November 1, 1993

Mr. Howard Schaffner
Hofeld and Schaffner
30 North LaSalle Street, Suite 3120
Chicago, IL 60602

Dear Mr. Schaffner:

This is in response to your October 5 letter requesting interpretations of the Occupational Safety and Health Administration (OSHA) standards concerning the use of a crane near overhead power lines.

With regard to your first question whether a crane oiler is required under 29 CFR 1926.550(a)(15)(vi) to make an independent inquiry to determine if overhead power lines are energized, please be advised that with few exceptions, OSHA holds the employer responsible for complying with safety and health regulations. The employer, not the crane oiler, is responsible for assuring that a safe distance between the crane equipment and overhead power lines is maintained or that the power lines are denergized.

With regard to whether a crane oiler would be required to wear insulated protective gloves by either 1926.28(a) or 1926.416(a)(2), please be advised that neither section is applicable in the situation described in your request. Paragraph 1926.416(a)(2) applies only to the use of hand tools used near underground electric power lines. Due to a decision of the Occupational Safety and Health Review Commission, 1926.28(a) is now a nullity. OSHA would use the general duty clause of the OSH Act, 29 U.S.C.654(a)(1) or the general personal protection equipment standard at 29 CFR 1910.132(a) [Since June 30, 1993, codified within Part 1926 at 1926.95(a)] to require protective equipment. Please be advised, however, that OSHA would not consider the use of insulated gloves to be an acceptable substitute for the measures specified in 1926.550(a)(15)(vi), i.e., maintaining the specified clearance, denergizing the line, or erecting a physical barrier.

With regard to the person designated as an observer as required by 1926.550(a)(15)(iv), please be advised that (1) the observer must be specifically assigned by the employer, (2) the designated observer can be assigned other duties provided the other duties do not interfere with the observer's ability to give timely warning for all operations of the crane and (3) the observer must be positioned so as to be able to visually monitor the clearance between the equipment and the power lines. Although the observer's position is site dependant, it would not normally be acceptable for an observer to be positioned under the crane because the observer would have a similar visual perspective of the equipment as the crane operator.

If we can be of any further assistance, please contact Mr. Dale Cavanaugh of my staff at (202) 219-8124.

Sincerely,



Roy F. Gurnham, P.E., Esq.
Director
Office of Construction and Maritime
Compliance Assistance




October 5, 1993

Mr. Roy Gurhman
Occupational Safety and Health Administration
Division of Construction Compliance Assistance
200 Constitution Avenue, NW Room N-3610
Washington, DC 20210

Dear Mr. Gurhman:

We represent an oiler electrocuted when the boom of a crane came in contact with overhead power lines, in a civil suit not involving OSHA or the federal government. An issue in the case is if and how certain OSHA regulations apply to the behavior of the worker himself.

Per Mr. Dale Cavanaugh of your office, we write to seek written OSHA interpretations of the following questions:

Background: Work is planned on a job site, consisting of digging holes and placing steel beams as soldier pile, which will necessarily bring the beams within 10 feet of overhead power lines with a voltage rating of 7.2 kv:

1. Where 29 CFR 1926.416(a)(3) requires the employer to ascertain by inquiry or direct observation whether the lines are energized, and supervisory personnel of both the general contractor and the subcontractor have been to the worksite, mapped out the work to be done under these lines, and direct workers to begin the work, and neither supervisor reports to the workers on the site that the lines are a hazard or a danger, does 29 CFR 1926.550(a)(15)(vi) require that the oiler on the job make independent inquiry of the public utility that owns the lines to determine if the lines are energized before beginning work on the job?

2. Does either 29 CFR 1926.28 or 29 CFR 1926.416(a)(2), or both, require that the oiler wear insulated protective gloves when undertaking the work described?

3. If the answer to Q 2 is "yes", does 29 CFR 1928.28 or 29 CFR 1926.416(a)(2) require the employee to ask for such insulated protective gloves even in the face of employer silence, or must the employer assume responsibility for providing the gloves?

4. If the employer believes that an observer is needed per 29 CFR 1926.550(a)(15)(iv) because it is difficult for the operator of the crane to maintain the required 10 foot clearance from overhead power lines by visual means:

a. Must the observer be specifically assigned that job duty for that specific job or may the employer rely on custom and practice about who will assume the responsibilities of an observer?

b. Must the observer's duties be limited to observing and warning or may the observer have oiler duties besides observing and giving warning to the operator? If other duties may be assumed, are there limits on those duties?

c. Specifically, can the oiler, who is positioned under the crane and who must hold a cable with both hands to prevent a swingout arm from damaging the main boom, serve as the 29 CFR 1926.550(a)(15)(iv) observer?

Due to the schedule of the civil suit, we would appreciate receiving a reply by the first week in November. Should you need additional information, please do not hesitate to contact me or Monica McFadden in my office.

Very truly yours,



Howard Schaffner