MITA handles hundreds of MIOSHA appeals on behalf of members each year. The outcome of these appeals, in most cases, is dependent on information gathered by the member post inspection. MITA recently handled two appeals related to underground construction with very different outcomes.
The first appeal involved a contractor installing utilities approximately 10' deep. MIOSHA requires that "a support system shall be designed by a qualified person" and that the design shall be maintained on the jobsite. In this instance, an elaborate system that incorporated the use of plates, sheeting, screw jacks and kickers was in place and accompanied by a certified design. The serious citations issued by MIOSHA claimed that the design did not address water or to what depth the plates were being driven, even though the design provided a tolerance for this and water is addressed in a separate rule. The MIOSHA Appeals Division was quick to offer a reclassification from "serious" to "other than serious" with a small penalty in an effort to resolve the matter. The offer was refused. MIOSHA standards require that an ongoing inspection be preformed on all underground work, which was happening, as pumps controlled the water as needed. The design shoring in place was flexible enough to allow for an installation decision to be modified by a qualified person. With this information in place, both MITA and the member felt comfortable going forward with the appeal. Both citations were dismissed.
The second appeal involved a member installing a water main at a depth of between 6' and 7'. The qualified person on site determined that sloping was his preferred method of protection for the guys in the hole. The problem centered on the soil type, which was predominately sand, requiring a 45-degree angle of repose. The MIOSHA investigation determined the excavation in the 60-degree range on one side of the excavation and 64-degrees on the other. A repeat-serious violation was issued with only a $300 penalty attached, indicating the lack of severity regarding the excavation. The push behind the appeal was to remove the repeat designation due to the lack of severity regarding the excavation. To do so, MITA had to reject the offer made by the MIOSHA Appeals Division and press forward toward a formal hearing. Negotiations with the Attorneys General (AG) office failed to gain the modest request for classification. The main reason was that the inspection involved the same foreman from a previous citation. MIOSHA and the AG drew a deep line in the sand. The same foreman and an angle of repose more than 10 percent out of compliance was enough for the AG to dig in on the case even though this member had little history with the department. It is frustrating at best to take a black eye over a questionable case, but that is what happened; only a small penalty reduction was the result of the appeal.
Please remember that your MITA Trench Safety Handbook contains designs that can be used by your qualified person for most situations and considerations should be made when you start working outside of the norm. Contact MITA if you need any field training materials - it may just help you avoid a citation.