soil stratification (i.e., the presence of different layers of soil), then the CSHO should attempt to obtain samples from each layer. In most cases, stratification should be recognizable because of color differences in the layers. The CSHO should avoid mixing soils from different strata, which should be left intact for lab analysis or other means used to determine classification.

Endnotes

Sampling from a spoils pile is much easier and safer but could make it challenging to establish those samples are representative of actual conditions in the trench wall or represent the various stratified layers.

Clearly, excavation is an activity with elevated hazards. I would have preferred to see OSHA announce a more comprehensive approach to this issue that combined enforcement and outreach, not only to the excavation contractors and general contractors but also to the purchasers of excavation services (including homeowners and insurance companies), and to the government agencies that establish the required depth for burying utility lines. In addition, it appears that OSHA could do more to protect the safety of its CSHOs conducting excavation inspections.

This article is not intended to and does not provide legal advice. It represents only the personal views of its author regarding the control of excavation hazards and does not necessarily represent the view of VPPPA or the law firm of Keller & Heckman LLP or any of its clients.

1 OSHA Directive Number: CPL 02-00-165, Compliance Directive for the Excavation Standard, 29 CFR 1926, Subpart P, Effective Date: 7/1/21. https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-00-165.pdf

2 See Trench Cave In Oregon OSHA compliance officer caught cave in on tape https://www.youtube.com/ watch?app=desktop&v=uLs1_8yohb8

3 In addition, § 1926.501(a)(2) provides: The employer shall determine if the walking/working surfaces on which its employees are to work have the strength and structural integrity to support employees safely. Employees shall be allowed to work on those surfaces only when the surfaces have the requisite strength and structural integrity. where the term “walking/working surface” means: any surface, whether horizontal or vertical on which an employee walks or works, including, but not limited to, floors, roofs, ramps, bridges, runways, formwork and concrete reinforcing steel but not including ladders, vehicles, or trailers, on which employees must be located in order to perform their job duties.

4 https://www.osha.gov/laws-regs/standardinterpretations/2002-06-24-2

5 Apparently, at least in the United States, this situation is viewed by OSHA as comparable to the unprotected edge of a commuter railway platform although the exposure to fall hazards at the trench site is likely to be more hazardous, taking into account length of exposure, frequency of exposure, distance to the unprotected edge, vertical drop and surrounding distractions and noise.

6 OSHRC Docket No.: 21-0562. https://www.oshrc.gov/assets/1/18/A-1_Decision_and_Order-after_trial_-_PBA_ (final)_(002).pdf?12149

7 OSHRC Docket No. 92-0264. https://www.oshrc.gov/assets/1/6/92-0264.pdf?3727

8 In Secretary v. Scafar Contracting, Inc., OSHRC Docket No. 97-0960, the ALJ held that soil would be considered “disturbed” where it had been dug up 100 years earlier to install a sewer line. https://www.oshrc.gov/ assets/1/6/97-09601.pdf?3445

The Bureau of Labor Statistics reports that 5,190 fatal work injuries occurred in the United States in 2021—that means an American died every 101 minutes from a work-related injury. This represents an 8.9 percent increase from 4,764 reported in 2020.

These starling statistics include an average of 20 fatalities each year that are attributed to inadequately planned and/or performed excavation and trenching activities. The consistent implementation of a welldesigned safety management system (SMS) coupled with a robust safety culture are key to preventing excavation and trenching accidents.