UPDATED on 9/19/2015 @ 12:25 pm – As I sit here in my truck eating lunch, I thought I would update this posting after having a very nice and interesting phone call with some of the nice and very helpful folks @ OSHA. Please see the bottom of this post for more info for those of you in General Industry as to how the new CONSTRUCTION CONFINED SPACE standard will indeed impact us.
On May 4, 2015, OSHA issued a new standard for construction work in confined spaces, which went into effect on August 3, 2015. Although you will want to refer to the “Temporary Enforcement Policy for Construction Work in Confined Spaces” for how OSHA will enforce this new rule, the rule, for the most part, is in place, and we should be implementing it. So the questions I have come across in this first month of compliance are:
- Does 1926.1201 apply to a contractor entering a vessel at a PSM covered process or does 1910.146 apply?
- When a facility is installing a new vessel(s), does the installation work involving entry into the vessel (e.g. to install agitator) fall under 1926.1201 or 1910.146?
Does 1926.1201 apply to a contractor entering a vessel at a PSM covered process or does 1910.146 apply?
The work the contractor was doing inside the vessel fell under the definition of “construction work” found in 1910.12(b).
“Construction work” means work for construction, alteration, and/or repair, including painting and decorating. See discussion of these terms in 1926.13 of this title.
The new standard mentions “Confined Spaces” that one would find in a manufacturing/chemical plant and not necessarily on a traditional “construction site”. I have highlighted some of the more obvious spaces that I have had at my facilities over my career and would be very surprised to see some of these spaces on a “construction site”. So is OSHA implying that a contractor installing a “bag house” at a manufacturing facility is a “construction site” and those contractors hanging the socks inside the baghouse would have to follow 1926.1201 vs. 1910.146?
Note to paragraph (a). Examples of locations where confined spaces may occur include, but are not limited to, the following: Bins; boilers; pits (such as elevator, escalator, pump, valve or other equipment); manholes (such as sewer, storm drain, electrical, communication, or other utility); tanks (such as fuel, chemical, water, or other liquid, solid or gas); incinerators; scrubbers; concrete pier columns; sewers; transformer vaults; heating, ventilation, and air-conditioning (HVAC) ducts; storm drains; water mains; precast concrete and other pre-formed manhole units; drilled shafts; enclosed beams; vessels; digesters; lift stations; cesspools; silos; air receivers; sludge gates; air preheaters; step up transformers; turbines; chillers; bag houses; and/or mixers/reactors.
This leads me to the next question, has OSHA explained when or how we switch from 1926 to 1910.146 when a new plant is being built?
When a facility is installing a new vessel(s), does the installation work involving entry into the vessel (e.g. to install the agitator) fall under 1926.1201 or 1910.146? At some point the vessel will fall under 1910.146, but then again if it is a contractor doing “construction work” within it, could it not revert back to 1926.1201???
The OSHA FAQ is clear as mud…
How do I know whether to follow the general industry or construction confined space rule?
If you are doing construction work – such as building a new structure or upgrading an old one – then you must follow the construction confined space rule.
Rest assured that if the entry is meeting either standard, the workers are protected and that is by far our utmost concern! But I have had a few occasions where an OSHA CSHO pulls out his/her 1926 standards and begins to ask questions about why the workers are not following those standards and instead are following GI standards when the work they are doing is clearly “construction work”. So this is more a TECHNICAL question about the applicability of which standard to follow and when, but rest assured OSHA’s position is that the NEW CONSTRUCTION STANDARD on CONFINED SPACES is the more “safe” standard and they expect it to be used when any of the work within the space is “construction work”. Now I am NOT an attorney, I just slept in a Holiday Inn Express the last four nights (humor folks!) but I would have to guess that if OSHA found us FULLY complying with 1910.146 and they found “construction work” taking place in the space that this would have to be a “De minimis” citation, especially if our program exceeds the minimum requirements of 1910.146 (e.g. we are continuously monitoring the atmosphere). But like I said, this is for YOUR legal team to establish – NOT ME so do not point to this article as a defense if your facility gets popped!
I have received some “unofficial” guidance from friends within OSHA and former CSHO’s. My position was correct… the NEW CONSTRUCTION STANDARD on CONFINED SPACES will impact general industry workplaces and thus the GI workplace safety program will need to be revised to meet the NEW CONSTRUCTION STANDARD on CONFINED SPACES for those entries done for the pupose of construction work as defined by 1910.12(b).
SAFTENG members can see my previous article where I compared the NEW CONSTRUCTION STANDARD on CONFINED SPACES to 1910.146 NEW CONSTRUCTION STANDARD on CONFINED SPACES to 1910.146 to learn how our programs will need to be revised to comply. ALSO for those of you working at a PSM/RMP covered facility, I would suggest that this revision to our PRCS Entry Program go through a Management of Change (MOC) to ensure we have the right set of eyes looking over the revisions and training is scoped out to ensure all that need to be trained are trained and nothing falls thru the cracks.
NEW INFO as of 9/18/15:
In my discussion with some OSHA personnel, they pointed me to this FAQ, which I missed yesterday…
What standard should I follow if my workers are doing construction AND general industry work in confined spaces?
An employer whose workers are engaged in both construction and general industry work in confined spaces will meet OSHA requirements if that employer meets the requirements of 29 CFR 1926 Subpart AA – Confined Spaces in Construction.
To put it bluntly, if work inside the space is construction work AND general industry work (e.g., a contractor doing “construction work” AND our maintenance personnel doing “maintenance work”), then the entries MUST be done under 29 CFR 1926 Subpart AA – Confined Spaces in Construction and NOT 1910.146. We even discussed work that is done by OUR in-house maintenance group inside our PRCS. If that work falls under the “construction work” definition, our maintenance employees would be required to enter the space using 29 CFR 1926 Subpart AA – Confined Spaces in Construction.
If the work is a“Replacement In Kind” (and it does not include a lot of structural work to complete the replacement) as we use the term in PSM/RMP then OSHA considers this work “maintenance,” and 1910 standards apply. However, if the work involved a MOC change (e.g., adding an agitator blade, changing to a bigger blade, etc.), this work would be considered “construction work,” and the entry into the vessel to do this agitator work would need to be done using 29 CFR 1926 Subpart AA – Confined Spaces in Construction. We discussed this very scenario on our call this afternoon!
Think of how many times we have had multiple entries taking place in the same space (e.g., NDT/NDE contractor doing inspections, workers making repairs identified by the inspectors, and workers making changes to the space to improve production/quality/etc.). Till now, we have required everyone to enter using our PRCS entry program, which was 100% based on 1910.146 – now it is not so easy!!!!!
When I wrote my article back in July comparing the two standards, I never envisioned that a safety manager at a General Industry workplace would need to REVISE his/her program to comply with the new REQUIREMENTS in the construction standard; I was merely offering the new requirements as a great way to shore up our current program as I believe the new construction standard for confined spaces is so much better than 1910.146.
This discussion goes back to the same issues we continue to fight regarding fall protection and at what height is it required (i.e. 4′ vs. 6′). The same argument applies here, as it depends on the type of work the worker(s) is engaged in. Although the OSHA official I spoke with did NOT use the term “Replacement In Kind,” he/she certainly framed our discussion in this manner, as you will see this in the LOI he/she pointed me to:
Here is the parts of the LOI referenced above that are critical to this discussion:
(NOTE: Underlined Emphasis added by me – NOT OSHA)
Question (1): Do the following factors bear on whether work will be considered maintenance or construction:
(a) the physical condition of the equipment/structure being worked on (whether it may be reused or if deterioration would require its complete removal);
(b) replacement was performed to supplant deteriorated sections rather than to prevent the current parts from reaching a state of failure;
(c) the physical characteristics (height, width, weight, material) of the equipment/structure;
(d) the work is performed by an outside contractor rather than by a steel mill’s own employees;
(e) the work was performed during an annually scheduled work outage; and
(f) whether steel tanks used in a mill plating line and the structural steel used to support the plating line, equipment and floor decking, are categorized as either plant equipment or plant structure?
Answer:
In our August 11, 1994 memorandum for Regional Administrators, our February 1, 1999 letter to Mr. Tindell, and our May 11, 1999 letter to Mr. Ellis, we discussed and gave examples of the difference between maintenance and construction work.
OSHA’s regulations define construction work as “construction, alteration, and/or repair, including painting and decorating.”1 Section 1910.12(a) further provides that OSHA’s construction industry standards apply “to every employment and place of employment of every employee engaged in construction work.”2
Unlike construction work, there is no regulatory definition for “maintenance,” nor a specified distinction between terms such as “maintenance,” “repair,” or “refurbishment.” “Maintenance activities” have commonly been defined in dictionaries as making or keeping a structure, fixture or foundation (substrates) in proper condition in a routine, scheduled, or anticipated fashion. In OSHA’s directive on the general industry confined space standard, the Agency stated that maintenance involves “keeping equipment working in its existing state, i.e., preventing its failure or decline”3 [emphasis added by OSHA]. In applying this concept to the broad range of circumstances encountered in the construction industry, the factors discussed in the Tindell and Ellis letters and those discussed below must also be considered.
Construction work is NOT limited to new construction, but can include the repair of existing facilities or the replacement of structures and their components. For example, the replacement of one utility pole with a new, identical pole would be maintenance; however, if it were replaced with an improved pole or equipment, it would be considered construction.
In addition to the concept of one-for-one replacement versus improvement, the scale and complexity of the project are relevant. This takes into consideration concepts such as the amount of time and material required to complete the job. For example, if a steel beam in a building had deteriorated and was to be replaced by a new, but identical beam, the project would be considered a construction repair rather than maintenance because of the replacement project’s scale and complexity. Also, if a bridge was to be stripped and re-painted, that would be considered construction work even if the repainting were done on a scheduled basis. Replacement of a section of limestone cladding on a building, though not necessarily a large project in terms of scale, would typically be considered construction because it is a complex task in view of the steps involved and tools and equipment needed to do the work.
As discussed in the Tindell letter, the physical size of an object that is being worked on can be a factor if, because of its size, the process of removal and replacement involves significantly altering the structure or equipment that the component is within. This is another example of how the project scale and complexity is relevant – if the process of removal and replacement is a large-scale project, then it is likely to be construction. It is not the classification of what you are working on as “equipment” or “structure” that is significant, but rather the project’s scale and complexity.
Characteristics such as the material of the component are sometimes relevant in determining what specific standards apply, although by themselves such characteristics are unlikely to be an important factor in deciding whether an activity is considered maintenance or construction.
Whether the work is performed in-house or by an outside contractor is not a factor; it is NOT the personnel which will determine whether work will be considered maintenance or construction, but the work itself.
Work that is anticipated, routine and done on a regularly scheduled/periodic basis to help maintain the original condition of the component, will be suggestive of “maintenance,” although this must be considered in light of the scale of the project. For example, whether a tank in your steel mill is repaired and reused versus replaced is not determinative. If the work consists of repair as opposed to replacement, a key factor is whether those repairs are extensive. If the work consists of removal and replacement of equipment, an important factor is whether the new equipment is of an improved type. For both the cases of repair and replacement, a key factor is the scale of the project, including the extent to which other equipment or structures must be moved, altered, etc. as discussed above.
Note that, though the work may itself occur during a scheduled “maintenance outage,” this alone is NOT enough to qualify it as maintenance. For example, it is possible that the work may be construction, but scheduled during a maintenance outage to minimize lost productivity.4
Question (2): Based on the characteristics described in Question (1), would the removal and replacement of steel tanks and the removal and replacement of the structural steel components be considered maintenance or construction under 29 CFR Part 1926?
Answer:
Based on the information you have provided, the complete replacement of entire tanks and sections of structural support are large-scale projects, both with respect to time and material. In addition, you specifically state that the work being performed on both the steel tanks and the structural steel supports was undertaken because both had already reached a state of failure. The act of completely replacing the deteriorated tanks and support structures is an activity that goes beyond mere “refurbishment” and requires constructing replacements for structures (tanks) and plant components (structural supports). Also, unlike the scenario of replacing a single utility pole in a system of hundreds of poles, the tank replacements you describe form a significant portion of the system involved — a system that will be significantly disrupted due to the work. Taking these factors together, the act of replacing the tanks and supports would be considered construction work under 29 CFR 1926.32(g) and 1910.12(b).5
1 29 CFR 1926.32(g) and 1910.12(b).
2 Also relevant to the distinction between construction and maintenance are the Davis-Bacon Act regulations. In essence, 29 CFR 5.2(i) defines construction work as “generally includ[ing] construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work * * *.”
3 CPL 02-00-100 [formerly CPL 2.100] – Application of the Permit-Required Confined Spaces (PRCS) Standards, 29 CFR 1910.146.
4 The factors mentioned above are not intended to constitute an exhaustive list of the considerations that are involved in distinguishing construction from maintenance.
