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OSHA Proposes New Rule for Confined Spaces in Construction Work
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December 10, 2007
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By Stephen C. Yohay and Emily A. Jones
Thelen Reid Brown Raysman & Steiner LLP
The Occupational Safety and Health Administration has proposed new standards for construction work in confined spaces. 72 Federal Register 67,352 (November 28, 2007). OSHA will accept comments on the proposed rule until January 28, 2008. Docket ID-OSHA-2007-0026.
If adopted, the standards are likely to affect most construction employers. The requirements, which are far more extensive than OSHA's existing standards, would apply not only to employers whose employees actually are performing work in confined spaces but also to host employers and those controlling contractors, such as general contractors and construction management firms.
Classification of Confined Spaces
The proposed standard defines a confined space as a space that "is large enough and so arranged that an employee can bodily enter it, has limited or restricted means for entry and exit, and is not designed for continuous employee occupancy."
Confined spaces may include: manholes, boilers, incinerators, concrete pier columns, sewers, transformer vaults, HVAC ducts, storm drains, water mains, precast concrete and other pre-formed manhole units, enclosed beams, lift stations, silos, step-up transformers, turbines and chillers.
The proposed standard requires that employers classify confined spaces in one of four categories: Permit-Required Confined Space (PRCS), Continuous System-Permit-Required Confined Space (CS-PRCS), Controlled Atmosphere Confined Space (CACS) or Isolated-Hazard Confined Space (IHCS).
PRCS: It would have any one of the following characteristics: "a hazardous atmosphere," "inwardly converging, sloping, or tapering surfaces that could trap or asphyxiate an employee" (such as funnels and hoppers) or "an engulfment hazard or other physical hazard."
CS-PRCS: It would be a permit-required space with all of the following characteristics: "is part of, and contiguous with, a larger confined space" (such as sewers), "the employer cannot isolate it from the larger confined space" and "is subject to a potential hazard release from the larger confined space that would overwhelm personal protective equipment and/or hazard controls, resulting in a hazard that is immediately dangerous to life and health."
CACS: It would have all of the following characteristics: "contains no physical hazards or only isolated physical hazards" and "uses ventilation alone to control atmospheric hazards at safe levels."
IHCS: It would be a "confined space in which the employer has isolated all physical and atmospheric hazards."
For each type of confined space, employers would be required to determine and implement an isolation or control method for identified hazards. All hazard assessments and identified protective measures would have to be documented.
Contractors would have to verify that all hazards are controlled and/or isolated both before and during employee entry into any confined space. Monitoring requirements would vary according to each classification. Each employee entering the confined space would have to be trained in the hazards involved, the methods used to isolate or control those hazards, and how to recognize exposure to those hazards.
Employers would have to comply with a specific set of safety rules for each type of confined space. For example, entry permits would be required for work in CS-PRCS and PRCS. These classifications also would require a trained entry supervisor to verify that entry conditions are met. In addition, an attendant would have to remain outside a CS-PRCS or PRCS for the duration of the work.
OSHA intended these classification standards to give employers the flexibility to determine which classification is most appropriate to each confined space. The exception is that a CS-PRCS must be classified as such.
Mandatory Information Sharing
OSHA's proposed rule also mandates information sharing between controlling and/or host employers and contractors whose employees are performing work in confined spaces.
Controlling contractors and/or host employers would have to provide information about the location of each confined space on their work sites, any known hazards affecting the space, previous classifications of the spaces, and any precautions and procedures that previously were implemented for entry into the space. The new standard does not require that employers actively seek out this information, but they must share any such information if they have it.
The contractor would be required to consider any information provided. It would be required to conduct an inspection to determine if the space is a confined space and, if so, whether there are physical or atmospheric hazards. Where it is not feasible for a contractor to make the required determinations about the space and hazards without entering it, a trained employee would be allowed to enter the space to inspect it. In such situations, employers would be required to comply with the entry requirements for a PRCS or a CS-PRCS.
The contractor would be required to conduct atmospheric testing according to the specifications set out in the standard to determine if there are any atmospheric hazards in the confined space. The contractor would be required to meet applicable OSHA requirements, including employee training requirements, for the use of any necessary protective equipment.
Once the contractor classifies the space under one of the four hazards classifications, it would be required to inform the controlling contractor of the classification and precautions to be taken. After entry operations are concluded, the contractor would be required to inform the controlling contractor or host employer of any hazards encountered.
Controlling employers will be required to coordinate work in confined spaces when more than one employer will have employees working in the space.
Multi-Employer Policy
The proposed standard would impose requirements on controlling and host employers pursuant to OSHA's multi-employer doctrine. The multi-employer doctrine allows employers who control jobsites, such as general contractors, to be cited for violations committed by its subcontractor employers, even if no employee of the controlling employer is exposed to the prohibited hazard.
The Occupational Safety and Health Review Commission recently held that OSHA's multi-employer doctrine could not be the basis for a citation against a controlling employer for violations of construction standards. Sec. of Labor v. Summit Contractors, OSHRC Docket No. 03-1622 (April 27, 2007). Click here to read more about that ruling.
OSHA appealed Summit to the U.S. Court of Appeals for the Eighth Circuit, where the case is pending. In its proposed rule, OSHA stated that the Summit decision "has no application to this proposed rule." This promises to be a controversial issue in the rulemaking process.
Conclusion
OSHA's proposed confined spaces standard would impose extensive new requirements on employers in the construction industry. The proposed standard differs from the existing OSHA standard for confined spaces in so-called "general industry." That standard has only two classifications of confined spaces. See, 29 CFR §1910.146. For certain industries, this may mean that employers will be subject to different confined spaces standards depending on the nature of the work being done, i.e., whether particular tasks are deemed to be "construction work" as OSHA defines it or "general industry" work subject to the standards in 29 CFR Part 1910.
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For more information about the issues covered in this report, please contact Stephen C. Yohay in our Washington, D.C. office at 202-508-4390 or at syohay@thelen.com or Emily Jones in our Washington, D.C. office at 202-508-4381 or at ejones@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2007 Thelen Reid Brown Raysman & Steiner LLP
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