Page 18 —
COLORADO REAL ESTATE JOURNAL
— July 15-August 4, 2015
Law & Accounting
T
he Occupational Safety
and Health Administra-
tion recently issued its
long-awaited standard on con-
fined spaces in construction. The
new rule will take effect Aug. 3.
Previously, construction contrac-
tors only had to comply with
minimal training requirements
when it came to confined spaces.
Construction contractors (and
employers in nonconstruction or
“general industry” settings who
have construction activities tak-
ing place at their facilities) now
will have to comply with a rigor-
ous and complicated set of stan-
dards regarding confined spaces.
Generally speaking, a “con-
finedspace” isaspace that is large
enough for an employee to enter
and work in, is not designed for
continuous occupancy and has
limited means of entry and exit.
A “permit-required confined
space” is a confined space that
contains the potential for vari-
ous hazards such as engulfment,
hazardous atmosphere, asphyxi-
ation or any other recognized
serious safety or health hazard.
Employers whose employees
enter permit-required confined
spaces must meet very detailed
safety requirements before such
entries may take place.
While the new standard is
similar in many respects to the
general industry confined space
standard that has been around
for quite some time, there are
key differences between the
two. For example, the construc-
tion standard contains detailed
requirements for different types
of employers on worksites
where numerous employers are
performing work, commonly
referred to as “multi-employer”
worksites. The rule delineates
three basic types of employers.
First, a “Host” employer that
owns or manages the property
where the construction work is
taking place; second, a “Con-
trolling Contractor” that has
the overall responsibility for
construction at the worksite;
and, finally, “Entry Employers”
whose employees enter permit-
required confined spaces. The
Host employer has the obligation
to provide information about
permit-required confined spaces
at its location to the Control-
ling Contractor who, in turn, is
required to pass along that infor-
mation to the Entry Employ-
ers.
Entry
Emp l o y e r s
are required
to give the
Controlling
Con t r a c t o r
information
about their
entry
pro-
gram
and
hazards they
encounter in
the space.
A n o t h e r
unique fea-
ture of the
new construc-
tion standard is the requirement
that a “competent person” iden-
tify and evaluate all confined
spaces in which one or more
of the employees it directs may
work and identify any permit-
required spaces. One of the
starkest departures from the
general industry standard is the
construction standard’s require-
ment that the employer continu-
ously monitor for atmospheric
hazards during a confined space
entry, unless it can show that
periodic monitoring is sufficient
or that the proper equipment
is not commercially available.
Similarly, the new standard
contains a requirement that an
employer’s permit-required con-
fined space program provide for
an “early warning system” that
continuously monitors for non-
isolated engulfment hazards. An
example given by OSHA is the
engulfment hazard in a sewer
posed by flash flooding. In that
case a continuous monitor, either
electronic or human, would be
required.
Many parts of the new con-
struction standard are similar
to the general industry require-
ments, but the new standard
adds clarification to those
requirements. For example, the
new standard makes it clear that
training is to be provided in a lan-
guage that the employee under-
stands. The new rule also states
that an employer must ensure
that any outside rescue service
it relies upon for rescue notify
the employer “as soon as the
services become unavailable.” Of
course, employers might find it
difficult to find an emergency
response provider, such as 911,
willing to do this. The result very
well could be that employers will
have to utilize in-house rescue
(i.e., train their own employees)
in order to comply with the new
standard’s rescue and emergen-
cy requirements. General indus-
try employers should also be
aware that these “clarifications”
indicate how OSHA likely will
interpret the general industry
confined space standard.
It is important to note that
while the new standard will
apply to confined spaces in con-
struction such as manholes, sew-
ers, bins, boilers, tanks, storm
drains and many others, it will
not apply to construction work
regulated by OSHA’s excavation
standards. However, an excava-
tion otherwise containing a con-
fined space, such as a sewer,
would fall under the standards
and entries into that sewer must
comply with the new require-
ments. Also excluded from the
new standard’s coverage are
underground construction, cais-
sons, cofferdams, compressed air
and diving.
The new standard, much like
its counterpart in general indus-
try, is very complex. And while
the standard itself was in the
making for over three decades,
OSHA has given employers a
very short time to come into
compliance. Employers affected
by the new standard must begin
their compliance efforts now in
order to meet the Aug. 3 dead-
line. This deadline will be par-
ticularly difficult for employers
in the construction industry who
havenoprevious experiencewith
confined space requirements.
A good example of this is the
fact that residential homebuild-
ers, many of whom likely do
not even have a permit-required
confined space program, are
now faced with the possibility
that areas such as crawlspaces
and attics of homes under con-
struction may qualify as permit-
required confined spaces.
In short, this new standard
will affect numerous employ-
ers, and failure to adhere to
its requirements may subject
these businesses to significant
OSHA enforcement penalties.
All employers should carefully
review the standard (available
on OSHA’s website,
gov) and take the necessary steps
to come into compliance byAug.
3.
s
Patrick Miller
Member, Sherman &
Howard, Denver. He
also is the co-chair of
the firm’s health and
safety practice group.
