February 6, 1989

MEMORANDUM FOR:         BYRON R. CHADWICK
                       Regional Administrator, Region VIII

THROUGH:                LEO CAREY, Director
                       Office of Field Programs

FROM:                   THOMAS J. SHEPICH, Director
                       Directorate of Compliance Programs

SUBJECT:                Concrete and Masonry Construction Safety Standards;
                       1926.706 (re: your letter of 11/7/88)

This memorandum is in response to your request for interpretation and comment on a series of questions and proposed responses concerning 1926.706 "Requirements for Masonry Construction".

We have reviewed the questions raised by the Colorado Masonry Construction Association, and concurred with your proposed responses. In fact, except for some format differences, you responses provide significant input to the development of a CPL. Accordingly, my staff will include your response in the draft CPL that is being prepared.



October 7, 1988

TO:             LEO CAREY, Director
               Office Field Programs

FROM:           BYRON R. CHADWICK
               Regional Administrator - VIII

SUBJECT:        Concrete and Masonry Construction Safety
               Standards; 1926.706

Attached is a letter of September 20, 1988 from the Colorado Mason Contractors Association expressing concerns they have with portions of the new Concrete and Masonry Construction Safety Standards. This association is not affiliated with the Mason Contractor's Association of America or any other national association, and this Colorado association does not receive Federal Registers or have any other way of receiving information which would allow them to comment upon such standards prior to promulgation. We are told that they learned of these standards just prior to the August 15, 1988 effective date. Our desire is to ensure these association members/contractors are properly informed of our intent, interpretation, and application of the standards which will enhance their and our accident prevention efforts.

As you will note, the Association letter contains several questions, some of which were discussed in a recent meeting we attended. For clarification, and to simplify responses to the concerns of this Association, we have listed each question (with some modification) and our suggested responses. All questions pertain to the new 1926.706 standard. Your cooperation in responding as soon as possible to these concerns will be appreciated.

Also enclosed is a letter of September 23, 1988 from the Magazine of Masonry Construction, addressed to Bill Patton of my staff, requesting an article from OSHA to explain our enforcement of these new standards. Bill expresses confidence in writing an article, and I am inclined to permit it, but I request your opinion and suggestions of response.

In addition, I recommended the development of an OSHA CPL instruction to clarify the application and intention of this standard to assure uniformity throughout the agency.

1. Which employer is responsible for the creation/establishment of the Limited Access Zone?

Suggested Response: The establishment of the zone is the responsibility of the employer(s) whose employees are exposed. This is not to say that the exposing employers will actually mark off, barricade, etc. the zone, but they must ensure the establishment of the zone, the bracing of the wall, and/or otherwise supporting the wall to protect their exposed employees. An analogy would be the application of the zone, the bracing of the wall, and/or otherwise supporting the wall to protect their exposed employees. An analogy would be the application of other standards on a construction site, e.g., employers whose employees use electrical power must ensure the circuit is grounded even though it many be the responsibility of another contractor to do the grounding, or the employer whose employees are exposed to inadequate ventilation must ensure protection for his employees even though another contractor would have to actually install the ventilation system. Legal responsibility for compliance rest with the employer whose employees are exposed.

2. If the mason contractor's employees are allowed in the Limited Access Zone, how can that contractor be cited?

Suggested Response: See paragraph 1926.706(a)(4). The only employees permitted in the zone are those "actively engaged in constructing the wall". As with employees of any other contractor, if the mason contractor's employees are actively engaged in constructing the wall, that contractor will be subject to citation. For example, if the contracts to install conduit/piping in the wall at some point during construction of the wall, they would be considered "actively engaged in constructing the wall" and not cited, but if such installation of conduit\piping is not required at that time of construction, the exposing employer would be cited for the exposure of his employees in the access zone. NOTE FOR NATIONAL OFFICE: To ensure proper application of 1926.706(a)(4), we must explain criteria used to determine when an employee is "actively engaged in constructing the wall."

3. If only employees of other contractors are exposed to a wall and no Limited Access Zone has been established, can the mason contractors be cited for not establishing the zone?

Suggested Response: Pursuant to provisions and intent of OSHA'S ope`1 rational directives (CPL 2.45A, Chapter V), the mason contractors may or not be cited, depending on whether or not the exposing employer(s) met the "Legitimate Defense Test". To determine this, certain questions must be answered: (1) Who created the hazard, (2) Who had the authority or the ability to correct the hazard, (3) Was there reasonable effort made to persuade the controlling contractor to correct the hazard, and (4) Did the exposing employer instruct/train his employees on how to avoid or minimize dangers associated with the conditions. If it is determined that the exposing employers took all possible actions, short of walking off the job, to protect his employees, that employer would not be cited. Then the employer(s) in the best position to correct the hazard could be cited. If the mason contractors were using an ungrounded electrical system and made no effort to get the hazard corrected, that mason contractors would be cited for the hazard even though they did not created or have the ability or authority to correct the hazard. But if the mason contractors made a "reasonable effort" to persuade the controlling contractor to correct the condition, and all other parts of the legitimate defense test are met, the mason contractors would not be cited. The "reasonable effort" means in writing or other provable means. If employees of another contractor are exposed to the wall for legitimate reasons, even though not engaged in construction of the wall, the mason contractors could be cited if they were asked to correct the hazard and failed to do so, because they would have the authority and ability to correct the hazard.

4. What happens if mason contractors are required to build a wall on a property line?

Suggested Response: One rule to remember is that employers will generally be cited for a violation/hazard to which their employees are exposed. In your question about a wall being built on a property line, if no employees are exposed, no citations would be issued. But if employees are exposed to the possibility of a wall falling and they are not protected, their employer would be cited. The location of the wall on the property line would certainly restrict or prevent establishment of a Limited Access Zone, so if employees are exposed, the wall may have to be braced or otherwise supported even though less than eight feet high, or access into the area prohibited. This same rule would apply if the general contractor, or activities of another contractor would make it impossible to utilize the full space required for the Limited Access Zone.

5. What happens to the Limited Access Zone when the wall of the building gets several stories high?

Suggested Responses: Your examples and explanations generally answers this question. One key word you have used is important when considering size of the Limited Access Zone, and that word is "unsupported". The size of the zone is based on the height of the "unsupported" portion of the wall. Using your example, if the wall being constructed is up to a height of 80 feet, and all but 10 feet of the height is supported, the Limited Access Zone required would be 14 feet.

6. What is acceptable to create a Limited Access Zone, i.e., does it require barricades, signs, marking on the ground/floor, etc.?

Suggested Responses: There are no specific requirements within the standard. In the designation of the zone, any marking or barrier, etc., is acceptable as long as the intent of the standard is met. An ideal and effective procedure would be a physical barrier of some type in conjunction with signs, but the employer establishing the zone has the option of identifying the zone as he wishes. That employer must consider whether or not the lines drawn, or the signs posted, or the barricades used, or any other method used, is going to effectively identify the Limited Access Zone in such a way to be recognizable by other persons approaching the area. If, in the Compliance Officer, the intent of the standard is not met, a citation will be proposed.

7. Should the initial size of the Limited Access Zone be based on the ultimate height of the wall or can it be smaller when the wall is at a lesser height and increased as the wall height increases?

Suggested Response: Once again the intent of the standard must be considered. If the intent is met, the zone size will be acceptable. If the ultimate height of the wall is to be 15 feet, but it is only five feet high when the Compliance Officer is at the site, a zone of nine feet or more would be acceptable. By the same token, if the wall height would increase from five feet to six feet while the Compliance Officer is standing there, the zone must immediately be extended to at least 10 feet or the exposing employer would be legally and technically in violation. It may be more practical to initially establish the zone in accordance with the ultimate height of the wall rather that to keep moving barricades, signs, etc., each time the wall height increased.

8. Reference the first paragraph on page 3 of the Mason Contractor's Association letter. This alludes to possible problems for other sub-contractors inside building where masonry walls are going up quickly. The Association believes the Limited Access Zone in these areas would severely impair, if not totally restrict, construction activities of the other sub-contractors.

Suggested Response: The ultimate objective of this standard is to prevent masonry walls from collapsing onto persons exposed to them. This can be done by supporting or bracing the walls, by restricting exposure within the probable fall path of the walls, and/or by allowing space of escape beyond the probable fall path of the walls. It is recognized that no one course of action will be acceptable in all situations, but some action must be taken to prevent serious injury or death from a collapsing wall. This is a situation which demands coordination and cooperation with the general contractor and/or the sub-contractors, and demands give and take take on the part of all. Please understand, this is a performance standard which leaves the method of abatement/prevention up to the employer(s).

Reference the four paragraphs under the heading "Wall Bracing" on pages 3 and 4 of the Mason Contractors Association letter.

9. Can the Limited Access Zone be removed after the walls are braced?

Suggested Response: Yes.

10. What does the word "adequate" means in regard to bracing?

Suggested Response: There is not one definition of "adequate" to fit all situations. Adequacy of bracing must be the decision of the employer(s) who should be able to support their decision. One wall eight feet high may require more bracing, or a different type bracing, than another wall of the same height. Many factors determine the necessary bracing: wind strength, wind direction, terrain, etc. The intent is to prevent the wall from collapsing, and the employer(s) must provide bracing capable of supporting the wall under prevailing conditions.

11. The standard requires a wall eight feet high to be braced. Does that mean the masons pull off the wall at eight feet high, and either move to another area, if available, or go home if another area is not available, while bracing is installed?

Suggested Response: The standard requires walls over eight feet high to be adequately braced unless the wall is adequately supported to prevent overturn or collapse. As noted in item #10 above, the employer has the responsibility of determining the adequacy of wall support or bracing, If the employer determines the wall is capable of withstanding forces applied during construction, the wall would be considered adequately supported and not require bracing. So if a wall is eight feet or more and considered "adequately supported" by the employer (who will likely be asked to substantiate this determination) no bracing would be required. Once again, look to the intent of the standard which is to prevent a wall from collapsing onto people. It is not intended to actually change industry practice concerning the construction of a wall, except to ensure safety for all persons exposed. The standard requires bracing only when the wall is not adequately supported to prevent collapse. If a "green" masonry wall is over eight feet in height, and bracing would be detrimental to its construction, then the Limited Access Zone will remain in place to ensure against personnel exposure. NOTE FOR NATIONAL OFFICE: These type field situations that our Compliance Officers will face needs to be addressed in a CPL to ensure uniformity in enforcement.

12. If a wall is not braced properly, which employer is cited? It is the masonry contractor? What bearing does a construction contract have on which employer might receive a citation?

Suggested Response: A construction contract would not have any bearing on which employer(s) receive a citation. The employer(s) cited will usually be the employer(s) whose employees are exposed to the violation/hazard. There are some exceptions to this general rule, and two are frequently used. One is referred to in item #3 above: The Legitimate Defense Test. The other is unpreventable employee misconduct or "isolated event" which recognizes that the violative conduct of the employee was unknown to the employer (considering employer's reasonable diligence) and was in violation of the employer's workrules which were effectively communicated and uniformly enforced. The masonry contractors would be cited if their employees were exposed to a violation/hazard and/or if they were in the best position to correct the violation/hazard (see items #2 and #3 above).

If further information is necessary, please contact Harry Borchelt or Bill Patton at FTS 564-3061.