520 CMR 14.00 Excavation

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520 CMR 14.00Excavation Trench
SafetyRegulationsAn Introduction for Municipal
Administrators

• Commissioner Thomas G. Gatzunis, Department of
  Public Safety
• Commissioner Laura M. Marlin, Division of
  Occupational Safety

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(No Transcript)
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Background

• August 20, 1999 4-year-old Jackie Moore dies
  after being buried in freshly dug but unattended
  trench in a Bridgewater backyard.
• DPS takes action against excavators license.
  OSHA assesses penalties for failure to backfill
  trench and failure to provide safe means of
  egress.
• At the time of the accident, no regulations
  relative to trench safety for the General Public
  at unattended trenches existed in the
  Commonwealth.
• December 4, 2002 Legislature enacts legislation
  relative to excavation and trench safety, MGL c.
  82A.
• 1 authorizes DPS and DOS to promulgate regs and
  requires the U.S. Department of Labor/OSHA to
  certify.
• 2 provides for a permitting authority within
  municipalities and public agencies and
  establishes a permit requirement.
• 3 sets forth the permit contents
• 4 provides for definitions
• 5 establishes that the trench regulations
  complement and do not supersede the Dig Safe laws.

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History of the Regulations

• 02/21/2006 First draft of regulations submitted
  to U.S. Department of Labor/OSHA for approval
  pursuant to MGL c. 82A, 1.
• 06/28/2006 DPS/DOS notified by OSHA that draft
  regs likely to be preempted by federal law.
• 08/01/2006 DPS/DOS meet with OSHA to discuss
  regs
• 09/25/2006 Second draft of regulations submitted
  to OSHA.
• 12/14/2006 Final draft of significantly pared
  regs submitted to OSHA
• 02/27/2007 DOS/DPS notified that regs
  satisfactory (i.e. unlikely to be preempted by
  federal law).

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Scope Purpose of Trench Safety Laws c. 82A
520 CMR 14.00

• Two purposes
• Protect the General Public from hazards inherent
  in trenches and
• Provide for penalties for violations.
• The laws apply to Excavators and set forth
  actions excavators must take to protect the
  General Public.
• The law does not apply to worker safety.

Important
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When do these regulations apply?When there is a
trench, defined here as
made below the ground surface in excess of 3 feet
below grade,
An excavation which is narrow in relation to its
length,
UNATTTENDED
the depth of which is greater than the width, but
the width of the trench, as measured at the
bottom is not greater than 15 feet.
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How do the regs achieve the purpose of protecting
the General Public?

• Purpose To provide protections to the General
  Public from the hazards inherent in unattended
  trenches.
• Requires excavators to obtain a permit.
• Requires excavators to provide protections when
  trenches are unattended.
• Deters violations by authorizing the collection
  of fines.

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What are municipalities required to do?

• Establish a permitting authority.
• Require permits.
• Regulate their own municipal departments creating
  trenches.
• Shut down trenches where violations found.

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1. Municipalities are required to establish a
permitting authority.

• Required pursuant to MGL c. 82A, 2 and 520 CMR
  14.03(1).
• The permitting authority is responsible for
• The issuance of trench permits
• The collection of permit fees and
• The enforcement of protections for the General
  Public required by 520 CMR 14.04.
• The designation of a permitting authority may
  require action by Town Meeting.

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Who should a municipality designate as the
permitting authority?

• One board or officer (MGL c. 82A, 2).
• Cities and towns may designate through a Town
  Meeting Warrant Article.
• NOTE Cities and towns may also choose to adopt
  more stringent safety requirements through
  ordinance or by-law.
• DPS and DOS recommend the designation of an
  individual or board presumed to have knowledge of
  excavation safety already, such as
• A Local Building Commissioner or Inspector
• A Fire Chief or other Local Fire Department
  Official
• A DPW Director or
• A City or Town Engineer.

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2. Municipalities must require a trench permit.

• Permits are required whenever you are making a
  trench, as that definition applies.
• Note, however, that the Trench Safety regs must
  be read in conjunction with the Building Code.
• Excavations solely to place a foundation
  generally fall outside the definition of a trench
  (according to c. 82A) therefore they do not
  require a trench permit.
• Building Code and Trench Regs provide for many of
  the same General Public protections, with some
  exceptions.
• Finally, some excavations may require both a
  trench and a building permit.

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What is needed to obtain a permit?

• Required
• A completed application to excavate a trench and
• A certificate of insurance with general liability
  coverage of 100,000 per person and 300,000 per
  claim.
• (See MGL c. 82A, 2)
• Optional at discretion of municipality
• A reasonable permit fee.
• The purpose of the fee is to cover the
  administrative costs of reviewing and processing
  the permits.

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What information must the permit application
require?

• The requirements of the permit application are
  outlined in 520 CMR 14.03(4)
• Dig Safe number
• Name and contact information of the permit
  holder
• Name and contact information of the excavator(s)
• The permitting authority should realize that the
  specific excavator, competent person and person
  performing the excavation may change on complex
  projects. Therefore, information may be updated
  as necessary during the course of the project.
• Name of the competent person(s)
• Name of the person(s) performing the excavation
  of the trench
• Permit expiration date (where applicable)
• Specific location of the trench (pursuant to MGL
  c. 82A, 2)
• Name and contact information of the insurer and
• Statements required by MGL c. 82A, 3 relative to
  the requirement of familiarity with 520 CMR 14.00
  and 29 CFR 1926.650 (OSHA).
• The permit is similar to the Street Opening
  Permit and the application for a Trench Permit
  may be included with that application.

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Who must obtain a permit?

• ANY excavator, whether a public agency public
  utility municipal DPW, private company or
  citizen, who plans to dig a trench must obtain a
  permit.
• Permits must be obtained prior to beginning the
  excavation of a trench in or on any
• public way
• public property or
• privately owned land.

Exceptions exist for emergencies.
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Do excavators need a permit even in the case of
an emergency?

• Emergency an unforeseen condition in which the
  safety of the public is in imminent danger
  because of a threat to life or health or where
  immediate correction is required to maintain or
  restore essential public utility service.
• Emergencies relax the requirement for a permit
  before beginning to excavate, but not the
  requirement for a permit all together.
• Excavators must still obtain a permit from the
  permitting authority upon the first reasonable
  opportunity (i.e. business hours).

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3. Municipalities must regulate their own
municipal departments creating trenches.

• Municipal departments must adhere to the same
  standards of permitting and General Public
  protections as other excavators.
• Blanket permits for large projects may be
  authorized through the adoption of a local
  by-law.
• Key Specific location of the trench must always
  be on file with the permitting authority! (MGL
  c. 82A, 2)

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4. Municipalities are required to shut down
trenches where a violation is found and may take
other actions.

• Possible actions include
• Immediate shutdown by DPS, DOS, or local
  authorities for a serious threat to public
  safety.
• Post-hearing suspension or revocation of permit.
• Imposition by the DPS of further administrative
  fines against the excavator (MGL c. 82A, 1).

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What does the permitting authority look for at a
trench site?

• Is the trench unattended?
• Is the permit posted in plain view at the site of
  the trench?
• Whats plain view?
• The cabs of the hoisting equipment (so as not to
  block the view of the operator)
• The window of the construction trailer.
• Is the permit provided upon request?
• Have effective protections for the General Public
  been implemented?
• Does the information at the site match the
  information on the permit?

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When do permitting authorities order an immediate
shutdown?

• When the municipality finds
• A fatality or serious injury to the general
  public or
• A failure to use effective protections for the
  General Public as required by 14.04 or
• Any other condition that constitutes a serious
  threat to life, limb, or property of the General
  Public as determined by the Permitting Authority
  or
• The excavator failed to obtain a permit.
• Shutdown remains in effect until condition
  corrected to satisfaction of authority
  responsible for shut down.
• Reinspection required.
• Permit holder has a right to appeal immediate
  shutdown within 10 calendar days.

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What are effective protections for the General
Public?

• Protecting the General Public from unauthorized
  access to unattended trenches is as easy as
• A-B-B-C.
• Attendance
• Barriers
• Backfill or
• Covers
• All unattended trenches must be protected from
  access, whether on public ways, public lands, and
  private property.

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Effective Protections on Public Ways

• Requires covers or barriers when trench
  unattended.
• Covers must be steel plates no less than ¾ inches
  thick or equivalent and placed over the
  excavation or trench
• Barriers used instead of covers to secure an
  unattended trench shall be no less than 6 feet in
  height
• Barriers must be adequately stable and supported
  so as not to be blown over or easily moved
• No more than 4 inches shall be allowed between
  multi-sectioned barriers
• Barriers shall be placed so as to be unaffected
  by changing conditions (i.e. erosion, cave in) of
  the trench.

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Effective Protections at Fixed Worksites
Barricade at least 6 high

• Fixed work site work site that is not located on
  a public way where the excavation of a trench
  occurs.
• Covers, portable barriers, or backfilling
  required where trench is unattended
• Covers must be steel plates no less than ¾ inches
  thick or equivalent and placed over the
  excavation or trench
• Portable barriers shall be erected to preclude
  unauthorized entry, for example
• Placement of horizontal supports shall be on the
  inside of the barrier
• Barriers shall be at least 6 feet in height
• Spaces in fencing shall not exceed 4
• Barriers shall be clearly marked

No spaces in fencing
Horizontal supports on the interior
Photo from trench, looking out.
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Municipalities may also suspend or revoke a
permit after a hearing.

• Permitting authority may suspend or revoke a
  permit following a hearing, in addition to
  ordering an immediate shutdown.
• Individual permitting authorities shall establish
  their own grounds consistent with the Trench
  Regulations for revoking or suspending a permit
  holders permit.
• BUT NOTE Any suspension or revocation by the
  permitting authority must not be imposed in a
  manner that regulates worker safety!
• Hearings must be held in accordance with MGL c.
  30A (Massachusetts Administrative Procedure Act)
  and 801 CMR 1.02 (Informal/Fair Hearing Rules).

IMPORTANT!
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520 CMR 14.00 Excavation Trench
SafetyRegulation Recap

• What the regulations do
• Requires permitting authorities, which include
  municipalities and public agencies, to issue
  permits for the excavation of trenches on
  privately or publicly owned land within their
  jurisdiction.
• Sets forth the requirements for and content of
  permits.
• Authorizes the shut down of trench sites for
  failure to obtain a permit.
• Allows municipalities to charge permit fees which
  may be retained by the municipality for costs
  related to administration of the regulations.
• Establishes requirements for barriers and covers
  for use with unattended trenches.
• Allows for the permitting authority , DPS, or DOS
  to take immediate action to shutdown and order
  that a trench be made safe where unsafe
  conditions are found.
• Authorizes the Department to assess fines against
  excavators for allowing unsafe unattended
  trenches.

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Permitting authority may require more stringent
public safety provisions that do not conflict
with 520 CMR 14.00.

• Additional provisions are generally adopted
  through by-law or regulation.
• Examples
• Police detail requirement in the event of an
  immediate shutdown that requires reimbursement by
  the excavator.
• Mandatory inspection requirement.
• Blanket permit provision.

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Regulation Recap, cont.

• It is also critical to understand what the
  regulations do not require. The Trench Safety
  regs
• Do not require a trench permit for the excavation
  of building foundations (building permits are
  still required).
• Do not mandate inspections.
• Do not regulate worker safety already covered by
  OSHA (i.e. the use of trench boxes).
• Do not require a trench permit in the case of an
  emergency.
• Do not allow for the suspension or revocation of
  permits based solely on worker-related OSHA
  violations.

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14.02 Definitions

• Competent Person- A person or persons who is
  capable of identifying existing and predictable
  hazards in the surroundings, or working
  conditions which are unsanitary, hazardous, or
  dangerous to people, and who has authorization to
  take prompt corrective measures to eliminate
  them. A competent person must be able to
  demonstrate that he or she has been trained in
  and are knowledgeable about soil analysis, the
  use of protective systems and the requirements of
  this regulation.
• Emergency- An unforeseen condition in which the
  safety of the public is in imminent danger
  because of a threat to life or health or where
  immediate correction is required to maintain or
  restore essential public utility service.
• Excavator Any entity including, but not limited
  to, a person, partnership, joint venture, trust,
  corporation, association, public utility, company
  or state or local government body or public
  agency which performs excavation operations
  including the excavation of trenches.
• General Public All natural persons not engaged
  in the creation of a trench.
• Permit Holder The excavator who is responsible
  for acquiring a permit from the Permitting
  Authority.
• Permitting Authority A city, town, or public
  agency required to administer the provisions of
  520 C.M.R. 14.03.
• Public Agency A department, agency, board,
  commission, authority, or other instrumentality
  of the Commonwealth or political subdivision of
  the Commonwealth or two or more subdivisions
  thereof.
• Serious Injury - A personal injury that results
  in death, dismemberment, significant
  disfigurement, permanent loss of the use of a
  body organ, member, function, or system, a
  compound fracture, or other significant injury
  that requires immediate admission and overnight
  hospitalization and observation by a licensed
  physician.
• Trench An excavation which is narrow in
  relation to its length, made below the surface
  ground in excess of 3 feet below grade and the
  depth of which is, in general, greater than the
  width, but the width of the trench, as measured
  at the bottom, is no greater than 15 feet.
• Unattended Trench A trench where neither the
  permit holder, excavator, nor any of the people
  who work in or at the trench are present.