Seyfarth Synopsis: OSHA has recently released its National Emphasis Program on Trenching and Excavation, CPL 02-00-161 (October 1, 2018), which requires OSHA to open inspections against any contractor involved in trenching or excavation work and report information back to the Area Office and national online system.
OSHA has long maintained construction standards related to trenching and excavation safety, including 1926.650 (Scope, application, and definitions applicable to this subpart), 1926.651 (Specific Excavation Requirements), and 1926.652 (Requirements for protective systems). In 2017, the regulation governing cave in protection (1910.655(a)(1)) alone was cited against more than 500 employers. On top of OSHA citations, trenching and excavation fatalities have been a source of criminal prosecution by federal and state authorities. To effectuate enforcement of this hazard, OSHA has released a new National Emphasis Program, replacing OSHA's earlier Special Emphasis: Trenching and Excavation, CPL 02-00-069 (September 19, 1985).
In its news release on the Directive, Deputy Assistant Secretary of Labor for OSHA Loren Sweatt said "removing workers from and helping workers identify trenching hazards is critical.... OSHA will concentrate the full force of enforcement and compliance assistance resources to help ensure that employers are addressing these serious hazards." The NEP indicates that according to Census of Fatal Occupational Injuries (CFOI) data, there were 130 fatalities recorded in trenching and excavation operations between 2011 and 2016. Private construction industry accounted for eighty percent, or 104, of those fatalities. OSHA noted that it has a series of compliance assistance resources to help keep workers safe from trenching and excavation hazards. The trenching and excavation webpage provides information on trenching hazards and solutions.
The 2018 NEP mandates that the Area Offices, beginning on October 1, 2018 roll out the Program with a "three-month period of education and prevention outreach." During that period, OSHA will continue to respond to complaints, referrals, hospitalizations, and fatalities.
"Enforcement activities will begin after the outreach period and remain in effect until canceled." The NEP mandates intense new scrutiny of trenching and excavation operations. The Program requires compliance officers (CSHOs) to initiate an inspection any time they observe a trench or excavation, whether observed during an inspection or merely in the course of their workday travel. Accordingly, employing its Multi-Employer Worksite Doctrine, OSHA will be required to record and open an inspection against each employer who may have OSHA liability over trenching and excavation operations, including general contractors, subcontractors, and independent contractors. Compliance officers must also promptly notify their Area Office of the trenching operation, state of the excavation, and any contractors involved. They also must take photographs to document the worksite.
All enforcement activities by compliance officers must be recorded in OSHA's online information system (OIS), creating a searchable database of trenching and excavation information.
Accordingly, construction contractors conducting trenching and excavation operations will face a greatly increased chance of an OSHA inspection and regulatory scrutiny, especially those operations that are located on major thoroughfares and high-profile locations or in areas likely to be travelled by OSHA inspectors. Employers should consult with safety professionals and outside counsel to ensure compliance with the relevant OSHA Standards.
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