OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA"s interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA"s website at http://www.osha.gov.




September 19, 1994

Edward A. Donoghue Associates, Inc.
Code and Safety Consultant to NEII
P. O. Box 201
Salem, NY 12865-0201

Dear Mr. Donoghue:

This is in further response to your letter to Assistant Secretary Dear on May 9, requesting a meeting to review your understanding of the application of 29 CFR 1910.146 to the elevator industry employees working in and around elevator pits and equipment.

Your client's concern about conflicting and confusing Occupational Safety and Health Administration (OSHA) interpretations was investigated. We found our National and Regional offices' written interpretations to be consistent with one another on this subject. Based on this finding, we believe that a meeting will not be necessary.

Apparently, non-OSHA groups have published their own interpretations regarding the Permit-Required Confined Spaces (PRCS) standard. The confusion in the regulated sector to which you refer may result from such articles.

In an attempt to clarify OSHA's enforcement position, the following summary of elevator related questions and answers is provided.

[Question 1:] Is an elevator pit considered a confined space?

[Reply 1:] Generally speaking, the answer is "yes." The definition of a confined space is a space which has limited or restricted means of entry or exit, is large enough for an employee to enter and perform assigned work, and is not designated for continuous occupancy by the employee. These spaces may include, but are not limited to, underground vaults, tanks, storage bins, pits, shafts, tunnels, diked areas, vessels, and silos. Elevator pits fit the definition of confined space. Whether an elevator pit is considered a permit-required confined space (permit space), i.e., a confined space which contains or has a potential to contain a hazard, will have to be decided on a case-by-case basis.

[Question 2:] What obligations do "host" employers have to [elevator] contractors who work at their facility?

[Reply 2:] Besides the initial determination requirement of paragraph 1910.146(c)(1), the "host" employer must comply with the five (5) requirements of paragraph 1910.146(c)(8) when engaging another employer (contractor) who will have employees in permit spaces under the control of the host employer. These requirements are:
(i) Inform the contractor that the workplace contain's permit spaces and that permit space entry is allowed only through compliance with a permit space program meeting requirements of paragraph (d) of 1910.146.

(ii) Apprise the contractor of the elements, including the hazards identified and the host employer's experience with the space, that make the space in question a permit space.

(iii) Apprise the contractor of any precautions or procedures that the host employer has implemented for the protection of employees in or near permit spaces where contractor personnel will be working.

(iv) Coordinate entry operations with the contractor, when both host employer personnel and contractor personnel will be working in or near permit spaces, as required by paragraph (d)(11) of the PRCS standard.

(v) Debrief the contractor at the conclusion of the entry operations regarding the permit space program followed and regarding any hazards confronted or created in permit spaces during entry operations.
[Question 3:] Can an elevator pit determined to be a permit space be reclassified as a non-permit space.

[Reply 3:] Yes, an elevator pit could be reclassified as a non-permit confined space through elimination of the hazard by employing the requirements of paragraph 1910.146(c)(7). The reclassification can be accomplished by either the host employer or the entry (contractor) employer. As noted in the standard, using ventilation to preclude the possibility of a hazardous atmosphere is considered control of the hazard and is not considered to be elimination. If the hazard which originally triggered the confined space to be classified as a permit space, or a new hazard is reintroduced into the non-permit space, entry operations under 1910.146(c)(7) must stop and the space must revert to a permit space. To continue to employ paragraph 1910.146(c)(7), the hazards must be eliminated.

[Question 4:] If, for whatever the reason, an elevator pit has not been initially evaluated, can the contractor [employer of the employees who will be entering the confined space] conduct the initial determination?

[Reply 4:] Yes, the contractor can conduct the initial evaluation of the workplace after coordination and cooperation with the host employer. (An initial evaluation must be made by one or the other before entry.) In instances where the contractor conducts the initial evaluation(s) for the host employer, they shall apprise the host employer of: (1) the qualifications, with regard to the PRCS standard, of the individual who will be making the evaluation; (2) the evaluation procedures employed in making the determination; and (3) all the hazards identified within and around the elevator space.

Under paragraph 1910.146(c)(9), the contractor would also be required to inform the host employer of their experience with the space, any additional hazards created because of their work, and what PRCS program was used.

[Question 5:] Who is responsible for compliance with the PRCS standard, the building owner or management or individual companies working in the building?

[Reply 5:] OSHA's policy provides that on a multi-employer worksite each employer may be cited for a violation and subject to an appropriate penalty.

The Field Operations Manual (FOM) provides, at Chapter V, F.1.a., that, in addition to citing employers whose employees are exposed to hazards (the exposing employer), the following employers shall normally be cited, irrespective of whether their own employees are exposed:
(1) The employer who actually creates the hazard (the "creating employer");
(2) The employer who is responsible, by contract or through actual practice, for safety and health conditions on the worksite; i.e., the employer who has the authority for ensuring that the hazardous condition is corrected (the "controlling employer");
(3) The employer who has the responsibility for actually correcting the hazard (the "correcting employer").
Thus, the answer to your question depends on the specifics as to who is the creating, the controlling, or the correcting employer.

A copy of this letter will be provided to all our Regional Administrators for further distribution within Federal OSHA community, as well as to our State Plan stakeholder.

Should you have any questions on this response, please contact [the Office of General Industry Enforcement at (202) 693-1850].

Sincerely,



John B. Miles, Director
Directorate of Compliance Programs

[Corrected 10/22/2007]