NAHB, OSHA Settle Litigation on Confined Spaces Rule

Filed in Labor, Safety and Health by on May 25, 2016 4 Comments

After months of negotiation with the Occupational Safety and Health Administration (OSHA), NAHB finally reached a settlement agreement that resolves the association’s legal challenge to the agency’s Confined Spaces in Construction final rule.

In general, the settlement clarifies that the rule has very limited application in the residential home building industry. The Q&A defines “residential home building” or “residential home construction” as work on any residence being built using traditional wood frame construction materials, methods and procedures that are typical to single-family home or townhouse construction. Work on multifamily residences may also be considered “residential home building” or “residential home construction” provided that the work similarly meets this criteria.

As part of the settlement, the agency published a lengthy Q&A to provide a more detailed explanation of how it actually applies to attics, basements and crawl spaces in residential homes.  Notably, the Q&A clarifies that the vast majority of the rule’s requirements only apply to permit-required confined spaces, and that attics, basements and crawl spaces in a residential home will not typically trigger these requirements.

For example, the mere presence of a physical hazard in one of these spaces in a residential home would not make that space a permit-required confined space under the rule. The presence of a physical hazard would only make a space a permit-required confined space if an entrant has exposure to a serious hazard and the exposure could hinder their ability to exit the space without assistance.

The Q&A also states definitively that the presence of asbestos in a confined space in a residential home would not trigger the permit-required confined space requirements.

Attics, too, will now only rarely be considered permit-required confined spaces, as they typically do not contain the types of potential hazards that make a confined space a permit-required confined space. Likewise, performance of duties outside of an attic would rarely turn a confined space into a permit-required confined space.

It’s important to note that the final rule does require an employer to conduct an initial evaluation of a confined space to determine if it is a permit-required confined space as defined by the rule. However, per the new Q&A, the evaluation does not require a physical survey of the space. Instead, the evaluation requirement may be met through existing experience and knowledge of the space, as long as the information provided is adequate enough to make a determination.

The Q&A notes the “limited nature” of the communication requirements among host employers, controlling contractors and entry employers regarding the presence of hazards in permit-required confined spaces.

The rule only requires a host employer to communicate the information mentioned in paragraph (h) of the final rule, if it is known by the host employer and does not require the host employer to perform a separate assessment to gather the information.

In addition, the communication provisions only require host employers to convey information to a controlling contractor through reasonable means. If the controlling contractor (i.e., general contractor) owns or manages the property, then it is both a controlling employer and a host employer.

With this settlement, OSHA has agreed to provide the Q&A to its regional offices and state plan programs, publish it on its website, and incorporate the Q&A into its compliance directive for the rule.

For a comprehensive overview of the Q&A, join NAHB for a free webinar on June 16. Bradford Hammock, a partner at Jackson Lewis P.C., whose practice focuses exclusively on safety and health issues, will provide information to help builders understand the OSHA Confined Spaces in Construction rule.

For additional information about the rule, visit NAHB’s Confined Spaces in Construction Toolkit or contact Rob Matuga at 202-266-8507.

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  1. » NAHB, OSHA Settle Litigation on Confined Spaces Rule | May 25, 2016
  1. Don Druse says:

    This is excellent news.

    Permit required Confined Space rulings for residential construction made absolutely no sense from the beginning.
    To require our member to purchase gas monitors, rescue equipment for each site and have a designated “Hole Watch” for each entry point at every home would have added substantial a substantial cost of doing business.

    Thanks Rob Matuga!!

    Don Druse
    Safety Plus, Inc.
    Mobile, AL

  2. Rick Hall says:

    Don look over this part. It would still require a monitor.
    It’s important to note that the final rule does require an employer to conduct an initial evaluation of a confined space to determine if it is a permit-required confined space as defined by the rule. However, per the new Q&A, the evaluation does not require a physical survey of the space. Instead, the evaluation requirement may be met through existing experience and knowledge of the space, as long as the information provided is adequate enough to make a determination.

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