– By Gary Auman, NFBA Legal Counsel –
The Occupational Safety and Health Administration’s new standard for construction work in confined spaces has been in the works for several years. The standard was published as a final rule on May 4, 2015, with an effective date of August 3, 2015. Although this rule may be viewed as being very similar to the confined space standard for general industry, it does contain some unique nuances.
First we need to consider the definition of confined space. The standard defines a confined space as any space that (1) is large enough and so configured that an employee can bodily enter it; (2) has limited or restricted means for entry and exit; or (3) is not designed for continuous occupancy. A permit-required confined space, or permit space, is a confined space that may have a hazardous atmosphere, engulfment hazard or other serious hazard, such as exposed wiring, that can interfere with a worker’s ability to leave the space without assistance.
Even those who thought the confined space standard could have little impact on them (roofing contractors, for example) could have employees who might encounter a confined space during their normal work activities. An attic area would be one such space. What, then, are the employer’s obligations concerning this standard?
The first requirement can be found in Section 1926.1203(a) of the new standard. This section states: “Before it begins work at a work site, 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” (italics mine).
The italicized words emphasize the responsibility placed on every employer. Some believe that the controlling contractor on the site has the responsibility to make determinations regarding confined space and permit-required confined space, but the language of this section is much broader, referring to “each employer.” So, although it does address the controlling employer, all employers have the obligation to ensure that their employees have a safe place to work.
In light of the above, the contractor should have a person competent to identify confined space on each job site. On each job site that individual should consider all locations in which employees may find themselves. To the extent that the competent person determines that a confined space may be entered by any employee, all steps required to be taken for permit spaces need to be implemented.
A permit-required confined space is defined in section 1926.1202 as meeting one or more of the following conditions:
- It contains or has a potential to contain a hazardous substance.
- It contains material that has the potential for engulfing an entrant.
- It has an internal configuration such that an entrant could be trapped or asphyxiated by inwardly converging walls.
- It 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-required confined space, the employer is required to (1) inform exposed employees by posting danger signs or using another equally effective means, and (2) inform, in a timely manner and through means other than the posting of a sign, employees’ authorized representatives and the controlling contractor of the existence and location of, and the danger posed by, each permit space.
In a program dealing with permit-required confined spaces, each employer must also 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.
Construction contractors must carry out these steps. They must establish whether any confined spaces (within the definition given in the standard) exist on the job site. According to the new standard, this determination must be made by a competent person.
Although 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 spaces. The standard defines both host employer and controlling contractor. The host employer owns and/or manages the property on which the construction is occurring. The controlling contractor is the employer that has overall responsibility for construction at the work site. Although the standards uses these terms, 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 determination, the competent person shall identify each space that is a permit space.
If you are an employer on a site in which a permit space has been identified and your employees have not been authorized to enter that space, you must take effective steps to prevent your employees from entering that space. On the other hand, if you decide to permit your employees to enter the permit space, you must have a program on permit space that complies with the requirements of Section 1926.1204.
An alternate procedures can be adopted by an employer if certain conditions are met. These conditions require you as employer to demonstrate that all physical hazards within the space have been eliminated or isolated through engineering controls so that the only remaining hazard would arise from a hazardous atmosphere. You must also demonstrate that continuous forced-air ventilation alone is sufficient to make the permit space safe for entry. You must also develop monitoring and inspection data that confirm compliance with the requirements for addressing 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 in place a program covering permit-required confined space. This program must include, at a minimum, these components: (1) implementation of measures necessary to prevent unauthorized entry into the permit space; (2) identification and evaluation of the hazards of the permit space; and (3) development and implementation of procedures and practices necessary to make entrance into the permit space safe. In addition, the permit space must be evaluated when entry operations are conducted, and certain specified equipment, including testing and monitoring equipment, must be provided. 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 establishes a significant training obligation for the employer.
Training must be provided—at no cost to the employee—to each employee whose work is regulated by this standard. 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 a change in permit space entry operations is made that presents a hazard for which the employee has not previously received training.
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. As 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 a confined space the requirement does not seem as onerous. The standard implies that the attendant may have other duties, but it reminds us that his or her primary duty is as attendant. So, while the safety monitor in the low-slope-roof situation may have no other duties (the person may not even use a cell phone), the attendant of a permit space 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 non-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. The standard contains several more requirements, but the preceding are the most important.
This standard also has a requirement for an entry supervisor for a permit-required confined space. This individual has duties similar to the attendant’s, but they are more supervisory. He or she, among other duties, is to be familiar with and understand the hazards of the permit space, verify that appropriate entries have been made on the permit, verify that rescue services are available and remove unauthorized individuals. The supervisor also is authorized to terminate the entry and cancel or suspend the permit as required by Section 1926.1205(e).
Employers who rely on outside rescue services in case of an emergency have several responsibilities. First, they must 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, at least one rescuer who is equipped with the necessary respiratory protection to perform a rescue if necessary must be immediately outside that area. I suggest that each time you evaluate the capabilities of whomever you intend to rely upon for rescue, you document your evaluation and the conclusions drawn. You must also provide the outside rescue service agency selected access to all permit spaces so that officials can develop an appropriate rescue plan for each space. Several other requirements for the employer who chooses to use an outside agency to provide rescue services must be met.
A separate set of requirements applies to employers who choose to use their own employees to perform a rescue. In addition to providing each member of the rescue team with all the necessary personal protective equipment, each rescue team member must be trained to perform his or her assigned rescue duties. Each must also be trained in cardiopulmonary resuscitation and first aid. The standard also requires the rescue team to practice making permit space rescues. At least once every 12 months these teams must practice making a simulated rescue—using manikins, dummies or actual persons—from confined spaces similar to those that 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. 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,” according to Section 1926.1211(c). This decision must be made before any one enters the permit space because if non-entry rescue is designated, the employer must designate an entry rescue service using either its own employees or an outside agency.
The employer is cautioned to keep complete and accurate records. I suggest maintaining a complete record of the competent person’s evaluation of all confined spaces on all job sites. The record should include the evaluation of each confined space and the reason(s) it was determined to be or not to be a permit-required confined space. For each permit space, a record of compliance with all the required procedures should be maintained, along with all entry permits.
This article covers the main points of the new standard, but the standard contains many other details that require a close reading before and during the development of a confined space program.
Gary Auman of Dunlevey Mahan and Furry is legal counsel for the National Frame Building Association.