Does the construction industry need a standard specifically for confined spaces? That was the debate at the Department of Labor in late July. During the two-day informal public hearing, the federal Occupational Safety and Health Administration (OSHA) fielded questions and concerns about its proposed rule for confined spaces in construction. Representatives from various construction industry groups gave recommendations on what’s working, what’s not and what kind of impact a new standard would have on workers and employers.

Why a New Rule?

The proposed rule originated in 1993 when OSHA agreed to draft a new confined spaces standard for construction as a result of a settlement with the United Steel Workers of America. It has gone through several revisions including review by the Advisory Committee for Construction Safety and Health (ACCSH) and a panel under the Small Business Regulatory Enforcement Fairness Act (SBREFA). Many contractors currently follow the confined spaces rule for general industry. However, OSHA noted that a construction site holds particular circumstances that are not within the governing scope of the existing rule. High turnover rates, multiple employers and evolving worksites make construction unique from other industries. Thus, the proposed rule tries to address these areas of concern.

OSHA heard testimony from 16 groups including the Building and Construction Trades Department (BCTD) of the AFL-CIO. The panel included Laurie Shadrick, Chair of BCTD’s Confined Spaces Subcommittee, Travis Parsons of the Laborers’ Health and Safety Fund of North America (LHSFNA), Gerald Ryan of the Operative Plasters and Cement Masons International Association (OPCMIA), Chris Trahan of CPWR – The Center for Construction Research and Training and the BCTD’s legal counsel Victoria Bor. OSHA heard testimony from Shadrick, Parsons and Ryan on the proposed standard, and all members of the panel answered questions from OSHA as well as industry representatives.

Other groups testifying included the American Society of Safety Engineers, the National Utility Contractors Association, the National Association of Home Builders and others. While many were critical of the proposed rule and went so far as to say that it should be abandoned, the BCTD spoke in favor of its strong points with caveats about its weaknesses.

A common source of contention for the BCTD and other groups was the four classifications of confined spaces. The existing general industry rule classifies confined spaces into two forms with certain exceptions: permit-required and non-permit-required. Under the new rule, the classifications break out into four types: Continuous System-Permit-Required Confined Space (CS-PRCS), Permit-Required Confined Space (PRCS), Controlled-Atmosphere Confined Space (CACS) and Isolated-Hazard Confined Space (IHCS). During the hearing, the new distinctions were called “confusing,” “repetitive” and “unnecessary.”

Parsons, the LHSFNA’s Senior Safety and Health Specialist, addressed the issue during his testimony. He noted, “Although we recognize that OSHA proposed these new terms… to help guide employers on the particular requirements for working under specific conditions, these names have instead created the impression that OSHA is increasing employers’ regulatory obligations. Moreover, the titles do not really describe different kinds of confined spaces. Instead, they describe different entry procedures.”

Parsons went on to suggest that OSHA structure the rule to follow a hierarchy of alternatives to entry procedures in a full permit system. Under this hierarchy, the optimal procedure would be to isolate and therefore eliminate all atmospheric and physical hazards. Whether the hazards can or cannot be eliminated, the employer would be able to follow the requirements for either Isolated-Hazard Confined Spaces or Controlled Atmosphere Confined Spaces depending on the situation. “We recommend simply returning to the framework used in the general industry standard,” he concluded. “The proposal, however, contains important new protections for these types of regulated, but non-permit required spaces, which we urge OSHA to include in the final standard.”

Ryan, who serves as the Director of Training, Health and Safety for OPCMI, acknowledged OSHA’s efforts in improving communication from contractors to workers. He also recognized the importance of a controlling contractor’s position in managing the exchange of information on a multi-employer worksite. Ryan proposed that, in order to simplify the process, OSHA should allow the controlling contractor to manage the site and be solely responsible for gathering and disseminating information. However, some contractor representatives were concerned about expanding the controlling contractor’s role.

Other areas of concern included:

The frequency of air monitoring for atmospheric hazards. The new standard states: “Monitoring must be done periodically and as necessary unless other provisions of this proposed standard or other OSHA requirements specify differently.” Both labor and industry representatives advised OSHA to require air monitoring prior to entry into the confined space as well as continuous monitoring thereafter.

Training. While LIUNA provides training through the Laborers-AGC, some contractor representatives and OSHA were concerned that regulations on confined spaces in construction would require further training of workers and additional costs. As one presenter put it, “Compliance with standards does not come cheap.”

Construction vs. Maintenance

Workers in industries such as electrical and sewage often work in confined spaces as part of maintaining their specific systems as opposed to constructing them. OSHA was advised to specify which regulations are germane to maintenance or to allow workers involved in maintenance to follow the general industry standard for confined spaces.

Ultimately, many presenters believed that more regulation would confuse contractors and workers, which would result in less compliance.

The hearing was informational only, and no decisions have been made regarding the new standard. OSHA is currently collecting post-hearing comments and briefs through October. LIFELINES will keep you informed as news develops.

The Fund publishes Confined Spaces, a health alert that is useful for toolbox talks and other onsite hazard reviews.  It is available through the online Publications Catalogue.

For more information, read LIUNA Supports Proposed Confined Space Standard in Construction.

[Jennifer E. Jones]