Construction Confined-Space Standard

The Occupational Safety and Health Administration (OSHA) has been working on the confined-space standard for several years. The standard was published as a final rule on May 4, 2015, with an effective date of August 3, 2015. Recently, OSHA issued a stay of enforcement until October 2, 2015. During this period, OSHA will not issue citations to employers making a good-faith effort to comply with the new standard—as long as the employer is in compliance with the training requirements for a competent person under Section 1926.21(b)(6)(i), or those found in Section 1926.1207. During this 60-day period, employers not in compliance with either of these standards may be cited for a violation of Section 1926.1207(a). While this rule is being touted as very similar to the General Industry Confined-Space Standard, it does contain some nuances that are unique to it and to the construction industry.

First, it is useful to consider the definition of confined space in the standard. The standard defines a confined space as any space which is:

1. Large enough and so configured that an employee can bodily enter it;
2. Has limited or restricted means for entry and exit; and
3. Is not designed for continuous occupancy.

Based on this definition, the impact of this standard can effect numerous occupations—even if they are not accustomed to thinking of a jobsite as containing confined spaces. A roofing contractor, for example, could have employees who might encounter a confined space during their normal work activities. This definition could well encompass attic areas or any other area that meets the definition stated above. Since the possibility of encountering a confined space exists for just about anyone in the construction trades at any time, it is vital to know what obligations employers have.

The first basic requirement can be found in Section 1926.1203(a) of the new standard. This section requires, “Before it begins work at a worksite, each employer must ensure that a competent person identifies all confined spaces in which one or more of the employees it directs may work; and identifies each space that is a permit space, through consideration and evaluation of the elements of that space, including testing as necessary.” The critical language in this section is shown in red to emphasize the responsibility on every employer. Some feel that the controlling contractor on the site has the responsibility to make the determinations regarding confined space and permit confined space, but the language of this section is clearly much broader than that. Take another look at the language; the standard refers to “each” employer. While it does address the controlling employer, there is no escaping the basic obligation for each employer. As all employers are aware, they have an obligation to ensure their employees have a safe place to work.

In light of the above, a contractor should have a competent person for confined space on each job site. On each jobsite, that individual should consider all locations in which employees may find themselves. To the extent that he or she determines that a permit-required confined space may be entered by any employee, all of the steps that are required to be taken for permit spaces need to be implemented.

A permit-required confined space is defined in section 1926.1202 as having one or more of the following:

1. Contains or has a potential to contain a hazardous substance;
2. Contains material that has the potential for engulfing an entrant;
3. Has an internal configuration such that an entrant could be trapped or asphyxiated by inwardly converging walls; or
4. Contains any other recognized safety or health hazard (this includes such things as a high heat-index environment).

If the competent person identifies a permit space, the employer is required to:

1. Inform exposed employees by posting danger signs or by any other equally effective means; and
2. Inform, in a timely manner and in a manner other than posting it, employees’ authorized representatives and the controlling contractor of the existence and location of, and the danger posed by, each permit space.

In a permit-required confined space program, each entry employer must implement any means necessary to prevent unauthorized entry; identify and evaluate the hazards of permit spaces before employees enter them; and develop and implement the means, practices, and procedures necessary for safe-entry operations.

The question remains: what should a construction contractor do in light of this new standard? The first thing a contractor has to establish is whether there are any confined spaces (within the definition in the standard) on or in his or her jobsite. According to the new standard, this determination must be made by a competent person. While this same standard adopts the definition of competent person found in Section 1926.20(b)(2), the competent person needs to have the training and knowledge necessary to identify confined spaces and permit confined spaces. Understand that the standard provides definitions for host employer and controlling contractor. The host employer owns or manages the property on which the construction is occurring; the controlling contractor is the employer with overall responsibility for construction at the worksite. While these terms are used in the standard, Section 1926.1203(a) is very clear that each employer shall have a competent person identify all confined spaces in which one or more of its employees may work. Following this, the competent person shall identify each space that is a permit space.

If an employer is on a site in which a permit space has been identified and his or her employees have not been authorized to enter that space, he or she must take effective steps to prevent employees from entering that space. On the other hand, if an employer decides to permit employees to enter the permit space, he or she must have a permit space program that complies with the requirements of Section 1926.1204.

There is an alternate procedure that can be adopted by an employer if certain conditions are met. These conditions require that the employer be able to demonstrate that all physical hazards within the space have been eliminated or isolated through engineering controls so the only remaining hazard would arise from a hazardous atmosphere. The employer must also demonstrate that continuous forced-air ventilation alone is sufficient to maintain that the permit space is safe for entry. Employers must also develop monitoring and inspection data that confirms compliance with the requirements regarding how they addressed any physical hazards. The preceding determinations must be documented and made available to any employee who is to enter the space.

If permit spaces are identified, the employer must have a permit-required confined-space program in place. This program includes, at a minimum: (1) implementing measures necessary to prevent unauthorized entry; (2) identifying and evaluating the hazards of the permit spaces; and (3) developing and implementing the procedures and practices necessary to safely enter the permit space. In addition, the permit space must be evaluated when entry operations are conducted and certain specified equipment must be provided. This includes testing and monitoring equipment. Finally, when entry is made, one attendant must be provided for the permit space.

The permitting process is quite detailed. An entry supervisor must monitor the entry and be prepared to terminate the entry under certain conditions. The entry permit, once completed, must be made available at the time of entry to all authorized entrants or their authorized representatives.

The standard has a significant training obligation for the employer. Training must be provided to each employee whose work is regulated by this standard at no cost to the employee. The employer must ensure that the employee possesses the understanding, knowledge, and skills necessary for the safe performance of the duties assigned under the standard. Retraining must be provided whenever there is a change in permit-space entry operations that represents a hazard about which the employee has not been previously trained.

The attendant has specified duties. One interesting requirement is that the attendant may have no duties that “might” interfere with his or her primary duty to assess and protect the authorized entrants. For those familiar with the requirements for a safety monitor in a low-sloped roof fall-protection program using safety monitors and warning lines—the safety monitor may have no responsibilities that might interfere with his duties as a safety monitor. In confined space, the requirement does not seem as onerous. The standard itself implies that the attendant may have other duties, but reminds us that his/her primary duty is as attendant. So, while the safety monitor in the low-slope roof situation may have no other duties (he or she may not even use a cell phone), the permit confined-space attendant may be permitted some other duties within the parameters of the standard. The attendant must remain outside the confined space until he or she is relieved.

In addition the attendant, among other duties, must be familiar with the hazards that might be faced during entry, be aware of any possible behavioral effects of hazard exposure in authorized entrants, consistently maintain an accurate count of authorized entrants in the space, and perform not-entry rescues as specified by the employer’s rescue procedures. The attendant is also required to summon rescue and other emergency services as soon as he or she determines that the authorized entrants may need assistance to escape from permit-space hazards. There are several more requirements, but the preceding are probably the most important.

This standard also has a requirement for a permit confined-space entry supervisor. This individual has duties similar to the attendant, only more in a supervisory role. He or she, among other duties, is to be familiar with and understand the hazards of the permit confined space, verify that appropriate entries have been made on the permit, verify that rescue services are available, and remove unauthorized individuals. The supervisor is also authorized to terminate the entry and cancel or suspend the permit as required by Section 1926.1205(e).

An employer who is going to rely on outside rescue services in case of an emergency has several responsibilities. First, the employer is required to evaluate a prospective rescuer’s ability to respond to a rescue summons in a timely manner. This is an interesting requirement, which actually depends on the kind of hazard(s) in the confined space. For example, Section 1926.103 requires that whenever employees are wearing respirators and are working in an atmosphere that is immediately dangerous to life or health (IDLH), there must be at least 1 rescuer immediately outside that area who is equipped with the necessary respiratory protection to perform a rescue if necessary. For employers, it is advisable to document the process of evaluating the capabilities of whomever they intend to rely upon for rescue, and to record the conclusions drawn from that evaluation. Employers must also provide the rescue-service agency with selected access to all permit confined spaces so that they can develop an appropriate rescue plan for each such space. There are several other requirements for the employer who chooses to use an outside agency to provide rescue services.

For the employer that chooses to use his or her own employees to perform a rescue, there are a separate set of requirements. In addition to providing each member of the rescue team with all of the necessary personal protective equipment (PPE), the employer must train each affected employee to perform his or her assigned rescue duties. Each affected employee must also be trained in CPR and first aid. If an employer is going to organize and rely on his or her own rescue team, he or she is required by this standard to have the team practice making permit space rescues. At least 1 time every 12 months, these teams must practice making a simulated rescue using manikins, dummies, or actual persons from actual confined spaces similar to those which might be encountered in an actual rescue operation.

The first consideration in rescue operations is that non-entry rescue is the preferred means of rescue. According to OSHA, non-entry rescue is to be used: “unless the retrieval equipment would increase the overall risk of entry or would not contribute to the rescue of the entrant,” Section 1926.1211(c). This decision must be made before anyone enters the permit space. If non-entry rescue is designated, the employer must designate an entry-rescue service using either its own employees or an outside agency.

This article is intended to cover the high points of the new standard. There are many more details to the standard that mandate a close reading before and while developing a confined-space program. Employers are cautioned to keep complete and accurate records. It is advisable to maintain a complete record of the competent person’s evaluation of all confined spaces on all job sites. The record should also include the evaluation of each confined space and the reason(s) it was determined to be or not to be a permit confined space. For each permit confined space, a record of compliance of all of the procedures required by the standard should be maintained along with all entry permits. Remember, employers who are inspected between August 3, 2015 and October 2, 2015 will not be cited for a violation of the construction confined-space standard if they are making a good faith effort to comply with the new standard and are in compliance with the training requirements of either 1926.1207 or 1926.21(b)(6)(i) by then.