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OSHA to Clarify Policy on Rolling Stock Fall Protection
by Bob Babin

Here we are in 2006, and we still do not have a definitive policy from OSHA regarding rolling stock fall protection. OSHA has been wrestling with changes since the mid 1990s, and it is widely agreed that it is time to take action.

The infamous John Miles Compliance Directive, written in 1996, was intended to clarify the OSHA policy regarding fall protection. Instead of clarifying the rolling stock policy, the directive threw up a smoke screen in front of what little was already there. The directive includes these words: “contiguous to a facility,” which was used to describe the locations where fall protection was considered necessary.

Further confusing the issue, fall protection was required only “where feasible.” If you have ever taken a law course, one of the first things you learn is that courts do not write laws, they interpret them. No court has ever and none ever will interpret those ambiguous words into a definitive policy. Miles is now retired, but the directive is still in place.

Companies that have diligently and conscientiously installed fall protection systems to protect their people have my respect. But, I am very frustrated by companies that have intentionally skirted the fall protection issue because the current law is ambiguous and they know they might get away without it.

To save money, many companies have sought advice from a handful of savvy consultants who have advised them that a company can currently get away without fall protection on rail cars. This may fly today, but I seriously doubt they will be able to ignore this important safety issue for very much longer. OSHA is finally doing something about this troubling issue.

Our field people recently have related another round of reports on catastrophic injuries and a few more deaths caused by grain industry falls. Let us take a minute to review the policy in its clearest terms. The term “rolling stock” is in Webster’s dictionary. It clearly defines a railroad car since those are the only vehicles with steel wheels that I can think of, and that seems to be the definitive criteria. But what about trailers? The new definition is expected to be expanded to cover trailers as well since a good percentage of the accidents we hear about involve deaths and serious injuries due to falls off trailers.

OSHA is once again at work redefining the policy for rolling stock, and is seriously planning to take action as soon as possible. Several OSHA employees are currently wrapping up their work on the new written standard policy. I have been told their work is nearly completed on the draft policy. Their work is progressing at a brisk pace, and a key OSHA official said the new policy is expected to go into effect sometime in early 2007.

A key OSHA official said the new policy is expected to go into effect sometime in early 2007.

Once the final policy is written, it must pass an internal OSHA review. Then the review procedure goes public with a call for public comments. After the comment period is completed, the law is tweaked into its final form and will have a date set for enactment. I will advise readers as soon as I know when the comment period will open, but OSHA currently expects it to be within the first quarter or early second quarter of 2006.

Fall protection systems, at least from the major manufacturers, are less expensive now in today’s dollars than they were 10 years ago. An efficient single rail car system can be purchased for well under $20,000. Multiple car systems are even less expensive on a “cost per car” basis.

The cost of an injury cannot be measured in terms of human suffering for the victim, his or her family and coworkers. But, the cost of a six or seven figure insurance settlement can be measured, and one liability trial lawyer recently said the average settlement is frequently up in that category for a serious case.

Can you imagine laying on the ground and being struck by a hard object weighing over 1,000 pounds? That is the equivalent of falling to the ground from the top of a rail car or trailer. It doesn’t take a rocket scientist to figure out how dangerous these falls can be.

I had a very disturbing conversation with a man who lost his best friend to a railcar fall. He has read several of my articles on fall protection and called me to tell me about his personal experience. He wanted me to interview him for this column because he wanted you to hear how much pain and suffering this fatal accident caused his family and friends. But, his company has not yet settled the lawsuit and when he asked for permission to be interviewed, they refused to allow a recorded interview.

The company prefers to remain anonymous for obvious reasons so I will respect his privacy and keep his identity and story confidential. But I will tell you this much, I had tears in my eyes when he told me that he knew his friend’s death would have been prevented if the company had had a fall protection system in place. Please don’t let this happen to your people. Install fall protection over your railcars and trailers and protect your people now.

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