Post Hearing Comments Due on OSHA Proposed Rule for Confined Spaces in Construction

Date: Aug 04, 2008

OSHA began this rulemaking with an Advanced Notice of Proposed Rulemaking in March of 1980 that addressed confined spaces in both General Industry and construction. The agency issued its Permit Required Confined Spaces (PRCS) Standard for General Industry, 29 CFR 1910.146, in January of 1993, but did not adopt a confined spaces standard for construction. Almost 15 years later, on November 28, 2007, OSHA finally issued a proposed confined spaces standard for construction, which in effect, would create the following five types of confined spaces:[1]

1. Continuous System PRCS - a space, such as a sewer system, which cannot be isolated;

2. PRCS (generally the same as 1910.146);

3. Controlled Atmosphere Confined Space (apparently equivalent to the Low Hazard Entry under 1910.146 where all physical hazards are isolated and any actual or potential atmospheric hazard is controlled with forced ventilation);

4. Isolated Hazard Confined Space (a classification achieved by going through a formal process that appears equivalent to what should be done to re-classify a PRCS as a non-permit space under 1910.146, by demonstrating that the employer has isolated all physical and atmospheric hazards in the space); and

5. Unregulated confined spaces.

The OSHA proposal poses significant concerns in three areas: 1) the confusion (and need for substantial changes to existing and effective programs and training) created by the introduction of different terminology and a regulatory scheme based on five rather than three types of confined spaces; 2) provisions that suggest an inappropriate effort to amend the PRCS Standard; and 3) an expanded and over-reaching set of provisions addressing multi-employer issues.

The existing requirements governing confined spaces in construction are minimal and inadequate. In light of that void, our understanding is that, over the past 15 years, construction contractors have adapted to and follow the General Industry PRCS Standard for entry into confined spaces. Accordingly, one fairly universal theme in the comments submitted to OSHA on the proposed Confined Spaces in Construction (CSIC) rule has been to adopt the PRCS Standard for construction with only those minimal changes OSHA finds to be necessary. Consistent with that comment, the commenters have generally been critical of OSHA's proposal to expand the classes of confined spaces from three (in the PRCS Standard) to five in the CSIS proposal.[2]

For several reasons, various industry commenters have expressed objections to OSHA's efforts to redefine terms used in the PRCS Standard. First, it certainly appears that the revised terms would expand the scope of the standard in comparison to 1910.146 in ways that seem inconsistent with the reasonable objectives of a confined spaces standard (e.g., expand the definition of a hazardous atmosphere to include any space where a Permissible Exposure Limit (PEL) was exceeded, expand the meaning of limited means of entry/exit to include any space with a slippery surface or inadequate lighting). Second, there would be continuing confusion and a need for significant retraining. Finally, the impractical result would be that different terminology and requirements would apply to manufacturing and construction employees working side by side, or to the same person depending on the label applied to the work being performed.

The proposal would continue and expand on the recent OSHA practice of attempting to address the multi-employer worksite issues in the substance of the rule. It specifies the obligations of employers whose employees enter confined spaces, host employers, and controlling contractors, such as general contractors and construction management firms.

The explicit listing of these multi-employer obligations cannot help, but cause a re-thinking of current practices. The proposal states that neither the controlling employer (the employer with overall responsibility for construction at the site) nor the host employer (the site owner or manager) are required to obtain research and investigate information about the hazards and classification of a space, provided their employees do not enter the space. However, they must provide that information to the employer performing the entry ("the entering employer") if they have it.

If an employee of the host employer or controlling contractor ever entered the space, those employers may be deemed to (permanently) have information for purposes of future confined space hazard communication obligations. Depending on the practices in effect, the controlling employer or host employer may have previously signed off on an entry permit or similar paperwork (whether for approval or acknowledgment of receipt) for a prior entry into that space or a similar space, simply received that paperwork, or even reviewed that paperwork as part of a post entry review. In that event, OSHA arguably could take the position that those employers would be deemed to have knowledge of the information in that paperwork, even if they have not kept it, and would need to create some type of permanent record of that information so it could be communicated to another entering employer in the future.

Furthermore, if the entering employer determines that the confined space falls into one of the four regulated categories of spaces, the proposed rule would require the entering employer to inform the controlling employer and host employer of the precautions and procedures it will follow and about any hazards that were present. Again, assuming this requirement is implemented, OSHA arguably could take the position that those employers would be deemed to (permanently) have that knowledge, and would need to maintain a record of it for communication to another contractor in the future. The thrust of this set of communication requirements suggests that, rather than throwing out entry permits after one year, the host employer may have to maintain a space-specific file for each confined space at its site. The same may also be true for controlling contractors.

In response to numerous requests, the Agency held a two day informal public hearing on July 22-23, 2008. Final written comments, summations, and briefs from parties filing a Notice of Intention to Appear (NIA) are due September 22, 2008. Parties who are interested in filing post-hearing comments, but did not file a NIA should contact:

David G. Sarvadi
Partner
sarvadi@khlaw.com
202.434.4249

Or

Lawrence P. Halprin
Partner
halprin@khlaw.com
202.434.4177


[2] The three categories of confined spaces effectively established by § 1910.146 are: 1) a PRCS subject to all requirements of § 1910.146: 2) a PRCS subject to the reduced requirements of § 1910.146(c)(5); and 3) a non-permit space (NPS), which is an NPS either because it was an NPS rather than a PRCS before the application of control measures (per the definition of a PRCS in § 1910.146(b)) or because, after application of the control measures, and for the period they remain in effect, the confined space is reclassified as an NPS per § 1910.146(c)(7).

Contact: , Ph 202.434.4249