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Fall protection or fallout? New OSHA regs arrive in early 2008
by Bob Babin

Several large American grain companies are in the process of enlarging their railroad track fall protection coverage to accommodate updated corporate-wide fall protection policies. These new policies mandate that no employee may ascend railcars unless they have adequate fall protection. I think I can speak for everyone in the safety industry when I say that we applaud their commitment to safety, and not just because it means more business for the fall protection equipment manufacturers, but primarily because we too care about the safety of our citizens.

Until recently, most of the larger companies in the grain industry have followed policies established in a Compliance Directive written John Miles in October of 1996 (available on the OSHA website) which refers to Rolling Stock. Different companies have defined that directive to mean different things, and so far none of those differences have been resolved. The new fall protection standards expected in April 2008 may address those issues for the first time.
Some degree of confusion has arisen from the definition of the term “rolling stock”. To clarify rolling stock is defined by Webster’s Dictionary as “the wheeled vehicles owned and used by a railroad or motor carrier”. The term “motor carrier” has only recently been added to this definition; previously, it meant only railroad cars. So, we can safely assume that OSHA will be addressing both railroad cars and trailers. The John Miles Compliance Directive was an attempt to define the compliance enforcement guidelines for OSHA inspections, however it has caused a lot of confusion among legal professionals.

If the walkway on top of a railcar is not a walking/working surface, then what is it?

On the OSHA Grain Handling webpage, there is a statement that says “Suffocation and falls are the two leading causes of deaths at grain handling facilities”. If this sounds like it includes all falls, including those which occur from railcar tops, consider this: according to Sherman Williamson, a compliance official with the Directorate of Compliance and Enforcement of OSHA, “the tops of railroad cars are not currently considered by OSHA to be walking/working surfaces”. After almost fifteen years in this industry, I am certain that many of those fatal falls are from railcars. If the walkway on top of a railcar is not a walking/working surface, then what is it?

The current fall protection standard for general industry (Subpart D) does not specifically address fall hazards from the tops of rolling stock. In many people’s view, neither does the Miles Directive. On the one hand, OSHA says fall protection atop railcars is not mandatory, however, they also warn us that a company can and will be cited if someone falls from a railroad car and is injured or killed. Citations may be issued for fall protection violations under one of three reasons: 1910.132 (PPE Requirement); 1910.023 (Guarding floor and wall openings and holes); and the General Duty Clause 5(A)(1). Since the General Duty Clause 5(A)(1) is not an actual Regulation, 5(A)(1) citations are extremely difficult to enforce, and those are rarely used. Violations under 1910.132 and 1910.23 are the most common reasons for citations.

There are two ambiguous clauses in the Miles Directive that cause confusion. The first states that fall protection, as outlined under the General Duty Clause, is required “where feasible”, and the second, which stated that fall protection is required in areas “contiguous to a facility”, makes aggressive enforcement virtually impossible. In order for OSHA field inspectors to cite a grain facility for lack of fall protection over railcars or trailers and expect the citation to survive a court challenge, they need their legal department to stand behind them to enforce a challenge to the citation or the citation will otherwise be quickly overturned in court.

Under our Constitution, the judicial system in America is only allowed to interpret laws, not write or rewrite laws. Federal laws have to be clearly written by Legislators using wording clear enough for a court to comprehend, interpret and enforce. The judicial branch is not authorized to render a decision which makes an attempt to rewrite a law which is ambiguous and impossible to interpret as written. Therefore, OSHA attorneys will not typically handle enforcement lawsuits over regulations which are not written in clear and simple terms. Lawsuits are expensive, even for the federal government, and OSHA attorneys can’t afford to spend their time and budget money fighting losing battles. The 1996 Compliance Directive is considered by most of the OSHA people I have consulted with to be virtually, if not absolutely, unenforceable; therefore, many have given up trying to enforce it.

Most of the people I talk to in the Grain Industry believe that the intent of the Miles Compliance Directive was to have fall protection available to people who are working on top of railcars. Nevertheless, the directive confuses the issue again with this statement: “Thus, where feasible means exist to eliminate or materially reduce the hazard, a citation can be issued for a Section 5(a)(1) violation. For example, in the case of inclement weather such as icy conditions or heavy rains and winds, both the grain handling company and the U.S. Department of Agriculture are responsible for guarding against workplace hazards. In addition to making a determination as to whether the tops of railcars are safe and free from hazards to allow employees to perform their duties, the employers should also make an assessment of the employee’s physical ability to perform the job and ensure that employees have received adequate training to perform the job safely.”

As I read it, this paragraph almost sounds like the use of fall protection is not needed until the weather turns bad, which is probably not what the author intended. And, with most safety laws I am familiar with, the laws are not only applicable to places where an employer has decided that a hazard exists.

The interpretation of where fall protection should be provided and utilized leads to an even bigger question, because the term “contiguous to a facility” is equally confusing. Back to Webster’s: “contiguous” means “being in actual contact with”, and “touching or connected throughout in an unbroken sequence”. These definitions render the word “contiguous” insufficiently explicit to be legally enforced. Everyone has their own interpretation, and few are the same. The term “where feasible” seems even less definitive. For example: Does that mean fall protection is only needed where it is physically possible to install a system? Or does it mean fall protection is only needed when the cost of a system is affordable? There are no definitive answers to what “where feasible” really means.

Unprotected grain handlers and inspectors can and have fallen from 15 foot high railcars and 13 foot high trailers in both good weather and bad, and more than a few have died from their injuries.

The laws and subsequent enforcement action appear to be headed toward a more definitive regulatory standard. If, as logic may dictate, rail car tops are designated as walking/working surfaces, will this mean that no one will be allowed to traverse railcar tops unless they are using a fall protection system? OSHA won’t say what they are planning to introduce with the new regulations, but given the frustration of the OSHA inspectors over the railcar issue, it seems likely that this will be an area that will receive considerably more attention.

Under the General Duty Clause of OSHA, which supposedly applies to every American industry, people walking on platforms and walkways in a place of business must be protected from falls of four feet or greater distance. The current grain handling fall protection guidelines are therefore inconsistent with the General Duty Clause. Although there is no specific definition of the walking/working surfaces that must be covered by the General Duty Clause, it would seem reasonable to expect railcars and trailers to be included. Unprotected grain handlers and inspectors can and have fallen from 15 foot high railcars and 13 foot high trailers in both good weather and bad, and more than a few have died from their injuries.

Get the rest of the story on the new OSHA regulations by requesting Bob's white paper at www.grainandfeedmanager.com

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