U.S. Department of Labor
Assistant Secretary for
Occupational Safety and Health
Washington, DC. 20210
DEC 9 2003
Janice Raburn, Esq.
American Petroleum Institute
1220 L. Street N.W.
Washington, D.C. 20005
Re: API v. OSHA, No. 99-1032
Dear Ms. Raburn:
This letter responds to four questions raised by API in settlement discussions arising from API's challenge to OSHA's amendment to the Permit-Required Confined Spaces (PRCS) Rule, 63 Fed. Reg. 66018- 66040 (December 1, 1998). The first two questions concern the amended PRCS provisions on timely rescue response and employee participation . These questions, and OSHA's responses, are as follows:
Question 1. In evaluating a prospective rescue provider's ability to respond in a "timely manner, considering the hazard(s) identified," 'is the employer permitted to exercise reasonable judgment that the provider's response capability is commensurate with the severity of any injury or illness likely to be sustained by an entrant in the particular space(s) involved?
Response: Some API members expressed concern about the application of amended paragraph (k)(1)(i) in situations in which permit-space entries are conducted in remote locations. In these cases, a variety of factors including the distance to be traveled and the nature of the terrain could delay the rescue service from reaching the permit space for up to half an hour after the service receives the call for assistance. However, the API members asserted that in many cases, the hazards faced by entrants in these spaces are such that the most serious injury would be a sprain or simple fracture. API notes that certain language in Appendix F appears to restrict an employer's flexibility to determine a response time based on the severity of the likely injuries for which rescue will be necessary. It seeks clarification as to whether, in light of this language, the standard permits its members to use rescue services under the circumstances described.
The amendment to paragraph (k) was designed to accord employers flexibility in selecting an entity capable of providing effective rescue services for the particular situations that confined space entrants may face. Accordingly, the amendment does not specify a minimum response time for rescue services; it expressly recognizes that the response time will vary depending upon the circumstances, including the severity of the hazards faced by entrants. Paragraph (k)(1)(i) states that an employer who intends to rely on a rescue service must "evaluate a prospective rescuer's ability to respond to a rescue summons in a timely manner, considering the hazard(s) identified:" An explanatory note to the paragraph states:What will be considered timely will vary according to the specific hazards involved in each entry. For example, §1910.134, Respiratory Protection, requires that employers provide a standby person or persons capable of immediate action to rescue employee(s) wearing respiratory protection while in work areas defined as IDLH atmospheres.The preamble to the paragraph further amplifies this intent. OSHA noted that compliance with the Respiratory Protection standard's requirements "will meet the concerns of those commenters who urged OSHA to require a rescue service response time of only a few minutes... On the other hand, because the Respiratory Protection standard requirement only applies to IDLH atmospheres, a less resource-intensive and more measured response capability may be used for those situations where there is not the same need for virtually instantaneous response." 63 Fed. Reg. 66023.
The clear intent of paragraph (k)(1)(i) is that employers exercise reasonable judgment in deciding whether a response time is adequate to effect a rescue , considering the severity of the injury or illness that would be involved. If the confined space involves hazards posing an immediate threat to life or health, rescue providers, whether designated under paragraph (k)(1) or under paragraph (k)(2), must be located outside the space ready for entry at a moment's notice. If the hazard involved is not immediately life- threatening, the employer may designate a rescue service capable of responding within a reasonable time commensurate with the nature of the hazard. OSHA cannot state in advance whether any specific response time is adequate; that is for API's members to determine for themselves after review of all of the relevant factors. However, 051-IA does not rule out the possibility that a response time of up to half an hour could be reasonable in some circumstances.
Nothing in Appendix F limits an employer's discretion in evaluating whether a response time is adequate under a particular set of circumstances. The appendix, which is expressly labeled "Non-Mandatory," contains a non-exhaustive list of criteria that employers may use in evaluating the capabilities of a prospective rescue service. Examples are included to provide general guidance, and are not meant to establish rigid parameters. Thus, the language in 1 under Section A. Initial Evaluation (63 Fed. Reg. 66039/3) stating that "if the danger to entrants is restricted to mechanical hazards that would cause injuries (e.g., broken bones, abrasions) a response time of 10 or 15 minutes might be adequate[,]" does not mean that a response time greater than 15 minutes may not also be adequate in some cases.
Question 2. Is the employer permitted to reject a request by an entrant or authorized representative for reevaluation of a permit space because there is no objectively reasonable basis to believe that the employer's initial evaluation was inadequate?
Response: This question concerns the application of amended paragraph (d)(5)(v), which requires employers to reevaluate a permit space when an entrant or authorized representative requests that the employer conduct such reevaluation because the entrant or representative has reason to believe that the evaluation of that space may not have been adequate[.]" API is concerned that this wording requires employers to reevaluate for any reason, and that entrants or their representatives could request reevaluation as a result of labor management issues. API therefore requests a clarification that a request for reevaluation must be based on reasonable safety and health-related criteria.
OSHA promulgated the reevaluation requirement to accord entrants a meaningful role in assessing the hazards present in spaces in which they will be working. These employees, whose safety and health is at risk from an inadequate or incomplete evaluation, have the strongest incentive to ensure that the evaluation is performed properly. Accordingly, entrants or their authorized representatives may request reevaluation for any reason related to health or safety, even in the absence of an apparent objectively reasonable basis to conclude that the initial evaluation was inadequate. At the same time, the standard necessarily is limited to promoting legitimate employee health and safety concerns, and an employer may refuse a request if it is clear that it is not related to safety or health.
Questions 3 and 4 concern provisions in the unamended 1993 PRCS Rule, 58 Fed. Reg. 4462- 3563 (January 14, 1993), on the types of hazards that trigger permit-space requirements and the employer's obligation to prevent unauthorized personnel from attempting a rescue . These questions, and OSHA's responses are as follows:
Question 3. In determining whether "other recognized serious safety and health hazards" are present in a confined space, may the employer limit consideration to those hazards that could affect the entrant's ability to exit the space unaided?
Response: Under the PRCS Rule, a permit-required confined space is a confined space that contains, inter alia, "any . . . . recognized serious safety or health hazard." 29 C.F.R. 1910.146(b) (definition of "permit-required confined space"). API notes that industry publications list a wide range of potentially serious safety and health hazards that may be present in confined spaces . For example, one industry guideline notes that:[b]iological hazards such as molds, mildews and spores frequently found in dark, damp spaces can irritate the respiratory system. Bacteria and viruses found in sewage treatment expose the entrant to a variety of illnesses. In addition, rodents, snakes, spiders and other insects, as well as bird and animal feces can present serious health hazards.API notes that the hazards identified in this guideline are unlikely to cause an acute illness or immediately disabling injury to an entrant, unless the individual has a particular sensitivity to the agent or substance involved. It seeks clarification that the types of 'recognized serious safety or health hazards" that trigger permit-space requirements are limited to those that could impair an entrant's ability to escape from the space unaided.
OSHA's Compliance Directive for the 1993 PRCS Rule addresses this specific concern in an appendix containing a series of questions and answers on compliance issues. The appendix clarifies that the fact that a training publication for a confined space lists potential hazards such as biological agents, rodents, snakes and spiders, does not automatically mean that "recognized serious" hazards are present in the space. The classification of a confined space as "permit-required" is triggered only by the presence of hazards that could cause an acute illness or immediately disabling injury. The appendix emphasizes that, "[t]he determination of whether the resulting exposure to a hazard in a confined space will impair the employee's ability to perform self-rescue is the aspect that must be addressed by the employer." OSHA Instruction CPL 2.100 (May 5, 1995), App. E, Section (b), Question No. 10. Thus, hazards associated with biological agents, rodents, snakes, spiders and the like do not trigger permit-space requirements unless they could result in an acute illness or disabling injury. In making this determination, employers must take reasonable measures to learn whether an entrant has an unusual susceptibility to the types of hazards potentially present in the space that could impair his or her ability to escape unaided.
Question 4. What measures must employers take if local fire and rescue units that have not been designated to provide rescue services in confined spaces arrive during the performance of rescue operations by the employer's designated rescue personnel?
Response: Some API members who have designated their own employees rather than local fire and rescue services to provide permit-space rescues are unsure what actions they should take if the local rescue services arrive unexpectedly during a confined space emergency. These members note that local rescue services may lack appropriate training and equipment to effectuate some types of confined-space rescues and could endanger their own lives and the lives of confined space entrants in attempting to perform such rescues.
OSHA agrees that attempts by local fire , police or other emergency services to perform rescue operations in confined spaces is dangerous if they have not been trained and equipped to deal with the specific hazards in the spaces they are entering. The preamble to the 1993 PRCS rule notes instances in which local rescue personnel have died in attempting confined-space rescues. See 58 Fed. Reg. 4527 (January 14, 1993). However, OSHA expects that most issues concerning local rescue services can be resolved by clear communication between the employer and the local service about the types of spaces involved and the need for specialized training and equipment. If local rescue services arrive unexpectedly during an emergency, the employer should inform the local rescue service, at a minimum, that the employer's facilities contain permit-required confined spaces that present hazards to both entrants and rescuers, and that the employer has arranged for rescue services to be provided by personnel who are trained and equipped to deal with the specific hazards involved.
John L. Henshaw