OSHA’s NEPs are temporary programs focused on specific and particular workplace hazards and high-hazard industries, which sets forth that OSHA’s Compliance Safety and Health Officers (CSHOs) shall initiate inspections under a NEP as to Trenching and Excavation, whenever they observe an open trench or an open excavation, regardless if a violation is readily observed.

On May 8, 2023, a CSHO was driving by a worksite in Camillus, NY and noticed an excavation site where a person appeared to be standing on the edge of the excavation speaking with someone in the excavation. The CSHO parked her vehicle and began her investigation by taking video recordings, photographs and measurements at the excavation. She also interviewed individuals at the site, including the owner of Montroy Development, LLC, David Montroy—who was the individual initially observed standing at the edge of the excavation—along with a Montroy worker who had been in the excavation and another individual observed in the excavation.

The CSHO observed the lack of adequate protective systems (no shoring or trench box). The excavated materials did not consist of stable rock, and Mr. Montroy admitted not knowing the soil type. In fact, the soil included aggregate, supporting that it was of a loose type or classification.

The excavation site also had various spoil piles consisting of the excavated materials. One of these spoil piles was right at the excavation’s upper edge, between the path of egress from the excavation and the CAT excavator, and one could not distinguish the separation from the spoil pile and the excavation’s beginning. The excavator was at the edge of the spoil pile and parked at a slight angle to the excavation’s rim, with a portion of its tread appearing over the upper part of the excavation.

Given the observed dangers, the CSHO did not enter the excavation but rather assessed the excavation’s depth by placing a stud board across the excavation and using a measuring tape suspended from a rod to determine the distance between the ledge and the bottom of the stud board, measuring a depth of at least five feet, which was also confirmed by her other observations.

From the CSHO’s inspection, OSHA issued various citations against Montroy: for improper cave-in protections and for failing to have adequate protection from materials or equipment for workers in excavations. Under the applicable federal safety regulation, equipment and materials, including excavated materials that can “pose a hazard for falling or rolling into an excavation…” must be placed “at least two feet (.61 m) from the edge of excavations, or by use of retaining devices…or by a combination for both if necessary.”

The Citation alleged that Montroy violated this safety standard by not protecting employees from excavated materials and the excavator’s tread, protruding over the edge, also constituted a struck-by hazard for workers such as falling or rolling-into the excavation.

Montroy contested the citations. After a hearing, the Administrative Law Judge found that photographic and video evidence confirmed that materials and equipment were within two feet of the excavation even if the CSHO acknowledged that she did not physically take measurements of the distance (as it was unsafe to do so at that time).

The excavator and spoil pile were along the upper edge of the excavation and that there was no “discernible distance” between the excavator’s tread and the top of the excavation, while the end of spoil pile aligned with the excavation’s edge. Montroy’s attempts to rebut and refute this evidence were found unavailing. Although Montroy’s employee claimed that while the CSHO was investigating, he had measured the distance between the excavator and the excavator’s edge, showing a distance of approximately five feet, he then corrected his prior statement to allege that it was 28 inches. However, even this revision lacked any corroborating photographic evidence, while the CSHO’s testimony and her photographs showed there was no distinction between the excavation edge and excavator tread and her testimony was found to be more credible. Similarly, the ALJ found both the CSHO’s testimony and her photographic evidence more credible, showing no distinction between the spoil pile and the excavation edge. Moreover, the violative condition was “readily apparent” to the individual that had the authority to abate the hazards. Consequently, the ALJ affirmed the citation against Montroy.

About the author: Costas Cyprus, Esq., practices 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: May 15, 2025.