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
[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
[Question 3:] Can an elevator pit determined to be a permit space be reclassified as
a non-permit space.
(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
(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
[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
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
[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
Thus, the answer to your question depends on the specifics as to
who is the creating, the controlling, or the correcting
(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").
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].
John B. Miles, Director
Directorate of Compliance Programs