[Federal Register Volume 89, Number 26 (Wednesday, February 7, 2024)]
[Notices]
[Pages 8442-8451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02437]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2023-0010]
Ballard Marine Construction Bay Park Conveyance Tunnel Project;
Grant of Permanent Variance
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice.
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SUMMARY: In this notice, OSHA grants a permanent variance to Ballard
Marine Construction (Ballard) related to work in compressed air
environments.
DATES: The permanent variance specified by this notice becomes
effective on February 7, 2024 and shall remain in effect until the
completion of the Bay Park Conveyance Tunnel Project or until modified
or revoked by OSHA.
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) 693-1911; email: robinson.kevin@dol.gov.
SUPPLEMENTARY INFORMATION:
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.
I. Overview
On March 25, 2022, Ballard Marine Construction (Ballard or the
applicant), 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
(variances and other relief under Section 6(d)), three applications for
a permanent variance from several provisions of the OSHA standard that
regulates work in compressed air, 1926.803 of 1926 Subpart S--
Underground Construction, Caissons, Cofferdams, and Compressed Air, and
an interim order allowing it to proceed while OSHA considers the
request for a permanent variance (OSHA-2023-0010-0002) (OSHA-2023-0010-
0003) and (OSHA-2023-0010-0004). This notice addresses Ballard's
application for a permanent variance and interim order for construction
of the Bay Park Conveyance Tunnel Project in Nassau County, New York
only and is not applicable to future Ballard tunneling projects.
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 reviewed Ballard's application for the variance and interim
order and determined that they were appropriately submitted in
compliance with the applicable variance procedures in Section 6(d) of
the Occupational Safety and Health Act of 1970 (OSH Act; 29 U.S.C. 655)
and OSHA's regulations at 29 CFR 1905.11 (Variances and other relief
under section 6(d)), including the requirement that the applicant
inform 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.
OSHA reviewed the alternative procedures in Ballard's application
and preliminarily determined that the applicant's proposed
alternatives, on the whole, subject to the conditions in the request
and imposed by the interim order, provide measures that are as safe and
healthful as those required by the cited OSHA standards. On August 4,
2023, OSHA published a Federal Register notice announcing Ballard's
application for permanent variance, stating the preliminary
determination along with the basis of that determination, and granting
the interim order (88 FR 51862). OSHA requested comments on each.
OSHA did not receive any comments or other information disputing
the preliminary determination that the alternatives were at least as
safe as OSHA's standard, nor any objections to OSHA granting a
permanent variance. Accordingly, through this notice OSHA grants a
permanent variance, subject to the conditions set out in this document.
A. Background
The information that follows about Ballard, its methods, and the
Bay Park Conveyance Tunnel Project comes from the Ballard variance
application.
Ballard is a contractor for the Bay Park Conveyance Tunnel Project
(the project), 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 balance tunnel boring
machine (TBM). Using shielded mechanical excavation techniques, in
conjunction with precast concrete tunnel liners and backfill grout,
TBMs 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 working chamber) of the TBM.
Ballard asserts that it bores tunnels using a TBM at levels below
the water table through soft soils consisting of clay, silt, and sand.
TBMs are capable of maintaining pressure at the tunnel face, and
stabilizing existing geological conditions, through the controlled use
of a mechanically driven cutter head, bulkheads within the shield,
ground-treatment foam, and a screw conveyor that moves excavated
material from the working chamber. The forward-most portion of the TBM
is the working chamber, and this chamber is the only pressurized
segment of the TBM. 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 man-lock door and the entry door to the forward working
chamber.
The TBM has twin man-locks located between the pressurized working
chamber and the non-pressurized portion of the machine. Each man-lock
has two compartments. This configuration allows workers to access the
man-locks for compression and decompression, and medical personnel to
access the man-locks if required in an emergency.
Ballard's Hyperbaric Operations Manual (HOM) for the Bay Park
Conveyance Tunnel Project indicates that the maximum pressure to which
it is likely to expose workers during project interventions for the
three tunnel drives is 29 pounds per square inch gauge (p.s.i.g). 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 29 p.s.i.g., which does not
exceed the maximum pressure specified by the OSHA standard at 29 CFR
1926.803(e)(5).\1\ Ballard is not seeking a variance from this
provision of the compressed-air standard.
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\1\ The decompression tables in Appendix A of subpart S express
the working pressures as pounds per square inch gauge (p.s.i.g.).
Therefore, throughout this notice, OSHA expresses the p.s.i. value
specified by 29 CFR 1926.803(e)(5) as p.s.i.g., consistent with the
terminology in Appendix A, Table 1 of subpart S.
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Ballard employs specially trained personnel for the construction of
the tunnel. To keep the machinery working effectively, Ballard asserts
that these workers must periodically enter the excavation working
chamber of the TBM to perform hyperbaric interventions during which
workers would be exposed to air pressures up to 29 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 TBM, 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 TBM) take
place only after halting tunnel excavation and preparing the machine
and crew for an intervention.
During interventions, workers enter the working chamber through one
of the twin man-locks 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 working
chamber. The man-locks and the working chamber are designed to
accommodate three people, which is the maximum crew size allowed under
the permanent variance. When the required decompression times are
greater than work times, the twin man-locks 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 man-lock at its disposal.
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 reduce 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 regulated by the
current OSHA compressed-air standard for construction at 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, 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
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 contends that the alternative safety measures included in
the application provide Ballard's workers with a place of employment
that is at least as safe as they would be under OSHA's compressed-air
standard for construction. Ballard also provided OSHA a project-
specific HOM (OSHA-2023-0010-0005) for the Bay Park Conveyance Tunnel
Project that requires specialized medical support and hyperbaric
supervision to provide assistance to a team of specially trained man-
lock attendants and hyperbaric or compressed-air workers to support
their assertions of equivalency in worker protection.
OSHA included all of the above information in the Federal Register
notice announcing Ballard's variance application and did not receive
any comments disputing any of that information, including the safety
assertions made by Ballard in the variance application.
II. The Variance Application
Pursuant to the requirements of OSHA's variance regulations (29 CFR
1905.11), the applicant has certified that it notified its affected
workers \2\ of the variance application and request for interim order
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 has certified that it informed its workers of their right to
petition the Assistant Secretary of Labor for Occupational Safety and
Health for a hearing on the variance application.
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\2\ See the definition of ``Affected employee or worker'' in
section VII.C of this Notice.
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III. OSHA History of Approval of Nearly Identical Variance Requests
OSHA has previously approved several nearly identical variances
involving the same types of tunneling equipment used for similar
projects (tunnel construction variances). OSHA notes that it granted
several subaqueous tunnel construction permanent variances from the
same provisions of OSHA's compressed-air standard (29 CFR
1926.803(e)(5), (f)(1), (g)(1)(iii), and (g)(1)(xvii)) that are the
subject of the present application: (1) Traylor JV for the completion
of the Blue Plains Tunnel in Washington, DC (80 FR 16440 (March 27,
2015)); (2) Impregilo, Healy, Parsons, Joint Venture (IHP JV) for the
completion of the Anacostia River Tunnel in Washington, DC (80 FR 50652
(August 20, 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)); (4) Salini-Impregilo/Healy
Joint Venture for the completion of the Northeast Boundary Tunnel in
Washington, DC (85 FR 27767, (May 11, 2020)); (5) McNally/Kiewit SST
Joint Venture for the completion of the Shoreline Storage Tunnel
Project in Cleveland, Ohio (88 FR 15080, March 10, 2023); and (6)
Traylor-Shea Joint Venture for the completion of the Alexandria River
Renew Tunnel Project in Alexandria Virginia and Washington DC (88 FR
15080, March 10, 2023). The proposed alternate conditions in this
notice are nearly identical to the alternate conditions of the previous
permanent variances.\3\ 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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\3\ The previous tunnel construction variances allowed further
deviation from OSHA standards by permitting employee exposures above
50 p.s.i., based on the composition of the soil and the amount of
water that will be above the tunnel for various sections of this
project. The current permanent variance includes substantively the
same safeguards as the variances that OSHA granted previously even
though employees will not be exposed to pressures higher than 29
p.s.i.g.
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IV. Applicable OSHA Standard and the Relevant Variance
A. 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 in accordance with the decompression tables in Appendix A
of 29 CFR 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) that rely on staged decompression and supplement breathing air
used during decompression with air or oxygen (as appropriate).\4\ The
applicant asserts decompression protocols using the 1992 French
Decompression Tables for air or oxygen as specified by the Integrated
Pipeline Tunnel Project-specific HOM are safer for tunnel workers than
the decompression protocols specified in Appendix A of 29 CFR 1926
Subpart S. Accordingly, the applicant commits to following the
decompression procedures described in that HOM, which requires Ballard
to follow the 1992 French Decompression Tables to decompress compressed
air workers
(CAWs) after they exit the hyperbaric conditions in the working
chamber.
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\4\ 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).
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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) keeping external pressure as low as
possible to reduce the formation of gas 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 so that workers are less tired and to
prevent bone necrosis; (5) reducing decompression time by approximately
33 percent as compared to air decompression; and (6) reducing
inflammation.
In addition, the project-specific HOM requires a physician,
certified in hyperbaric medicine, to manage the medical condition of
CAWs during hyperbaric exposures and decompression. A trained and
experienced man-lock attendant is also required to be present during
hyperbaric exposures and decompression. This man-lock attendant is to
operate the hyperbaric system to ensure compliance with the specified
decompression table. A hyperbaric supervisor, 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.
B. Variance From Paragraph (g)(1)(iii) of 29 CFR 1926.803,
Automatically Regulated Continuous Decompression
Ballard seeks 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 conducting the staged
decompression according to the 1992 French Decompression Tables under
the direct control of the trained man-lock 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 is 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.
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
requires a hyperbaric supervisor who directly supervises all hyperbaric
interventions and ensures that the man-lock 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., Dr. Eric Kindwall, EP (1997), Compressed air
tunneling and caisson work decompression procedures: development,
problems, and solutions. Undersea and Hyperbaric Medicine, 24(4),
pp. 337-345. 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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C. 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.
Space limitations in the TBM do not allow for the installation and
use of an additional special decompression lock or chamber. The
applicant proposes that it be permitted to rely on the man-locks 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 man-locks (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 man-locks, each of which
adequately accommodates a three-member crew for this purpose when
decompression lasts up to 75 minutes. When decompression exceeds 75
minutes, crews can open the door connecting the two compartments in
each man-lock (during decompression stops) or exit the man-lock and
move into the staging chamber where additional space is available. The
applicant asserts that this alternative arrangement is 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.
V. Decision
After reviewing the proposed alternatives, OSHA has determined that
the applicant's proposed alternatives, on the whole, subject to the
conditions in the request and imposed by this permanent variance,
provide measures that are as safe and healthful as those required by
the cited OSHA standards addressed in section IV of this notice.
In addition, OSHA has determined that each of the following
alternatives are at least as effective as the specified OSHA
requirements:
A. 29 CFR 1926.803(f)(1)
The applicant 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 decompression tables the
applicant proposes to use (the 1992 French Decompression Tables).
Depending on the maximum working pressure and exposure times during the
interventions, the 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 man-lock
attendant, experienced in recognizing decompression sickness or
illnesses and injuries, will be present. Of key importance, a
hyperbaric supervisor, 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.
Prior to granting the six previous permanent variances to IHP JV,
Traylor JV, Tully JV, Salini-Impregilo Joint Venture, Ballard, and
Traylor TSJV, OSHA conducted a review of the scientific literature and
concluded that the alternative decompression method (i.e., the 1992
French Decompression Tables) Ballard proposed would be at least as safe
as the decompression tables specified by OSHA when applied by trained
medical personnel under the conditions imposed by the permanent
variance.
Some of the literature indicates that the alternative decompression
method may be safer, concluding 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. 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).\6\ 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%. The DCI incidence in the study by H. L. Anderson is
substantially less than the DCI incidence reported for the
decompression tables specified in Appendix A.
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\6\ Anderson HL (2002). Decompression sickness during
construction of the Great Belt tunnel, Denmark. Undersea and
Hyperbaric Medicine, 29(3), pp. 172-188.
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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.\7\
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\7\ Le P[eacute]chon JC, Barre P, Baud JP, Ollivier F (September
1996). Compressed air work--French Tables 1992--operational results.
JCLP Hyperbarie Paris, Centre Medical Subaquatique Interentreprise,
Marseille: Communication a l'EUBS, pp. 1-5 (see Ex. OSHA-2012-0036-
0005).
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OSHA's experience with the previous six 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 \8\ that either granted variances (Nevada, Oregon and Washington)
\9\ for hyperbaric exposures occurring during similar subaqueous
tunnel-construction work, provide additional evidence of the
effectiveness of this alternative procedure.
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\8\ 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 (29 U.S.C. 667).
\9\ 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).
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B. 29 CFR 1926.803(g)(1)(iii)
The applicant developed, and 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 conclusion, OSHA again notes the experience of
previous nearly identical tunneling variances, the experiences of State
Plan States, and a review of the literature and other information noted
earlier.
C. 29 CFR 1926.803(g)(1)(xvii)
The applicant developed, and proposed to implement, an effective
alternative to the use of the special decompression chamber required by
29 CFR 1926.803(g)(1)(xvii). The TBM's man-lock and working chamber
appear to satisfy all 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, and safely accommodate
decompression times up to 360 minutes. Therefore, again noting OSHA's
previous experience with nearly identical variances including the same
alternative, OSHA preliminarily determined that the TBM's man-lock and
working chamber function as effectively as the special decompression
chamber required by the standard.
Based on a review of available evidence, the experience of State
Plans that either granted variances (Nevada, Oregon, and Washington)
\10\ for hyperbaric exposures occurring during similar subaqueous
tunnel-construction work, and the information provided in the
applicant's variance application, OSHA is granting the permanent
variance.
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\10\ These state variances are available in the docket: Exs.
OSHA-2012-0035-0006 (Nevada), OSHA-2012-0035-0007 (Oregon), and
OSHA-2012-0035-0008 (Washington).
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Pursuant to Section 6(d) of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 655(d)), and based on the record discussed above,
the agency finds that when Ballard complies with the conditions of the
following order, the working conditions of the workers are at least as
safe and healthful as if it complied with the working conditions
specified by paragraphs (f)(1), (g)(1)(iii), and (g)(1)(xvii) of 29 CFR
1926.803. Therefore, Ballard must: (1) comply with the conditions
listed below under ``Conditions Specified for the Permanent Variance''
for the period between the date of this notice and completion of the
Bay Park Conveyance Tunnel Project; (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 conditions, including the affected
employees of other employers, using the same means it used to inform
these employees of the application for a permanent variance.
Additionally, this order will remain in effect until one of the
following conditions occurs: (1) completion of the Bay Park Conveyance
Tunnel Project; or (2) OSHA modifies or revokes this final order in
accordance with 29 CFR 1905.13.
VI. Description of the Specified Conditions for the Permanent Variance
The conditions for the variance are set out in the Order at the end
of this document. This section provides additional detail regarding the
conditions in the Order.
Condition A: Scope
The scope of the permanent variance limits coverage to the work
situations specified. Clearly defining the scope of the 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 permanent
variance applies. To the extent that Ballard exceeds the defined scope
of this variance, it will be required to comply with OSHA's standards.
This permanent variance applies only to the applicant, Ballard, and
only to the remainder of construction work on the Bay Park Conveyance
Tunnel Project.
Condition B: List of Abbreviations
Condition B defines abbreviations used in the 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 permanent
variance.
Condition C: Definitions
The condition defines a series of terms, mostly technical terms,
used in the permanent variance to standardize and clarify their
meaning. OSHA believes that defining these terms serves to enhance the
applicant's and its employees' understanding of the conditions
specified by the permanent variance.
Condition D: Safety and Health Practices
This condition requires the applicant to develop and submit to OSHA
an HOM specific to the Bay Park Conveyance Tunnel Project at least six
months before using the TBM for tunneling operations. The applicant
must also submit, at least six months before using the TBM, proof that
the TBM'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 enables OSHA to determine whether the
safety and health instructions and measures it 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. The
applicant has submitted the HOM and proof of compliance with ASME PVHO-
1.2019.
Additionally, the 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.
Condition E: Communication
This 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 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 enables affected workers and support personnel to
respond quickly and effectively to hazardous conditions or emergencies
that may develop during TBM operations.
Condition F: Worker Qualification and Training
This condition requires the applicant to develop and implement an
effective qualification and training program for affected workers. The
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 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.
Condition G: Inspections, Tests, and Accident Prevention
Condition G requires the applicant to develop, implement, and
operate a program of frequent and regular inspections of the TBM's
hyperbaric equipment and support systems, and associated work areas.
This condition helps to ensure the safe operation and physical
integrity of the equipment and work areas necessary to conduct
hyperbaric operations. The condition also enhances worker safety by
reducing the risk of hyperbaric-related emergencies.
Paragraph (3) of this condition requires the applicant to document
tests, inspections, corrective actions, and repairs involving the TBM,
and maintain these documents at the jobsite for the duration of the
job. This requirement provides 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.
Condition H: Compression and Decompression
This condition requires 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 advisor. This
proposed provision ensures 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 TBM operations. Accordingly,
CAWs requiring acclimation have an opportunity to acclimate prior to
exposure to these hyperbaric conditions. OSHA believes this condition
will prevent or reduce adverse reactions among CAWs to the effects of
compression or decompression associated with the intervention work they
perform in the TBM.
Condition I: Recordkeeping
Under OSHA's recordkeeping requirements in 29 CFR part 1904
regarding Recording and Reporting Occupational Injuries and Illnesses,
the employer 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, or any other work conditions, by
completing the OSHA Form 301 Incident Report and OSHA Form 300 Log of
Work-Related Injuries and Illnesses. The applicant did not seek a
variance from this standard and therefore Ballard must comply fully
with those requirements.
Examples of important information to include on the OSHA Form 301
Injury and Illness Incident Report (along with the corresponding
questions 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;
unusual occurrences, if any, during the task or
decompression
Q15
time of symptom onset;
duration between decompression and onset of symptoms
Q16
type and duration of symptoms;
a medical summary of the illness or injury
Q17
duration of the hyperbaric intervention;
possible contributing factors;
the number of prior interventions completed by the injured
or ill CAW; and the pressure to which the CAW was exposed during those
interventions.\11\
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\11\ 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 https://www.osha.gov/recordkeeping/forms.
---------------------------------------------------------------------------
Condition J below adds additional reporting responsibilities,
beyond those already required by the OSHA standard. The applicant is
required to maintain records of specific factors associated with each
hyperbaric intervention. The information gathered and recorded under
Condition J, in concert with the information provided under Condition I
(using OSHA Form 301 Injury and Illness Incident Report to investigate
and record hyperbaric recordable injuries as defined by 29 CFR 1904.4,
1904.7, and 1904.8-.12), enables the applicant and OSHA to assess the
effectiveness of the permanent variance in preventing DCI and other
hyperbaric-related effects.
Condition J: Notifications
Under the notifications condition, the applicant is required,
within specified periods of time, to notify OSHA of: (1) any recordable
injury, illness, in-patient hospitalization, amputation, loss of an
eye, or fatality that occurs as a result of hyperbaric exposures during
TBM operations; and in-patient hospitalization, amputation, loss of an
eye or fatality that occurs during other operations must also be
reported pursuant to 29 CFR 1910.39(a); (2) provide OSHA a copy of the
hyperbaric exposures incident investigation report (using OSHA Form 301
Injury and Illness Incident Report) of these events within 24 hours of
the incident; (3) include on OSHA 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 OSHA Area Office in Long Island, New York 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 permanent variance; and (6) provide
OTPCA and the OSHA Area Office in Long Island, New York, 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 301 Injury and Illness Incident Report) is
more restrictive than the current recordkeeping requirement of
completing OSHA 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 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 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 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 permanent
variance and expedite the agency's administration and enforcement of
the permanent variance.
Stipulating that the 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 permanent variance, thereby ensuring the safety
of workers involved in performing the operations covered by the
permanent variance.
VII. Order
As of the effective date of this final order, OSHA is revoking the
interim order granted to the employer on August 4, 2023 (88 FR 51862)
and replacing it with a permanent variance order. Note that there are
not any substantive changes in the conditions between the interim order
and this final order.
OSHA issues this final order authorizing Ballard to comply with the
following conditions instead of complying with the requirements of 29
CFR 1926.803 (f)(1), (g)(1)(iii), and (g)(1)(xvii). These conditions
are:
A. Scope
The permanent variance applies 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 permanent variance applies only to work:
1. That occurs in conjunction with construction of the Bay Park
Conveyance Tunnel Project, a tunnel constructed using advanced shielded
mechanical-excavation techniques and involving operation of an TBM;
2. In the TBM's forward section (the 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).
4. This order will remain in effect until one of the following
conditions occurs: (1) completion of the Bay Park Conveyance Tunnel
Project; or (2) OSHA modifies or revokes this final order in accordance
with 29 CFR 1905.13.
B. List of Abbreviations
Abbreviations used throughout this permanent variance includes the
following:
1. CAW--Compressed-air worker
2. CFR--Code of Federal Regulations
3. DCI--Decompression Illness
4. DMT--Diver Medical Technician
5. TBM--Earth Pressure Balanced 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
C. Definitions
The following definitions apply to this permanent variance,
Ballard's project-specific HOM, and all work carried out under the
conditions of this permanent variance.
1. Affected employee or worker--an employee or worker who is
affected by the conditions of this permanent variance, or any one of
his or her authorized representatives. The term ``employee'' has the
meaning defined 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 29 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.\12\
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\12\ Adapted from 29 CFR 1926.32(f).
---------------------------------------------------------------------------
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, or in people with darker skin
tones, the rash will appear as a marbled or lacy dark brown or purplish
color); 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).\13\
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\13\ See Appendix 10 of ``A Guide to the Work in Compressed-Air
Regulations 1996,'' published by the United Kingdom Health and
Safety Executive available from NIOSH at http://www.cdc.gov/niosh/docket/archive/pdfs/NIOSH-254/compReg1996.pdf.
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 Tunnel Boring Machine--the machinery
used to excavate a tunnel.
8. Hot work--any activity performed in a hazardous location that
may introduce an ignition source into a potentially flammable
atmosphere.\14\
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\14\ Also see 29 CFR 1910.146(b).
---------------------------------------------------------------------------
9. Hyperbaric--at a higher pressure than atmospheric pressure.
10. Hyperbaric intervention--a term that describes the process of
stopping the TBM 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 Bay Park Conveyance Tunnel Project.
12. Job hazard analysis--an evaluation of tasks or operations to
identify potential hazards and to determine the necessary controls.
13. Man-lock--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. Medical Advisor--medical professional experienced in the
physical requirements of compressed air work and the treatment of
decompression illness.
15. Pressure--a force acting on a unit area. Usually expressed as
pounds per square inch (p.s.i.).
16. p.s.i--pounds per square inch, a common unit of measurement of
pressure; a pressure given in p.s.i. corresponds to absolute pressure.
17. 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.
18. 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 psig.
19. 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.\15\
---------------------------------------------------------------------------
\15\ Adapted from 29 CFR 1926.32(m).
---------------------------------------------------------------------------
20. Working chamber--an enclosed space in the TBM in which CAWs
perform interventions, and which is accessible only through a man-lock.
D. Safety and Health Practices
1. Ballard must implement the project-specific HOM submitted to
OSHA as part of the application (see OSHA-2023-0010-0005). The HOM
provides the minimum requirements regarding expected safety and health
hazards (including anticipated geological conditions) and hyperbaric
exposures during the tunnel-construction project.
2. Ballard must demonstrate that the TBM 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 TBM's hyperbaric chambers.
3. Ballard must implement the safety and health instructions
included in the manufacturer's operations manuals for the TBM, and the
safety and health instructions provided by the manufacturer for the
operation of decompression equipment.
4. Ballard must ensure that there are no exposures to pressures
greater than 29 p.s.i.g.
5. Ballard must ensure that air or oxygen is the only breathing gas
in the working chamber.
6. Ballard must 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 must equip man-locks used by employees with an air or
oxygen delivery system, as specified by the HOM for the project.
Ballard is prohibited from storing in the tunnel any oxygen or other
compressed gases used in conjunction with hyperbaric work.
8. Workers performing hot work under hyperbaric conditions must use
flame-retardant personal protective equipment and clothing.
9. In hyperbaric work areas, Ballard must maintain an adequate
fire-suppression system approved for hyperbaric work areas.
10. Ballard must develop and implement one or more Job Hazard
Analysis (JHA) 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 must include all the job functions that
the risk assessment \16\ indicates are essential to prevent injury or
illness.
---------------------------------------------------------------------------
\16\ Also see 29 CFR 1910.146(b).
---------------------------------------------------------------------------
11. Ballard must develop a set of checklists to guide compressed-
air work and ensure that employees follow the procedures required by
the permanent variance (including all procedures required by the HOM
approved by OSHA for the project, which this permanent variance
incorporates by reference). The checklists must include all steps and
equipment functions that the risk assessment indicates are essential to
prevent injury or illness during compressed-air work.
12. Ballard must 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.
E. Communication
1. Prior to beginning a shift, Ballard must 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
rockslides, cave-ins, flooding, fires, or explosions.
2. Ballard must provide a power-assisted means of communication
among affected workers and support personnel in hyperbaric conditions
where unassisted voice communication is inadequate.
(a) Ballard must use an independent power supply for powered
communication systems, and these systems 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) Ballard must test communication systems at the start of each
shift and as necessary thereafter to ensure proper operation.
F. Worker Qualifications and Training
Ballard must:
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 must 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) of this
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 Long Island, New York Area Office before the
training takes place.
G. Inspections, Tests, and Accident Prevention
1. Ballard must initiate and maintain a program of frequent and
regular inspections of the TBM'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 TBM.
2. Removing any equipment that is found to constitute a safety
hazard until Ballard corrects the hazardous condition and has the
correction approved by a qualified person.
3. Ballard must maintain records of all tests and inspections of
the TBM, as well as associated corrective actions and repairs, at the
job site for the duration of the tunneling project and for 90 days
after the final project report is submitted to OSHA.
H. Compression and Decompression
Ballard must consult with its attending physician concerning the
need for special compression or decompression exposures appropriate for
CAWs not acclimated to hyperbaric exposure.
I. Recordkeeping
In addition to completing OSHA Form 301 Injury and Illness Incident
Report and OSHA Form 300 Log of Work-Related Injuries and Illnesses,
Ballard must 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.
J. Notifications
1. To assist OSHA in administering the conditions specified herein,
Ballard must:
(a) Notify the OTPCA and the OSHA Area Office in Long Island, New
York at www.osha.gov/contactus/byoffice of any recordable injury,
illness, or fatality (by submitting the completed OSHA Form 301 Injury
and Illness Incident Report) \17\ resulting from exposure of an
employee to hyperbaric conditions, 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 must 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 Form
301 Injuries 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 Form 301 Injuries and Illness Incident Report, the
incident-investigation report must include a root-cause determination,
and the preventive and corrective actions identified and implemented.
---------------------------------------------------------------------------
\17\ 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 https://www.osha.gov/recordkeeping/forms.
---------------------------------------------------------------------------
(b) Provide certification to OTPCA and the OSHA Area Office in Long
Island, New York 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 and
preventive and corrective actions identified and implemented).
(c) Notify the OTPCA and the OSHA Area Office in Long Island, New
York within 15 working days and in writing, of any change in the
compressed-air operations that affects Ballard's ability to comply with
the conditions specified herein.
(d) Upon completion of the Bay Park Conveyance Tunnel Project,
evaluate the effectiveness of the decompression tables used throughout
the project, and provide a written report of this evaluation to the
OTPCA and the OSHA Area Office in Long Island, New York.
Note: The evaluation report must 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 Form 301 Injuries and Illness Incident Report and OSHA 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 conditions specified
herein, inform the OTPCA and the OSHA Area Office in Long Island, New
York 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 permanent variance by the
same means required to inform them of its application for a permanent
variance.
2. This permanent variance cannot be transferred to a successor
company without OSHA approval.
VIII. Authority and Signature
James S. Frederick, 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 29 U.S.C. 655(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 31, 2024.
James S. Frederick,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2024-02437 Filed 2-6-24; 8:45 am]
BILLING CODE 4510-26-P
