[Federal Register Volume 86, Number 11 (Tuesday, January 19, 2021)]
[Notices]
[Pages 5253-5263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01110]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2019-0008]
Ballard Marine Construction; Application for Permanent Variance
and Interim Order; Grant of Interim Order
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice; request for comments.
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SUMMARY: In this notice, OSHA announces Ballard Marine Construction's
application for a Permanent Variance and Interim Order
from provisions of OSHA standards that regulate work in compressed air
environments and presents the agency's preliminary finding to grant the
Permanent Variance. OSHA also announces the granting of an Interim
Order. OSHA invites the public to submit comments on the variance
application to assist the agency in determining whether to grant the
applicant a Permanent Variance based on the conditions specified in
this application.
DATES: Submit comments, information, documents in response to this
notice, and request for a hearing on or before February 18, 2021. The
Interim Order described in this notice will become effective on January
19, 2021, and shall remain in effect until the completion of the
Suffolk County Outfall Tunnel, in West Babylon, New York or the Interim
Order is modified or revoked.
ADDRESSES:
Electronically: You may submit comments and attachments
electronically at: http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions online for submitting
comments.
Mail, hand delivery, express mail, messenger, or courier service:
When using this method, you must submit a copy of your comments and
attachments to the OSHA Docket Office, Docket No. OSHA-2019-0008,
Occupational Safety and Health Administration, U.S. Department of
Labor, Room N-3653, 200 Constitution Avenue NW, Washington, DC 20210;
telephone (202) 693-2350. OSHA's TTY number is (877) 889-5627. Please
note: While OSHA's docket office is continuing to accept and process
submissions by regular mail, due to the COVID-19 pandemic, the Docket
Office is closed to the public and not able to receive submissions to
the rulemaking record by express delivery, hand delivery and messenger
service.
Instructions: All submissions must include the agency name and OSHA
docket number (OSHA-2019-0008). All comments, including any personal
information you provide, are placed in the public docket without
change, and may be made available online at http://www.regulations.gov.
Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov or the OSHA Docket Office at
the above address. All documents in the docket (including this Federal
Register notice) are listed in the http://www.regulations.gov index;
however, some information (e.g., copyrighted material) is not publicly
available to read or download through the website. All submissions,
including copyrighted material, are available for inspection through
the OSHA Docket Office. You may also contact Kevin Robinson, Director
Office of Technical Programs and Coordination Activities (OTPCA) at the
below address.
FOR FURTHER INFORMATION CONTACT: Information regarding this notice is
available from the following sources:
Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office
of Communications, U.S. Department of Labor; telephone: (202) 693-1999;
email: meilinger.francis2@dol.gov.
General and technical information: Contact Mr. Kevin Robinson,
Director, Office of Technical Programs and Coordination Activities,
Directorate of Technical Support and Emergency Management, Occupational
Safety and Health Administration, U.S. Department of Labor; telephone:
(202) 693-2110; email: robinson.kevin@dol.gov.
Copies of this Federal Register notice. Electronic copies of this
Federal Register notice are available at http://www.regulations.gov.
This Federal Register notice, as well as news releases and other
relevant information, also are available at OSHA's web page at http://www.osha.gov.
Hearing Requests. According to 29 CFR 1905.15, hearing requests
must include: (1) A short and plain statement detailing how the
permanent variance would affect the requesting party; (2) a
specification of any statement or representation in the variance
application that the commenter denies, and a concise summary of the
evidence offered in support of each denial; and (3) any views or
arguments on any issue of fact or law presented in the variance
application.
SUPPLEMENTARY INFORMATION:
I. Notice of Application
OSHA's standards in subpart S of 29 CFR part 1926 govern
underground construction, caissons, cofferdams, and compressed air. On
January 2, 2019, Ballard Marine Construction (``Ballard'' or ``the
applicant''), 727 S. 27th Street, Washougal, Washington 98761,
submitted under Section 6(d) of the Occupational Safety and Health Act
of 1970 (the ``Act''), 29 U.S.C. 655, and 29 CFR 1905.11 an application
for a Permanent Variance from several provisions of the OSHA standard
that regulates work in compressed air, 1926.803 of subpart S, and an
Interim Order allowing it to proceed while OSHA considers the request
for a Permanent Variance (OSHA-2019-0008-0001). This notice addresses
Ballard's application for a Permanent Variance and Interim Order for
construction of the Suffolk County Outfall Tunnel Project in West
Babylon, New York only and is not applicable to future Ballard
tunneling projects.
Specifically, this notice addresses Ballard's application for a
Permanent Variance and Interim Order from the provisions of the
standard that: (1) Require the use of the decompression values
specified in decompression tables in Appendix A of subpart S (29 CFR
1926.803(f)(1)); and (2) require the use of automated operational
controls and a special decompression chamber (29 CFR
1926.803(g)(1)(iii) and (xvii), respectively).
OSHA has previously approved nearly identical provisions when
granting several other very similar variances, as discussed in more
detail in Section II. OSHA preliminarily concludes that the proposed
variance is appropriate, grants an Interim Order temporarily allowing
the proposed activity, and seeks comment on the proposed variance.
A. Background
Ballard is a contractor that works on complex tunnel projects using
innovations in tunnel-excavation methods. The applicant's workers
engage in the construction of tunnels using advanced shielded
mechanical excavation techniques in conjunction with an earth pressure
balanced micro-tunnel boring machine (EPBMTBM). Using shielded
mechanical excavation techniques, in conjunction with precast concrete
tunnel liners and backfill grout, EPBMTBMs provide methods to achieve
the face pressures required to maintain a stabilized tunnel face
through various geologies, and isolate that pressure to the forward
section (the excavation working chamber) of the EPBMTBM.
Ballard asserts that generally it bores tunnels using an EPBMTBM at
levels below the water table through soft soils. EPBMTBMs are capable
of maintaining pressure at the tunnel face and stabilizing existing
geological conditions through the controlled use of propel cylinders, a
mechanically driven cutter head, bulkheads within a protective shield,
ground-treatment foam, and a screw conveyor that moves excavated
material from the working chamber. The forward-most portion of the
EPBMTBM is the working chamber, and this chamber is the only
pressurized segment of the EPBMTBM. Within the shield, the working
chamber consists of two sections: the forward working chamber and the
staging chamber. The forward working chamber is
immediately behind the cutter head and tunnel face. The staging chamber
is behind the forward working chamber and between the manlock door and
the entry door to the forward working chamber.
The EPBMTBM has twin manlocks located between the pressurized
working chamber and the non-pressurized portion of the machine. Each
manlock has two compartments. This configuration allows workers to
access the manlocks for compression and decompression, and medical
personnel to access the manlocks if required in an emergency.
The applicant will pressurize the working chamber to the level
required to maintain a stable tunnel face, which for this project
Ballard estimates will be up to a pressure not exceeding 30 pounds per
square in gauge (p.s.i.g.). Pressure in the staging chamber ranges from
atmospheric (no increased pressure) to a maximum pressure equal to the
pressure in the forward excavation working chamber.
Ballard employs specially trained personnel for the construction of
the tunnel. Ballard asserts that to keep the machinery working
effectively, these workers must periodically enter the excavation
working chamber of the EPBMTBM to perform hyperbaric interventions
during which workers would be exposed to air pressures up to 30
p.s.i.g., which does not exceed the maximum pressure specified by the
existing OSHA standard at 29 CFR 1926.803(e)(5). These interventions
consist of conducting inspections or maintenance work on the cutter-
head structure and cutting tools of the EPBMTBM, such as changing
replaceable cutting tools and disposable wear bars, and, in rare cases,
repairing structural damage to the cutter head. These interventions are
the only time that workers are exposed to compressed air. Interventions
in the excavation working chamber (the pressurized portion of the
EPBMTBM) take place only after halting tunnel excavation and preparing
the machine and crew for an intervention.
During interventions, workers enter the excavation working chamber
through one of the twin manlocks that open into the staging chamber. To
reach the forward part of the working chamber, workers pass through a
door in a bulkhead that separates the staging chamber from the forward
excavation working chamber. The manlocks and the excavation working
chamber are designed to accommodate three people, which is the maximum
crew size allowed under the proposed variance (Ballard only plans to
employ a crew of two people for these activities). When the required
decompression times are greater than work times, the twin manlocks
allow for crew rotation. During crew rotation, one crew can be
compressing or decompressing while the second crew is working.
Therefore, the working crew always has an unoccupied manlock available
for use.
Ballard asserts that these innovations in tunnel excavation have
greatly reduced worker exposure to hazards of pressurized air work
because they have eliminated the need to pressurize the entire tunnel
for the project and thereby reduced the number of workers exposed, as
well as the total duration of exposure, to hyperbaric pressure during
tunnel construction. These advances in technology have substantially
modified the methods used by the construction industry to excavate
subaqueous tunnels compared to the caisson work that was typical when
OSHA adopted the compressed-air standard for construction, 29 CFR
1926.803.
In addition to the reduced exposures resulting from the innovations
in tunnel-excavation methods, Ballard asserts that innovations in
hyperbaric medicine and technology improve the safety of decompression
from hyperbaric exposures. These procedures, however, would deviate
from the decompression process that OSHA requires for construction in
29 CFR 1926.803(f)(1) and the decompression tables in Appendix A of 29
CFR part 1926, subpart S. Nevertheless, according to Ballard, their use
of decompression protocols incorporating oxygen is more efficient,
effective, and safer for tunnel workers than compliance with the
decompression tables specified by the existing OSHA standard.
Ballard therefore believes its workers will be at least as safe
under its proposed alternatives as they would be under OSHA's existing
standard because of the reduction in the number of workers and duration
of hyperbaric exposures, improved application of hyperbaric medicine,
and the development of a project-specific Hyperbaric Operations Manual
(HOM) (OSHA-2019-0008-0002) that requires specialized medical support
and hyperbaric supervision to provide assistance to a team of specially
trained manlock attendants and hyperbaric or compressed-air workers
(CAWs).
Based on an initial review of Ballard's application for a Permanent
Variance and Interim Order for the construction of the Suffolk County
Outfall Tunnel in West Babylon, New York, OSHA has preliminarily
determined that Ballard has proposed an alternative that would provide
a workplace at least as safe and healthful as that provided by OSHA's
existing standard.
II. The Variance Application
Pursuant to the requirements of OSHA's variance regulations, the
applicant certifies that it provided employee representatives of
affected workers with a copy of the variance application.\1\ The
applicant also certifies that it notified its workers of the variance
application by posting, at prominent locations where it normally posts
workplace notices, a summary of the application and information
specifying where the workers can examine a copy of the application. In
addition, the applicant informed its workers and their representatives
of their rights to petition the Assistant Secretary of Labor for
Occupational Safety and Health for a hearing on the variance
application.
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\1\ See the definition of ``Affected employee or worker'' in
section VI. D.
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A. OSHA History of Approval of Nearly Identical Variance Requests
OSHA previously approved several nearly identical variances
involving the same types of tunneling equipment used for similar
projects. OSHA notes that it granted four subaqueous tunnel
construction permanent variances from the same provisions of OSHA's
compressed-air standard (29 CFR 1926.803(f)(1), (g)(1)(iii), and
(g)(1)(xvii)) that are the subject of the present application: (1)
Impregilo, Healy, Parsons, Joint Venture (IHP JV) for the completion of
the Anacostia River Tunnel in Washington, DC, 80 FR 50652 (Aug. 20,
2015); (2) Traylor JV for the completion of the Blue Plains Tunnel in
Washington, DC, 80 FR 16440 (March 27, 2015); (3) Tully/OHL USA Joint
Venture for the completion of the New York Economic Development
Corporation's New York Siphon Tunnel project, 79 FR 29809 (May 23,
2014); and (4) Salini-Impregilo Joint Venture in Washington, DC, 85 FR
27767 (May 11, 2020). The proposed alternate conditions in this notice
are nearly identical to the alternate conditions of the previous
Permanent Variances.\2\ OSHA is not aware of any injuries or other
safety issues that arose from work
performed under these conditions in accordance with the previous
variances.
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\2\ Most of the other subaqueous tunnel construction variances
allowed further deviation from OSHA standards by permitting employee
exposures above 50 p.s.i.g. based on the composition of the soil and
the amount of water above the tunnel for various sections of those
projects. The current proposed variance includes substantively the
same safeguards as the variances that OSHA granted previously, even
though employees will only be exposed to pressures up to 30 p.s.i.g.
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B. Variance From Paragraph (f)(1) of 29 CFR 1926.803, Requirement to
Use OSHA Decompression Tables
OSHA's compressed-air standard for construction requires
decompression according to the decompression tables in Appendix A of 29
CFR part 1926, subpart S (see 29 CFR 1926.803(f)(1)). As an alternative
to the OSHA decompression tables, the applicant proposes to use newer
decompression schedules (the 1992 French Decompression Tables), which
rely on staged decompression, and to supplement breathing air used
during decompression with air or oxygen (as appropriate).\3\ The
applicant asserts decompression protocols using the 1992 French
Decompression Tables for air or oxygen as specified by the Suffolk
County Outfall Tunnel-specific HOM are safer for tunnel workers than
the decompression protocols specified in Appendix A of 29 CFR part
1926, subpart S. Accordingly, the applicant would commit to following
the decompression procedures described in its HOM, which would require
it to follow the 1992 French Decompression Tables to decompress
compressed-air workers (CAWs) after they exit the hyperbaric conditions
in the excavation working chamber.
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\3\ In 1992, the French Ministry of Labour replaced the 1974
French Decompression Tables with the 1992 French Decompression
Tables, which differ from OSHA's decompression tables in Appendix A
by using: (1) Staged decompression as opposed to continuous (linear)
decompression; (2) decompression tables based on air or both air and
pure oxygen; and (3) emergency tables when unexpected exposure times
occur (up to 30 minutes above the maximum allowed working time).
Source: J.C. Le Pechon, P. Barre, J.P. Baudi, F. Olivier, Compressed
Air Work--French Tables 1992--Operational Results. JCLP Hyperbarie
Paris, Centre Medical Subaquatique Interentreprise, Marseille:
Communication a l'EUBS, pp. 1-5 (September 1996) (see Ex. OSHA-2012-
0036-0005).
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Depending on the maximum working pressure and exposure times, the
1992 French Decompression Tables provide for air decompression with or
without oxygen. Ballard asserts that oxygen decompression has many
benefits, including (1) keeping the partial pressure of nitrogen in the
lungs as low as possible; (2) maintaining appropriate levels of
external pressure to reduce the formation of bubbles in the blood; (3)
removing nitrogen from the lungs and arterial blood and increasing the
rate of nitrogen elimination; (4) improving the quality of breathing
during decompression stops to diminish worker fatigue and to prevent
bone necrosis; (5) reducing decompression time by about 33 percent as
compared to air decompression; and (6) reducing inflammation.
In addition, Ballard has stated that a physician certified in
hyperbaric medicine will be required to manage the medical condition of
CAWs during hyperbaric exposures and decompression. The project-
specific HOM also requires a trained and experienced manlock attendant
to be present during hyperbaric exposures and decompression. This
manlock attendant, who will be a competent person with respect to
hyperbaric systems, is to operate the hyperbaric system to ensure
compliance with the specified decompression table. A intervention
supervisor (competent person), who is trained in hyperbaric operations,
procedures, and safety, directly oversees all hyperbaric interventions
and ensures that staff follow the procedures delineated in the HOM or
by the attending physician.
C. Variance From Paragraph (g)(1)(iii) of 29 CFR 1926.803,
Automatically Regulated Continuous Decompression
The applicant is applying for a Permanent Variance from the OSHA
standard at 29 CFR 1926.803(g)(1)(iii), which requires automatic
controls to regulate decompression. As noted above, the applicant is
committed to conducting the staged decompression according to the 1992
French Decompression Tables under the direct control of the trained
manlock attendant and under the oversight of the hyperbaric supervisor.
Breathing air under hyperbaric conditions increases the amount of
nitrogen gas dissolved in a CAW's tissues. The greater the hyperbaric
pressure under these conditions and the more time spent under the
increased pressure, the greater the amount of nitrogen gas dissolved in
the tissues. When the pressure decreases during decompression, tissues
release the dissolved nitrogen gas into the blood system, which then
carries the nitrogen gas to the lungs for elimination through
exhalation. Releasing hyperbaric pressure too rapidly during
decompression can increase the size of the bubbles formed by nitrogen
gas in the blood system, resulting in decompression illness (``DCI''),
commonly referred to as ``the bends.'' This description of the etiology
of DCI is consistent with current scientific theory and research on the
issue.\4\
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\4\ See infra note 6, discussing a 1985 NIOSH report on DCI.
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The 1992 French Decompression Tables proposed for use by the
applicant provide for stops during worker decompression (i.e., staged
decompression) to control the release of nitrogen gas from tissues into
the blood system. Studies show that staged decompression, in
combination with other features of the 1992 French Decompression Tables
such as the use of oxygen, result in a lower incidence of DCI than the
use of automatically regulated continuous decompression.\5\ In
addition, the applicant asserts that staged decompression administered
in accordance with its HOM is at least as effective as an automatic
controller in regulating the decompression process because the HOM
includes an intervention supervisor (a competent person experienced and
trained in hyperbaric operations, procedures, and safety) who directly
supervises all hyperbaric interventions and ensures that the manlock
attendant, who is a competent person in the manual control of
hyperbaric systems, follows the schedule specified in the decompression
tables, including stops.
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\5\ See, e.g., Eric Kindwall, Compressed Air Tunneling and
Caisson Work Decompression Procedures: Development, Problems, and
Solutions, 24(4) Undersea and Hyperbaric Medicine 337, 337-45
(1997). This article reported 60 treated cases of DCI among 4,168
exposures between 19 and 31 p.s.i.g. over a 51-week contract period,
for a DCI incidence of 1.44% for the decompression tables specified
by the OSHA standard. Dr. Kindwall notes that the use of
automatically regulated continuous decompression in the Washington
State safety standards for compressed-air work (from which OSHA
derived its decompression tables) was at the insistence of
contractors and the union, and against the advice of the expert who
calculated the decompression table and recommended using staged
decompression. Dr. Kindwall then states, ``Continuous decompression
is inefficient and wasteful. For example, if the last stage from 4
p.s.i.g. . . . to the surface took 1h, at least half the time is
spent at pressures less than 2 p.s.i.g. . . ., which provides less
and less meaningful bubble suppression . . . .'' In addition, Dr.
Kindwall addresses the continuous-decompression protocol in the OSHA
compressed-air standard for construction, noting that ``[a]side from
the tables for saturation diving to deep depths, no other widely
used or officially approved diving decompression tables use straight
line, continuous decompressions at varying rates. Stage
decompression is usually the rule, since it is simpler to control.''
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D. Variance From Paragraph (g)(1)(xvii) of 29 CFR 1926.803, Requirement
of Special Decompression Chamber
The OSHA compressed-air standard for construction requires
employers to use a special decompression chamber of sufficient size to
accommodate all CAWs being decompressed at the end of the shift when
total decompression time exceeds 75 minutes (see 29 CFR
1926.803(g)(1)(xvii)). Use of the special decompression chamber enables
CAWs to move about and flex their joints to prevent neuromuscular
problems during decompression.
The applicant proposes that it be permitted to rely on the manlocks
and staging chamber in lieu of adding a separate, special decompression
chamber. Because only a few workers out of the entire crew are exposed
to hyperbaric pressure, the manlocks (which, as noted earlier, connect
directly to the working chamber) and the staging chamber are of
sufficient size to accommodate all of the exposed workers during
decompression. The applicant uses the existing manlocks, each of which
adequately accommodates a three-member crew for this purpose when
decompression lasts up to 75 minutes. Under Ballard's application, only
two crew members would have to decompress at the same time. When
decompression exceeds 75 minutes, crews can open the door connecting
the two compartments in each manlock (during decompression stops) or
exit the manlock and move into the staging chamber where additional
space is available. The applicant asserts that this alternative
arrangement is at least as effective as a special decompression chamber
in that it has sufficient space for all the CAWs at the end of a shift
and enables the CAWs to move about and flex their joints to prevent
neuromuscular problems.
III. Agency Preliminary Determinations
After reviewing the proposed alternatives OSHA has preliminarily
determined that collectively the applicant's proposed alternatives,
subject to the conditions in the request and imposed by this Interim
Order, provide measures that are as safe and healthful as those
required by the cited OSHA standard addressed in section II of this
document.
In addition, OSHA has preliminarily determined that each of the
following alternatives are at least as effective as the specified OSHA
requirements:
29 CFR 1926.803(f)(1), Requirement to Use OSHA Decompression Tables.
Ballard has proposed to implement equally effective alternative
measures to the requirement in 29 CFR 1926.803(f)(1) for compliance
with OSHA's decompression tables. The HOM specifies the procedures and
personnel qualifications for performing work safely during the
compression and decompression phases of interventions. The HOM also
specifies the use of the 1992 French Decompression Tables. Depending on
the maximum working pressure and exposure times during the
interventions, these tables provide for decompression using air, pure
oxygen, or a combination of air and oxygen. The decompression tables
also include delays or stops for various time intervals at different
pressure levels during the transition to atmospheric pressure (i.e.,
staged decompression). In all cases, a physician certified in
hyperbaric medicine will manage the medical condition of CAWs during
decompression. In addition, a trained and experienced manlock
attendant, experienced in recognizing decompression sickness or
illnesses and injuries, will be present. Of key importance, a
hyperbaric supervisor (competent person), trained in hyperbaric
operations, procedures, and safety, will directly supervise all
hyperbaric operations to ensure compliance with the procedures
delineated in the project-specific HOM or by the attending physician.
As it did when granting the four previous variances to IHP JV,
Traylor JV, Tully JV, and Salini-Impregilo, OSHA conducted a review of
the scientific literature and concluded that the alternative
decompression method (i.e., the 1992 French Decompression Tables)
Ballard proposes would be at least as safe as the decompression tables
specified by OSHA when applied by trained medical personnel under the
conditions that would be imposed by the proposed variance.
Some of the literature concluded that decompression performed in
accordance with these tables resulted in a lower occurrence of DCI than
decompression conducted in accordance with the decompression tables
specified by the standard.\6\ For example, H. L. Anderson studied the
occurrence of DCI at maximum hyperbaric pressures ranging from 4
p.s.i.g. to 43 p.s.i.g. during construction of the Great Belt Tunnel in
Denmark (1992-1996).\7\ This project used the 1992 French Decompression
Tables to decompress the workers during part of the construction.
Anderson observed 6 DCI cases out of 7,220 decompression events, and
reported that switching to the 1992 French Decompression tables reduced
the DCI incidence to 0.08% compared to a previous incidence rate of
0.14%.
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\6\ In 1985, the National Institute for Occupational Safety and
Health (NIOSH) published a report entitled ``Criteria for Interim
Decompression Tables for Caisson and Tunnel Workers''; this report
reviewed studies of DCI and other hyperbaric-related injuries
resulting from use of OSHA's tables. This report is available on
NIOSH's website: https://www.cdc.gov/niosh/topics/decompression/default.html.
\7\ H.L. Anderson HL, Decompression sickness during construction
of the Great Belt tunnel, Denmark, 29(3) Undersea and Hyperbaric
Medicine 172, 172-88 (2002).
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OSHA found no studies in which the DCI incidence reported for the
1992 French Decompression Tables were higher than the DCI incidence
reported for the OSHA decompression tables.\8\
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\8\ J.C. Le P[eacute]chon, P. Barre, J.P. Baud, F. Ollivier,
Compressed Air Work--French Tables 1992--Operational Results, JCLP
Hyperbarie Paris, Centre Medical Subaquatique Interentreprise,
Marseille: Communication a l'EUBS, pp. 1-5 (September 1996) (see Ex.
OSHA-2012-0036-0005).
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OSHA's experience with the previous four variances, which all
incorporated nearly identical decompression plans and did not result in
safety issues, also provides evidence that the alternative procedure as
a whole is at least as effective for this type of tunneling project as
compliance with OSHA's decompression tables. The experience of State
Plans \9\ that either granted variances (Nevada, Oregon and Washington)
\10\ or promulgated a standard (California) \11\ for hyperbaric
exposures occurring during similar subaqueous tunnel-construction work,
provide additional evidence of the effectiveness of this alternative
procedure.
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\9\ Under Section 18 of the OSH Act, Congress expressly provides
that States and U.S. territories may adopt, with Federal approval, a
plan for the development and enforcement of occupational safety and
health standards. OSHA refers to such States and territories as
``State Plan States.'' Occupational safety and health standards
developed by State Plan States must be at least as effective in
providing safe and healthful employment and places of employment as
the Federal standards. See 29 U.S.C. 667.
\10\ These state variances are available in the docket for the
2015 Traylor JV variance: Exs. OSHA-2012-0035-0006 (Nevada), OSHA-
2012-0035-0005 (Oregon), and OSHA-2012-0035-0004 (Washington).
\11\ See California Code of Regulations, Title 8, Subchapter 7,
Group 26, Article 154, available at https://www.dir.ca.gov/title8/sb7g26a154.html.
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29 CFR 1926.803(g)(1)(iii), Automatically Regulated Continuous
Decompression
Ballard developed, and has proposed to implement, an equally
effective alternative to 29 CFR 1926.803(g)(1)(iii), which requires the
use of automatic controllers that continuously decrease pressure to
achieve decompression in accordance with the tables specified by the
standard. The applicant's alternative includes using the 1992 French
Decompression Tables for guiding staged decompression to achieve lower
occurrences of DCI, using a trained and competent attendant for
implementing appropriate hyperbaric entry and exit procedures, and
providing a competent hyperbaric supervisor and attending physician
certified in hyperbaric medicine, to oversee all hyperbaric operations.
In reaching this preliminary conclusion, OSHA again notes the
experience of previous, nearly identical
approved tunneling variances, the experiences of State Plan states, and
a review of the literature and other information noted earlier.
29 CFR 1926.803(g)(1)(xvii), Requirement of Special Decompression
Chamber
Ballard developed, and proposed to implement, an alternative that
is at least as effective as the use of the special decompression
chamber required by 29 CFR 1926.803(g)(1)(xvii). The EPBMTBM's manlock
and excavation working chamber appear to satisfy most of the conditions
of the special decompression chamber, including that they provide
sufficient space for the maximum crew of three CAWs to stand up and
move around. While the alternative does not indicate that their
chambers would be able to safely accommodate decompression times up to
360 minutes, Ballard addressed this issue in correspondence with OSHA
and explained how their process is at least as effective as OSHA's
requirement, which was designed to accommodate a different process:
With the relatively low pressure expected during hyperbaric
interventions, the decompression process with oxygen (French tables)
proposed could never reach this [360 minute] duration. The maximum
decompression duration at 30 psi (2.07 bar) is 121 minutes.
(Justin Costello email August 11, 2020) (OSHA-2019-0008-0003). Ballard
later added that their decompression chamber is fully capable of
operating for much longer than the necessary 121 minutes:
The manlock where decompression occurs is capable of continuous
operation, 24 hours per day for multiple days at a time. Operators of
the manlock change shifts at the control station.
(Justin Costello email November 25, 2020) (OSHA-2019-0008-0004).
Therefore, again noting OSHA's previous experience with nearly
identical variances including the same alternative, OSHA preliminarily
determined that the EPBMTBM's manlock and working chamber function at
least as effectively as the special decompression chamber required by
the standard.
Pursuant to section 6(d) of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 655), and based on the record discussed above, the
agency preliminarily finds that when the employer complies with the
conditions of this Interim Order, the working conditions of the
employer's workers would be at least as safe and healthful as if the
employer complied with the working conditions specified by paragraphs
29 CFR 1926.803(f)(1), (g)(1)(iii), and (g)(1)(xvii).
IV. Grant of Interim Order, Proposal for Permanent Variance, and
Request for Comment
OSHA announces the decision to grant an Interim Order allowing
Ballard's CAWs to perform interventions in hyperbaric conditions not
exceeding 30 p.s.i.g. during the Suffolk County Outfall Tunnel, subject
to the conditions that follow in this document. This Interim Order will
remain in effect until completion of the Suffolk County Outfall Tunnel
or until the agency modifies or revokes the Interim Order or makes a
decision on Ballard's application for a Permanent Variance. During the
period starting with the publication of this notice until completion of
the Suffolk County Outfall Tunnel, or until the agency modifies or
revokes the Interim Order or makes a decision on its application for a
Permanent Variance, the applicant is required to comply fully with the
conditions of the Interim Order as an alternative to complying with the
following requirements of 29 CFR 1926.803 (``the standard'') that:
1. Require the use of decompression values specified by the
decompression tables in Appendix A of the compressed-air standard (29
CFR 1926.803(f)(1));
2. Require the use of automated operational controls (29 CFR
1926.803(g)(1)(iii)); and
3. Require the use of a special decompression chamber (29 CFR
1926.803(g)(1)(xvii)).
In order to avail itself of the Interim Order, Ballard must: (1)
comply with the conditions listed in the Interim Order for the period
starting with the grant of the Interim Order and ending with Ballard's
completion of the Suffolk County Outfall Tunnel (or until the agency
modifies or revokes the Interim Order or makes a decision on its
application for a Permanent Variance); (2) comply fully with all other
applicable provisions of 29 CFR part 1926; and (3) provide a copy of
this Federal Register notice to all employees affected by the proposed
conditions, including the affected employees of other employers, using
the same means it used to inform these employees of its application for
a Permanent Variance.
OSHA is also proposing that the same requirements (see above
section IV, parts A through C) would apply to a Permanent Variance if
OSHA ultimately issues one for this project. OSHA requests comment on
those conditions as well as OSHA's preliminary determination that the
specified alternatives and conditions would provide a workplace as safe
and healthful as those required by the standard from which a variance
is sought. After reviewing comments, OSHA will publish in the Federal
Register the agency's final decision approving or rejecting the request
for a Permanent Variance.
V. Description of the Specified Conditions of the Interim Order and the
Application for a Permanent Variance
This section describes the alternative means of compliance with 29
CFR 1926.803(f)(1), (g)(1)(iii), and (g)(1)(xvii) and provides
additional detail regarding the proposed conditions that form the basis
of Ballard's application for an Interim Order and for a Permanent
Variance. The conditions are listed in Section VI. For brevity, the
discussion that follows refers only to the Permanent Variance, but the
same conditions apply to the Interim Order.
Proposed Condition A: Scope
The scope of the proposed Permanent Variance would limit coverage
to the work situations specified. Clearly defining the scope of the
proposed Permanent Variance provides Ballard, Ballard's employees,
potential future applicants, other stakeholders, the public, and OSHA
with necessary information regarding the work situations in which the
proposed Permanent Variance would apply. To the extent that Ballard
exceeds the defined scope of this variance, it would be required to
comply with OSHA's standards.
Pursuant to 29 CFR 1905.11, an employer (or class or group of
employers) \12\ may request a Permanent Variance for a specific
workplace or workplaces. If OSHA approves a Permanent Variance, it
would apply only to the specific employer(s) that submitted the
application and only to the specific workplace or workplaces designated
as part of the project. In this instance, if OSHA were to grant a
Permanent Variance, it would apply to only the applicant, Ballard
Marine Construction, and only to the Suffolk County Outfall Tunnel. As
a result, it is important to understand that if OSHA were to grant
Ballard a Permanent Variance, it would not apply to any other employers
or projects the
applicant may undertake in the future. However, 29 CFR 1905.13 does
contain provisions for future modification of Permanent Variances to
add or include additional employers if future joint ventures are
established.
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\12\ A class or group of employers (such as members of a trade
alliance or association) may apply jointly for a Variance provided
an authorized representative for each employer signs the application
and the application identifies each employer's affected facilities.
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Proposed Condition B: Duration
The Interim Order is only intended as a temporary measure pending
OSHA's decision on the Permanent Variance, so this condition specifies
the duration of the Order. If OSHA approves a Permanent Variance, it
would specify the duration of the Permanent Variance as the remainder
of the Suffolk County Outfall Tunnel.
Proposed Condition C: List of Abbreviations
Proposed condition C defines a number of abbreviations used in the
proposed Permanent Variance. OSHA believes that defining these
abbreviations serves to clarify and standardize their usage, thereby
enhancing the applicant's and its employees' understanding of the
conditions specified by the proposed Permanent Variance.
Proposed Condition D: Definitions
The proposed condition defines a series of terms, mostly technical
terms, used in the proposed Permanent Variance to standardize and
clarify their meaning. Defining these terms serves to enhance the
applicant's and its employees' understanding of the conditions
specified by the proposed Permanent Variance.
Proposed Condition E: Safety and Health Practices
This proposed condition requires the applicant to develop and
submit to OSHA an HOM specific to the Suffolk County Outfall Tunnel at
least six months before using the EPBMTBM for tunneling operations. The
applicant must also submit, at least six months before using the
EPBMTBM, proof that the EPBMTBM's hyperbaric chambers have been
designed, fabricated, inspected, tested, marked, and stamped in
accordance with the requirements of ASME PVHO-1.2019 (or the most
recent edition of Safety Standards for Pressure Vessels for Human
Occupancy). These requirements ensure that the applicant develops
hyperbaric safety and health procedures suitable for the project.
The submission of the HOM to OSHA, which Ballard has already
completed, enables OSHA to determine whether the safety and health
instructions and measures Ballard specifies are appropriate to the
field conditions of the tunnel (including expected geological
conditions), conform to the conditions of the variance, and adequately
protect the safety and health of the CAWs. It also facilitates OSHA's
ability to ensure that the applicant is complying with these
instructions and measures. The requirement for proof of compliance with
ASME PVHO-1.2019 is intended to ensure that the equipment is
structurally sound and capable of performing to protect the safety of
the employees exposed to hyperbaric pressure.
Additionally, the proposed condition includes a series of related
hazard prevention and control requirements and methods (e.g.,
decompression tables, job hazard analyses (JHA), operations and
inspections checklists, incident investigation, and recording and
notification to OSHA of recordable hyperbaric injuries and illnesses)
designed to ensure the continued effective functioning of the
hyperbaric equipment and operating system.
Proposed Condition F: Communication
This proposed condition requires the applicant to develop and
implement an effective system of information sharing and communication.
Effective information sharing and communication are intended to ensure
that affected workers receive updated information regarding any safety-
related hazards and incidents, and corrective actions taken, prior to
the start of each shift. The proposed condition also requires the
applicant to ensure that reliable means of emergency communications are
available and maintained for affected workers and support personnel
during hyperbaric operations. Availability of such reliable means of
communications would enable affected workers and support personnel to
respond quickly and effectively to hazardous conditions or emergencies
that may develop during EPBMTBM operations.
Proposed Condition G: Worker Qualification and Training
This proposed condition requires the applicant to develop and
implement an effective qualification and training program for affected
workers. The proposed condition specifies the factors that an affected
worker must know to perform safely during hyperbaric operations,
including how to enter, work in, and exit from hyperbaric conditions
under both normal and emergency conditions. Having well-trained and
qualified workers performing hyperbaric intervention work is intended
to ensure that they recognize, and respond appropriately to, hyperbaric
safety and health hazards. These qualification and training
requirements enable affected workers to cope effectively with
emergencies, as well as the discomfort and physiological effects of
hyperbaric exposure, thereby preventing worker injury, illness, and
fatalities.
Paragraph (2)(e) of this proposed condition requires the applicant
to provide affected workers with information they can use to contact
the appropriate healthcare professionals if the workers believe they
are developing hyperbaric-related health effects. This requirement
provides for early intervention and treatment of DCI and other health
effects resulting from hyperbaric exposure, thereby reducing the
potential severity of these effects.
Proposed Condition H: Inspections, Tests, and Accident Prevention
Proposed Condition H requires the applicant to develop, implement,
and operate a program of frequent and regular inspections of the
EPBMTBM's hyperbaric equipment and support systems, and associated work
areas. This condition would help to ensure the safe operation and
physical integrity of the equipment and work areas necessary to conduct
hyperbaric operations. The condition would also enhance worker safety
by reducing the risk of hyperbaric-related emergencies.
Paragraph (3) of this proposed condition requires the applicant to
document tests, inspections, corrective actions, and repairs involving
the EPBMTBM, and maintain these documents at the jobsite for the
duration of the job. This requirement would provide the applicant with
information needed to schedule tests and inspections to ensure the
continued safe operation of the equipment and systems, and to determine
that the actions taken to correct defects in hyperbaric equipment and
systems were appropriate, prior to returning them to service.
Proposed Condition I: Compression and Decompression
This proposed condition would require the applicant to consult with
the designated medical advisor regarding special compression or
decompression procedures appropriate for any unacclimated CAW and then
implement the procedures recommended by the medical consultant. This
proposed provision would ensure that the applicant consults with the
medical advisor, and involves the medical advisor in the evaluation,
development, and implementation of compression or decompression
protocols appropriate for any CAW requiring acclimation to the
hyperbaric conditions encountered
during EPBMTBM operations. Accordingly, CAWs requiring acclimation
would have an opportunity to acclimate prior to exposure to these
hyperbaric conditions. OSHA believes this condition would prevent or
reduce adverse reactions among CAWs to the effects of compression or
decompression associated with the intervention work they perform in the
EPBMTBM.
Proposed Condition J: Recordkeeping
Under OSHA's existing recordkeeping requirements in 29 CFR part
1904 regarding Recording and Reporting Occupational Injuries and
Illnesses, Ballard must maintain a record of any recordable injury,
illness, or fatality (as defined by 29 CFR part 1904) resulting from
exposure of an employee to hyperbaric conditions by completing the
OSHA's Form 301 Injury and Illness Incident Report and OSHA's Form 300
Log of Work-Related Injuries and Illnesses. The applicant did not seek
a variance from this standard, and therefore must comply fully with
those requirements.
Examples of important information to include on the OSHA's Form 301
Injury and Illness Incident Report (along with the corresponding
question on the form) are:
Q14
the task performed;
the composition of the gas mixture (e.g., air or oxygen);
an estimate of the CAW's workload;
the maximum working pressure;
temperature in the work and decompression environments;
and
unusual occurrences, if any, during the task or
decompression.
Q15
time of symptom onset; and
duration between decompression and onset of symptoms.
Q16
type and duration of symptoms; and
a medical summary of the illness or injury.
Q17
duration of the hyperbaric intervention;
possible contributing factors; and
the number of prior interventions completed by the injured
or ill CAW; and the pressure to which the CAW was exposed during those
interventions.\13\
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\13\ See 29 CFR 1904, Recording and Reporting Occupational
Injuries and Illnesses (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9631); recordkeeping
forms and instructions (http://www.osha.gov/recordkeeping/RKform300pkg-fillable-enabled.pdf); and OSHA Recordkeeping Handbook
(http://www.osha.gov/recordkeeping/handbook/index.html).
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Proposed Condition J would add additional reporting
responsibilities, beyond those already required by the OSHA standard.
The applicant would be required to maintain records of specific factors
associated with each hyperbaric intervention. The information gathered
and recorded under this provision, in concert with the information
provided under proposed Condition K (using OSHA's Form 301 Injury and
Illness Incident Report to investigate and record hyperbaric recordable
injuries as defined by 29 CFR 1904.4, 1904.7, 1904.8-.12), would enable
the applicant and OSHA to assess the effectiveness of the Permanent
Variance in preventing DCI and other hyperbaric-related effects.
Proposed Condition K: Notifications
Under the proposed condition, the applicant is required, within
specified periods of time, to: (1) Notify OSHA of any recordable
injury, illness, in-patient hospitalization, amputation, loss of an
eye, or fatality that occurs as a result of hyperbaric exposures during
EPBMTBM operations; (2) provide OSHA a copy of the hyperbaric exposures
incident investigation report (using OSHA's Form 301 Injury and Illness
Incident Report) of these events within 24 hours of the incident; (3)
include on OSHA's Form 301 Injury and Illness Incident Report
information on the hyperbaric conditions associated with the recordable
injury or illness, the root-cause determination, and preventive and
corrective actions identified and implemented; (4) provide the
certification that affected workers were informed of the incident and
the results of the incident investigation; (5) notify OSHA's Office of
Technical Programs and Coordination Activities (OTPCA) and the Long
Island New York OSHA Area Office (LIAO) within 15 working days should
the applicant need to revise the HOM to accommodate changes in its
compressed-air operations that affect Ballard's ability to comply with
the conditions of the proposed Permanent Variance; and (6) provide
OTPCA and the LIAO, at the end of the project, with a report evaluating
the effectiveness of the decompression tables.
It should be noted that the requirement for completing and
submitting the hyperbaric exposure-related (recordable) incident
investigation report (OSHA's Form 301 Injury and Illness Incident
Report) is more restrictive than the existing recordkeeping requirement
of completing OSHA's Form 301 Injury and Illness Incident Report within
7 calendar days of the incident (1904.29(b)(3)). This modified, more
stringent incident investigation and reporting requirement is
restricted to intervention-related hyperbaric (recordable) incidents
only. Providing rapid notification to OSHA is essential because time is
a critical element in OSHA's ability to determine the continued
effectiveness of the variance conditions in preventing hyperbaric
incidents, and the applicant's identification and implementation of
appropriate corrective and preventive actions.
Further, these notification requirements also enable the applicant,
its employees, and OSHA to assess the effectiveness of the Permanent
Variance in providing the requisite level of safety to the applicant's
workers and, based on this assessment, whether to revise or revoke the
conditions of the proposed Permanent Variance. Timely notification
permits OSHA to take whatever action may be necessary and appropriate
to prevent possible further injuries and illnesses. Providing
notification to employees informs them of the precautions taken by the
applicant to prevent similar incidents in the future.
Additionally, this proposed condition requires the applicant to
notify OSHA if it ceases to do business, has a new address or location
for the main office, or transfers the operations covered by the
proposed Permanent Variance to a successor company. In addition, the
condition specifies that the transfer of the Permanent Variance to a
successor company must be approved by OSHA. These requirements allow
OSHA to communicate effectively with the applicant regarding the status
of the proposed Permanent Variance, and expedite the agency's
administration and enforcement of the Permanent Variance. Stipulating
that an applicant is required to have OSHA's approval to transfer a
variance to a successor company provides assurance that the successor
company has knowledge of, and will comply with, the conditions
specified by proposed Permanent Variance, thereby ensuring the safety
of workers involved in performing the operations covered by the
proposed Permanent Variance.
VI. Specific Conditions of the Interim Order and the Proposed Permanent
Variance
The following conditions apply to the Interim Order OSHA is
granting to Ballard. These conditions specify the alternative means of
compliance with the requirements of paragraphs 29 CFR 1926.803(f)(1),
(g)(1)(iii), and (g)(1)(xvii). In addition, these conditions are
specific to the alternative means of
compliance with the requirements of paragraphs 29 CFR 1926.803(f)(1),
(g)(1)(iii), and (g)(1)(xvii) that OSHA is proposing for Ballard's
Permanent Variance. To simplify the presentation of the conditions,
OSHA generally refers only to the conditions of the proposed Permanent
Variance, but the same conditions apply to the Interim Order except
where otherwise noted.\14\
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\14\ In these conditions, OSHA is using the future conditional
form of the verb (e.g., ``would''), which pertains to the
application for a Permanent Variance (designated as ``Permanent
Variance'') but the conditions are mandatory for purposes of the
Interim Order.
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The conditions would apply with respect to all employees of Ballard
exposed to hyperbaric conditions. These conditions are outlined in this
Section:
Scope
The Interim Order applies, and the Permanent Variance would apply,
only when Ballard stops the tunnel-boring work, pressurizes the working
chamber, and the CAWs either enter the working chamber to perform an
intervention (i.e., inspect, maintain, or repair the mechanical-
excavation components), or exit the working chamber after performing
interventions.
The Interim Order and Proposed Variance apply only to work:
1. That occurs in conjunction with construction of the Suffolk
County Outfall Tunnel, a tunnel constructed using advanced shielded
mechanical-excavation techniques and involving operation of an EPBMTBM;
2. In the EPBMTBM's forward section (the excavation working
chamber) and associated hyperbaric chambers used to pressurize and
decompress employees entering and exiting the working chamber; and
3. Performed in compliance with all applicable provisions of 29 CFR
part 1926 except for the requirements specified by 29 CFR
1926.803(f)(1), (g)(1)(iii), and (g)(1)(xvii).
Duration
The Interim Order granted to Ballard will remain in effect until
OSHA modifies or revokes this Interim Order or grants Ballard's request
for a Permanent Variance in accordance with 29 CFR 1905.13. The
proposed Permanent Variance, if granted, would remain in effect until
the completion of Ballard's Suffolk County Outfall Tunnel.
List of Abbreviations
Abbreviations used throughout this proposed Permanent Variance
would include the following:
1. CAW--Compressed-air worker
2. CFR--Code of Federal Regulations
3. DCI--Decompression illness
4. DMT--Diver medical technician
5. EPBMTBM--Earth pressure balanced micro-tunnel boring machine
6. HOM--Hyperbaric operations manual
7. JHA--Job hazard analysis
8. OSHA--Occupational Safety and Health Administration
9. OTPCA--Office of Technical Programs and Coordination Activities
Definitions
The following definitions would apply to this proposed Permanent
Variance. These definitions would supplement the definitions in
Ballard's project-specific HOM.
1. Affected employee or worker--an employee or worker who is
affected by the conditions of this proposed Permanent Variance, or any
one of his or her authorized representatives. The term ``employee'' has
the meaning defined by and used under the Occupational Safety and
Health Act of 1970, 29 U.S.C. 651 et seq.
2. Atmospheric pressure--the pressure of air at sea level,
generally 14.7 pounds per square inch absolute (p.s.i.a.), 1 atmosphere
absolute, or 0 p.s.i.g.
3. Compressed-air worker--an individual who is specially trained
and medically qualified to perform work in a pressurized environment
while breathing air at pressures not exceeding 30 p.s.i.g.
4. Competent person--an individual who is capable of identifying
existing and predictable hazards in the surroundings or working
conditions that are unsanitary, hazardous, or dangerous to employees,
and who has authorization to take prompt corrective measures to
eliminate them.\15\
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\15\ Adapted from 29 CFR 1926.32(f).
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5. Decompression illness--an illness (also called decompression
sickness or ``the bends'') caused by gas bubbles appearing in body
compartments due to a reduction in ambient pressure. Examples of
symptoms of decompression illness include, but are not limited to:
Joint pain (also known as the ``bends'' for agonizing pain or the
``niggles'' for slight pain); areas of bone destruction (termed
dysbaric osteonecrosis); skin disorders (such as cutis marmorata, which
causes a pink marbling of the skin); spinal cord and brain disorders
(such as stroke, paralysis, paresthesia, and bladder dysfunction);
cardiopulmonary disorders, such as shortness of breath; and arterial
gas embolism (gas bubbles in the arteries that block blood flow).\16\
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\16\ See U.K. Health & Safety Executive, A Guide to the Work in
Compressed-Air Regulations 1996, 69 (2002), available at http://www.cdc.gov/niosh/docket/archive/pdfs/NIOSH-254/compReg1996.pdf
(Appendix 10).
Note: Health effects associated with hyperbaric intervention,
but not considered symptoms of DCI, can include: Barotrauma (direct
damage to air-containing cavities in the body such as ears, sinuses,
and lungs); nitrogen narcosis (reversible alteration in
consciousness that may occur in hyperbaric environments and is
caused by the anesthetic effect of certain gases at high pressure);
and oxygen toxicity (a central nervous system condition resulting
from the harmful effects of breathing molecular oxygen
---------------------------------------------------------------------------
(O2) at elevated partial pressures).
6. Diver Medical Technician-- member of the dive team who is
experienced in first aid.
7. Earth Pressure Balanced Micro-Tunnel Boring Machine--the
machinery used by Ballard to excavate the tunnel in the Suffolk County
Outfall Tunnel Project in West Babylon, New York.
8. Hot work--any activity performed in a hazardous location that
may introduce an ignition source into a potentially flammable
atmosphere.\17\
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\17\ See also 29 CFR 1910.146(b).
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9. Hyperbaric--at a higher pressure than atmospheric pressure.
10. Hyperbaric intervention--a term that describes the process of
stopping the EPBMTBM and preparing and executing work under hyperbaric
pressure in the working chamber for the purpose of inspecting,
replacing, or repairing cutting tools and/or the cutterhead structure.
11. Hyperbaric Operations Manual--a detailed, project-specific
health and safety plan developed and implemented by Ballard for working
in compressed air during the Suffolk County Outfall Tunnel.
12. Job hazard analysis--an evaluation of tasks or operations to
identify potential hazards and to determine the necessary controls.
13. Manlock--an enclosed space capable of pressurization, and used
for compressing or decompressing any employee or material when either
is passing into, or out of, a working chamber.
14. Pressure--a force acting on a unit area, usually expressed as
pounds per square inch (p.s.i.).
15. p.s.i.a.--pounds per square inch absolute, or absolute
pressure, is the sum of the atmospheric pressure and gauge pressure. At
sea-level, atmospheric pressure is approximately 14.7 p.s.i.a. Adding
14.7 to a pressure expressed in units of p.s.i.g. will yield the
absolute pressure, expressed as p.s.i.a.
16. p.s.i.g.--pounds per square inch gauge, a common unit of
pressure;
pressure expressed as p.s.i.g. corresponds to pressure relative to
atmospheric pressure. At sea-level, atmospheric pressure is
approximately 14.7 p.s.i.a. Subtracting 14.7 from a pressure expressed
in units of p.s.i.a. yields the gauge pressure, expressed as p.s.i.g.
At sea level the gauge pressure is 0 p.s.i.g.
17. Qualified person--an individual who, by possession of a
recognized degree, certificate, or professional standing, or who, by
extensive knowledge, training, and experience, successfully
demonstrates an ability to solve or resolve problems relating to the
subject matter, the work, or the project.\18\
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\18\ Adapted from 29 CFR 1926.32(m).
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18. Working chamber--an enclosed space in the EPBMTBM in which CAWs
perform interventions, and which is accessible only through a manlock.
Safety and Health Practices
1. Ballard would have to adhere to the project-specific HOM
submitted to OSHA as part of the application (see OSHA-2019-0018-0002).
The HOM provides the minimum requirements regarding protections from
expected safety and health hazards (including anticipated geological
conditions) and hyperbaric exposures during the tunnel-construction
project.
2. Ballard would have to demonstrate that the EPBMTBM on the
project is designed, fabricated, inspected, tested, marked, and stamped
in accordance with the requirements of ASME PVHO-1.2019 (or most recent
edition of Safety Standards for Pressure Vessels for Human Occupancy)
for the EPBMTBM's hyperbaric chambers.
3. Ballard would have to implement the safety and health
instructions included in the manufacturer's operations manuals for the
EPBMTBM, and the safety and health instructions provided by the
manufacturer for the operation of decompression equipment.
4. The decompression chamber must be capable of providing a minimum
decompression duration of 121 minutes.
5. Ballard would have to ensure that air or oxygen is the only
breathing gas in the working chamber.
6. Ballard would have to follow the 1992 French Decompression
Tables for air or oxygen decompression as specified in the HOM;
specifically, the extracted portions of the 1992 French Decompression
tables titled, ``French Regulation Air Standard Tables.''
7. Ballard would have to equip manlocks used by employees with an
air or oxygen delivery system, as specified by the HOM, for the
project. Ballard would be required not to store in the tunnel any
oxygen or other compressed gases used in conjunction with hyperbaric
work.
8. Workers performing hot work under hyperbaric conditions would
have to use flame-retardant personal protective equipment and clothing.
9. In hyperbaric work areas, Ballard would have to maintain an
adequate fire-suppression system approved for hyperbaric work areas.
10. Ballard would have to develop and implement one or more JHA(s)
for work in the hyperbaric work areas, and review, periodically and as
necessary (e.g., after making changes to a planned intervention that
affects its operation), the contents of the JHAs with affected
employees. The JHAs would have to include all the job functions that
the risk assessment \19\ indicates are essential to prevent injury or
illness.
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\19\ See ANSI/AIHA Z10-2012, American National Standard for
Occupational Health and Safety Management Systems, for reference.
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11. A qualified person must perform a post-intervention physical
assessment of each CAW for signs and symptoms of decompression illness,
barotrauma, nitrogen narcosis, oxygen toxicity, or other health effects
associated with work in compressed air for each hyperbaric
intervention.
12. Ballard would have to develop a set of checklists to guide
compressed-air work and ensure that employees follow the procedures
required by the proposed Permanent Variance and this Interim Order
(including all procedures required by the HOM approved by OSHA for the
project, which this proposed Permanent Variance would incorporate by
reference). The checklists would have to include all steps and
equipment functions that the risk assessment indicates are essential to
prevent injury or illness during compressed-air work.
Ballard would have to ensure that the safety and health provisions
of this project-specific HOM adequately protect the workers of all
contractors and subcontractors involved in hyperbaric operations for
the project to which the HOM applies.
Communication
Ballard would have to:
1. Prior to beginning each shift, implement a system that informs
workers exposed to hyperbaric conditions of any hazardous occurrences
or conditions that might affect their safety, including hyperbaric
incidents, gas releases, equipment failures, earth or rock slides,
cave-ins, flooding, fires, or explosions.
2. Provide a power-assisted means of communication among affected
workers and support personnel in hyperbaric conditions where unassisted
voice communication is inadequate.
(a) Use an independent power supply for powered communication
systems, and these systems would have to operate such that use or
disruption of any one phone or signal location will not disrupt the
operation of the system from any other location.
(b) Test communication systems at the start of each shift and as
necessary thereafter during each shift to ensure proper operation.
Worker Qualifications and Training
Ballard would have to:
1. Ensure that each affected worker receives effective training on
how to safely enter, work in, exit from, and undertake emergency
evacuation or rescue from, hyperbaric conditions, and document this
training.
2. Provide effective instruction on hyperbaric conditions, before
beginning hyperbaric operations, to each worker who performs work, or
controls the exposure of others, and document this instruction. The
instruction would need to include:
(a) The physics and physiology of hyperbaric work;
(b) Recognition of pressure-related injuries;
(c) Information on the causes and recognition of the signs and
symptoms associated with decompression illness, and other hyperbaric
intervention-related health effects (e.g., barotrauma, nitrogen
narcosis, and oxygen toxicity);
(d) How to avoid discomfort during compression and decompression;
(e) Information the workers can use to contact the appropriate
healthcare professionals should the workers have concerns that they may
be experiencing adverse health effects from hyperbaric exposure; and
(f) Procedures and requirements applicable to the employee in the
project-specific HOM.
3. Repeat the instruction specified in paragraph (G)(2) of this
proposed condition periodically and as necessary (e.g., after making
changes to its hyperbaric operations).
4. When conducting training for its hyperbaric workers, make this
training available to OSHA personnel and notify the OTPCA at OSHA's
national office and OSHA's nearest affected Area Office before the
training takes place.
Inspections, Tests, and Accident Prevention
1. Ballard would have to initiate and maintain a program of
frequent and
regular inspections of the EPBMTBM's hyperbaric equipment and support
systems (such as temperature control, illumination, ventilation, and
fire-prevention and fire-suppression systems), and hyperbaric work
areas, as required under 29 CFR 1926.20(b)(2), including:
(a) Developing a set of checklists to be used by a competent person
in conducting weekly inspections of hyperbaric equipment and work
areas; and
(b) Ensuring that a competent person conducts daily visual checks
and weekly inspections of the EPBMTBM.
2. Remove from service any equipment that constitutes a safety
hazard until it corrects the hazardous condition and has the correction
approved by a qualified person.
3. Ballard would have to maintain records of all tests and
inspections of the EPBMTBM, as well as associated corrective actions
and repairs, at the job site for the duration of the job.
Compression and Decompression
Ballard would have to consult with its attending physician
concerning the need for special compression or decompression exposures
appropriate for CAWs not acclimated to hyperbaric exposure.
Recordkeeping
In addition to completing OSHA's Form 301 Injury and Illness
Incident Report and OSHA's Form 300 Log of Work-Related Injuries and
Illnesses, Ballard would have to maintain records of:
1. The date, times (e.g., time compression started, time spent
compressing, time performing intervention, time spent decompressing),
and pressure for each hyperbaric intervention.
2. The names of all supervisors and DMTs involved for each
intervention.
3. The name of each individual worker exposed to hyperbaric
pressure and the decompression protocols and results for each worker.
4. The total number of interventions and the amount of hyperbaric
work time at each pressure.
5. The results of the post-intervention physical assessment of each
CAW for signs and symptoms of decompression illness, barotrauma,
nitrogen narcosis, oxygen toxicity, or other health effects associated
with work in compressed air for each hyperbaric intervention.
Notifications
1. To assist OSHA in administering the conditions specified herein,
Ballard would have to:
(a) Notify the OTPCA and the LIAO of any recordable injury,
illness, in-patient hospitalization, amputation, loss of an eye, or
fatality that occurs as a result of hyperbaric exposures during EPBMTBM
operations, including those that do not require recompression treatment
(e.g., nitrogen narcosis, oxygen toxicity, barotrauma), but still meet
the recordable injury or illness criteria of 29 CFR 1904. The
notification would have to be made within 8 hours of the incident or 8
hours after becoming aware of a recordable injury, illness, or
fatality; a copy of the incident investigation (OSHA's Form 301 Injury
and Illness Incident Report) must be submitted to OSHA within 24 hours
of the incident or 24 hours after becoming aware of a recordable
injury, illness, or fatality. In addition to the information required
by OSHA's Form 301 Injury and Illness Incident Report, the incident-
investigation report would have to include a root-cause determination,
and the preventive and corrective actions identified and implemented.
(b) Provide certification to the LIAO within 15 working days of the
incident that Ballard informed affected workers of the incident and the
results of the incident investigation (including the root-cause
determination as well as the preventive and corrective actions
identified and implemented).
(c) Notify the OTPCA and the LIAO within 15 working days and in
writing, of any change in the compressed-air operations that affects
Ballard's ability to comply with the proposed conditions specified
herein.
(d) Upon completion of the Suffolk County Outfall Tunnel, evaluate
the effectiveness of the decompression tables used throughout the
project, and provide a written report of this evaluation to the OTPCA
and the LIAO.
Note: The evaluation report would have to contain summaries of
(1) the number, dates, durations, and pressures of the hyperbaric
interventions completed; (2) decompression protocols implemented
(including composition of gas mixtures, air, and/or oxygen), and the
results achieved; (3) the total number of interventions and the
number of hyperbaric incidents (decompression illnesses and/or
health effects associated with hyperbaric interventions as recorded
on OSHA's Form 301 Injury and Illness Incident Report and OSHA's
Form 300 Log of Work-Related Injuries and Illnesses, and relevant
medical diagnoses, and treating physicians' opinions); and (4) root
causes of any hyperbaric incidents, and preventive and corrective
actions identified and implemented.
(e) To assist OSHA in administering the proposed conditions
specified herein, inform the OTPCA and the LIAO as soon as possible,
but no later than seven (7) days, after it has knowledge that it will:
(i) Cease doing business;
(ii) Change the location and address of the main office for
managing the tunneling operations specified herein; or
(iii) Transfer the operations specified herein to a successor
company.
(f) Notify all affected employees of this proposed Permanent
Variance by the same means required to inform them of its application
for a Variance.
2. OSHA would have to approve the transfer of the proposed
Permanent Variance to a successor company.
VII. Authority and Signature
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for
Occupational Safety and Health, 200 Constitution Avenue NW, Washington,
DC 20210, authorized the preparation of this notice. Accordingly, the
agency is issuing this notice pursuant to Section 29 U.S.C. 655(6)(d),
Secretary of Labor's Order No. 8-2020 (85 FR 58393; Sept. 18, 2020),
and 29 CFR 1905.11.
Signed at Washington, DC, on January 13, 2021.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety
and Health.
[FR Doc. 2021-01110 Filed 1-15-21; 8:45 am]
BILLING CODE 4510-26-P
