Effective August 3, 2015, the construction industry will have its own dedicated Confined Spaces Standard (29 CFR 1926 Subpart AA) similar to already well-established standards which cover general industry. The new standard covers all construction employers whose employees may be subject to confined space hazards, with the exception of specialized construction activities (excavations, underground construction, caissons, cofferdams, compressed air and diving) which are separately regulated. Previous to this standard, OSHA only had one training requirement for confined spaces applicable to the construction industry which it conceded was inadequate. It differs from the General Industry Standard in that it incorporates construction specific provisions, reflects advances in technology, and improved enforceability of the requirements.  The new standard places emphasis on training, monitoring/evaluating, and communications requirements.

A confined space constitutes a space which has the following three characteristics: it is large enough for a worker; it has limited entry and exit; it is not designed for continuous occupancy. The new confined space in construction standard in §1926.1201(a) gives over 30 examples of confined spaces, although even that list is not exhaustive. Common examples include bins, boilers, manholes, tanks, storm drains and air conditioning ducts. Additionally, a confined space may also qualify as a permit required confined space (permit space) if it presents other potential dangers, such as a hazardous atmosphere, an engulfment hazard, or other serious hazard which might impede a worker exiting the space. Other provisions apply to a permit space, such as if employers require employees to enter permit spaces, they will first be required to have a written confined space program.

In its FAQs, OSHA identifies 5 differences between the construction standard and the general industry rule, as follows:

  1. Multi-employer work sites: recognizing that the construction industry often involves many different contractors and subcontractors, the rule provides for a more coordinated approach. This includes pre-entry planning, including having a competent person identify the confined spaces, further identify permit spaces, evaluate potential hazards, and ensure that those hazards are eliminated or controlled. That information will then be relayed to the various employers onsite whose job it is to train their employees and designate which employees are authorized to enter a permit space. Another provision is that permit spaces require an attendant be positioned outside the permit space for the duration of work being performed.
  2. Ensuring that hazards are not introduced to a confined space by workers performing tasks outside the space; the example given is of a generator being run outside the space which then causes carbon monoxide to build up inside the confined space.
  3. Requiring continuous atmospheric monitoring whenever possible.
  4. Requiring continuous monitoring of engulfment hazards.
  5. Allowing a permit to be suspended rather than canceled.

Three new provisions clarify existing requirements in the General Industry Standard, namely:

  1. Requiring employers to prevent workers’ exposure to physical hazards through elimination or control.
  2. If and when an employer is relying on local emergency services, the employer should alert the emergency services of this and ensure that the emergency services, in turn, inform the employer if something arises which would prevent them from responding to an emergency.
  3. Training must be in a language and using vocabulary which is understood by the employee.   If work assignment or conditions change, further training may be required.

Employers should note that it is their responsibility to make sure that only authorized employees enter a permit space and take effective steps to make sure non-authorized personnel do not enter. When there is a permit space at a worksite, an employer is not absolved of responsibility by merely not making a decision about whether its employees can enter the space. According to OSHA, not making a decision will be construed as tacit approval. Additionally, entering the permit space is defined as any part of a person’s body breaking the plane of an opening into the space.

More about the new regulation, as well as compliance assistance documents, and other OSHA resources, may be found at www.osha.gov/confinedspace/index.html.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.