July 7, 1993

Richard P. Klinzing
Vice President
Employee Relations
American Forest &
Paper Association
260 Madison Avenue
New York, N.Y. 10016-2499

Dear Mr. Klinzing:

Thank you for your letter of March 30, in which you requested a written interpretation of the Confined Space provisions of 29 CFR 1910.261 in light of the promulgation of 29 CFR 1910.146. Please accept our apology for the delay in this response.

Your letter specifically asked whether an employer in compliance with 1910.146 would be in compliance with the confined space entry provisions of 1910.261? Also, would OSHA consider any violations of the vessel entry provisions of 1910.261 a de minimis violation if this employer complies with 1910.146?

The answer to both questions is generally "no". Pursuant to 29 CFR 1910.5, Applicability of Standards, the provisions of the more specific applicable standard, 1910.261(b)(5), supersede the general standard 1910.146 for the entry of confined spaces, such as tanks, chip bins and similar equipment, insofar as the more specific standard addresses the hazard to which entrants would be exposed.

Employees assigned to enter other "permit spaces" within mills (manholes, pits, tunnel and large diameter piping systems, etc.) or exposed to hazards not specifically addressed by 1910.261(b)(5) must comply with the requirements of 1910.146. When employers, such as those in the pulp and paper industry, address confined space hazards to which the PRCS standard and their industry-specific standard may apply, they can choose to formulate a confined space program and work practices which incorporate the more protective approaches of both standards.

If you have any further questions concerning this workplace condition or other questions on the Permit-Required Confined Space standard, you can contact the Office of General Industry Compliance Assistance by telephoning (202) 219-8031.

Sincerely,



Roger A. Clark, Director
Directorate of Compliance Programs




March 30, 1993

Mr. Roger A. Clark
Director of the Directorate
of Compliance Programs
Occupational Safety
and Health Administration
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Re: Interpretation of Confined Space Provisions of 1910.261 in Light of Promulgation of 1910.146

Dear Mr. Clark:

On behalf of the American Forest and Paper Association and its member companies, we are seeking an official interpretation of those provisions of Pulp, Paper, and Paperboard Mills Standard (29 C.F.R. 1910.261) which address the hazards of confined space entry. This request is being made to clarify the confusion resulting from inconsistencies in the approaches taken by the new Permit-Required Confined Spaces Standard for General Industry (29 C.F.R. 1910.146) and 1910.261 -- the vertical standard applicable to our industry.

Interpretation Sought

Specifically, we are seeking an interpretation that compliance with the provisions of 1910.146 would be deemed compliance with the confined space entry provisions of 1910.261. In the alternative, we are seeking an interpretation that, as long as a facility complies with 1910.146, any violation of the confined space entry provisions of 1910.261 will be deemed a "de minimis" violation. We understand a de minimis violation to be one described as follows: 1) it has no health or safety significance; 2) no penalty is assessed; 3) no abatement of the condition is required; and 4) it cannot serve as a foundation for a repeat violation.

Shortcomings of Section 1910.261 and Conflicts with Section 1910.146

Section 1910.261 became effective on August 27, 1971. It is outdated and addresses the hazards of permit-required confined space entry only in a limited and piecemeal fashion. The huge disparities between the very limited coverage of confined space entry hazards in 1910.261 (See: (b)(5); (g)(4), (8), (15), (16), and (22); and (j)(4), (5), (6)) and the far more comprehensive coverage provided by 1910.146 are apparent. For example, 1910.146 addresses broad areas, such as training and contractor cooperation, not covered by 1910.261. On a more detailed level, 1910.146 addresses practices such as the use of barriers, signs and periodic monitoring, which are not covered by 1910.261.

There are some areas where 1910.261 specifies a particular approach whereas 1910.146 provides greater flexibility. For example, 1910.261(b)(5), Vessel Entering, seems to say that lifelines and safety harnesses must be worn by anyone entering a permit-confined space. On the other hand, 1910.146(k)(3) generally provides that safety lines will not be required where: (1) they are infeasible; (2) they create a greater safety hazard; or (3) they do not significantly contribute to employee safety. 58 Fed. Reg. 4530, col. 3 and 4531, col. 1.

Section 1910.261(b)(5) also seems to say that all confined space entries require an attendant. On the other hand, 1910.146(c)(5) and (c)(7), respectively, provide exemptions from the attendant requirement for: (1) permit spaces which present only an atmospheric hazard which is controlled through continuous ventilation; and (2) permit spaces which present only a mechanical hazard which has been eliminated prior to entry.

Section 1910.261(b)(5) also could be read to say that self-contained or air-supplied breathing apparatus must be readily available for emergency rescue in connection with every confined space entry regardless of the nature of the hazard. Section 1910.146 properly focuses on prevention and non-entry rescue where rescue is required. It also recognizes that many entries do not present the type of atmospheric hazards which would call for stand-by breathing apparatus.

Benefits of Looking to a Single Comprehensive Standard

We believe it would be in the best interests of employees exposed to confined space hazards and employers generally if facilities covered by 1910.261 had the option of following the more flexible requirements of 1910.146 rather than the limited yet rigid requirements of 1910.261. We believe statements made by the Agency in the Preamble to the Permit-Required Confined Spaces Standard support that position. In summarizing the new Standard, the Agency stated:

The new standard provides a comprehensive regulatory framework within which employers can effectively protect employees who work in permit spaces.

OSHA anticipates that compliance with the provisions of this standard will effectively protect employees who work in permit-required confined spaces from injury or death.

The types of permit-required confined spaces found in the pulp, paper and paperboard mill industry are not materially different from the multitude of permit-required confined spaces found in the other industries governed by 1910.146 and for which no vertical standard applies. From the standpoint of health and safety, there is no justification for requiring the paper industry to follow the rigid but very limited requirements of 1910.261 rather than the comprehensive and more flexible requirements of 1910.146. The conflicts in substance and approach between the two standards introduce unnecessary confusion and interfere with the ability of our members to establish universal confined space entry procedures for all of their facilities, many of which are not subject to 1910.261.

Conclusion

The provisions of 1910.261 which address confined space entry are outdated, limited in scope and content, and overly specific. In light of the promulgation of 1910.146, the continued application of 1910.261 to confined space entry creates unnecessary confusion and interferes with the ability of our members to establish a uniform and effective permit confined space entry program for their facilities. Furthermore, we understand the Agency's position to be that 1910.146 will be interpreted to fill in the large gaps in 1910.261 to achieve the comprehensive coverage of permit-required confined space entry hazards sought by the Agency in issuing 1910.146. See 58 Fed. Reg. 4469, columns 2 and 3.

Accordingly, we request that the Agency issue a determination substantially as follows:

An employer in compliance with 1910.146 will be deemed to be in compliance with the provisions of 1910.261 which address the hazards of entry into what would be referred to as a permit-required confined space under 1910.146.

In the alternative, we request the Agency issue a determination substantially as follows:

If an employer is in compliance with 1910.146, any violation of the confined space entry provisions of 1910.261 will be characterized as a "de minimis" violation. No penalties are assessed for de minimis violations, and no abatement of the condition is required. De minimis violations are issued when there is no direct or immediate relationship to safety and health.

Due to rapidly approaching enforcement deadline for compliance with 1910.146, we respectfully request expeditious consideration of this request. Should you have any questions or require any further information, please contact the undersigned. Thank you for your attention and response to this matter.

Cordially,



Richard P. Klinzing
Vice President
Employees Relations

cc: Safety and Health Subcommittee