OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

December 3, 1993

Mr. Mark W. Monson
Director of Training
Chicagoland Construction Safety Council
4415 West Harrison Street, Suite 403
Hillside, IL 60162

Dear Mr. Monson:

This is in response to your September 9 letter requesting an interpretation of the Occupational Safety and Health Administration's (OSHA) policy regarding the application of general industry standards to construction activities. I apologize for the delay in responding to your inquiry.

With regard to the application of 1926.20(d)(2), please be advised that the plain reading of this paragraph would indicate that any standards, including Part 1910 standards, would apply to an activity at a construction site if no specific construction standard exists. However, OSHA's policy is to apply only those Part 1910 standards to construction that have been identified in notices such as the June 30 Federal Register as being applicable to construction. Section 1910.146 has not been so identified.

OSHA's enforcement policy with regard to confined spaces at construction sites has not changed with the promulgation of the general industry regulation for permit-required confined space entry. In those instances where a hazard is addressed by an existing part 1926 standard, OSHA will continue to cite the specific standard. In those cases where a hazard is observed that is not addressed by an existing specific construction standard but is addressed in the American National Standards Institute's Z117.1 consensus standard, OSHA will continue to cite under 5(a)(1) of the Act provided the conditions for citing the general duty clause are present. OSHA will not reference a 1910.146 standard in a citation issued at a construction site.

In addition, OSHA can cite 1926.21 for failure to provide adequate training for employees entering confined spaces. However, OSHA policy dictates that where a standard does not prescribe specific criteria (e.g. 1921), the Agency must establish that the cited employer failed to provide the instructions that a reasonably prudent employer would have given in the same circumstances.

A copy of an United States Court of Appeals decision on this issue is enclosed for further reference. If we can be of any further assistance, please do not hesitate to contact me or Mr. Dale Cavanaugh at (202) 219-8136.

Sincerely,



Roy F. Gurnham, P.E., J.D.
Director
Office of Construction and Maritime
Compliance Assistance


Enclosure



September 9, 1993

Dale R. Cavanaugh, P.E.
Chief
Division of Construction Compliance Assistance
Room N3610
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Dear Dale:

In regards to my last letter dated September 8, 1993, I realized I had mistakenly requested an interpretation of the wrong section number. Please disregard that letter and use this one for your response.

I have a question regarding the 1910 standards newly incorporated and made applicable to Construction published June 30, 1993 in the Federal Register Vol. 58, No. 124.

Specifically relating to 1926.20(d)(2)

Does the language, as written, mean that any standard, even a 1910 standard, that applies to a type of work or operation can be used by OSHA for enforcement purposes. To be more specific: Does this language as written in 1926.20(d)(2) allow OSHA to enforce 1910.146 - Permit Required Confined Spaces on the construction industry in all cases where confined spaces are encountered in construction?

Sincerely,



Mark W. Monson
Director of Training CCSC