May 23, 2008

Mr. Jonathan L. Pennington
McCulley Eastham & Associates, Inc.
P.O. Box 320
Greenup, KY 41144

Dear Mr. Pennington:

Thank you for your January 2 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 (GIE) for an answer regarding OSHA's Permit-required confined spaces standard (PRCS), 29 CFR 1910.146.

It is my understanding that you have spoken with my staff and were informed that the State of Kentucky operates its own occupational safety and health program under a plan approved by Federal OSHA. However, your letter requests a written response to your question from Federal OSHA. Your scenario and question has been paraphrased below for clarity.

Scenario: An employer evaluates and selects a local fire department using the guidance provided in Appendix F of the PRCS standard, Rescue Team or Rescue Service Evaluation Criteria (Non-mandatory). The employer has determined that the local fire department is adequately trained and equipped to perform permit space rescues of the kind needed at the facility. The employer has also made a performance evaluation of the service in which the employer has measured the performance of the team or service during an actual or practice rescue. However, the local fire department cannot guarantee that the rescue team will not be sent on another call during the employer's permit-space entry operations. In other words, they have the ability to respond in a timely basis, unless another call prevents them from doing so.

Question: If the employer selects this local fire department as its off-site rescue service, would the employer be in compliance with 29 CFR 1910.146(k)(1)?

Response: The standard at 29 CFR 1910.146(k)(1) provides:

(1) An employer who designates rescue and emergency services, pursuant to paragraph (d)(9) of his section, shall:

(i) Evaluate a prospective rescuer's ability to respond to a rescue summons in a timely manner, considering the hazard(s) identified;

Note to paragraph (k)(1)(i): What will be considered timely will vary according to the specific hazards involved in each entry. For example, §1910.134, Respiratory Protection, requires that employers provide a standby person or persons capable of immediate action to rescue employee(s) wearing respiratory protection while in work areas defined as IDLH atmospheres.

(ii) Evaluate a prospective rescue service's ability, in terms of proficiency with rescue-related tasks and equipment, to function appropriately while rescuing entrants from the particular permit space or types of permit spaces identified;

(iii) Select a rescue team or service from those evaluated that:

(A) Has the capability to reach the victim(s) within a time frame that is appropriate for the permit space hazard(s) identified;

(B) Is equipped for and proficient in performing the needed rescue services;

(iv) Inform each rescue team or service of the hazards they may confront when called on to perform rescue at the site; and

(v) Provide the rescue team or service selected with access to all permit spaces from which rescue may be necessary so that the rescue service can develop appropriate rescue plans and practice rescue operations.

Note to paragraph (k)(1): Non-mandatory appendix F contains examples of criteria which employers can use in evaluating prospective rescuers as required by paragraph (k)(1) of this section.

The employer must evaluate and select an off-site rescue service that has the capability to respond in a timely manner to the particular hazards at issue and to the types of emergencies that may arise in the employer's confined spaces. The criteria employers can use in evaluating and selecting a service include determining whether the service is unavailable at certain times of the day or in certain situations, the likelihood that key personnel of the rescue service might be unavailable at times, and, if the rescue service becomes unavailable while an entry is underway, whether the service has the capability of notifying the employer so that the employer can instruct the attendant to abort the entry immediately.

Compliance may require the employer to be in close communication with the off-site rescue service immediately prior to each permit space entry. In the scenario you describe, the employer must ensure close communication with the rescue service during entry operations so that if the rescue service becomes unavailable while an entry is underway, the employer can instruct the attendant to abort the entry immediately. Entry operations cannot resume until the entry supervisor verifies that rescue services are able to respond in a timely manner.

As you are aware, the State of Kentucky operates its own safety and health program under a plan approved by Federal OSHA. Under this plan, the Kentucky Department of Labor promulgates and enforces occupational safety and health standards under authority of State law. Kentucky generally adopts standards that are identical to Federal OSHA, and any standards that are different must be as effective as Federal OSHA's. State Plans must interpret an identical State standard in a manner consistent with Federal OSHA interpretation and a different standard in a manner at least as effective as Federal OSHA's. For information on the Kentucky Permit-required confined spaces standard and its enforcement, we suggest you contact:

Kentucky Department of Labor
1047 U.S. Highway 127 South, Suite 4
Frankfort, Kentucky 40601

J. R. Gray, Commissioner
Telephone: (502) 564-3070

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. 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 http://www.osha.gov. If you have any further questions, please feel free to contact the OSHA Office of General Industry Enforcement at (202) 693-1850.

Sincerely,



Richard E. Fairfax, Director
Directorate of Enforcement Programs