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  • Acts
  • 2002
  • Chapter 387 AN ACT RELATIVE TO EXCAVATION AND TRENCH SAFETY.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:


SECTION 1. Chapter 82 of the General Laws is hereby amended by striking out section 40D, as appearing in the 2000 Official Edition, and inserting in place thereof the following section:-

Section 40D. Nothing in this section shall affect or impair local ordinances or by-laws requiring a permit to be obtained before excavation in a public way or on private property; but notwithstanding any general or special law, ordinance or by-law to the contrary, to the extent that any permit issued under the provisions of the state building code or state fire code requires excavation by an excavator on a public way or on private property, the permit shall not be valid unless the excavator notifies the system as required pursuant to sections 40 and 40A, before the commencement of the excavation, and has complied with the permitting requirements of chapter 82A.

SECTION 2. The General Laws are hereby amended by inserting after chapter 82 the following chapter:-

CHAPTER 82A. EXCAVATION AND TRENCH SAFETY.

Section 1. An excavator shall not leave an open trench unattended without first making reasonable effort to eliminate any recognized safety hazard that may exist as a result of leaving the open trench unattended. The commissioner of public safety, in conjunction with the director of labor and workforce development, or his designee, shall promulgate rules and regulations governing all construction related excavations and trench safety. The rules and regulations shall include, but not be limited to, a description of recognized safety hazards that may exist as a result of leaving open trenches or excavations unattended, a description of the procedures required or recommended by the department to eliminate safety hazards which may include covering, barricading or otherwise protecting open trenches from accidental entry, and a penalty structure for each violation of the proposed rules and regulations to be imposed by the department empowered with ensuring compliance with the rules and regulations. This penalty structure shall include the imposition of a fine for each violation of the regulations promulgated pursuant to this section. Any such fines collected by the department of public safety or the department of labor and workforce development shall be available for expenditure, without further appropriation, by those departments in an amount not to exceed $100,000 during each fiscal year for the sole purpose of providing construction safety training for licensed operators of hoisting equipment, police department officials, fire department officials and building officials. Those departments may also charge a reasonable fee to help defray the costs associated with said training. Any monies collected from the imposition of these fines in excess of $100,000 shall be transmitted monthly by those departments to the state treasurer who shall then deposit the excess funds into the General Fund. The department of public safety, in conjunction with the department of labor and workforce development, shall file a report detailing the amount of fines imposed, collected and expended pursuant to this section with the house and senate committees on ways and means and with the joint committee on public safety not later than August 15 of each year. The rules and regulations shall not be effective until the department of public safety has received a formal determination from the United States Secretary of Labor that the proposed rules or regulations do not seek to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a federal standard has already been promulgated under 29 U.S.C. section 667 or until the rules and regulations are approved by the United States Secretary of Labor as a state plan for the development of the standards and their enforcement pursuant to 29 U.S.C. section 667(c).

Section 2. Each city, town or public agency shall designate 1 board or officer to issue permits for the excavation of trenches on privately owned land and for the excavation of a public way of a city or town. The permits, when issued, shall include a summary of sections 40 to 40D, inclusive, of chapter 82 and a summary of regulations promulgated by the department of public safety relative to chapter 146. No person shall, except in an emergency, contract for the making of or make a trench, in any public way, public property, or privately owned land until a permit is obtained from the appropriately designated person within the city, town, or public agency that is authorized to issue the permit. The person shall notify the local permitting authority of the exact location of the trench. A person making application for a trench excavation permit shall produce a certificate of insurance with general liability coverage of $100,000 per person and $300,000 per claim or provide evidence of self-insurance in equal amounts. The local permitting authority may charge a reasonable fee to cover the administrative costs of the trench excavation permitting process incurred by the municipality in connection with the review and processing of the permits; but, a gas company, as defined in section 1 of chapter 164, or any corporation that is subject to the provisions of chapter 165, 166 or 166A which has already paid a fee in order to attain a permit to excavate a public way of a city or town shall not be responsible for paying an additional fee for the same excavation.

Section 3. A permit to excavate a trench issued pursuant to this chapter may be in any form authorized by the local permitting authority, but shall include the following statements:

(1) A trench shall not be excavated unless the requirements of sections 40 to 40D, inclusive, of chapter 82, and any accompanying regulations, have been met and this permit is invalid unless the requirements have been complied with by the excavator applying for the permit including, but not limited to, the establishment of a valid excavation number with the underground plant damage prevention system as provided in section 76D of chapter 164.

(2) Trenches may pose a significant health and safety hazard. Pursuant to section 1 of chapter 82, an excavator shall not leave any open trench unattended without first making reasonable efforts to eliminate any recognized safety hazard that may exist as a result of leaving the open trench unattended. Excavators should consult regulations promulgated by the department of public safety in order to familiarize themselves with the recognized safety hazards associated with excavations and open trenches and the procedures required or recommended by the department to eliminate safety hazards which may include covering, barricading or otherwise protecting open trenches from accidental entry.

(3) Persons engaging in any trenching operation shall familiarize themselves with the federal safety standards promulgated by the Occupational Safety and Health Administration on excavations: 29 CFR 1926.650 et. seq., entitled Subpart P "Excavations".

(4) Excavators engaging in any trenching operation who utilize hoisting or other mechanical equipment subject to chapter 146 shall only employ individuals licensed to operate said equipment by the department of public safety pursuant to said chapter 146 and this permit shall be presented to the licensed operator before excavation is commenced.

(5) By applying for, accepting and signing this permit, the applicant hereby attests to the following: (i) that he has read and understands the regulations promulgated by the department of public safety with regard to construction related excavations and trench safety, (ii) that he has read and understands the federal safety standards promulgated by the Occupational Safety and Health Administration on excavations: 29 CFR 1926.650 et. seq., entitled Subpart P "Excavations", and (iii) that he is aware of and has, with regard to the proposed trench excavation on private property or proposed excavation of a city or town public way that forms the basis of his permit application, complied with the requirements of sections 40 to 40D, inclusive, of chapter 82 and with the requirements set forth in this chapter.

(6) This permit shall be posted in plain view on the site of the trench.

Section 4. For purposes of this chapter, a "trench" shall be defined as an excavation which is narrow in relation to its length, made below the surface ground in excess of 3 feet below grade and the depth of which is, in general, greater than the width, but the width of the trench, as measured at the bottom, is no greater than 15 feet and the words "excavator", "excavation" and "emergency" shall have the same meanings as defined in section 40 of chapter 82.

Section 5. The requirements of this chapter are in addition to the requirements set forth in sections 40 to 40D, inclusive, of chapter 82 and not in lieu thereof.

SECTION 3. Within 90 days after the passage of this act, the commissioner of the department of public safety, in conjunction with the director of the department of labor and workforce development or his designee, shall draft, pursuant to chapter 30A, proposed rules and regulations for construction related excavations and trench safety. Said rules and regulations shall include, but not be limited to, a description of recognized safety hazards that may exist as a result of leaving open trenches or excavations unattended, a description of the procedures required or recommended by said department in order to make every reasonable effort to eliminate said safety hazards which may include covering, barricading or otherwise protecting open trenches from accidental entry, and a penalty structure for each violation of the proposed rules and regulations to be imposed by the department empowered with ensuring compliance with said rules and regulations. Upon completion of the drafting of these proposed rules and regulations, the commissioner and the director shall, subject to the approval of the governor, petition the United States Secretary of Labor for a formal determination as to whether any of the proposed rules or regulations seek to assume responsibility for development and enforcement of occupational safety and health standards relating to any occupational safety or health issue with respect to which a federal standard has already been promulgated under 29 U.S.C. section 667. If the United States Secretary of Labor determines that the proposed rules or regulations seek to assume responsibility for development and enforcement of occupational safety and health standards relating to any occupational safety or health issue with respect to which a federal standard has already been promulgated, the director and the commissioner shall submit, pursuant to 29 U.S.C. section 667(b) and subject to the approval of the governor, the proposed rules and regulations as a state plan for the development of such standards and their enforcement, and these proposed rules and regulations shall not take effect unless and until they are so approved by the United States Secretary of Labor pursuant to 29 U.S.C. section 667(c).

Approved December 4, 2002.