had arrived, although the officer believed they might have been there longer based on his observations of tools and activities. The length of the trench was 25 feet, and the width of the trench floor was three feet, while the width of the trench opening was 10 feet, 3 inches. A ladder rested along the trench wall on the west end at an angle of about 75 degrees. The wall on the western end of the trench measured seven feet deep, while other sections of the trench measured 4 ½ to 5 feet in depth. The excavation at issue dug into a Type B soil (as per OSHA’s soil type classification) and TUU was utilizing a bench cut into the trench walls (which allows for sloping of the trench walls to avoid collapsing soil).

Pursuant to the OSHA’s standards, Type B soil should be benched or sloped to 45 degrees. Here, Officer Thompkins measured the first wall of the bench (floor to shelf) at 4-1/2 feet to 5 feet high, depending on where the measurements was taken along the trench. The top of the first wall of the bench, was a shelf that measured two feet wide. The second wall of the wall of the bench (from shelf to the surface) measured two feet high. Officer Tompkins based some measurements on representations made by Foreman Diaz because he could not safely access the trench floor, as well as approximations since the trench walls and soil conditions varied.

Following the measurements, Officer Thomkins interviewed foreman Diaz without an interpreter, and compiled information in a form, which Mr. Diaz signed. Specifically, Mr. Diaz, had trenching and excavation training (but not with TUU in his 40 years in the industry). He did not know whether other employees had received training. A bench system was being used because the trench was not deep enough for a trench box. Two individuals were working in the trench for about 10 minutes before the CSHO arrived. During the trial, Mr. Diaz confirmed these statements and further indicated that he was charged with ensuring worker safety. On the following day, Officer Thomkins requested all training documentation and certifications, but TUU never responded. During Officer Thomkins’ investigation he also found that TUU had been previously cited by OSHA for failure to provide adequate protection from cave-ins during excavation from a 2017 incident where a trench that was slightly over nine feet deep with previously disturbed Class B soil and one of the walls was improperly benched and the slope on both walls were steeper than the requisite 45 degrees exposing workers to a “crushed-by hazard”).

Following his investigation, the CSHO issued various citations to TUU included failing to protect employees working in a trench from cave-ins, in violation of OSHA regulations and classified this citation as a repeat offense since the 2017 incident had also involved an improperly sloped trench.

TUU took issue with the applicable standard based on the CSHO’s measurements. The cited regulation sets forth that each employee in an excavation be protected from cave-ins unless the excavation is made entirely of stable rock, or the excavation is less than five feet in depth and examination of the ground by a competent person provides no indication of a potential cave-in. Both parties agreed that the soil type was Type B, but disagreed as to whether the trench was five feet deep. The deepest part of the trench measured seven feet and the CSHO took photographs of his measuring tool showing that depth. TUU explained that this was an impossibility and the measuring device fell into a depression on the trench floor. However, TUU presented no evidence disputing the height measurement, and when TUU’s owner, Julio Lugo, went to the site the following day, it had already been backfilled and no other TUU employees had taken measurements.

Furthermore, foreman Diaz had not objected to the CSHO’s measurements as they were being taken. Therefore, the Administrative Law Judge found that this OSHA standard applied, and accepted Officer Thomkins’ photographs and measurements as credible as per his testimony on the methodology, and, especially since TUU could not offer any evidence that called these measurements into question with their own independent measurements or dimensions. Under either a multiple bench system or single bench system, the first bench wall could not be more than four feet in height. In a single bench system, the first shelf must be equal to the height of the bench for a 1:1 ratio. In a multiple bench system, the first shelf wall must double the height of the bench and every other shelf would have a height and width equal to the first shelf wall to create a 1:1 ratio. All sides of a trench have to be properly sloped or benched 1:1 or 45 degrees. Here, the height of the first bench wall was between 4-1/2 feet and 5.0 feet while the standard requires the first bench wall to be no more than 4.0 feet. The standard also required the bench shelf to be four feet in width (for a single bench) or eight feet (for multiple benches), while here, the bench shelf measured between two and three feet. Under either single or multiple bench systems, TUU was not in compliance as the trench was improperly sloped. Therefore, TUU was found to have violated the standard.

Even if workers were not injured, they were exposed to the hazards based on the evidence of the ladder and tools near the seven-foot wall, which could have exposed them to the cave-in hazard when entering or exiting the trench even during that brief five-to-10-minute period that foreman Diaz admitted they were present. Foreman Diaz was aware that the trench was dug into Type B soil, and he could have known with reasonable diligence that portions of the trench exceeded five feet in depth, and the benching system did not meet the standard’s requirements. Given that the same standard had been previously violated in 2017, the ALJ found that this violation was a repeat offense and assessed a penalty of $20,781 for this repeat-serious citation.

About the author: Costas Cyprus is an associate attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at [email protected]. The articles in this series do not constitute legal advice and are intended for general guidance only.