In May of this year, OSHA issued a final rule to increase safety and protect construction workers in confined spaces. The final rule was published twenty-five years after the rule was proposed. “In the construction industry, entering confined spaces is often necessary, but fatalities like these don’t have to happen,” said Secretary of Labor Thomas E. Perez. “This new rule will significantly improve the safety of construction workers who enter confined spaces. In fact, we estimate that it will prevent about 780 serious injuries every year.” According to the construction confined space rule, confined spaces can include manholes, incinerators, transformer vaults, ventilation ducts, storm sewers, water pipes, bag houses, elevator pits, silos and enclosed beams. Although the original compliance deadline was August 3, OSHA has issued a compliance deadline extension, pushing full enforcement of the regulation to October 2, 2015.
Under Scrutiny
Like most things OSHA does, the confined space in construction rule is under scrutiny. The original compliance deadline was questioned by the construction industry, stating that 3 months is not enough time to train workers and to qualify workers as “competent persons” under the new rule. The compliance deadline has been extended for employers who make a “good faith” effort to comply. For an employer to show “good faith” in OSHA’s eyes, the employer must be in compliance with the training requirements for the new rule (29 C.F.R. 1926.1207) or a prior standard for general construction training (29 C.F.R. 1926.21(b)(6)(i)).
Shortly after the rule was issued, the Texas Homebuilders Association petitioned the Federal Court of Appeals for a review to the rule, stating “OSHA’s final rule is arbitrary and capricious, not supported by substantial evidence in the record considered as a whole, an abuse of discretion, or otherwise not in accordance with law. Accordingly, the petitioners respectfully request that this Court vacate and remand, or vacate, the final rule.” By mid-July, four parties had joined the petition including the National Association of Home Builders and three telephone-related companies—Southwestern Bell Telephone Co., Verizon New York Inc. and Verizon construction subsidiary Empire City Subway Company Ltd. The parties have concerns as to how the rule fits the residential construction industry. “In particular, there is confusion about how and when to initially determine whether a space is permit-required or not—especially if there are no known or obvious hazards,” Tom Woods, Chairman of the National Association of Homebuilders, said. “For example, if a builder sprays insulation foam in an attic, would that introduce a hazard to a space that was previously not considered a permit-required area?” Recent rules from OSHA that were petitioned took months to settle…so we could be in for the long haul on this one – what’s a few months when we’ve been waiting twenty-five years?
OSHA Did OK On A Few Things
Feedback from the construction industry during the rulemaking process asked that OSHA’s rule for construction closely follow the rule for general industry – and OSHA held to this request. There are some nuances specific to construction, but for the most part, the rule follows the general industry rule, which has been in place since 1993.
OSHA somewhat clarified the confusion posed by the 2008 proposed rule regarding which rule to follow, construction or general industry. Since the two industries can overlap, and the rules are very similar, OSHA states that if a contractor is adhering to the construction rule, OSHA won’t penalize the contractor even if the project comes under the general industry rule. However, contractors using the general industry rule when the construction rule applies can be cited. So, as a rule of thumb, stick to the construction rule.
Training Updates
Per OSHA, there are 5 key differences from the construction rule, and several areas where OSHA has clarified existing requirements. The five new requirements include:
- More detailed provisions requiring coordinated activities when there are multiple employers at the worksite. This will ensure hazards are not introduced into a confined space by workers performing tasks outside the space. An example would be a generator running near the entrance of a confined space causing a buildup of carbon monoxide within the space.
- Requiring a competent person to evaluate the work site and identify confined spaces, including permit spaces.
- Requiring continuous atmospheric monitoring whenever possible.
- Requiring continuous monitoring of engulfment hazards. For example, when workers are performing work in a storm sewer, a storm upstream from the workers could cause flash flooding. An electronic sensor or observer posted upstream from the work site could alert workers in the space at the first sign of the hazard, giving the workers time to evacuate the space safely.
- Allowing for the suspension of a permit, instead of cancelation, in the event of changes from the entry conditions list on the permit or an unexpected event requiring evacuation of the space. The space must be returned to the entry conditions listed on the permit before re-entry.
In addition, OSHA has added provisions to the new rule that clarifies existing requirements in the General Industry standard. These include:
- Requiring that employers who direct workers to enter a space without using a complete permit system prevent workers’ exposure to physical hazards through elimination of the hazard or isolation methods such as lockout/tagout.
- Requiring that employers who are relying on local emergency services for emergency services arrange for responders to give the employer advance notice if they will be unable to respond for a period of time (because they are responding to another emergency, attending department-wide training, etc.).
- Requiring employers to provide training in a language and vocabulary that the worker understands.
Finally, several terms have been added to the definitions for the construction rule, such as “entry employer” to describe the employer who directs workers to enter a space, and “entry rescue”, added to clarify the differences in the types of rescue employers can use. (OSHA.gov, Confined Spaces FAQ)
The rule requires employers to determine what kinds of spaces their workers are in, what hazards could be there, how those hazards should be made safe, what training workers should receive, and how to rescue those workers if anything goes wrong.
Do you think OSHA got it right? Are you a member of the construction industry that has concerns about the new regulation? We’d love to hear your thoughts.
Is the new confined spaces for construction rule as clear as the mud on your boots? Need help making sure your confined space for construction training is up to snuff? We can help. Give us a call toll free at 844.528.4486 or visit www.evolvedsafety.com and join the evolution of safety training.
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Sources:
The Bureau of National Affairs, Inc., Occupational Health & Safety Reporter, 45 OSHR 469, Rolfsen, Bruce, Final Construction Confined Space Rule Released 25 Years After Proposal, May 9, 2015
The Bureau of National Affairs, Inc., Occupational Health & Safety Reporter, 45 OSHR 717, Rolfsen, Bruce, Confined Spaces Compliance Deadline Extended, July 9, 2015
The Bureau of National Affairs, Inc., Occupational Health & Safety Reporter, 45 OSHR 694, Rolfsen, Bruce, Four Parties Join Confined Space Rule Challenge, July 7, 2015