On November 2, 2007, the Department of Public Safety ("Department"), in conjunction with the Division of Occupational Safety (" DOS"), promulgated regulations that establish standards to prevent unauthorized access to unattended trenches in the Commonwealth. The regulations, 520 CMR 14.00: Excavation and Trench Safety ( 520 CMR 14.00: EXCAVATION AND TRENCH SAFETY pdf format of    520_cmr_14_trench.pdf  27kb), were written in a joint effort by the Department and DOS following the enactment of Chapter 82A of the General Laws. Chapter 82A, also referred to as Jackie's Law, sets forth the required content of the regulations and was passed by the Legislature following the death of 4-year-old Jaclyn Moore, who was buried when an unattended trench collapsed in a private backyard. The three major components of the regulations are:
  • The requirement that excavators obtain a permit prior to creating any trench;
  • The establishment of standards for securing a trench when it is unattended; and
  • The authority of the Department to fine excavators for the failure to adhere to the regulations.

Other highlights of the regulations:

  • The regulations require that municipalities establish a permitting authority to act as the permit-granting body for the city or town where trenches are created on a public way, municipal property, or private property. Municipalities may also choose to create a regionalized permitting authority.
  • The regulations require that state agencies designate a permitting authority to act as the permit -granting body for the state agency where trenches are created on state-owned property or property the agency otherwise has an interest in, such as an easement.
  • The regulations require that excavators secure unattended trenches by posting an attendant; backfilling; barricading; or covering the trench to prevent unauthorized access by the General Public. Distinguishing between the General Public and the individuals creating and working in the trench is important because the DOS and the Occupational Safety and Health Administration ("OSHA") already administer laws relative to worker safety. The trench regulations are intended and written to provide protections for those individuals not actively working in or around the trench but who are otherwise exposed to it.
  • The regulations authorize the permitting authority, the Department, or the DOS to immediately shut down an unattended trench where a safety hazard is identified and prohibit reopening until the safety hazards are mitigated and the site is reinspected.
  • The regulations authorize the Department to issue a fine for each violation of the regulations, in addition to any disciplinary action taken against the excavator by a permitting authority, such as revocation or suspension of a permit.

The Department and the DOS have delayed the enforcement of the regulations until January 1, 2009 to provide municipalities and excavators with the opportunity to become familiar with the regulations and take necessary steps to implement the required provisions. The Department and the DOS will offer separate trainings on the Excavation and Trench Safety regulations, free-of-charge, for municipal attorneys, municipal administrators, and excavators in early-2008. Please check this website in early-December for a schedule.