November 14, 2014

Jill Hyman Kaplan, Esq.
Counsel for the Association of American Railroads
Manko, Gold, Katcher & Fox, LLP
401 City Avenue, Suite 901
Bala Cynwyd, PA 19004

Dear Ms. Hyman Kaplan:

Per the Association of American Railroads' September 2, 2014, settlement agreement with the Occupational Safety and Health Administration (OSHA), you request interpretations of OSHA's Cranes and Derricks in Construction standard (cranes standard). First, regarding a controlling entity's duty to disclose known ground-condition hazards, you ask whether, under 29 CFR 1402(c)(2), the presence of any void, tank, utility or other subterranean object would create a presumption of a hazard to railroad equipment traveling alongside railroad tracks, regardless of the physical characteristics of the object or the depth at which it is buried. Second, you pose a question about the process of communicating the location of subterranean hazards to operators. Third, you ask for confirmation that the equipment-modification requirements in the cranes standard do not apply retroactively. OSHA provides its response to your questions below.

Background

OSHA's cranes standard requires each worksite's "controlling entity," as defined in § 1401, to ensure adequate ground conditions for operation of equipment covered by the standard. The standard at 29 CFR 1402(c)(2) also requires a controlling entity to share with the crane operator and the user of the equipment information regarding the location of known underground hazards beneath the area where the operator will be operating equipment covered by the cranes standard. Section 1402(c)(2) does not require controlling entities to seek out new information about the ground conditions, it only requires that they disclose the information that they already have. OSHA added these ground-condition requirements in light of a rulemaking record indicating that the equipment's capacity and stability depend on adequate ground conditions, that operators may lack crucial information about hidden ground hazards that compromise the capacity of the ground to support the equipment, and that this instability can lead to unsafe operation of the equipment. See discussion at 75 FR 47931 and 47933 (Aug. 9, 2010).

You note that many railroad employers may fall within the definition of "controlling entity" and would, therefore, have a duty under § 1402(c)(2) to warn of ground-condition hazards. OSHA exempted railroad equipment from the requirements of § 1402(c)(2) to the extent that the equipment stays on the tracks because the Federal Railroad Administration (FRA) already has standards governing the condition of the tracks, including ballast and other materials supporting the tracks. 29 CFR 1402(f). You indicate, however, that most of your "roadway maintenance machines" (as defined at 49 CFR 214.7) also travel alongside track on areas which would not be covered by this exemption.

You also indicate that many railroad employers operate over vast lengths of track, and that there are many objects, including cables and wires, and voids, tanks, utility pipes and other structures, that may lie under the ground alongside the track. In some cases, railroad employers mark these objects visibly to warn equipment operators of the underground object, and train operators to recognize these warnings. Modern utilities and other objects located under the ground alongside the track often meet criteria established by the railroad or industry groups that ensure that the ground above the objects is adequate to support the operation of roadway maintenance machines.

You note, however, that some objects underground may not be marked or constructed to modern criteria established for supporting roadway maintenance machines passing over them. Nevertheless, you are confident that these objects are not "hazards" for the purposes of the cranes standard in that they are buried deeply enough, or are otherwise configured, so that they do not compromise the capacity of the ground to support the roadway maintenance machines traveling above it.

Issue 1: You seek confirmation from OSHA that there is not a presumption that hazards identified as examples in the text of § 1402(c)(2) (voids, tanks, and utilities) are hazards per se, meaning that railroad employers would only have a duty under § 1402(c)(2) to disclose the presence of a void, tank, utility or other object that would compromise the capacity of the ground to support the equipment traveling above it.

Response: Section 1402(c)(2) does not establish any hazards per se. OSHA agrees that underground voids, tanks, or utilities can be buried so deeply, or otherwise encompassed by other supports or configured, so that they do not present a risk of compromising the capacity of the ground to support roadway maintenance machines traveling above. The determination of whether a void, tank, utility, or other object or condition constitutes a hazard within the meaning of § 1402(c)(2) is a factual determination that must be made on a case-by-case basis.

Issue 2: You also seek confirmation that a railroad employer may use above-ground markings of underground hazards to fulfill its duty under § 1402(c)(2) to disclose hazards to operators.

Response: Using an above-ground marking system to identify hazards is an acceptable means of communicating information to operators pursuant to § 1402(c)(2) so long as two conditions are met: (1) the markings are set and maintained so that they remain clearly visible to the operators, and (2) employers train each operator to recognize the significance of each marking.

Issue 3: You seek confirmation that the requirements in the cranes standard for modifying covered equipment do not apply to modifications made to this equipment before the effective date of the cranes standard.

Response: The modification requirements in the cranes standard generally require employers to seek approval from the manufacturer or a Registered Professional Engineer for modifications to cranes and other covered equipment. These requirements do not apply retroactively. The modification requirements specified in the cranes standard, including the requirements included in the draft regulatory text in Attachment A to your September 2, 2014, settlement agreement with OSHA (draft of proposal for 29 CFR 1442)¹, do not apply to modifications made to covered equipment before the effective date of the cranes standard. Therefore, OSHA is not requiring railroads to obtain approval from a Registered Professional Engineer for modifications the railroads performed on covered equipment prior to the 2010 effective date of the crane standard.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To ensure that you are using the correct information and guidance, please consult OSHA's website at http://www.osha.gov. If you have further questions, please feel free to contact the Directorate of Construction at (202) 693-2020.

Sincerely,

 

James G. Maddux, Director
Directorate of Construction

¹ The draft regulatory text of §1926.1442 includes two provisions related to modifications:

(b)(3): Out-of-level work. The restrictions on out-of-level work ... and the requirements for crane-level indicators and inspections of those indicators, do not apply when the employer uses equipment purchased before November 8, 2010, or when:

(i) The manufacturer approves or modifies the equipment for out-of-level operation, or a registered professional engineer who is a qualified person with respect to the equipment involved approves such out-of-level work; and

(ii) The employer uses the equipment within limitations specified by the manufacturer or the registered professional engineer, or a qualified person modifies the load chart for such approved out-of-level work and the employer uses the equipment in accordance with that load chart.

*   *   *

(b)(6): Manufacturer guidance for modifications covered by §1434. The requirements to follow the manufacturer's guidance set forth in §1434 do not apply when employers meet all of the following conditions:

(i) A registered professional engineer who is a qualified person with respect to the equipment:

(ii) The employer uses the equipment in accordance with all of the engineer's specifications and modifications.

(iii) The original safety factor of the equipment is not reduced below 1.7 for the structural boom, and 1.25 for stability, unless the original safety factor is lower.

• (A) Approves the procedure, modification, addition, or repair, and specifies the equipment configurations to which that approval applies; and
  (B) Modifies load charts, procedures, instruction manuals, and instruction plates, tags and decals, as appropriate.