New Rules for Confined Spaces In Construction

This article is the first of a three part series

In May 2015, OSHA published a new standard for the Construction Industry. The new Subpart AA now defines confined spaces in construction, and more importantly defines “permit required” confined spaces in construction. The new standard does a good job of assigning roles and responsibilities on sites with a general contractor and multiple sub-contractors, and OSHA has already issued FAQ’s and Fact Sheets to aid in interpretation, training and implementation. The new standard, technically known as 29 CFR 1926.1200 (or Subpart AA), took effect on August 3rd, 2015, however OSHA issued a temporary enforcement policy that postponed full enforcement of the new standard until October 2nd, 2015. That date has come and gone, but OSHA did extend the modified enforcement policy for residential construction until January 8, 2016. In addition, many state plan states will take additional time to begin enforcement under their states regulation. Regardless of the date and the temporary enforcement policy, all construction employers need to read this new standard and begin to take action within their company if they have employees or subcontractors working in, or even near, confined spaces on construction projects.

The new standard uses the same definition of a confined space as the general industry standard; i.e. large enough to enter, not designed for continuous occupancy and has limited means for entry and exit, however this is the first time the construction industry has been presented with a precise definition of a permit required confined space and given a mandatory set of compliance rules. The new standard also goes much further than the old language, contained in Subpart C (general safety and health provisions), in giving examples of what is to be considered a confined space… elevator pits, manholes under construction, concrete pier columns, vaults, enclosed beams, crawl spaces, attics and HVAC ducts are all mentioned in the scope of this new standard. Specifically excluded from this standard is work that is covered and regulated under Subpart P – Excavations, and Subpart S – Underground Construction, Caissons and Cofferdams.

To begin with, the standard now specifically requires that employers ensure that a competent person identifies all confined spaces in which one or more of the employees it directs may work, and must identify each of those spaces that is a permit required space. This must be done prior to beginning work at a job site. Roles and responsibilities are specifically defined and assigned throughout the 27 page long standard. Roles defined under this rule include the following:

• Host Employer - means the employer that owns or manages the property where the construction work is taking place - this means the owner of a site has responsibilities under this new rule, even if they hire a controlling contractor
• Controlling Contractor - is the employer that has overall responsibility for construction at the worksite (if the controlling contractor owns or manages the property, then it is both a controlling employer and a host employer – for example a home builder), for example the general contractor
• Entry Employer - means any employer who decides that an employee it directs will enter a permit space

It is interesting that this standard goes as far as to specifically define the owner of a property as a Host Employer. Since this Standard assigns specific responsibilities to the Host Employer it makes a project owner responsible for compliance with parts of this rule. A property owner or property manager is specifically permitted to contract away these obligations to a general contractor (or other controlling contractor) as long as it communicates this intent and transfers information regarding known confined spaces over to the contractor. This relieves the owner of responsibilities while the contractor is under control of the job site. It also makes the general contractor both the Host Employer and the Controlling Contractor. OSHA acknowledges that there will only be one Host Employer for the purposes of this standard, so it is advisable for the owner to include implicit language in their contract documents with their Controlling Contractor. Remember that if the owner remains the Host Employer, they can be cited along with the Controlling Contractor for any violations, and no matter what, the owner must communicate information on existing confined spaces.

The definitions section of the Standard also contains the following note:

An employer cannot avoid the duties of the standard merely by refusing to decide whether its employees will enter a permit space, and OSHA will consider the failure to so decide to be an implicit decision to allow employees to enter those spaces if they are working in the proximity of the space.

Combining all of the items discussed so far, this new standard can be seen as having a significant effect on how potentially every construction site is managed in the future. Unless proactive steps are taken on virtually all construction sites, by all employers, the owner of the project potentially becomes a Host Employer, and all contractors and sub-contractors on the site could potentially be seen as being in violation of the standard if their employees are merely working in the proximity of a permit required confined space without having discussed confined space hazards with their employees.

While this may seem harsh and over reaching at first glance, OSHA has created this standard not only in response to fatalities of workers in confined spaces, but in response to the circumstances surrounding many of these incidents. Because of the nature of many construction sites, there now exists an implicit requirement for contractors to train virtually all employees on how to recognize a confined space and what the hazards of entering those spaces can be. Even contractors who’s employees are not expected to work in permit required confined spaces need to now make sure they teach those employees about the hazards of these space, and they need to incorporate a policy that specifically prohibits those employees from entering them. Again, at first glance that may seem a bit over reaching; however, considering the percentage of fatalities that occur when onlookers rush into confined spaces to try to rescue someone, this simple bit of instruction may save someone’s life.

Most of the requirements for additional training, personnel, equipment and specialized procedures occur when a confined space that requires entry is determined to be a permit required confined space. A space generally becomes permit required when it poses additional hazards to the entrants that could subject them to injury and/or make it difficult for them to exit or be rescued. The standard is aimed at identifying these types of spaces and requiring additional steps to control the hazards and provide for timely and effective rescue in the event of an incident. Specifically, the Standard defines a permit required confined space as a confined space that has one or more of the following characteristics:

1. Contains or has a potential to contain a hazardous atmosphere
2. Contains a material that has the potential for engulfing an entrant
3. Has an internal configuration such that an entrant could be trapped or asphyxiated by inwardly converging walls or by a floor which slopes downward and tapers to a smaller cross-section
4. Contains any other recognized serious safety or health hazard.

Once a space is characterized as permit required, it mandates significant additional assessments to determine appropriate measures that will need to be taken to protect Entry Employees. These procedures must be documented in a written permit procedure that will dictate entry requirements including the need for Attendants, Entry Supervisors and Rescue Personnel.

An example of compliance with this new Standard can be described as follows:

• A project owner begins by making a decision to remain the Host Employer, or to transfer that responsibility to a Controlling Contractor.Remember that there can only be one Host Employer, so if an owner is hiring multiple trades and managing them without a general contractor, it is doubtful that the owner can contract away their role as a Host Employer under this Standard.
• Either way, the owner must identify all known confined spaces, note them as permit required or not, and communicate any precautions that they or any previous Controlling Contractor or Entry Employer implemented for the protection of employees in any permit spaces.
• The owner should clearly communicate this transfer of responsibility in the contract documents.
• In new construction, with no existing facilities, this is probably a simple process whereby the owner notes (in the Contract Documents) that there are no known confined spaces on the property and that responsibility as the Host Employer is transferred to the general contractor for the duration of the project.
• A general contractor or construction management firm that will become the Controlling Contractor should implement a written policy for confined spaces, and should mandate compliance with that policy for all of its employees and subcontractors. Subcontractors should be required to analyze their work and provide notice of any confined spaces that it may create or enter during the course of construction.At a minimum, the Controlling Contractor should train all of its employees on the recognition and hazards of confined spaces, and needs to decide if its employees will be permitted to enter permit required confined spaces. If they will be permitted to enter these spaces, then additional training will be required.
• The Controlling Contractor must communicate knowledge of any known confined spaces on the project to all subcontractors.
• If the Controlling Contractor identifies, or receives notice of, a permit required confined space they must do the following:Post appropriate danger signs
• Communicate the danger to all employees in an additional manner other than posting
• On some projects, this may be an ongoing process. As new trades begin work and provide notification, this will need to be communicated with all other personnel on the project.
• The Controlling Contractor is required to coordinate multiple entries or entries by multiple subcontractors and is required to debrief each Entry Contractor after entry is completed to assess hazards actually encountered and effectiveness of the procedures.
• All trade contractors will need to train their employees on the recognition of confined spaces and the hazards they create. They will need to establish a written policy for entry into permit confined spaces.Even if a trade contractor’s work does not typically require employees to enter permit required confined spaces they should provide and document this training, and establish a written policy that prohibits entry unless specifically authorized.
• All trade contractors should establish a proactive system of notification to their employees. As the contractor receives notifications of permit confined spaces on job sites where their employees work, they need to take proactive steps to communicate this information to their employees at the site(s) and document this communication. Again, if entry will not be required this can be as simple as a pre-shift orientation meeting where the crew leader informs all employees that they have been notified of a new permit confined space on the job site and no one is permitted to enter this space for any reason. Make sure to document this meeting!
• If a trade contractor’s work will require them to enter these spaces, they become an Entry Contractor and further action is needed as follows:
• Any contractor that becomes an Entry Contractor, must do the following:They must have a written permit space program that complies with the requirements of 29 CFR 2926.1204. This written program must be available on-site prior to, and during, entry operations.
• Provide and document additional training in conformance with 29 CFR 1926.1207 related to permit required confined space entry.
• They must assess and address the site specific hazards and provide this documentation to the Controlling Contractor.
• Provide employees with appropriate testing, monitoring, lighting, ventilation, communications, and other personal protective equipment that is needed.
• Secure the space from entry by others and ensure compliance with permit procedures.
• Provide entry supervisors, attendants and rescue personnel as determined by the hazard assessment.
• Control hazards to the entrants as determined in the hazard assessment.

This article is meant to give an overview of the new Confined Spaces in Construction Standard, and to explain how it affects all parties, including the owner, general contractor and subcontractors. The Standard contains considerable additional information regarding the classification of confined spaces, reclassification and downgrading of permit spaces, specific permit and entry procedures, as well as requirements for assessing specific hazards and providing corresponding levels of protections. This can include the need to provide Entry Supervisors, Entry Attendants and stand-by Rescue Personnel.

The second article in this series explores the classification of permit required spaces under the new Construction Industry Regulations, including reclassification after controlling hazards, and the use of the "in between" option that is permitted when the only additional danger remaining in a space is related to atmospheric hazards. Part three details the significant additional actions and precautions that contractors will now have to take to enter a space that is designated as permit required under these new Construction Industry Standards. 

Want to learn even more? Check out my book on Managing Confined Spaces in Construction, available in print and eBook format on Amazon.