In a letter sent recently to the Assistant Secretary of Labor Edwin G. Foulke Jr., the American Society of Safety Engineers (ASSE) said that the proposed rule on Confined Spaces in Construction recently published by the U.S. Occupational Safety and Health Administration (OSHA) is unduly complicated, introduces unnecessary new terminology and requirements that are burdensome, and fails to recognize current safety practices that have proven successful in practice both in general industry and in construction.
"These comments reflect the front-line experience of our members who strive to help protect workers on job sites across the country in all industries, including construction," ASSE President Michael W. Thompson, C.S.P., wrote in the letter. "They also reflect the expertise of the members of the ANSI Z117 Accredited Standards Committee for Confined Space Entry, for which ASSE serves as the Secretariat."
ASSE has more than 31,000 occupational safety, health and environmental professional members located worldwide and is responsible for several American National Standards Institute (ANSI) Committees, including the Z117 Committee for Confined Spaces as well as the A10 Committee for Safety Requirements for Construction and Demolition Operations.
"This rule, if adopted without significant changes, would provide for a significantly lower level of safety than what is currently required throughout the construction industry by the Z117.1-2003 standard," Thompson wrote. "Rulemaking that provides less worker protections than that provided by a widely adopted voluntary consensus standard like Z117.1 goes against OSHA's duty established under the National Technology Transfer and Advancement Act of 1995."
This act states that all federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.
Further, rather than adding clarity or advancing safety consistent with current industry safety practices, Thompson wrote, the changes offered in this proposed rule instead add a new level of complexity to the work of ASSE members and employers while adding little new to the approaches already successfully being used to address confined space risks. It also fails to address important confined space topics including harmonization of confined space classifications, hazard assessment, assignment of responsibilities, and the continued allowance of a chest harness as part of a vertical confined space rescue effort.
According to the National Institute of Occupational Safety and Health (NIOSH), confined space refers to a space which by design has limited openings for entry and exit, unfavorable natural ventilation that could contain or produce dangerous air contaminants, and which is not intended for continuous employee occupancy. Confined spaces include but are not limited to storage tanks, compartments of ships, process vessels, pits, silos, vats, degreasers, reaction vessels, boilers, ventilation and exhaust ducts, sewers, tunnels, underground utility vaults, and pipelines.
Thompson was also concerned that this rule is not in harmony with the widely accepted Z117.1-2003 consensus standard Safety Requirements for Confined Spaces. A comparison of Z117.1 to the proposed rule demonstrates that the existing general industry regulations together with Z117.1 do have the necessary scope, breadth and detail to help employers manage successfully confined space safety matters within the construction industry. It is apparent that the standards used in OSHA's evaluations were outdated 1977 and 1989 standards no longer affirmed by the Z117 Committee. The committee published 1995 and 2003 editions that have been used by OSHA to support over 50 general duty clause citations issued by compliance officers to employers.
In the letter, Thompson included examples of how Z117.1 has been used by OSHA with regard to the General Duty Clause and provided comments from ASSE members that reflect the variety of misdirected conclusions and statements found in the proposed rule.
"Taken as a whole, they point to rule making that is not complete and that has not been undertaken with the purpose of finding a way to work with those who are experts in confined space safety in order to advance properly this nation's commitment to protecting workers," Thompson said. "ASSE is deeply concerned that OSHA decided against using terminology and definitions in its proposed standard that have existed for decades, are widely used in the safety and health community and in industry when addressing confined space risks to workers. Creating a new lexicon for this very particular safety area can only result in confusion and add to the potential for risk, not limit it.
"Nevertheless, rule making that is not consistent with current industry practices, especially when a widely respected voluntary consensus standard reflects those practices, does not advance workplace safety and health in a way we know OSHA wants its standards to do," Thompson concluded. "We look forward to working with you and to the revision of this proposed rule that affects the many workers in this country."