|OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
October 13, 2009
Re: Protective system requirements for excavations that will not be entered by employees.
Question: Are shoring or other protective systems required under 29 CFR 1926.652 for test pits that will not be entered by employees?
Answer: 29 CFR 1926.652(a)(l) states, in part:
Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with paragraph (b) or (c) of this section.
Therefore, the protective system requirements in 1926.652 apply whenever a worker is in an excavation. The key element of your question is "test pits that will not be entered by employees." (Emphasis added.)
The answer to your question will depend on whether it is reasonably foreseeable that workers will enter the pit. For example, in order for you to rely on the provision being inapplicable, all of the following facts would need to be present: no employee could be assigned to perform any task from within the pit; it must be a situation in which it is not reasonably foreseeable that work would be done from in the pit; the workers must have been trained to recognize the hazards of entering an unprotected excavation; and a work rule prohibiting workers from entering an unprotected pit must have been established, effectively communicated and enforced.
Also keep in mind that, in certain circumstances, an employer that creates an unprotected excavation has obligations with respect to the employees of other employers as, for example, a "creating employer" under the Multi-Employer citation policy, CPL 02-00-124.
Richard E. Fairfax, Acting Director
Directorate of Construction