This month, OSHA is scheduled to issue a proposed rule designed to protect construction workers from hazards associated with confined spaces. Compliance with the proposed rule is expected to save 6 lives and prevent 880 injuries annually.
This effort is a milestone in OSHA's plan to fulfill its 1994 agreement with the United Steelworkers of America (USWA) to produce a confined space standard for the construction industry. The agreement was part of a settlement that resulted from litigation between USWA and OSHA regarding the 1994 proposed Confined Space Standard for General Industry.
The development of the standard began in 1994 when OSHA turned to the Advisory Committee for Construction Safety and Health (ACCSH) for advice. ACCSH responded by establishing a work group that provided recommendations for a standard.
OSHA gathered feedback from stakeholders in 1999 and 2000 at meetings with construction industry representatives held across the country. The result was a draft proposed standard for confined spaces in construction.
The agency convened a Small Business Advocacy Review Panel on Sept. 26, 2003, to solicit comments about the draft proposal from potentially affected small entity representatives (SERs). In October 2003, several of the SERs provided comments to the panel regarding the draft proposal. OSHA now anticipates issuing the proposed standard this month.
Flexible Standard Can be Confusing
Compared to OSHA's Permit-Required Confined Space Standard for General Industry (29 CFR 1910.146), the draft proposed standard for the construction industry attempts to give employers more flexibility by increasing the number of space classifications. The classifications in the draft proposed standard include:
- Hazardous enclosed spaces,
- Isolated hazard confined spaces,
- Controlled atmosphere confined spaces and
- Permit-required confined spaces.
Flexibility is critical at construction sites, which are dynamic and constantly evolving. Greater flexibility, however, can increase the likelihood of misinterpreting the various provisions and definitions of the standard. The OSHA Website, http://www.osha.gov, posts more than 100 letters of interpretation regarding the general industry standard, which many SERs believe is much easier to understand than the draft proposed standard for construction.
In providing advice to industrial clients, I recall the endless hours of pouring over the preamble to the general industry final rule, compliance directives and letters of interpretation, to be confident in classifying the many different types of spaces and their associated hazards at industrial sites. Construction companies undoubtedly will need to consider technical training for their project managers and supervisors on the difficult task of applying the new provisions to existing company practices.
The Draft Proposed Standard
The draft proposed standard requires construction employers to first determine if any "hazardous enclosed spaces" or "confined spaces" are present at the site. For construction companies, this could require periodic surveillance of their sites or an anticipation process during the design and planning phase. For multi-employer worksites, the draft proposed standard requires a "controlling employer" to dictate how spaces are classified and entries are made at the site, a provision that many SERs found objectionable.
The draft proposed standard defines a "hazardous enclosed space" as a space that:
- Is large enough and so arranged that an employee can bodily enter it and perform assigned work,
- Has unrestricted means of entry and exit and
- Contains a hazardous atmosphere due to insufficient ventilation.
A "confined space" is defined as a space that has all of the following characteristics:
- Is large enough and so arranged that an employee can bodily enter and perform assigned work,
- Has limited or restricted means of entry or exit and
- Is not designed for continuous human occupancy.
If employees are required to enter "hazardous enclosed spaces" at the site, the employer may be responsible for providing air monitoring, engineering controls and personal protective equipment as necessary. Generally speaking, the least stringent requirements apply to "hazardous enclosed spaces" and the most stringent requirements apply to "confined spaces."
If employees are required to enter "confined spaces," the employer must determine if there are any actual or potential hazards associated with the space. If hazards are identified, the employer must classify the space as one of three classifications, depending on how the hazards are controlled.
If the hazard in the space is blocked or isolated, the space is classified as an "isolated-hazard confined space." If isolating the hazard is not feasible and the only hazard is an atmospheric one that can be controlled by ventilation, the space is classified as a "controlled-atmosphere confined space." When ventilation alone is not sufficient to control the hazard, or when ventilation to control the hazard is not feasible, then the employer must classify the space as a "permit-required confined space."
What will the Proposed Standard Look Like?
If the proposed standard reflects comments submitted by the SERs, then the proposal will mirror the 12-year old general industry counterpart. SERs commented that construction companies that work at industrial sites are already familiar with the requirements of the general industry standard. If the proposal is much like its draft version, construction companies will have difficulty complying with the standard.
Several SERs stated that they struggled to understand the definitions in the draft proposal as they applied to real-world situations. One stated that an overall problem with the draft proposal was that it left too much up to interpretation. Others described the draft as "cumbersome and not user-friendly."
An example of the confusion expressed by the SERs is the definition of a "hazardous enclosed space." One commenter asked how a space can be both enclosed and have unrestricted means of entry and exit.
Construction safety professionals across the country may soon get their chance at reviewing the proposed standard and providing OSHA with their own comments and experiences. OSHA remains firm in its decade-old commitment to produce a standard that protects construction workers from the hazards associated with confined spaces.
Patrick A. Hand, CIH, is a senior consultant with Clayton Group Service's OHS practice working in its New York regional office. He has more than 20 years of industrial hygiene, safety and construction experience. Hand has performed consulting services for clients in the utilities, petrochemical, manufacturing, automotive, real estate and insurance industries, including site safety audits and program development services, workplace evaluations, indoor air quality and employee training.