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OSHA Cites Excavating Contractor: Federal Court Approves!

By: Matthew Horn, Esq., SmithAmundsen LLC, mhorn@salawus.com

A recent decision out of the United States Court of Appeals for the Seventh Circuit, KS Energy Services, LLC v. Solis, Case No. 11-2427, greatly impacts how OSHA will determine soil types and enforce trench sloping and benching regulations set forth in 29 C.F.R. 1926.652(a)(1).  All contractors performing work in trenches should be aware of this decision and its practical implications.

The Violation

In the case, KS Energy, an underground contractor out of New Berlin, Wisconsin, was installing a natural gas pipeline underground in downtown Madison, Wisconsin.  An OSHA Compliance Officer arrived on site and took several measurements of KS Energy’s trench using a trench pole.  The slope of the trench was measured at 46 degrees in two locations and 50 degrees in one location.  The Compliance Officer also noted that there was water in several footprints near the trench; that there were underground utility lines eight to ten feet from the trench; and that a street was located twelve feet from the trench.

The next day, the Compliance Officer returned to the site with another Compliance Officer, and collected soil samples from the top and middle of the trench but not the bottom.  KS Energy retained a soil expert, who also obtained soil samples from the trench, including a sample from the bottom of the trench.  The soil samples taken by OSHA indicated that the soil was “Type B” at the top and middle of the trench, but the soil sample taken by KS Energy’s expert from the bottom of the trench indicated that the soil was “Type A” soil.

The Citation

KS Energy was issued a repeat citation for failing to provide an adequate trench protection system in “Type B” soil conditions.  KS Energy disputed the citation, arguing that the trench was properly sloped for “Type A” soil, which KS Energy claims was the type of soil present in and around the trench.  OSHA argued that the type of soil in and around the trench was “Type B” soil, and that the trench was not properly sloped for that soil.  KS Energy acknowledged that if the soil was “Type B,” the trench was not properly sloped, so the appropriateness of the citation turned on whether the soil was “Type A” or “Type B.”

Initial Ruling

The Occupational Safety and Health Review Commission assigned the case to an administrative law judge, who upheld the citation against KS Energy, finding that the soil was “Type B,” and that the trench was improperly sloped.  KS Energy appealed the ruling to the United States Court of Appeals for the Seventh Circuit, which is the federal appellate court for Illinois, Wisconsin, and Indiana.

Discussion on Soils

The decision contains a lengthy discussion on soils, which is summarized in the following paragraphs.

Appendix A to 29 C.F.R. 1926.652(a)(1) explains the various soil classifications that determine allowable trench slopes.  The soil classifications are listed in descending order of stability: Stable Rock, Type A, Type B, and Type C.  Initial soil classifications are subject to downgrading based on various factors OSHA believes affect soil stability.  Further, in a layered soil system, the soil is classified by its weakest layer.

Appendix A specifically provides that no soil may be classified as Type A soil if: a) the soil is fissured; b) the soil is subject to vibration from heavy traffic, pile driving, or similar effects; c) the soil has been previously disturbed; or d) the soil is subject to other factors that would require it to be classified as less stable material.

Additionally, soil is presumptively classified as Type C if it is “submerged soil or soil from which water is freely seeping.”

7th Circuit Ruling

The Seventh Circuit Court reviewed the facts and considered the arguments of both sides, and ruled to uphold the issuance of the citation by OSHA, finding that the administrative law judge’s finding that the soil was “Type B” was sufficiently supported for numerous reasons.

Vibration

The Court found that while there was evidence that the trench consisted, at least partially, of Type A soil, the soil needed to be downgraded to Type B soil because it was subject to vibration.  There was no evidence provided indicating that the soil actually vibrated, but the Court found there was sufficient evidence to find that the soil was “subject to” vibration, which is all that is required.  Specifically, the Court found that the soil was “subject to vibration” because the trench was twelve feet from a lane of heavy traffic and because KS Energy was using a “large, tracked backhoe” to perform its work near the trench.  The Court specifically noted that it made no determination as to whether use of heavy equipment near the trench was sufficient in and of itself to support a finding that soil was “subject to vibration.”

Disturbed Soils

The Court also found that the soil near the trench needed to be downgraded because it had been disturbed due to the installation of pre-existing underground utilities in the area of the trench.  While OSHA presented no evidence as to the extent the soil around the trench had been disturbed to install the utilities, the Court found that the fact that there were utilities in the area of the trench—some passing through the trench and some located approximately eight to ten feet away—supported the finding that the soil near the trench had been disturbed at one point in time and had to be downgraded.

What Does this Decision Mean?

While the Court specifically noted that it made no finding as to whether use of heavy equipment near the trench was sufficient in and of itself to support a finding that the soil was “subject to vibration,” the Court also did not find that the use of heavy equipment near the trench was not sufficient in and of itself to support a finding that the soil was “subject to vibration.”  This means that, in the future, OSHA can and, likely, will argue that use of heavy equipment near a trench is sufficient in and of itself to support a finding that “Type A” soil is “subject to vibration,” and must be downgraded.

With regard to disturbed soils, the Court found that pre-existing utilities running through the trench at various locations and running approximately eight to ten feet from the trench supported a finding that soil had been disturbed, and that the soil needed to be downgraded in order to determine proper slope.  This means that, in the future, OSHA can and, likely, will argue that a trench with any existing utilities running through the trench or within eight to ten feet of the trench is sufficient to support a finding that “Type A” soil has been disturbed, and must be downgraded.

What Should I Do to Prevent Being Cited?

In order to prevent the possibility of being issued a citation for improper trench protection, an underground contractor should always downgrade “Type A” soil to “Type B” soil in determining slope when: 1) it is using heavy machinery near the trench; 2) the trench is near a road; or 3) there are existing utilities running through the trench at any point and/or are located within at least ten feet of the trench.

SmithAmundsen’s Construction Practice Group has represented clients involved in serious and catastrophic work-site injuries and fatalities for more than twenty years. Our experience includes handling OSHA matters in both the construction and industrial contexts, and we are experienced in advising and helping our clients through the entire process, from the implementation of an emergency response plan through the administrative hearing.

For more information on the services offered by SmithAmundsen’s Construction Practice Group, please contact Matthew Horn at 312-894-3322 (mhorn@salawus.com).

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