American Society of Safety Engineers s4

Statement of the

American Society of Safety Engineers

Confined Spaces in Construction OSHA-2007-0026

Public Hearing

July 22, 2008

U.S. Department of Labor Washington, DC

My name is Gary Lopez. I am a Certified Safety Professional and the Senior Director of Safety for Ranger Construction Industries Inc. in West Palm Beach, Florida. I have served on the ANSI Z117 Accredited Standards Committee for Confined Space Entry and am currently the Chair of the Standards Development Committee of the American Society of Safety Engineers (ASSE). Thank you for this opportunity to be here today to share the views of ASSE’s 32,000 member safety, health and environmental (SH&E) professionals. Based on the front-line experience of those members and the expertise of ANSI Z117 Committee members, our comments, which have been submitted to the docket, concluded that the Proposed Rule is unduly complicated, introduces unnecessarily new terminology and burdensome requirements, fails to recognize current and widely understood safety practices that have proven successful both in general industry and 2 construction, and inadequately addresses several vitally important confined space issues. Underlying these specific concerns is the Proposed Rule’s lack of harmony with the Z117.1-2003 voluntary consensus standard that is widely adopted throughout both general industry and construction and among safety and health professionals managing confined space hazards in all kinds of workplaces across the country. What concerns me most deeply is what I fear may be a lack of full appreciation of the on-the-job realities ASSE’s members face every day as they strive to help workers protect themselves when entering confined spaces. I firmly believe that, if the writers of this Proposed Rule were in our shoes, they would have assumed that a new way of looking at construction confined spaces separately from general industry – with new classifications, new terminology, new requirements – was not the way to address the confined space risks viewed as unique to the construction industry in this new OSHA confined space standard. After more than thirty years managing safety and health risk in both general industry and more recently in construction, I can say with confidence that the difference between managing confined space hazards in general industry and in construction is a matter of degree, not a matter of the way risks are managed, as this Proposed Rule attempts to establish. Those thirty years tell me that confined spaces in general industry are no less hazardous to enter then construction industry confined spaces. The real difference is that the risks presented in construction are less predictable than in general industry. This is because most general industry confined spaces are “fixed,” meaning that they have either been entered before or have a history of use that helps in determining risks and precautions. As a 3 result, they are easier to address during the entry permit risk assessment process. By comparison, the structures we deal with in construction are in a constant process of change, making the permit risk assessment process for a confined space more complex. A not uncommon construction job involves building a structure that is or includes a confined space that, during the construction process, will change from a non-permit to a permit confined space. Permit risk assessment, therefore, must be a continual responsibility for the employer of the entrants, the SH&E professional, and the workers involved. The way the Proposed Rule attempts to deal with this difference in degree of risk and the need for ongoing assessment is to establish a new four-tiered classification system for the spaces in construction by creating confined space categories – Isolated Hazard Confined Space and Controlled Atmosphere Confined Space. These categories, however well intended, are nothing more then permit-required confined spaces that have had to go through a risk assessment in the permit assessment process and had precautions applied to them to bring them within the parameter of acceptable risk for entry. This approach deviates dangerously from current accepted industry and SH&E practice, replacing the widely understood, widely adopted two- tiered approach that identifies a space as either requiring or not requiring a permit. That basic “either/or” classification is so important to the process of managing confined space risks and the way we teach employers and workers to be aware of those risks that we fear greatly the loss of its straightforward simplicity. 4

More importantly, these new classifications threaten to diminish the attention that will be given to the permit risk assessment process, a critical step in any safe entry. The process of determining whether a permit is needed serves multiple purposes in protecting workers entering confined spaces – (1) as a risk assessment tool; (2) as a method of identifying precautions that must be in place to enter the confined space within parameters of acceptable risk, including possible rescue measures; (3) as a method of communicating these precautions, including engineering controls, use of personal protective equipment and testing information to the entrants; and (4) as a management approval system to proceed with the entry. Now, employers, workers and SH&E professionals all accept responsibility for the assessment because they know the risks may change. Attaching a label to these risks gives the impression an assessment has been done, giving entrants a false sense that the safety of the space is permanent when, due to the nature of construction, it never is. The unintended consequence of these categories will be a lessening of the vigilant responsibility employers, workers and SH&E professionals on the job now assume for monitoring possible changes in the risks and the nature of the confined space. They take away from the imperative of the permit process and, so, lessen the current levels of safety we see now under current practices.

Responsibility for Hazard and Risk Assessment ASSE is also concerned with the Proposed Rule’s lack of clear direction on responsibility for hazard and risk assessment. 5

The Proposed Rule creates a complex system of host employers and controlling contractors with responsibilities for hazard assessment of confined spaces that shift depending on their roles. It also limits the extent of the information the host employer or controlling contractor is required to give to the contractors actually entering the confined spaces, based on the information they have on hand. Based on the realities of the workplace, this lack of clear responsibility poses numerous safety risks, especially when inexperienced contractors are involved. The most glaring danger resulting from this approach is the likelihood that the contractor will assume the information about a confined space that an employer gives them is complete and comprehensive when it may not be. The Proposed Rule also does not take into account the reason a controlling contractor or host employer often retains a contractor is the contractor’s expertise in confined space entry. Giving a host employer or controlling contractor responsibility for information about the confined space makes little sense in such situations and could prove dangerous due to their lack of familiarity with confined space hazards. Clear responsibility for conducting proper risk assessments about entering a confined space must be given to the employer whose workers are conducting the entry. To establish communications that have the best chance of avoiding confusion, the Proposed Rule should require contractors conducting the entries to submit qualification information to the host employer or controlling contractor who then should be required to certify that they are competent to conduct entries into permit-required confined spaces. 6

Conclusion ASSE understands the difficult job OSHA has in moving forward rulemaking. We appreciate its effort and hope that my attendance today indicates how much we want to work with OSHA to help make sure this rulemaking can build on the successful ways our members and the voluntary consensus standards process help workers enter confined spaces safely. Again, thank you for this opportunity. I am more than happy to answer any questions you have.