March 23, 1995

Mr. Philip Torchio V.P., Corporate Services
Atlanta Steel Erectors, Inc.
1285 Hawthorne Avenue
Smyrna, Georgia 30081

Dear Mr. Torchio:

Thank you for your letter dated January 20 concerning safety plans as set forth in Subpart M -- Fall Protection for the Construction Industry.

The sample pre-cast concrete erection safety plan listed in Appendix E of Subpart M is a generic type plan that has the potential of being applied to every worksite. However, it should never be used without the contractor first reviewing it in its entirety to confirm that it properly addresses the fall hazards at a given worksite. Although I did briefly review the plan used in Appendix E, I did so with an eye towards the concept of using such a plan to address fall hazards; I did not intend to "approve" the plan for use without further site specific concerns being addressed. As you recognize in your letter, plans will be evaluated, as appropriate, by OSHA field staff; I will not be reviewing plans personally.

The concept of "greater hazard" centers on whether or not compliance with a standard would result in greater hazards to employees than noncompliance. In addition, there must be no alternative means of employee protection and application of a variance would be inappropriate. The answers to these questions are often site dependent. With these concepts in mind, the sample plans in Subpart M have been evaluated and accepted as meeting the requirements of the greater hazard concept in a generic sense and specifically for those activities identified in the sample plans. They must still be reviewed by the contractor to confirm their applicability. As more plans are developed to address fall protection concerns, it is our intention to include additional acceptable plans in Appendix E.

Thank you for your interest in these matters.

Sincerely,

Joseph A. Dear
Assistant Secretary

Enclosure



January 20, 1995

Mr. Joseph Dear,
Assistant Secretary Department of Labor - OSHA
200 Constitution Ave.
Washington, D.C. 20210

Dear Mr. Dear:

I am writing to urgently seek clarification regarding the interpretation of several provisions contained in CFR 1926.502 Para "k" for employers using a control zone and safety monitor. As you know, Sub Part M CFR 1926.500 "Fall Protection in Constitution" is due to go into effect February 6, 1995. This request results from my participation in a Precast Concrete Institute/Department of Labor - OSHA seminar held in Atlanta January 10th and subsequent discussions at the Atlanta Construction Chapter of ASSE. It has become evident that industry groups such as PCI, professional safety association members, OSHA Compliance Officers, and the author of sub part M all have differing opinions of what a "greater hazard" is and what constitutes and approved job site safety plan including the use of a control zone. Failure to receive clarification on these issues will surely lead to confusion in the construction industry and unwanted and costly litigation.

The reason I am writing you personally is that you were identified as having evaluated and accepted the sample pre-cast concrete erection safety plan listed in Appendix E of Sub Part M. The opinion was offered that since you approved this plan, it was a bona fide example of the development of a safety plan to address a greater hazard situation. In response to the question of whether you would be approving all specific plans personally, no one at the seminar was willing to assign you this task, but, nor were any of the seminar leaders able to identify who would approve specific hazard evaluations and safety plans. The response to the question of who would decide if a safety plan was warranted and sufficient was, ultimately, the judicial system.

With this background in mind, and the February 6th implementation date for CFR 1926.500 fast approaching, it is essential that OSHA provide both industry and OSHA Compliance Officers the criteria that OSHA compliance personnel are to use to determine the sufficiency of a "Greater Hazard" justification for alternate fall protection methods such as the control zone, safety monitor system. In addition the following questions need to be addressed: Have the samples plans in Sub Part M Appendix E been evaluated and accepted as meeting the requirements of a "Greater Hazard" justification for not using other fall protection solutions required in Sub Part M? Or are the examples in Appendix E only samples of the form that a job specific fall protection plan might follow to comply with the requirements of CFR 1926.502k?

The expressed goal of the Department of Labor of making OSHA CFR 1926 provisions more understandable and reducing litigation is shared by the construction industry. I believe that your responses to these questions will help avoid confusion and chaos in the construction industry and enable industry and OSHA compliance personnel to better implement and enforce the new provisions of Sub Part M. Thank you in advance for your attention to this urgent request.

Sincerely yours,

Philip Torchio V.P.,
Corporate Services