[Federal Register: January 23, 2009 (Volume 74, Number 14)][Notices] [Page 4237-4245]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ja09-95]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2007-0046]
Calaveras Power Partners L.P., Matrix Service Inc., T. E.
Ibberson Company, TIC--The Industrial Company, and Zachry Construction
Corporation; Notice of Application for a Permanent Variance and Interim
Order, Grant of an Interim Order, and Request for Comments
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Notice of an application for a permanent variance and interim
order; grant of an interim order; and request for comments.
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SUMMARY: Calaveras Power Partners L.P., Matrix Service Inc., T. E.
Ibberson Company, TIC--The Industrial Company, and Zachry Construction
Corporation ("the applicants") applied for a permanent variance from
the provisions of the OSHA standards that regulate boatswain's chairs
and hoist towers, specifically paragraph (o)(3) of 29 CFR 1926.452 and
paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and
(c)(16) of 29 CFR 1926.552. In addition, the applicants requested an
interim order based on the alternative conditions specified by the
variance application. These alternative conditions consist of the same
conditions specified in recent variances granted by OSHA from these
hoist-tower and boatswain's-chair provisions, as well as several
additional conditions that would provide employees with protection from
shearing, fall, and struck-by hazards. Therefore, OSHA is granting the
applicants' request for an interim order.
DATES: Comments and requests for a hearing must be submitted
(postmarked, sent, or received) by February 23, 2009. The interim order
specified by this notice becomes effective on January 23, 2009.
ADDRESSES: Electronic. Comments and requests for a hearing may be
submitted electronically at http://www.regulations.gov, which is the
Federal eRulemaking Portal. Follow the instructions online for
submitting comments.
Facsimile. OSHA allows facsimile transmission of comments that are
10 pages or fewer in length (including attachments), as well as hearing
requests. Send these comments and requests to the OSHA Docket Office at
(202) 693-1648; hard copies of these comments are not required. Instead
of transmitting facsimile copies of attachments that supplement their
comments (e.g., studies and journal articles), commenters may submit
these attachments, in triplicate hard copy, to the OSHA Docket Office,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210. These attachments must
clearly identify the sender's name, date, subject, and docket number
(i.e., OSHA-2007-0046) so that the Agency can attach them to the
appropriate comments.
Regular mail, express delivery, hand (courier) delivery, and
messenger service. Submit three copies of comments and any additional
material (e.g., studies and journal articles), as well as hearing
requests, to the OSHA Docket Office, Docket No. OSHA-2007-0046,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210; telephone: (202) 693-
2350. Please contact the OSHA Docket Office at (202) 693-2350 for
information about security procedures concerning the delivery of
materials by express delivery, hand delivery, and messenger service.
The hours of operation for the OSHA Docket Office and Department of
Labor are 8:15 a.m. to 4:45 p.m., e.t.
Instructions. All submissions must include the Agency name and the
OSHA docket number (i.e., OSHA Docket No. OSHA-2007-0046). OSHA places
comments and other materials, including any personal information, in
the public docket without revision, and these materials may be
available online at http://www.regulations.gov. Therefore, the Agency
cautions commenters about submitting statements they do not want made
available to the public, or submitting comments that contain personal
information (either about themselves or others) such as Social Security
numbers, birth dates, and medical data.
Docket. To read or download submissions or other material in the
docket, go to http://www.regulations.gov or to the OSHA Docket Office
at the address above. All documents in the docket are listed in the
http://www.regulations.gov index; however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through this Web site. All submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT: General information and press
inquiries. For general information and press inquiries about this
notice contact Jennifer Ashley, Director, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Ave., NW., Washington, DC 20210; telephone: (202) 693-1999.
Technical information. For technical information about this notice,
contact MaryAnn Garrahan, Director, Office of Technical Programs and
Coordination Activities, Room N-3655, OSHA, U.S. Department of Labor,
200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202)
693-2110; fax: (202) 693-1644.
Copies of this Federal Register notice. Electronic copies of this
notice are available at http://www.regulations.gov. Electronic copies
of this notice, as well as news releases and other relevant
information, are available on OSHA's Web page at http://www.osha.gov.
Additional information about this variance application also is
available from the OSHA Region VI Office at: U.S. Department of Labor,
OSHA, 525 Griffin St., Room 602, Dallas, TX 75202; telephone: (972)
850-4145; fax: (972) 850-4149.
I. Notice of Application
Calaveras Power Partners L.P., Matrix Service Inc., T. E. Ibberson
Company, TIC--The Industrial Company, and Zachry Construction
Corporation (hereafter, "the applicants") submitted applications for
a permanent variance under Section 6(d) of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 655) and 29 CFR 1905.11 ("Variances and
other relief under section 6(d)") (see Exs. OSHA-2007-0046-0002
through -0006).\1\ The applicants seek a permanent variance from 29 CFR
1926.452(o)(3), which provides the tackle requirements for boatswain's
chairs. The applicants also request a variance from paragraphs (c)(1)
through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 CFR
1926.552 that regulate hoist towers. These latter paragraphs specify
the following requirements:
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\1\ The principle addresses for the applicants are as follows:
Calaveras Power Partners L.P., 527 Logwood, San Antonio, TX 78221;
Matrix Service Inc., 3810 Bakerview Spur, Bellingham, WA 98226; T.
E. Ibberson Company, 828 Fifth Street South, Hopkins, MN 55343-7750;
TIC--The Industrial Company, 22001 North Park Drive, Suite 700,
Kingwood, TX 77339; and Zachry Construction Corporation, 527
Logwood, San Antonio, TX 78221.
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(c)(1)--Construction requirements for hoist towers outside
a structure;
(c)(2)--Construction requirements for hoist towers inside
a structure;
(c)(3)--Anchoring a hoist tower to a structure;
(c)(4)--Hoistway doors or gates;
(c)(8)--Electrically interlocking entrance doors or gates
that prevent hoist movement when the doors or gates are open;
(c)(13)--Emergency stop switch located in the car;
(c)(14)(i)--Using a minimum of two wire ropes for drum
hoisting; and
(c)(16)--Material and component requirements for
construction of personnel hoists.
The applicants contend that the permanent variance would provide their
employees with a place of employment that is at least as safe and
healthful as they would obtain under the existing provisions. The
places of employment affected by this variance application are the
present and future projects where the applicants construct chimneys,
all of which are located in the State of Texas.
The applicants certify that they provided employee representatives
of current employees who would be affected by the permanent variance
with a copy of their variance requests. The applicants also certify
that they notified their employees of the variance requests by posting
a summary of the application and specifying where the employees can
examine a copy of the application at a prominent location or locations
where they normally post notices to their employees (or, instead of a
summary, posting the application itself); and by other appropriate
means. In addition, the applicants have informed employees and their
representatives of their right to petition the Assistant Secretary of
Labor for Occupational Safety and Health for a hearing on this variance
application.
II. Supplementary Information
A. Overview
The applicants construct, remodel, repair, maintain, inspect, and
demolish tall chimneys made of reinforced concrete, brick, and steel.
This work requires the applicants to transport employees and
construction material to and from elevated work platforms and scaffolds
located, respectively, inside and outside tapered chimneys. While
tapering contributes to the stability of a chimney, it requires
frequent relocation of, and adjustments to, the work platforms and
scaffolds so that they will fit the decreasing circumference of the
chimney as construction progresses upwards.
To transport employees to various heights inside and outside a
chimney, the applicants propose to use a hoist system that would lift
and lower personnel-transport devices (i.e., personnel cages, personnel
platforms, or boatswain's chairs). The applicants also would attach
material-transport devices such as hoppers, concrete buckets, or other
containers to the hoist system to raise or lower construction material
or equipment inside or outside a chimney. The applicants would use
personnel cages, personnel platforms, or boatswain's chairs solely to
transport employees with the tools and materials necessary to do their
work, and not to transport only materials or tools in the absence of
employees.
B. Previous Variances From 29 CFR 1926.452(o)(3) and 1926.552(c)
Since 1973, a number of chimney-construction companies demonstrated
to OSHA that several of the hoist-tower requirements of 29 CFR
1926.552(c) present chimney-access problems that pose a serious danger
to their employees. These companies received permanent variances from
these personnel-hoist and boatswain's-chair requirements, and they used
essentially the same alternate apparatus and procedures that the
applicants are now proposing to use in this variance application. The
Agency published the permanent variances for these companies at 38 FR
8545 (April 3, 1973), 44 FR 51352 (August 31, 1979), 50 FR 20145 (May
14, 1985), 50 FR 40627 (October 4, 1985), 52 FR 22552 (June 12, 1987),
68 FR 52961 (September 8, 2003), 70 FR 72659 (December 6, 2005), and 71
FR 10557 (March 1, 2006).\2\
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\2\ Zurn Industries, Inc. received two permanent variances from
OSHA. The first variance, granted on May 14, 1985 (50 FR 20145),
addressed the boatswain's-chair provision (then in paragraph (l)(5)
of Sec. 1926.451), as well as the hoist-tower requirements of
paragraphs (c)(1), (c)(2), (c)(3), and (c)(14)(i) of Sec. 1926.552.
The second variance, granted on June 12, 1987 (52 FR 22552),
included these same paragraphs, as well as paragraphs (c)(4),
(c)(8), (c)(13), and (c)(16) of Sec. 1926.552.
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In 1980, the Agency evaluated the alternative conditions specified
in the permanent variances that it had granted to chimney-construction
companies as of that date. In doing so, OSHA observed hoisting
operations conducted by these companies at various construction sites.
These evaluations found that, while the alternative conditions
generally were safe, compliance with the conditions among the companies
was uneven (see Exs. OSHA-2007-0046-0007 and -0008). Additionally, the
National Chimney Construction Safety and Health Advisory Committee, an
industry-affiliated organization, conducted evaluations of the hoist
systems that provided useful information regarding the safety and
efficacy of the alternative conditions (see Ex. OSHA-2007-0046-0009).
The permanent variance granted by OSHA to American Boiler and
Chimney Co. and Oak Park Chimney Corp. (see 68 FR 52961, September 8,
2003) updated the permanent variances granted by the Agency in the
1970s and 1980s by clarifying the alternative conditions and citing the
most recent consensus standards and other references. On the basis of
this experience and knowledge, the Agency finds that the applicants'
request for a permanent variance is consistent with the permanent
variances that OSHA granted previously to other employers in the
chimney-construction industry. Therefore, the Agency believes that the
conditions specified in this variance application will provide the
applicants' employees with at least the same level of safety they would
receive from 29 CFR 1926.452(o)(3) and paragraphs (c)(1) through
(c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 CFR 1926.552.
C. Requested Variance From 29 CFR 1926.452(o)(3)
The applicants state that it is necessary, on occasion, to use a
boatswain's chair to transport employees to and from a bracket scaffold
on the outside of an existing tapered chimney during flue installation
or repair work, or to and from an elevated scaffold located inside a
chimney that has a tapering diameter. Paragraph (o)(3) of 29 CFR
1926.452, which regulates the tackle used to rig a boatswain's chair,
states that this tackle must "consist of correct size ball bearings or
bushed blocks containing safety hooks and properly 'eye-spliced'
minimum five-eighth (5/8) inch (1.6 cm) diameter first-grade manila
rope [or equivalent rope]."
The primary purpose of this paragraph is to allow an employee to
safely control the ascent, descent, and stopping locations of the
boatswain's chair. However, the applicants note that the required
tackle is difficult or impossible to operate on some chimneys that are
over 200 feet tall because of space limitations. Therefore, as an
alternative to complying with the tackle requirements specified by 29
CFR 1926.452(o)(3), the applicants propose to use the hoisting system
described in Section II.E ("Proposed Alternative to 29 CFR
1926.452(o)(3) and 29 CFR 1926.552(c)") of this notice, both inside
and outside a chimney, to raise or lower employees in a personnel cage
to work locations. The applicants would use a personnel cage for this
purpose to the extent that adequate space is available; they would use
a personnel platform whenever a personnel cage is infeasible because of
limited space. However, when limited space also makes a personnel
platform infeasible, the applicants then would use a boatswain's chair
to lift employees to work locations. The applicants would limit use of
the boatswain's chair to elevations above the highest work location
that the personnel cage and personnel platform can reach; under these
conditions, the applicants would attach the boatswain's chair directly
to the hoisting cable only when the structural arrangement precludes
the safe use of the block and tackle required by 29 CFR 1926.452(o)(3).
D. Requested Variance From 29 CFR 1926.552(c)
Paragraph (c) of 29 CFR 1926.552 specifies the requirements for
enclosed hoisting systems used to transport personnel from one
elevation to another. This paragraph ensures that employers transport
employees safely to and from elevated work platforms by mechanical
means during the construction, alteration, repair, maintenance, or
demolition of structures such as chimneys. However, this standard does
not provide specific safety requirements for hoisting personnel to and
from elevated work platforms and scaffolds in tapered chimneys; the
tapered design requires frequent relocation of, and adjustment to, the
work platforms and scaffolds. The space in a tapered chimney is not
large enough or configured so that it can accommodate an enclosed hoist
tower. Moreover, using an enclosed hoist tower for outside operations
exposes employees to additional fall hazards because extra bridging and
bracing must be installed to support a walkway between the hoist tower
and the tapered chimney.
Paragraph (c)(1) of 29 CFR 1926.552 requires employers to enclose
hoist towers located outside a chimney on the side or sides used for
entrance to, and exit from, the chimney; these enclosures must extend
the full height of the hoist tower. The applicants assert that it is
impractical and hazardous to locate a hoist tower outside tapered
chimneys because it becomes increasingly difficult, as a chimney rises,
to erect, guy, and brace a hoist tower; under these conditions, access
from the hoist tower to the chimney or to the movable scaffolds used in
constructing the chimney exposes employees to a serious fall hazard.
Additionally, the applicants note that the requirement to extend the
enclosures 10 feet above the outside scaffolds often exposes the
employees involved in building these extensions to dangerous wind
conditions.
Paragraph (c)(2) of 29 CFR 1926.552 requires that employers enclose
all four sides of a hoist tower even when the tower is located inside a
chimney; the enclosure must extend the full height of the tower. The
applicants contend that it is hazardous for employees to erect and
brace a hoist tower inside a chimney, especially tapered chimneys,
because these structures have limited space and cannot accommodate
hoist towers; space limitations result from chimney design (e.g.,
tapering), as well as reinforced steel projecting into the chimney from
formwork that is near the work location.
As an alternative to complying with the hoist-tower requirements of
29 CFR 1926.552(c)(1) and (c)(2), the applicants propose to use the
hoist system described below in Section II.E ("Proposed Alternative to
29 CFR 1926.452(o)(3) and 29 CFR 1926.552(c)") of this notice to
transport employees to and from work locations inside and outside
chimneys. Use of the proposed hoist system would eliminate the need for
the applicants to comply with other provisions of 29 CFR 1926.552(c)
that specify requirements for hoist towers. Therefore, the applicants
also are requesting a permanent variance from the following related
provisions:
(c)(3)--Anchoring the hoist tower to a structure;
(c)(4)--Hoistway doors or gates;
(c)(8)--Electrically interlocking entrance doors or gates
that prevent hoist movement when the doors or gates are open;
(c)(13)--Emergency stop switch located in the car;
(c)(14)(i)--Using a minimum of two wire ropes for drum-
type hoisting; and
(c)(16)--Material and component requirements for
construction of personnel hoists.
The applicants assert that the proposed hoisting system would
protect its employees at least as effectively as the hoist-tower
requirements of 29 CFR 1926.552(c).
E. Proposed Alternative to 29 CFR 1926.452(o)(3) and 29 CFR 1926.552(c)
To power the hoist system, the applicants would use a hoist engine,
located and controlled outside the chimney. The system also would
consist of a wire rope that: Spools off the hoist drum into the
interior of the chimney; passes to a footblock that redirects the rope
from the horizontal to the vertical planes; goes from the footblock
through the overhead sheaves above the elevated platform; and finally
drops to the bottom landing of the chimney where it connects to a
personnel- or material-transport device. The cathead, which is a
superstructure at the top of the hoist system, supports the overhead
sheaves. The overhead sheaves (and the vertical span of the hoist
system) move upward with the hoist system as chimney construction
progresses. Two guide cables, suspended from the cathead, eliminate
swaying and rotation of the load. If the hoist rope breaks, safety
clamps activate and grip the guide cables to prevent the load from
falling. The applicants would use a headache ball, located on the hoist
rope directly above the load, to counterbalance the rope's weight
between the cathead sheaves and the footblock.
The applicants would implement additional conditions to improve
employee safety, including:
(1) Attaching the wire rope to the personnel cage using a keyed-
screwpin shackle or positive-locking link;
(2) Adding limit switches to the hoist system to prevent overtravel
by the personnel- or material-transport devices;
(3) Providing the safety factors and other precautions required for
personnel hoists specified by the pertinent provisions of 29 CFR
1926.552(c), including canopies and shields to protect employees
located in a personnel cage from material that may fall during hoisting
and other overhead activities;
(4) Providing falling-object protection for scaffold platforms as
specified by 29 CFR 1926.451(h)(1);
(5) Conducting tests and inspections of the hoist system as
required by 29 CFR 1926.20(b)(2) and 1926.552(c)(15);
(6) Establishing an accident-prevention program that conforms to 29
CFR 1926.20(b)(3);
(7) Equipping employees who use a personnel cage, personnel
platform, or boatswain's chair with, and ensuring that they use,
personal fall-arrest systems meeting the requirements of 29 CFR
1926.502(d);
(8) Ensuring that employees using a personnel cage secure their
personal fall-arrest system to an attachment point located inside the
cage, and that employees using personnel platforms or boatswain's
chairs secure their personal fall-arrest systems to a vertical
lifeline;
(9) When using vertical lifelines, securing the lifelines to the
top of the chimney and weighting the lifelines properly or suitably
affixing the lifelines to the bottom of the chimney, and ensuring that
employees remain attached to their lifeline during the entire period of
vertical transit;
(10) Providing instruction to each employee who uses a personnel
platform or boatswain's chair regarding the shearing hazards posed by
the hoist system (e.g., work platforms, scaffolds), and the need to
keep their limbs or other body parts clear of these hazards during
hoisting operations;
(11) Providing the instruction on shearing hazards before an
employee uses one of these personnel-transport devices at the worksite;
and periodically, and as necessary, thereafter, including whenever the
employee demonstrates a lack of knowledge about the hazard and how to
avoid it, a modification occurs to an existing shearing hazard, or a
new shearing hazard develops at the worksite;
(12) Attaching a readily visible warning to each personnel platform
and boatswain's chair notifying employees in a language they understand
of potential shearing hazards during hoisting operations. For warnings
located on personnel platforms, using the following (or equivalent)
wording: "Warning--To avoid serious injury, keep your hands, arms,
feet, legs, and other parts of your body inside this platform while it
is in motion." For boatswain's chairs, the warning would use the
following (or equivalent) wording: "Warning--To avoid serious injury,
do not extend your hands, arms, feet, legs, or other parts of your body
from the side or to the front of this chair while it is in motion; and
(13) Establishing a clearly designated safety zone around the hoist
system's bottom landing and prohibiting any employee from entering the
safety zone except to access a personnel cage, personnel platform,
boatswain's chair, or material-transport device, and then only when the
personnel- and material-transport device is at the bottom landing and
not in operation.
OSHA revised the requirements for using personal fall-protection
systems specified in previous variances addressing these hoist systems
(see Conditions 7 and 8, above). This revision adds a requirement that
the applicants provide employees using personnel cages with personal
fall-protection systems, and ensure that the employees use these
systems, in accordance with 29 CFR 1926.502(d). OSHA believes this
revision will protect employees from falling out of a cage in the event
the door of the cage opens inadvertently during lifting operations.
The last four of these conditions (Conditions 10-13) also are new,
having never been part of previous variance applications covering these
hoist systems. OSHA believes that these additional conditions are
necessary to protect employees from shearing, fall, and struck-by
hazards associated with using hoist systems in chimney construction.
Accordingly, conditions 10-12 address shearing hazards that employees
may encounter while a personnel platform or boatswain's chair is
transporting them to or from an elevated jobsite. During transport, the
personnel-transport device will pass near structures, including work
platforms and scaffolds, that could crush or inflict other serious
injury on a hand, arm, foot, leg, or other body part that extends
beyond the confines of the device. To prevent these injuries, OSHA
believes that employees who use these devices must be able to recognize
shearing hazards at the worksite, and how to avoid them. Additionally,
attaching a readily visible warning of the hazards to personnel
platforms and boatswain's chairs would supplement and reinforce the
hazard training by reminding employees of the hazard and how to avoid
it.
The last condition (Condition 13) requires the applicants to
establish a safety zone around the bottom landing where employees
access personnel- and material-transport devices. The applicants must
ensure that employees enter the safety zone only to access a transport
device that is in the area circumscribed by the safety zone, and only
when the hoist system is not in operation. This condition will prevent
a transport device that is descending from an elevated jobsite from
striking an employee who is in or near the bottom-landing area and is
not aware of the descending device. During descent, it also is
difficult for employees in or on these devices to detect an employee
beneath them. Therefore, it is necessary for the applicants to
establish a safety zone and ensure that employees only enter the safety
zone when a transport device is at the bottom landing and not in
operation (i.e., the drive components of the hoist system are
disengaged and the braking mechanism is properly applied).
This variance application also specifies a condition that requires
the applicants to notify (1) the nearest OSHA Area Office at least 15
days before commencing chimney-construction operations covered by the
variance, and (2) OSHA national headquarters as soon as an applicant
knows that it will cease doing business or transfers the activities
covered by the variance to another company. These administrative
requirements will enable OSHA to more easily enforce, and determine the
status of, the variance than is presently the case. Currently, OSHA has
little or no information about chimney-construction activities
conducted under a variance, making it difficult for it to assess
compliance with the conditions specified under the variance.
Additionally, OSHA finds that construction companies cease operations
or transfer chimney-construction assets to successor companies without
informing OSHA that the variance is no longer needed or requesting that
the Agency reassign the variance to the successor company. OSHA
believes that these notification requirements would improve
administrative oversight of the variance program, thereby enhancing
employee safety and reducing its administrative burden.
III. Grant of Interim Order
In addition to requesting a permanent variance, the applicants also
requested an interim order that would remain in effect until the Agency
makes a decision on their application for a permanent variance. During
this period, the applicants must comply fully with the conditions of
the interim order as an alternative to complying with the tackle
requirements provided for boatswain's chairs by 29 CFR 1926.452(o)(3)
and the requirements for hoist towers specified by paragraphs (c)(1)
through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 CFR
1926.552.
Based on its previous experience with permanent variances from
these provisions granted to other companies, OSHA believes that an
interim order is justified in this case. As noted above in Section II.B
("Previous Variances from 29 CFR 1926.452(o)(3) and 1926.552(c)"),
the Agency has granted a number of permanent variances from
these provisions since 1973. Over this period, the affected companies
have effectively used the alternative conditions specified in the
variances. The conditions of the interim order requested by the
applicants substantially duplicate the conditions approved recently in
the permanent variance granted to American Boiler and Chimney Co. and
Oak Park Chimney Corp. (see 68 FR 52961), while adding conditions that
would provide employees with protection from shearing, fall, and
struck-by hazards. In granting a permanent variance to American Boiler
and Chimney Co. and Oak Park Chimney Corp., the Agency stated, "[W]hen
the employers comply with the conditions of the following order, their
employees will be exposed to working conditions that are at least as
safe and healthful as they would be if the employers complied with
paragraph (o)(3) of 29 CFR 1926.452, and paragraphs (c)(1) through
(c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 CFR 1926.552."
(See 68 FR 52967.)
Based on its determination that the alternative conditions proposed
by American Boiler and Chimney Co. and Oak Park Chimney Corp will
protect employees at least as effectively as the requirements of
paragraph (o)(3) of 29 CFR 1926.452 and paragraphs (c)(1) through
(c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 CFR 1926.552, as
well as the additional conditions specified in this variance
application that will protect employees from shearing, fall, and
struck-by hazards, OSHA has decided to grant an interim order to the
applicants pursuant to the provisions of 29 CFR 1905.11(c).
Accordingly, in lieu of complying with paragraph (o)(3) of 29 CFR
1926.452 and paragraphs (c)(1) through (c)(4), (c)(8), (c)(13),
(c)(14)(i), and (c)(16) of 29 CFR 1926.552, the applicants will: (1)
Provide notice of this grant of an interim order to the employees
affected by the conditions of the interim order using the same means it
used to inform these employees of their applications for a permanent
variance; and (2) comply with the conditions listed below in section IV
("Specific Conditions of the Interim Order and the Application for a
Permanent Variance") of this application for the period between the
date of this Federal Register notice and the date the Agency publishes
its final decision on the application in the Federal Register; the
interim order will remain in effect during this period unless OSHA
modifies or revokes it in accordance with the requirements of 29 CFR
1905.13.
IV. Specific Conditions of the Interim Order and the Application for a
Permanent Variance
The following conditions apply to the interim order being granted
by OSHA to Calaveras Power Partners L.P., Matrix Service Inc., T. E.
Ibberson Company, TIC--The Industrial Company, and Zachry Construction
Corporation as part of their applications for a permanent variance
described in this Federal Register notice. In addition, these
conditions specify the alternatives to the requirements of paragraph
(o)(3) of 29 CFR 1926.452 and paragraphs (c)(1) through (c)(4), (c)(8),
(c)(13), (c)(14)(i), and (c)(16) of 29 CFR 1926.552 that the applicants
are proposing in their application for a permanent variance. These
conditions include: \3\
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\3\ In these conditions, the verb "must" applies to the
interim order, while the verb "would" pertains to the application
for a permanent variance.
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1. Scope
(a) The interim order/permanent variance applies/would apply only
to tapered chimneys when the applicants use a hoist system during
inside or outside chimney construction to raise or lower their
employees between the bottom landing of a chimney and an elevated work
location on the inside or outside surface of the chimney.
(b) When using a hoist system as specified in this permanent
variance, the applicants must/would:
(i) Use the personnel cages, personnel platforms, or boatswain's
chairs raised and lowered by the hoist system solely to transport
employees with the tools and materials necessary to do their work; and
(ii) Attach a hopper or concrete bucket to the hoist system to
raise and lower all other materials and tools inside or outside a
chimney.
(c) Except for the requirements specified by 29 CFR 1926.452(o)(3)
and 1926.552(c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and
(c)(16), the applicants must/would comply fully with all other
applicable provisions of 29 CFR parts 1910 and 1926.
(d) The interim order/permanent variance does not apply/would not
apply in any State or territory having an occupational safety and
health program approved by the Federal Occupational Safety and Health
Administration under section 18 of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 667).\4\
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\4\ These States and territories are referred to as "State-plan
States and Territories." The 22 State-plan States and territories
having authority over both public- and private-sector employers and
employees are: Alaska, Arizona, California, Hawaii, Indiana, Iowa,
Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North
Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah,
Vermont, Virginia, Washington, and Wyoming. Three State-plan States
(i.e., Connecticut, New Jersey, and New York) and one territory
(i.e., Virgin Islands) do not have authority over private-sector
employees (i.e., they limit their occupational safety and health
authority to public-sector employees only).
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2. Replacing a Personnel Cage With a Personnel Platform or a
Boatswain's Chair
(a) Personnel platform. When the applicants demonstrate that
available space makes a personnel cage for transporting employees
infeasible, they may replace the personnel cage with a personnel
platform when they limit use of the personnel platform to elevations
above the last work location that the personnel cage can reach.
(b) Boatswain's chair. The applicants must/would:
(i) Before using a boatswain's chair, demonstrate that available
space makes it infeasible to use a personnel platform for transporting
employees;
(ii) Limit use of a boatswain's chair to elevations above the last
work location that the personnel platform can reach; and
(iii) Use a boatswain's chair in accordance with block-and-tackle
requirements specified by 29 CFR 1926.452(o)(3), unless they can
demonstrate that the structural arrangement of the chimney precludes
such use.
3. Qualified Competent Person
(a) The applicants must/would:
(i) Provide a qualified competent person, as specified in
paragraphs (f) and (m) of 29 CFR 1926.32, who is responsible for
ensuring that the design, maintenance, and inspection of the hoist
system comply with the conditions specified herein and with the
appropriate requirements of 29 CFR part 1926 ("Safety and Health
Regulations for Construction"); and
(ii) Ensure that the qualified competent person is present at
ground level to assist in an emergency whenever the hoist system is
raising or lowering employees.
(b) The applicants must/would use a qualified competent person to
design and maintain the cathead described under Condition 8 ("Cathead
and Sheave") below.
4. Hoist Machine
(a) Type of hoist. The applicants must/would designate the hoist
machine as a portable personnel hoist.
(b) Raising or lowering a transport. The applicants must/would
ensure that:
(i) The hoist machine includes a base-mounted drum hoist designed
to control line speed; and
(ii) Whenever they raise or lower a personnel or material hoist
(e.g., a personnel cage, personnel platform, boatswain's chair, hopper,
concrete bucket) using the hoist system:
(A) The drive components are engaged continuously when an empty or
occupied transport is being lowered (i.e., no "freewheeling");
(B) The drive system is interconnected, on a continuous basis,
through a torque converter, mechanical coupling, or an equivalent
coupling (e.g., electronic controller, fluid clutches, hydraulic
drives);
(C) The braking mechanism is applied automatically when the
transmission is in the neutral position and a forward-reverse coupling
or shifting transmission is being used; and
(D) No belts are used between the power source and the winding
drum.
(c) Power source. The applicants must/would power the hoist machine
by an air, electric, hydraulic, or internal-combustion drive mechanism.
(d) Constant-pressure control switch. The applicants must/would:
(i) Equip the hoist machine with a hand-or foot-operated constant-
pressure control switch (i.e., a "deadman control switch") that stops
the hoist immediately upon release; and
(ii) Protect the control switch to prevent it from activating if
the hoist machine is struck by a falling or moving object.
(e) Line-speed indicator. The applicants must/would:
(i) Equip the hoist machine with an operating line-speed indicator
maintained in proper working order; and
(ii) Ensure that the line-speed indicator is in clear view of the
hoist operator during hoisting operations.
(f) Braking systems. The applicants must/would equip the hoist
machine with two (2) independent braking systems (i.e., one automatic
and one manual) located on the winding side of the clutch or couplings,
with each braking system being capable of stopping and holding 150
percent of the maximum rated load.
(g) Slack-rope switch. The applicants must/would equip the hoist
machine with a slack-rope switch to prevent rotation of the winding
drum under slack-rope conditions.
(h) Frame. The applicants must/would ensure that the frame of the
hoist machine is a self-supporting, rigid, welded-steel structure, and
that holding brackets for anchor lines and legs for anchor bolts are
integral components of the frame.
(i) Stability. The applicants must/would secure hoist machines in
position to prevent movement, shifting, or dislodgement.
(j) Location. The applicants must/would:
(i) Locate the hoist machine far enough from the footblock to
obtain the correct fleet angle for proper spooling of the cable on the
drum; and
(ii) Ensure that the fleet angle remains between one-half degree
(\1/2\[deg]) and one and one-half degrees (1\1/2\[deg]) for smooth
drums, and between one-half degree (\1/2\[deg]) and two degrees
(2[deg]) for grooved drums, with the lead sheave centered on the
drum.\5\
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\5\ This provision adopts the definition of, and specifications
for, fleet angle from Cranes and Derricks, H. I. Shapiro, et al.
(eds.); New York: McGraw-Hill; 3rd ed., 1999, page 592. Accordingly,
the fleet angle is "[t]he angle the rope leading onto a [winding]
drum makes with the line perpendicular to the drum rotating axis
when the lead rope is making a wrap against the flange."
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(k) Drum and flange diameter. The applicants must/would:
(i) Provide a winding drum for the hoist that is at least 30 times
the diameter of the rope used for hoisting; and
(ii) Ensure that the winding drum has a flange diameter that is at
least one and one-half (1\1/2\) times the winding-drum diameter.
(l) Spooling of the rope. The applicants must/would never spool the
rope closer than two (2) inches (5.1 cm) from the outer edge of the
winding-drum flange.
(m) Electrical system. The applicants must/would ensure that all
electrical equipment is weatherproof.
(n) Limit switches. The applicants must/would equip the hoist
system with limit switches and related equipment that automatically
prevent overtravel of a personnel cage, personnel platform, boatswain's
chair, or material-transport device at the top of the supporting
structure and at the bottom of the hoistway or lowest landing level.
5. Methods of Operation
(a) Employee qualifications and training. The applicants must/
would:
(i) Ensure that only trained and experienced employees, who are
knowledgeable of hoist-system operations, control the hoist machine;
and
(ii) Provide instruction, periodically and as necessary, on how to
operate the hoist system to each employee who uses a personnel cage,
personnel platform, or boatswain's chair for transportation.
(b) Speed limitations. The applicants must/would not operate the
hoist at a speed in excess of:
(i) Two hundred fifty (250) feet (76.9 m) per minute when a
personnel cage is being used to transport employees;
(ii) One hundred (100) feet (30.5 m) per minute when a personnel
platform or boatswain's chair is being used to transport employees; or
(iii) A line speed that is consistent with the design limitations
of the system when only material is being hoisted (i.e., using a
dedicated material-transport device such as a hopper or concrete
bucket).
(c) Communication. The applicants must/would:
(i) Use an electronic voice-communication system to maintain
communication between the hoist operator and the employees located in
or on a moving personnel cage, personnel platform, or boatswain's
chair;
(ii) Stop hoisting if, for any reason, the communication system
fails to operate effectively; and
(iii) Resume hoisting only when the worksite superintendent
determines that it is safe to do so.
6. Hoist Rope
(a) Grade. The applicants must/would use a wire rope for the hoist
system (i.e., "hoist rope") that consists of extra-improved plow
steel, an equivalent grade of non-rotating rope, or a regular lay rope
with a suitable swivel mechanism.
(b) Safety factor. The applicants must/would maintain a safety
factor of at least eight (8) times the safe workload throughout the
entire length of hoist rope.
(c) Size. The applicants must/would use a hoist rope that is at
least one-half (\1/2\) inch (1.3 cm) in diameter.
(d) Inspection, removal, and replacement. The applicants must/
would:
(i) Thoroughly inspect the hoist rope before the start of each job
and on completing a new setup;
(ii) Maintain the proper diameter-to-diameter ratios between the
hoist rope and the footblock and the sheave by inspecting the wire rope
regularly (see Conditions 7(c) and 8(d), below); and
(iii) Remove and replace the wire rope with new wire rope when any
condition specified by 29 CFR 1926.552(a)(3) occurs.
(e) Attachments. The applicants must/would attach the rope to a
personnel cage, personnel platform, or boatswain's chair with a keyed-
screwpin shackle or positive-locking link.
(f) Wire-rope fastenings. When the applicants use clip fastenings
(e.g., U-bolt wire-rope clips) with wire ropes, they must/would:
(i) Use Table H-20 of 29 CFR 1926.251 to determine the number and
spacing of clips;
(ii) Use at least three (3) drop-forged clips at each fastening;
(iii) Install the clips with the "U" of the clips on the dead end
of the rope; and
(iv) Space the clips so that the distance between them is six (6)
times the diameter of the rope.
7. Footblock
(a) Type of block. The applicants must/would use a footblock:
(i) Consisting of construction-type blocks of solid single-piece
bail with a safety factor that is at least four (4) times the safe
workload, or an equivalent block with roller bearings;
(ii) Designed for the applied loading, size, and type of wire rope
used for hoisting;
(iii) Designed with a guard that contains the wire rope within the
sheave groove;
(iv) Bolted rigidly to the base; and
(v) Designed and installed so that it turns the moving wire rope to
and from the horizontal or vertical direction as required by the
direction of rope travel.
(b) Directional change. The applicants must/would ensure that the
angle of change in the hoist rope from the horizontal to the vertical
direction at the footblock is approximately 90°.
(c) Diameter. The applicants must/would ensure that the line
diameter of the footblock is at least 24 times the diameter of the
hoist rope.
8. Cathead and Sheave
(a) Support. The applicants must/would use a cathead (i.e.,
"overhead support") that consists of a wide-flange beam, or two (2)
steel-channel sections securely bolted back-to-back to prevent
spreading.
(b) Installation. The applicants must/would ensure that:
(i) All sheaves revolve on shafts that rotate on bearings; and
(ii) The bearings are mounted securely to maintain the proper
bearing position at all times.
(c) Rope guides. The applicants must/would provide each sheave with
appropriate rope guides to prevent the hoist rope from leaving the
sheave grooves when the rope vibrates or swings abnormally.
(d) Diameter. The applicants must/would use a sheave with a
diameter that is at least 24 times the diameter of the hoist rope.
9. Guide Ropes
(a) Number and construction. The applicants must/would affix two
(2) guide ropes by swivels to the cathead. The applicants must/would
ensure that the guide ropes:
(i) Consist of steel safety cables not less than one-half (\1/2\)
inch (1.3 cm) in diameter; and
(ii) Be free of damage or defect at all times.
(b) Guide rope fastening and alignment tension. The applicants
must/would fasten one end of each guide rope securely to the overhead
support, with appropriate tension applied at the foundation.
(c) Height. The applicants must/would rig the guide ropes along the
entire height of the hoist-machine structure.
10. Personnel Cage
(a) Construction. The applicants must/would ensure that the
personnel cage is of steel-frame construction and capable of supporting
a load that is four (4) times its maximum rated load capacity. The
applicants also must/would ensure that the personnel cage has:
(i) A top and sides that are permanently enclosed (except for the
entrance and exit);
(ii) A floor securely fastened in place;
(iii) Walls that consist of 14-gauge, one-half (\1/2\) inch (1.3
cm) expanded metal mesh, or an equivalent material;
(iv) Walls that cover the full height of the personnel cage between
the floor and the overhead covering;
(v) A sloped roof constructed of one-eighth (\1/8\) inch (0.3 cm)
aluminum, or an equivalent material;
(vi) Safe handholds (e.g., rope grips-but not rails or hard
protrusions) \6\ that accommodate each occupant; and
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\6\ To reduce impact hazards should employees lose their balance
because of cage movement.
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(v) Attachment points to which employees must/would secure their
personal fall protection systems.
(b) Overhead weight. The applicants must/would ensure that the
personnel cage has an overhead weight (e.g., a headache ball of
appropriate weight) to compensate for the weight of the hoist rope
between the cathead and footblock. In addition, the applicants must/
would:
(i) Ensure that the overhead weight is capable of preventing line
run; and
(ii) Use a means to restrain the movement of the overhead weight so
that the weight does not interfere with safe personnel hoisting.
(c) Gate. The applicants must/would ensure that the personnel cage
has a gate that:
(i) Guards the full height of the entrance opening; and
(ii) Has a functioning mechanical lock that prevents accidental
opening.
(d) Operating procedures. The applicants must/would post the
procedures for operating the personnel cage conspicuously at the hoist
operator's station.
(e) Capacity. The applicants must/would:
(i) Hoist no more than four (4) occupants in the cage at any one
time; and
(ii) Ensure that the rated load capacity of the cage is at least
250 pounds (113.4 kg) for each occupant so hoisted.
(f) Employee notification. The applicants must/would post a sign in
each personnel cage notifying employees of the following conditions:
(i) The standard rated load, as determined by the initial static
drop test specified by Condition 10(g) ("Static drop tests"), below;
and
(ii) The reduced rated load for the specific job.
(g) Static drop tests. The applicants must/would:
(i) Conduct static drop tests of each personnel cage that comply
with the definition of "static drop test" specified by section 3
("Definitions") and the static drop-test procedures provided in
Section 13 ("Inspections and Tests") of American National Standards
Institute (ANSI) standard A10.22-1990 (R1998) ("American National
Standard for Rope-Guided and Non-Guided Worker's Hoists--Safety
Requirements");
(ii) Perform the initial static drop test at 125 percent of the
maximum rated load of the personnel cage, and subsequent drop tests at
no less than 100 percent of its maximum rated load; and
(iii) Use a personnel cage for raising or lowering employees only
when no damage occurred to the components of the cage as a result of
the static drop tests.
11. Safety Clamps
(a) Fit to the guide ropes. The applicants must/would:
(i) Fit appropriately designed and constructed safety clamps to the
guide ropes; and
(ii) Ensure that the safety clamps do not damage the guide ropes
when in use.
(b) Attach to the personnel cage. The applicants must/would attach
safety clamps to each personnel cage for gripping the guide ropes.
(c) Operation. The applicants must/would ensure that the safety
clamps attached to the personnel cage:
(i) Operate on the "broken rope principle" defined in section 3
("Definitions") of ANSI standard A10.22-1990 (R1998);
(ii) Be capable of stopping and holding a personnel cage that is
carrying 100 percent of its maximum rated load
and traveling at its maximum allowable speed if the hoist rope breaks
at the footblock; and
(iii) Use a pre-determined and pre-set clamping force (i.e., the
"spring compression force") for each hoist system.
(d) Maintenance. The applicants must/would keep the safety-clamp
assemblies clean and functional at all times.
12. Overhead Protection
(a) The applicants must/would install a canopy or shield over the
top of the personnel cage that is made of steel plate at least three-
sixteenth (3/16) of an inch (4.763 mm) thick, or material of equivalent
strength and impact resistance, to protect employees (i.e., both inside
and outside the chimney) from material and debris that may fall from
above.
(b) The applicants must/would ensure that the canopy or shield
slopes to the outside of the personnel cage.
13. Emergency-Escape Device
(a) Location. For employees using a personnel cage, the applicants
must/would provide an emergency-escape device in at least one of the
following locations:
(i) In the personnel cage, provided that the device is long enough
to reach the bottom landing from the highest possible escape point; or
(ii) At the bottom landing, provided that a means is available in
the personnel cage for the occupants to raise the device to the highest
possible escape point.
(b) Operating instructions. The applicants must/would ensure that
written instructions for operating the emergency-escape device are
attached to the device.
(c) Training. The applicants must/would instruct each employee who
uses a personnel cage for transportation on how to operate the
emergency-escape device:
(i) Before the employee uses a personnel cage for transportation;
and
(ii) Periodically, and as necessary, thereafter.
14. Personnel Platforms
When the applicants elect to replace the personnel cage with a
personnel platform in accordance with Condition 2(a), above, they must/
would:
(a) Ensure that an enclosure surrounds the platform, and that this
enclosure is at least 42 inches (106.7 cm) above the floor of the
platform;
(b) Provide overhead protection when an overhead hazard is, or
could be, present; and
(c) Comply with the applicable scaffolding strength requirements
specified by 29 CFR 1926.451(a)(1).
15. Protecting Employees from Fall and Shearing Hazards
(a) Fall hazards. The applicants must/would:
(i) Before employees use personnel cages, personnel platforms, or
boatswain's chairs, equip the employees with, and ensure that they use,
personal fall-arrest systems that meet the requirements of 29 CFR
1926.502(d);
(ii) Ensure that employees using personnel cages secure their fall-
arrest systems to attachment points located inside the cage;
(iii) Ensure that employees using personnel platforms and
boatswain's chairs secure their personal fall-arrest systems to a
vertical lifeline; and
(iv) When using vertical lifelines:
(A) Secure the lifelines to the top of the chimney;
(B) Weight the lifelines properly or suitably affix the lifelines
to the bottom of the chimney; and
(C) Ensure that employees remain attached to their lifeline during
the entire period of vertical transit.
(b) Shearing hazards. The applicants must/would:
(i) Provide employees who use personnel platforms or boatswain's
chairs with instruction on the shearing hazards posed by the hoist
system (e.g., work platforms, scaffolds), and the need to keep their
limbs or other body parts clear of these hazards during hoisting
operations;
(ii) Provide the instruction on shearing hazards:
(A) Before an employee uses a personnel cage, personnel platform,
or boatswain's chair at the worksite; and
(B) Periodically, and as necessary, thereafter, including whenever
an employee demonstrates a lack of knowledge about the hazard and how
to avoid it, a modification occurs to an existing shearing hazard, or a
new shearing hazard develops at the worksite; and
(iii) Attach a readily visible warning to each personnel platform
and boatswain's chair notifying employees in a language they understand
of potential shearing hazards they may encounter during hoisting
operations, and that uses the following (or equivalent) wording:
(A) For personnel platforms: "Warning--To avoid serious injury,
keep your hands, arms, feet, legs, and other parts of your body inside
this platform while it is in motion"; and
(B) For boatswain's chairs: "Warning--To avoid serious injury, do
not extend your hands, arms, feet, legs, or other parts your body from
the side or to the front of this chair while it is in motion."
16. Safety Zone
The applicants must/would:
(a) Establish a clearly designated safety zone around the bottom
landing of the hoist system; and
(b) Prohibit any employee from entering the safety zone except to
access a personnel-or material-transport device, and then only when the
device is at the bottom landing and not in operation (i.e., when the
drive components of the hoist machine are disengaged and the braking
mechanism is properly applied).
17. Inspections, Tests, and Accident Prevention
(a) The applicants must/would:
(i) Conduct inspections of the hoist system as required by 29 CFR
1926.20(b)(2);
(ii) Ensure that a competent person conducts daily visual
inspections of the hoist system; and
(iii) Inspect and test the hoist system as specified by 29 CFR
1926.552(c)(15).
(b) The applicants must/would comply with the accident-prevention
requirements of 29 CFR 1926.20(b)(3).
18. Welding
(a) The applicants must/would ensure that only qualified welders
weld components of the hoisting system.
(b) The applicants must/would ensure that the qualified welders:
(i) Are familiar with the weld grades, types, and materials
specified in the design of the system; and
(ii) Perform the welding tasks in accordance with 29 CFR part 1926,
subpart J ("Welding and Cutting").
19. OSHA Notification
(a) At least 15 calendar days prior to commencing any chimney-
construction operation using the conditions specified herein, the
applicants must/would notify the OSHA Area Office nearest to the
worksite of the operation, including the location of the operation and
the date the operation will commence.
(b) Each applicant must/would inform OSHA national headquarters as
soon as it has knowledge that it will:
(i) Cease to do business; or
(ii) Transfer the activities covered by this permanent variance to
a successor company.
V. Authority and Signature
Thomas M. Stohler, Acting Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of
Labor, 200 Constitution Ave., NW., Washington, DC directed the
preparation of this notice. This notice is issued under the authority
specified by Section 6(d) of the Occupational Safety and Health Act of
1970 (29 U.S.C. 655), Secretary of Labor's Order No. 5-2007 (72 FR
31160), and 29 CFR part 1905.
Signed at Washington, DC, on January 15, 2009.
Thomas M. Stohler,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. E9-1291 Filed 1-22-09; 8:45 am]
BILLING CODE 4510-26-P
