520 CMR 14.00 Excavation & Trench Safety Regulations: An Introduction for Municipal Administrators

1. 520 CMR 14.00Excavation & Trench SafetyRegulations:An Introduction for Municipal Administrators Commissioner Thomas G. Gatzunis, Department of Public Safety Commissioner Laura M. Marlin, Division of Occupational Safety

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

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

5. Scope & Purpose of Trench Safety Laws: c. 82A & 520 CMR 14.00 • Two purposes: • Protect the General Public from hazards inherent in trenches; and • Provide for penalties for violations. • The laws apply to Excavators and set forth actions excavators must take to protect the General Public. • The law does not apply to worker safety. Important

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

7. How do the regs achieve the purpose of protecting the General Public? • Purpose: To provide protections to the General Public from the hazards inherent in unattended trenches. • Requires excavators to obtain a permit. • Requires excavators to provide protections when trenches are unattended. • Deters violations by authorizing the collection of fines.

8. What are municipalities required to do? • Establish a permitting authority. • Require permits. • Regulate their own municipal departments creating trenches. • Shut down trenches where violations found.

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

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

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

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

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

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

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

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

17. 4. Municipalities are required to shut down trenches where a violation is found and may take other actions. • Possible actions include: • Immediate shutdown by DPS, DOS, or local authorities for a serious threat to public safety. • Post-hearing suspension or revocation of permit. • Imposition by the DPS of further administrative fines against the excavator (MGL c. 82A, §1).

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

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

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

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

22. Effective Protections at Fixed Worksites Barricade at least 6’ high No spaces in fencing • Fixed work site: work site that is not located on a public way where the excavation of a trench occurs. • Covers, portable barriers, or backfilling required where trench is unattended: • Covers must be steel plates no less than ¾ inches thick or equivalent and placed over the excavation or trench • Portable barriers shall be erected to preclude unauthorized entry, for example: • Placement of horizontal supports shall be on the inside of the barrier; • Barriers shall be at least 6 feet in height; • Spaces in fencing shall not exceed 4” • Barriers shall be clearly marked Horizontal supports on the interior Photo from trench, looking out.

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

24. 520 CMR 14.00 Excavation & Trench SafetyRegulation Recap What the regulations do: • Requires permitting authorities, which include municipalities and public agencies, to issue permits for the excavation of trenches on privately or publicly owned land within their jurisdiction. • Sets forth the requirements for and content of permits. • Authorizes the shut down of trench sites for failure to obtain a permit. • Allows municipalities to charge permit fees which may be retained by the municipality for costs related to administration of the regulations. • Establishes requirements for barriers and covers for use with unattended trenches. • Allows for the permitting authority , DPS, or DOS to take immediate action to shutdown and order that a trench be made safe where unsafe conditions are found. • Authorizes the Department to assess fines against excavators for allowing unsafe unattended trenches.

25. Permitting authority may require more stringent public safety provisions that do not conflict with 520 CMR 14.00. • Additional provisions are generally adopted through by-law or regulation. • Examples: • Police detail requirement in the event of an immediate shutdown that requires reimbursement by the excavator. • Mandatory inspection requirement. • Blanket permit provision.

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

27. 14.02 Definitions • Competent Person- A person or persons who is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to people, and who has authorization to take prompt corrective measures to eliminate them. A competent person must be able to demonstrate that he or she has been trained in and are knowledgeable about: soil analysis, the use of protective systems and the requirements of this regulation. • Emergency- An unforeseen condition in which the safety of the public is in imminent danger because of a threat to life or health or where immediate correction is required to maintain or restore essential public utility service. • Excavator – Any entity including, but not limited to, a person, partnership, joint venture, trust, corporation, association, public utility, company or state or local government body or public agency which performs excavation operations including the excavation of trenches. • General Public – All natural persons not engaged in the creation of a trench. • Permit Holder –The excavator who is responsible for acquiring a permit from the Permitting Authority. • Permitting Authority – A city, town, or public agency required to administer the provisions of 520 C.M.R. 14.03. • Public Agency— A department, agency, board, commission, authority, or other instrumentality of the Commonwealth or political subdivision of the Commonwealth or two or more subdivisions thereof. • Serious Injury - A personal injury that results in death, dismemberment, significant disfigurement, permanent loss of the use of a body organ, member, function, or system, a compound fracture, or other significant injury that requires immediate admission and overnight hospitalization and observation by a licensed physician. • Trench – An excavation which is narrow in relation to its length, made below the surface ground in excess of 3 feet below grade and the depth of which is, in general, greater than the width, but the width of the trench, as measured at the bottom, is no greater than 15 feet. • Unattended Trench – A trench where neither the permit holder, excavator, nor any of the people who work in or at the trench are present.