Safety Watch

Bad Trenching Tipoff to OSHA Leads To Call for Hazardous Material Training

By COSTAS CYPRUS, ESQ.

Various materials are used in construction activities, including those deemed hazardous to human health. Therefore, companies must ensure that they have an adequate and updated written hazard communication program in place consisting of multiple components. 

Safety Data Sheets (SDS) must be present on-site detailing information about each chemical, along with safety procedures and emergency procedures for potential and improper exposure. Employers must maintain an up-to-date inventory of hazardous chemicals at the site and ensure the proper labeling of all containers of hazardous materials with the relevant hazard warnings. Aso, regular employee training must be provided to understand these labels and the SDS sheets and educate employees on the safe use of these hazardous chemicals. 

The decision in Secretary of Labor v. Finley, LLC, however, indicates that proper hazard communications should be provided for those materials that are reasonably anticipated to be used by the workers. This matter arose from an anonymous complaint called into to OSHA regarding unsafe trenches at a worksite in Dever, CO in March 2020. Finley, LLC (Finley) was an earthmoving and excavating contractor based in Bailey, CO, with about five full-time employees, including its owner Jason Finley, a supervisor and some laborers. Katerra Construction, the general contractor for the construction of a residential complex in Denver, had retained Finley for certain excavation work at the site. Finley, which had been working at the site for about nine weeks at the time of the OSHA inspection, had excavated multiple trenches, including one for plumbing for lines that would ultimately supply the apartment complex. The trench at issue was approximately 160 feet long, 18 feet across, and varied in depth from six feet to 10 feet. 

Alerted by the anonymous complaint, OSHA sent a Compliance Safety and Health Officer to the site and, after an investigation, issued multiple citations to Finley, LLC. These included a failure to develop or implement a hazard communication program in that its employees were potentially exposed to hazardous chemicals, inclusive of certain pipe adhesives; and that employees were not provided with effective information and training on hazardous chemicals in their work area at the time of their initial assignment or whenever a new hazard that employees had not previously trained about was introduced at the job site. Also, Finley did not have a copy of its hazard communication program on-site as required at the time of inspection, nor did it provide its employees with either chemical or site-specific training as required in the applicable safety standards. 

During OSHA’s inspection, water was observed in the trench, extending across about 90% of its length. Although there was conflicting evidence of the source of the water—that it was either coming from groundwater at the bottom and sides of the excavation or from piping that was being tested as it was being connected by other Katerra employees—it was undisputed that that the presence of the water changed the soil classification in the trench and it increased the risk of collapse as well as presented a possible slip-and-fall hazard. The presence of water in the trench should have required a re-evaluation of the type of sloping that was being implemented at the site and the need to take additional precautions. Based on the submitted evidence, the citations for improper trenching and excavation were upheld against Finley by the Administrative Law Judge (ALJ). 

However, the ALJ found that the Secretary of Labor failed to prove their case as against Finley for the citations arising from a failure to develop or implement a hazard communication program and to provide its employees with effective information and training on these hazardous chemicals. Although Finley only had a generic hazard communication program, which was only presented at the time of trial and which did not actually address Finley’s specific business of excavation and earthmoving, Finley denied that their employees assisted plumbers connect piping at the bottom of the trench. At best, Finley employees might have been present in the trench while Katerra’s plumbers were connecting and sealing pipe with certain pipe adhesives, but Finley did not perform any plumbing work. 

Further, Mr. Finley testified that his company only installed drainage pipes, which did not require the use of any adhesives. The ALJ found that there was no reason to provide independent training on hazards not reasonably anticipated to be used by Finley’s employees. Finley employees had received training and information as provided by Katerra at the site that the ALJ found appropriate for the hazards presented by working adjacent to other workers who were required to use such chemicals.

During the trial, the Secretary of Labor attempted to amend this citation to include gasoline for Finley’s vehicles and battery acid present in those vehicles as potential exposures for which Finley had failed to maintain respective SDS sheets. The ALJ found these attempts improper, as gasoline did not present “a greater hazard to a trench digger than a stay-at-home day filling up for a soccer practice, or to battery acid, for which there was absolutely no evidence of exposure.” 

About the author: Costas Cyprus is an 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.

Published: February 13, 2025.

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