May 2, 2013

Mike Cook
1530 W. Lindberg Street
Springfield, Missouri 65807

Dear Mr. Cook:

Thank you for your January 11, 2012 letter to the Occupational Safety and Health Administration (OSHA). We apologize for the delay in responding to your inquiry. Because the letter involves construction issues, it has been forwarded to the Directorate of Construction (DOC) for response. Your specific questions concern OSHA enforcement policy for construction concrete pumping operations using over-the-road, truck-mounted concrete boom pumps ("concrete boom pump trucks"). This letter constitutes OSHA's interpretation of only the requirements discussed and may not be applicable to any question not included in your original correspondence.

Background: You request an emergency temporary standard to address a number of safety concerns about concrete pumping and placements systems based on your 30 years in the concrete business. You raise a number of specific concerns regarding OSHA's standards and enforcement policy for construction concrete pumping operations using "concrete boom pump trucks." These include equipment such as truck-mounted straight-through concrete pumps, trailer-mounted or skid-mounted concrete pumps, separate concrete pumps, and shotcrete/gunnite systems. These trucks present issues that are distinct from other concrete trucks that incorporate conveyors, not pipes and hose, to place the concrete.

Question 1: What OSHA standards currently protect workers from the hazards of concrete placing operations using concrete boom pump trucks on construction projects?

Response:
Please note that Agency standards as well as the Occupational Safety and Health Act's "general duty clause" have been in place to protect workers from unsafe concrete placement activities for decades. Numerous OSHA standards address worker safety from concrete boom pump trucks on construction projects. Section 29 CFR 1926.700(a) explains:

This subpart sets forth requirements to protect all construction employees from the hazards associated with concrete and masonry construction operations performed in workplaces covered under 29 CFR Part 1926. In addition to the requirements in Subpart Q, other relevant provisions in Parts 1910 and 1926 apply to concrete and masonry construction operations (emphasis added).

Section 1926.702(e)(1) (Concrete pumping systems) requires that "Concrete pumping systems using discharge pipes shall be provided with pipe supports designed for 100 percent overload." Many other OSHA standards impose additional requirements for safely using concrete boom pump trucks to place concrete in construction, including the following sections:

• 1926.20(b)(4) [1926 Subpart C, General Safety and Health Provisions] - "The employer shall permit only those employees qualified by training or experience to operate equipment and machinery." This applies to operating the truck, outriggers, and concrete pumping system components.
• 1926.21(b)(2) [1926 Subpart C, General Safety and Health Provisions] - "The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury."
• 1926.95(a) [1926 Subpart E, Personal Protective and Life Saving Equipment] - "Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reasons of hazards of processes or environment, chemical hazards . . . "
• 1926.101(a) [Subpart E, Personal Protective and Life Saving Equipment] - "Whenever it is not feasible to reduce the noise levels or duration of exposures to those specified in Table D-2, Permissible Noise Exposures, in 1926.52, ear protective devices shall be provided and used. "
• 1926.600(a)(6) [1926 Subpart O, Motor Vehicles, Mechanized Equipment, and Marine Operations] - "All equipment covered by this subpart shall comply with the following requirements when working or being moved in the vicinity of power lines or energized transmitters, except where electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers, not a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines. " Paragraphs 1926.600(a)(6)(i-iv) include requirements for maintaining 10 foot clearance when working near power lines up to and including 50 kV, other requirements for greater clearance when working near lines over 50 kV lines, and additional requirements for transiting past or below power lines as well as requirements for a designated person to observe clearance distances and warn the operator.

Question 2: What other requirements for safe use of "concrete boom pump trucks" in construction can OSHA enforce through use of the "General Duty Clause"?

Response:
Section 5(a)(1) of the OSH Act, often referred to as the "General Duty Clause," requires employers to furnish employment which is "free from recognized hazards that are causing or are likely to cause death or serious physical harm" to employees. OSHA may cite employers for failure to provide such employment even when Agency standards do not address a particular hazard. OSHA may rely on "consensus standards," association guidelines, or manufacturer manuals as evidence of recognition of a hazard. Using these materials allows OSHA to address additional requirements for the safe operation and use of "concrete boom pump trucks" on construction projects when Agency standards do not address a particular hazard.

For example, the Agency has relied on the following sources as evidence showing industry knowledge of hazards and abatement methods for citations under the General Duty Clause:

• Manufacturer "operation, maintenance, and parts manual" materials (to address improper concrete discharge-hose operation);
• The Concrete Pump Manufacturers Association "Safety Standard for Concrete Pumps, Placing Booms and Delivery Systems" (to protect employees from hazards associated with hose ends during pump starts or restarts); and
• The "American Concrete Pumping Association Safety Manual" (to address stability and ground support hazards such as tipping hazards, improper outrigger positioning, and inadequate soil conditions. )

In your letter, you expressed several concerns about concrete pump operators who are distracted from operations because of the use of cell phones or other mobile communications devices. OSHA is aware of these issues and has launched an initiative to address these concerns: http://www.osha.gov/distracted-driving/initiative.html. On October 4, 2010, OHSA's Assistant Secretary, Dr. David Michaels, stated in an open letter to employers:

Most employers want to do the right thing and protect their workers, and some have already taken action to prohibit texting while driving. It is your responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving. Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job. [Emphasis added. ]

To combat the threat of distracted driving, we are prepared to act quickly. When OSHA receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, we will investigate and where necessary issue citations and penalties to end this practice. [Emphasis added. ]

Question 3: Will the Agency issue an "emergency temporary standard to address the concerns you raise?"

Response:
The Occupational Safety and Health Act (OSH Act) in Section 6. Occupational, Safety and Health Standards, at subsection (c)(1) directs that:

Your letter not only attests to concrete pumping hazards, but also to their long recognition by, and presence in, the construction industry. In other words, the hazards are known and not new. Furthermore, as discussed above, the hazards are subject to many existing requirements. Because of multiple applicable standards, and additional enforcement using industry norms through the "General Duty Clause," OSHA does not foresee an emergency temporary rulemaking for "concrete boom pump trucks" in construction. However, your correspondence will be kept for reference if in the future the Agency engages in rulemaking to revise 29 CFR 1926 Subpart Q, Concrete and Masonry Construction.

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 assure 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