July 11, 1995

The Honorable John W. Warner
United States Senate
Washington, D.C. 20510

Dear Senator Warner:

This is in response to your recent letters on behalf of your constituents (list attached) who have expressed concern over the Occupational Safety and Health Administration (OSHA) regulations for excavation safety. I appreciate your patience and that of your constituents as we resolve their concerns.

As Mr. Roy Gurnham of my staff discussed with Ms. Crowder of your staff, the concerns raised by your constituents are national in nature and, as a result, the time required to evaluate the problem became considerable. However, I believe the attached memorandum to our field staff reflects this effort and appropriately resolves the issue.

If you or your constituents require further assistance, please do not hesitate to contact either Mr. Roy Gurnham or Mr. Dale Cavanaugh of my staff in the Office of Construction and Maritime Compliance Assistance at (202) 219-8136.

Sincerely,



Joseph A. Dear
Assistant Secretary

Enclosures



May 23, 1995

Mr. Joseph A. Dear
Assistant Secretary for Occupational
Safety & Health
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Dear Mr. Dear:

Attached is correspondence which I have received from Mr. W.A. Corbitt, Jr., regarding problems which he and others in the construction industry have experienced in complying with Section 1926.650 of OSHA 29 CFR. As you know, this section technically defines the space between a house foundation wall and the dirt bank of the excavation as a trench.

As will appear from the attached correspondence, there is no shoring equipment presently on the market which can be used in this space, and no company is apparently willing to attempt to produce such equipment. Residential lot sizes, adjacent public utilities, sidewalks and curb and guttering make sloping of residential foundation walls impossible in most instances. Therefore, compliance with the regulation is virtually impossible. Mr. Corbitt's business is suffering as a result of his inability to comply with the regulation.

I note that the Honorable Robert W. Goodlatte has requested statistical information on injuries and fatalities which have occurred in this space. I, too, would like to be provided with this information.

I would appreciate your continued efforts to expedite a solution to this problem, and I would appreciate it if you would keep me advised of developments.

Thank you for your assistance.

With kind regards, I am

Sincerely,


John Warner



May 19, 1995

Senator John Warner
Suite 10003
1st Union Bank Building
Roanoke, Va. 24011

Re: Misapplied OSHA Trench Regulation

Dear Senator Warner:

My wife and I own and operate Blue Stone Block Inc. here in Roanoke. We manufacture concrete masonry units and sell brick, stone and related masonry materials and also are a state licensed waterproofing contractor and perform new construction foundation waterproofing, primarily on new homes.

Five years ago, in 1990, OSHA developed regulations on excavations and trenching. These were intended to protect utility workers, those who worked in deep dirt ditches laying pipe, etc., from death or injury due to the banks of the trenches caving in on them. That regulation, OSHA 29 CFR 1926 SUBPART P EXCAVATIONS, required that all trenches either be braced and shored from wall to wall or have the sides laid back at about a 45 degree angle to prevent the possibility of a cave in of the bank.

From 1990 to 1994 utility contractors purchased or manufactured shoring and bracing equipment that enabled them to comply to the regulation. They work in the bottom of a trench so the equipment they used blocked off access to the trench sides and generally braced one side of the trench against the other. The regulation had several pages of prescriptive data that illustrated how this was to be done.

In June of 1995 OSHA raised the minimum fine for a willful violation from $5,000 per occurrence to $25,000 per occurrence. If you were aware of a regulation and intentionally disregarded or were indifferent to the regulation and OSHA could prove so you got fined $25,000 irregardless of the size of your company.

In September of 1994 I was made aware that Federal OSHA had instituted a new construction job site inspection program called the BIG FOUR. Instead of inspecting the construction site for the host of safety regulations pertaining to construction the BIG FOUR concentrated on the four major hazards OSHA said resulted in the majority of injuries and fatalities on construction job sites. One of the four areas of concentration was trench hazards.

The big surprise came when we found out that Section 1926.650 of OSHA 29 CFR had one sentence which technically defined that space between the house foundation wall and the dirt bank of the excavation as a trench!

Home builders, waterproofing contractors, forming contractors, block masons, were all working in what OSHA defined as a trench but were not even aware that the regulation existed.

I found that two contractors had already been cited for having workers in this "trench". One had a crew waterproofing a house foundation, the other had a crew construction wood forms for a poured concrete house foundation. I am told that each exposed worker resulted in a citation for a serious violation of the regulation.

Since we became aware of the interpretation of the regulation (September 94) we have been searching diligently for shoring equipment which will allow us to meet the OSHA requirement outlined in 29 CFR Part 1926, OSHA Subpart P, Excavation and Trenches (referred to as 29 CFR in this letter). During that time we have been forced to virtually shut down our foundation waterproofing division because no such equipment has been found. We have called every major trench equipment manufacturer we can find listed. None have equipment which allows access to one side of the "trench", in our case the house foundation wall, where we apply waterproofing.

Even more distressing is that none of the companies we have contacted are interested in custom designing such equipment. One company claims that over 40 percent of its business is custom engineered shoring equipment for utility type trenches but they refused to design the type of shoring equipment needed to comply with this regulation around a house foundation.

One of the companies finally admitted, after numerous calls and discussions with their design engineer, that even if we attempted to use their standard line of trench shoring equipment, which had been used since 1990 for utility contractors to be in compliance in dirt ditches, in such an application around the house foundation, they would refuse to approve the application. He informed me that their line of equipment was designed to be used in a trench between two dirt banks per 29 CFR, period. There was no way they would approve its application between a foundation wall and a dirt bank because the strength of the foundation wall was an unknown factor and incurred a risk which his company was not prepared to take. Their liability would exist even if the equipment performed as designed but the foundation wall against which it braced collapsed under the load.

He also informed me that none of the prescriptive tables, diagrams or data shown in 29 CFR were applicable when used around a foundation and no prescriptive data was presented on such an application primarily because nothing was included which determined the ability of the foundation wall, of unknown strength, to hold back the forces that would be transferred to it by the shoring in the event of a bank collapse.

He stated that all prescriptive tables and diagrams are for shoring between two dirt banks, where forces from a collapse on one side of the trench are transferred to the other side of the trench.

He also doubted that any shoring manufacturer would design such equipment and felt that our lack of success in getting such equipment from other such manufacturers was due to their assessment of the risk being too high.

After much persuasion he finally agreed to send me the design data on his standard shoring components so I could get a local professional registered engineer to custom design shoring that my company could use to comply with the regulation. My professional registered engineer declined to design such a system because it would have to brace off of the house foundation wall and he had no idea what strength that wall would be for all situations.

Based upon what I am hearing from the experts, those who make a living manufacturing trench shoring equipment, OSHA has implemented a standard requiring shoring around foundations and no safety equipment is currently available that will enable this waterproofing contractor or other contractors such as foundation formers, masons, and foundation plasterers to meet that standard.

When you consider that while that foundation wall is under construction and being created there is nothing to shore (brace) the bank against, compliance to 29 CFR becomes more impossible. Assuming that all foundation walls can be excavated at an angle, or sloped, thereby reducing the need for shoring is an invalid assumption in the Roanoke area. Residential lot sizes, adjacent public utilities, adjacent sidewalks and curb and guttering all make sloping of residential foundation walls impossible in many cases so there will usually be a requirement for shoring on one or more walls of some homes under construction by 29 CFR.

The National Association of Home Builders (NAHB) of which I am a member and the National Concrete Masonry Association (NCMA) of which I am a member could not advise me on how to be in compliance with this regulation. We are responsible company with a strong safety program and a good safety record. We had no choice but to refuse to work in this space between the foundation wall and the dirt bank on any home site. Of additional concern was the possibility of $25000 fines each for my crew of three which could have bankrupted our waterproofing division.

As a result of inquiries by Congressman Goodlatte, on behalf of the Roanoke Regional Home Builders, Mr. Joseph Dear of OSHA sent a letter, dated December 13, 1994, stating that "The National Association of Home Builders is working with OSHA to determine what changes or interpretations are needed, if indeed any, so that the standard is appropriate for house building activities."

On April 5, 1995, I was asked by NAHB to review a draft document from John B. Miles, Jr, Director of Compliance Programs for OSHA, which I did. That draft document addressed the trench regulation only pertaining to the sloping requirement.

On April 19, 1995 I was faxed a copy of the final draft of that document by Jeanne Moomaw of Congressman Goodlatte's office. The document was accompanied by an unsigned letter from Mr. Dear and referenced the above concerns about the infeasibility of the regulation. The letter stated that '... we have reviewed Mr. Corbitt's comments and concur with his concerns". That final draft bore just a slight resemblance to the draft I had reviewed on April 5 for NAHB.

On April 21, 1995 I wrote Congressman Goodlatte expressing my disappointment with the fact that the final draft basically was meaningless because it still required us to be in compliance with the trench regulation which was infeasible.

I also wrote that I had discussed injuries and fatalities in this particular space, that space between the house foundation wall and the dirt bank, with the loss control manager of my workers comp carrier on 4/20/95. (We belong to a group made up primarily of contractors.) He had called me back and stated that they didn't have any history of any claims for injuries or fatalities having been filed in this space due to cave ins. They did not consider that space around a house foundation to be hazardous.

On 4/25/95 Ms. Moomaw faxed me a 21 page fax from OSHA to Congressman Goodlatte with the same letter from Mr. Dear as that sent on April 19 except that this one was signed. Included was data that a Mr. Charles Culver, Director of Construction and Engineering for OSHA had apparently researched August 21, 1991 on an unrealistic approach to shoring which OSHA stated in the document "This system would also entail significant costs when compared to the total cost of homes in most jurisdictions". There was no apparent explanation for the 1991 document.

All during this time I had been calling Ms. Regina Soloman, Assistant Director of Labor, Safety & Health for NAHB and keeping in touch with Congressman Goodlatte's Roanoke office, and calling Randall Pence of NCMA in an effort to find some way we could reassume our waterproofing business in this space which the OSHA regulation called a trench. By now our waterproofing sales were off 50% and falling fast because we still refused to work in this "trench" because we could not comply with the OSHA regulation.

On May 11 my insurance agent called me and informed me of the results of a conversation he had with the workers compensation section of Cincinnati Insurance (who formerly was my workers comp carrier.) He had been told by them that they had no history of claims for injuries or fatalities by workers in that space between the house and the bank due to cave ins.

On May 15, 1995 I was faxed a copy of a letter from NAHB President James Irvine, copy attached, which addresses the trench situation on page 2. This letter somewhat expresses the frustration both NAHB and this writer feels with the inability of OSHA to address this infeasible regulation in a meaningful way. The last paragraph on page 2 requests that OSHA suspend the requirements for trenching around house foundations.

During this time I understand that Randall Pence of NCMA has contacted your office in Washington and requested a hearing on the matter with OSHA because of the impact this misapplied, infeasible regulation has on masons who have to lay concrete masonry foundations for houses in this space. In addition I understand that Congressman Goodlatte's staff here in Roanoke has been trying to get data on injuries and fatalities from OSHA that would justify the need for the regulation on house foundations. There is reason to believe that the OSHA data pertains only to dirt trenches that utility contractors work in and not this space between the foundation and bank on a house.

I cannot help but question the validity of the data that prompted OSHA to regard this specific space as hazardous. Dirt trenches yes, foundation space around a house, why? The fact that only one bank is dirt and the other is concrete or block must have a bearing on the absence of injuries or fatalities in this space.

What prompted OSHA to include this foundation space in the standard and what was their justification? If the foundation space was of such concern why was no detailed reference to it given in any of the tables or shown on any of the sloping diagrams? Why are citations just now starting to be issued if it has been such a dangerous space the past 5 years since trenching regulations were developed? OSHA is now aware that such safety equipment is not currently available to the home building industry for this space.

Please forgive the length of this letter but it represents some 10 months of activity, that I am aware of, attempting to get resolution on a misapplied OSHA regulation that is infeasible for the home builder, waterproofer, mason, form builder and other trades that have to work in that space around a house foundation which OSHA mistakenly calls a "trench".

I understand that Jeanne Moomaw of Congressman Goodlatte's office has sent a packet of documents pertaining to this matter to your office here in Roanoke. If I can supply you with any additional documents please give me a call. The clock is running on our ability to keep our waterproofing company going when we are having to turn down over half the jobs offered to us because we can't comply with the OSHA regulation.

Senator Warner your assistance and advice in this matter are urgently needed by this businessman and the home building industry.

Sincerely,

Blue Stone Block, Inc.



W.A. Corbitt, Jr.
Chairman