Contributed by Guest Blogger Matthew Horn
A recent decision issued by the United States Court of Appeals for the Seventh Circuit, KS Energy Services, LLC v. Solis, Case No. 11-2427, greatly impacts how OSHA will determine soil types and enforce trench sloping and benching regulations. All contractors performing work in trenches should be aware of this decision and its practical implications.
Under the Court’s ruling in Solis, in order to prevent the possibility of being issued a citation for improper trench protection, a contractor should always downgrade “Type A” soil to “Type B” soil in determining slope when: 1) it is using heavy machinery near the trench; 2) the trench is near a road; or 3) there are existing utilities running through the trench at any point and/or are located within at least ten feet of the trench.
In the case, KS Energy, an underground contractor out of New Berlin, Wisconsin, was installing a natural gas pipeline underground in downtown Madison, Wisconsin. An OSHA Compliance Officer arrived on site and took several measurements of KS Energy’s trench using a trench pole. The slope of the trench was measured at 46 degrees in two locations and 50 degrees in one location. The Compliance Officer also noted that there was water in several footprints near the trench; that there were underground utility lines eight to ten feet from the trench; and that a street was located twelve feet from the trench.
The soil samples taken by OSHA indicated that the soil was “Type B” at the top and middle of the trench, but the soil sample taken by KS Energy’s expert from the bottom of the trench indicated that the soil was “Type A.”
KS Energy was issued a repeat citation for failing to provide an adequate trench protection system in “Type B” soil conditions.
7th Circuit Ruling
The Court found that while there was evidence that the trench consisted, at least partially, of Type A soil, the soil needed to be downgraded to Type B because it was subject to vibration. There was no evidence provided indicating that the soil actually vibrated, but the Court found there was sufficient evidence to find that the soil was “subject to” vibration, which is all that is required. Specifically, the Court found that the soil was “subject to vibration” because the trench was twelve feet from a lane of heavy traffic and because KS Energy was using a “large, tracked backhoe” to perform its work near the trench. The Court specifically noted that it made no determination as to whether use of heavy equipment near the trench was sufficient in and of itself to support a finding that soil was “subject to vibration.”
The Court also found that the soil near the trench needed to be downgraded because it had been disturbed due to the installation of pre-existing underground utilities in the area of the trench. While OSHA presented no evidence as to the extent the soil around the trench had been disturbed to install the utilities, the Court found that the fact that there were utilities in the area of the trench—some passing through the trench and some located approximately eight to ten feet away—supported the finding that the soil near the trench had been disturbed at one point in time and had to be downgraded.
What Does this Decision Mean?
While the Court specifically noted that it made no finding as to whether use of heavy equipment near the trench was sufficient in and of itself to support a finding that the soil was “subject to vibration,” the Court also did not find that the use of heavy equipment near the trench was not sufficient in and of itself to support a finding that the soil was “subject to vibration.” This means that, in the future, OSHA can and, likely will, argue that use of heavy equipment near a trench is sufficient in and of itself to support a finding that “Type A” soil is “subject to vibration,” and must be downgraded.
With regard to disturbed soils, the Court found that pre-existing utilities running through the trench at various locations and running approximately eight to ten feet from the trench supported a finding that soil had been disturbed, and that the soil needed to be downgraded in order to determine proper slope. In the future, OSHA can argue that a trench with any existing utilities running through the trench or within eight to ten feet of the trench is sufficient to support a finding that “Type A” soil has been disturbed, and must be downgraded.