Regulations (Preambles to Final Rules) - Table of Contents|
| Record Type:||Permit-Required Confined Spaces|
| Title:||Section 2 - II. Summary and Explanation of the Final Rule|
II. Summary and Explanation of the Final Rule
The revisions to the final rule make changes to several provisions of paragraphs (c), (d), (e), and (k) of OSHA's permit-space standard (29 CFR 1910.146), and add a new paragraph (l). These changes, and the Agency's rationale for making them, are described below. References to exhibits in the docket (Docket S-019A) are designated "Ex.," followed by the exhibit number. References to the continuously paginated transcript of the public hearing held on September 27 and 28, 1995 (Exs. 192X, 193X), are designated Tr., followed by the page number.
Paragraphs (c), General Requirements, (d), Permit-required confined space program, and (e), Permit system
A. Clarification of the Need To Provide Authorized Representatives With Information Required by the Standard
Paragraphs (c)(5)(i)(E), (c)(5)(ii)(H), and (c)(7)(iii) have been revised to specify that OSHA intends authorized representative(s) of employees to have access to any information provided to employees under the standard. These wording changes are meant to clarify what has been longstanding OSHA policy and practice, i.e., to recognize the right of authorized representatives of employees to receive the same information as employees receive under the Agency's standards. In recognition of that policy, the Permit Space standard promulgated in 1993 specifically provides, in paragraph (c)(4), that the written program, which contains the employer's procedures and policies for implementing that program, be available for inspection and copying "by employees and their authorized representatives." Thus, the changes being made to paragraphs (c)(5)(i)(E), (c)(5)(ii)(H), and (c)(7)(iii) in this revised rule merely provide additional clarification of the Agency's intent.
The need to clarify these provisions was discussed by the USWA, which noted (Ex. 161-38) that "The right of employees and their representatives to relevant information has been a regular feature of OSHA standards since the beginning." In the same exhibit, the USWA points to several OSHA standards, including the Hazard Communication standard (29 CFR 1910.1200), the Employee Access to Exposure and Medical Records standard (29 CFR 1910.1020), and the Process Safety Management standard (29 CFR 1910.119) that "give employees and their representatives very broad rights to information." The USWA reiterated this view in post-hearing comments (Ex. 188). OSHA agrees that it was the intent of the Permit Space standard to provide both employees and their authorized representatives with access to the information addressed by these provisions of paragraph (c), and the changes made to the final rule reflect this position and bring the Permit Space standard into conformance with the language traditionally used in OSHA standards.
B. Employee Observation of Atmospheric Testing
Paragraphs (c)(5)(ii)(C) and (c)(5)(ii)(F) have been revised by adding a sentence to each of them that specifically requires employers whose employees enter permit spaces to give these employees, or their authorized representatives, an opportunity to observe the testing of the space during pre-entry (paragraph (c)(5)(ii)(C)) and during entry (paragraph (c)(5)(ii)(F)). In the NPRM, OSHA solicited comment (59 FR 60737) about revising 29 CFR 1910.146 to allow affected employees or their authorized representatives to observe the testing and evaluation of confined space conditions, prior to and during entry. Specifically, the proposal stated, "* * * the Agency is considering whether such a provision [one requiring affected employees or their designated representatives to be permitted to observe any testing conducted under the confined space standard] should be added to the permit space standard based on the concerns expressed and on the record developed as a result of this notice."
The USWA (Ex. 161-38), which requested a hearing on this and other matters, urged OSHA to incorporate such a provision into the standard both on the grounds that employee protections would be enhanced and that Section 8(c)(3) of the Act mandated the inclusion of such a provision:
The benefits of employee observation of monitoring are well established. Congress certainly thought employees should have the right to observe the monitoring for air contaminants to which they could be exposed * * *. We believe employee observation should be viewed as a matter of right. Employees now have the right to observe the monitoring of air contaminants outside confined spaces, even when the potential health effects may not occur for many years. A worker entering a confined space risks sudden death if the monitoring was not done properly. Surely that worker should have the right to observe the monitoring. (Ex. 161-38).
Many commenters argued that it was not necessary or appropriate to add an observation of monitoring provision to the Permit Space standard (see, for example, Exs. 161-9, 161-14, 161-20, 161-49, 161-55, 161-78, 184, 187, Tr. 40, 127, 170, 207). The issues raised by these commenters centered on the following points:
(1) That the existing standard is adequately protective and thus that no further changes are necessary;
(2) That the Act does not, at Section 8(c)(3), mandate such a requirement for safety, as opposed to health, standards;
(3) That allowing employees and their representatives to observe the testing of spaces would slow operations without adding to the safety of the entry and might actually increase risks; and
(4) That such a provision has the potential for abuse and could become a labor-management issue.
These issues, and OSHA's responses to them, are addressed in turn below.
Several commenters were of the opinion that adding an observation of monitoring provision is unnecessary because the existing Permit Space standard already adequately provides for the sharing of relevant testing information with entrants. For example, the Pennzoil Company (Ex. 161-49) stated, "Existing requirements at Section 1910.146(d)(5) and (e)(3) already provide for adequate employee access to the results of testing and monitoring in permit spaces." Arguing along similar lines, Union Electric (Ex. 161-35) noted that the existing standard "already requires that the results of initial and periodic tests performed under 1910.146(d)(5) be entered on the entry permit, and 1910.146(e)(3) now requires that the permit be made available to all authorized entrants at the time of entry. As a practical matter, affected employees are usually briefed on the results of the exposure monitoring during the pre-job briefing and before entry into the space."
OSHA is pleased to learn that some employers have taken the additional safety precaution of providing entrants with a pre-entry briefing that includes a report on the results of the monitoring of the space, and the Agency is also aware that the existing standard contains a number of provisions requiring employers to provide information on the results of testing to those employees who are entering a permit space. However, OSHA concludes that these provisions, although essential to the safety and health of entrants, are not a substitute for the observation of monitoring provisions being added to the standard, for the following reasons.
Having access to the entry permit will not prevent the kinds of errors that could be detected by having employees or their representatives observe the actual testing of the space. For example, evidence in the rulemaking record shows that monitoring errors, such as using the wrong monitor, monitoring for the wrong substance, or failing to test the space thoroughly, contribute to a number of confined space accidents (Tr. 286, 317). And if the evaluation or testing of the space is improperly performed, inaccurate information will unknowingly be recorded on the entry permit, and entrants relying on this inaccurate information could be placed at risk of sudden death or serious injury. In situations such as these, the presence of authorized employees or their representatives could well have detected the error and remedied the problem.
The record contains reports of several incidents where employees who observed improperly performed atmospheric tests were able to bring the errors to the attention of the testers before an accident occurred. For example, in one case, the person doing the atmospheric testing calibrated the testing instrument inside the confined space. The entrant pointed out this error and it was corrected (Ex. 161-38, Tr. 332-333). In other cases in the record, employee observation of testing and monitoring might have prevented an accident. The International Chemical Workers Union described an incident involving a vessel that had been tested by a poorly trained evaluator who had apparently failed to detect a flammable atmosphere. The vessel later exploded, killing several workers. There are a number of other dangerous situations that could arise that employee observation of monitoring could avert. For example, authorized employees and their representatives are often aware that significant changes may have occurred in conditions within the space, e.g., that the employer is considering reclassifying the space based on new monitoring data and can be expected to take extra precautions as a result. Observing the testing process would also permit employees or their representatives to detect human errors, such as the inadvertent recording of inaccurate data. In addition, OSHA believes that employees who directly observe the monitoring are likely to gain an enhanced appreciation for the hazards they face.
Thus, OSHA believes that providing employees or their representatives with the opportunity to observe the testing and monitoring of permit spaces will have the same kinds of benefits that such observation has had in the context of OSHA's health standards: knowledgeable employees who are given the opportunity to participate actively in protecting their own safety and health and that of their co-workers often identify potentially serious problems and help to solve them as well. Accordingly, paragraph (c)(5)(ii)(C) has been revised by adding the sentence "Any employee who enters the space, or that employee's authorized representative, shall be provided an opportunity to observe the pre-entry testing required by this paragraph." Similarly, the language of paragraph (c)(5)(ii)(F) has been revised to add the following sentence: "Any employee who enters the space, or that employee's authorized representative, shall be provided with an opportunity to observe the periodic testing required by this paragraph."
A number of commenters (see, e.g., Exs. 161-26, 161-35, 161-37, 161-48, 161-56, 161-72, 161-60, 187, Tr. 127, 170) expressed disagreement with the USWA's view that Section 8(c)(3) of the Act mandated such observation in the case of safety standards such as the permit space standard. Section 8(c)(3) of the Act directs OSHA to issue regulations requiring employers to maintain records of employee exposure to potentially toxic materials or harmful physical agents and providing employees or their representatives with "an opportunity to observe such monitoring or measuring, and to have access to the records thereof." This section of the Act provides the basis for the observation of monitoring provisions in virtually all of OSHA's health standards (see, for example, the asbestos, benzene, cadmium, lead, methylenedianiline, methylene chloride, and butadiene standards). Typical of these comments was one submitted by the Dow Chemical Company (Ex. 161-20):
Section 8(c)(3) requires OSHA to promulgate regulations which provide employees, and their designated representatives, with the opportunity to observe the monitoring and measuring of, and have access to, employee exposure records (emphasis in the original). The atmospheric tests and space evaluations required under the Confined Space Standard are not the type of employee exposure monitoring that is envisioned by the Act.
In fact, OSHA stated in the NPRM its position that section 8(c)(3) does not require inclusion of a requirement for employee observation of monitoring in safety standards (59 FR 60737). Instead, the proposal explained that any decision to add an employee observation provision to the standard would be based on the record developed in this proceeding, including the concerns expressed about the original standard. OSHA does note, however, that the fact that Congress included a requirement that observation of monitoring be allowed for toxic substance standards indicates a Congressional preference for well-informed and involved employees. And as explained elsewhere in this section, OSHA has determined that the record in this rulemaking shows that employee observation can have substantial benefits for employee safety and health.
OSHA believes that this safety benefit adequately justifies any minimal slowing of operations caused by the employee observation requirement. In any event, as shown by other evidence in the record, the employees assigned to enter the permit space are often already in the area, waiting to enter it, while the space is being tested and monitored (Ex. 161-25). Indeed, in a great many cases, it is the permit space entrants themselves who perform the testing and monitoring (Ex. 161-09, Tr. 186-187, 190). Moreover, as with all of the employee participation provisions being added in this revision, the record shows that this practice is already fairly common and indicates that it has not caused any production problems (Exs. 161-57, 172, Tr. 202).
A few commenters suggested that employee observation could actually decrease employee safety, for example when monitoring must take place in a hazardous environment, such as an elevated location or one containing a toxic atmosphere (Exs. 161-56, 161-74, 167, 181). But the standard does not require employees to observe all monitoring or testing, it merely offers them the opportunity to do so. The employees and their representatives are less likely to take advantage of that opportunity in particularly hazardous situations. Moreover, even having an entrant or representative close by observing the actions of the person testing the atmosphere, and checking the instruments after the tests are complete could provide safety benefits. Employees already have extensive rights to observe monitoring under OSHA's health standards. OSHA has seen no evidence, and none was presented in this rulemaking, that this observation creates safety hazards (Tr. 92-93).
OSHA does not believe that the final rule's requirements that employers provide affected employees with an opportunity for employee observation, or those requiring employee participation in paragraph (l), are particularly subject to abuse or constitute an unwarranted infringement on labor-management relations. OSHA standards frequently require that work be performed in a particular way or by specific employees. For example, the Lockout/Tagout (LO/TO) standard, 29 CFR 1910.147(c)(8), requires that locks and tags be affixed by the workers who will be performing the service or maintenance covered by the standard and, as discussed above, numerous toxic substance standards provide affected employees and their representatives with the right to observe hazardous substance monitoring. The requirement that employees who are to enter hazardous confined spaces be allowed to observe the required monitoring of those spaces is analogous to these provisions. Like the LO/TO requirement, it recognizes that the employees whose lives could be endangered by inadequate completion of these preliminary safeguards have the strongest incentive to see that they are performed properly (see Tr. 333).
OSHA also is not persuaded that the monitoring observation requirement is especially subject to employee abuse. Some commenters suggested that during periods of labor management discord, employees could abuse the observation right to slow down or disrupt production (see, e.g., Exs. 161-12, 161-25). Others expressed concern that the provision could cause what one called a "logistical nightmare" if all of the employees and representatives insisted on observing each instance of testing and monitoring (see, e.g., Exs. 161-12, 161-26, 161-35, 161-78). But again, there was no evidence that this type of disruption is caused by the employee observation provisions in OSHA's health standards. The standard allows the opportunity for observation by an entrant or his authorized representative, not by every employee and representative at the workplace. Moreover, some employers, either contractually or otherwise, already provide employees with the right to observe monitoring and testing of confined space atmospheres (Exs. 161- 57, 173-B, Tr. 184-185, 202). One witness pointed out that, even in those plants, confined space entrants did not always choose to observe the monitoring (Tr. 202). And of course nothing in this standard interferes with an employer's existing power to direct and control its workforce, so long as it does not attempt to do so in a manner inconsistent with the standard.
Nor does the provision interfere improperly in labor-management relations, as suggested by some commenters (e.g., Ex. 161-35). In a general sense, many safety and health issues could, in the absence of OSHA requirements, be dealt with through traditional labor management mechanisms. That does not mean, however, that OSHA does not have the authority to require that work be performed in the manner it determines can best reduce safety or health hazards. And OSHA's exercise of this authority may, in some cases, force employers to alter some aspects of their employee relations. For example, OSHA standards sometimes require employers to provide medical removal benefits to workers whose health may already have been affected by exposure to a toxic substance. These benefits may include job assignments in areas with less exposure to the toxic substance, continuation of pay, or training for new job assignments (29 CFR 1910.1025(k) (lead), 1910.143(f)(2)(iv) (cotton dust)). Although these issues would have been considered labor relations matters in the absence of the OSHA standards, it is clear that OSHA can impose such regulatory requirements to protect employee safety and health. United Steelworkers of America v. Marshall, 647 F.2d 1189, 1236 (D.C. Cir. 1980).
Paragraph (k) -- Rescue and Emergency Services
OSHA is amending and reorganizing paragraph (k), the rescue and emergency services provision of the standard.
A. Evaluation and Selection of Rescue and Emergency Services
The revisions to paragraphs (k)(1) and (k)(2) clarify an employer's obligations to select a rescue service that is trained, equipped and available to respond to emergencies that occur during confined space entries. The emphasis of the revised language is on the employer's evaluation of potential rescue providers, and on the factors that the employer must consider in determining whether a particular provider is capable of providing effective rescue services for the particular situations that its confined space entrants may face. OSHA is also adding a new non-mandatory Appendix F to the standard to provide employers with additional assistance in evaluating potential rescue services.
In the 1993 Permit Required Confined Spaces standard, OSHA promulgated separate requirements for employers of rescue and emergency teams and employers who used teams they did not employ. The requirements were more specific for what the rule considered in-house teams employed by the employer (29 CFR 1910.146(k)(1), (k)(2)). The rule was criticized for its failure to contain equally explicit requirements for "outside" rescue teams, or to contain an explicit requirement that those teams be able to arrive at the worksite in a timely fashion (Ex. 162-1). In the NPRM, OSHA proposed to require employers to ensure that outside rescue teams be equipped, trained, capable of responding in a timely manner, and aware of the hazards they may encounter during rescue operations, and be provided with access to the employer's confined spaces for rescue plan development and rescue drill purposes (59 FR 60739).
OSHA received a wide array of comment on this proposal. Some commenters believed that the language of the 1993 rule, particularly as explained in the preamble to that rule, was adequate to assure effective and timely rescue (Exs. 161-48, 161-49, 161-56, 167, 184). Others argued that the proposed revisions did not go far enough, and that OSHA should either prohibit outside rescue teams altogether or, at a minimum, require that any rescuer be able to respond to an emergency within some specified time frame, generally four to six minutes (Exs. 161-38; 161-39; 161-40; 161-62; 170). A number of commenters criticized the distinction between in-house and outside rescue services, pointing out that some of the assumptions on which OSHA based this distinction were inaccurate (see, e.g., Ex. 161-20). Many of the comments emphasized the need for knowledgeable and well-trained rescuers, not only to provide more effective rescue to the endangered confined space entrants but also to assure that the rescuers do not unnecessarily endanger themselves (Exs. 161-7, 161-20, 170).
The commenters who believed that OSHA should not amend the existing rule generally made four points:
1. Properly interpreted, the 1993 rule already imposes a requirement for timely and effective rescue.
2. Making employers responsible for the performance of outside rescue teams is unrealistic for those employers who rely on outside teams because they lack the expertise to develop their own in-house teams.
3. Imposing a short time within which a rescue team must arrive at the location of the emergency amounts to an effective prohibition of outside rescue teams.
4. Requiring an employer to "ensure" the competence, timeliness, and effectiveness of outside rescuers is a requirement that employers guarantee successful rescue.
Typical of these comments is one by the Chemical Manufacturers Association:
OSHA's proposed revisions to paragraph (k)(2) place an undue burden on host employers. The likely outcome is that host employers will not be able to use outside rescue services. Such an outcome is totally inappropriate. Under the proposed revision, if the host employer decides to use an outside rescue service, then it must also ensure that this outside rescue service is "capable of functioning appropriately." If a host employer is using the outside rescue service, presumably the host employer does not have the expertise to maintain a team in-house. In such a situation, how can the host employer ensure that the service is capable of functioning appropriately?
* * * * *
Paragraph (k)(2), as originally promulgated, required the correct amount of accountability for host employers (Ex. 161-29).
Dow Chemical stated its belief that "In essence, by requiring host employers to "ensure" that the outside rescuer can "effectively respond in a timely manner" and that the outside rescuer is equipped, trained and "capable of functioning appropriately," OSHA is requiring that host employers guarantee their performance" (Ex. 181).
Those commenters who supported more stringent requirements made two general points:
1. Without a clear requirement for rescuers to respond within a very short time after an emergency arises, entrants will often die while awaiting rescue.
2. Outside rescuers, particularly emergency responders, often do not have the information or equipment necessary for effective and timely rescue, and in some cases may not even know that employers are relying on them for confined space rescue.
These comments, and OSHA's responses to them, will be discussed in greater detail below.
A. Timely Response
OSHA has retained the language in the NPRM calling for timely rescue capability. Although virtually all rulemaking participants agreed on the need for "timely" rescue, a great deal of debate concerned whether OSHA should include a particular response time in the standard. Proponents of such a provision argued that in many confined space emergencies, an entrant is not receiving adequate breathing air and will suffer irreversible and frequently fatal effects within four to six minutes (Exs. 161-38, 161-39, 161-64, 161-71). Moreover, some of them claimed that if rescuers are not on the scene quickly enough, co- workers of the victim who are not equipped to perform rescue operations are more likely to endanger themselves by attempting rescue operations on their own (Ex. 161-38). They noted that a majority of deaths in confined spaces occur among would-be rescuers (Exs. 161-38, 161-64).
Opponents of the inclusion of a specific time frame in the standard pointed out that, realistically, a four to six minute response time would require having fully equipped rescuers standing by during the entire length of every permit space entry (Ex. 161-56). While others noted that this would be appropriate on some occasions, but would not be on many others (Tr. 51-52, 93, 210, 254). These commenters agreed that inadequately prepared rescuers are likely endanger themselves more than they assist the victim, but expressed concern that even designated rescuers could endanger themselves if they are under too much pressure to respond too quickly (Ex. 161-56). For example, Michael Roop of ROCO Corp. testified that, in training rescuers ROCO instructs them "that if you arrive at a scene and you're inside that confined space in two or three minutes to made a rescue, then you're doing something wrong. You're not being safe" (Tr. 248).
In the same context, ROCO and other rescue provider commenters pointed out that "response time" is not the same as rescue time, and that there are a number of discrete stages to a successful rescue operation (Tr. 246-249; Ex. 161-52).
OSHA does not believe these concerns are irreconcilable. OSHA's recently revised Respiratory Protection standard, 29 CFR 1910.134 (1998), promulgated at 63 FR 1152-1300 (Jan. 8, 1998), as well as the predecessor to that standard, 29 CFR 1910.134 (1997), require standby rescue personnel when employees are working in atmospheres that are immediately dangerous to life or health (IDLH). It is clear that the atmosphere in a permit space where an entrant could suffer irreversible impairment within four to six minutes would meet the definition of an IDLH atmosphere: "an atmosphere that poses an immediate threat to life, would cause irreversible adverse health effects, or would impair an individual's ability to escape from a dangerous atmosphere" (29 CFR 1910.134(b)); see also the preamble discussion at 63 FR 1184-1185.
According to the Respiratory Protection standard, when employees enter such a space, the employer must ensure that:
(i) One employee, or when needed, more than one employee is located outside the IDLH atmosphere;
(ii) Visual, voice, or signal line communication is maintained between the employee(s) in the IDLH atmosphere and the employee(s) located outside the IDLH atmosphere;
(iii) The employee(s) located outside the IDLH atmosphere are trained and equipped to provide effective emergency rescue;
(iv) The employer or designee is notified before the employee(s) located outside the IDLH atmosphere enter the IDLH atmosphere to provide emergency rescue;
(v) The employer or designee authorized to do so by the employer, once notified, provides the appropriate assistance necessary to the situation;
(vi) Employee(s) located outside the IDLH atmospheres are equipped with:
(A) Pressure demand or other positive pressure SCBAs, or a pressure demand or other positive pressure supplied-air respirator with auxiliary SCBA; and either
(B) Appropriate retrieval equipment for removing the employee(s) who enter(s) these hazardous atmospheres where retrieval equipment would contribute to the rescue of the employee(s) and would not increase the overall risk resulting from entry; or
(C) Equivalent means for rescue where retrieval equipment is not required under paragraph (g)(3)(vi)(B) (29 CFR 1910.134(g)(3)); see also preamble discussion at 63 FR 1242-1245.
OSHA believes that compliance with these requirements will meet the concerns of those commenters who urged OSHA to require a rescue response time of only a few minutes. Because the standby personnel required by the Respiratory Protection standard will have been monitoring the confined space entrant's condition throughout the operation and will be fully equipped to begin rescue operations, they will be able to respond more quickly than rescue team members arriving from another location, whether inside or outside the plant, who would need to gather appropriate equipment, prepare to use that equipment, and be briefed on the emergency situation before beginning rescue operations. And because the standby personnel must be appropriately trained and equipped to perform rescue operations, other inadequately prepared employees will be less likely to endanger themselves by attempting hasty and dangerous rescues. (Note that at least one employee, serving as attendant, must still remain outside the permit space, as required by Section 1910.146(i)(4).) 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 instant response.
OSHA has therefore decided to promulgate the requirement it proposed for "timely" rescue, a requirement that was not opposed by any rulemaking participant, rather than to define precisely what is timely. That determination will be based on the particular circumstances and hazards of each confined space, circumstances and hazards which the employer must take into account in developing a rescue plan. OSHA has added a note to paragraph (k)(1)(i) to clarify this point.
B. Evaluation, Selection, and Use of Rescue Services
OSHA has generally reorganized paragraph (k) to de-emphasize the distinction between in-house and outside rescuers and to focus instead on the employer's obligation to evaluate rescue services so that it can select one that is competent to provide the rescue services appropriate for that employer's operations. Several commenters explained that OSHA's assumption that in virtually all cases the "host" employer would be the employer of both the confined space entrants and any in-situ rescue team but would not be the employer of an off-premises team was erroneous (Ex. 181). These commenters described a number of situations where this assumption would be inaccurate. For example, in some cases, confined space entrants may be contractor employees, although the rescue team may be composed of on-site employees of either the host employer or another contractor (Ex. 179). In other cases, the host employer may arrange for the standby presence of an "outside," non-employee rescue team during particularly hazardous permit space entries. In still other situations, an employer may use a rescue team comprised of employees of a different facility that it operates.
As a result OSHA has revised paragraph (k)(1) to emphasize the evaluation that an employer must perform of available rescue and emergency resources before designating a rescue provider for purposes of this standard. This also responds to the concerns of a number of commenters that the language OSHA used in the NPRM, requiring the employer to "ensure" that the rescue service it selected was able to function adequately, appeared too result oriented. These commenters believed that compliance could only be determined by a post hoc consideration of the success or failure of an actual rescue effort. They said the focus should instead be on the employer's assessment of the rescuer's capabilities (Ex. 161-20). OSHA agrees that assessment of capabilities is the appropriate focus for employer efforts, and intended this result in both the 1993 standard and the NPRM. The language of this final rule, by explicitly framing the employer's obligations in terms of the evaluations it performs, will clarify this intent.
Paragraph (k)(1)(i) explains that the rescue service evaluation must take into account the rescuer's ability to respond in a timely manner to the types of emergencies that may arise in the employer's confined spaces. As noted above, the note to paragraph (k)(1)(i) explains that what will be considered timely rescue will vary according to the specific hazards involved in each confined space entry.
Paragraph (k)(1)(ii) requires that the evaluation also include an assessment of the skill and competence of the prospective rescuers. Several commenters pointed out that in some cases employers have designated local fire and rescue services as their rescuers without first confirming that those services even have a confined space rescue capability (Ex. 161-41). Although many emergency responders may be able to provide proper permit space rescue functions for all spaces that do not require immediate, stand-by rescue capability, not all responders have this ability (Ex. 161-41). Each employer relying on these services should verify that the emergency responder is indeed trained, equipped, able, and willing to perform rescue for confined spaces in its facility.
In evaluating a prospective rescue provider's abilities under this subparagraph, the employer must also consider the willingness of the service to become familiar with the particular hazards and circumstances faced during its permit space entries. Subparagraphs (k)(1)(iv) and (k)(1)(v) require the employer to provide its designated rescuers with information about its confined spaces and access to those spaces, both to allow the development of appropriate rescue plans and to perform rescue drills. A rescue service's receptiveness to this information is directly relevant to its ability to function appropriately during actual rescue operations.
A few commenters provided information on particular products, including communication equipment (Ex. 161-52) and in-situ resuscitation devices (Tr. 459-468) for use in permit space rescue operations. OSHA does not, of course, endorse specific products. However, the Agency notes that the equipment used by a rescue service, and that equipment's utility in enhancing rescue efforts, is a relevant factor for employers to consider during the rescuer evaluations required by this paragraph.
Paragraph (k)(1)(iii) requires the employer, after performing the evaluations required by paragraphs (k)(1)(i) and (k)(1)(ii), to select a rescue provider that has the ability to respond in a timely manner to the particular hazards at issue, and to provide proficient rescue services. In other words, it is not enough for an employer simply to perform the evaluations required. The employer must also utilize the results of those evaluations to select a rescue service that will meet the goals of this standard.
Paragraph (k)(1)(iv) requires the employer to notify the rescue service it selects of the hazards that may exist at the permit spaces in its facility. This requirement was included in the NPRM and was also present in the 1993 standard. In the context of this revised standard, this notification provision obviously includes notifying the rescue service that it has been selected and that the employer will be relying on it. In some cases compliance with this section, as well as with paragraphs (k)(1)(i) and (k)(1)(ii), may require the employer to notify the rescue service immediately prior to each permit space entry.
Paragraph (k)(1)(v) requires employers to provide the rescue service selected with access to all confined spaces from which rescue may be necessary so that the rescue service can develop appropriate rescue plans and practice rescue operations. This provision, which is essentially unchanged from both the NPRM and the 1993 standard, was the subject of a significant amount of comment from employer representatives who urged OSHA to require only that they provide access to "representative" or "typical" spaces (Exs. 161-29, 161-20, 161- 25, 161-26, 161-2-9, 161-60, 184). These commenters pointed out that a number of an employer's confined spaces were likely to share identical configurations, and that it would therefore not be necessary for the rescue service to have access to each of them (Exs.161-25, 181, 184). Some also expressed concern that providing access to some permit spaces, which are only entered at rare intervals for cleaning or other servicing, could be costly and disruptive of the employer's ongoing operations.
OSHA recognizes the validity of these concerns but believes that the employer's needs can be accommodated within the context of the existing requirement. Accordingly, OSHA has not made the suggested change. Although OSHA agrees that a rescue service is unlikely to need access to every one of a group of similar spaces, OSHA believes that it should be the rescue service that decides which space, or spaces, will be used for planning and practice purposes. This is particularly true for off-site rescue services, who are less likely to be familiar with the layout of the host employer's workplace. The Agency also took this position in the January 14, 1993 final rule (58 FR 4529-4530), and at the September 27, 1995, public hearing (Tr. 22). Similarly, although providing access to some permit spaces may be disruptive of normal production operations, OSHA believes that employers should be able to work out with their designated rescue services mutually convenient times to provide access to those spaces, if the rescue service believes that access to those particular spaces is necessary for planning or practice drill purposes. Indeed, none of the commenters argued that such accommodations could not be made.
As proposed, OSHA has redesignated paragraph (k)(1) of the 1993 standard, dealing with the requirements for rescue service employers, as (k)(2) of this revision, but has not made substantive changes in this requirement. Most of the comment OSHA received on this provision dealt with the fact that employers have different obligations toward rescue teams comprised of their own employees than toward teams they do not employ directly. However, as a number of commenters recognized, to the extent that the "non-employee" rescue services are comprised of employees of another employer subject to the OSH Act, they also will receive the benefits of these provisions (Ex. 161-20). And to the extent that a service's failure to comply with these provisions affects its rescue skills and competence, employers should take this into account in deciding whether to select that service to provide its rescue operations.
OSHA has made some editorial changes in this paragraph. For example, revised paragraph (k)(2)(i) states that rescue PPE and related training are to be provided at no cost to affected employees. This language has been added so it is clear that this provision is consistent with existing §1910.146(d)(4).
C. Retrieval Systems
OSHA proposed to revise paragraph (k)(3)(i) to allow attachment of retrieval lines at any point "which the employer can establish will ensure that the entrant will present the smallest possible profile during removal" rather than only at the entrant's back near shoulder level or above the entrant's head. The final rule changes this language somewhat, but retains the performance orientation of the proposal. OSHA explained in the NPRM that, subsequent to the 1993 promulgation, the Agency received information which indicated that other equally effective and safe points of attachment exist. Accordingly, OSHA proposed to add the new language to paragraph (k)(3)(i). The proposed paragraph, however, inadvertently omitted language providing for the use of wristlets in certain circumstances.
Commenters (Exs. 161-1, 161-9, 161-13, 161-14, 161-15, 161-20, 161- 26, 161-29, 161-34, 161-37, 161-43, 161-45) uniformly supported the increase in flexibility allowed by the proposed revision. Some, however, suggested changes to OSHA's proposed language. The National Grain and Feed Association (Ex. 161-14) suggested that the standard allow attachment "in the manner determined by the employer most effective to ensuring that the entrant" will present the smallest possible profile during removal. OSHA has not adopted this suggestion because it believes the two points of attachment listed (the center of the entrant's back near shoulder level and above the entrant's head) should be emphasized because those points are preferred for most situations.
Another commenter (Ex. 161-45) suggested replacing the proposed "smallest possible profile" with "best possible profile." OSHA agrees that it may not always be desirable for the entrant to present the smallest possible profile during rescue. For instance, in situations where the size of the space or portal is not limiting, a point of attachment which results in the smallest possible profile may be less desirable than some other point of attachment which better facilitates the work to be done. Accordingly, OSHA has decided to replace the proposed language with the phrase "profile small enough for the successful removal of the entrant." OSHA also has not adopted a suggestion of the Tennessee Valley Authority (Ex. 161-34) that OSHA change the term "profile" to "cross sectional profile" because OSHA believes that the term "profile" is clear in this context. Finally, two commenters called to OSHA's attention the inadvertent omission in the NPRM of the option to use wristlets where the use of a body harness is infeasible or would create a greater hazard (Exs. 161-20, 161-26). The revised rule retains the language on wristlets.
OSHA did not propose, and has not made, any change to subparagraphs (k)(3)(ii) or (k)(4). Subparagraph (k)(3)(ii) requires a mechanical device to be available to retrieve entrants from a vertical confined space more than five feet deep. OSHA notes that it has always intended that the word "available" in this provision mean "at the access point of the vertical entry and ready for use."
Paragraph (l) -- Employee Participation
A new paragraph (l) has been added to the standard, dealing with employee participation in confined space programs. Paragraph (l)(1) requires employers to consult with affected employees and their representatives in the development and implementation of their confined space programs; paragraph (l)(2) requires that those employees and representatives have access to all information developed under this standard.
OSHA's original Permit Required Confined Spaces standard hearing notice (54 FR 41462) requested comments on the subject of worker participation in the design and implementation of a PRCS program. OSHA received several comments on the subject (Exs. 14-318, 14-210, 14-215, 14-220, 14-222) and some testimony at the public hearings also addressed it (Tr. 225-226, 251, 386, 589-590; Tr. 1063-1064; Tr. 317- 318, 348-352, 356, 376, 379-380, 411, 427-428, 532-533, 612-613, 622- 623). The Agency addressed these comments in the preamble to the January 1993 standard (58 FR 4484-4485).
The standard encouraged the involvement by employees and clearly recognized it as vital to the creation of an effective permit space program. However, it did not require employee involvement in the development of the permit program, although it did provide for such involvement in permit space program inspection and review (paragraphs (c)(4) and (d)(13)), and in review of employee training upon evidence of deficiencies ((g)(2)(iv)). OSHA explained its decision not to require employee involvement in the development of confined space programs by referring to the difficulties of mandating labor-management collaboration in the development of the permit space program and of resolving conflicts between workers and employers (FR 4484-4485). As is discussed more fully below, OSHA believes this revision avoids both of these problems.
Although the NPRM on which this revision is based did not explicitly mention employee involvement in the development of confined space programs, some commenters submitted statements urging OSHA to include a provision explicitly allowing such participation (see, e.g., Ex. 161-38; 161-40). Further discussion of this issue occurred at the public hearing.
Commenters supporting the addition of an employee participation provision to the standard pointed out that employee participation in plan design is already done at many workplaces pursuant to collective bargaining agreements, and that such participation would be consistent with that occurring under other OSHA standards, particularly the Process Safety Management standard (29 CFR 1910.119) (Ex. 161-140). It was also pointed out that employees who actually work in confined spaces and their representatives are particularly well qualified to contribute to the task analysis that is a necessary step in developing a confined space program (Exs. 161-38; 161-140).
In contrast, even the American Petroleum Institute (API), the commenter who most explicitly opposed inclusion of such a requirement, acknowledged that involvement by employees in the program development process could be useful. API said that OSHA should continue to "encourage" such involvement but should not require it because such a requirement could expose the standard to "additional controversy or litigation" (Ex. 167). The American Gas Association made a similar statement (Ex. 161-770). Other more general comments on employee participation repeated the point made in the original rulemaking that such participation raises labor relations issues that should not be addressed by an OSHA standard (see, e.g., Exs. 184, 187).
OSHA has determined that the consultation requirement in new paragraph (l) will provide the benefits discussed by the participants who favored an employee involvement requirement. By leaving the final contents of the confined space program up to the employer, however, this provision should minimize controversy and avoid the need to develop a cumbersome procedure to resolve conflicts. OSHA expects that there will be few conflicts in any event, because it believes that the vast majority of employers and employees will cooperate to make confined space entry procedures as safe and efficient as possible. This requirement should only have a minimal effect on labor-management relations although, as noted in the discussion of paragraph (c) above, the importance of employee safety and health would justify such an effect even if it were substantial.
As the UAW pointed out, the employees who perform the actual entry can contribute immeasurably to the analysis of the tasks performed during a permit space entry to ensure that the hazards within the space remain under control and that additional hazards are not introduced (Ex. 161-40). These employees are the people most familiar with the actual practices during confined space entries. If those practices differ significantly from the practices intended by the employer, the employer needs to be made aware of the differences and to take appropriate steps to remedy any deficiencies in the permit entry procedures. Likewise, employees may be aware of hazards within the space that are not being taken into consideration by non-entrants.
In addition, OSHA's own experience in enforcing the Congressionally mandated employee participation requirement under the Process Safety Management standard has convinced the Agency of both the value and the workability of the new provisions being added in paragraph (l). OSHA believes that, as well as improving the quality of the permit space programs developed under the standard, this new provision will also enhance compliance with those programs. Clearly, employees who have participated in the development of programs will have a better understanding of the reasons for the various provisions of the program and will therefore be more likely to comply with those provisions. Similarly, any manager who might be tempted to bypass any of the program safeguards will be less able to convince an employee that such an action would not affect safety and health.
Finally, paragraph (l) is consistent with both the Congressional intent and OSHA's long practice of promoting employer-employee cooperation in safety and health matters. The Congressional intent is shown in part by Section 2(13) of the OSH Act, 29 U.S.C. 652(13), which states that one of the purposes of the Act is to "encourage joint labor-management efforts to reduce injuries and disease arising out of employment." More recently, Congress' intent can be seen in its directive to OSHA to promulgate a PSM standard that explicitly provides for employee involvement in the development of the process safety management programs mandated by that standard.
An example of OSHA's longstanding practice of encouraging and promoting employee involvement is the Agency's 1989 Safety and Health Program Management Guidelines (54 FR 3904), which recognize the importance of involving employees in safety and health programs at the workplace. Paragraph (c)(1)(iv) of those guidelines urges employers to provide for and encourage employee involvement in "the structure and operation of the [safety and health] program and in decisions that affect their safety and health, so that they will commit their insight and energy to achieving the safety and health program's goal and objectives." Although the guidelines are voluntary, this provision demonstrates OSHA's belief that employee involvement is necessary to the day-to-day safety and health of workers. Additionally, the guidelines are being applied in many workplaces through several OSHA programs, such as the Voluntary Protection Program, the Safety and Health Achievement and Recognition Program, and in several State and Regional experimental programs. OSHA's 1998 Strategic Plan also emphasizes the importance of employee involvement in safety and health and establishes as an Agency objective the enhancement of such involvement in all OSHA initiatives, as appropriate.
New paragraph (l)(2) requires employers to share with employees and their authorized representatives all of the information generated under this standard. Comments objecting to this provision were generally limited to pointing out that it would be redundant with other provisions in the standard that already require the great majority, if not all, of this information to be made available to employees and representatives. OSHA recognizes this redundancy; it is adding this provision for purposes of emphasis and clarification.
For all of the reasons described above, OSHA has determined that the consultation requirement in paragraph (l)(1) is supported by the record of this rulemaking; it will contribute to confined space safety; and it is consistent with longstanding agency policy. The information provision requirement in paragraph (l)(2) is also consistent with agency policy, and will emphasize that employees and their representatives have a right to all information affecting their health and safety.
Section 1910.146 Appendix F -- Example of Rescue Service Evaluation Criteria
As discussed above, OSHA has added a new, non-mandatory Appendix F. This appendix provides guidance to employers in choosing appropriate rescue services. The Agency received several comments (Exs. 161-4, 161- 7, 161-44, 161-55) which addressed the need for criteria to assist employers in evaluating potential rescuers. As expressed by one commenter (Ex. 161-44): "If an employer does not have rescue knowledge and experience, how can he possibly evaluate a prospective rescue service? What evaluation and verification process is reasonable and acceptable to OSHA?"
The Agency recognizes that some employers will need information on how to evaluate prospective rescue services. However, presenting criteria that match every situation would be difficult. For this reason, OSHA has determined that the suggested criteria for rescue service evaluations should be presented in a non-mandatory appendix. Additionally, this appendix provides criteria for ongoing performance critiques for rescue services so that employers will have a means to judge whether a rescue service has maintained its ability to perform safe and effective permit space rescues. Although the Appendix is divided into a section addressing initial assessments and one addressing performance critiques for rescue services already operating at an employer's facility, the considerations in the two sections should not be seen as mutually exclusive. To the extent the employer can obtain enough information to make a determination, the same factors would be applicable to both determinations.
[63 FR 66019, December 1, 1998]
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