Colorado Real Estate Journal - July 15, 2015
T he Occupational Safety and Health Administration recently issued its - long-awaited standard on confined spaces in construction. The new rule will take effect Aug. 3. Previously, construction contractors only had to comply with minimal training requirements when it came to confined spaces. Construction contractors (and employers in non-construction or “general industry” settings who have construction activities taking place at their facilities) now will have to comply with a rigorous and complicated set of standards regarding confined spaces. Generally speaking, a “confined space” is a space 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 various hazards such as engulfment, hazardous atmosphere, asphyxiation 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 construction 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 “Controlling 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 Controlling Contractor who, in turn, is required to pass along that information to the Entry Employers. Entry E m p l o y e r s are required to give the Controlling C o n t r a c t o r information about their entry program and hazards they encounter in the space. A n o t h e r unique feature of the new construction standard is the requirement that a “competent person” identify 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 requirement that the employer continuously 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 confined 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 construction standard are similar to the general industry requirements, 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 language that the employee understands. 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 emergency requirements. General industry 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 construction such as manholes, sewers, bins, boilers, tanks, storm drains and many others, it will not apply to construction work regulated by OSHA’s excavation standards. However, an excavation otherwise containing a confined space, such as a sewer, would fall under the standards and entries into that sewer must comply with the new requirements. Also excluded from the new standard’s coverage are underground construction, caissons, cofferdams, compressed air and diving. The new standard, much like its counterpart in general industry, 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 deadline. This deadline will be particularly difficult for employers in the construction industry who have no previous experience with confined space requirements. A good example of this is the fact that residential homebuilders, 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 construction may qualify as permit-required confined spaces. In short, this new standard will affect numerous employers, 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, www.osha.gov) and take the necessary steps to come into compliance by Aug 3.