February 8, 2005

Mr. Ronald R. Demaray
Regulatory Consultants, Inc.
140 West 8th Street
Horton, KS 66439

Dear Mr. Demaray:

Thank you for your April 13, 2004 letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs (DEP). Your letter has been referred to DEP's Office of General Industry Enforcement for an answer to your questions regarding OSHA's Permit-Required Confined Spaces (PRCS) Standard, 29 CFR 1910.146 and Grain Handling Standard, 29 CFR 1910.272. Your questions have been restated below for clarity.

Question 1: The Grain Handling Standard does not require grain bins to be identified and posted as permit-required confined spaces. Are grain bins required to be labeled as permit-required confined spaces under 29 CFR 1910.146?

Reply: 29 CFR 1910.146(c)(2) requires that employers inform exposed employees, by posting danger signs or by any other equally effective means, of the existence and location of and the danger posed by, permit spaces. An employer who falls within the scope of the grain handling standard may be cited under 29 CFR 1910.272(e)(1)(i) for failing to train employees on general safety precautions, such as recognizing that grain storage structures require special entry precautions. However, in neither standard is labeling the exclusive or specific means of informing employees of the hazards posed by grain bins.

Question 2: Does the Grain Handling Standard, 29 CFR 1910.272, supersede the requirements of 29 CFR 1910.146 with regard to entry into grain bins, silos, tanks, and other grain structures?

Reply: 29 CFR 1910.272(g) takes precedence over the permit-required confined space standard for the hazards it addresses.

Question 3: What documentation is required as proof that the supervisor has no reason to suspect "bad" air quality in a grain bin?

Reply: The employer is required to issue a permit for entering bins unless the employer or the employer's representative is present during the entire operation. The permit must certify that the precautions contained in 29 CFR 1910.272(g) have been implemented. Although specific results of air testing are not required to be documented under 29 CFR 1910.272(g), an employer would still be required to maintain employee exposure records in accordance with 29 CFR 1910.1020.

Question 4: If employees enter grain bins under the requirements from the Grain Handling Standard, could the employer be cited for violations under the Permit-Required Confined Spaces Standard?

Reply: Confined space work that is regulated under 29 CFR 1910.272, such as grain bin entry, is not subject to the provisions of 29 CFR 1910.146 as long as the provisions of 29 CFR 1910.272 protect against all of the hazards within the grain bins.

Question 5: Does an employer with a grain elevator operating under the Grain Handling Standard need only to provide rescue equipment?

Reply: No, 29 CFR 1910.272(g)(3) clearly states that an observer shall be stationed outside the bin, silo, or tank being entered by an employee. In addition, 29 CFR 1910.272(g)(5) requires that the employee acting as an observer shall be trained in rescue procedures, including notification methods for obtaining additional assistance.

Question 6: If an employer would need to use the local fire department for rescue, would the training required by the fire department need to follow 29 CFR 1910.146?

Reply: OSHA does not have enforcement jurisdiction over local government entities such as local fire departments. However, a prudent employer would preplan to assure that any local emergency entity has the equipment, trained personnel, etc., if it were to rely on that outside service to conduct rescue. An employer could look to guidance in Appendix F to 29 CFR 1910.146 -- Rescue Team or Rescue Service Evaluation Criteria (Non-Mandatory) and 29 CFR 1910.272 Appendix A-2 Emergency Action Plan in choosing an appropriate rescue service.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. 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. 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 http://www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.

Sincerely,


Richard E. Fairfax, Director
Directorate of Enforcement Programs