OSHA's long-awaited construction confined spaces proposed standard is taking its lumps from stakeholders. Several petitioned for an extension in the original comment period after OSHA published the proposal Nov. 28, 2007, and the agency agreed. With comments now due by Feb. 28, small construction companies and some big building groups are weighing in, negatively.
Several elements in the proposal displease the construction community, it appears. Jim Redmond, Safety and Health Services director for General Building Contractors of New York State Inc. (the New York State Building Chapter of Associated General Contractors of America), said his group was troubled to see "controlling contractor" language in the proposed rule because they opposed it in OSHA's steel erection standard and believe it is legally questionable. Redmond mentions a 2007 case, Summit Contractors, in which OSHRC vacated an OSHA citation against the general contractor for allegedly failing to ensure a subcontractor's masonry workers were protected from falls on a job site. This decision, which hsa been appealed by the Labor Department to the 8th U.S. Circuit Court of Appeals, invalidated OSHA's multi-employer enforcement policy, and Redmond said it is "absurd" to have "controlling contractor" language now used in the confined spaces standard.
Ted Saito, Safety & Insurance Committee member for the Engineering & Utility Contractors Association, said the proposed standard "will not help or improve safety, and instead will only make the regulation more complex and difficult to interpret. We believe that including additional confined space classifications, re-evaluating procedures, early warning systems that have not been developed, additional reassessment requirements in the event of an emergency, requirements for rescue procedures and equipment that have not been proven, and malfunction determination and reassessment in the event of a ventilation failure will not provide any additional benefit for workers or their employers."
And a fire department's representative, Raymond Lussier, commented that the proposed standard would allow contractors to use municipal responders for rescue, but those responders "will not be any more trained, available, equipped or even willing to provide these services in spaces that can change daily" than was the case when OSHA's general industry confined spaces standard, 1910.146, was enacted. Then and now, municipal fire and rescue were not considered a good option, Lussier said.