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The OSHA Competent Person

Course – Excavations

THE OSHA, STATE, AND LOCAL


EXCAVATION SAFETY PROGRAMS
Legal Stuff

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Excavation History

• All the other nations, therefore, except the Phoenicians, had double labor; for the
sides of the trench fell in continually, as could not but happen, since they made the
width no greater at the top than it was required to be at the bottom. But the
Phoenicians showed in this the skill which they are wont to exhibit in all their
undertakings. For in the portion of the work which was allotted to them they began
by making the trench at the top twice as wide as the prescribed measure, and then
as they dug downwards approached the sides nearer and nearer together, so that
when they reached the bottom their part of the work was of the same width as the
rest.

-- The Histories of Herodotus, The Persian Wars,


Book 7 Polymnia, c. 484 - 425 BC
OSHA Rights

• We need to make it clear that the right to a safe


workplace wasn’t bestowed upon us by concerned
politicians or employers who were finally convinced
that “Safety Pays.”
• The right to a safe workplace was won only after a
long and bitter fight by workers, unions and public
health advocates.
Our Right To Be Safe
The OSHA Excavation Programs
• Appoint a Competent Person
• Daily inspections of excavations
1926.651(k)(1)
• Enforcement of the OSHA Safety
Standards 1926.32(f)
• Conducts Hazard Analysis
1926.32(f)
• Provides Employee Training
• Emergency Action Plan (Rescue)
1926.35
• Protects Against Health Hazards in
Excavations 1926.55
What is a Competent Person

…means one who is capable


of identifying existing and
predictable hazards in the
surroundings, or working
conditions which are
unsanitary, hazardous, or
dangerous to employees,
and who has authorization
to take prompt corrective
measures to eliminate them.
The Competent/Qualified Person
• Billy Bob’s been doin
this job for 30 years
Must be: He’s competent.
• Experienced • Can BB pass OSHA’s
• Knowledgeable
• Trained CP’s test?
(Current)
• Authorized • Does BB correct
Training is
required to
• And designated
in writing as the
hazards.
CP/QP.
correct
common • Performance
• Does BB follow the
safety Based safety myths.
myths.
The Excavation’s Competent Person

• Is designated.
• Trains employees
• Classifies soil
• Selects cave-in protection system
• Conducts Inspections
• Knows about the hazards
• Knows the safety standards
• Enforces the safety requirements
The Excavation’s Competent Person

• May also need to be a:


• Certified Competent Person for Fall
Protection
• CP Ladders
• Certified Confined Space Supervisor*
• Qualified Rigger
• Certified Traffic Supervisor –
• Many State and Local laws require the
appointment and training of Traffic
Supervisors and Flagmen.
• OSHA – Manual Of Uniform Traffic Control
Devices.
The Excavation’s Competent Person

• OSHA Instruction CPL 2.87


Competent Person.
• CSHOs shall pay particular
attention to any person serving
in this capacity actually
possesses the capability of
identifying existing and potential
hazards for workers.
• They will give the CP a test.
CP Qualifications

• Must have formal training.


• Must be experienced.
• Government officials will
question qualification
• (OSHA, Judges, Juries, Police)
will evaluate the CP.
Competent Person – Performance Standard

• Experience alone does


not qualify the
designated employee as
a “competent person.”
• Superior Masonry
Builders, 20 BNA OSHC
1182 (No. 96-1043,
2005).
Competent Person – Performance Standard

• Where inspections are


insufficient to identify
a recognizable
hazard, the employer
is in noncompliance
with the requirement
that inspections be
conducted by a
competent person.
• DiGioia Brothers Excavating,
17 BNA OSHC 1181, 1184
(No. 92-3024, 1995).
Competent Person – Performance Standard

• (Inspector who permitted two


employees to work in an
excavation in which they were
exposed to safety and health
hazards that violated numerous
OSHA standards was not a
competent person); employer’s
safety inspectors who were not
capable of identifying… hazards
and applicable OSHA standards
are not “competent persons”).
• Ed Taylor Construction Co., 15 BNA OSHC
1711, 1717 (No. 88-2463, 1992)
Who To Appoint

WARNING:
Experience alone is
not adequate for a
competent person.
Training must be
provided.
Criminal Codes

•Warning: Many local,


and state
governments have
criminalized violations
of the excavation
standards.
Criminal Codes

• FORT WORTH. TX - An accident


caused the death of an employee
when a trench wall collapsed and
buried him. The job
superintendent and the company
were indicted on two
misdemeanor counts: falling to
cease excavation where evidence
of cave-in was apparent and
failing to shore the sides of a
trench when digging more than
five feet deep in unstable and soft
material.
Criminal Codes

• The company faced a


fine of $550,000.00.

• The Superintendent had


a jail term of six months
and a 250,000.00 fine.
Criminal Codes and Willful Violations

• The testimony of Lanzo’s


general superintendent that
protective measures were
not used because he
believed it was “safe
enough” indicates that Lanzo
chose to substitute its own
judgment for that of the
standard, an action which
clearly establishes
willfulness. See Conie Constr. Inc., 16 BNA
OSHC 1870, 1993-95 CCH OSHD ¶ 30,474 (No. 92-0264,
Criminal Codes and Willful Violations

• The supervisors chose to


substitute their belief for an
objective test. An employer who
knows the requirements of the
standard, but decides not to
comply, even if it believes its
approach provides protection at
least equivalent to OSHA’s
requirements, is still in willful
violation. Reich v. Trinity Industries, Inc., 16
F.3d 1149, 1152 (11th Cir. 1994).
OSHA Special Emphasis Program
Drive by Shootings
• “All compliance personnel shall be instructed to be on
the lookout for trenching or excavation worksites.”
• They have a right to inspect on sight.

OSHA Inspectors even


have a special test they
give workers who claim to
be the Competent
persons.
Employee Training

• OSHA Inspectors shall include an evaluation of the


effectiveness of the employer's inspection procedures
and training program…
Employees

• Must be trained
in recognition
and avoidance
of unsafe
conditions and
the
regulations
1926.21(b)(2).
The Regulations

• 1926 Subpart P –
Excavations
Hazards of Excavations

• Falls (egress from/to excavations).


• Loose rock or soil.
• Stability of adjacent structures
• Water accumulation.
• Hazardous atmospheres
• Mobile equipment
• Exposure to vehicular traffic
• Underground installations.
• Surface encumbrances.
Employee Training

• The 10- hour and 30 hour course is not


accepted as employee training. (Exhs.
R-L through R-Q; Tr. 473).
Employee Training

• Tool box talks alone is not adequate


training.
Employee Training

• The standard, however, requires each


employee is given the appropriate training.
• With regard to excavation training, Reynolds
offered no training documentation for laborers
Leicht and Shearn except for their
participation in tool box talks. (Tr. 470).
What Employee Training is Needed

• Employees are trained by a competent person in the


following areas:
1. Hazards associated with trenching and excavating
2. Soil identification
3. Safe slopes for different soil types and conditions
4. Proper installation and shoring
5. Stress patterns on trench walls from soil and spoil,
equipment, and vibration caused by equipment and traffic
.
What Employee Training is Needed

6. Effects of adjacent buried utilities, building foundations


and lengthy exposure to the elements on trench side walls
and other excavations
7. Effects on trench and excavation conditions from
severe weather, such as excess water, freezing
temperatures, unexpected heat or prolonged drying
8. Recognition of buried drums, containers, tanks, lines
and wells.
9. Role and authority of the competent person
Safety Training

• Myth - Employees underwent years of training and field


experience, and so they do not require extensive instruction
and supervision.
• Fact- Employers cannot count on employees’ common
sense, experience, and training by former employers or a
union to preclude the need for specific instructions. See, e.g.,
CMC Elec., Inc. v. OSHA, 221 F.3d 861, 865-66 (6th Cir. 2000); Ford Dev. Corp., 15
BNA OSHC 2003, 2009, 1991-93 CCH OSHD ¶ 29,900, p. 40,801-02 (No. 90-1505,
1992), aff’d without published opinion, 16 F.3d 1219 (6th Cir. 1994).
Safety Training

• The employer may


not “fail to properly
train and supervise
its employees and
then hide behind its
lack of knowledge
concerning their
dangerous working
practices.”) Danco
Construction Co. v. OSHRC,
586 F.2d 1243, 1246 (8th Cir.
1978)

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