Update: OSHA's Construction Confined Spaces Rule

The OSHA Confined Spaces in Construction proposed rule was issued Nov. 28, 2007, but has not yet been finalized. That's understandable given the number and tone of comments and briefs filed in opposition by contractor groups and others. Opponents challenge a fundamental premise of the rule: that "controlling contractors" may be cited by OSHA for confined space hazards to which subcontractors' employees are exposed.

The rule lists four classifications that would be used by construction employers to classify and then address hazards within construction confined spaces to which workers might be exposed. The four are: Isolated-Hazard Confined Space, Controlled-Atmosphere Confined Space, Permit-Required Confined Space, and Continuous System-Permit-Required Confined Space. Proposed requirements were included for each type of confined space, and OSHA also included a chart showing the differences between its general industry confined space standard (enacted in 1993) and this proposed standard. OSHA began a construction confined spaces rulemaking even earlier, in 1980.

Two Distinct Regulations

General industry and construction can't use the same rule, says OSHA. For example, the general industry standard requires a host employer coordinate entry operations with a contractor if both have employees working in or near a permit space, while the construction standard would require a "controlling" contractor to coordinate entries for contractors with employees in a confined space whether or not the controlling one's employees are inside. That provision is unworkable in the homebuilding industry, the National Association of Home Builders contends in its post-hearing brief, which is available in the online docket for the rule.

The AFL-CIO Building and Construction Trades Department accepts the controlling contractor concept. In its post-hearing comments, BCTD said controlling contractors should be required to obtain confined space entry information from contractors whose employees conduct entries and should maintain that data so contractors subsequently making entries will have the most complete information possible on hazards that are present.

Impact of the Proposed Rule

In the proposed rule, OSHA said it would "substantially reduce" the risk of death or serious injury for employees in the construction industry who work in confined spaces. Saying about 20,000 companies have employees who enter at least one confined space as defined by the proposed rule, OSHA estimated there was an annual total of 641,000 confined spaces, about half of which would be considered permit-required confined spaces. The proposed rule would prevent six deaths and 880 of the estimated 967 annual injuries occurring from entries to these spaces, the agency projected.

This article originally appeared in the February 2009 issue of Occupational Health & Safety.

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