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|Laws and Regulations > Lookback Reviews > Regulatory Review of 29 CFR 1926, Subpart P: Excavations
|Printing Instructions
Regulatory Review of
29 CFR 1926, Subpart P:
Pursuant to
Section 610 of the Regulatory Flexibility Act
and Section 5 of Executive Order 12866
Occupational Safety and Health Administration
Directorate of Evaluation and Analysis
Office of Evaluations and Audit Analysis
March 2007
Table of Contents
Executive Summary
1. Introduction and Background
1.1 Nature of the Review
1.2 Overview of Protective Systems Guarding Against Cave-Ins
1.3 Regulatory History
1.4 Requirements of the Excavations Standard
2. Industry Profile, Trends, and Issues
2.1 Background
2.2 Industry Sectors Affected by the Standard
2.3 Economic Performance of Industry Sectors
2.4 Developments in Technology
3. Fatalities
3.1 National Fatalities and Trends
3.2 Fatalities by Industry
3.3 Fatalities by Cause of Death
4. Compliance with the Standard
4.1 Compliance Violations
4.2 Penalties
5. Cost Analysis
5.1 Overview and Key Findings
5.2 Cost Analysis of Protective Systems
5.2.1 Sloping
5.2.2 Trench Boxes
5.2.3 Aluminum Shoring
5.2.4 Timber Shoring
6. Public Comments
7. The Excavations Standard and Small Businesses
7.1 Estimation of the Number of Small Businesses
7.2 Distribution of Firms by Number of Employees
7.3 Fatalities by Firm Size and Number of Workers on Site
7.4 Impacts on Small Businesses
8. Section 610 Review
Nature of Comments Received
9. Executive Order 12866 Review of the Standard
10. Summary and Conclusions
Appendix III: Crosswalk Between SIC Codes and NAICS Codes
Appendix IV: Outreach Materials
Executive Summary
On October 31, 1989, OSHA issued a final revised standard for excavation and trenching1. The revision updated the previous standard by simplifying many of the existing provisions, adding and clarifying definitions, eliminating duplicate provisions and ambiguous language, and giving employers added flexibility in providing protection for employees. In addition, the standard provided several new appendices. One appendix provided a consistent method of soil classification. Others provided sloping and benching requirements, pictorial examples of shoring and shielding devices, timber tables, hydraulic shoring tables, and selection charts that provide a graphic summary of the requirements contained in the standard.
This regulatory review of the Excavations Standard meets the requirements of both Section 610 of the Regulatory Flexibility Act and Section 5 of Executive Order (EO) 12866. Under Section 610, this review examines whether the standard should be continued without change, rescinded, or amended to minimize any significant impact on a substantial number of small entities considering the continued need for the rule, comments and complaints received, complexity of the rule, whether the rule is duplicative, and the degree to which technology and economic conditions have changed since its issuance. Under Section 5 of EO 12866, this review examines whether the standard has become unjustified or unnecessary as a result of changed circumstances, and whether the standard is compatible with other regulations or is duplicative or inappropriately burdensome in the aggregate. This review also ensures that the regulation is consistent with the priorities and the principles set forth in EO 12866 within applicable law, and examines whether the effectiveness of the standard can be improved. To assist OSHA in this review, OSHA requested public comments on these issues.
The Section 610 review of the standard finds the following:
OSHA's review of the Excavations Standard under Executive Order 12866 finds the following:
1. Introduction and Background
Excavation accidents and fatalities most frequently involve cave-ins of excavations or trenches, but also may result from a variety of other accident types, including machine accidents, falling objects, electrocution, vehicular accidents, explosions or fires, falls, drowning, and asphyxiation due to noxious fumes. In 1987, prior to OSHA's 1989 revision of the standards protecting workers in or near excavations and trenches, OSHA estimated the average annual number of excavation-related fatalities at 902. OSHA also estimated that the 1989 revision to the standard would reduce annual fatalities to 70 (a 22 percent reduction).
It now has been over ten years since the promulgation of the 1989 revision to the Excavations Standard. The purpose of this study is to "look back" and review the current standard, in accordance with Section 610 of the Regulatory Flexibility Act and Section 5 of Executive Order 12866, to determine whether the rule has functioned as intended, whether it could be simplified or improved, or whether it is no longer needed and should be rescinded.
The study methodology consists of evaluating the industries that conduct excavation and trenching activities, examining available literature and data on accidents and compliance issues, assessing trends in compliance costs, and considering issues raised by the public with respect to the standard. The remainder of this first chapter provides background information that is helpful in understanding the issues and analyses presented in this study. Section 1.1 discusses, in additional detail, the nature of the review. Section 1.2 briefly introduces and summarizes the basic types of systems available to protect workers from cave-ins of soil at sites where excavation or trenching activities are being conducted. Section 1.3 provides an overview of the history of the Excavations Standard. Finally, Section 1.4 describes the provisions in the current standard.
1.1 Nature of the Review
In 2002, the Occupational Safety and Health Administration (OSHA) began a review of its Excavations Standard under Section 610 of the Regulatory Flexibility Act3 and Section 5 of Executive Order (EO) 12866 on Regulatory Planning and Review4.
The purpose of a review under Section 610 of the Regulatory Flexibility Act:
"The Agency shall consider the following factors:
OSHA accepted written comments from August 21, 2002 through November 19, 2002. All documents and comments received relevant to the review and documents discussed in this report are available at the OSHA Docket Office, Docket No. S204A (now Docket No. OSHA-2007-0012), Technical Data Center, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, DC 20210, Telephone (202) 693-2350, http://www.regulations.gov
1.2 Overview of Protective Systems Guarding Against Cave-Ins
Most accidents involving excavations or trenching are the result of soil cave-ins. There are three basic types of systems used to protect workers from the danger of cave-ins: sloping, shielding, and shoring. Although the concept behind each system is relatively simple, differences in soil types and other job-related factors make the selection and implementation of an appropriately designed protective system a matter requiring judgment and qualifications.
The simplest manner of controlling cave-ins is to slope the walls of the excavation at an angle such that soil does not roll into the excavation. The degree of the sloping angle needed depends on the stability of the soil at the site. In more stable soils, the slope can be relatively steeper than in less stable soils and still be effective. Sloping must be greater if the areas near the excavation are subject to heavy loads (e.g., soil piles, vehicles).
Trench shields do not prevent cave-ins. Instead, they protect employees from cave-ins that might occur by providing sheltered space where employees may work. A typical shield consists of two steel plates separated by structural members to form a box open at the top, bottom, and both ends. The box is lowered into the trench so that the steel plates face the trench's side walls. Employees then climb into the protected area defined by the steel plates. As the work progresses, the box is dragged along the bottom of the trench by a chain or cable suspended from a backhoe above the ground.
Shoring systems are structures made of wood or metal members that press tightly against an excavation side wall to brace and support the sidewalls and thereby prevent cave-ins. Aluminum hydraulic shores consist of two vertical members that support opposite sides of a trench and at least one connecting horizontal member containing hydraulic fluid that is pumped up to exert pressure on the vertical members. Timber shoring achieves similar support but is constructed out of timbers at the excavation site based on job-specific requirements.
1.3 Regulatory History
Trenching and excavation in construction were first regulated in 1969. For almost two decades, trenching and excavation standards were discussed, reviewed, and subject to technical amendments. Following a public hearing and public comments, OSHA issued a new construction standard for excavation in 1989. The important developments leading to the current Excavations Standard are as follows.
In 1969, Congress amended the Contract Work Hours Standards Act (40 U.S.C. 327 et seq.) by adding a new section 107 (40 U.S.C. 333) to provide employees in the construction industry with a safer work environment and to reduce the frequency and severity of construction accidents and injuries. The amendment, commonly known as the Construction Safety Act (Pub. L. 91-54; Aug. 9, 1969), provided occupational safety and health standards for employees in the building trades and construction industry in Federal and federally-financed and federally-assisted construction projects.
In 1971, the Secretary of Labor issued Safety and Health Regulations for Construction in 29 CFR part 15185 under the Contract Work Hours and Safety Standards Act. Included in these regulations were safety standards for trenching and excavation. OSHA adopted the trenching and excavation requirements contained in the Construction Safety Act standard as an OSHA standard in 1971.
OSHA made several technical amendments to the trenching and excavations standards, codified in Subpart P, in 19726, after review by the Advisory Committee on Construction Safety and Health (ACCSH) and rulemaking.
Responding to continuing complaints concerning the adequacy of the standards in Subpart P, OSHA engaged the National Bureau of Standards (NBS) in 1976 to study the compatibility of the technical provisions in the standard with actual construction practices. During 1979 and 1980, six NBS reports were issued after extensive review and public discussion of recommendations. Industry sponsored a series of workshops during 1981 to discuss ways of implementing the NBS recommendations. NBS prepared final recommendations for technical changes to the standard incorporating comments from the workshops.
In 1982, OSHA developed proposed changes to the standard to address continuing excavation-related accidents, compliance problems, and public requests to update the standards. The proposal was modified to reflect review by the ACCSH, and an NPRM was published in April 1987 in the Federal Register7. The proposal updated the existing standard to simplify many of the existing provisions, add and clarify definitions, eliminate duplicate provisions and ambiguous language, and give employers added flexibility in providing protection for employees. In addition, the standard provided several new appendices. One appendix provided a consistent method of soil classification. Others provided sloping and benching requirements, pictorial examples of shoring and shielding devices, timber tables, hydraulic shoring tables, and selection charts that provide a graphic summary of the requirements contained in the standard. A public hearing was convened in October 1987.
On October 31, 1989, after receiving comments on its proposed standards, holding a public hearing, consulting with the ACCSH, and examining the costs of compliance for the construction industry, OSHA issued a final standard for excavation and trenching8. An amendment promulgated in 1994 provided that walkways crossing over excavations deeper than six feet must be supplied with guardrails9.
1.4 Requirements of the Excavations Standard
OSHA has published a number of documents that describe the provisions of the Excavations Standard for employers and employees in construction10. The standard applies to all open excavations made in the earth's surface, which includes trenches.
Protective Systems. To prevent employee exposure to cave-ins, the standard requires sloping or benching the sides of all excavations, supporting the sides of the excavation (shoring), or placing a shield between the side of the excavation and the work area. To address the complexities of designing a protective system based on the many variables that an employer can encounter, the standard provides several different methods and approaches, including four for sloping and four for shoring, including the use of shields. The standard does not require the installation and use of a protective system when an excavation is made entirely in stable rock, or is less than five feet deep and a competent person has examined the ground and found no indication of a potential cave-in.
If sloping is used as the protective system, the employer has the option of using a predetermined slope with an angle not steeper than one and one-half horizontal to one vertical (34 degrees measured from the horizontal). These slopes must be excavated to form configurations that are in accordance with those for Type C soil found in Appendix B of the standard. A slope of this gradation or less is considered safe for any soil type. Another option is to determine slopes and configurations using Appendices A and B. This approach allows the employer to determine the maximum slope based on site-specific variables.
Another design method that applies to both sloping and shoring allows the employer to use tabulated data, such as tables and charts approved by a professional engineer, to design the excavation. These data must be in writing and must include sufficient explanatory information to enable the user to make a selection, including the criteria for determining the selection and limits of the data. A copy of the information must be kept at the worksite during construction of the protective system. Upon completion of the system, the data may be stored away from the job site, but must be made available to the Assistant Secretary of Labor upon request. A final option allows an employer to use a registered professional engineer to design the sloping or benching system based on professional judgment.
The standard allows an employer to use shoring or a trench box or shield that is either designed or approved by a registered professional engineer or is based on tabulated data prepared or approved by a registered engineer. Timber, aluminum, or other suitable material may be used. The standard permits the use of a trench shield as long as the protection it provides is equal to or greater than the protection that would be provided by the appropriate shoring system. The requirements for trench boxes and shields allow employers more flexibility in design, but impose an obligation to follow manufacturer's instructions for pre-made boxes and shields once a design has been chosen.
Adjacent Structures. The employer must provide support systems, such as shoring, bracing, or underpinning, to ensure the stability of adjacent structures. Excavation below the level of a base or footing of any foundation or retaining wall is prohibited unless a support system, such as underpinning, is provided; the excavation is in stable rock; or a registered engineer determines that the structure is sufficiently removed from the excavation and the excavation will not pose a hazard to employees. The standard prohibits excavations under sidewalks unless an appropriately designed support system is provided.
Installation and Removal. The standard provides procedures for the protection of employees during the installation and removal of protective systems. The employer is also responsible for the safe condition of materials and equipment used for protective systems.
Materials and Equipment. The employer must ensure that materials and equipment are free from damage or defects, are used and maintained according to manufacturer's specifications, and are periodically inspected by a competent person. Unsafe materials and equipment must be removed from service.
Falls and Equipment. Employers must protect employees from secondary hazards by meeting the following requirements: keeping materials that might fall or roll into an excavation from the edge or install a retaining device; providing warning systems to alert operators of the edge of an excavation; removing loose soil or rock or installing barricades or their equivalent; prohibiting employees from working on faces below other workers unless adequately protected from falling equipment; and prohibiting employees under loads that are handled by lifting or digging equipment.
Water Accumulation. The standard prohibits employees from working in excavations where water has accumulated unless adequate protection has been taken. Water removal equipment must be monitored to ensure proper use. Diversion ditches or dikes must be used for prevention or drainage of water accumulation and must be inspected by a competent person after heavy rains.
Hazardous Atmospheres. The standard requires that a competent person must test excavations greater than four feet in depth or ones where oxygen deficiency or a hazardous atmosphere exist, before an employee can enter the excavation. If hazardous conditions exist, personal protective equipment must be provided and the conditions must be reduced to acceptable levels and periodically monitored. Emergency equipment must be provided, readily available, and attended. Harnesses and lifelines are required for employees entering bell-bottom pier holes and similar deep and confining excavation. An observer must be present to ensure that the lifeline is working properly and to maintain communication with the employee.
Access and Egress. The standard requires the employer to provide safe access and egress to all excavations. For trenches four feet or deeper, the standard requires adequate means of exit, such as ladders, steps, and ramps, at 25 foot intervals. If structural ramps are used by employees, a competent person must design them, or, if for vehicle use, the competent person must be qualified in structural design.
2. Industry Profile, Trends, and Issues
This chapter characterizes the industry sectors affected by the Excavations Standard and how they have changed since the standard's revision in 1989. Section 2.1 first provides background information on trenching and excavation activities and when they are necessary. Section 2.2 then identifies affected industry sectors. Section 2.3 characterizes the economic performance of these sectors since 1989. Finally, Section 2.4 discusses technological advances since 1989.
2.1 Background
Most types of construction require some excavation or trenching work for foundations, footings, or utilities. Excavations are necessary for foundations and footings as part of both building and non-building construction projects11. Trenches are narrow excavations and are necessary for installation or repair of water and sewer pipes, gas lines, electrical conduit, or other underground conduits or cables.
Installation of utilities accounts for the majority of trenching activities. The trenches for sewer lines and water lines present the greatest concern for cave-ins because of the depth of these excavations. Sewer lines are typically installed at depths of eight to 15 feet, with some installations as deep as 40 feet. Water lines are typically installed at depths of four to five feet, with some deeper installations in colder climates to prevent freezing. Gas lines, electric, telephone, and other conduits and cables tend to be placed in shallow trenches of about two feet deep.
Most new building construction projects require excavation for foundations and basements. The scale of these excavations ranges from basements for single family homes to city block excavations for major urban buildings. Heavy construction projects, such as for highways, bridges, dams, and sewage treatment plants, also require excavation work. Excavations for these types of projects vary widely in their size.
2.2 Industry Sectors Affected by the Standard
This section identifies and discusses the industry sectors affected by the Excavations Standard in terms of the Standard Industrial Classification (SIC) system12.
Affected Sectors in the Construction Industry
The vast majority of excavation and trenching work is performed by the construction industry. Firms that engage in excavation and trenching operations are primarily construction contractors. These firms are classified as general building contractors (SIC group 15), heavy construction contractors (SIC group 16), or special trade contractors (SIC group 17). Other industries, however, may utilize their own construction crews for trenching or excavation projects. For example, electric and gas utilities may use their own labor force for the trenching required for installation of pipes or cables. Public employees, primarily municipal public works departments, also engage in trenching or excavation projects. Exhibit 2-1 lists the four-digit SIC code industries that account for the bulk of trenching and excavation work.
Building construction requires two types of excavations: an excavation for the foundation and trenches for water, sewer, and other utility hookups. Building excavations are generally dug either by building contractors (SIC group 15) themselves, or by excavation contractors (SIC group 1794). Utility hookups are commonly performed by plumbing contractors (SIC 1711).
Exhibit 2-1
Relevant Construction Industry SIC Codes (15, 16, and 17)
Excavations for non-building projects include trenches for sewers, water mains, pipelines, and highway drainage systems. Trenching work is done primarily by so-called "utility contractors" (SIC 1623). Other heavy construction contractors as well as some special trade contractors (primarily 1794, excavation contractors, and 1711, plumbing contractors) also do utility work. Excavations for other types of non-building projects are usually performed by heavy construction general contractors (SIC group 16), or by excavation contractors (SIC 1794). Some special purpose excavations such as for outdoor swimming pools are done by contractors classified in SIC 1799 (Special Trade Contractors, N.E.C.).
Affected Non-Construction Industry Sectors
A number of industry sectors outside of the construction industry also conduct trenching and excavation activities on occasion. Exhibit 2-2 lists the SIC code and industry description for non-construction industries that are believed to engage in some excavation and trenching activities and are covered by the Standard.
Sectors Most Affected by Standard
Although numerous construction industry sectors and non-construction industry sectors are affected by the standard, this study focuses primarily on 12 sectors within the construction industry that collectively account for approximately 89 percent of excavation and trenching fatalities between 1990 and 2000 (as discussed in Chapter 3).
2.3 Economic Performance of Industry Sectors
Available statistics do not permit the direct measurement of excavation and trenching activities. Nevertheless, growth in these activities since the Excavations Standard was revised in 1989 can be surmised based on the following:
2.4 Developments in Technology
Traditional open-cut trenching methods require the use of protective systems, such as shoring and trench boxes, to prevent cave-ins. There has been incremental refinement in these manufactured systems since the enactment of the revised standard in 1989. For example, shoring has become less expensive, lighter, and more maneuverable. As manufactured systems have improved, the use of site-constructed timber shoring systems has declined.
The most significant technological development, however, has been the emergence of "trenchless technologies." This term applies to a wide range of construction methods used to install or repair pipes and cables without traditional open-cut trenching operations13. As discussed in more detail below, these methods typically involve some type of horizontal drilling, tunneling, or ramming. While open-cut trenching methods still predominate, the use of trenchless technologies has increased steadily since 1989, particularly in more highly-developed areas.
Trenchless operations substantially reduce the size of the excavation required at a particular job, thereby reducing the risk of killing or injuring workers or the public in construction-related accidents. Trenchless methods cost more than open-cut methods for most jobs, but they can be quite cost-effective for some jobs, particularly when the costs of disrupted activities (e.g., routine commerce) are considered, or when open-cut trenches would be difficult or costly to implement. For example, digging an open trench in a congested urban area can be expensive because a crew typically must dig around existing utilities and protect adjacent pavement and structures from collapse. Additionally, sidewalks, pavement, bricks, sod, and other surfaces must be repaired or replaced after the trench is closed. Most of the direct costs of the trenching operations are borne by the utility, but the community must bear the cost of disruption, delay, or damage - including traffic disturbances and delays, lost revenue to businesses, and lost tax dollars to government. Trenchless methods, by minimizing disruption, may reduce total costs in such instances.
Among the more common trenchless methods are the following:
Several related technological advances have improved the quality and decreased the cost of trenchless methods. These include newer, more precise guidance electronics; new pipe materials (such as high-density polyethylene [HDPE]) that are tough but flexible; cured-in-place pipe lining systems; and new pipe bursting tools. In addition, a variety of new technologies have been developed for repairing pipes. Robotic systems, for example, can make point repairs using special attachments for repairing leaks. Also, more effective materials are available to seal pipe repairs, such as acrylmide, acrylate, urethane gel, and polyurethane foam.
3. Fatalities
This chapter estimates the number and rate of excavation-related fatalities to help evaluate the effectiveness of the Excavations Standard with respect to preventing fatalities. Except where noted, all fatality data have been drawn from OSHA's Integrated Management Information System (IMIS) database14. The analysis of fatalities begins at the national level before considering individual industries and causes (i.e., types of accidents).
3.1 National Fatalities and Trends
During the eleven-year period 1990-2000, accidents involving excavations resulted in an annual average of 70 fatalities, or a total of 771 for the period as a whole. The actual number of fatalities each year varied within the range of 59-81. Exhibit 3-1 reports the number of fatalities occurring in each year.
In 1987, prior to OSHA's 1989 revision of the Excavations Standard, OSHA estimated the annual average number of excavation-related fatalities at 9015. Relative to this figure, the post-rule estimate of 70 represents a 22% reduction in the number of fatalities related to excavation since the promulgation of OSHA's revised standard. Moreover, this 22% reduction has been achieved as construction activity increased by 20% in real terms over this period.
Although the number of excavation-related fatalities per year remained fairly level during the 1990-2000 period, as shown in Exhibit 3-2, these data do not reflect the increase in annual construction activity that occurred during the same period. To gauge fatalities relative to the level of construction, the study divided each year's number of fatalities by the value of construction put in place for the same year16, thereby yielding a fatality rate. The fatality rate did decline over the period, as shown in Exhibit 3-3. In other words, although the annual number of fatalities remained fairly constant, the fatality rate decreased due to an increase in construction activity.
3.2 Fatalities by Industry
The 1990-2000 data show that excavation fatalities occur in numerous industries but are primarily concentrated in a relatively few. Twelve industries, all of which fall within the construction sector, account for approximately 89 percent of excavation-related fatalities. These industries include the following SIC codes (listed in order of the greatest to the least total number of fatalities over the 11-year period)17:
Text version of Chart
Chart Title: Exhibit 3-4: Fatalities by Industry, 1990-2000
Chart Type: Bar graph
Chart Elements: 13 - One bar for each SIC code showing the Total Fatalities
Chart Data:
The ranking of these industries changes somewhat when based on the fatality rate per 1,000 employees working within the designated SIC code18. Nevertheless, as shown in Exhibit 3-5, SIC 1623 continues to stand out with the number of fatalities substantially higher than the other key industries.
Text version of Chart
Chart Title: Exhibit 3-5: Average Fatality Rate by SIC per 1,000 Employees, 1990-1997
Chart Type: Bar graph
Chart Elements: 11 - One bar for each SIC code showing the Fatality Rate
Chart Data:
As shown in Exhibit 3-6, however, the fatality rate for SIC 1623 has a decreasing trend from 1990-1997 (which is not the case for SIC 1794 and some of the other industries).
Text version of Chart
Chart Title: Exhibit 3-6: Fatality Rate for SIC Code 1623, 1990-1997 (Water, Sewer, Pipeline, Communications, and Power Line)
Chart Type: Line graph
Chart Elements: 8 - One point for each year showing the Fatality Rate per 1,000 employees
Chart Data:
3.3 Fatalities by Cause of Death
Excavation fatalities may result from a variety of accident types, including cave-ins, machine accidents, falling objects, electrocution, car accidents, explosions or fires, falls, drowning, and asphyxiation due to noxious fumes. Exhibit 3-7 shows the relative proportion for each cause of death for the 1990-2000 period. As illustrated in the graph, approximately half of all excavation-related fatalities (approximately 48 percent) result from cave-ins.
Text version of Chart
Chart Title: Exhibit 3-7: Distribution of Fatalities by Cause of Death, 1990-2000
Chart Type: Pie Chart
Chart Elements: 10 - One piece for each cause of death showing the percentage
Chart Data:
4. Compliance with the Standard
This chapter evaluates compliance with the Excavations Standard at 29 CFR, Subpart P, §§1926.650-652 and appendices A-F, by evaluating violation data contained in OSHA's Integrated Management Information System (IMIS) database19. OSHA does not require employers to report an accident unless three or more employees have been hospitalized, an amputation has occurred, or a fatality has occurred. Therefore, only limited data are available on accidents that do not involve fatalities. Consequently, this study examines compliance by looking at accidents involving fatalities20.
Excavation accident reports and news accounts suggest, nearly universally, that compliance with existing safety standards would have prevented the accidents being described21. This hypothesis is largely supported by violation data contained in IMIS. These data indicate that OSHA found violations of the Excavations Standard in approximately 80 percent of the 771 cases of excavation-related fatalities that occurred between 1990 and 2000. While the reported data did not specify any violations for almost 20 percent of the reported fatalities, OSHA does not believe this implies full compliance with the Excavations Standard in these cases22.
The analysis of compliance first considers the types of violations associated with fatalities. It then reviews related information on monetary penalties associated with the violations.
4.1 Compliance Violations
This study found 1,149 violations associated with the 771 excavation fatalities reported during 1990-2000. (Many fatalities are associated with multiple violations.) Of these 1,149 violations, 565 violations (approximately 50 percent) are reported to have been a contributing factor to the corresponding fatal accident (see Exhibit 4-1)23. In fact, a key finding of this study is that OSHA has identified one or more compliance violations as a contributing factor in over 73 percent of the 771 fatalities examined. As explained above and in footnote 22, OSHA believes the true percentage is even higher. It seems reasonable to conclude, therefore, that the current standard, when met, is protective of worker safety. This does not imply, however, that the standard need not be modified, as it may be possible to revise the standard in a manner that would increase compliance.
To help evaluate the level of compliance, and the importance of compliance with individual provisions of the Excavations Standard, Exhibit 4-2 summarizes and classifies each provision in the standard with respect to the number of violations associated with, and contributing to, fatalities during the 1990-2000 period. Exhibit 4-3 summarizes this information graphically.
As can be seen from Exhibit 4-3, the sections of the standard that account for the most violations in the dataset include sections 1926.652(a), 1926.651(k), 1926.651(j), and 1926.651(c). These requirements, which are stated in the adjacent text box, are quite fundamental: protect employees in excavation; inspect the site daily; protect employees from loose rock or soil; and provide access and egress. In contrast, far fewer violations occurred with respect to some of the more specific provisions of the Excavations Standard, such as design of sloping and benching systems, design of support systems and shield systems, and protection from hazardous atmospheres. The fact that most violations occur with respect to the standard's basic requirements (as opposed to its more specific provisions) suggests that fatalities may result more from a failure to understand the risks or the failure to apply any safety systems than from a failure to install safety systems correctly.
4.2 Penalties
The average monetary penalty reported by section of the standard is shown in Exhibit 4-4. The amount of the initial penalty may be reduced (to the amount of the "current penalty") if the violator contests the violation or the associated penalty. Note that zero dollar penalties are included in the calculation of the averages.
Since 1987, OSHA has had in place a special emphasis program on trenching and excavation. For example, OSHA IMIS (Internal Management Information System) data identify 1,382 inspections of excavating contractors during 2000. These inspections include both Federal and State Plan inspections in SIC 1794 (Excavation Work), the SIC with the highest concentration of excavation work. These inspections resulted in 2,205 citations that totaled $1,907,593 in penalties. Four hundred sixty-five (34%) of these inspections found no violations.
This table omits penalties reported in IMIS if attributed to a subparagraph of the standard which can not be identified with certainty because of a typographical error in the IMIS data.
5. Cost Analysis
The objective of the "lookback" cost analysis is to assess the relative increase or decrease in the cost of required safety measures for excavation since 1990. If costs have increased substantially, then impacts on small businesses are likely to have increased over the period as well. Conversely, if safety-related costs have stayed constant or decreased in real terms, then impacts are not likely to have increased. The analysis and key findings are summarized in Section 5.1. Section 5.2 presents additional details on the comparison of costs.
5.1 Overview and Key Findings
The standard requires that walls and faces of all excavations or trenches should be guarded by a shoring system, safe sloping, or equivalent means of protection such as trench shields or trench boxes. This study estimates the 2001 cost of using the four most common types of protective systems: sloping, trench boxes, aluminum shoring, and timber shoring24. It then compares the current cost to the corresponding cost (inflation-adjusted) at the time the standard became effective in 199025. These findings are supplemented by research conducted on trends in the use of various types of safety equipment, including telephone discussions with members of government, trade associations, and vendors serving the trenching/excavation market.
The analysis finds that trench boxes, aluminum shoring, and the use of sloping were less expensive in 2001 (by about 10% in real dollars) than they were in 1990. Timber shoring may be more or less expensive today than previously, depending on the type and size of timbers used. In any event, however, timber shoring is used less frequently today than a decade ago26. Newer types of protective systems, including the various "trenchless" technologies, slide rail systems, and modular trench boxes, are being used with increasing frequency. Although the costs of these newer systems have not been examined for this study, it is reasonable to assume that each enjoys a net cost advantage over the older methods, at least in those situations where the newer systems are used.
The study concludes, therefore, that the protective systems available in 1990 (when the Excavations Standard was enacted) remain available today and, in fact, cost less in 2001 in real dollars. Furthermore, the entry into the marketplace of new types of protective systems has increased available options and likely has reduced the cost of meeting the standard.
5.2 Cost Analysis of Protective Systems
This section details the cost analysis of the four most common types of protective systems: sloping, trench boxes, aluminum shoring, and timber shoring. The analysis estimates and compares the current cost of each type of system to what the system cost when the Excavations Standard became effective in 1990. This approach implicitly assumes that firms would employ the same type of protective system today as a decade ago. In reality, as the relative costs of systems change, firms will tend to substitute the less expensive systems for the more costly ones. In addition, the analysis does not explicitly account for new technologies (e.g., trenchless technologies) that have, in fact, gained a share of the excavation safety market; these new technologies would not be used if they were not, on net, the most cost-effective option available for certain jobs. For both of these reasons, cost impacts are likely to be overstated by this study.
It is not always the case that cost is the driving factor in selecting a protective system. In some cases, site-specific or job-specific conditions may limit the available choices:
5.2.1 Sloping
The study analyzed the cost of digging trenches with sloped sides based on engineering cost data contained in RS Means cost guides27. For the years 1990 and 2001, the study reviewed the relevant guides to identify the combined equipment and labor unit cost (i.e., cost per linear foot) of digging ten different trenches. The trenches differ in slope (five different slopes, including the base case of 0:1 slope [or vertical walls]) and in width (half are 2 feet wide and half are 4 feet wide). All of the trenches have a depth of 10 feet. The analysis then restated the 1990 costs in 2001 dollars using implicit price deflators for U.S. gross domestic product (GDP).
The results of the comparison, presented in Exhibit 5-1 at the end of this chapter, show that the overall cost of trenching using sloping has decreased for all slopes and trench types. The decrease in cost per linear foot ranges from 2.3 to 5.5 percent, and reflects the net result of decreased equipment costs that are partially offset by increased labor costs.
5.2.2 Trench Boxes
The primary cost of using trench boxes consists of the cost of the trench box itself. Although there is some increase in the time required to trench using a trench box as opposed to not using any protective system, research conducted for this study indicates that the loss in productivity is not significant in most cases and, moreover, is comparable to the loss associated with using other protective systems (e.g., shoring). The study obtained trench box monthly rental costs for two different sizes of trench boxes (8 x 16 feet, and 10 x 20 feet) for 1989 and 2001 from Means cost guides28. The study also considered the total cost of a trenching job using each type of trench box, assuming a production rate of 90 linear feet per day (or 1800 linear feet per month)29. As necessary, the study converted costs to 2001 dollars using implicit price deflators for GDP.
The results of the analysis show that the cost of the smaller trench box has declined by approximately 25 percent over the past decade, while the cost of the larger trench box has increased by almost 20 percent. When considered within the context of the overall trenching job, however, these changes in trench box costs prove to be almost insignificant to the cost of trenching overall. Using either size trench box, the overall cost of trenching has declined over the past decade. The size of the decrease is over 3 percent if the small trench box is used and almost 1 percent if the large trench box is used. These findings are shown in Exhibit 5-2.
5.2.3 Aluminum Shoring
The analysis assumes a typical trenching job that uses aluminum shores involves three H-type shores, as well as one pump and associated accessories for the open length of the trench. Current costs were obtained based on vendor quotes30. Past regulatory studies provided information on the 1987 per shore purchase cost associated with a 9 (or 9.5) feet deep, 3-foot wide trench, as well as the pump and accessories31. Although there is some increase in the time required to trench using aluminum shores as opposed to not using any protective system, research conducted for this study indicates that the loss in productivity is not significant in most cases and, moreover, is comparable to the loss associated with using other protective systems (e.g., trench boxes). As necessary, the study converted costs to 2001 dollars using implicit price deflators for GDP.
This analysis, presented in Exhibit 5-3, estimates that the cost of aluminum shore equipment has declined by approximately 10 percent in real dollars since 1987.
5.2.4 Timber Shoring
Research conducted for this study indicates that timber shoring is the most expensive method and is only used when necessary (e.g., to keep an excavation open for an extended period of time). Disadvantages of timber shoring include cost, difficulty finding larger timbers, and risk of occupational injuries to workers handling the heavy timbers. The cost of using timber shoring as a protective system depends largely on the cost of the timber shores; other costs of digging trenches have decreased since the enactment of the Excavations Standard, as discussed above. The study analyzed the cost of timber shoring based on engineering cost data contained in RS Means cost guides32. The study converted costs to 2001 dollars when necessary using implicit price deflators for GDP.
As shown in Exhibit 4, the real price of lumber has decreased over the last decade, with the exception of the cost of large (8 x 8) timbers. The price also can vary with the type of wood available. Therefore, in many cases it may be less expensive to use timber shoring today than in 1989, but in other cases it may currently be more expensive.
2Percent change based on difference between shaded cells.
2Percent change based on difference between shaded cells.
6. Public Comments and OSHA Responses
As required by the Regulatory Flexibility Act, OSHA invited public comment on the Section 610 review of the rule by publishing a Federal Register notice requesting comments on the Excavations Standard (67 FR 54103, August 21, 2002). OSHA opened public docket S204A (now Docket No. OSHA-2007-0012) to hold this solicited information. A total of 20 commenters provided information to the docket (listed below in alphabetical order, with docket reference number):
These statements are supported by the facts found in this review. Furthermore, after reviewing the facts and comments, these statements support OSHA's conclusions for this lookback review. The annual number of trenching and excavation fatalities has declined from an estimated 90 fatalities per year prior to the enactment of the 1989 standard, to approximately 70 per year since 1990. As noted earlier, the 22% reduction was achieved as construction activity increased by 20% in real terms over this period. Therefore, in relation to increased construction activity, fatalities have been reduced by more than 40%. The real cost of protective devices such as shields has dropped, excavation activity has increased, and the number of small business engaged in excavation activities has increased. The evidence indicates that the large majority of deaths are contributed to by violations of the standard.
All this evidence as well as the comments support the view that the Excavation Standard is working to protect workers and has not caused negative economic impacts on small business or generally. These facts and comments demonstrate and it is OSHA's conclusion, that the Standard needs to be retained substantially unchanged.
OSHA enforces the standard generally and through various special emphasis programs, issuing substantial numbers of citations. OSHA has provided training and outreach materials. (See for example the card in App. IV available in Spanish as well as English). Over the years OSHA has issued many interpretations and the standard has been interpreted by the Review Commission and Courts.
The public has suggested a number of changes which the commenters believe will improve the Standard. These are discussed below along with OSHA's responses.
However, such suggestions, which OSHA welcomes, need to be reviewed in the context of a successful standard. OSHA has limited regulatory resources. Significant modifications to a standard take substantial agency resources which may well be better spent in areas where standards have not been updated and other safety matters could be addressed. Also, as some commenters have pointed out, changes in settled and interpreted regulatory language invariably lead to a period of uncertainty, further interpretations and litigation, which reduces the value of the changes, at least in the near term. OSHA values suggestions to improve its outreach and training materials and efforts, and as resources become available will update and extend those materials and efforts.
Opinions were more varied, however, with respect to how compliance rates could be improved and whether the standard should be revised. As discussed in greater detail below, some commenters argued that OSHA should increase its efforts to enforce the standard (AFSCME, Burson, Mickle, Trench Shoring Services). Other commenters stated that outreach, education, and training would be effective tools for improving compliance (ABC, AFSCME, AGC, Burson, Dotson, Duininck, NIOSH, NUCA). Although a number of commenters stated that the standard can and should be improved (BCTD, Burson, CTT, NUCA), or suggested specific improvements, several commenters opposed revising the standard (AGC, Mickle, Trench Shoring Services). Two commenters argued that changes would only serve to confuse those who now understand and follow the standard (Mickle, Trench Shoring Services).
None of the commenters stated the Excavations Standard should be rescinded as a whole, although two argued that the standard should be rescinded or substantially modified for a particular industry (NAHB, PLCA). In addition, no evidence was presented of economic hardship resulting from implementation of the standard.
The following are public comments, received on specific issues relating to the Excavations Standard.
Updating the Standard (General Opinions)
A number of commenters stated that the standard can and should be improved (BCTD, Burson, CTT, NUCA). Several commenters suggested specific improvements, as discussed later in this Chapter.
Several commenters argued against changing the standard (AGC, Mickle, Trench Shoring Services). Two commenters argued that changes would only serve to confuse those who now understand and follow the standard (Mickle, Trench Shoring Services). One stated that it is effective, clear, and easy to understand (AGC). Another stated that technological updates are provided with the manufacturer tabulated data, which are periodically updated by the manufacturers (Mickle). Another stated that the standard should be left as is until a significant effort can be made to revise it. This comment also noted a forthcoming meeting of the ANSI A10.12 Committee to review ANSI's excavations standard (Mickle).
One commenter argued that even though the standard could be made less complex, it is beginning to work because of the stability of the rules and the gradual simplification of related training. If the standard is changed substantially, then confusions and lack of clarity will be renewed for another decade (Trench Shoring Services). A similar comment warned that changes would only serve to confuse and discourage those who have studied and attended classes and are currently following the standard (Mickle).
Relative Burden of the Standard on Small Entities and the Industry in General
Most of the comments that addressed the issue of regulatory burden on small entities or on industry as a whole indicated that the standard did not impose an unnecessary or disproportionate burden on small businesses or on industry in general (Burson, Mickle, Trench Shoring Services). One commenter stated that trench boxes are not expensive pieces of equipment even for small contractors (Mosser Group). Two stated that the standard resulted in a level playing field for large and small contractors (Mosser Group, AFSCME). Others suggested that by reducing accidents, the standard may improve productivity (AGC, Burson). Another argued that any burden could not be considered unnecessary until there are no more injuries, deaths, or exposure to the potential of injury (Trench Shoring Services).
One commenter agreed that the standard was not a burden on industry, but assumed that the standard resulted in cost pressures on smaller firms (ABC). Another stated that an unnecessary burden on small contractors results from two specific aspects of the standard (as discussed in more detail later in the chapter): OSHA enforcement efforts, and the rescue equipment required by Section 1926.651(g)(2) (NUCA).
Causes of Non-Compliance
Commenters cited three main reasons contractors do not always comply with the standard. The most commonly cited cause was inadequate supervision by contractors that know about the standard (Burson, Mickle, Trench Shoring Services, AFSCME). Similarly, an additional commenter stated that non-compliance is due to lack of self-enforcement by some companies (AGC). Another indicated that, while not pervasive, there is a problem when supervisors themselves are not following the standard (ABC).
The second reason cited for non-compliance was lack of information or adequate training (ABC, AFSCME, Kundel, Mickle). One commenter stated that most small firms and infrequent excavators know of OSHA, but not the specific requirements (Mickle). Another stated that non-compliance is an issue for small contractors and non-union workers, who may not realize that doing things the right way ultimately will save them time and money (Kundel).
The third reason cited as a cause of non-compliance was cost pressure (ABC, AFSCME, Mickle). One commenter stated that cost pressures are a significant factor for those who are not properly capitalized in the first place and that, for them, safety is the first thing to go. This commenter opined that it would be very difficult to modify the standard to reduce costs without reducing worker protection (Mickle). Another commenter suggested that firms that do not comply with the standard have a competitive advantage over those that comply (ABC).
Other commenters, however, suggested that compliance with the standard reduces costs. One commenter stated that the use of trench shields and shoring enables contractors to get more production because it establishes a rhythmic, assembly-line type pattern to the job (Kundel). Another suggested that proper training in the use of safety equipment increases productivity (Burson). Several commenters stated that compliance costs will vary based on specific job conditions, including the size of the excavation, soil type, structures and other improvements, environment, and crew qualifications (Burson, Mickle, Trench Shoring Services, AFSCME).
Finally, NIOSH reported that, based on analysis of FACE investigations, compliance barriers are related to factors associated with company policies rather than the actions of individuals, as evidenced by the lack of pre-job hazard analyses and the lack of installation of protective systems. NIOSH also stated that many firms do not have adequate safety programs and the incidence of this is correlated with firms with fewer than 11 employees.
OSHA's enforcement experience indicates that some employers may be aware that OSHA has a standard for trenching and excavation safety, but may lack familiarity with its specific requirements, thereby exposing their employees to various hazards. However, OSHA does have extensive outreach programs to bring excavation requirements to the attention of small businesses and construction employers.
Several commenters suggested that OSHA should increase enforcement efforts in order to achieve higher compliance levels (AFSCME, Burson, Mickle, Trench Shoring Services). One stated specifically that OSHA should increase the number of inspections (Burson). Two commenters suggested that criminal prosecution may be necessary (Burson, Mickle). Another commenter stated that 80 percent of the excavation sites visited use no protective systems at all, even though there is awareness that a standard exists. This commenter stated that there are no significant measures for additional protection that would make a difference in the current level of compliance other than enforcement (Trench Shoring Services).
Several commenters raised issues with enforcement practices. One stated that OSHA inspectors should not substitute their judgment for that of the project supervisor, presumably a competent person; that care is required before using lab tests to verify or contradict field tests or evaluations; and that fines for violations should be used only for egregious violations or as a last resort (Duininck Bros).
NUCA asserted that an unnecessary financial burden on small contractors results when OSHA compliance officers and area directors are overzealous or not thoroughly versed in the standard. For example, according to the commenter, some area offices still issue violations to contractors for not having protective systems designed by a registered professional engineer even though the tabulated data for the trench box or other protective system (which is approved by a registered professional engineer) clearly indicates that it is adequate. This results in unnecessary consultations with attorneys and engineers, and in inconsistencies in compliance, enforcement, and training efforts around the country. Also, a trench that measures 5 feet 3 inches in a few spots due to land contour, or an excavation with a slope just short of 1½:1 in Type "C" soil, should not warrant a written violation as it is a minor infraction that would not cause the trench or excavation to be less stable (NUCA).
OSHA does extensively enforce the Excavations Standard, as the data in Chapter 4 demonstrate. The Agency has had special emphasis programs in place since 1987, and OSHA also has in place a policy to inspect every regulated trench identified by Area Offices. OSHA inspects excavation contractors of all sizes. Congressional limitations on inspections of small employers just apply to general schedule inspections of employers with ten or fewer employees in industries with below average injury rates; injury rates are above average for excavation contractors. While OSHA imposes civil penalties for violation of the standard, OSHA can only recommend criminal prosecution; the Department of Justice makes the determination, and there are strict statutory requirements for criminal prosecutions.
OSHA does not agree that "(e)nforcement and penalties should be the last resort." We believe that a strong enforcement program is the underpinning for a successful outreach program and compliance. We strongly agree, however, that training and education programs and other outreach assistance significantly enhance worker safety and are to be encouraged; OSHA is willing to do whatever it can to develop, provide and support such outreach.
OSHA does have programs in place through training and manuals for uniform and reasonable citation policies by its compliance officers. OSHA is in the process of developing a new field audit program to help ensure enforcement consistency.
Education, Training, and Outreach
A number of commenters indicated that education, training, and outreach for contractors and for employees would be effective methods of improving compliance with the standard (ABC, AFSCME, AGC, Burson, Dotson, Duininck, NIOSH, NUCA). Several suggested it would be effective for smaller businesses (ABC, AGC, NIOSH), and one suggested it would be effective for minority contractors (AGC).
Several commenters suggested that OSHA use certain methods or distribution techniques:
There were a number of specific suggestions on outreach. The AGC suggested that "OSHA should extend its outreach programs to assist contractors in identifying the safest most efficient method of compliance with the standard. Cost pressures...require more assistance from OSHA to provide educational and outreach programs to small and minority contractors." They went on to list several examples of safest/most-efficient compliance methods:
Also, utilizing adequately designed trench shields for a deep sewer project requires a larger excavator to pull and lift the trench shields in and out of excavations. The deeper the cut, the more the trench shield must weigh to support the load.
The safety cost of the project generally increases with the following variables; pipe size, type of pipe, right-of-way easements and soil type.
Marketing to media is another cost-effective way of educating the public on the hazards of excavation."
NIOSH provided a comprehensive response regarding increasing awareness of the standard, including a number of specific recommendations. They began by noting that of the 30 FACE investigations of trenching or excavation-related fatalities, the "[d]ata on employers' knowledge or awareness of complying with safety standards...[Showed that] [m]ore than half (17) of the employers had a written safety and health program...however, the FACE investigations do not provide enough detail to determine if these programs included information on trenching hazards or compliance with the excavations standard..." But NIOSH found that "[a]ll the employers with written safety and health programs had 11 or more employees". NIOSH then recommended "that OSHA promote employer awareness by increasing outreach, training, and education to smaller businesses ...." As already pointed out OSHA agrees that increased outreach and training, particularly among small employers, are important elements in addressing the problem of trench-related fatalities. Indeed, in 2004, ACCSH established a workgroup to investigate feasible and effective measures to address the problem. The workgroup is charged with devising workable recommendations that might be provided to the Agency for consideration.
Bid Practices
Commenters noted that most bids do not require any specific safety measures, plans or compliance certifications (ABC, NUCA). One commenter agreed that there is no national consistency in the use of the standard as a component of bid documents in public or private projects, but the commenter stated that this would seem fairly easy to achieve in projects that are federally-funded (Trench Shoring Services). Another commenter stated that although several states have attempted to enact bills requiring this, it is not a particularly popular item for legislation (Mickle).
Other commenters described their perception of the effects of this lack of standardization. For example, one commenter suggested that it leads to a competitive advantage for firms that do not comply with the standard, and ultimately to a shrinking pool of safety-conscious companies bidding on municipal projects (ABC). Along similar lines, another commenter stated that when safety requirements are included in bid documents, this encourages compliance with the standard, and when bids do not explicitly address safety issues, there is a lower likelihood that the project owner will inspect for safety (Burson).
Commenters offered the following suggestions with respect to bid practices:
Competent Person
Several commenters argued that the qualifications of a "competent person" should be made more explicit (AFSCME, BCTD, TCP)33. One of these suggested that each competent person should be trained and have a card with the date issued, date of expiration, name, and photo. The card would be issued only after the person passed an excavation safety course with a score of 80 percent or better. It would expire in two years unless refresher training and re-testing occurs (TCP). Another commenter agreed that the standard should define what training is necessary to qualify someone as a competent person. This commenter, suggesting a relevance to excavations, cited a study of scaffold competent persons that found that (1) most scaffold competent persons had no scaffold safety training, and (2) the scaffolds overseen by those who had received scaffold safety training were safer than those overseen by untrained competent persons (BCTD).
Several commenters suggested expanding the role of the competent person. For example, two commenters pointed to requirements in the U.K. and recommended that competent persons should be required to document and submit reports of daily inspections and corrective actions taken. This record would be useful to identify trends and to assist in re-training (BCTD, NIOSH). NIOSH also stated that under the U.K. construction requirements, the competent person supervises the installation, alteration, or removal of excavation support. AFSCME stated that a competent person is not assigned to all excavation jobs, and that many employers are not aware that a competent person must inspect each site before work begins. Sometimes a senior person or equipment operator assumes the competent person role even if that person is not qualified (AFSCME). Two commenters noted the importance of the job of competent person in protecting workers (Mickle, NIOSH). NIOSH recommended enhanced training or accountability or expansion of the competent person's duties, given that injuries occur even when trenches have been inspected by competent persons.
OSHA has issued several interpretations in recent years that address the requisite knowledge for competent persons in the context of other standards and in general address the public suggestions. In an August 1, 2000, interpretation, OSHA explained that:
"In order for an employee to assess if a scaffold can withstand the additional, wind-imposed forces from being enclosed, the individual must be a competent person, which in this case means having specific training in and being knowledgeable about the structural integrity of a scaffold and how the loads imposed by a trap enclosure can affect that integrity."
"Note that in Superior Masonry Builders, OSHRC Docket No. 96-1043 (July 3, 2003) the Occupational Safety and Health Review Commission ruled that an experienced lead laborer who lacked training on the use of wind enclosures was not a "competent person" for purposes of inspecting the scaffold for hazards it stated:
'Under Commission precedent a person is found to be competent when he [or she] makes an inspection in a competent manner and makes a reasonable determination that the condition is safe. Superior argues that the lead laborer designated as its competent person was an experienced skilled tradesman who exercised his judgment based on his training and experience. However, experience alone does not qualify the designated employee as a 'competent person.' We find that the lead laborer was not properly trained and therefore was not a competent person. The evidence shows that he was not instructed about the specific hazards presented by attaching enclosures to scaffolding and thus was not capable of identifying hazards... [Citations omitted.]
It was suggested that OSHA could strengthen the standard by requiring that a competent person document the findings from the excavation inspection. This suggestion is based on the example of the United Kingdom, where inspections and corrective actions are required to be documented.
In general, the standard currently requires protective systems to be used in all excavations 5 feet or deeper. If a trench is less than 5 feet, a protective system is required except where a competent person finds that it is unnecessary. In the Agency's experience, most fatalities occur in excavations 5 feet or deeper in which no protective system is being used. In those cases a competent person determination was not needed to trigger the requirement for using a protective system. Therefore, with respect to reducing fatalities, it seems unlikely that the type of competent person documentation requirement suggested would reduce the number of these types of accidents. Also the Paperwork Reduction Act makes it difficult for OSHA to increase paperwork requirements in those circumstances (i.e., in situations where the information collected has an uncertain relationship to the prevention of workplace accidents.).
Excavation Equipment and Trucks
The Building and Construction Trades Department of the AFL-CIO (BCTD), in a comment also supported by the IBT, claimed that 10 percent of trenching deaths are related to excavation equipment or trucks and that additional protection is needed in this regard. One such measure could require the establishment of controlled access zones in the vicinity of excavation equipment working near or in trenches. Only essential workers would be allowed in the controlled access zones. In addition, spotters should be mandatory to alert the equipment operator and protect these workers. It also stated that the existing requirement that allows only employees "qualified by training or experience to operate excavation machinery and equipment" (29 CFR 1926.20(b)(4)) is too vague and does not require certification of training, such as is required for forklift operators in 29 CFR 1910.178(l). AFSCME also recommended enhancing protections related to work zone safety requirements where excavation work is conducted in traffic areas.
This comment raises the possibility that one of the hazards associated with excavation work, powered excavation equipment running forward and hitting workers or collapsing a trench, may not be adequately addressed by the existing standards. Subpart P does not address the hazards described. 29 CFR 1926.601(b)(4)(i) and 1926.602(a)(9)(ii) address the hazard of excavation equipment and trucks with a restricted rearward view striking workers. However, the scenarios described by BCTD include struck-by hazards where the equipment is not backing up. OSHA will consider a suitable way to respond to these hazards, as well as swing radius. It may be appropriate to propose an amendment in Standards Improvement Project III to address these issues.
Hazardous Atmospheres
Three commenters addressed the related issue of confined spaces, as discussed in this paragraph. One commenter stated that 1926.651(g)(1)(iii) requires taking action when an atmosphere containing flammable gas is 20 percent of the lower flammable limit of the gas, while the confined space standard requires taking action at 10 percent. The commenter urged OSHA to provide a clarification and change the requirements so they are similar (NUCA), claiming that OSHA stated, in a March 23, 1993 letter to NUCA, that "under normal circumstances, a trench would not be considered a confined space" because the Excavations Standard addresses the issue of hazardous atmospheres. NUCA stated that OSHA should clarify that the Excavations Standard did not intend for trenches to be considered confined spaces. An unnecessary financial burden falls on contractors when owners do not recognize the distinctions and require contractors to treat trenches like permit-required confined spaces, which is not practical or required (NUCA). A second commenter suggested that OSHA consider combining the excavation and confined spaces requirements in one standard for ease of use (ABC). Finally, a third commenter suggested that the provisions be reviewed to see if they are useful or burdensome (Duininck Bros).
OSHA is conducting rulemaking for a confined space standard for construction. One of the issues being addressed in that rulemaking is whether that new standard should apply to excavations. When the confined space proposed rule is published the public will have an opportunity to comment on this issue.
Emergency Rescue Equipment
NUCA suggested that 1926.651(g)(2)(i) could be removed without jeopardizing safety, because it creates an unnecessary financial burden and does not reduce excavation accidents. Workers, few of whom are trained to jump into a confined space in a rescue attempt, should not be encouraged to do so. Rescue operations in these types of situations are better left to experienced and trained rescuers and emergency response teams that are adequately equipped to handle these situations. NUCA also suggested that this requirement would be disproportionately burdensome on small contractors by expecting them to purchase rescue equipment that is not likely ever to be used and to provide rescue training to all workers (NUCA).
The preamble to the final rule (Oct. 31, 1989, 54 FR 45921-45922) points out that during the rulemaking for this subpart, OSHA received a great number of comments on this provision which the Agency weighed before adopting the provisions.
NUCA's comments are, in essence, that having such equipment on site does not add to safety because construction employees are normally not trained to do rescues, and that this work should be left to outside emergency responders. In a March 23, 1992 OSHA interpretation letter to Mr. Kennedy of NUCA, OSHA stated that reliance on a off-site rescue service to provide rescue if needed would not be considered a substitute for compliance with this provision.
Subsequently to the issuance of that letter, in 1994, OSHA enacted a confined space standard for general industry (which does not apply to construction). Under that standard, employers can choose to rely on an outside rescue service if certain conditions are met. OSHA will re-evaluate the 1992 letter to Mr. Kennedy in light of the policy embodied in the 1994 general industry confined space standard.
Timber Shoring
One commenter stated that Appendix C on timber shoring should be deleted from the rule, as no one uses timber shoring anymore; however, if it is retained, then the formula at the top of each table should be explained. This commenter noted that the numbers for lateral earth pressure in the tables are not mentioned anywhere else in the standard; in addition, the pressures of 25, 45, and 80 psf are arbitrary, and numbers of 20, 40, and 80 psf are more realistic (Burson).
Another commenter urged that the rule continue to address timber shoring (Trench Shoring Services). This commenter stated that timbers are still used, although the frequency has decreased over the last decade and will continue to decrease over the next decade. In contrast to manufactured systems for which "tabulated data" are available, timbers lack any similar resource apart from the Excavations Standard; consequently, it is important that the standard serve as a readily-available archive of tables and charts in case timbers are chosen. The standard charts for timbers should be clarified, however, by removing the relationship to A, B, and C soil and maintaining the relationship to the actual earth pressures the charts are based upon. The contractor can then select the applicable chart based upon actual earth pressure rather than textural classification. This requires no modification to the chart engineering because the earth pressure is already noted and qualified with each chart (Trench Shoring Services).
OSHA's information and experience is that timber shoring is still in use. With respect to the lateral earth pressures, the Agency will investigate the commenter's suggestions.
Soil Types
A commenter stated that Appendix A, Soil Classification, should be re-written so that it is simpler and less difficult for people in the field to understand and use. The TSSA Classification of C-60 should be added. Classification C-60 should be called something else (maybe B-, or BC), however, because the standard should not specify an earth pressure for each type of soil. The C-60 definition is simple and easy to understand, while the A, B, and C definitions are too complicated (Burson). A few other commenters made similar suggestions.
As discussed extensively in the preamble to the final rule (Oct. 31, 1989, 54 FR 4536-45942), the soil classification system in Appendix A was developed by the National Bureau of Standards (now the National Institute for Standards and Technology), and included several additional ASTM standards to supplement the classification system. The commenters have not provided sufficient new information to justify a reconsideration of the provision.
Applicability to Homebuilding
The National Association of Home Builders (NAHB) commented on the applicability of the standard to homebuilders. NAHB stated that once foundation walls are in place on a residential structure, the area between the wall and excavated soil is a trench and, under the terms of 1926.650(b), triggers the requirements of the Excavations Standard. In many instances, according to NAHB, it is not possible to use sloping or benching methods correctly due to adjacent property lines, structures, utilities, sidewalks, streets, curbs and gutters, protected environmental areas or other similar obstructions.
OSHA believes there is no need to change the standard. OSHA issued a memorandum of interpretation, dated June 30, 1995, clarifying those matters and resolving the issues raised by NAHB.
Applicability to Welded Steel Natural Gas and Liquids Cross-Country Pipelines
The Pipe Line Contractors Association (PLCA) requested that OSHA consider exempting welded steel natural gas and liquids cross-country pipelines from the Excavations Standard or, in the alternative, to promulgate different standards that are tailored to the "continuous excavations" common to the mainline pipeline industry. PLCA claims that there has not been a single construction worker employed by PLCA members killed in any excavation failure or cave-in incident in the last ten years. This lower risk is a consequence of the shallower and constant depth of the excavation, the relative experience of the skilled crews (e.g., welders) working in the trench, the fact that most labor is performed outside the trench, the higher chance of noticing changes in soil in a constant excavation, and the contractor's incentive to avoid re-excavation of the trench after a collapse.
OSHA will seek additional information on this issue as resources permit. It is a technical matter which requires consideration of many different issues and views.
New Technologies
One commenter stated that there have been incremental improvements and cost reductions in the manufactured protective systems for open excavations (e.g., lighter weight, more maneuverable, able to cross utilities), but no new concepts or technology since the current standard was enacted. The biggest change is the acceptance of manufactured systems as alternatives to site-built systems such as timbers. Developments in trenchless technologies have occurred but do not impact the current standard (Trench Shoring Services). Other commenters noted that directional boring machines, tunneling systems, and other trenchless technologies have their own set of hazards (BCTD, Kundel, Mickle). During construction, an operator does not always see what lies in the way (e.g., a gas or water line can be ruptured). Further, the work is slow and not always accurate. After construction, there could be unseen voids left behind, which could lead to collapse (Kundel). One commenter suggested that OSHA revise the standard to address directional boring machines, tunneling systems, and other trenchless technologies (BCTD).
NIOSH raised the issue of remotely operated electronic video-monitoring equipment (e.g., sewer cameras), which may reduce the amount of time spent in trenches and underground work areas but also may have inherent hazards in flammable or explosive atmospheres, as addressed in a recent OSHA memorandum (NIOSH).
Many of the above recommendations and new technologies can be accommodated in the current Standard because of its flexibility. The Standard is performance-based (though it does provide specific requirements that an employer may follow and be in compliance). This means the Standard is adaptable to changes in technology.
Notification of Gas Line Ruptures
After excavators struck and ruptured an underground natural gas pipeline, and a fatal explosion resulted, the National Transportation Safety Board (NTSB) recommended to OSHA that OSHA "require excavators to notify the pipeline operator immediately if their work damages a pipeline and to call 911 or other local emergency response number immediately if the damages results in a release of natural gas or other hazardous substance or potentially endangers life, health, or property." OSHA issued a Safety and Health Information Bulletin (SHIB) 03-05-21, "Hazards Associated with Striking Underground Gas Lines," in response to this NTSB recommendation. In that SHIB, OSHA recommended "notifying the pipeline operator immediately if the excavator causes damage to a pipeline and to call 911 or other emergency response numbers if the damage results in release of natural gas or other hazardous substance." However, NTSB responded to OSHA's SHIB recommendation, stating that OSHA's SHIB recommendation can serve as a helpful reminder to contractors, but that OSHA requirements are more likely to be followed. OSHA then informed NTSB that its recommendation to require excavators to take immediate actions would be considered during OSHA's Section 610 review of the Excavations Standard.
Since then, the "Pipeline Inspection, Protection, Enforcement, and Safety Act (PIPES) of 2006" has been enacted. Section 2 of PIPES requires all persons (including employers) engaged in demolition, excavation, tunneling, or construction to immediately call 911 if: (1) they damage a pipeline that may endanger life or cause serious bodily harm or damage to property; and (2) such damage results in the escape of flammable, toxic, or corrosive gas or liquid. The enactment of PIPES may obviate the need for OSHA to promulgate a standard implementing the NTSB's recommendation. It also may affect OSHA's authority to issue such a standard. OSHA will monitor the implementation of the statute and consider whether amending the excavations standard as suggested by NTSB is necessary and appropriate.
7. The Excavations Standard and Small Businesses
This chapter of the review focuses on small businesses affected by the Excavations Standard. Section 7.1 begins by characterizing the number of small businesses affected by the standard. Next, Section 7.2 provides a further breakdown of affected firms by considering various ranges in the number of employees. Section 7.3 relates fatalities to firm size by, first, estimating the distribution of fatalities and the fatality rates for firms in different employment ranges and, second, by estimating the distribution of fatalities by the number of employees at the site. Section 7.4 describes the economic impacts of the standard on small businesses.
7.1 Estimation of the Number of Small Businesses
This study estimates the number and proportion of small businesses based on size standards established by the Small Business Administration (SBA). The SBA size thresholds for the 12 sectors of interest are stated in terms of annual revenue and are presented in Exhibit 7.1. However, because firm revenue data are not available, this study uses an alternate definition of small firms, based on employment. Specifically, firms are considered small if they have fewer than 500 employees. The SBA's Office of Advocacy often classifies firms with fewer than 500 employees as small34. Therefore, to estimate the impact of this rule on small businesses, this section analyzes the growth in the number of firms with fewer than 500 employees between 1989 and 1998. (Information on the construction industry is available only through 1998 using the SIC system, as discussed in Chapter 2.)
Small Business Administration.
Text version of Chart
Chart Title: Exhibit 7-2: Number of Firms with Fewer than 500 Employees (1989-1998)
Chart Type: Line Graph
Chart Elements: 12 - One line for each SIC code with points showing the number of firms for each year
Chart Data:
Analysis of data for each of the 12 relevant SIC codes shows that the Excavations Standard has not adversely impacted small businesses. Not only has the number of small firms increased in each of the SICs between 1989 and 1998, as shown in Exhibit 7-2, but the proportion of all businesses that qualify as small also has increased in each SIC except one, as shown in Exhibit 7-3. These trends are particularly evident in those SIC codes most involved with excavation and trenching activities: 1623 (Water, Sewer, Pipeline, and Communications and Power Line Construction); 1711 (Plumbing, Heating, and Air-Conditioning); and 1794 (Excavation Work).
Only one of the 12 SIC codes, SIC 1622 (Bridge, Tunnel, and Elevated Highway Construction), experienced even a slight decline in the number of firms employing fewer than 500 employees between 1989 and 1998, as shown in Exhibit 7-4. In this sector, the number of firms with fewer than 500 employees declined very slightly between 1989 and 1998. However, the percentage of firms with fewer than 500 employees in the SIC code actually increased rather substantially during the same period, as shown in Exhibit 7-5. Therefore, even in SIC 1622, the Excavations Standard did not have a disproportionately negative impact on small businesses.
Text version of Chart
Chart Title: Exhibit 7-3: Percentage of Firms with Fewer than 500 Employees (1989-1998)
Chart Type: Line Graph
Chart Elements: 12 - One line for each SIC code with points showing the percentage of firms for each year
Chart Data:
Text version of Chart
Chart Title: Exhibit 7-4: Number of Firms with Fewer than 500 Employees in SIC 1622 (1989-1998)
Chart Type: Line Graph
Chart Elements: 1 - One line with points showing the number of firms in SIC 1622 for each year
Chart Data:
Text version of Chart
Chart Title: Exhibit 7-5: Percentage of Firms with Fewer than 500 Employees in SIC 1622 (1989-1998)
Chart Type: Line Graph
Chart Elements: 1 - One line with points showing the percentage of firms in SIC 1622 for each year
Chart Data:
7.2 Distribution of Firms by Number of Employees
Analysis of the distribution of firms by number of employees shows that there has been the most growth in the number of firms in the smallest size categories, with successively lower growth in each higher size category (see Exhibit 7-6) and percent (see Exhibit 7-7). For example, there has been more growth in the number of firms employing between one and four employees than there has in any other size category. There was a slight decline in the number and percent of firms employing over 500 employees between 1989 and 1998. Exhibit 7-8 shows the percentage change in the number of firms in each employee size category for each of the 12 individual SIC codes. These results suggest that small firms were the fastest growing segment of the construction industry.
Text version of Chart
Chart Title: Exhibit 7-6: Number of Firms by Employee Size Categories for Selected Construction Industry SICs (1521, 1542, 1611, 1622, 1623, 1629, 1711, 1731, 1771, 1794, 1795, 1799) for 1989 and 1998
Chart Type: Bar Graph
Chart Elements: 12 - Two bars for each employee range showing the number of firms for 1989 and 1998
Chart Data:
Text version of Chart
Chart Title: Exhibit 7-7: Percent of Firms by Employee Size Categories for Selected Construction Industry SICs (1521, 1542, 1611, 1622, 1623, 1629, 1711, 1731, 1771, 1794, 1795, 1799) for 1989 and 1998
Chart Type: Bar Graph
Chart Elements: 12 - Two bars for each employee range showing the percentage of firms for 1989 and 1998
Chart Data:
7.3 Fatalities by Firm Size and Number of Workers on Site
Exhibit 7-9 shows the distribution of excavation-related fatalities by the size of the firm experiencing the fatality. Approximately 73 percent of fatalities occur in firms with fewer than 50 employees. Of these:
Text version of Chart
Chart Title: Exhibit 7-9: Distribution of Fatalities by Size of Firm
Chart Type: Pie Chart
Chart Elements: 6 - One piece for each firm size showing the percentage of fatalities
Chart Data:
This finding raises the question of whether smaller firms incur more fatalities than larger firms because smaller firms (in aggregate) undertake most of the excavations, or because they have less effective safety procedures. To address this question, this study estimated fatality rates (per 1,000 employees) for each firm size category. These rates were calculated by dividing the average number of fatalities in each size category for 1989-2000 by the number of employees (estimated) in the category in 2000. The results, presented in Exhibit 7-10, indicate that the smaller firms, in fact, have higher fatality rates than larger firms35.
Text version of Chart
Chart Title: Exhibit 7-10: Estimated Fatality Rate by Size of Establishment Average 1990-1997
Chart Type: Bar Graph
Chart Elements: 3 - One bar for each employee range showing the fatality rate per 1,000 employees
Chart Data:
Exhibit 7-11 shows the distribution of excavation-related fatalities by the number of workers on site at the time of the fatality. While it is clear that more fatalities occur on smaller jobs (approximately 66 percent of fatalities occur at work sites with 10 or fewer employees), this could be a result of smaller jobs accounting for a majority of excavation and trenching activity. It is also possible, however, that oversight and compliance become less as firm size declines.
Text version of Chart
Chart Title: Exhibit 7-11: Distribution of Fatalities by the Number of Employees at the Site
Chart Type: Pie Chart
Chart Elements: 6 - One piece for each employee range showing the percentage of fatalities
Chart Data:
7.4 Impacts on Small Businesses
This study examined economic impacts on small businesses in several ways.
8. Section 610 Review
Section 610 of the Regulatory Flexibility Act directs agencies to review impacts of regulations on small businesses. The Section 610 review of the general impacts on small business are discussed in Ch. 7. Section 610 also provides that agencies should specifically consider five areas in reviewing the impact of a regulation on small businesses. This section discusses the impact of the Excavations Standard in these five areas, which are as follows36:
There is a continued need for the standard. The annual number of trenching and excavation fatalities has declined from an estimated 90 fatalities per year prior to the enactment of the 1989 standard, to approximately 70 per year since 1990. This 22% reduction is even more impressive given the 20% real increase in construction activity over this period. In relation to increased construction activity, fatalities have been reduced by more than 40%, demonstrating that the standard has been effective.
Public commenters agreed that the standard, when complied with, helps prevent excavation and
trenching accidents and helps protect worker safety. None of the commenters stated that the standard was not needed or should be rescinded as a whole. According to OSHA's inspection data, violations of the standard are a contributing factor in most excavation fatalities. OSHA concludes that the standard has improved safety, and the standard and its enforcement remain needed in light of the ongoing occurrence of fatalities related to its violation. As discussed in Ch. 7, the standard has not had any negative impacts on smaller businesses nor construction, generally.
Complexity of the Rule
OSHA received a substantial number of public comments related to the issue of the rule's complexity. Although the comments provided no indication that employers are unable to comply due to the complexity of the standard, the comments did suggest several ways in which the standard might be simplified or clarified. For example, commenters identified the following areas as possible ways to simplify the standard or remove complexity37:
OSHA has reviewed those comments on complexity in Ch. 6 and discusses its conclusions there. In a few cases modifications to the standard may be appropriate as regulatory resources become available. In other situations additional outreach materials will be the best response and in others OSHA has already issued interpretive materials which clarify the issues. In many cases OSHA concludes the current language is the best for clarity and worker protection.
Extent to which the Rule Overlaps, Duplicates, or Conflicts with other Rules
OSHA concludes that in general, the standard does not overlap, duplicate, or conflict with other state or federal rules. Several commenters, however, addressed a possible conflict between the Excavations Standard and OSHA's standard for confined spaces.
OSHA is working on a confined spaces for construction standard. The Agency will address this issue in that rulemaking, and there will be an opportunity for public comment and hearings.
Changes in Technology, Economic Conditions, and Other Factors
The primary economic and technological trend related to the Excavations Standard has been one of incremental refinement in manufactured systems and their increased affordability. As a result, the use of manufactured systems has increased while the use of site-built systems, such as timbers, has declined. However, public comment indicates that timber shoring is still used, albeit with decreasing frequency, and that it therefore is important for the standard to continue to address timber shoring.
A second trend of note involves the rise of so-called "trenchless" technologies (e.g., directional boring machines), which has added a new dimension to excavation work since the enactment of the Excavations Standard. While these technologies do not diminish the relevance of the existing standard, and they do reduce traditional hazards, they may be associated with their own set of hazards (e.g., leaving behind unseen voids). OSHA intends to monitor accidents involving trenchless technologies to determine whether an expansion of the existing standard may be warranted.
Except with respect to the decline in price of manufactured systems, as noted above, economic conditions have not changed in ways that would impact the standard. Public commenters did not present any evidence of economic hardship resulting from implementation of the standard. OSHA therefore, concludes that changes in technology and economic conditions do not warrant major changes in the Standard.
Nature of Comments Received
Section 6 of this report details the nature of the public comments that OSHA received during the course of this review. In general, comments were supportive of the standard and indicated that the standard does not impose an unnecessary or disproportionate burden on small businesses or on industry in general. A few comments indicated that general cost pressures are one cause of non-compliance. Several other commenters, however, cited reasons why the standard actually reduces costs.
Some of the comments argued that OSHA should modify or increase its enforcement and outreach efforts and that doing so would improve compliance rates and reduce fatalities. A number of these comments stated explicitly that these efforts - and not further rulemaking - would be the most effective way to improve safety during excavation and trenching. These comments included suggestions, as discussed in Section 6.
With respect to whether the standard should be revised, a few commenters argued that revisions would be counterproductive. However, another group of commenters favored revision and suggested specific ways that the standard might be improved. In addition to suggestions for reducing the standard's complexity or clarifying the standard, which are noted above, other suggested improvements include the following:
Determination of Whether the Rule Should be Continued, Amended, or Rescinded to Minimize Significant Economic Impacts on a Substantial Number of Small Entities
Based on the preceding analysis, OSHA finds that the Excavations Standard should be continued. It has reduced fatalities in excavation work. The standard does not impose significant or disproportionate economic impacts on small entities. Public commenters support retaining the Standard. OSHA will attempt to increase levels of compliance by expanding outreach and training materials and maintaining enforcement.
There were several suggestions to amend various provisions of the standard and other comments opposing any changes. OSHA is considering the NTSB recommendation on gas line leaks in light of the recently enacted "Pipeline Inspection, Protection, Enforcement, and Safety Act (PIPES) of 2006". OSHA will address the possible conflict with the Confined Spaces Standard in the rulemaking on a new Confined Spaces Standard for construction.
Some members of the public have suggested a few other amendments to the standard. However, such suggestions, which OSHA welcomes, need to be reviewed in the context of a successful Standard. OSHA has limited regulatory resources. Significant modifications to a standard take substantial agency resources which may well be better spent in areas where standards have not been updated and other safety matters could be addressed. Also, as some commenters have pointed out, changes in settled and interpreted regulatory language invariably leading to a period of uncertainty, further interpretations and litigation, which reduces the value of the changes, at least in the near term. OSHA values suggestions to improve its outreach and training materials and efforts, and as resources become available will update and extend those materials and efforts.
9. Executive Order 12866 Review of the Standard
Executive Order 12866 on Regulatory Planning and Review states that agencies of the Federal government must review their existing significant rules "to determine whether any such regulations should be modified or eliminated so as to make the Agency's regulatory program more effective in achieving the regulatory objectives, less burdensome, or in greater alignment with the President's priorities and principles set forth in this Executive Order." This review focuses on four major points:
Whether the Excavations Standard Has Become Unjustified or Unnecessary as a Result of Changed Circumstances
OSHA finds that the standard has significantly reduced the annual number of fatalities resulting from accidents involving excavations and trenching, despite growth in the relevant industry sectors. Nevertheless, approximately 70 fatalities per year still occur mostly from violations of the Standard. Therefore, the standard remains justified and necessary.
Whether the Standard is Compatible with Other Regulations and Not Duplicative or Inappropriately Burdensome in the Aggregate
In general, the standard is compatible and not duplicative with other state or federal rules. Several commenters, however, addressed a possible conflict between the Excavations Standard and OSHA's standard for confined spaces. As is discussed in Ch. 6, OSHA will be conducting a rulemaking on a confined space standard for construction. OSHA will address the issue in that rulemaking and the public will have the opportunity to comment on the issue.
Whether the Standard is Consistent With the President's Priorities
The standard remains consistent with the President's priorities. In 1970, concerned about the high rates of deaths, injuries, disabilities, and diseases associated with the workplace, Congress passed the Occupational Safety and Health Act (OSH Act). The OSH Act was passed by a bipartisan Congress "to assure so far as possible every working man and woman safe and healthful working conditions and to preserve our natural resources." OSHA was created to develop mandatory job safety and health standards and enforce them effectively.
The objective of Executive Order 12866 is to reform and make more efficient the regulatory process. The regulatory process must be consistent with the President's priorities to enhance planning and coordination with respect to both new and existing regulations; to restore the integrity and legitimacy of regulatory review and oversight; and to make the process more accessible and open to the public.
The Excavations Standard is consistent with these priorities because it has produced the intended benefits, a reduction in trenching and excavation fatalities, without excess costs or conflict with other regulations and with public input and support.
Whether the Effectiveness of the Standard Can Be Improved
OSHA believes that the Excavations Standard is the key factor in reducing the annual number of excavation and trenching fatalities from approximately 90 to approximately 70. However, the occurrence of accidents, injuries, and fatalities remains, mostly because of violations of the standard. Consequently, OSHA intends to improve compliance through improved outreach and training and maintaining enforcement.
10. Summary and Conclusions
OSHA finds that the Excavations Standard has been successful in helping to reduce excavation fatalities. The annual number of trenching and excavation fatalities has declined from an estimated 90 fatalities per year prior to the enactment of the 1989 standard, to approximately 70 per year since 1990. This 22% reduction is even more impressive given the 20% real increase in construction activity over this period. In relation to increased construction activity, fatalities have been reduced by more than 40%.
The standard has not had negative impacts on small businesses or construction activity, generally. The number of small businesses engaged in excavation work has increased in numbers and as a percentage of businesses. Excavation activity has increased, and the cost of various types of safety equipment has declined in real terms. New, safer technology has been developed.
Most remaining fatalities result from violations of the standard. Small firms have higher violation and fatality rates. To reduce fatalities further, OSHA will expand its training and outreach, as resources become available, and maintain enforcement.
§ 610. Periodic review of rules
(a) Within one hundred and eighty days after the effective date of this chapter, each agency shall publish in the Federal Register a plan for the periodic review of the rules issued by the agency which have or will have a significant economic impact upon a substantial number of small entities. Such plan may be amended by the agency at any time by publishing the revision in the Federal Register. The purpose of the review shall be to determine whether such rules should be continued without change, or should be amended or rescinded, consistent with the stated objectives of applicable statutes, to minimize any significant economic impact of the rules upon a substantial number of such small entities. The plan shall provide for the review of all such agency rules existing on the effective date of this chapter within ten years of that date and for the review of such rules adopted after the effective date of this chapter within ten years of the publication of such rules as the final rule. If the head of the agency determines that completion of the review of existing rules is not feasible by the established date, he shall so certify in a statement published in the Federal Register and may extend the completion date by one year at a time for a total of not more than five years.
(b) In reviewing rules to minimize any significant economic impact of the rule on a substantial number of small entities in a manner consistent with the stated objectives of applicable statutes, the agency shall consider the following factors--
(2) the nature of complaints or comments received concerning the rule from the public;
(3) the complexity of the rule;
(4) the extent to which the rule overlaps, duplicates or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and
(5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.
The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well-being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society; regulatory policies that recognize that the private sector and private markets are the best engine for economic growth; regulatory approaches that respect the role of State, local, and tribal governments; and regulations that are effective, consistent, sensible, and understandable. We do not have such a regulatory system today.
With this Executive order, the Federal Government begins a program to reform and make more efficient the regulatory process. The objectives of this Executive order are to enhance planning and coordination with respect to both new and existing regulations; to reaffirm the primacy of Federal agencies in the regulatory decision-making process; to restore the integrity and legitimacy of regulatory review and oversight; and to make the process more accessible and open to the public. In pursuing these objectives, the regulatory process shall be conducted so as to meet applicable statutory requirements and with due regard to the discretion that has been entrusted to the Federal agencies.
Accordingly, by the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Statement of Regulatory Philosophy and Principles.
(a) The Regulatory Philosophy. Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people. In deciding whether and how to regulate, agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating. Costs and benefits shall be understood to include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits that are difficult to quantify, but nevertheless essential to consider. Further, in choosing among alternative regulatory approaches, agencies should select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity), unless a statute requires another regulatory approach.
(b) The Principles of Regulation. To ensure that the agencies' regulatory programs are consistent with the philosophy set forth above, agencies should adhere to the following principles, to the extent permitted by law and where applicable:
(1) Each agency shall identify the problem that it intends to address (including, where applicable, the failures of private markets or public institutions that warrant new agency action) as well as assess the significance of that problem.
(2) Each agency shall examine whether existing regulations (or other law) have created, or contributed to, the problem that a new regulation is intended to correct and whether those regulations (or other law) should be modified to achieve the intended goal of regulation more effectively.
(3) Each agency shall identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
(4) In setting regulatory priorities, each agency shall consider, to the extent reasonable, the degree and nature of the risks posed by various substances or activities within its jurisdiction.
(5) When an agency determines that a regulation is the best available method of achieving the regulatory objective, it shall design its regulations in the most cost-effective manner to achieve the regulatory objective. In doing so, each agency shall consider incentives for innovation, consistency, predictability, the costs of enforcement and compliance (to the government, regulated entities, and the public), flexibility, distributive impacts, and equity.
(6) Each agency shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.
(7) Each agency shall base its decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended regulation.
(8) Each agency shall identify and assess alternative forms of regulation and shall, to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt.
(9) Wherever feasible, agencies shall seek views of appropriate State, local, and tribal officials before imposing regulatory requirements that might significantly or uniquely affect those governmental entities. Each agency shall assess the effects of Federal regulations on State, local, and tribal governments, including specifically the availability of resources to carry out those mandates, and seek to minimize those burdens that uniquely or significantly affect such governmental entities, consistent with achieving regulatory objectives. In addition, as appropriate, agencies shall seek to harmonize Federal regulatory actions with related State, local, and tribal regulatory and other governmental functions.
(10) Each agency shall avoid regulations that are inconsistent, incompatible, or duplicative with its other regulations or those of other Federal agencies.
(11) Each agency shall tailor its regulations to impose the least burden on society, including individuals, businesses of differing sizes, and other entities (including small communities and governmental entities), consistent with obtaining the regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations.
(12) Each agency shall draft its regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty.
Sec. 5. Existing Regulations.
In order to reduce the regulatory burden on the American people, their families, their communities, their State, local, and tribal governments, and their industries; to determine whether regulations promulgated by the executive branch of the Federal Government have become unjustified or unnecessary as a result of changed circumstances; to confirm that regulations are both compatible with each other and not duplicative or inappropriately burdensome in the aggregate; to ensure that all regulations are consistent with the President's priorities and the principles set forth in this Executive order, within applicable law; and to otherwise improve the effectiveness of existing regulations:
(a) Within 90 days of the date of this Executive order, each agency shall submit to OIRA a program, consistent with its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified or eliminated so as to make the agency's regulatory program more effective in achieving the regulatory objectives, less burdensome, or in greater alignment with the President's priorities and the principles set forth in this Executive order. Any significant regulations selected for review shall be included in the agency's annual Plan. The agency shall also identify any legislative mandates that require the agency to promulgate or continue to impose regulations that the agency believes are unnecessary or outdated by reason of changed circumstances.
(b) The Administrator of OIRA shall work with the Regulatory Working Group and other interested entities to pursue the objectives of this section. State, local, and tribal governments are specifically encouraged to assist in the identification of regulations that impose significant or unique burdens on those governmental entities and that appear to have outlived their justification or be otherwise inconsistent with the public interest.
(c) The Vice President, in consultation with the Advisors, may identify for review by the appropriate agency or agencies other existing regulations of an agency or groups of regulations of more than one agency that affect a particular group, industry, or sector of the economy, or may identify legislative mandates that may be appropriate for reconsideration by the Congress.
Appendix III: Crosswalk Between SIC Codes and NAICS Codes
Appendix IV: Working Safely in Trenches
Click here for a text version of the above Safety Tips cards.
154 FR 45894, October 31, 1989; 29 CFR 1926, Subpart P.
2Economic Impact Analysis of the Proposed Revision to OSHA Subpart P Standard (§1926.650-652) Governing Trenching and Excavation Work, prepared for OSHA's Office of Regulatory Analysis by Eastern Research Group, Inc., May 19, 1987.
363 FR 34139, June 23, 1998. For complete text of the Regulatory Flexibility Act, Section 610, 5 U.S.C. 601 et seq., see Appendix I.
4For the text of EO 12866, see Appendix II
536 FR 7340, April 17, 1971.
637 FR 3512, February 17, 1972.
752 FR 12288, April 15, 1987.
854 FR 45894, October 31, 1989; 29 CFR 1926, Subpart P.
959 FR 40730, August 9, 1994.
10For example, Excavations, U.S. Department of Labor, Occupational Safety and Health Administration, OSHA 2226, 2000 (Reprinted) was originally issued in print and is now available on line at the OSHA web site: www.osha.gov.
11Construction work is frequently divided into building construction and non-building construction. Both types of construction require excavations and trenches. Excavation activities for non-building construction projects, such as for highways, tend to be of a larger scale than for building construction projects.
12Although the North American Industrial Classification System (NAICS) has replaced SIC codes in the last few years, this study references the SIC system so that comparisons can be made spanning the entire time period of interest. Information on the construction industry is available through 1998 using the SIC system. See Appendix III for a crosswalk between the SIC codes that are the focus of this chapter and their corresponding NAICS codes.
13Some amount of open excavation may be required with these technologies (e.g., to provide an underground starting point for the technology), but the extent of this open excavation is usually relatively small.
14Integrated Management Information System (IMIS), U.S. Department of Labor, Occupational Safety and Health Administration, last updated August 5, 2000. The extraction covered all accidents and associated violations pertaining to reported excavation-related fatalities, including trenching fatalities, for the period 1990-2000. As OSHA does not require reporting of accidents causing three or fewer injuries, available data on injuries are limited and, consequently, this study does not examine the number or rate of excavation-related injuries.
15Economic Impact Analysis of the Proposed Revision to OSHA Subpart P Standard (§1926.650-652) Governing Trenching and Excavation Work, prepared for OSHA's Office of Regulatory Analysis by Eastern Research Group, Inc. (ERG), May 19, 1987, discussed at 54 FR 45950 (October 31, 1989). There were no complete national data sets available at the time OSHA was preparing the final Excavations standard on the number of excavation fatalities. Thus, OSHA averaged two approaches to develop the 90 excavation fatality estimate. The first approach combined average California and Texas excavation cave-in deaths and then adjusted this figure to reach an estimate of the total excavation deaths in these states (a combined state average). OSHA then extrapolated this number to the entire country (based on national construction receipts) to come up with an estimate of 83 excavation deaths per year. The second approach averaged the 3 years of OSHA Fatality/Catastrophe reports available for excavation deaths in Federal OSHA states and then extrapolated that data to the entire country (including an adjustment for growth in the construction industry), resulting in an estimate of 97 excavation deaths per year. OSHA averaged these two estimates to come up with the estimate in the proposed rule of 90 fatalities a year. There is some uncertainty in this estimate given the data available and the extrapolations necessary.
16"Annual Value of Construction Put in Place in the United States 1985-2001," Economic Indicators, U.S. Census Bureau. http://www.census.gov/pub/const/C30/c30_hist.html. These particular data (stated in constant 1996 dollars) address construction in general, and not just excavation and trenching. Thus, the resulting rate is lower than would result if excavation-specific data had been used. Nevertheless, the trend discussed above remains valid under the logical assumption that the value of excavation activity as a percentage of construction activity remains fairly constant.
17Appendix A presents fatality data spanning all industries that reported excavation-related fatalities.
18Employee data obtained from U.S. Small Business Administration Office of Advocacy, Statistics of U.S. Businesses 1990-1997, www.sba.gov/advo/sstats/data.html, obtained February 27, 2002.
19Integrated Management Information System (IMIS), U.S. Department of Labor, Occupational Safety and Health Administration, last updated August 5, 2000. The extraction covered all accidents and associated violations pertaining to reported excavation-related fatalities, including trenching fatalities, for the period 1990-2000.
20As a result, this study is unable to address overall compliance levels.
21See, for example, "Preventing Deaths and Injuries from Cave-Ins," NIOSH Alert: July 1995, DHHS (NIOSH) Publication No. 85-110; and, "Improper Excavation Procedures Contribute to Death of Construction Worker," OSHA Trade News Release, July 2002.
22For example, OSHA believes that some violations may have occurred but not been identified or reported. Analysis of the fatalities for which violations are not reported in IMIS shows that approximately one third (32 percent) involved cave-ins, and many of these cases suggested possible non-compliance with the standard. Non-compliance with the Excavations Standard may have been less of a factor in non-cave-in fatalities at excavation sites, such as fatalities associated with machine accidents (46 percent) or electrocutions (5 percent). Remaining fatalities were due to other or unknown causes.
23The IMIS database reports these violations as "related to" a given fatality, which means that the cited violation is a contributing factor to the fatality. Some fatalities reported in the IMIS database cite violations without identifying any as contributing factors. This means that it was not clear whether the violations contributed to the fatality.
24The analysis does not attempt to calculate the total cost of the standard (e.g., by estimating the cost of every provision in the rule) as would be required in a regulatory impact analysis for a new rule.
25"Current" costs are based on 2001 cost data and occasionally from 2002 vendor quotes. Costs from 1990 have been converted to current (2001) dollars using the applicable implicit price deflators for the U.S. gross domestic product.
26Several sources indicated that trench boxes and aluminum hydraulic shores are the most common ways of meeting the standard, followed by sloping, and then timber shoring. Timber shoring tends to be used as a last resort, because of the relatively high cost of the timbers, the difficulty in finding larger timbers, and the possibility of occupational injuries to workers handling the heavy timbers.
27Costs for 1990 are taken/derived from RS Means Heavy Construction Cost Data, 1991. Costs for 2001 are from Means Site Work and Landscape Cost Data, 2002.
28Ibid. Also, RS Means Building Construction Cost Data, 1990.
29Based on information contained in the Economic Impact Analysis of the Proposed Revision to OSHA Subpart P Standard (§1926.650-652) Governing Trenching and Excavation Work, prepared by Eastern Research Group, May 19, 1987.
30ICF telephone discussions with trenching and shoring vendors.
31Economic Impact Analysis of the Proposed Revision to OSHA Subpart P Standard (§1926.650-652) Governing Trenching and Excavation Work, prepared by Eastern Research Group, May 19, 1987.
32Costs for 1989 are taken/derived from RS Means Building Construction Cost Data 1990. Costs for 2001 are from Means Site Work and Landscape Cost Data 2002.
33Section 1926.650(b) defines a competent person as 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."
34For example, in a 1998 report titled, Small Business Growth by Major Industry, 1988-1995, SBA says, "When evaluating all industries, the Office of Advocacy often defines a firm with fewer than 500 employees as small."
35The firm size categories supported by the fatality data differ from those supported by US Census firm data. Consequently, the combined data set supports only the three size categories shown in the exhibit. The average number of employees in a given size category was calculated by taking the number of firms in the category (calculated as the number of firms in 2000) and multiplying it by the average number of employees in the category size range (e.g., 3 employees in the 1-9 category; 24 employees in the 10-99 category; 211 employees in the over 99 category). Because fatality data could be analyzed for firms with 1-10 employees but firm data were available only for the range of 0-9 employees, the resulting fatality rate for firms with 0-9 employees may be slightly overstated, while the rate for firms with 10-99 employees may be slightly understated. The magnitude of the bias is believed to be small, however.
36Regulatory Flexibility Act §610(b)(1).
37Refer to Section 6 for additional details regarding the public comments addressed in this section.