(Updated below (5/1/2015))
There’s a lot of griping in Washington DC about businesses being burdened by too many federal regulations. The gripers and their friends on Capitol Hill have introduced legislation with snappy names, such as the SCRUB Act (Searching for and Cutting Regulations that are Unnecessarily Burdensome), the REINS Act (Regulations from the Executive in Need of Scrutiny) and the ALERT Act (All Economic Regulations are Transparent). But there's no doubt these laws are designed to put the skids on the rulemaking process. For some agencies, including OSHA, they’ve already been riding the regulatory brake for the last couple of decades. There hasn't been a gusher of new regulations. OSHA regulations, in particular, take far too long to be developed and put in place.
Thankfully, one OSHA regulation that’s been in the pipeline for decades---yes, decades---may finally be issued. The White House’s Office of Information and Regulatory Affairs (OIRA) completed its review on April 3 of a final OSHA regulation to protect construction workers from confined space hazards. Vessels, tanks, vents and other small spaces can be deadly hazards for workers because they can be oxygen-deficient, explosive, or configured in such a way that a worker could get trapped. It really has taken decades to get us to this point. Here's some of the long history:
It was 1975 when OSHA first indicated the need for a regulation to address confined space hazards for workers in all industries, including construction. In a 1975 advanced notice of proposed rulemaking (ANPRM), OSHA noted it had:
“received several petitions and other recommendations concerning the need for a revision of the existing standards for work in confined spaces, such as tanks, boilers, sewer vaults, manholes, pressure vessels, trenches, and other confined compartments, or for a standard for work in these environments applicable to all industries.”
In March 1980 in a follow-up ANPRM, the agency said:
“Based on information available to the Agency, OSHA believes that the hazards of work in confined spaces are also significant in the construction industry. Therefore, OSHA is developing a proposal to revise its existing standards in order to effectively cover hazards connected with these activities in construction.”
During May 1980, the agency held public hearings in Houston, Denver and Washington DC to receive input on the need for the standard and how it could be designed to meet workers' and employers' needs. Then came the Reagan Administration. Work at OSHA on a confined space regulation went dormant.
The proposal was resurrected during the George H.W. Bush Administration. In June 1989---14 years after OSHA's first ANPRM on the topic and nine years after those public hearings, the agency formally proposed a rule to address confined space hazards for workers. Among other data, the agency reported that between 1985 and 1990 there were at least 63 fatalities and nearly 6,000 lost-work day incidents related to confined space environments.
OSHA's proposed rule did not, however, apply to the construction industry. OSHA asserted:
"...confined space standards for agriculture, construction, and shipyard work should be addressed separately so that the Agency can focus on aspects of permit space safety that are specifically appropriate for these areas." (4470)
That decision was controversial and not well received by some. One (unnamed) commenter said:
"I find it a grave error not to include construction in the proposed rulemaking. As your statistics succinctly point out, between 1974 and 1977, 276 confined space accidents claimed 234 lives and injured an additional 193 individuals. ...Based upon these figures, why would you want to exclude construction?"
Three and one-half years later, in January 1993, OSHA's final rule on confined space for general industry workers was issued. It happened just days before the Clinton Administration was poised to take office. Both industry and labor groups challenged the OSHA rule. Some argued it went too far, others argued it didn't go far enough. By September 1994, all the objections had been addressed through settlement agreements.
In OSHA's settlement agreement with the United Steelworkers Union, the agency made a big promise:
OSHA agreed to issue a confined space standard that would apply to workers in the construction industry.
The agreement did not, however, give OSHA a deadline for completing the task.
Here's what has transpired in the 21 years since to fulfill that promise:
- In February 1994, OSHA asked its Advisory Committee for Construction Safety and Health (ACCSH) to provide feedback on a draft proposed standard addressing the hazards of confined spaces for construction workers. ACCSH formed a working group which ultimately develop a draft proposed standard. In late 1996, ACCSH recommended that OSHA use their draft standard as the agency's proposed rule.
- OSHA determined that the ACCSH document was not wholly appropriate as a proposed rule, in particular for small construction firms.
- OSHA held public hearings in October 2000 to receive feedback from the construction industry on draft provisions of the proposed rule.
- In late 2003, OSHA convened a panel of small business representatives (as required by the Small Business Regulatory Enforcement Fairness Act (SBREFA)) to receive formal comments on its draft proposed rule.
- Between 2004 and 2007, OSHA's semi-annual regulatory agendas indicated that a proposed rule on this topic was forthcoming. In the fall of 2004, the agency said the public could expect it in March 2005. In Spring 2005, the agency said the public could expect it in December 2005, etc., etc.
- OSHA submitted the proposed rule to the White House's OIRA in July 2007. OIRA completed its review and returned the proposal to OSHA in October 2007. The proposal was published by OSHA in November 2007.
- OSHA held public hearings on the proposal and the comment period closed in October 2008.
- In 2010, the Obama Administration indicated that work on the final rule was nearly complete. OSHA's Fall 2010 regulatory agenda indicated the final rule would likely be published by November 2011. Between late 2010 and late 2014, the agency suggested the final rule was forthcoming. In the fall of 2011, the agency said the public could expect it in June 2012. In the spring of 2013, the agency said the public could expect it in December 2013, etc., etc.
- In November 2014, OSHA submitted its draft final rule to OIRA for review. OIRA completed its review after about 120 days and returned the final rule to OSHA on April 3, 2015.
OSHA is likely putting finishing touches on the final rule and preparing to release it in the weeks ahead. Once it is issued, I won't be surprised if I hear complaints about it from certain lawmakers and those who oppose federal regulations. They may claim it's an example of Obama's avalanche of regulations, but it's much more an example of something else: without a binding deadline, it can take OSHA decades to issue a new worker safety regulation.
(Update (5/1/2015): OSHA announced today the publication of its final rule to protect construction workers from confined space hazards. The agency estimates the rule will prevent 6 fatalities and 812 serious injuries per year. The estimated annual economic benefit of the rule is $94 million and its estimated annual cost to employers is about $60 million.
In 2010 I wrote a paper titled "Ethical Issues in Confined Spaces," in which I identified a construction project where I was in charge of the safety and health of contractors working the project and had to deal with confined spaces. Here is the abstract of that paper:
In March of 2008, the author became the EHS Manager for a large construction project. Due to a number of constraints, the project has a subfloor area, or “Level Zero,” which is very large, and has multiple lines, equipment placements, and other obstructions in it. Workers need to work in Level Zero, but there are no provisions for movement there. This paper will explore the ethical implications of EHS in an environment which started out as a construction site, and will end up as a manufacturing plant. The construction code, CFR1926.21-23, has one set of requirements for construction workers who enter these spaces, and the general industry code, CFR1910.146 has quite another. When the two types of workforces meet, and when even the permit-required confined spaces code does not protect workers, then there are ethical issues to deal with. This paper explores these issues and the shortcomings of both the construction code and general industry when addressing confined spaces hazards."
Luckily, I live in Oregon, and Oregon OSHA decided to issue these rules on their own prior to the Federal OSHA rules. "(14) Effective dates. For work covered under Division 3, Construction, these rules are effective as of March 1, 2015."
Without this rule, which as noted is literally decades in the making, two different workforces are treated differently in the same exact space, which is ethically intolerable under the American Board of Industrial Hygiene (ABIH). Here as a statement from their Code of Ethics: "Follow appropriate health and safety procedures, in the course of performing professional duties, to protect clients, employers, employees and the public from conditions where injury and damage are reasonably foreseeable."
The Board of Certified Safety Professionals has a similar statement in its Code of Ethics: "HOLD paramount the safety and health of people, the protection of the environment and protection of property in the performance of professional duties and exercise their obligation to advise employers, clients, employees, the public, and appropriate
authorities of danger and unacceptable risks to
people, the environment, or property.
Unfortunately, for decades, the permit-required confined spaces rules have not protected all employees, and have presented these unacceptable risks to construction workers.
John C. Ratliff, CSP, CIH, MSPH