By Brent I. Clark, Mark A. Lies, IIAdam R. YoungDaniel R. Birnbaum, and Craig B. Simonsen

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.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis and Craig B. Simonsen

In order to prove an OSHA violation the Secretary of Labor must show that the employer had “knowledge” of the violation. Often that is established through supervisors because a supervisor’s knowledge can be imputed to the company.

However, what do you do when the supervisor is the one engaged in the wrongful conduct? The Eleventh Circuit Court of Appeals recently answered this question. ComTran Group, Inc. v. DOL, No. 12-10275 (11th Cir., 7/24/13).

In ComTran, the Occupational Safety and Health Review Commission (Commission) held that ComTran violated OSHA standards, under 29 U.S.C. §§ 651 et seq., when “one of its supervisors was caught digging in a six-feet deep trench with an unprotected five-feet high ‘spoil pile’ at the edge of the excavation.”  According to the Secretary, “knowledge” of the violation was imputed to the employer by virtue of the fact that it was a supervisor who was engaged in the wrongful conduct.

The Court was asked whether it is appropriate to impute a supervisor’s knowledge of his own violative conduct to his employer, when so doing will relieve the Secretary of Labor of the burden to prove the “knowledge” element of a prima facie case? The Court found that answer to that question is no — that would not be appropriate.

In a footnote, the Court stated that:

“We say that a supervisor’s knowledge is ‘generally imputed to the employer’ because that is the outcome in the ordinary case. The ‘ordinary case,’ however, is where the supervisor knew or should have known that subordinate employees were engaged in misconduct, and not, as here, where the supervisor is the actual malfeasant who acts contrary to the law”.

Citing W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604 (5th Cir. 2006).

Relying on the Fourth Circuit opinion, in Ocean Electric Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir. 1979), the Court found that “[i]f a violation by an employee is reasonably foreseeable, the company may be held responsible. But, if the employee’s act is an isolated incident of unforeseeable or idiosyncratic behavior, then common sense and the purposes behind the Act require that a citation be set aside.” Id. at 401.

Our conclusion on this topic is that employers should look closely at any OSHA citations that are received, and consider the facts at issue from all angles. Be careful not to automatically accept liability just because a supervisor was involved in the violation.

By Craig B. Simonsen

The U.S. Department of Justice (DOJ) has recently announced the filing of a consent decree to settle a Clean Water Act (CWA) fill and dredge case for the Army Corps of Engineers (COE). The complaint and consent decree were filed in USA v. Trinski and Hohan, No. 07-C-3600 (N.D. Ill). The notice of lodging was published in the Federal Register on January 11, 2012.

In this case the COE inspected the “Triski Site” and found that the Defendants had, without a permit, deposited, or caused to be deposited, dredged and or fill material into the Nippersink Creek and adjacent wetlands. Under the proposed terms of the settlement, the Defendants will pay a civil penalty of $15,000. In addition, as a mitigation element of the settlement the Defendants will sign over 16 acres of property to the Fox Waterway Agency (FWA), and will perform eighty hours of grading, clearing, and excavating services for the FWA.