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By THOMAS H. WELBY, P.E., ESQ.

OSHA’s long-awaited construction industry standard for working in confined spaces took effect on August 3, 2015, in states where jurisdiction and compliance are maintained by federal OSHA (which include New York, Connecticut, and New Jersey for private sector Tom Welbyemployers). Although OSHA first proposed a confined-spaces rule for the construction industry in 1980 and has had a general industry standard since 1993, the new standard represents the first time that the construction industry has had its own standard.

Because construction employers have long recognized the dangers associated with working in manholes, crawl spaces, tanks, and other con ned spaces, and due to the lack of a construction-specific standard, many have made it their policy to comply with the general industry standard. As a result, and in order to reduce any confusion in complying with the new, construction-specific standard, OSHA, during the latter stages of the rulemaking process, tailored the new standard to make it more like the general industry standard (although the two are not identical).

OSHA estimates that the new standard will spare construction workers nationwide approximately 780 serious injuries per year.

Let me highlight
a few points of the
new standard (29
C.F.R. Subpart AA,
§ 1926.1200 et seq.).
Section 1926.1207
imposes a mandate that
every employer whose employees work is regulated by the standard
provide training in the standard’s requirements (in a language and vocabulary that employees are able to understand), and maintain training records (containing each employee’s name, the name of each trainer, and the dates of training) to show that the training has been accomplished.

Accordingly, it is recommended that you download a copy of the standard from the osha.gov website to familiarize yourself with it. Make certain your safety and supervisory personnel are at work— both in implementing its requirements, and in training all your affected employees concerning what is required for compliance.

“Con ned spaces” are de ned as spaces large enough, and so configured, that an employee can bodily enter it; with limited or restricted means for entry and exit; and not designed for continuous employee occupancy.

Examples of “confined spaces” include bins, boilers, pits (such as elevator, escalator, pump, valve or other equipment); manholes (sewer, storm drain, electrical, communication, or other utility) tanks (fuel, chemical, water, or other liquid, solid or gas); incinerators; scrubbers; concrete pier columns; sewers; transformer vaults; HVAC ducts; storm drains; water mains; precast concrete, and other pre-formed manhole units; drilled shafts; enclosed beams; vessels; digesters; lift stations; cesspools; silos; air receivers; sludge gates; air preheaters; step-up transformers; turbines; chillers; bag houses; and/or mixers/reactors.

The new standard does not cover construction work regulated by standards applicable to § 1926 Subpart P (Excavations), Subpart S (Underground Construction, Caissons, Cofferdams and Compressed Air) and Subpart Y (Diving).

Among the innovations and variances from the general industry standard featured in the new construction industry con ned spaces standard are the following: as you probably know, there are two varieties of con ned spaces, one of which is the “permit space” (which is short for “permit required con ned space”). The latter, logically enough, is a conned space having one or more of the following characteristics: (1) a hazardous atmosphere, actual or potential; (2) materials present having the potential to engulf an entrant; (3) an internal configuration, such that an entrant could be trapped or asphyxiated; or (4) any other recognized serious safety or health hazard.

Under the new standard, employers must inform exposed employees of the existence and location of, and the danger posed by, each permit space. Each such space must have a sign posted, reading “Danger Permit-Required Confined Space, Do Not Enter,” or equivalent language. In addition, employees’ authorized representatives and the controlling contractor must be informed, in a timely manner and other than by posting, of the foregoing particulars concerning each permit space.

Each employee who identifies, or is given notice of, a permit space, and has not authorized employees under its direction to work in that space, must take effective measures to prevent all unauthorized employees from entering that permit space. If an employee decides that employees it directs will enter a permit space, that employer must have a written permit space program that complies with 29 C.F.R. § 1926.1204.

The primary means to allow employees to enter permit spaces is the detailed, written entry permit, which must contain all of the particulars set forth in sub-paragraphs (a) through (p) of 29 C.F.R. § 1926.1206, and be retained for an annual review of the permit-required con ned space program.

The standard allows for entry into permit spaces, without compliance with the full permit requirements, provided that certain alternative requirements are satisfied. The conditions are listed in 29 C.F.R. § 1926.1203(e) (1). They include, among other things, the requirements (1) that all physical hazards in the space have been eliminated or isolated through engineering controls, so that the only hazard remaining is an actual or potential hazardous atmosphere; (2) that continuous forced-air ventilation is sufficient to maintain the permit space safe for entry, and that entrants be able to exit the space safely, in the event the ventilation system stops working; and (3) that the employer has developed monitoring and inspection data to prove compliance with (1) and (2).

Another innovation is that, where a permit states certain entry conditions, and there occurs a change, or an unexpected evacuation of the space, the permit may now be suspended, and not necessarily cancelled. However, the entry conditions listed on the permit must be restored, before re-entry will be allowed.

Another innovation is that employers that rely on local emergency management services must arrange for responders to give

the employer advance notice, if the responders will be unable to attend if, for example, they are responding to another emergency, engaged in training, etc.

A construction-specific departure from the general industry standard is that, in recognition of the multi-employer norm on construction jobsites, the standard includes detailed procedures requiring the sharing of information, and coordination of activities amongst the various employers. Among other things, this is designed to prevent employees in con ned spaces from being subjected to hazards, due to other trades’ activities.

The new standard also requires a “competent person” to evaluate the site, and identify permit and other con ned spaces.

Technology developed since the general industry standard’s adoption in 1993 has led to the new standard’s incorporation of requirements for continuous atmospheric monitoring, whenever possible, and the continuous monitoring of engulfment hazards.

The new standard adds several de ned terms to the vocabulary used in the applicable rules. These include “entry employer,” meaning any employer who decides that an employee it directs (who may be on another entity’s payroll) will enter a permit space; and “entry rescue,” which occurs whenever a rescue service enters a permit space to rescue one or more employees.

While the new standard is lengthy, contains a lot of cross-references, and is not the most scintillating summer reading, all in all it’s a practical, common sense approach to a real danger. Your safety program and training need to be updated to take it into account.

About the author: Thomas H. Welby, an attorney and licensed professional engineer, is the managing partner at Welby, Brady & Greenblatt, LLP, with its main office in White Plains. Geoffrey S. Pope, counsel to thefi rm, collaborates in the preparation of this series, which is intended for general guidance only.

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