by Avi Meyerstein
Husch Blackwell LLP is an IMA B2B Partner
OSHA says it will increase enforcement with a revised National Emphasis Program (NEP) for trenching and excavation because of an increase in fatalities. According to the Bureau of Labor Statistics, trenching and excavation deaths nearly tripled between 2011 and 2016 (130 deaths in all in that time). The revised NEP will add enforcement, compliance assistance, and outreach programs.
It all starts with compliance assistance.
The NEP took effect October 1, 2018. During the first 90 days of the program, OSHA area offices/regions will develop and conduct “outreach” programs prior to initiating inspections. While the new NEP instruction supersedes an older one (CPL 02-00-069-Special Emphasis: Trenching and Excavation), the older NEP will remain in effect during the 90-day outreach period.
Outreach programs will include seminars for employers, trade associations, and labor groups, as well as assistance through OSHA’s free On-Site Consultation Program to small and medium size businesses to help identify hazards and comply with OSHA standards (OSHA says these consultation visits are separate from enforcement and do not lead to citations or penalties).
OSHA’s comprehensive 2015 publication on trenching and excavation safety can be found here. Additional resources can be found here and here. OSHA’s “slope it, shore it, or shield it” program, related resources, and public service announcements also aim to raise awareness of OSHA’s safety procedures related to trenching and excavation.
But, enforcement is around the corner.
After the 90-day outreach period, however, the NEP will increase enforcement relating to trenching and excavation. When they see such activities, OSHA’s Compliance Safety and Health Officers (CSHOs) will:
- Initiate inspections upon observation of an open trench or excavation, or upon the occurrence of an incident, referral, or complaint.
- Evaluate safety hazards associated with excavations and expand the scope of an inspection, if warranted.
- Provide employers with information regarding existing trenching and excavation hazards.
- Report all investigations, complaints, referrals, and consultations regarding trenching and excavation activities in a national reporting system.
OSHA approved state plans must have enforcement policies and procedures on trenching and excavation inspections that are at least as effective as those contained in the NEP. The NEP contains notice and adoption provisions for all OSHA-approved state plans to ensure compliance with federal policies and procedures.
What is OSHA looking for, and how can you prepare?
OSHA’s most relevant standards are 29 CFR 1926.650, 29 CFR 1926.651, and 29 CFR 1926.652. They focus on hazards that include:
- Cave-ins of trench walls or adjacent structures.
- Having safe methods to enter and exit excavations.
- Hazards from vehicular traffic.
- Dangerous atmospheres or water hazards.
- Heavy loads, equipment, or tools falling down into a trench.
Now is a good time for construction firms, contractors, and any company with a major building project to review their policies, procedures, training, andcompliance when it comes to trenching and excavation. The rule can be demanding – from pre-planning, engineering, and design requirements to making sure that crews in the field are following proper procedures and conducting all necessary inspections each and every day. The issue is all the more complicated because external (and sometimes, changing) factors beyond your control have an impact, including soil conditions, weather, and utilities.
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