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Staying Safely on a Roll

TUESDAY, MAY 6, 2014

By Eric J. Conn

Fall hazards are always among the top Occupa­tional Safety and Health Administration (OSHA) enforcement priorities. These violations rank among the most frequently cited year after year.

The duty to use fall protection for work on top of rolling stock, however, is one the most confusing and incon­sistently enforced OSHA requirements.

This is especially true for work on top of railcars at ethanol plants and grain elevator facilities.

Railcar Work
Flexible Lifeline Systems

OSHA fall-protection standards generally don't address fall hazards from the unique circumstances of mobile work surfaces.

With potentially miles of track, there often is no feasible method for employees to tie off over the tracks.

Historical Enforcement

Fall protection requirements for workplaces outside of construction are generally addressed by two general industry OSHA standards: the Walk­ing-Working Surfaces / Fall Protection Standard (com­monly known as “Subpart D”) and the Personal Pro­tective Equipment (PPE) Standard (1910.132(d)).

In general, the Walking Working Sur­faces rule requires employees to tie off or be otherwise pro­tected from falls whenever they are working at elevations above four feet. PPE regulations require employers to “assess their workplaces to deter­mine if hazards are pres­ent that necessitate the use of PPE,” and then to select and ensure that employees use that equipment.

Neither standard, however, specifically addresses fall hazards from the unique circumstances of mobile work surfaces, such as the tops of rail­cars and tankers.

In 1996, the National Grain and Feed Association (NGFA) asked OSHA to clarify its policy relating to these fall hazards, citing inconsistent enforcement.

The Miles Memo

In response, OSHA and industry leaders hashed out a sensible, workable set of criteria for where, when, and how to address falls from tops of railcars.

Railcar work
Fall Protection Systems Inc.

Numerous work activities require employees to stand on and walk between the tops of railcars.

The resulting en­forcement memo, issued Oct. 18, 1996, came to be known as the “Miles Memo” for its author, John Miles, who was then OSHA’s Direc­tor of the Directorate of Enforcement.

It was, and remains, a formal legal interpretation by OSHA.

What Is, and Isn't, Required

The Miles Memo expressly stated that the fall protection requirements of Subpart D did not address rolling stock, and acknowledged that a then-proposed new version of the Walking-Working Surfaces standard expressly excluded rolling stock.

Thus, the memo prohibited OSHA inspec­tors from citing rolling stock fall hazards under that standard.

The memo also prohibited OSHA from citing the PPE standard for lack of fall protection on rolling stock unless it was “inside of or contiguous to a building or other structure where the installation of fall protection is feasible.”

The memo concluded that OSHA would only re­quire active fall protection when it was technologically and economically feasible (that is, when it was physically possible, and not unduly expensive, to install the equipment).

The memo specified where overhead fall protection must be provided: only under or next to rail loadout structures or where railcar sidings were adjacent to grain stor­age structures.

Railcar access platform
Fall Protection Systems Inc.

Employers may be cited under the PPE standard if the rolling stock is “inside of or contiguous to a building or other structure where the installation of fall protection is feasible.”

The memo did authorize OSHA to cite employers for falls from rolling stock under the general duty clause (GDC), but only if the employer had not taken feasible “administrative” steps to reduce the fall hazard.

Since then, grain handlers have universally understood that employees could work on top of railcars without a harness/lanyard if they were “down track” from the loading zone contiguous to the elevator.

Changing Precedent

Now, however, OSHA has started to turn its back on that longstanding precedent.

Without warning, three years ago, some OSHA Area Offices began to cite employers and grain inspectors under the GDC or PPE Standard, more surprisingly, most of these citations were classified as “willful.”

This apparent rejection of long-established policy has to be seen as imposing a new requirement, and it should not be permitted without formal notice and comment rulemaking.

And yet, some OSHA area directors have suggested that the more cita­tions they issue, the more established their new view of the law becomes. Thus, they are changing the law by citation, not rulemaking.

Tanker Trucks

In 2012, the Occupational Safety and Health Review Commission (OSHRC) issued a deci­sion that affirmed the va­lidity of the Miles Memo and clarified its application beyond grain inspectors and railcars.

The decision was issued in Secretary of Labor v. Erickson Air-Crane  Inc., which involved an employer that provided helicopter lift­ing services and operated a fuel tanker truck with spare helicopter parts stored on top.

Tanker Truck

According to OSHA, the employer in this scenario was required to provide handrails.

An employee working with the parts atop the truck fell off in high winds, suffering serious injuries.

OSHA cited the employer under the GDC, alleging that it “expos[ed] its employees to fall hazards when they were working on top of a fuel tanker truck” and should have provided active fall protection.

An administrative law judge (ALJ) upheld the citation, saying the employer did not follow its own administrative controls, al­though OSHA did not prove that active fall protection equipment was feasible.

Citation Deleted

On March 2, 2012, however, OSHRC reversed the judge, deleted the citation, and con­cluded that the employer had lacked fair notice of an obligation to provide fall protection on top of the truck.

In essence, OSHRC found that the Miles Memo remained the binding interpretation as to where fall protection on rolling stock was fea­sible (inside or next to a building) and where it was not (away from structures).

In its decision, OSHRC emphasized certain parts of the Miles Memo, particularly:

  • Its broad exemption of all rolling stock from fall protection standards, limited only by very specifically de­scribed circumstances that were not applicable in this case; and
  • The indication that under the GDC, OSHA requires only administrative con­trols to reduce fall hazards.

OSHRC also noted that the Miles Memo cited only administrative controls for fall protection away from structures, such as:

  • Determining that work conditions atops of railcars are free of ice, heavy rain and winds;
  • Assessing an employee’s physical ability; and
  • Providing adequate training.

Decision Summary

The Erickson Air-Crane case demonstrates that:

  1. The Miles Memo remains OSHA’s binding, official interpretation of the law regarding fall protection on top of rolling stock;
  1. It is not considered feasible to use fall protection equipment away from structures;
  1. Only administrative controls are required for work away from structures; and
  1. The Miles Memo applies to cir­cumstances beyond inspectors who have to inspect trains in the middle of nowhere.

Recommended Practices

So, how do you stay compliant?

Grain handlers and other employers should, if possible, perform all work on top of railcars when they are located under a fall protection system and require the use of that equipment.

If that is not feasible, employers should provide fall protection for work on the railcars located next to a structure and take these steps for other work:

1. Implement administrative controls, such as:

  • Blue-flag or isolate tracks to ensure that cars are not moved with workers on top;
  • Prohibit work on top of railcars in inclement weather;
  • Train employees on proper ways to climb on cars (for example, three-points of con­tact without carrying anything); and
  • Requiring all work to be done from the railcar’s catwalk.

2. Perform and document a PPE Hazard Assessment that:

  • Recognizes the fall hazard for work on top of railcars;
  • Explains the facility’s railcar fall protection policy and administrative controls; and
  • Explains where, why, and when it is not feasible to use fall protection.

3. Consider having a feasibility analy­sis performed under the protection of attorney-client privilege.

4. Train employees in where and when fall protection is required and what ad­ministrative controls are required when fall protection is not feasible.

5. Enforce fall protection policies and administrative controls by discipline.

6. Be prepared to challenge citations.


Eric J. Conn

Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Group. His practice focuses exclusively on issues involving occupational safety and health law. OSHA Watch offers general information but should not be construed as legal advice. Employers are always advised to seek appropriate counsel for individual issues. Contact Eric.



Tagged categories: Epstein Becker Green; Health & Safety; Health and safety; Laws and litigation; OSHA; Chemical Plants; Fall protection; Oil and Gas; Petrochemical Plants; Public Transit; Rail; Railcars; Tanks

Comment from Norbert Norman, (5/7/2014, 9:59 AM)

Does this ruling also include trucks and trailer rolling stock when loading, unloading and securing loads?

Comment from Eric Conn, (5/7/2014, 11:37 AM)

Yes, the Miles Memo and the Erickson Air-Crane case apply to any form of rolling stock, including tractor trailers and trucks. In fact, the Erickson Air-Crane specifically involved work on top of a tanker truck, not a railcar, so the Review Commission has expressly extended the Miles Memo to those types of vehicles. The key in the analysis with a truck is the same as it is for railcars; i.e., whether the truck is located contiguous to a structure/building.

Comment from Car F., (5/8/2014, 1:53 PM)

I concur with Mr. Conn’s reply. In our municipal facility we have enormous trucks and street sweepers that are 12 ft. high. In my view, the height and the surrounding hazards are the determining factor when considering using fall protection and not whether the equipment is stationary or mounted on wheels

Comment from Tom Schwerdt, (5/12/2014, 1:35 PM)

Is it that hard to start building tank cars with integral anchor points for fall protection attachment?

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