North Carolina Rulemaking Could Signal National Trend Toward More Stringent Tower Safety Standards

Date: Jul 01, 2002

The North Carolina Department of Labor's Occupational Safety and Health Division ("NC-OSHA") is developing a safety standard that would govern fall protection requirements in both the construction and maintenance of telecommunications towers in the state.  The proposed standard goes beyond current requirements under Federal rules promulgated by the U.S. Occupational Safety and Health Administration ("OSHA").  If passed in its current version, the new rule could serve as a blueprint for OSHA or other states to impose additional requirements on the telecommunications tower industry, particularly on tower owners. 

The current draft of the NC-OSHA proposal would require employers to provide 100% fall protection above six feet.  Tower owners would have to install fixed safety climb devices on all new towers that are at least 24 feet in height.  In addition, tower owners would be required to retrofit all existing towers within ten years, or when replacement, major repair, renovation or modification of a tower is performed (whichever is sooner). 

Currently, no federal standard on fall protection explicitly covers both the maintenance and construction of telecommunications towers.  An OSHA compliance directive issued in 1999 requires 100% fall protection above 25 feet during construction activities, but it does not require retrofitting existing towers.  The directive states that maintenance, retrofitting, and dismantling would be addressed in a future directive, but to date OSHA has not issued such guidance.  In an alert issued in July of 2001, the National Institute for Occupational Safety and Health ("NIOSH") suggested compliance with OSHA's directive.   

Regarding tower maintenance, it appears that an existing standard already protects workers performing maintenance on telecommunications towers.  In particular, the general industry "Telecommunications" Standard, 29 C.F.R. § 1910.268, apparently requires fall protection on telecommunications towers for maintenance work above four (4) feet; the standard, however, does not govern construction activities. Surprisingly, the standard is not mentioned in either the OSHA compliance directive regarding telecommunications towers or the NIOSH tower alert.  To add to the confusion, several individuals in OSHA's compliance office stated their belief that the Telecommunications Standard does not apply to tower maintenance and that they would cite employers under the general duty clause for violations in that area.  Other OSHA officials believed the Telecommunications Standard would apply in the same situations.  NC-OSHA officials indicated that they believe the Telecommunications Standard simply is "outdated." 

The uncertainty only heightens the importance of the North Carolina rulemaking process.  NC-OSHA has submitted its draft proposal to its office of legal affairs to create the final, official proposed rule.  NC-OSHA officials indicated that they hope to complete this step in the next few months.  The final proposed rule would then be published for official comment in The North Carolina Register, with a comment period of at least 60 days.  NC-OSHA has indicated that it  plans to hold hearings on the proposed rule. 

For additional information, please contact David G. Sarvadi at (202) 434-4249 or sarvadi@khlaw.com.