OSHA REGULATIONS & EXEMPTIONS

Written by Poul Lemasters, NCBVA Legal Counsel, with input from Mark Harrison, President of Certified Safety Training) | October 2024

There’s a common word to describe almost any tragic event – unexpected. No one starts off their day expecting something terribly wrong will happen to them. Most people also never think they may be the cause of a tragic event either. But it happens.

Two cemetery employees are digging a grave. One of the employees, with many years of experience, is operating the backhoe. The other employee, also with years of experience, is by the side ready to help as well. The ground being dug is virgin soil, never been dug before, which experience had taught them is much more stable than previously-dug ground. In fact, the ground in this section of the cemetery was known to be hard, so hard that the teeth of backhoe buckets had trouble breaking the surface of the soil. Historically, the ground was so stable that experience had taught them that grave walls could be depended upon to stand upright—or so they thought.

As they continued to dig, one employee is lowered into the grave by the backhoe to level the bottom of the grave when tragedy struck. A lower portion of the grave wall, not the entire wall, sheared off and fell into the grave and onto the lowered employee. The employee in the backhoe jumped into the grave to get the soil off him – but, for the same reasons they thought the grave was safe, the soil was so hard that a shovel could not penetrate it. The soil was so hard that the ground above the broken-off portion of the grave wall remained in place. None of the employee’s efforts succeeded and the other employee succumbed to his injuries.

This tragic story isn’t a tale of something that could happen – it did happen. This incident resulted in the death of a cemetery employee. And as heartbreaking as any death is, it didn’t end there. For all others involved, it continued with the arrival of police, insurance investigators, news reporters, and eventually OSHA.

The Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor arrived and opened an investigation. The process involved statements from employees as well as formal interviews. Nearly six months later, OSHA issued several citations including:

• Using a backhoe to lower an employee into the grave
• Not requiring the use of hard hats when working near a backhoe
• Not training employees in trenching and excavation hazards
• Failing to slope or shore the grave’s walls – part of OSHA’s requirements for protective systems when excavating or trenching

If unexpected is the word to describe a tragedy, unknowing may be the word to explain how it all started. The truth is that many cemeteries, as well as suppliers to cemeteries, do not fully understand and know the OSHA trenching and excavation safety requirements.

The following are some common questions, as well as answers so that you can fully understand the OSHA Trenching and Excavation Requirements. A special thanks to Mark Harrison of Certified Safety Training for his input on this topic as well as answers to many of these questions.

OSHA standards are published in Title 29 of the Code of Federal Regulations (CFR), which includes part 1926, the Safety and Health Regulations for Construction, under which is standard 1926 Subpart P – Excavations. Included in this standard are subparts:

• 1926.650 - Scope, application, and definitions applicable to this subpart
• 1926.651 - Specific excavation requirements
• 1926.652 - Requirements for protective systems

Under 29 CFR 1926.650, OSHA defines that the excavation standard “applies to all open excavations made in the earth's surface. Excavations are defined to include trenches.”

This is the ‘not-so’ deep requirement that many businesses do not understand. There are 2 provisions that address both the 5-foot rule and the 4-foot rule.

• CFR 1926.651 states that “A stairway, ladder, ramp or other safe means of egress shall be located in trench excavations that are 4 feet (1.22 m) or more in depth so as to require no more than 25 feet (7.62 m) of lateral travel for employees.”
• CFR 1926.652 then states, “Trenches 5 feet (1.5 meters) deep or greater require a protective system unless the excavation is made entirely in stable rock. If less than 5 feet deep, a competent person may determine that a protective system is not required.”

The trench measurement is based on the bottom of the trench – not the bottom (or top) of anything placed into the trench.

The safety standard states a ladder is one form of egress that is acceptable for any trench excavation over 4 feet in depth. If you are not entering the trench (grave) then no egress would be necessary. However, there are some regulators who interpret a ladder to be available in any situation. While a ladder may not be a requirement, it could be viewed as a best practice.

A competent person is an individual who is capable of identifying existing and predictable hazards or working conditions that are hazardous, unsanitary, or dangerous to workers, soil types and protective systems required, and who is authorized to take prompt corrective measures to eliminate these hazards and conditions.

OSHA standards require, before any worker entry, that employers have a competent person inspect trenches daily and as conditions change to ensure elimination of excavation hazards. Anyone can become a competent person so long as that person can demonstrate appropriate training in OSHA’s safety standards. There are courses available, including through Certified Safety Training. As with any OSHA training, it is important to provide training – and document the training as well.

There are several different types of protective systems.

• Shoring requires installing aluminum hydraulic or other types of supports to prevent soil movement and cave-ins. This is probably the most common method among cemeteries.
• Benching means a method of protecting workers from cave-ins by excavating the sides of an excavation to form one or a series of horizontal levels or steps, usually with vertical or near vertical surfaces between levels. Benching cannot be done in Type C soil.
• Sloping involves cutting back the trench wall at an angle inclined away from the excavation.
• Shielding protects workers by using trench boxes or other types of supports to prevent soil cave-ins. Designing a protective system can be complex because you must consider many factors: soil classification, depth of cut, water content of soil, changes caused by weather or climate, surcharge loads (e.g., spoil, other materials to be used in the trench) and other operations in the vicinity.

Enter the competent person with OSHA training who will know the answer to this. But if you’re curious and want a little test of training, here is a little intro about how OSHA classifies soil in 3 types: Type A; Type B; and Type C.

• Type A - Type A soil is cohesive and has a high unconfined compressive strength; 1.5 tons per square foot or greater. Examples of type A soil include clay, silty clay, sandy clay, and clay loam.
• Type B - Type B soil is cohesive and has often been cracked or disturbed, with pieces that don't stick together as well as Type A soil. Type B soil has medium unconfined compressive strength; between 0.5 and 1.5 tons per square foot. Examples of Type B soil include angular gravel, silt, silt loam, and soils that are fissured or near sources of vibration, but could otherwise be Type A.
• Type C - Type C soil is the least stable type of soil. Type C includes granular soils in which particles don't stick together and cohesive soils with a low unconfined compressive strength; 0.5 tons per square foot or less. Examples of Type C soil include gravel, and sand. Because it is not stable, soil with water seeping through it is also automatically classified as Type C soil, regardless of its other characteristics.

29 CFR 1926.651 lists multiple safety measures that include:

• Keep heavy equipment away from trench edges.
• Identify other sources that might affect trench stability.
• Keep excavated soil (spoils) and other materials at least 2 feet (0.6 meters) from trench edges.
• Know where underground utilities are located before digging.
• Test for atmospheric hazards such as low oxygen, hazardous fumes and toxic gases when more than 4 feet deep.
• Inspect trenches at the start of each shift.
• Inspect trenches following a rainstorm or other water intrusion.
• Do not work under suspended or raised loads and materials.
• Inspect trenches after any occurrence that could have changed conditions in the trench.
• Ensure that personnel wear high visibility or other suitable clothing when exposed to vehicular traffic.

If it was only that easy. The question that you have to answer is this, “Do any of my employees ever get into the grave?” If anyone goes into a grave (trench) then you have to abide by all of the excavation safety requirements.

There is no exemption for OSHA excavation requirements other than those listed. The exemption for vault companies that many are aware of is the cranes and derricks construction standard which requires crane operator certification. However, the National Concrete Burial Vault Association was able to get an exemption from OSHA in 2013.

In summary, OSHA's cranes standard covers hoisting equipment used in conjunction with a construction activity. Although the act of excavating a grave would be considered a construction activity, the placement of a burial vault in the grave is not a form of construction. There are no connections, either mechanical or electrical, made from a burial vault to other objects or structures. Once the burial vault is placed in the ground, there is no further construction work performed to build onto or otherwise alter its structure. During the placement process, the burial vault is not arranged in a sequence for further hoisting, an action that indicates construction crane activity. However, this exemption is only for placement process and does not cover the excavation process.

There is no way to avoid the OSHA safety requirements, but there is a way to never violate the safety requirements. Some cemeteries and vault companies implement a No-Go In the Hole rule. In its simplest form, there are 2 parts to the rule:

• No. 1: No one may enter a grave four feet or more deep. There are no exceptions.
• No. 2: No one may enter a grave less than four feet deep unless a competent person has first examined it and found no indication of a potential cave-in. This is the only exception.

The Federal OSHA standards are the minimum requirements. If a state has its own OSHA (see chart that shows if you have state or federal OSHA), that state can’t go above the minimum. In other words, if Federal OSHA starts at 4 feet for egress and then 5 feet for protective systems, no state can go under those limits.

In case you’re wondering how the investigation with OSHA ended, well that’s the million-dollar question. Actually – depending on the type of violation or violations that may be found, this could be a $161,323 question. So everyone is clear, there are ranges of OSHA violations, that each carry a maximum fine. The highest ranking violation under OSHA is the willful violation. The violations for OSHA go from:

• De Minimis – Minimal violations that don’t come with a fine
• Other-Than-Serious – These are violations that pose legitimate health and safety concern, with fines capping at $16,131
• Serious – These violations are when there is substantial probability that death or serious physical harm could result, and the employer knew, or should have known. The fine is also capped at $16,131
• Failure to Abate – These are violations that are reported with a deadline to resolve, and the violation is not resolved by the given date. This results in a fine of $16,131 per day.
• Willful – This is the most serious violation and are issued when the employer knowingly failed to comply or acts with indifference to employee safety. These fines max out at $161,323 and can also result in criminal charges.

The cemetery in this story now sits and waits. Wondering their fate, defending their actions, and implementing new ways. Know this. The story, the tragic situation, started with best intentions and no plan for this to happen. As a business, take the time now to plan on how to avoid this, and not simply hope it doesn’t happen. The employees in this story were conscientious about safety and cared about their job. Sadly that doesn’t prevent accidents, and it absolutely doesn’t meet the safety measures required by OSHA.

Want to learn more or ask a question related to OSHA Regulations & Exemptions? Have something to share? Join Poul Lemasters, NCBVA Legal Counsel, for a 30-minute NO-CHARGE Q&A session Wednesday, November 6, at 2:00pm ET. Feel free to submit a confidential question in advance too. Mark your calendar & register. There is no charge to attend, but registration is required.

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