On September 15, the Occupational Safety and Health Administration (OSHA) issued revisions to its construction industry standard for cranes and derricks (85 FR 57109). The new clarifications and exemptions reflect situations in which Federal Railroad Administration (FRA) regulations preempt OSHA standards.
The safety regulations of other federal agencies can preempt OSHA workplace safety and health standards under the provisions of section 4(b)(1) of the Occupational Safety and Health Act. The FRA regulation, which preempts the OSHA standards, covers safety training and certification or operators and use of railroad cranes and railroad roadway maintenance machines (RMMs) equipped with hoisting devices.
The Association of American Railroads (AAR) and a number of individual railroads filed suit in federal court challenging OSHA’s cranes and derricks standard when it was promulgated on October 7, 2010. OSHA has reached a settlement agreement with AAR, but the petitions remain before the U.S. Court of Appeals for the District of Columbia Circuit.
The settlement agreement is tailored to address the aspects of the railroad industry that differ significantly from the typical construction work covered by the crane standard.
The FRA issued final safety-related regulations on November 7, 2014; on March 19, 2019, it informed OSHA it intended to preempt OSHA’s cranes and derricks standard in railroad workplaces.
The agency decided to amend the cranes and derricks standard despite the FRA’s exercising the preemption through its own regulations to clarify which regulations apply in railroad workplaces.
The new exemptions apply to work on the construction of railroad tracks and supporting structures and include the railroad ties supporting the tracks, the ballast and roadbed that support the track and ties, and the poles and other structures on which railroad signal devices and signage are mounted. The exemptions do not apply to construction of other structures railroads may control, such as buildings, fences, platforms, or retaining walls.
The FRA regulations also preempt any OSHA training, evaluation, and certification requirements for operators of RMMs. The new exemptions include RMMs such as flash-butt welding trucks and similar railroad equipment and RMMs used in out-of-level work, as well as rail clamps, rail stops, and work-area controls. Out-of-level operation is a long-standing and necessary practice in the railroad industry because the ballast and roadbed are sloped. Accepted industry practices already address issues in out-of-level work.
OSHA also acknowledged the lack of significant injuries or fatalities resulting from the use of cranes or derricks for railroad track construction and maintenance. The agency further recognized a consensus between labor and management groups on generally accepted safety practices in the railroad industry, ensuring workplace safety despite the exemption from OSHA’s standard.
OSHA’s 2010 crane standard resulted from a negotiated rulemaking that incorporated industry standards and labor best practices into regulatory requirements to prevent crane tip overs, electrocution from crane contact with power lines, workers from being struck by the equipment or loads, crane collapse because of improper assembly, and other hazards associated with the operation of cranes in construction work.
OSHA’s revisions to the cranes and derricks standard take effect on November 16.
For more information or assistance with your Environmental and Health & Safety regulatory compliance needs, contact Ralph Carito at Total Environmental & Safety, LLC (Total) at rcarito@TotalEnviron.com or 908-442-8599.
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