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TOR-2008-5 TRENCH PERMITS ��p�r�oo$�� I re,A�� ern��� 1 " i 07 �_t cc, TOR-2008-5 AN ORDINANCE CREATING ARTICLE IV OF CHAPTER 155 OF THE CODE OF THE TOWN OF AGAWAM ESTABLISHING A PERMITTING AUTHORITY AND A PERMIT FEE FOR TRENCH PERMITS IN THE TOWN OF AGAWAM PURSUANT TO M.G.L. CHAPTER 82A WHEREAS, the Commonwealth of Massachusetts has enacted legislation (Massachusetts General Laws Chapter 82A) and adopted regulations (520 CMR 14.00) relative to excavation and trench safety; WHEREAS, the legislation and the regulations promulgated thereunder require all municipalities in the Commonwealth to designate one board or officer to issue trench permits and to set a fee for trench permits in the Town of Agawam-, WHEREAS, the Superintendent of Public Works or his designee currently regulates excavations in public ways and licenses drain layers installing building sewers and drains; WHEREAS, it is in the best interests of the Town of Agawam to designate the Superintendent of Public Works to issue trench permits in the Town of Agawam and to set a fee of twenty-five ($25,00) dollars for a trench permit; and NOW THEREFORE, BE IT RESOLVED BY THE AGAWAM TOWN COUNCIL that the following Article IV entitled "TRENCH PERMITS" be added to Chapter 155 entitled "STREETS AND SIDEWALKS" of the Code of the Town of Agawam: CZ5 §155-27 entitled "Trench Permits" and F4155-28 entitle "Trench Permit Fee" are hereby added to the Code of the TowrR gt�:- :E�C'j of Agawam under the designatiun of Article IV to Chapter 15,5, to read as follows: ZZr. "ARTICLE IV — TRENCH PERMITS §155-27. Trench Permits. Pursuant to Massachusetts General Laws Chapter 82A and 520 CMR 14.00, as amended from time to time, the Superintendent of Public Works or his designee is designated as the permitting authority for the issuance of trench permits in the Town of Agawam. In the issuance of trench permits, the Superintendent of Public Works or his designee shall follow the requirements of Massachusetts General Laws Chapter 82A and 520 CMR 14.00, as amended from time to time. §155-27. Trench Permit Fee. The fee for a trench permit in the Town of Agawam shall be twenty- five ($25.00) dollars. The Town of Agawam shall be exempt from the payment of trench permit fees under this ordinance." PER ORDER OF THE AGAWAM CITY COUNCIL Gipla 'K. Let'ellier,V,/ds-ide'nt APPROVED AS TO FORM AND LEGALITY Christopher C. Joh n, City Solicitor MAYORAL ACTIO Received this day of 0 LCO nL&U 2008 from Town Council Clerk. Signed by Council Prcsident this zt- dayof 2QXjj3UWj , 2008. APPROVAL OF LEGISLATION By the powers vested in me pursuant to Article 3, Section 3-6 of the Agawarn Charter, as afllen�q, I hereby approve the passage of the above legislation on this E-.Qr4 day of -Le-0-,Yk 2 00 S. Li S Usan R. Dawson, Mayor DISAPPRO VAL OF LEGISLATION By the powers vested in Me pUrsuant to Article 3, Section 3-6 of the Agaxvam Charter, as amended, I hereby veto the passage of the above legislation on this day of 1.2 0 2008 for the following reason(s): SLISan R. Dawson, Mayor RETURN OF LEGISLATION TO COUNCIL CLERK rVO Retumed to COL11161 Clerk this day of �JJX-tN IWA 2008. TOR-2008-5 AN ORDINANCE CREATING ARTICLE IV OF CHAPTER 1S5 OF THE CODE OF THE TOWN OF AGAWAM ESTABLISHING A PERMITTING AUTHORITY AND A PERMIT FEE FOR TRENCH PERMITS IN THE TOWN OF AGAWAM PURSUANT TO M.G.L. CHAPTER 82A WHEREAS, the Commonwealth of Massachusetts has enacted legislation (Massachusetts General Laws Chapter 82A) and adopted regulations (520 CMR 14.00) relative to excavation and trench safety; WHEREAS, the legislation and the regulations promulgated thereunder require all municipalities in the Commonwealth to designate one board or officer to issue trench permits and to set a fee for trench permits in the Town of Agawam; WHEREAS, the Superintendent of Public Works or his designee currently regulates excavations in public ways and licenses drain layers installing building sewers and drains; WHEREAS, it is in the best interests of the Town of Agawam to designate the Superintendent of Public Works to issue trench permits in the Town of Agawam and to set a fee of twenty-five ($25.00) dollars for a trench permit; and NOW THEREFORE, BE IT RESOLVED BY THE AGAWAM TOWN COUNCIL that the following Article IV entitled "TRENCH PERMITS" be added to Chapter 155 entitled "STREETS AND SIDEWALKS" of the Code of the Town of Agawam: 4155-27 entitled "Trench Permits" and 4155-28 entitled "'Trench Permit Fee" are hereby added to the Code of the Town of Agawam-under the designation of Article IV to Chapter 155 to read as follows: "ARTICLE IV — TRENCH PERMITS §155-27. Trench Permits. Pursuant to Massachusetts General Laws Chapter 82A and 520 CMR 14.00, as amended from time to time, the Superintendent of Public Works or his designee is designated as the permitting authority for the issuance of trench permits in the Town of Agawam. In the issuance of trench permits, the Superintendent of Public Works or his designee shall follow the requirements of Massachusetts General Laws Chapter 82A and 520 CMR 14.00, as amended from time to time. §155-27. Trench Permit Fee. The fee for a trench permit in the Town of Agawam shall be twenty- five ($25.00) dollars. The Town of Agawam shall be exempt from the payment of trench permit fees under this ordinance." PER ORDER OF THE AGAWAM CITY COUNCIL Gina M. Letellier, President APPROVED AS TO FORM AND LEGALITY Christopher C. Joh n, City Solicitor To: Mayor Susan R. Dawson ;4 From-, John P.Stone, supt. D.P.W. Dominic Urbinati, Building Inspector Re; Trench Excavation Permitting Date: May8, 2008 We have followed up on the e-mail you forwarded to the DPW last month regarding a new state law requiring a community to issue permits for trenches on private and public property. This requirement goes into effect January 1, 2009. it seems a local by-laws may well be needed to authorize the permitting and the collection of any fee. The first step is to decide on which Department will issue the required permits. The State has suggested that Public works or Building Inspection Departments may be the approprIate local agency to handle the permitting. We have discussed this requirement and recommend that this responsibility be assigned to Public Works as they already are issuing permits for excavations on a public way and are most likely to have knowledge of excavations meeting the definition of a trench in this law. Please advise as to how or if you desire us to proceed. Cn C;�j CZ C..) LU _j CY_ C-4 < -= !) (� == CL Cm ILI C,L AL- C_ C, Le-4A.. 'b AON 8001 ,PIVVY 520 CMR 14 ,000 Excavation & Trench Safety Regulations : 0 An Introduction for Municipal Administrators Conunissioner Thomas G. Gatcimis, Department of Public Safety Commissioner Laura M. Marlin, Division of Occupational Safety r. n��lll��KKK�E������/�l. jy1 i� Background • AZguus' 20, 1999: 4-year-old Jackie Moore dies after being buried in freshly g t unattended h-ench in a Bridgewater bacic�. • DPS takes action against excavator's license. OSHA assesses penalties for failure to backfill tfench and failure to provide safe means of egress. — At the time of the accide-iit, no re0ations relative to trench safety for the General Public at ufnattended trenches existed in the Conunonwealth. • December 4, 2002: Le - lature enacts legislation relative to excavation and trench safety, MGL c. W.2' A. §1 authorizes DPS and DOS to pror�iWgate regs and requires the U.S. Department of Labor/C)SHA to certify. §2 provides for a pennitting authority within municipalities and public agencies and establishes a permit requirement. §3 sets forth the pennit contents §4 provides for definitions §5 establishes that the trEnch regulations complement and do not supersede the Dig Safe laws. I listory of the Regulations • 02/21/2006: First draft of regulations suUmitted. to U.S. Dearhment of Labor/OSHA for approval puramt to K�6L c. 82A, §1 . • 06/28/2006: DPS/DOS notified b OSHA that draft regs likely to be preempted by federal law. • 08/01/2006: DPS/DOS meet with OSHA to discuss regs • 09/25/2006: Second draft of regulations submitted to OSHA. • 12/14/2006: Final draft of significantly pared regs submitted to OSHA • 02/27/2007: DOS/DPS notified that regs satisfactory�,z.- (i.e. tmlikely to be preempted by federal law) . �: n Scope 8z Purpose of Trench Safety . Laws: c . 82A & 520 CNM 14.00 • Two purposes: — Protect the General Public from hazards inherent in trenches; and — Provide for penalties for violations. • The laws apply to Excavators and set forth actions excavators must take to protect the General Public. -- The law does not apply to worker safety. IrOP 5. . �3• ,r Irv% L rn 1 � a can Q o x 4-J t7J tin w�- t]Q {-j Ary d. vy 4-1 CC3R b0 u o .Q) --- Ln a� _jt 5 4-j 41 C q} O O 4a -C a- O !. A i, t Uri, 4 4-4 4-1 ei rt y cn ' •a• fir.% 4x 4-1 How do the regs achieve the purpose of protecting the General Public? • .Purpose: To provide protections 'to the General Public from the hazards inherent in unattended trenches. 1 . Requires excavators to obtain a pen-nit. 2. Requires excavators to provide protections when trenches are unattended. 3. Deters violations by authorizing the collection of fines. Yh'� What are municipalities required to do? 1 . Establish a permitting authority. 2. Require permits. I Regulate their own municipal departments creating trenches. 4. Shut down trenches where violations found. F L Municipalities are required to establish a ei�ni t� tting authority. • Required pursuant to MGL c . 82A, §2 and 520 CMR 14.03(l ) . • The permitting authority is responsible for: — The issuance of french permits; — The collection of permit fees; and — The enforcement of protections for the General Public required by 520 CMR 14-04. • The designation of a permitting authority may require action by Town Meeting. L Who should a municipality designate as the permitting authority? • One board or officer (N4GL c. 82A, §2). • Cities d towns may designate through a Town an Meeting Warrant Article. • NOTE: Cities and towns may also choose to adopt more stringent safety requirements through ordinance or by-law. • DPS and DOS recommend the designation of an individual or board presumed to have knowledge of excavation safety already, such as: — A Local Building Commissioner or Inspector; — A Fire Chief or other Local Fire Department Official; — A DPW Director; or — A City or Town Engineer. ,. e 2 . Municipalities must reqw* re a -trench pennit. Pern­dts are IN. Wred whenever you me making a trench,, as that definition applies. Note, however, that the Trench Safety regs must be read in conjunction with the Building Code. — Excavations solely to lace a foundation ge all fall outside the 2A) ntteiereTore they do not definition of a trench according to c. 8 require a trench pem-dt. — Building Code and Trench Regs provide for many of the same General Public protections, with some exceptions. Finafly, some excavations may require bodt a trench and a building pem-tit- For example, the construction of a Trench Permit house with a septic ­7 system will require both: a building permit for the foundation and a trench permit for f r the trench excavation for the septic system. ------- What is needed to obtain a permit? • Required: — A completed application to excavate a trench; and — A certificate of utisurance with general liability coverage of $100,000 per person and $300,000 per claim. (See MGL c. 82A, C'2) • Optional at discretion of municipality: — A reasonable permit fee. ➢The purpose of the fee is to cover the administrative costs of reviewing and processing the permits. 5.5 - St� fi< < J��Ocn What infoTmation must the permit application reqpire? 'Me rer*- emmts of the pennit application are outlined in 520 CMR 14.03( — Dig Safe number — Name and contact infort-nation of the pem--dt holder; — Name and contact infonnation of the excavator(s); The penrdt-ting authority shoWd realize that the specific excavator, co,� , Zent may change on complex pipjects. forgerson; and =0 cessary during the course of the project. Name of the copVgtent person(s); Name of the person(s) performing the excavation of the trench; Pennit expiration date (where applicable); Specific location of the trench (puramt to MGL c. 82A, §2) Name and contact information of the insurer; and Statements recl=ed b MGL c. 82A, §3 relative to the r Of fan-uhanty wlffi 520 M 14.00 and 29 CFR 1926-650 SHA). The Pennit is similar to the Street Opening Pem-iit and the application for a Trench Pennit may be included with that dp�phcation. Who must obtain a permit .? • ANY excavator, whether a public agency; public utility; municipal DPW, private company or citizen, who plans to dig a french must obtain a pen-nit. • Pen-nits must be obtained prior to beginning* the excavation of a trench in or on any: — public way; — public property; or — privately owned land. 'Exceptions exist for emergencies. �'a Do excavators need a permit even in the case of an emergency? a IDM,ergermt�y: an unforeseen condition in which the safety of the public is in imminent danger because of a threat to life or health or where immediate correction is required to maintain or restore essential public utility service. • Emergencies relax the requirement for a pen-nit bejbm beginning to excavate, but not the requirement for a pen-nit all together. — Excavators must still obtain a permit from the A?5= •�,c permitting authority upon the first reasonable � 4 =L opporttmity (i.e. business hours). 3 . Municipalities must regulate their own munic ipal departments creating trenches. • Municipal departments must adhere to the saute standards of permitting and General Public protections as other excavators. • Blanket pen-nits for large projects may be authorized through the adoption of a local by- law. — Key: Specific location of the trench must always be on file with the pennitting authority! (MGL c }'''"Mp»,`<< 82A., §2) tel: 4 . Municipal ities are required to shut down trenches where a violation is found and may take other actions . • Possible actions include: — Immediate shutdown by DPS, DOS, or local authorities for a serious threat to public safety. — Post-hearing suspension or revocation of permit. — Imposition by the DPS of furffier administrative fines against the excavator (MGL c. 82A, Sl ) . What does the .pern-iitting authority look for at a trench site? • Is the trench unattended? • Is the permit posted in plain view at the site of the french? — What's plain view? • The cabs of the hoisting equipment (so as not to block the view of the operator); • The window of the construction trailer. • Is the permit provided upon request? • Have effective protections for the General Public been implemented? • Does the information at the site match thetu AC, 4- L�aC information on the permit ? � �'° When do pennifttrig .. authorities 0 0 order an immecliate shutdowli?. Men the mu--dcipaW finds: — A fatality or serious * 1*qW-to the general public; or jLj — A failure to use effective protections for the.General Public as required by 14.04; or — Any other condition that constitLites a serious threat to life, limb, or property of the General Public as detennined by the Pennitting Authority; or — The excavator failed to obtain a pennit. Shutdown remains in effect until condition corrected to satisfaction of authority responsible for shut down. — Reinspection required. — Penydt holder has a right to appeal irimediate shutdov%n within 10 calendar days. -TON What are effective protections for the General Public? • Protecting the General Public from unauthorized access to unattended trenches is as easy as A-B-B-C. I . Attendance 2. Barriers 3. Backfill; or 4. Covers • All unattended trenches must be protected from access, whether on public ways, public lands, and private properly. Sr�Jc^ W ate` Effective Protections on Public ays .. . • ff' es covers or barriers when no less ffianMinches thick Pray . treridi unattended. — Covers niust be steel plates �� _ �•}- _-� :�-j3,=Yam,:-�x� ��.� or equivalent and placed over the excavation or trench — Barriers used instead of covers to secure an unattended trench 4-iall be no less _ -.tom-_ .c-•�7c than 6 feet in height; Barriers be adequately stable and supported so as not to be blown over or easily moved .�. Nomoreffian. 4 inches • �, t multi- sectioned barriers ,tip Barriers shall be placed so as to be unaffected r conditions • ! cave of trench Effective Protections at Fixed Worksites Barricade at Fixed work site- work site that is No spaces in least 6' high not located on a ublic -v�uy where fencing I the excavationoFa trench occurs. morizoniaT Covers, portable barriers, or supports on the baddillii-i attend-Ayeq�ed where trench is RE int - or un Covers must be steel plates no less fl-tan-3/4inches thick or A . equivalent and placed over the excavation or trench Portable barriers shall be erected to preclude unauthoriied entry, for example: • Placement of horizontal SLTWrts shall be on the inside ofthe barrier; • Barriers shall be at least 6 feet in height; L4 • Spaces in fencing shall not Photo from trench, looking out. exceed 4"' • Baniers shall be clearly kIr marked M.unicipalifies may also suspend or revoke a penrnit after a heafing. . . • Pen-nitting authbrity may suspend or revoke a permit followng a hearing, in addifion to ordering an immediate shutdown. • Individual permitting authorities shall establish their own gromds. consistent with the Trench Regulations for revoking or suspending a pennit holder's permit. BUT NOTE: Any suspension or revocation by the pennitting authority must not be imposed in a mamer that re0ates worker safety! • Hearings must be held in accordance with MGL c. 30A (Massachusetts Administrative Procedure Act) and 801 C 1 .02 (Tnf6ni1aVFair Hearing Rules). 520 CMR 14 . 00 Excavafion & Trench Safe Reoafion Recap ' 100 What the regulations do: i Requires per�mtting authorities, which include mimic' ali * s and p h excavation o= on ub .c aoencies, to issue permits for the �fivatel�or p&hcly owfied land within their jurisdiction. Sets forffi the requirements for and content of permits. Authorizes the shut down of trench. sites for failure to obtain a permit- • Allows municipalifies to charg� perrmt fees which may be retained by the municifiality for costs rekited to administration of the regulations. • Establishes re ments for barriers and covers for use with unattended trenches. • Allows for the perrnittimzy rAY-j DPS, or DOS to take immediate action toShutdo-wn and er that.-a trench be made safe where unsafe condifions are fomd. Authorizes the Departmep� to assess fines against excavators fo allowing unsafe unattended trenches. PenniWng authority may require more stringent public safety 0 0 provisions that do not conflict with 520 CMR 14 ,0000 • Additional provisions are generally adopted through by-law or regulation. • Examples: — Police detail requirement in the event of an immediate shutdown that requires reimbursement by the excavato r. — Mandatory inspection requirement. — Blanket permit provision. Regulation Recap, Cont. It is also critical to understand what the regulations do not require. The Trench Safety regs: • Do not require a trench pen-nit for the excavation of bu7ilf CIMAoundations (bCiflding pen-nits are still re • Do not mandate inspections. • Do not regulate worker safety already covered by OSHA (i.e.: the use of trench boxes). • Do not require a trench permit in the case of an emergency. • Do not allow for the suspension or revocation of pe=ts based solely on worker-related OSHA 5 � �-�t� violations. fi 14 . 02 Definifions Competent Person- A person or persons who is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to people, and who has authorization to take prompt corrective measures to eliminate them. A competent person must be able to demonstrate that he or she has been trained in and are knowledgeable about: soil analysis, the use of protective systems and the requirements of this regulation. Emergency- An unforeseen condition in which the safety of the public is in imminent danger because of a threat to life or health or where immediate correction is required to maintain or restore essential public utility service. Excavator— Any entity including, but not limited to, a person, partnership, joint venture, trust, corporation, association, public utility, company or state or local government body or public agency which performs excavation operations including the excavation of trenches. General Public — All natural persons not engaged in the creation of a trench. Permit Holder —The excavator who is responsible for acquiring a permit from the Permitting , Authority. Permitting Authority — A city, town, or public agency required to administer the provisions of 520 C.M-'R. 14.03. Public Agency— A department, agency, board, commission, authority, or other instrumentality of the Commonwealth or political subdivision of the Commonwealth or two or more subdivisions thereof. Serious Injury - A.personal injury that results in death, dismemberment, significant disfigurement, permanent loss of the use of a body organ, member, function, or system, a compound fracture, or other significant injury that requires immediate admission and overnight hospitalization and observation by a licensed physician. Trench — 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. Unattended Trench —A trench where neither the permit holder, excavator, nor any of the peo who work in or at the trench are present.