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US OSHA Continues Emphasis on Excavation and Trenching Safety

Effective October 1, 2018, the Occupational Safety and Health Administration (OSHA) updated its National Emphasis Program (NEP) on Trenching and Excavation, with the intent of describing “policies and procedures . . . to identify and to reduce hazards which are causing or likely to cause serious injuries and fatalities during trenching and excavation operations.”  The updated NEP replaces the original 1985 CPL 02-00-069 – Special Emphasis: Trenching and Excavation and, among other things, establishes a requirement for each Area Office/Region to develop and implement outreach programs in support of the emphasis program, including the provision of compliance assistance materials for employers, permitting and other municipal organizations, industry associations, equipment rental organizations, water works supply companies, and plumbing companies (“stakeholders”).

This re-emphasis stems from OSHA’s observation of a recent resurgence in the number of trenching/excavation fatalities and serious injuries, most notably 130 fatalities related to such operations between 2011 and 2016.  (The private construction industry accounted for the large majority of these fatalities at 80%, or 104 fatalities.)  OSHA believes that “there is a potential for a collapse in virtually all excavations,” and that “the rate of deaths and serious injuries resulting from trenching and excavation incidents (most collapses) can be significantly reduced if OSHA concentrates resources to effectively engage trenching and excavation operations through both enforcement and compliance assistance activities.”  In other words, OSHA believes that an increased presence at excavation and trenching operations will result in a decrease in accidents and injuries.

Accordingly, OSHA has directed its inspectors to “initiate inspections under this NEP whenever they observe an open trench or an open excavation, regardless of whether or not a violation is readily observed.”  OSHA has also directed that although inspections under the NEP shall normally be limited to evaluation of worker exposure to hazards associated with excavation, inspectors may expand the scope of an inspection if other safety and health hazards are observed in plain view or brought to their attention.  Given that the scope of the updated NEP is further described as “OSHA-wide,” and thus directed to all relevant area, regional, and State Plan offices, the broad and immediate impact of the updated NEP cannot be overstated.  OSHA will be more visible at trenching/excavation operations.

In an effort to prepare stakeholders for this increased enforcement, each Area Office/Region has been directed to develop and implement a comprehensive excavation safety outreach program for 90 days prior to initiating inspections under this revised NEP. (In the meantime, enforcement will continue under CPL 02-00-069.)  Area and Regional offices have already commenced this effort, and in late November, for example, OSHA announced that its Southeast area offices in Alabama, Florida, Georgia, and Mississippi are currently reaching out to impacted stakeholders to move this process along.

With other regions soon to follow, the time is ripe to start (or continue) preparing for increased engagement on this issue and to take additional steps to protect your workers from excavating/trenching hazards.  OSHA provides a series of compliance assistance resources aimed to do just this, including a “Protect Workers in Trenches” poster, hard hat stickers in English and Spanish, a trenching operations QuickCard, and updated Trenching and Excavation webpage.   Additional materials may also be available from your local Area/Regional offices, and well as your relevant industry organizations.

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About this Author

Matthew C Cooper, Squire PB Litigation attorney
Senior Associate

Matthew Cooper utilizes his unique experience as a federal government trial lawyer and boutique employment firm litigator to provide pointed advice to employers dealing with environmental, safety and health (ESH) issues and general employment matters.

Matt’s ESH practice consists of helping employers navigate regulatory inspections, investigations, accidents and other crises management, as well as litigating a wide array of government enforcement actions, including both Mine Safety and Health Administration (MSHA) and Occupational Safety and Health Administration...

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