UNITED STATES GOVERNMENT

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DEPARTMENT OF LABOR

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OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

(OSHA)

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HEARING ON THE PROPOSED STANDARD FOR Confined-Spaces in Construction

Case No. OSHA-2007-0026

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TUESDAY, JULY 22, 2008

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The Hearing convened at 10:00 a.m. in the Francis Perkins Building
Auditorium, 200 Constitution Avenue, NW, Washington, D.C., John M.
Vittone, Administrative Law Judge, presiding.

STAFF PRESENT:

JOHN M. VITTONE, Administrative Law Judge

WILLIAM PARSONS, Directorate of Construction

GARVIN M. BRANCH, Directorate of

Construction

ROBERT J. BIERSNER, Office of the Solicitor

ALLISON G. KRAMER, Office of the Solicitor

ROBERT E. BURT, Office of Regulatory

Analysis (OSHA)

JENS K. SVENSON, Office of Regulatory

Analysis (OSHA)

VENETA E. CHATMON, Office of Communications

(OSHA)

TABLE OF CONTENTS

Introduction and Hearing Guidelines 3

Introductory Statement

Robert J. Biersner 6

Project Overview

William R. Parsons 11

American Society of Safety Engineers

Gary Lopez 52

International Association of Foundation

Drilling, Richard Marshall 71

Edison Electric Institute

Charles J. Kelly 94

Kenneth Frazier 103

John Garzich 108

American Wind Energy Association

Britt Theismann 146

National Utility Contractors Association

George S. Kennedy 171

Steel Tank Institute/Steel Plate Fabricators Association

Wilson Frazier 209

James Rhudy 211

Philadelphia Builders Chapter of the Associated General Contractors of
America

Phillip Radomski 259

Mechanical Contractors Association of

America, Tom Skaggs 276

Building and Construction Trades Department

AFL-CIO

Laurie Shadrick 297

Travis Parsons 305

Gerald Ryan 312

P-R-O-C-E-E-D-I-N-G-S

10:00 a.m.

JUDGE VITTONE: Good morning, ladies and gentlemen. The hearing will come
to order please. This is a public hearing on the Occupational Safety and
Health Administration\'s proposed rule for Confined-Spaces in
Construction. The proposed rule for this proceeding was published in the
*Federal Register* at volume 72, page 67,352 on November 28, 2007.

The Notice of Hearing announcing that this hearing would take place was
published in the *Federal Register* at volume 73, page 21,292 on April
21, 2008.

I\'m John Vittone. I\'m the chief administrative law judge with the
Department of Labor and I will be presiding today and tomorrow at this
hearing.

The purpose of these hearings is to receive oral and written testimony
of interested parties, as well as other information pertinent to the
promulgation of the proposed rule. At the conclusion of these hearings
the record of these proceedings will be reviewed by the Department in
determining whether a rule should issue; and if so, what the content of
that rule should be.

My participation as a judge is limited to presiding at these hearings
and to assure that a complete record is made and that all concerned and
interested parties receive a fair hearing.

The rules governing this hearing, as well as the prehearing guidelines
are available on the table at the entranceway to the auditorium.
There\'s also a list of witnesses available designating the proposed
order of appearance and the time at which they may be appearing.

While these hearings are informal in nature, they are governed by some
basic guidelines to assure that everyone has an opportunity to speak and
to express their point of view.

Unduly repetitious testimony will not be allowed though and the
presentation of witnesses will be generally limited to about 10 minutes.

The written submissions that you may have provided will be a matter of
record and participants in this proceeding should concentrate on
presenting on the highlights of their testimony or to clarify their
written submissions. Witnesses, may, if they wish, identify and sponsor
their written submissions and make themselves available for questions by
the other participants.

After a witness has completed his testimony, parties who have filed
appearances may question the witness. Each participant is expected to
limit his questions to a maximum of about 15 minutes.

When a witness\' testimony is completed, I ask for the identify of those
individuals in the audience who wish to question the witness. I will
then determine the order in which the participants in this proceeding
will question the particular witness. And to those of you who ask me
later what standard do I follow, it\'s purely arbitrary and capricious.

The guidelines for these hearings were set out in detail in the Notice
of Hearing, in the *Federal Register* and also in my order of July 10,
2008.

We\'re going to begin these proceedings, but first I\'d like to call on
the representative of the solicitor of the Department, Mr. Robert J.
Beirsner for the Office.

Mr. Beirsner.

MR. BIERSNER: Thank you, Judge Vittone.

Judge Vittone\'s already given you my name and I\'m the project attorney
for this rulemaking and the attorney at this hearing. And I\'d like to
welcome all of you on behalf of the Solicitor of Labor.

I am, in addition to being a project attorney, also the acting counsel
for Safety Standards in the Occupational Safety and Health Division of
the Solicitor\'s Office. With me today from the Solicitor\'s Office is
Allison Kramer who is assisting us with the hearing. And she will be
asking questions later of the presenters and the witnesses.

The role of the Solicitor\'s Office in the hearing is to ensure that the
record obtained as a result of this hearing is clear complete and
accurate. We assist in the development of that record and in addition we
will be doing that by asking you questions, by eliciting information on
various issues and helping to resolve any procedural matters that may
arise during the hearing.

At this time, Your Honor, I\'d like to offer you the master index of the
complete record of this rulemaking for inclusion in this hearing record.

JUDGE VITTONE: Thank you very much.

MR. BIERSNER: This is not a copy of all the documents that have been
submitted to the docket. Rather, it is a list of all the documents that
are contained in the public docket of this rule making. The docket
number for this rulemaking is OSHA-2007-0026. All of the documents up to
this point and later will be available at the OSHA docket office in room
N-2625 of this building, or they are accessible on the federal
rulemaking portal at www.regulations.gov. I hope most of you have
availed yourself of that web site. It\'s extremely useful.

Your Honor, I would like to take this opportunity to address a couple of
small procedural matters.

Since we have an exhibit number that is now 12 alphanumeric digits long,
I would like to just refer to the last four digits, which would be the
unique identifier for each exhibit.

JUDGE VITTONE: Okay. That\'s fine.

MR. BIERSNER: Okay. I\'d also like to request the witnesses to provide
me with copies of their testimony and any other documents that they will
be using today. You should hand these documents to me prior to providing
your testimony. If you don\'t have copies of these documents, but you
want to submit them to the docket, then after you make your
presentations, please provide them to me. To remind you of this matter,
I will, at the end of your presentation, if you haven\'t already
provided me with the documents, ask you if you have any documents to
submit to the docket. At that point when you submit the documents to me,
I will assign them an exhibit number and I will ask Judge Vittone to
admit them to the docket.

And that\'s my opening statement.

JUDGE VITTONE: Thank you very much. Would you like to introduce the
other members of the panels, please?

JUDGE VITTONE: Yes, I would, Your Honor.

First, I\'d like to introduce Bill Parsons who\'s got the short straw
today and didn\'t get a seat up here on the table. He is the new
director of the Office of Construction Standards and Guidance in the
Directorate of Construction at OSHA.

Next to me on my left is Garvin Branch. He\'s in the same office as
Bill. He is the project officer for this proposal and the final
standard.

At the end of the table is Bob Burt, who is director of OSHA\'s Office
of Regulatory Analysis in the Directorate of Evaluation and analysis of
OSHA.

And behind Bob; and Bob is the chief economist, and behind him is the
project economist, Jens Svenson. He is also in the office of Regulatory
Analysis of the Directorate of Evaluation and Analysis.

Now, Your Honor, I\'d like to introduce Bill Parsons who will present
OSHA\'s opening statement.

JUDGE VITTONE: Mr. Parsons.

MR. WILLIAM PARSONS: Thank you, sir.

Good morning, Judge Vittone, ladies and gentlemen. As previously stated,
I am Bill Parsons, Director of the Office of Construction Standards and
Guidance in the Directorate of Construction of the Occupational Safety
and Health Administration, OSHA.

On behalf of OSHA I would like to welcome you to this informal public
hearing on the proposed standard for Confined-Spaces in Construction.

OSHA considers this informal public hearing to be a very important step
in its efforts to develop an effective, feasible and protective final
rule addressing confined-spaces in the construction industry. The
development of a clear, accurate, and complete public record is a
critical part of the rulemaking process. Your participation and your
contributions to the public record are greatly appreciated. Let me
assure you that OSHA will fully consider your comments, testimony and
recommendation as the final standard is developed.

On March 25, 1980, OSHA published an Advanced Notice of Proposed
Rulemaking, ANPR, on confined-spaces for the construction industry. The
ANPR posed 31 questions concerning confined-space hazards in the
construction industry, and the Agency received 75 comments in response
to these questions. However, OSHA took no further action on this
regulatory initiative at that time.

OSHA issued the general industry confined-spaces rule, 29 CFR 1910.146,
on January 14, 1993, as well as a similar rule for the shipyard
industry, 29 CFR 1915.7, on July 25, 1994. The general industry standard
requires employers to classify hazardous confined-spaces as
\"permit-required confined-spaces,\" and to implement specific
procedures to ensure the safety of employees who enter them.

The general industry standard contains detailed procedures for
developing a written confined-space program, monitoring atmospheric
hazards, training employees, preventing unauthorized employees from
entering these spaces, providing for both non-entry and entry rescue,
and maintaining records.

The general industry standard specifics a limited exception from some of
the permit-required confined-space requirements when the only hazard in
a confined-space is an atmospheric hazard and ventilation equipment will
control the atmospheric hazard at safe levels. It also provides
protection to employees from non-atmospheric hazards within
non-permit-required, as well as permit-required, confined-spaces.
However, the general industry standard does not apply to construction
employers. OSHA currently does not have a construction standard
specifying the appropriate level of employee participation based on the
hazards created by construction activities performed in confined-spaces.

The Agency recognizes that a number of requirements of the proposed
standard for Confined-spaces in Construction are substantively similar
to provisions of the general industry standard for permit-required
confined-spaces. Nevertheless, OSHA does not believe that the general
industry standard addresses adequately the unique aspects of
Confined-spaces in Construction.

Compared to general industry, the construction industry has higher
employee turnover rates, with construction employees more often working
at multiple work sites performing short-term tasks. Unlike most general
industry work sites, construction work sites are continually evolving,
with the number and characteristics of confined-spaces changing as work
progresses. Multiple contractors and controlling contractors are found
more often at construction work sites than at general industry work
sites. Also, in contrast to general industry, OSHA believes that many
contractors who perform construction work in sewer systems are
unfamiliar with the hazards associated with these work sites. Therefore,
OSHA placed more emphasis in this proposed standard on assessing and
reassessing confined-space hazards at construction work sites, notifying
contractors of confined-space hazards, and notifying and training
employees regarding these hazards than it did in the general industry
confined-spaces standard.

The differences in employee and work site characteristics between the
construction standard and the general industry prompted OSHA to develop
a proposed standard for regulating confined-spaces in the construction
industry that varied substantially, in certain respects, from the
general industry confined-spaces standard. Because of the regulatory
differences between this proposed standard and the general industry
standard, the general industry standard was not considered a substitute
for this proposed construction standard.

In 1993, as a part of litigation activity associated with the newly
promulgated general industry standard, OSHA agreed in a settlement with
the United Steel Workers of America to issue a proposed rule to extend
confined-space protection to construction employees. On February 18,
1994, OSHA submitted a draft proposed standard for Confined-spaces in
Construction to the Advisory Committee for Construction Safety and
Health, ACCSH, for comment. ACCSH established a work group on March 22,
1994, to address the OSHA draft proposed standard and report its
findings to the full committee.

ACCSH adopted the work group report on May 17, 1994, and recommended
that OSHA incorporate it into the rulemaking docket. In this report,
ACCSH noted the general industry standard did not meet the needs of the
construction industry because it did not provide adequate information to
contractors for distinguishing among the different types of
confined-spaces, or to determine the appropriate level of employee
protection based on the hazards resulting from construction activities
performed in confined-spaces. In addition, ACCSH found that
confined-spaces encountered or created in construction often are not
identified or classified prior to the beginning of a construction
project.

Consequently, ACCSH established a work group to draft a proposed
standard that would meet the unique needs of the construction industry.
The ACCSH draft proposed standard emphasized identifying different types
of confined-spaces encountered in the construction work,
inter-contractor information exchange, and the detailed protections
necessary to eliminate or control specific hazards.

The ACCSH work group submitted a draft proposed standard for
Confined-spaces in Construction to OSHA in the winter of 1996. The ACCSH
then recommended that OSHA adopt this proposed confined-spaces standard.
Later, OSHA determined that the ACCSH draft proposed standard needed to
be reworked to make it easier to understand, especially for small
employers who do not typically employ a separate safety staff. The
Agency also determined that certain hazards, such as those encountered
in sewer-construction work, were not adequately addressed. Consequently,
OSHA determined that it was necessary to develop a new draft proposed
standard.

In 1998, OSHA completed a new draft proposed standard but discovered
that there were several issues that needed to be resolved before the
draft proposed standard could be finalized. To get feedback from the
construction industry, OSHA held three stakeholder meetings in October
of 2000 across the country to discuss these issues.

In late 2003, OSHA completed the draft proposed standard and convened a
panel under the Small Business Regulatory Enforcement Fairness Act,
SBREFA, to solicit comments on it from small business entities. The
SBREFA panel conducted two conference-call discussions, which were open
to the public, in which small business entities were invited to express
their concerns about the draft proposed standard and submit written
comments to the record. The SBREFA panel then submitted its
recommendations to the Assistant Secretary in November 2003.

This proposed confined-spaces standard for construction, therefore,
reflects input from stakeholder meetings, ACCSH, and the SBREFA review
process. For example, a provision that would have addressed working in
hazardous-enclosed spaces, spaces designed for human occupancy but
subject to a hazardous atmosphere, which small business entities
participating in the SBREFA review process considered burdensome and
unnecessary, was eliminated because OSHA believes that the existing
construction standards adequately address these hazards. This proposed
standard uses a confined-space classification approach that is
influenced by ACCSH recommendations.

The proposed standard is organized chronologically to help guide an
employer at a construction job site, from its initial encounter with a
potential confined space, through the necessary steps to ensure that
employees are adequately protected. In addition, it addresses the need
for coordination and information exchange at construction sites, which
typically have multiple employers.

OSHA has preliminarily determined that employees in the construction
industry who preform work in confined-spaces face a significant risk of
death and serious injury, and that this proposed rule would
substantially reduce that risk. OSHA estimates that, each year,
approximately 20,000 establishments have employees entering at least one
confined-space as defined by the proposed rule. OSHA also estimates an
annual total of 641,000 confined-spaces, with about half of these
confined-spaces considered to be permit-required confined-spaces under
this proposal. OSHA estimates that, each year, there are 6.44 fatalities
and 967 injuries among employees working in confined-spaces addressed by
this proposed rule. OSHA has preliminarily determined that the proposed
rule, when implemented properly by employers, would reduce the average
number of fatalities and injuries in confined-spaces covered by the
proposed standard by about 90 percent; six fatalities prevented annually
and 880 injuries prevented annually.

The importance of the public participation phase of this rulemaking
cannot be over-emphasized. The rule we will be discussing is still in
the proposal stage. It should not be considered OSHA\'s final
determination or position on the issues involved. The proposal serves
only to initiate the public rulemaking process by presenting OSHA\'s
preliminary assessment of the content of an appropriate rule based on
the information available to the Agency at the time the document was
developed. The purpose of this informal public hearing is to provide a
forum to receive testimony and additional evidence to assist OSHA in
developing a final standard that reflects the best available, and most
current, information on confined-spaces in construction. Further
opportunities for hearing participants to introduce evidence will be
provided during the post-hearing comment period.

Thank you for your participation in today\'s hearing. And at this time,
we try to clarify any issues that you may have about the proposal.

JUDGE VITTONE: Thank you, Mr. Parsons.

MR. BIERSNER: Judge Vittone, at this time I would like to mark OSHA\'s
opening statement as Exhibit 0192 and request that it be entered into
the hearing record.

JUDGE VITTONE: It will be made a part of the record. Thank you.

Let me have an indication, raise your hands please, if anybody has any
questions for the OSHA panel. This lady over here first.

Would you come up to the podium, please?

MS. TRAHAN: Thank you.

JUDGE VITTONE: State your name, please.

MS. TRAHAN: I\'m Chris Trahan with the Building and Construction Trades
Department.

JUDGE VITTONE: Okay. All right.

MS. TRAHAN: And I think I just have two questions.

The first one is regarding limited or restricted means of entry and
exit. That definition is similar to what currently is under 1910.146,
the general industry permit-required confined-space rule. And OSHA has
interpreted over the years that the presence of stairways typically does
not constitute limited or restricted means of entry and exit. And my
question is simply, will OSHA change that interpretation, or is that at
this point believed that will be consistent with how it\'s been applied
under the general industry rule?

MR. BRANCH: The standard is not supposed to change any existing policies
regarding the limited entry and egress from spaces. We may get
information that we might evaluate to clean up a definition for it, but
as of right now the directive for general industry was our guide for
this. Any existing interpretation letters were incorporate into this
rule.

MS. TRAHAN: Thank you.

And just leading me into my next question, CPL02-00-100, the Compliance
Directive related to 1910.146, lays out a really discussion in Appendix
E of questions and answers on how OSHA has interpreted the different
portions of that 1910.146 standard. Specifically section A, which is
related to the scope and application question 8, defines ‑- helps both
compliance officers and the public understand when OSHA will enforce the
general industry rule and when OSHA will enforce the construction
standards at the current time being, you know, very minimal, but the
1926 standards related to confined-space work. And in general, what OSHA
has said is that in an existing facility that\'s generally covered under
the general industry rules, that some situations will be considered
construction for the purposes of enforcement and some will be considered
general industry, regardless of the type of employer who is performing
the work, be it a contractor or employer of general industry\'s
employer\'s own employees.

And they have ‑- well, I just read the part of the answer. Which, you
know, the question is in part which standard applies, 1910.146 or
1926.21(B)(6). \"And generally speaking, refurbishing of existing
equipment in space is maintenance. Reconfiguration of space of
installation of substantially new equipment, as in for a process change,
is usually construction.\"

And I paraphrase that it goes on to say that where there are existing
confined-spaces that are being worked on as part of routine maintenance
or maintenance to continue the process in a safe manner, that those
activities would be covered under the 1910.146 standard.

So, my question is, at the current time this Compliance Directive, I\'m
assuming this compliance directive will continue to be in effect and the
definitions of when the work would be covered under the general industry
regs versus the construction regs will remain consistent.

Do I need to rephrase that?

JUDGE VITTONE: Do you understand the question?

MR. BRANCH: Yes, I do. At this time, we\'re not planning on tampering
with that until we at least find out what option we\'re going to take as
far as the course of the final rule. We did use that directive as
guidance for drafting our proposed rule. The construction versus
maintenance issue ‑- struggling throughout our standards. It\'s not
going to be resolved based on this rule. However, we do invite folks to
give us information that could help clarify some of ‑- especially
particular situations that you run into on your own work sites to help
us to tighten up a definition for construction versus maintenance as
well. But at this time, we still look to that directive as guidance for
our enforcement of definitely the general industry standard.

It was kind of ‑- it gave the employers an opportunity to get a look at
what is considered general industry and then back-end it, you know
what\'s not general industry. So in a way, it helped us when we put our
rule together.

MS. TRAHAN: Okay. Thank you.

MR. BIERSNER: I have a point of clarification regarding your first
question.

I would expect that if the conditions and the facts are the same, and
the provisions are the same between 146 and whatever may come out as the
final standard, that our interpretations would be consistent with those
that exist with 146. Each interpretation stands on the facts of that
letter and the conditions that were specified by the requester. So we
don\'t incorporate the letters of interpretation into whatever our final
rule will be. But I would imagine, given the same provisions, facts and
conditions, we would make an effort to make those interpretations
consistent with 146.

MS. TRAHAN: Thank you very much.

JUDGE VITTONE: Thank you.

Mr. Yohay? Good morning.

MR. YOHAY: Good morning, Your Honor. Good morning. I have questions
first on behalf of the Edison Electric Institute and then a few on
behalf of the American Wind Energy Association.

JUDGE VITTONE: For the record, just identify yourself, please.

MR. YOHAY: Stephen Yohay with the law firm Ogletree Deakins here in
Washington, D.C.

If I understood the opening testimony correctly, do I understand that
the draft standard that was referred to as having been substantially
revised in 1996 has never been shown to the Construction Advisory for
the purpose of review and comment? Is that correct?

MR. BIERSNER: I can\'t hear your question.

MR. YOHAY: If I understood OSHA\'s opening statement, I understood that
after the Construction Advisory Committee had first created a draft
based on the 1994 draft, OSHA concluded nonetheless in 1996 that the
draft needed to be substantially reworked. Did I understand that
correctly?

MR. BIERSNER: Yes.

MR. YOHAY: Okay. Has that reworked draft ever been submitted to the
Construction Advisory Committee as required by the regulations and the
statute for review and comment?

MR. BIERSNER: Yes, it was ‑- I\'d have to check the proposal, but we did
submit to the ACCSH, the proposed rule that you have before you now.

MR. YOHAY: You did?

MR. BIERSNER: Yes.

MR. YOHAY: Okay. Did you get comment from ACCSH?

MR. BRANCH: They recommended that we move forward with it.

MR. YOHAY: With this current ‑-

MR. BRANCH: We gave them a draft of what we give SBREFA at that time.

MR. YOHAY: Oh, you did? I didn\'t hear that in the chronology. Okay.
Thank you.

And sort of building on the question that came before, the preamble and
the opening statement speaks in terms of the construction industry as
the object, if you will, of this proposed standard. But isn\'t it
correct that the scope of the standard makes reference to \"construction
work,\" not the construction industry? Correct?

MR. BRANCH: Correct.

MR. YOHAY: All right. And therefore isn\'t it so that the standard
insofar as it applies to construction work, and I think you alluded to
this, Mr. Branch, the standard really could apply to anybody or anybody
in industry regardless of whether they\'re in the construction industry,
as that term is commonly understood. The standard would apply to any
employer performing what OSHA defines as construction work?

MR. BRANCH: Correct.

MR. YOHAY: Okay. So that could be industrial, a refinery, power plant?
Is that correct?

MR. BRANCH: That\'s correct.

MR. YOHAY: Okay. Would you please tell me where in the record we will
find an analysis of how this proposal will address significant risk by
employees who do not work in the construction industry?

MR. BIERSNER: We provided an analysis which identified fatalities in
confined-spaces that were in the construction industry. We do not see
why that would not apply to other sectors that face the same kind of
hazard, a confined-space where construction work is going on.

MR. YOHAY: You consider that confined-space ‑- where construction work
is going on is the same regardless of the facility and the employer that
is conducting it, sir? Is that the basis of this proposal?

MR. BURT: I am suggesting that the hazard is the same.

MR. YOHAY: And that is the basis? Your assumption that the hazard is the
same. If it\'s construction work, regardless of who\'s doing it and
where performed?

MR. BURT: Yes.

MR. YOHAY: I see. I understand that the answer to my question is there
is no separate and discreet analysis of significant risk faced by
employees in industries other than what you ordinarily define as the
construction industry. Is that correct?

MR. BURT: I believe that is correct. I would need to review to be
absolutely certain of it, but I\'m pretty sure that\'s a correct
statement.

MR. YOHAY: I understand. It\'s a large record. And would the same be
true as to an analysis of the cost of compliance for employers in
industries other than construction? There\'s no discreet analysis of
what the cost of compliance would be for employers other than those who
would be in the construction industry?

MR. BIERSNER: The costs of compliance were based on a project basis and
in turn projects as reported by Dodge Reports. I do not know if Dodge
Report would include a project undertaken by a general industry firm
that OSHA would define as construction work.

MR. YOHAY: And are those reports, those Dodge Reports, in the record?

MR. BIERSNER: Say again?

MR. SAPPER: Are those Dodge Reports in the record?

MR. BIERSNER: Dodge Report is volumes like this. We made use of it, and
how we made use of it, and the numbers we used for it are in the record,
but the Dodge Report, which is an enormous private sector thing, which
is not publically available, is not in the record.

MR. YOHAY: So, if I understand correctly, to determine the potential
cost of the standard, you interpreted a report that is not available to
the public. Is that correct?

MR. BIERSNER: We used the numbers of projects from a well-known source,
which when you say the Dodge Report, we quote the Dodge Report. If you
would like us to see or add to the record, or check what\'s in the
record, more detail about what those numbers contain, we would be happy
to do so.

MR. YOHAY: Well, I would suggest so. If somebody wanted to validate the
analysis you\'ve made, one would need to see the original material.
Would you agree?

MR. BIERSNER: Let me clarify. I think he may have misinterpreted your
term \"publically available.\" It\'s not publically available in our
docket. But it is public ‑-

MR. BURT: It\'s not in our docket.

MR. BIERSNER: Right. Yes.

MR. BURT: I believe it is one of those, like many economic reports we
use, where they are purchased copyrighted reports.

MR. BIERSNER: Right. But the

public ‑-

MR. BURT: That the original source did not necessarily permit to be made
public. The summary data that we used is quite commonly available, and
that is publically available. But when you say the whole Dodge Report,
no, I do not believe that is publically available. We certainly didn\'t
put it in the docket and I think, but I am not certain, it is not
publically available.

MR. YOHAY: I would submit on behalf of Edison Electric Institute that
whatever documents you refer to and relied upon in forming analysis to
support this proposed rule, belongs in this record without making it
necessary for anybody affected by it to go out and purchase the Dodge
Report. If OSHA has to make that purchase, then OSHA should make that
purchase. I formally request that you put in the record that which OSHA
referred to an relied upon in making its analysis.

MR. BURT: Let me just clarify one thing. What we\'re speaking of here
are the summary of numbers from the Dodge Report. What we are offering
to add, if it isn\'t sufficiently clear, is how those numbers are
developed. But the actual Dodge Report is no more available to you than
when we rely on census, the underlying census data is available with
labels and everything else.

MR. YOHAY: Okay. I don\'t want to belabor the point and use my time on
this, but I think I\'ve made my point. I think whatever you\'ve relied
on ought to be in this record. That\'s our position. Okay. And you can
choose to do what you choose to do.

This is more in the nature of a legal question, but I\'d like to
understand OSHA\'s position.

If a host employer, like a utility for example, engages contractors to
perform work in a confined space, but the host has no employees on the
site, please explain to me how the host is engaged in construction, as
that term is used in 29 C.F.R. 1910.12(A) and therefore eligible to be
cited, if it does not comply with the host provisions of this proposal?

MR. BIERSNER: Are you referring to the specific provision that requires
that host employers exchange information with contractors?

MR. YOHAY: Right. And the other provisions that may apply to the host
employer.

MR. BIERSNER: We believe that that is enforceable under the Act and when
we specify a requirement for an employer ‑- specify it, not under our
general policy, enforcement and of the specified NA standard, we believe
that that\'s an enforceable provision.

MR. YOHAY: I understand you believe so. But what I\'m ‑- go ahead,
please.

MR. BIERSNER: And we believe that that is a legitimate employer. I mean,
there are other standards that require host employers to interact with
contractors. For example, in asbestos removal, a building operator has
to provide information to an employer who\'s removing asbestos. So it\'s
a very similar kind of provision.

MR. YOHAY: I see. So do I understand OSHA\'s position now to be that an
employer need not be engaged in construction as that term is defined in
1910.12 in order to be eligible to be covered by a standard and exposed
to citation?

MR. BIERSNER: We believe that they would be engaged in construction.

MR. YOHAY: If they have no human being on site? Simply by owning a piece
of property in a building, that\'s engaged in construction?

MR. BIERSNER: They have a responsibility to employees who are exposed to
the hazard.

MR. YOHAY: Okay. Let me change hats, if I may, and on behalf of the
American Wind Energy Association ask whether OSHA made any analysis in
this record of why this standard is reasonably necessary in the wind
energy industry?

MR. BURT: The response would be the same as my earlier one that we
believe the hazards of confined-spaces where there is construction work
are similar.

MR. YOHAY: Okay. So you\'re just assuming a hazard is a hazard, no
matter where it occurs if it\'s related to a confined space?

MR. BURT: I am suggesting that when you have a confined-space and a
hazard present as defined by this standard, the risks involved are
similar across sectors and industries.

MR. YOHAY: And what are the factors that OSHA believes that bear upon
such risk?

MR. BURT: I\'m sorry?

MR. YOHAY: What are the factors that bear upon risk as you have defined
it?

MR. BURT: I would refer back to our core definition that you have a
confined-space and you have certain kinds of hazards. These hazards
include engulfment, low or high oxygen atmospheres, areas exceeding the
PEL, et cetera. We believe when that combination of things are present,
you have a significant risk.

MR. YOHAY: But the answer to my question is there is no discreet
analysis of how this standard ‑- the risk faced by wind energy employees
or the costs of the standard in that industry, or anything associated
specifically with that industry. Am I correct? There\'s nothing specific
that industry in this proposal? To the best of your ‑-

MR. BURT: I previously heard this defined as an industry. We have an
analysis of the construction sector that does construction for the
electric utility sector and a number of other sectors. It is not broken
out in any data I know of in a way that enables me to talk about the
wind, this entity you\'re defining separately.

MR. YOHAY: Well, this will be an educational experience for us all, as
you\'re about to hear later today. Thank you.

JUDGE VITTONE: Thank you, Mr. Yohay.

Anyone else? This gentleman here.

MR. SAPPER: Good morning, everyone. My name is Art Sapper. I\'m an
attorney with the law firm of McDermott, Will & Emery here in town. I
represent the National Association of Homebuilders.

I have three questions. First of all, in the fatality and injury
statistics that we heard this morning, does OSHA know how many of the
fatalities and injuries occurred in the industry of residential home
building?

MR. BURT: No.

MR. SAPPER: Does OSHA have any statistics to suggest that the actual
number of fatalities in residential construction is zero?

MR. BIERSNER: No. We just don\'t have it broken down.

MR. SAPPER: Thank you. I also have a question regarding proposed section
1204(d), which says that the controlling contractor shall coordinate
entry operations. Does OSHA agree that that provision applies even if
the so-called controlling contractor does not have its own employees
entering the space?

MR. BURT: Yes.

MR. SAPPER: And does OSHA have any statistics on how often? Does OSHA
have statistics on how often that controlling contractor will be less
informed than the entering contractors about the hazards of the space?

MR. BURT: No, I don\'t believe that we do, but we\'d appreciate any
information that you might provide us to the record.

MR. SAPPER: Well, I think you\'ll find it\'s a common-sensical concept,
but I move on.

Did I understand that the standard would apply to a space as a permit
space if the PEL is exceeded?

MR. BRANCH: Sure.

MR. SAPPER: Strictly if an eight-hour PEL is exceeded?

MR. BRANCH: If there are hazards within the space in the situation that
you\'re talking about, there\'s an atmospheric hazard, sure. If it met
the definition of a confined-space and that hazard existed, it would be
a permanent space, until the employer did something to remove or
eliminate that hazard.

MR. SAPPER: So for example if you had asbestos in the space and an
employee was over exposed on an eight-hour time weighted average basis
to the asbestos in the space?

MR. BRANCH: We have a standard that covers asbestos.

MR. SAPPER: Right. I understand, but I\'m talking about this proposed
standard. Is that space going to be a permanent space? the reason I ask
is I believe that the science is that asbestos hazards, though severe
and in the long run deadly, do not affect the ability of an employee to
safely exit the space. So I\'m just asking, in that case would that
apply?

MR. BIERSNER: Yes, it would because it\'s a hazard to the employee and
in a long-term sense.

MR. SAPPER: Thank you very much. Appreciate it.

JUDGE VITTONE: Thank you, Mr. Sapper.

Anyone else? This gentleman over here.

MR. KENNEDY: Good morning, ladies and gentlemen. My name is George
Kennedy. I represent the National Utility Contractors Association.

Looking through the standard, reading the preamble and making a study of
this, it appears that OSHA has singled out sewer entry as a
substantially more dangerous type of confined-space operation.

First off, I\'d like to ask, from a construction standpoint, why?

Second, my review of the NIOSH FACE investigation reports, which seem to
the be only thing available where I can get detailed information about
what\'s happening in confined-spaces, indicates that most sewer-related
fatalities involve municipal workers, not construction workers.

Can OSHA produce a summary or information of investigations related to
fatalities that occurred during sewer construction? And on average, how
many confined-space fatalities of the 6.44 confined-space fatalities
that OSHA figures is average in the construction industry, how many of
them are sewer related? This is a huge issue with our membership. We
install, maintain, construct and work in sewers and water treatment
systems constantly.

MR. BIERSNER: Could you go through each of your questions separately so
we can respond to them individually?

MR. KENNEDY: Sure. First off, why does OSHA believe or why has OSHA
singled out sewer construction as a more substantially dangerous
operation?

MR. BRANCH: In situations where we can\'t isolate the confined-space in
which the employees will be working within, the hazard still exists. You
have potential hazards, or atmospheric hazards or engulfment hazards
coming from upstream or downstream that could affect the confined space.
All of the other types of spaces, permit spaces are the most dangerous.
Sewers are basically a subset of the permit space in which ‑- we
recognize that we can\'t remove or eliminate those hazards. In
situations where you can isolate the confined-space in which the
employees are working, you can employ other methods within that space.
You can downgrade that space. But within the definition of
continuous-system spaces, it says that you cannot isolate. This is the
type of space that you cannot isolate from a larger space. So it\'s a
slice off of the sewer industry that we\'re getting as far as needing
early warning systems and such.

MR. KENNEDY: Well, it appears that OSHA doesn\'t understand that we can
isolate that space. We can plug them. We plug them all the time. We run
bypass lines. We clean them out. We work in them. We ventilate them. We
work in active sewers. Our members work in active sewers on a daily
basis and they ventilate. So that\'s an issue that I think OSHA needs to
take a close look at.

JUDGE VITTONE: Okay. You\'ll be testifying later.

MR. KENNEDY: Yes, sir.

JUDGE VITTONE: So you\'ll bring that up then.

MR. KENNEDY: I have it in general in my summary.

JUDGE VITTONE: Yes, we\'re prepared to address that issue again.

MR. KENNEDY: Okay. And but that\'s an issue that we\'re concerned about.

Because the other reason is, is when we\'re working in an active sewer,
most of the time it\'s maintenance, as I=ll indicate later.

JUDGE VITTONE: Mr. Kennedy, what\'s your second question?

MR. KENNEDY: Second question. Can OSHA produce investigations related to
fatalities that have occurred during sewer construction? Again, the only
thing I\'ve been able to get my hands on, other NIOSH FACE reports,
Judge. Nothing else had been ‑- OSHA won\'t release reports. I mean, I
don\'t want details. I mean, summary, how many of these 6.4 incidents
are related to sewer operations?

MR. BIERSNER: I\'m sorry, I don\'t know. We\'ll certainly consider your
question and see what we can find.

MR. KENNEDY: Thank you. That\'s all I need right now.

JUDGE VITTONE: Thank you, Mr. Kennedy.

One last time, anyone else? I see no other hands.

All right. Mr. Timothy Fisher, American Society of ‑-

MR. BIERSNER: Your Honor, I believe Mr. Gary Lopez is substituting for
Mr. Fisher.

JUDGE VITTONE: Okay.

MR. BIERSNER: This will be the document you\'re going to be speaking
from today, I think.

MR. LOPEZ: It is.

MR. BIERSNER: Okay. That\'s fine. MR. LOPEZ: I\'ve got ‑-

MR. BIERSNER: No, no. We\'ve got several up here. Thank you.

JUDGE VITTONE: Mr. Lopez, why don\'t you move over here? A little
closer. That way everybody can see you.

And state your full name and the organization you\'re representing
today.

MR. LOPEZ: My name is Gary Lopez. I\'m a certified safety professional
and the Senior Director of Safety for Ranger Construction Industries,
Inc. in West Palm Beach, Florida. I have served on the ANSI Z117
Accredited Standards Committee for Confined-space Entry and am currently
the Chair of the Standards Development Committee for the American
Society of Safety Engineers, who I\'m here representing today.

I want to thank you for this opportunity to be here today to share the
views of ASSE\'s 32,000 member safety, health and environmental
professionals. Based on the front-line experience of these members and
the expertise of the ANSI Z117 Committee members, our comments, which
have been submitted to the docket, concluded that the proposed rule is
unduly complicated, introduces unnecessary new terminology and
burdensome requirements, fails to recognize current and widely
understood safety practices that have proven successful both in general
industry and construction, and inadequately addresses several vitally
important confined-space issues.

Underlying these specific concerns is the proposed rule\'s lack of
harmony with the Z117.1-2003 voluntary consensus standard that is widely
adopted throughout both general industry and construction and among
safety and health professionals managing confined-space hazards in all
kind of work places across the country.

What concerns me most deeply is what I fear may be a lack of full
appreciation of the on-the-job realities ASSE\'s members face every day
as they strive to help workers protect themselves when entering
confined-spaces. I firmly believe that if the writers of this proposed
rule were in our shoes, they would have assumed that a new way of
looking at construction confined-spaces separately from general
industry, with new classifications, new terminology, new requirements,
was not; I repeat, was not the way to address the confined-space risks
viewed as unique to the construction industry in this new OSHA
confined-space standard.

After more than 30 years managing safety and health risks in both the
general industry and, more recently, in the construction industry, I can
say with confidence that the difference between managing confined-space
hazards in general industry and in construction is a matter of degree,
not a matter of the way risks are managed, as this proposed rule
attempts to establish.

Those 30 years tell me that confined-spaces in general industry are not
less hazardous to enter than construction industry confined-spaces. The
real difference is the risks presented in construction are less
predictable than in general industry. That is because most general
industry confined-spaces are fixed, meaning that they have either been
entered before or have a history of use that helps in determining risks
and precautions to enter these spaces. As a result, they are easier to
address during the vital entry permit risk assessment process.

By comparison, the structures we deal with in construction are in a
constant process of change, making the permit risk assessment process
for confined-spaces more complex. A not uncommon construction job
involves building a structure that is or includes a confined-space that,
during the construction process, could change from a non-permit to a
permit space. Permit risk assessment, therefore, must be a continual
responsibility for the employer of the entrants, the SH&E professional,
and the workers involved.

The way the proposed rule attempts to deal with this difference in
degree of risk and the need for ongoing assessment is to establish a new
four-tiered classification system for the spaces in construction by
creating new confined-space categories. Isolated Hazard Confined-space
and Controlled Atmosphere Confined-space are two of these categories.
These categories, however well intended, are nothing more than
permit-required confined-spaces that have had to go through a risk
assessment using the entry, or as is often known, safe work permit
process and had precautions applied to them that bring them within the
parameter of acceptable risk for entry.

This approach deviates dangerously from the current accepted practice
replacing the widely understood, widely adopted two-tiered approach that
identifies a space as either requiring or not requiring a permit. That
basic either/or classification is so important to the process of
managing confined-space risks and the way we teach employers and workers
to be aware of those risks that we fear greatly the loss of the
straightforward simplicity.

More importantly, these new classifications threaten to diminish the
attention that will be given to the permit risk assessment process, a
critical step in any safe entry. The risk assessment process, of which
the permit serves as the initial component or tool serves multiple
purposes in protecting workers entering confined-spaces. (1) it\'s a
risk assessment tool; (2) it\'s a method of identifying precautions that
must be in place to enter the confined-space within parameters of
acceptable risk, including rescue measures; (3) as a method of
communicating these precautions, including engineering controls, use of
personal protective equipment and testing information to the entrants;
and (4) as a management approval system to allow the entry to proceed.

Presently employers, workers and SH&E professionals all accept
responsibility for this assessment because they know the risks may
change. Attaching a label to these risks gives the impression an
assessment has been done, giving entrants a false sense that the safety
of the space is permanent when due to the nature of construction, it
never is. The unintended consequence of these categories will be a
lessening of the vigilant responsibility employers, workers and SH&E
professionals on the job now assume for monitoring possible changes in
the risks and the nature of the confined space. They take away from the
imperative of the permit process and, so, lessen the current levels of
safety we now see under current practices.

ASSE is also concerned with the proposed rule\'s lack of clear direction
on responsibility for hazard and risk assessment. The proposed rule
creates a complex system of host employers and controlling contractors
with responsibilities for hazard assessment of confined-spaces that
shift depending on their roles. It also limits the extent of the
information the host employer or controlling contractor is required to
give to the contractor is actually entering the confined space, based on
the information they have on hand. In the realities of the work place,
this lack of clear responsibility poses numerous safety risks,
especially when inexperienced contractors are involved.

The most glaring danger resulting from this approach is the likelihood
the contractor will assume the information

about a confined-space that an employer gives them is complete and
comprehensive when it may not be.

The proposed rule also does not take into account the reason a
controlling or hosting contractor often retains a contractor is the
contractor\'s expertise in confined-space entry. Giving a host employer
or controlling contractor responsibility for information about the
confined-space makes little sense in such situations and could prove
dangerous due to their lack of familiarity with confined-space hazards.

Clear responsibility for conducting proper risk assessments when
entering a confined-space must be given to the employer whose workers
are conducting the entry. To establish communications that have the best
chance of avoiding confusion, the proposed rule should require
contractors conducting the entries to submit qualification information
to the host employer or controlling contractor who should then be
required to certify that they are competent to conduct entries into
permit-required confined-spaces.

ASSE understands the difficult job OSHA has in moving forward
rulemaking. We appreciate its effort and hope that my attendance today
indicates how much we of the ASSE want to work with OSHA to help make
sure this rulemaking can build on the successful ways our members and
the voluntary consensus standards process help workers enter
confined-spaces safety.

Again, thank you for this opportunity. I am more than happy to answer
any questions you have.

JUDGE VITTONE: Thank you, sir.

MR. BIERSNER: Your Honor, at this time I\'d like to mark Mr. Lopez\'
testimony entitled, \"Statement of the American Society of Safety
Engineers\" as Exhibit 0193 and request that it be entered into the
hearing record.

JUDGE VITTONE: It will be made a part of the record. Let me have a show
of hands, any questions for this gentleman, Mr. Lopez?

Any questions from the OSHA panel?

MR. BIERSNER: Yes, Your Honor. In Appendix A of the written comments
that were submitted by ASSE, you list 59 examples of how Z117.1, which
is your national consensus standard for confined space, has been used by
OSHA with regard to the general duty clause.

Do all of these citations listed in Appendix A involve construction
work? They appear to, but it was uncertain whether just by the names of
the organizations whether they were purely construction work?

MR. LOPEZ: I honestly don\'t know the answer to that question, but we
could certainly get back to you with that.

MR. BIERSNER: Okay. Appreciate it in a post-hearing comments. And then
in addition, which provisions of the Z117.1 standard were the subject of
these violations so that you could provide that information to us in the
post-hearing record. We\'d appreciate it. What were the specific
provisions if possible to get that that was cited in those violations?

On page seven of the written comments submitted ASSE, they stated that
they opposed the use of the draft A10 standard for confined-spaces and
construction, the ANSI standard for confined-space on construction.
Could you explain the basis for this opposition?

MR. LOPEZ: I\'m sorry. Where are you finding this?

MR. BIERSNER: It was on page seven of the comments that were submitted
earlier by your organization.

MR. LOPEZ: Right.

MR. BIERSNER: And they said that they currently had voiced opposition to
ANSI with regard to their A10 standard, ANSI standard for confined-space
in construction. And I was wondering why that was the case, why there
was opposition or conflict.

MR. LOPEZ: Give me a moment so I can find it.

MR. BIERSNER: Yes, it was toward the bottom of the page.

MR. LOPEZ: Oh, this refers to an internal issue we have. To sum it up, a
hole is a hole is a hole. So a confined-space standard such as Z117
should be adequate to comply with both entry into construction type
confined-spaces and non-construction or general industry, if you will.

A10 feels that there is a specific need for a construction
confined-space standard.

MR. BIERSNER: Thank you. There\'s other questions, I believe, from the
panel.

MR. BRANCH: On page three of your written comments, you had mentioned
that you had problems with the definitions for attendant entry
supervisor and the entrants?

MR. LOPEZ: Correct.

MR. BRANCH: Could you give us any explanation of the differences?

MR. LOPEZ: That actually was just simply a consistency, that if we\'ve
already been using these terms and they\'re well accepted out in
industry that why can\'t we just be synonymous with the new standard and
use the same terms people are familiar with, and same definitions. Since
they\'re so close to what you folks were using, that are proposed.

MR. BRANCH: We\'re trying to determine what those differences are.

MR. LOPEZ: As I read through the various definitions, to be perfectly
honest, it was semantics as much as anything. But once again, in the
sense of trying to keep the identical definitions everybody\'s used to
seeing out there, we suggested just clone the ones you have in Z117.

MR. BRANCH: For a little clarification, we moved away from the
non-permit versus permit type spaces to more accurately reflect what the
employer does within those spaces. We\'ve run into cases of during
stakeholders\' meetings and enforcement experiences where employers
think non-permit spaces don\'t have hazards in them. Our isolated hazard
spaces, for instance, there\'s a hazard there. As you mentioned,
they\'re permit space until you do something to that space. For
instance, if there\'s machinery in there that needs to be locked out and
tagged out. The difference between an isolated space and a confined
space, one that has no hazards in it whatsoever, is the difference of
whether that piece of machinery is locked out or tagged out, or if that
piece of machinery actually even exists in that space.

So the difference between what you\'re saying as far as a non-permit
space versus permit space could be the difference of life and death
between for employee within in the space that has no idea that a hazard
as become un-isolated. That\'s why we went to that definition.

MR. LOPEZ: I understand that. And we could certainly agree with that,
but when you get back to our point we\'re making with the permit
process, the whole substance of confined-space entry begins with the
permit risk assessment process. Technically, any classification of
confined-space starts in our eyes with its permit required. Then as you
conduct the risk assessment, all depending on what precautions,
engineering controls, PPE you put on place, it descends to a various
type of confined space.

So what we\'re saying in the end of the day is, we can call them
different things after we put controls in place, but we started out with
a permit-require confined-space and it\'s dangerous to say just because
I put that ventilation on there, everything\'s okay from now on. And we
don\'t want that concept to be ingrained in the construction or the
general industry. It\'s a permit process that should be constantly
vigilant in saying here are the risks, here are the parameters of
acceptable risk. You get outside those parameters, all bets are off.

MR. BRANCH: We concur. On page six of comments you mentioned the use of
chest harnesses. You have any suggestions of what we should enter in our
standard regarding chest Harnesses?

MR. LOPEZ: Absolutely. I\'ve spent personally a great deal of time
simulating confined-space rescues and to the extent that Z117 is
considering a separate standard just for rescue. The one thing I
discovered was if you do not have a full body harness on the entrant,
that you are making your rescue that much more difficult. So what I
would suggest is get rid of chest harnesses, body belts, wristlets,
anything other than a full body harness to conduct a rescue.

To that end, with our company personally, we don\'t care what kind of
confined-space you\'re going into, permit or non-permit. You\'re going
in with a full body harness.

MR. BIERSNER: Okay. I believe that ends ‑- do you have a question, Bob?

MR. BURT: Yes. In your experience, do you find that confined-spaces and
their hazards once you\'ve defined them as confined-spaces and hazards
are similar from industry to industry?

MR. LOPEZ: Well, that\'s not a black and white question, but what I\'ve
found is that no, they\'re not similar. What is similar is the risk
assessment process you go to.

As I stated earlier, I spent a great deal of my career in the chemical
industry. As you can imagine, very dangerous confined-space entries.
When I moved over to the construction industry, I took the identical
safe work permit form and all I did was change the company name. And we
go through the same risk assessment process. If I bring no other point
across, it is how critical that process is in making sure you can
conduct a safe entry.

MR. BURT: Thank you.

JUDGE VITTONE: Any other questions?

Mr. Lopez, thank you very much. Appreciate your time today.

MR. LOPEZ: Thank you.

JUDGE VITTONE: Ladies and gentlemen, in my opening remarks I forgot to
say something. I talked to you about cell phones, but also there is no
food or drink allowed in this room. Okay? I would appreciate it if you
would not bring in coffee or cokes, or anything like that. Thank you.

Richard Marshall from the International Association of Foundation
Drilling. Mr. Marshall?

Is Mr. Marshall here?

Have a seat there, please.

Mr. Marshall, please identify yourself and your organization.

MR. MARSHALL: Good morning, Judge and everyone else. My name is Richard
Marshall. The company I work for is Richard Gettle, Incorporated. We\'re
a foundation contractor in Cincinnati, Ohio. The association I\'m here
representing today is called the International Association of Foundation
Drilling. We\'re a 900-plus member of an international construction
trade association. We\'re also an OSHA alliance partner and our
priorities are safety, quality control and productivity and we greatly
appreciate the opportunity to be able to speak here today.

Our comments are, as OSHA is aware and what has already been said so far
that there are many construction firms whom are already working in
confined-spaces that must comply with what we believe to be the general
industry standard 1910.146.

In addition to that standard, there\'s a wealth of training information
that\'s available to the general public. Be it on the OSHA website, be
it created by individual companies, be it created by individual
institutions and/or associations much like ours. And in fact, just
gleaning through the Internet, I notice that the AGC, the Associated
General Contractors, the National Utility Contractors, the Sealant and
Waterproofing and Restoration Institute and us, each have confined-space
training and programs that have been created based on 1910.146, because
this is what we all know and love, to customize them to our basic and
individual needs. And we in turn submitted our procedures to the panel.
I don\'t know if it\'s here or not. I don\'t have an extra copy with me.
But I will say that our procedures were written and they were reviewed
by the Directorate of Construction somewhere in the neighborhood of
eight or nine years ago. It wasn\'t obviously approved. But it was
generally accepted as if we followed our particular standards we
wouldn\'t be in compliance with what we know to be the confined-space
regulations. So it\'s our belief that entities that are already existing
already enter confined-spaces and do it so properly.

In construction typically the employer enters someone else\'s
confined-space perhaps in order to either repair, replace or modify an
area. That could be a boiler, a pit, an electrical vault, some type of
vessel, a sewer, something like that. Or, such as in our case, we create
a confined-space as we do our job. Okay? Some of the types of work that
we do are coffer dams, drilled shaft, access pits, access shafts, maybe
build a vault or something like that. So we in turn may create that
confined-space as we do our construction work.

However, one of the things that caught my eye in some of the studies
that I\'ve done is ‑- that apparently one study that NIOSH did, is
approximately 100 percent of the fatalities associated with contractors
doing confined-spaces were the result of a contractor not taking safety
measures in place. Okay? That strikes as a ‑- especially the ones that
are even defined in 1910.146. So, one of our opinions is that if
there\'s already existing information there, and people aren\'t doing
it, why would we further complicate the standard and make it even more
difficult for the people who are not doing it to not do it again?
That\'s one of the sticking points that someone like myself is having
difficulty with. The new proposed standard is extremely complicated for
someone trying to do what we consider to be a very simple task. We
recognize the hazard. We recognize that virtually immediately we either
have to enter it or we create it and we have mechanisms already in place
to prevent us from being consumed by the confined space. So that\'s what
we\'re trying to do here to keep us safe as far as not imposing more
stringent requirements or different requirements. That\'s probably a
better way to say it.

We believe one true way to keep people safe in a confined-space is
ventilation and continuous air monitoring. Okay? We have too many
choices. It\'s simple, effective and it\'s safe. The potential liability
placed on contractors is an incredible one for those us that actually
enter a confined-space and then for the contractors that are supposedly
in charge of us entering a confined space. It\'s already been brought up
that there may be a host or a general contractor, say ‑- I\'m speaking
because most of our members are subcontractors, that has no conception
of what we do. Has no idea the hazards that we may either incur or
generate ourselves, but yet they have to try to tell us how to do our
work and in oftentimes they don\'t know how to tell us. And then of
course, they have to protect themselves from any liability of what we
may or may not do. There\'s too many choices in the new proposed
standard, in our opinion. Unfortunately, the controlling contractor, as
I said, doesn\'t have knowledge of that, so it becomes another layer of
difficulty to impose the new proposed standard.

In summary, I\'m sure we\'re going to receive comments both pro and con
on the new proposed rulemaking.

One thing I would like the OSHA panel to realize is that these rules are
affecting people who actually go into the confined space, not
necessarily the general intelligencia that might be represented in here,
in this room. Okay? We have to make sure that the rules, the procedures,
the requirements are able to be understood and performed by the actual
people that are going to do the work. If we complicate it to the point,
if we give people too many choices, they will simply elect to do the ‑-
we\'re humans. We will do the simplest, quickest way. And we may end up
not doing what we\'re trying to do here in preventing. That\'s our
opinion.

As alliance members, we believe in policing ourselves. That\'s one of
the goals of the alliance, to create procedures to make sure that we
work in a safe and productive environment. Please understand that it\'s
maybe a goal for OSHA, if this is, in their view, such a dangerous
phenomenon in the construction industry, that perhaps more inspection is
required. Perhaps more enforcement of existing standards is required.
Perhaps if you catch me doing wrong in a confined space, you should
spank me pretty severely instead of just if I show you my safety plan,
tell you I\'m sorry I made a mistake and actually slashing my citation,
simply because I tried to do a good job. That in no way influences me to
do a better job. I just got out of it. It\'s almost a get out of jail
free card. They do that in trenching and excavation. There\'s a national
emphasis program on that. I know OSHA has a limited amount of
individuals to do inspection and there\'s an enormous amount of work
being done in construction.

It may be a pie-in-the-sky-type of a statement here. But we believe the
standards that already exist for the type of work in construction are
there. They work. Those of us who choose to follow the rules and
regulations, we go home every night. It\'s the people that choose not to
work with either the existing or the available training that\'s
available, the stuff that\'s free to the whole entire world. Those
people that choose not to use that are the ones that are going to be
affected by it and if we make a new standard or a more complicated
standard, or different terminology, it will make it easier for them not
to comply with it.

JUDGE VITTONE: Thank you, sir.

Any questions for Mr. Marshall?

This gentleman up here. Yes, would come up here to the podium?

MR. LABRIOLA: Sir, my name is Mark Labriola. I\'m with Centex Homes.

And the question I have for you, in what way specifically would a host
or controlling employer, as the proposed rule indicates, they\'re
complicity in confined-space activities, how would that interfere with
your activity?

MR. MARSHALL: Oftentimes, and I can only speak for the type of work that
we do, we have maybe a project safety person who\'s totally unfamiliar
with the type of work that we do, goes to either an OSHA standard or
something that they found on the website and tries to enforce methods
and whatnot on a contractor like ourselves that may in fact conflict
with in reality what you should be doing, as opposed to what a given
standard says.

You know, one of the flaws in OSHA standard is they are not indeed all
governing. There are so many loopholes and spaces that don\'t accurately
identify a hazard. So as an industry, it is up to us to find those gaps
and whatnot and create something to prevent an injury or hazard. If
someone is not knowledgeable of how to do that, but they do it in order
to cover their you-know-whats, then it\'s an impact on us. Okay? And we
get into arguments. There\'s time, there\'s delays and, you know, to go
outside of the realm of safety here, time is money, all that stuff. It
becomes a hazard and then become an argumentative thing. And then what
happens? Okay? We get into that contest and then we\'ll say, okay,
we\'ll do it your way. And then what happens if we have an incident?
Who\'s right, who\'s wrong now? So, that\'s what I believe, to answer
your question.

MR. LABRIOLA: So another question would be, do you believe that the
employees involved in confined-space activities in construction, their
health and safety would be impacted in a negative way by a host or
controlling employer interfering, trying to CYA?

MR. MARSHALL: Possibly, if they\'re not familiar with that type of work.
Yes, it would be pretty easy, because to make a blanket safety, no, you
can\'t. Well, yes you can. The standards isn\'t a book of what you
can\'t do; it\'s a book of what you can do. You just have to know how to
do it and make it work for you, not against you.

MR. MARSHALL: Thank you.

JUDGE VITTONE: Thank you, sir.

Anyone else? Does the OSHA panel have any questions?

MR. BIERSNER: Yes, we do, Your Honor. Before we move forward, I\'d like
to enter Mr. Marshall\'s testimony, written testimony entitled, \"Plan
on CFR 1926(AA), Confined-space in Construction Proposed Rule\" as OSHA
Exhibit 0194 and request it be admitted to this hearing record.

JUDGE VITTONE: It will be made a part of the record.

MR. BIERSNER: In the written comments that you submitted earlier to
OSHA, you mentioned a NIOSH study in which you stated that 100 percent
of the fatalities involving confined-spaces in construction were the
result of the employer not following provisions of 1910.146.

I was wondering if you could provide us in the post-hearing comments
with a copy of that NIOSH study?

MR. MARSHALL: I=ll freely admit to you, I gleaned that off of someone
else\'s stuff. So I\'m assuming that someone in our world reviewed those
NIOSH reports.

MR. BIERSNER: Okay. If you happen to get that information or the
particular study, we\'d appreciate it for the record.

MR. MARSHALL: Okay.

MR. BIERSNER: Does that mean that you didn\'t really look at the study
with any degree of analysis, or review it? Because I was going to ask
you a follow-on question about it.

MR. MARSHALL: This particular statement was gleaned from someone else\'s
statement. I tended to agree with it. I did not do an in-depth study of
‑-

MR. BIERSNER: Of the NIOSH?

MR. MARSHALL: No, I did not do that.

MR. BIERSNER: Of the NIOSH report?

MR. MARSHALL: Correct.

MR. BIERSNER: Okay. I think we have other questions.

MR. BURT: Does any of your industry follow the general industry
standard? Like do you have a percentage that you can give us?

MR. MARSHALL: I\'d like to tell you everyone does, but that would be a
false statement. I don\'t know how many of us do and don\'t. I don\'t
even know how I could ever ascertain that information.

MR. BURT: Okay.

MR. MARSHALL: Because if you ask a question like that, you already know
what the answer is going to be. Well, of course I do.

MR. BURT: I had to preface that for the follow-on question. In
1910.146(C)(8), it requires the host to do certain activities as far as
information exchange in coordination with subs.

MR. MARSHALL: Okay.

MR. BURT: Can you see how this would add any burden for a controlling
employer?

MR. MARSHALL: Yes, in that they may not be familiar with the particular
confined-space hazard that, say, a contractor like ourselves and our
association would create. Okay? So they would be going on general
information. Okay? Is ours any more scientifically descriptive or
anything? No. We have similar hazards, you know, atmosphere, crushing,
cave in, collapse, darkness, all that kind of good stuff.

Our fear is that, you know, we have basically someone else telling you
how to do your work. Not OSHA, but a controlling or a host contractor,
that may indeed be not familiar. Typically, a contractor comes to a job
site and tells ‑- we give them information. Here\'s what we\'re going to
do. This is how we\'re going to do it. Okay. Some choose to just agree
with us. Some choose to argue with us. It\'s kind of comical sometimes,
and I\'m sure you\'ve seen it before. So, again, those of us that do the
work, that do it in those types of environments, based on the
information that\'s already out there, we feel we have a pretty good
grip on the situation and more legislation is going to not get us any
better. Or different legislation.

MS. KRAMER: Mr. Marshall, for those confined-spaces in your industry
that involve construction work and also comply with 1910.146, what kind
of records do they currently keep for training?

MR. MARSHALL: The booklet that we submitted as our document here. I
don\'t see it on your table, so I don\'t know what happened to it. If
you were to look at that booklet, either the last or the second to the
last page, for example, is a sign-off sheet. So a contractor such as
ourselves could use that whole information packet as a training tool.
It\'s a self-contained training tool. And then now the employer who is
going to have those people enter that confined-space has some
verification that we discussed it, we understand it and we did it on
whatever day that was. And that\'s fairly common in our industry to have
that take place, either in the format of that booklet or one that a
contractor has taken the information and dumbed it down or reduced it
for more specific than ‑- it\'s kind of general and maybe more specific
and then we typically go with something like that, document that we did
that type of training.

MS. KRAMER: Do you know how long you retain those kind of training
records?

MR. MARSHALL: I can speak for myself.

MS. KRAMER: Sure.

MR. MARSHALL: It goes into an employee file and we keep our employee
files for I believe seven years. And then if we don\'t maintain that
employee, you know, it gets destroyed with everything else. But so, it
stays with that employee. So if there\'s a question, did you have this
training? Yes. Can you document it? Yes. We can go back in that employee
file and pull out that he or she on whatever date had that particular
confined-space training.

MS. KRAMER: Thank you.

MR. MARSHALL: Yes.

MR. BIERSNER: Any other questions?

MR. BURT: A couple of things. In your kind of work do you think that
there would be any more confined-spaces using the definitions in this
standard than those in general industry?

MR. MARSHALL: Not really, no.

MR. BURT: Besides your broad points about relearning and possible
confusions, are there specific activities that might have associated
costs; kind of I think that way, that you would need to do under this
standard that you don\'t have to do under the general industry standard?

MR. MARSHALL: I think people that do this professionally, don\'t
necessarily worry about the cost.

MR. BURT: But just are there activities and things you\'d need to do?

MR. MARSHALL: We\'re going to do it. It\'s going to take some more time.
We may have more in-depth training or different types of training. We
may have to train more people because now we have to introduce it maybe
to an unknowing host or general contractor, something like that. Which
we would do, but maybe have to do a more in-depth type of stuff. Is that
going to impact? Well, some people will protest, I\'m sure. You\'ve
already heard it. You know, I\'ve got an hour doing this? Okay. You
know, and an hour of time is however much they\'re going rate is. That
could be expensive for some contractors.

I still think those of us who know it needs to be done, just go ahead
and do it. We don\'t really worry about how much time or money it takes.
We do it. It\'s the ones that don\'t do it or are forced to do it,
they\'re the ones that are going to cut the corners. They\'re the ones
that are going to complain about it. They\'re the ones that are
conceivably going to meet the standard in the least amount of effort
possible.

MR. BURT: Thank you.

MR. BRANCH: This kind of dovetails off of Allison\'s question about
documentation.

How long do you keep your permits, your maintenance permits?

MR. MARSHALL: Okay. We do those daily and we typically keep them for the
duration of the project.

MR. BRANCH: And then after cancellation?

MR. MARSHALL: Okay. And again, I=ll speak for our company. Okay? If we
fill out an entry permit, we\'ll keep it for the duration of that job
site. Okay? That may be two weeks, three months, whatever. Then we take
those entry permits and stick them in our job file, and I\'m going to be
real honest with you, I don\'t know how long we keep our job files. At
least 10 years. Okay?

MR. BRANCH: And secondly, with regard to the types of ‑- the companies
that do construction work that follow the general industry standard, how
do you arrange for your rescue provisions? Do you use non-entry rescue
primarily, or do you rely on other ‑-

MR. MARSHALL: Some companies have their own trained individuals. I would
say the vast majority of us rely on the 911 system. As an association in
our fall protection booklet, we have a basic guideline for emergency
rescue procedures around a drill shaft. We encourage any contractor
that\'s doing this type of work prior to us getting there or when you
get there to actually go out and seek the local fire or whoever that
might be and invite them, literally drag them to the job site. That
sounds kind of comical, but in an emergency in the type of work that we
do, it may be impossible to get a fire truck onto the job site. Okay?

So we have to have plan for that. Okay? And we got to plan for the worst
and hope it never happens. So it\'s amazing how encouraged some fire
departments are that, you know, you\'re the first people that\'s ever
brought us out here to see what you guys do. And just in case we have to
do something, we sort of have an idea of what we need to bring. Okay? So
that\'s part of our, as an association, training. Okay? That\'s
available to every member that we have. We beat it into everybody\'s
head. Safety.

MR. BRANCH: That\'s all for me. Thank you.

MR. BIERSNER: Allison?

MS. KRAMER: I have one more question for you. You mentioned in your
testimony that you favor continuous air monitoring as opposed to say
periodic air monitoring. We were hoping you could elaborate on that a
little bit.

MR. MARSHALL: Again, from our perspective and what our company does, and
I think most like contractors, we assess the environment prior to entry
and then if there\'s a single person that\'s going into, say, a drilled
shaft, we give that person the air monitor. It goes with you. Okay? If
it\'s a larger ‑- you know, this room here could be considered possibly
a confined space, for example. We would hang that monitor in the
confined-space and have it running continuously while we have people in
the confined space. And if it was this big, we might have to have two,
depending on the size and what we\'re doing. To sit here and say, you
know, that\'s almost like a no-brainer for us. Okay? And it may not be
true for other types of work, but it\'s too easy. You know, I\'m a
K-I-S-S type of person and most of the people in our industry follow
those same rules. Okay? If we make it harder, we just won\'t do it
because it\'s too easy not to do it.

MS. KRAMER: Thank you.

JUDGE VITTONE: Thank you, Mr. Marshall. Appreciate your time today.

MR. MARSHALL: Thank you.

JUDGE VITTONE: You\'re welcome.

Next we have a panel from the Edison Electric Institute.

All right. Mr. Yohay, would you introduce the members of the panel,
please?

MR. YOHAY: I\'m going to turn that over to Mr. Kelly.

MR. KELLY: Okay.

JUDGE VITTONE: Mr. Kelly?

MR. KELLY: Thank you. Good morning. My name is Charles Kelly. I\'m the
Director of Industry Human Resource Issues with the Edison Electric
Institute.

EEI is the association of the U.S. shareholder-owned electric companies.
It\'s members serve 95 percent of the ultimate customers in the
shareholder-owned segment of the industry and represent approximately 70
percent of the U.S. electric power industry. It has more than 65
international electric companies as affiliate members and more than 170
industry suppliers and related organizations and associate members.

I\'m joined today by two of our member company representatives who bring
enormous experience and expertise on the issues presented by the
proposed standard. First on my right is Kenneth Frazier who\'s the
Vice-President of Safety and Health with the American Electric Power
Company in Columbus, Ohio. AEP has seven operating companies that
operate in 11 states. Mr. Frazier has worked in the power generation
industry for 32 1/2 years. Most of the time he has worked in power plant
operations. From 1999 to 2006 he was a plant manager and spent time in
both gas and coal plants. He was selected for his current position in
March of 2006. Ken served as chair of one of AEP\'s regional safety and
health action councils and on a team whose recommendations resulted in
AEP moving towards a safety and health management system company wide.

Next, sitting behind me, is Mr. John Garzich, the Manager of Safety and
Health for FirstEnergy Corporation in Akron, Ohio. Mr. Garzich\'s
responsibilities include development and management of FirstEnergy\'s
safety and industrial hygiene programs and policies. John\'s duties also
include oversight of safety processes programs and compliance throughout
the FirstEnergy Corporation, which includes FirstEnergy Generation
Corporation, FirstEnergy Nuclear Operating Company, Ohio Edison,
Pennsylvania Power, Cleveland Electric Luminating, Toledo Edison,
Pennsylvania Power & Electric, Metropolitan Edison and Jersey Central
Power & Light. John serves on numerous national committees. He\'s also
the chairman of the EEI Health and Safety Committee and vice-chairman of
the National Safety Council\'s Health and Safety Program Committee in
the utilities division.

Also with us is EEI\'s outside counsel for safety and health, Stephen
Yohay, to my left of the law firm Ogletree Deakins Nash Smoak & Stewart
in Washington, D.C.

We appreciate the opportunity to come and testify on the proposed
standard for working in confined-space in construction. Mr. Frazier and
Mr. Garzich have prepared testimony and also brought a couple of
PowerPoints that we will show you and also enter into the record. And
then once they have completed their presentations, we\'ll certainly be
happy to entertain any questions that OSHA or members of the audience
may have.

In EEI\'s comments on the proposal, we made several points that we would
like OSHA to consider. And I think, as you\'ve heard already and you\'ll
hear from us, and probably many people after us, a lot of the issues
are, you know, the same from all of us. And I think OSHA should consider
that there is a consistency in the response to this proposal when
they\'re putting together their final thoughts.

First, there\'s really simply no evidence that this standard is
necessary in the electric utility industry. We gathered and presented
the compelling data showing that the investor-owned utilities and their
contractors have not experienced injuries from confined-space entry.
Also, our members are familiar with and have implemented confined-space
entry programs based on the existing standard, 1910.146, and the
provisions of 1910.269 addressing enclosed space, which is the
industry-specific standard for electric utilities.

On this point, we\'ve looked at the report of the research contractor
that forms the keys basis for OSHA conclusions, that the injury
experienced in construction work establishes that employees are at a
significant risk of harm in the absence of this standard. In preparing
its data, the research contractor apparently surveyed the OSHA
inspection database, which is the IMIS and the BLS census data for 1992
to 2000 and identified 58 fatalities and 39 injuries during this period.
The injuries were then multiplied by 100 and then by 200 to adjust for
under-counting, which we found fairly interesting. There\'s no
explanation or support for the assertion that there has been
under-counting of injuries, however, and we cannot discern any basis for
multiplying these numbers by 100 and 200.

The contractor calculated an annual average of 6.4 fatalities and
between 644 and 1289 injuries were designated as involving construction
work in permit-required confined-spaces. Again, it\'s not clear what
basis there was to find that construction work was involved. There is
also no indication that includes that incidents occurring in the public
sector were excluded. Public sector fatalities are captured in the BLS
data and often in the OSHA database.

To summarize, we think that this data is suspect at best and it also
seems to be based on statistics that are nearly a decade old and thus of
doubtful pertinence or value now.

Second in its comments, EEI presented compelling evidence that to
implement the standard would involve expense that would far outweigh any
benefit to employees. We included information about the cost to small
contractors. Because in most cases, when those contractors work for
utilities those costs are passed along to our members. Obviously the
expense calculations that OSHA offers in support of the proposal were
made long before the features of the current economy became evident,
including the price of fuel. For that matter, EEI\'s estimates of the
costs were prepared months ago and should likely be revised upward. We
anticipate that we will submit updated data in our post-hearing comments
on the cost issues involved with complying with this standard.

Third in our comments, we addressed the portions of the proposal that
would impose obligations upon host employers. Of course, that could be
often a host utility. We will not repeat here our substantial objections
to this portion of the proposal, relying instead on what we have said in
our comments.

One point we would note, however, is that as is most often the case, a
utility that has no presence at a work site and delegates responsibility
on a work site to contractors may not be engaged in construction as that
term has been defined by the courts and therefore would not be subject
to regulation under the standard. Mr. Yohay has asked that question
previously and received an answer which we don\'t necessarily agree
with, but I\'m sure you\'re not surprised by that.

Fourth is the point we emphasize today. It\'s an issue that EEI seems to
deal with with nearly every time OSHA proposes a standard. And that
standard as proposed would apply to construction work as defined in
1910.12(B). However, the justification for the standard as spelled out
in the preamble describes the construction industry, performed by
employers not in the construction industry. Well, I\'m sorry. There are
two not the same. There is no analysis of how the standard would affect
construction work performed by employers not in the construction
industry as the term is commonly understood. There is also nothing in
the preamble that shows a realistic appreciation that in utility work,
and doubtless in other environments, work in what would be regarded as a
single confined-space could be regarded as construction work or
operations and maintenance work, depending solely on the task being
performed with no difference in the risk to the employees.

Mr. Frazier and Mr. Garzich have prepared their exhibits and testimony
and they\'ll make this point as they go through it. I\'d like to now
turn it over to Jim.

MR. KENNETH FRAZIER: Thanks, Chuck.

I will focus my testimony on the confusion that would result if the
proposed standard become final. Considering the existing power plant
subject in its normal operations and maintenance to 1910.146 and
1910.269(E), assume that a new system is being constructed that includes
a process holding tank, the inside of which must be coated or painted.
Presumably, OSHA would expect the construction standard when the
employees enter the space while it\'s being built. After the new system
is in operation for some time, it would not be unusual to enter the tank
for inspection, piping or pump replacement, any kind ‑- no upgrade or
reapplication of the internal paint or coating. In that instance, OSHA
would presumably apply 1910.146 to the inspection and maintenance work,
but would apply the final construction standard to the reapplication of
the paint or coating inside the tank. This is because painting is
defined as construction work in 1910.12(B) and proposed 1926.1202(A)
includes construction work. Moreover, the note to 1926.1202(A)
specifically lists tanks as a confined space.

As a result, the same employees would be subject to different standard
based solely on the job tasks they are performing. This would be an
absurd result. The dual-regulation system would offer no additional
protection to employees and would only compromise safety and create an
administrative nightmare. In the real world, it is beyond unreasonable
to expect a work crew leader or supervisor standing in the midst of a
power plant undergoing a massive outage to appreciate and apply nuance
differences between what OSHA considers as construction versus general
industry work. Nor is it reasonable to expect a utility or contractor to
develop and implement a comprehensive confined-space program for
employees including training, equipment and documentation that would be
so flexible to accommodate ad hoc judgments as to which of the endless
variety of regulatory requirements it=s controlling.

We have prepared a little PowerPoint presentation to highlight the
confusion that utilities and other employers will face if the proposed
standard becomes final. For purposes of the record, a print out copy of
the PowerPoint will be submitted to the record with a copy of this
prepared statement.

So do we already have too many confined-space requirements? Among the
five standards shown here, OSHA has three current standards addressing
the confined-space and one that is proposes, thus the reason for our
being here.

1915(b) focuses mainly on marine operation. However, acceptable oxygen
levels differ from land-based confined-space entries as well as
emergency preparedness and response is difficult.

1910.146 focuses on general industry and defines two classifications of
spaces. The proposed rule 1926 focuses on construction work and defines
four classifications of spaces. Creating new terminology and definitions
can only further the confusion created by the proposed rule, as well as
adding to the potential risk workers would be exposed to that are
covered by this proposed rule.

1910.269 focuses on electric generation, transmission and distribution
for five-story enclosed space and it\'s industry specific.

Our dilemma is that existing proposed standards leads to confusion in
construction spaces processes to determine hazards and risks, emergency
preparedness and response, training and competencies. The proposed rule
fails to address key issues such as harmonizing confined-space
classifications and hazard assessments.

So the solution. One process focuses on protecting people, allow
industry specific and by all means keeps it simple.

It\'s all about protecting people. So why the differences? Is this
construction or general industry? If our workers are spending time
trying to figure out which regulation covers the space, what are the
chances that they will miss something that actually protects them from
the hazards? Instead they should be doing quality risk assessment,
determining adequacy of their controls, understand any risk that\'s
posed by the hazards, making sure competent workers and put in place
emergency measures.

So here\'s our bottom line. There should be only one standard that
governs permit-required confined-spaces. The classification of the space
must be determined by previous history and monitoring data, current
conditions, isolation status and the specific work to be performed,
including materials taken into the space that would influence the work
environment. Relying on which statement governs the space versus the
work itself will be setting both site employees and outside contractors
for potential safety and health issues that currently are controlled and
well understood under the existing general industry rules.

And I turn this over to Mr. Garzich.

MR. GARZICH: Good morning. As Chuck Kelly has described, work and
permit-required confined-spaces occur during transmission and
distribution, or T&D work, and in operations and maintenance work in
power generation facilities and other electric installations. Whether
they\'re performed directly by utility employees or contractors, the
space is standard, the work performed and the work practices used are
nearly always the same, regardless of whether facilities are maintained
as in general industry, or improved as in construction work.

During power plant outages, utility employees and contractors enter the
massive boilers that we operate to inspect and repair the components.
Often these functions are performed by the same crew. With two
inconsistent standards governing confined-space work, however, we would
often be faced with having a single crew being required to comply with
one standard, then the other interchangeably as they perform the work.
Alternatively, there could be different crews working in adjacent areas
of the same space, but subject to differing confined-space entry
standards. Rather than increasing safety, this system could inherently
lead to confusion.

Okay. Consider the environment in which this work performed. Typically
during a major planned power plant outage, a full boiler scaffold is
erected in a boiler space. During a shorter planned outage, a partial
boiler scaffold is often erected. The various components of the boiler
are inspected visually and depending on the length of the outage, and
other local factors, various forms of testing may be performed such as
the ultrasonic testing being performed by the green worker on the right
of the diagram.

This work would be considered operations and maintenance and therefore
governed by the general industry confined-space standard. Depending on
the test results, however, repairs could become necessary. If the
repairs are in kind, such as the welding being performed by the orange
worker at left, the general industry standard still applies. If,
however, the repairs involve an upgrade of materials, the blue worker
would be performing construction worker as defined by 1910.12(B). So
there would be doing construction work in the same space.

If the proposed standard becomes final, this stage of the work could
trigger the application of yet another confined-space standard in the
same space.

We would like to highlight just a few of the differences between the two
standards that we would have to deal with in the work place and
potentially in the same space. Imagine dealing with this on a hot day
when a 14 boiler has been shut down. There are contractors and utility
employees crawling all over the place. There is welding and other
equipment everywhere and everyone is trying to complete the overall of a
boiler safely but promptly since having the plant off line is making it
that much more difficult for the utility to serve its customers.

Under the proposed rule, employers would first determine whether there
is a confined-space at the job site. If there is a confined space, the
employer would then determine if there are existing or potential hazards
in the space. If there are such hazards, the employer would then
classify the space according to the physical and atmospheric hazards
found there.

Some of these differences. The general industry standard has two broad
confined-space classifications; permit-require and non-permit-required.
There are four confined-space classifications under the proposed
construction standard; isolated hazard confined space; controlled
atmosphere confined space; permit-required confined space; and
continuous system permit-required confined space.

And they\'re organized differently. The general industry standard begins
with requirements for entering the permit required confined-spaces. The
proposed standard takes a step-by-step approach, explaining how to
assess hazards, determine the classification for the space and how to
safely enter it.

There\'s differences in exchange of information. The general industry
standard requires a host employer to coordinate entry operations with
the contractor when the host employer and the contractor both have
employees working in or near a permit space. The proposed standard
requires a controlling contractor to coordinate entry operations among
contractors who have employees in the confined-space regardless of
whether or not the controlling contractor has

employees in the confined space. As EEI\'s comments make clear, an
employer who does not have employees exposed to a hazard, cannot be
cited under 1910.12.

There\'s differences in dealing with isolated hazards. The general
industry standard does not address working in a confined-space in which
a hazard has been isolated. The proposed standard allows employers to
establish an isolated hazard confined-space by isolating or eliminating
all physical and atmospheric hazards in a confined space.

In a controlled atmosphere permit- required confined-space monitoring is
required, as necessary, under the general industry standard. The
proposed standard requires continuous monitoring unless the employer
demonstrates that periodic monitoring is sufficient.

In general industry there is no explicit requirement for entry
supervisor to monitor permit-required confined-space conditions during
entry. The proposal has explicit requirements for entry supervisor to
monitor permit-required confined-space conditions during entry. Next
slide.

General industry requires a written permit-required confined-space plan.
No written plan required by the proposal when the employer maintains a
copy of the standard at the work site. General industry requires a
written permit-required confined-space plan. No written plan is required
by the proposal when the employer maintains a copy of the standard at
the work site. Now the reality? Who\'s going to read a copy of the
standard at a work site? It just doesn\'t happen.

Some other differences. Next slide. No specific early warning
requirements for upstream hazards under the general industry standard.
The proposal standard has early warning requirements for upstream
hazards in the sewer-type spaces. The bottom line, there can only be one
and only one standard that governs work in a specific confined space. We
cannot have an activity such as welding of boiler tubing that in one
instance falls under the general industry standard because it\'s
maintenance work; in another instance it\'s considered construction
because the boiler tubing is being upgraded, both in the same confined
space. Such conflicting regulations would be too confusing and sets
everyone up for failure and potentially risks worker health and safety.

Thank you for consideration of Edison Electric Institute\'s position on
this proposal.

JUDGE VITTONE: Thank you, sir.

Mr. Kelly, you have anything else or are you done?

Any questions from the audience? Over here. Ms. Trahan?

MS. TRAHAN: Hi, I\'m Chris Trahan with the Building and Construction
Trades Department.

I was looking for clarification of the blue worker. You showed a blue
worker who I think you were interpreting would be operating under the
construction regs as proposed. And you said that because he was not
welding or inspecting, that he would fall under the construction regs.
But he would be, if need be, upgrading the tubes within the boiler.

MR. GARZICH: Right.

MS. TRAHAN: Can you define what you mean by upgrading the tubes with the
boiler for people who don\'t know your work as well as you do?

MR. GARZICH: Okay. In a large boiler, which would go 14 stories,
there\'s a series and different boiler tube. When a boiler is originally
built, there might be one specification or one type of boiler that is
used. As time goes on, better materials are found. A boiler tube might
go from one that\'s mostly regular steel, standard steel, to something
that has more stainless steel in it. As such, it would be an upgrade and
under that upgrade would be considered construction work, as I
understand it.

MS. TRAHAN: Okay. So it would be maybe an upgraded method or material
from ‑-

MR. GARZICH: Specific ‑-

MS. TRAHAN: ‑- as originally designed for that particular unit?

MR. GARZICH: Right. And it doesn\'t have to be boiler tubes; it could be
other things.

MS. TRAHAN: Okay. Now, could you see that as being part of an long term
maintenance plan for that vessel, for that particular boiler even if it
was different than the original plan and the original design of that
boiler? But as the controlling entity of that plant, I\'m sure you plan
how to keep your boilers running so that the electricity keeps going.

MR. GARZICH: Yes.

MS. TRAHAN: And as far as long term maintenance of that particular unit,
I would think the maintenance plan would change over time and could ‑-
and what I\'m trying to ask specifically is although it wasn\'t designed
originally for, say, a stainless tube, maybe for a regular carbon steel
tube, but that maintenance plan changed over time, wouldn=t that still
be part of the maintenance of that boiler versus a substantial
reconfiguration of the boiler or redesign, or a reconstruction of the
boiler, in your opinion?

MR. GARZICH: My opinion, it would be altering or changing it. It would
be an upgrade following under the construction standard.

MR. YOHAY: Let me, if I may, also address ‑- the problem that we face,
and we all face, is that while on a common-sense basis you\'re
absolutely right. I mean, there\'s a maintenance program going on in the
plant, as there has been in all kinds of other industry. But our friends
over here at OSHA maintain this distinction in their regulations,
1910.12 that we\'ve all railed against for 30 years and have not changed
it. And as we understand the case law under 1910.12 and in the
transmission distribution area, 1926.950, when you improve something,
you\'re engaged in what OSHA defines as construction work, as opposed to
what the operations and maintenance ‑- a term you\'ll not find defined
in OSHA standards. And so the consequence is that when you are engaged
in what OSHA defines as construction work, even though common sense and
the rest of the universe would see it as maintenance, as you\'re
suggesting, you are obligated to comply with standards that apply to
construction work. And I indicated in my opening question and that\'s
been indicated in the comments, that triggers off the construction
standard, even though the universe would regard what\'s going there as
maintenance; everybody OSHA under their regulations. And there are
people in this audience who have articulated that view in a variety of
forum and I know they agree with me.

MS. TRAHAN: All right. Thank you. Appreciate it.

JUDGE VITTONE: You\'re welcome. Thank you.

Gentleman in the back, please.

MR. HOUVENER: My name is Gerald Houvener, a certified industrial
hygienist, certified safety professional, representing myself as an
individual citizen.

A lot of mention has been made this morning about final authority on who
has control over a confined-space when you have contractors. I
understand American Electric Power uses their own in-house traveling
maintenance crews that would go from site to site. Who has the final
authority and responsibility for their work?

MR. KENNETH FRAZIER: We are part of the American Electric Power, so we
actually have the authority in that case. And they\'re considered ‑- it
goes back to what I think Steve just spoke to; they\'re considered our
maintenance work and we don\'t really travel as much as we used to, but
we still have some of that.

MR. HOUVENER: So is it the crew leader who assembles the five, 10, 20
guys or ladies that move from site to site, or is it the plant manager
of the site that they\'re visiting who has that authority?

MR. KENNETH FRAZIER: It\'s actually dual. We have the plant managers
involved or his designee, as well as part of the ‑- it would be the
supervisor that\'s on the traveling crew. So because we have an in-house
confined-space plan or program. So everybody\'s familiar it, so it\'s
not as bad, when you think about it. Everyone understands that program
very well.

MR. HOUVENER: All right. So you have an intimate communication between
the two crews?

MR. KENNETH FRAZIER: Yes.

MR. HOUVENER: Thank you very much.

JUDGE VITTONE: Thank you. Anyone else?

Any questions from the OSHA panel?

MR. BIERSNER: Yes, Your Honor, we have several questions.

Mr. Kelly, in the written comments you submitted to the record earlier
you discuss OSHA\'s technology or methodology for calculating fatalities
related to work performed in confined spaces in construction. Have you
or your organization conducted or do you have any access to any studies
other than those that we cited, or you cited in your comments regarding
fatalities?

MR. KELLY: No, I would not. I\'d say no.

MR. BIERSNER: You have no other study?

MR. KELLY: No.

MR. BIERSNER: Okay. Thank you.

Garvin?

MR. BRANCH: Mr. Garzich, on page \-- slide number 9 of your presentation
you state that the general industry standard doesn\'t address working in
confined spaces in which the hazard has been isolated. The definition of
isolation for the proposed standard means elimination or removal of a
physical or atmospheric hazard by preventing its release into a confined
space. How is that different from 1910.146(C)(7)(i) that allows you to
eliminate a hazard?

MR. GARZICH: Can you repeat that?

MR. BRANCH: Okay. On your slide you say that the general industry
standard does not address working in confined spaces which a hazard has
been isolated. In the definition in the proposed standard, the
definition of isolate means the elimination or removal of a physical or
atmospheric hazard by preventing its release into a confined space. My
question is, how is that different from 1910.146(C)(7)(i) which allows
an employer to eliminate all hazards in the permit space to be
declassified from a permit?

MR. GARZICH: I think I understand, but as I look at it, when you look at
the existing standard that is there and the proposal, they\'re certainly
stated different and are not consistent in that particular manner.

MR. BRANCH: But you\'re still eliminating the hazard in both scenarios.

MR. GARZICH: I understand that you eliminate the hazard, but my whole
point in this whole thing would be that if we have a confined space
where we have two separate standards going on, the differences in
language and the differences in requirements would cause confusion. And
that\'s my whole point there. If we could have a situation where it
would go one way or another, that would be much less confusing.

MR. BRANCH: And that leads me to my second question. On page 6 of Mr.
Yohay\'s comments, he mentions \-- you compare the general industry
standards with the construction standards with regard to
classifications. Are you acknowledging that there are four
classifications in 146 as well?

MR. YOHAY: No.

MR. BRANCH: You list them here. You say in addition, 1910.146 contains
the following classifications: confined space; permit-required confined
space; downgraded permit-required confined space; and alternate entry
permit-required confined spaces. Each has distinctive safety
requirements. Do you acknowledge that they\'re different?

MR. KELLY: I think what ‑- just let me try to respond. I mean, we\'ve
got confined space and we got permit-required confined space. And then
if you look at downgraded permit-required confined space, I would
consider that a subset of it. And then your alternate methods or your
altered entry permit require confined space. I mean, I would say,
though, there are two separate ones, confined and permit-require
confined and then subsets of those would be the other two. We\'re not
saying that ‑-

MR. BRANCH: And each one has distinctive safety requirements.

MR. KELLY: In order to achieve ‑-

MR. BRANCH: Right.

MR. KELLY: Yes.

MR. BRANCH: Okay. My second question, or third question actually.

MR. BIERSNER: Do I understand that we have eight classifications to
deal, not just six?

MR. BRANCH: Eight. With the two standards. Okay. Got you.

With regard to the employers who you subcontract, do they arrive to your
work sites prepared to have a full-blown permit space program?

MR. KENNETH FRAZIER: Yes, until we test, monitor, get ‑- you know, do
all the testing and make sure the space is actually ‑- the risk has been
mitigated, or that they can\'t and we will do ventilation, whatever it
takes, to get this space ‑- yes, that would be the case.

MR. BRANCH: With regard to the cost estimates that you have on page 9 to
13, would these costs be in addition to what the costs of \-- to
maintain that type of program?

MR. KENNETH FRAZIER: I don\'t see this being in additions to it. We
never took it that way, because one of the things that my area directors
has coached me and as we have different conversations about this, is
that it\'s ‑- as the hosting party, we still have the responsibility to
make sure that regardless who they are or where they are, our traveling
maintenance group or some outside contractor, is to make sure that space
is there. So that\'s just goes into the cost of what we do. It\'s not an
additional cost.

MR. BRANCH: Isn=t it \-- maybe I need to rephrase that. Is it any
additional cost to the subcontractors?

MR. KENNETH FRAZIER: It\'s just a time thing; issue and that\'s built
into their service agreements. So they know \-- they understand the
practice, so when they come in, when they make a bid, they got that in
there, I\'m sure.

MR. BRANCH: And that leads me to my fourth question. Where do they get
the information to know what types of equipment are in these spaces?

MR. KENNETH FRAZIER: We provide it for ‑- where we\'ve got the
information, we provide that information for them.

MR. BRANCH: And that\'s a standard practice?

MR. KENNETH FRAZIER: Yes.

MR. BRANCH: Thank you.

MR. YOHAY: Let me just make a comment, if I may, that in trying to put
together an estimate, and that\'s what we called it, of the additional
cost, the direction that went out to the membership and hopefully was
followed in submitting information, was to try to estimate the
incremental difference in the cost of complying with the existing rules
as opposed to adding the cost of the new standard. There\'s no question
that there\'s costs associated with compliance now. But it wouldn\'t
have been appropriate to point that out as a consequence of this rule.
So what we directed the members to do was to try to estimate what
additional expense ‑-

MR. BRANCH: So those are additional expenses?

MR. YOHAY: Well, we put into the comments were intended to reflect
incremental differences that the new standard would impose.

MR. BRANCH: Thank you for that clarification.

MR. BURT: I\'m sorry. Are we talking about the estimates on page 13 of
the written testimony?

MR. YOHAY: Yes.

MR. BURT: And you\'re saying these are incremental?

MR. YOHAY: That was the point. Right. Yes.

And just to clarify, these are EEI\'s comments; not Mr. Yohay\'s
comments.

MR. BURT: I understand. I was almost going to say, wait a minute.

MR. YOHAY: Thank you.

MR. BURT: They are Mr. Kelly\'s, if anyone\'s, if I understand it.

MR. YOHAY: No they are \-- believe me, they\'re collective.

MR. BURT: It\'s his name on it.

JUDGE VITTONE: Any other questions?

MR. BIERSNER: Why don\'t we let Bob Burt go ahead, Your Honor.

MR. BURT: Okay. Let me just review a couple of things just to be sure I
understood what your answers to several that Garvin asked.

Now, for your own workers you follow the general industry standard, even
if they\'re doing construction work. Is that a correct understanding?
MR. KENNETH FRAZIER: Yes. Or 1910.269.

MR. BURT: Yes. Right. And when you bring in contractors, do you ask them
to follow the general industry standard?

MR. KENNETH FRAZIER: We ask them if they can \-- first of all, we
ascertain whether they have a rigorous process or program around
confined space.

MR. BURT: Yes.

MR. KENNETH FRAZIER: And if they don\'t, then we tell them our ‑- we
will make sure that they are compliant to the most rigorous standard
that we have in place.

MR. BURT: Okay.

MR. KENNETH FRAZIER: So that, most contractors now come in, they have
got programs in place.

MR. BURT: Right.

MR. KENNETH FRAZIER: We just have to assure that it is ‑- they actually
practice what they have on paper.

MR. YOHAY: And our experience at FirstEnergy is similar to that.

MR. BURT: Now, when you \-- I want to go back to the issue of your own
workers doing construction work. Now I assume these are people who do
\-- people who by \-- have occupations like welder and tester, and some
of these other things we saw in your table. About what percentage of the
time would you say they end up being \-- doing construction work rather
than general industry?

MR. KENNETH FRAZIER: Yes, and, you know, it goes, again, back to
Steve\'s comment. You know, we don\'t see that \-- we don=t delineate
between ‑- we get in a boiler and do work, we feel like that\'s
maintenance and \-- maintenance work. But under the rules ‑-

MR. BURT: So your concern is you don\'t need to worry about this now,
but you would under ‑-

MR. KENNETH FRAZIER: Yes.

MR. BURT: When they do do construction work, is it common or uncommon
for there to be construction contractors present as well, or just really
couldn\'t say?

MR. YOHAY: Are you talking about construction work as OSHA defines it?

MR. BURT: I\'m talking about when your workers are doing construction
work, are there also outside contractors present?

MR. YOHAY: Define construction work.

MR. BURT: What?

MR. YOHAY: Are you speaking about construction work as OSHA defines it
in its regulations?

MR. BURT: Yes.

MR. YOHAY: Do you honestly think that people in power plants are trying
to make those distinctions on a daily basis?

MR. BURT: I\'m asking if they have any information on this point, that
it\'s an important one, you know?

MR. GARZICH: Yes.

MR. BURT: Oh, yes.

MR. GARZICH: Yes, if you could imagine though a larger boiler outage,
there could be ‑- a couple hundred of our maintenance people would in
the boiler and it could be 300, 400 ‑-

MR. BURT: Yes.

MR. GARZICH: ‑- contractors all doing different \--

MR. BURT: Okay. Now on the issue of risk, I assume the major evidence
you would like us to focus on is attachment B to the EEI statement,
which contains estimates from selected companies of confined space
entries and recordable injuries associated with them?

MR. KELLY: I would \-- not having that in front of me, I would say yes,
that is true. That\'s the information that we got from ‑-

MR. BURT: Now that does show some injuries. Okay?

MR. KELLY: Okay. How many injuries does it show?

MR. BURT: Eight.

MR. KELLY: How many injuries?

MR. BURT: What?

MR. KELLY: How many confined space injuries?

MR. BURT: Many thousands. I was trying to calculate that, but didn\'t
quite have the time.

MR. KELLY: So we have many thousands and eight. Okay.

MR. BURT: Yes.

MR. KELLY: Thank you.

MR. BURT: And when you say there have been \-- I am \-- I can understand
the statement, and I had to make it myself, that we don\'t know if there
have been any fatalities in electric power. Do you know there have been
none, or are you just saying we don\'t know if there have any? In other
words, was there an extensive search to try to figure out if there had
been fatalities in the ‑-

MR. KELLY: Yes. Well, I mean, we asked the membership to go back and
look through their data and we came up with no fatalities as related to
confined space entry, or working in a confined space.

MR. BURT: Okay. If you could just ‑- I suppose for that and also the
material on page 9, if you could tell us a little more about how many
people you asked, the circumstances, just so I have a better
understanding of what weight to place on that.

MR. KELLY: Okay. Look at the EEI membership, the shareholder owned,
several years ago, I would say it was probably 200 members, even though
we represent 70 percent of the electric market. Right now with mergers,
acquisitions and things like that, you\'re looking at probably 100 to
110 companies that we surveyed as our membership.

MR. BURT: Yes.

MR. KELLY: Okay.

MR. BURT: And all of them answered these questions?

MR. KELLY: Well, I mean, how many ‑- no, I\'m sure they didn\'t. As in
any survey ‑-

MR. BURT: Yes.

MR. KELLY: ‑- I mean, let\'s look at what you consider statistically
valid in surveys. If you get 20 percent of a response, you\'re happy.

MR. BURT: Yes, that\'s what I was asking.

MR. KELLY: Yes.

MR. BURT: How many people actually responded?

MR. KELLY: I couldn\'t tell you the exact number of companies.

MR. BURT: Just a range would be fine. It would just help in
understanding the weight to give to it.

MR. KELLY: I couldn\'t even want to guess that.

MR. BURT: Okay.

MR. KELLY: But I=ll give it to you when I go back and look.

MR. BIERSNER: Yes, we\'d appreciate that in your post-hearing comments.

MR. KELLY: I\'m not going to guess on the record, but I will give you
something more.

MR. BIERSNER: Yes, we\'d appreciate any information of that, so you can
provide it in the post-hearing comment.

MS. KRAMER: When you do that as well, if you could submit a copy of the
survey that you sent to your members, if it\'s not already in the
record?

MR. KELLY: Yes, we will do a search for that, yes.

JUDGE VITTONE: Anything else?

MR. BURT: That pretty well covered what I have, thank you.

JUDGE VITTONE: Allison?

MR. BURT: I have one more.

MR. BRANCH: With regard to rescue provisions for the subcontractors who
do construction work, do they typically do non-entry rescue, or do they
have \-- have they arranged for third-party non-entry rescue, or entry
rescue?

MR. GARZICH: I don\'t have the specifics. Depending on the plant, it
could be both. It could be either way.

MR. BRANCH: These are \-- okay, so you=re \-- they are probably having
an in-house, is what you\'re saying?

MR. GARZICH: Depending on the station and some do more and others ‑-

MR. KENNETH FRAZIER: That=s how we got people that ‑- actually some
plants got people we call first responders.

MR. BRANCH: Yes.

MR. KENNETH FRAZIER: And they actually practice confined space rescue.
And so, like John says, it\'s ‑-

MR. KELLY: It would be dependent on the size of the plant, too.

MR. KENNETH FRAZIER: Depending on the size of the plant, too, yes.

MR. KELLY: Yes. The bigger the plant, the more likelihood you would. And
the location would have a rescue team.

MR. BRANCH: Thank you.

MR. BIERSNER: Bob?

MR. BURT: I\'m sorry. One more question. If the general industry \-- if
the construction standard were the same as the general industry
standard, are there still \-- are there costs that you think you would
incur just to meet the extension of general industry to the construction
sector?

MR. GARZICH: If they were identical, what would be the difference?

MR. BURT: Well, it doesn\'t apply to construction today. In other words,
you just ‑- if we do what I think I hear you recommending, just say make
the two identical, would there be cause to ‑-

MR. KELLY: Actually, what we\'re recommending is just make this go away
and everybody would be happy.

MR. BURT: Well, let me take another slightly short of that
recommendation. MR. YOHAY: The client that doesn=t need outside
advocacy, as you can see. I think the point is that, if I can speak for
you; tell me if you think I\'m wrong, that is that the work that\'s
being performed in confined spaces in the electric utility industry,
whether OSHA would define it as construction or not, is being conducted
in compliance with what this industry has learned to accept; that is,
1910.146 and 1910.269. It\'s not as if those who are \"engaged in
construction work\" are not following OSHA\'s ‑- they are. The point is,
as I understand it correctly, confined space programs that are in place
in the industry, including among contractors, are pretty much based on
the existing OSHA standards. Whether now in retrospect you can go back
and make a distinction between construction and maintenance. That\'s why
they\'re saying there really wouldn\'t be a significant incremental
cost. They\'re already doing it. That\'s how people have learned to live
with these standards.

Am I correct, John?

MR. GARZICH: Yes.

MR. BURT: So we\'ve talked a little bit about the low injury rate. Might
that be attributable to the fact that most people are setting up permit
\-- you know, appropriate procedures for their confined spaces?

MR. KENNETH FRAZIER: Sure. Yes.

MR. BURT: Okay. Thank you.

JUDGE VITTONE: Anything else?

MR. BIERSNER: Before we close, Your Honor, I\'d like to mark as Exhibit
0195 the PowerPoint presented by Mr. Frazier entitled, \"Don\'t We
Already Have Too Many Confined Space Requirements?\" And as Exhibit
0196, Mr. Garzich\'s testimony entitled, \"Proposed Confined Spaces in
Construction, 29 C.F.R. 1926.\" And I would ask that we admit those to
the hearing docket.

JUDGE VITTONE: Both will be made part of the record.

MR. YOHAY: And may I ask, is the testimony that was submitted with the
Notice of Intention to Appear, is that already part of the record?

MR. BIERSNER: Yes, that is.

MR. GARZICH: Okay. Thank you.

JUDGE VITTONE: Thank you, gentlemen. Appreciate your time today.

MR. YOHAY: Thank you.

JUDGE VITTONE: Mr. Yohay, you\'ve got a panel coming up right after
lunch?

MR. YOHAY: Right.

JUDGE VITTONE: Ladies and gentlemen, it\'s approximately 20 after.
We\'re going to break for lunch now. Be back here at 1:30. Okay? Thank
you very much.

(Whereupon, the above-entitled matter went off the record at 12:21 p.m.
and resumed at 1:31 p.m.)

A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N

1:31 p.m.

JUDGE VITTONE: Okay. Let\'s go back on the record, please.

We\'ll begin this afternoon with a panel from the American Wind Energy
Association.

Mr. Yohay?

MR. YOHAY: I\'m going to turn it right over to Mr. Theismann.

MR. THEISMANN: Thank you. Hello. My name is Britt Theismann. I\'m the
Director of Membership Services at the American Wind Energy Association.
I\'d also like to introduce my colleagues here. Scot Rudolph is the HSE
Advisor for Operations at BP Alternative Energy, North America and Mr.
Yohay probably doesn\'t need an introduction in this room.

My organization, the national \-- I mean the American Wind Energy
Association, has an acronym, AWEA, so you\'ll get used to hearing of
AWEA. It\'s kind of a funny acronym, but you get used to it after a
while.

AWEA is a national trade association representing over 1,500 entities
with a common interest in encouraging the expansion and facilitation of
wind energy resources in the United States. Our members include wind
turbine manufacturers, component suppliers, project developers, wind
farm construction contractors, project owners, operators, financiers,
researchers, renewable energy supporters, utilities, marketers,
customers and advocates of wind energy.

We\'re really delighted to be participating in this hearing today. This
is AWEA\'s first involvement in an OSHA rulemaking proceeding and we
expect it may be the first of many. We sincerely hope to develop a
cooperative relationship with OSHA by sharing information about our
operations and learning about how we can use OSHA\'s expertise to help
our members operate more safely. We also look forward to assisting OSHA
in understanding the effects that its standards have on other activities
\-- and other activities have on the wind energy industry.

With one of the best wind power resources of any nation in the world in
a rapidly growing electricity demand in the U.S. today, the world\'s
biggest market for wind energy is the United States. The construction,
manufacture and operation of wind power facilities is a rare bright spot
in a very tough economy. We\'re creating jobs, we\'re spurring growth to
the tune of more than \$9 billion in capital investment last year along
and 2008 is going to be even stronger. Recently you may have noticed the
Department of Energy published a report concluding that wind power can
provide 20 percent of the nation\'s electricity by 2030. It will be a
critical part of the solution to global warming. Currently there are
more than 18,000 megawatts of installed wind energy in the United States
with more than 9,000 megawatts under construction. That\'s half of
what\'s in the ground is in addition being constructed this year alone.

When DoE began the analysis of wind representing 20 percent of the
electricity generation in the United States, many people were skeptical.
I\'d also like to point out that though wind may be viewed by some as a
niche new industry, 20 percent of electricity production is as big as
nuclear; it\'s as big as natural gas. So wind \-- the wind energy
segment is going to be real and going to be large.

Today there are over 3,000 people working in operations and maintenance
at the nation\'s wind parks maintaining the 18,000 megawatts of wind
energy. We estimate that when we reach 20 percent electricity
generation, which is 300 gigawatts or 300,000 megawatts, there will be
around 50,000 people doing this work. We estimate that at the peak of
annual installations, which will be between 16 and 18 gigawatts of
electricity installed on an annual basis, we\'ll have over 12,000 people
involved in the construction of wind farms.

Given this rapid expansion and the importance of wind energy to domestic
energy production and environmental policy, it is important that AWEA
and OSHA develop a strong relationship and lines of communication so as
to provide the safest work environment possible. In this connection, as
OSHA develops new standards and interprets its existing requirements,
the Agency must understand and evaluate accurately the effect of its
activities on the wind industry. Just as with other industries which is
perhaps more familiar, OSHA may not assume that it\'s findings in one
industry necessarily support regulation in another.

For our part, AWEA\'s actively engaged in efforts to educate our diverse
membership in the requirements of applicable standards and in enhancing
our members\' compliance programs. As I stated earlier, the wind power
industry consists of a broad variety of firms engaged in a wide range of
activities associated with the construction, operation and maintenance
of wind turbines.

This brings us to our first two concerns about the proposed standards.
First, the proposal does not include a discussion of how the standard
would affect wind turbines or wind energy industry in general. There is
no discussion of why it is necessary to add the existing protection of
the industry\'s employees as to confined space entries. For example, the
note to 1926.1202(A) does not include wind turbines among examples of
locations where confined spaces may occur. Given the somewhat unique
nature of the operations and equipment involved in wind energy and its
diverse work force, OSHA must consider the effect of the proposed
standard on the wind energy industry.

In support of the proposal, OSHA states that OSHA does not believe that
the general industry standard addresses adequately the unique
characteristics of confined spaces in construction. It also then goes on
to state, also in contrast to general industry, OSHA believes that many
contractors who perform construction work in sewer systems are
unfamiliar with the hazards associated with these work sites. Apparently
OSHA has significant concerns about workers who are engaged in
construction in sewer systems. These concerns, however, cannot justify a
new rule applicable to all construction work, most of which does not
involve the hazards involved in sewer construction. Applying its
assumptions about sewer work to all construction sites creates
administrative and procedural requirements that only serve to increase
cost, complexity and confusion.

Second, proposed Section 1926.1202(A) states that the standard applies
to employers engaged in construction work, which apparently refers to
the definition of the term construction work that appears in 1910.12(B).
As OSHA is aware, the definition of construction work focuses on the
type of work being performed rather than the type of entity performing
the work. As such, employers that are not in the construction industry
may have employees who perform construction work. For example,
operations employees may perform construction work by installing
equipment that improves efficiency during periodic maintenance or after
a component failure.

As a simple example, currently a wind farm operator or contractor would
have developed a confined space entry plan that complies with 1910.146
to accomplish repair of an electrical component in the sump of a cellar
in a wind turbine. The requirements of this standard have long been
built into safety and health programs in our industry. Now, however, if
the proposed standard were to become final, employees performing such
work would be required to revise their safety rules and their programs.
Employers would have to retrain their employees and their supervisors
and try to educate them as to how to determine in a particular job which
set of rules to apply, depending on whether OSHA would classify the work
as maintenance or construction.

Apart from the total impracticality of this in the real world of field
work, no benefit in terms of employee protection would be achieved. Yet
the employers would have to be compelled to invest and waste
considerable resources and time, not to mention employee patience for no
reason at all. Put simply, the preamble does not reflect an appreciation
of the difference between construction work and the construction
industry, either generally or as applied to the wind energy industry.
The two are not the same. Construction work in wind plant and
installations that would be subject to the standard may be performed by
a variety of employers, not just those that one would think as members
of the construction industry.

Based on the language in the proposal, OSHA does not appear to have
recognized that many different types of employees may perform
construction work. This is troubling. Because an employee may be subject
to two different standards with different requirements. The general
industry and construction standards for permit-required confined space
entry is causing potential confusion and distracting the employees from
safety. Adding complexity and confusion to a rapidly-growing work force
is not helpful.

As we said, ours is an industry that is growing exponentially. In
addition, there is constant change in the technology and the equipment
being developed and installed. At the same time, there are already
thousands of wind turbines operating in the United States. All of this
complicates the task of evaluating how a proposed OSHA standard like
this one would affect the industry and its employees, but this does not
relieve OSHA of the obligation under the Act to make such an evaluation.

AWEA stands ready to work with OSHA to help educate the Agency about our
industry. But subjecting the wind energy industry to regulation based on
assumptions drawn from other industrial environments is improper, in our
opinion.

Thank you for hearing our testimony.

JUDGE VITTONE: Thank you, sir. Can I have a show of hands, does anyone
have questions for this panel? Seeing none.

OSHA panel?

MR. BIERSNER: Yes, we do, Your Honor. Are you going to speak as well,
Mr. Rudolph, is it?

MR. RUDOLPH: I\'m sorry.

MR. BIERSNER: Are you going to be speaking at all?

MR. RUDOLPH: No. No.

MR. BIERSNER: That\'s fine.

MR. RUDOLPH: Just anticipating your questions.

MR. BIERSNER: Okay. My first question is, on page 8 of your written
testimony you state that the proposed standard would not improve
employee safety. I was wondering if you had done any studies comparing
deaths and injuries, I guess compared to the general industry standard.
So, have you done any studies comparing deaths and injuries between the
general industry standard and the proposed standard, the requirements
for the construction work?

MR. THEISMANN: We\'ve not done a study, but in our very new industry,
when you look at deaths, you don\'t really need a study because the few
deaths that we\'ve had in our industry are right here, you know, in the
back of your mind. So we\'re not talking about a statistically
significant sample that we could take. It=s, you know, it\'s going from
very small to very large pretty fast.

MR. BIERSNER: Yes. I was talking in more general terms of construction
work generally showing any comparison, not necessarily your specific
industry. You have not done a study?

MR. THEISMANN: No studies, no.

MR. BIERSNER: Okay. On page 9 of your written testimony apparently you
administered a survey to I guess your members. I was wondering if you
might provide a copy of that survey to the post-hearing comments? Could
you do that?

MR. THEISMANN: We would be happy to provide the results to that.

MR. BIERSNER: Any report or survey or results.

MR. THEISMANN: Right.

MR. BIERSNER: We would appreciate it. Okay.

MR. THEISMANN: The details of the survey are privileged information and
confidential with our members, but the summary would be \-- could be
available.

MR. BIERSNER: All right.

JUDGE VITTONE: Anyone else?

MR. BRANCH: On page 10 of your written testimony, you state that several
of your \-- the terms in the proposed rule were confusing. Specifically
you asked \-- you referenced the definitions of the types of confined
spaces. What about those types of confined spaces was confusing?

MR. RUDOLPH: Going back to some of the earlier testimony, our industry,
like the other industries, has applied 1910.146 for the past 14 years.
And so it\'s been broken down into non-permit spaces and permit-required
confined spaces. When you add the complexity of hazard-isolated confined
space, continuous-system confined space, these are terms that the folks
engaged in the construction work in our industry, they\'ve never heard
those terms before. And so the complexity is to, number one, define
those to help explain in our industry do they apply, which really it
would be a rare circumstance that they would, but you=ve got \-- we
would then have to cover those potential contingencies where they
potentially could apply and therefore it\'s going to add a lot of cost
and then a lot of complexity.

MR. BRANCH: You stated during your presentation that you comply with
1910.146. There are different categories of spaces within 1910.146. How
do you comply with those?

MR. RUDOLPH: That\'s a great question, because typically a wind farm
operator or owner like BP, we engage the general contractor who would
then in turn engage subcontractors to perform much of the civil work.
Most of the confined spaces that we encounter during the development of
a wind farm is during that construction. A lot of excavation. As you\'ve
probably seen the blades on trucks traveling down the interstate. The
foundations required to have a tower that is large enough to support
those blades is quite extensive. So the civil work is pretty tremendous.
So sloping, shoring, benching, all of the things that we have to deal
with during that excavation piece, that\'s a big part of our confined
space that we\'re encountering.

Other specific examples would be going into particular pieces of
equipment to do inspections and those kinds of things. As Britt stated
in the testimony, the sump or cellar portion of a tower, from our survey
and the discussions that we\'ve had within the safety committee, we\'ve
determined that we\'re going to classify that as permit-required
confined space. In most cases there are not going to be hazards to be
found there. But in order to be proactive and recognize that there are
potential situations like where there has been previous oil and gas
exploration, we could have H2S in the ground. We could have
environmental hazards. Most of the parks that we\'re building are in
very rural remote areas. And so we encounter things like rattlesnakes,
scorpions, spiders, things that you don\'t typically get into that I
think OSHA would agree, I would consider an other-recognized safety
hazard. And certainly going into a sump or cellar with a rattlesnake can
get pretty exciting. So that is one specific area.

Also prior to hanging the rotor system, they may go into the blades and
do an inspection inside the blades. And so those really are the specific
areas for us that we come under, you know, the permit-required confined
space.

Does that answer your question?

MR. BRANCH: Yes. I take it that all space is going to be permit in your
situation.

MR. RUDOLPH: Yes. I mean, for the most part there are spaces where we
don\'t recognize any hazards, but those spaces also are designed for
continuous human occupancy and don\'t meet the classic definition.

MR. BIERSNER: Allison? Or Bob?

MR. BURT: Yes, a couple of questions. I didn\'t check immediately, but
you\'re under some much broader NAICS code to the extent you\'re covered
at all, aren\'t you? The North American Industrial Classification
System, where almost all economic data is developed.

Now there isn\'t a separate one for either construction or operation of
wind tunnels, is there?

MR. THEISMANN: There is not separate for now, for wind towers. However,
as the industry grows, we\'re going to end up with our own codes very
soon.

MR. BURT: Do you \-- you\'ve thrown out a few numbers. Do you have any
\-- has your association developed any estimates of the kinds of data we
would like to use; that is, things like number of firms, revenues per
firm, typical profits of firms, etcetera? In other words, do you know of
some place that has the economic data for your industry separated out in
a usable way?

MR. THEISMANN: We can help with large numbers, you know, numbers of
companies involved, number of employees that are involved. We can be a
resource for that. We don\'t get into financial information of our
member companies.

MR. BURT: To the extent you can provide any expansion on those issues in
your post-hearing comment, we\'d appreciate it.

The other driver here of costs is the number and kinds of confined
spaces in your projects. Have you tried to put together any data on what
the typical number of confined spaces of various types, if you get to
that detail, but of confined spaces that would be covered by this rule
might be by per million dollars a project, or any other measure that
might be useful?

MR. RUDOLPH: We haven\'t done that to this point because, and I think as
you\'re alluding, the size of the parks varies greatly depending on the
available land. And so, I think that\'s probably the best way to do
that, as you indicate, per million dollars of a project, but no, we
don=t \-- we haven\'t yet gotten to that level.

MR. THEISMANN: One number we can help you with is we know how many
turbines there are in the ground in the United States producing X amount
of electricity. And so, you know, we can help you with those kinds of
numbers.

MR. BURT: Yes, that would be helpful.

That covers what I have. Thank you.

MR. SVENSON: I had one clarification. I believe, if I understood
correctly, if the general industry standard were to apply to your
industry for all kinds of work, including construction work, would that
impose any additional costs or burdens, or have any problems for you in
your industry?

MR. RUDOLPH: It\'s being applied now. And so from that perspective, I
would say there wouldn\'t be a change. It would be the same as what
we\'re using at the present time. It\'s the change going to the proposed
standard that would add a lot of complexity and, as Britt alluded to,
there are really three distinct phases in building a wind park. The
construction phase, the commissioning phase and the operations and
maintenance phase. Construction is pretty straightforward. It\'s when we
get into commissioning and operations and maintenance we can actually be
doing both and that\'s where we would potentially fall under both sets
of rules and that\'s where things would get pretty complex pretty quick.

MR. SVENSON: Thank you.

JUDGE VITTONE: Anyone else?

MR. BIERSNER: Garvin?

MR. BRANCH: You\'re a particularly good person to ask this question,
because you work in rural places. How do you comply with the rescue
provisions in 146?

MR. RUDOLPH: Great question. Great question.

In general, when we build a farm, the general contractor takes on that
responsibility for the rescue provisions. From a couple different
perspectives we need to do that. One is, because we\'re in a rural area,
there may or may not be, you know, volunteer EMS, fire department,
etcetera, so we have to just to take care of our people.

Second piece is, as we go vertically, even if you do have a volunteer
ambulance rescue, they may not have any expertise in high-angle or
vertical rescue. And so typically what happens is as part of our
contractual arrangements with the contractors, that is built into the
contracts that they will provide that. And then as we transition through
the commissioning and operations and maintenance, then that role is
taken on typically through the O&M services provider. And again,
contractually we do that. We do drills and exercises and those types of
things.

MR. BRANCH: Are those typically entry rescues or non-entry?

MR. RUDOLPH: I would say typically they\'re not entry rescues, but we do
get into situations where, you know, it may be necessary. I am not B- I
don\'t know firsthand of any entry rescues in our industry.

MR. BIERSNER: Allison, did you want to ‑- maybe we\'re finished, John.

JUDGE VITTONE: I have a question. You said it\'s possible to crawl
inside those blades?

MR. RUDOLPH: Yes.

JUDGE VITTONE: How big are they?

MR. RUDOLPH: Well, they vary. Some of the older blades you couldn\'t
possibly get into them. The new blades, some of the blades we have are
120 feet long. And the entrance at the blade root is about four-feet in
diameter, so they\'re quite large.

MR. THEISMANN: If you lay one on its side, they can be 10 or 12, 14-feet
tall at the thickest part of the blade.

JUDGE VITTONE: Yes. I just seem them up on the posts.

MR. RUDOLPH: Yes, if you\'re ever on the interstate and you see these
very long trucks with the gray propeller or wing-looking, that\'s a wind
turbine blade. That\'s where that\'s going is to a wind park.

JUDGE VITTONE: The nearest one I think I\'ve seen around here is out on
the Pennsylvania Turnpike up near Somerset.

MR. RUDOLPH: Yes. Quite a bit of development in the northeast,
particularly Pennsylvania. Yes. Good wind resources.

JUDGE VITTONE: Thank you.

MR. BIERSNER: One moment. I was wondering if the panel had any documents
they wanted to submit to be admitted to the docket. Or \-- I know we
have some of your testimony and comments in the docket already, but is
there something else you wanted to ‑-

MR. THEISMANN: It\'s in my oral testimony from today.

MR. BIERSNER: Yes, do you have it?

Your Honor, at this time I\'d like to designate the document entitled,
\"Testimony of the American Wind Association\" by Mr. Theismann as OSHA
Exhibit 0197 and request that it be admitted to the record for this
hearing.

JUDGE VITTONE: It will be entered and made a part of the record. Thank
you very much.

Thank you, gentlemen.

MR. THEISMANN: Thank you.

JUDGE VITTONE: Mr. Kennedy? You may begin any time, sir.

MR. KENNEDY: Thank you. Good afternoon, ladies and gentlemen. My name is
George Kennedy and I\'m the Vice-President of Safety for the National
Utility Contractors Association. I\'m happy to have the opportunity to
summarize some our members\' concerns about OSHA\'s proposed rule,
Confined Space in Construction.

Let me start by saying that although we are not opposed to the idea of
having a confined space standard that is applicable to construction, our
members believe that OSHA\'s proposed rule will create considerable
confusion and also place an unnecessary burden with no improvements in
safety on the contractors who have successfully utilized the general
industry permit-required confined space standard for the last 15 years.
Our members also have concerns about some of the definitions and
requirements, and even the sample permit in the appendix.

My goal in the next 10 minutes is to expand upon the written comments
that NUCA submitted to the docket.

As one of the members of the original ACCSH confined space work group, I
can tell you that 15 years ago when the general industry permit-required
confined space standard was made final, there were concerns regarding
only a confined space rule specific to construction, but also
controlling contractor and rescue requirements. Consensus was not
required. So not everyone agreed that everything that came out of the
task \-- with everything that came out of this task force.

In July of 1998, and of course there seems to be some date differences
in our \-- what was presented by Mr. Parsons, the task force did submit
a revised set of recommendations about the general industry rule \--
about how the general industry rule could be made user-friendly to the
construction industry. Since this has taken 10 years, ten years for OSHA
to act on those recommendations, the construction industry has in the
meantime learned to implement and comply with the general industry
requirements for both general industry and construction settings. Many
contractors host work, in both settings, has been indicated here today,
therefore creating a separate rule for construction, will only create
confusion when they are going from one section of the industry to the
other, that being maintenance or construction.

The records show that construction poses no unusually significant risks
with regard to confined space entry and only a small percentage of
fatalities actually occur in construction confined space operations. And
I emphasize construction. For example, the CDC NIOSH FACE reports which
describe confined space fatalities in detail, show that the majority of
the fatalities occurred in industries other than construction and that
many of those incidents occurred to employees who were working in
industries covered by standards that were in existence at the time of
the incidents. In most cases, the companies that had fatalities did not
have a safety program or a permit-required confined space entry program.

The lack of a specific confined space in construction regulation is not
the problem. Any company that follows general industry permit-required
standard, the ANSI confined space standard, NIOSH or other National
Safety Council or other confined space entry guidelines will avoid
incidents and fatalities. The construction companies that had incidents
probably would not have complied with the specific confined space rule
simply because the word construction was added to its title. It goes
without saying that employee training is the key to safe confined space
entry. We at NUCA believe that. However, that does not mean that all
construction employees need to be trained.

Due to the nature of the work, many NUCA require all their workers to
attend confined space entry training programs on a regular basis. This
is not necessary for the majority of construction workers who work near
or around confined spaces. In addition, the terms \"near\" or \"around\"
have not been defined by OSHA. Neither have the terms \"in and around.\"

NUCA members believe that confined spaces should be designated either
permit-required or non-permit-required. The four new definitions or
different types of confined space classifications that OSHA is proposing
are similar and repetitive which only serves to confuse construction
managers and employees. Although many construction contractors have
established and implemented permit-required confined space programs,
their primary goal is to classify confined spaces as non-permit-required
by eliminating and controlling hazards and potential hazards. In our
opinion, this can be accomplished in most situations by testing the
atmosphere, ventilating the space and locking or blocking out the
hazards.

We recognize that there are some situations where a full-blown
permit-required entry may be required, but these are the exception, not
the norm. They generally occur when construction contractors are
performing maintenance work in general industry settings, in which case
they will be required to comply with the general industry
permit-required rule. Contrary to what OSHA believes, most work on live
active sewers involves maintenance, rather than construction work. In
this situation, potential hazards can be eliminated or controlled by
ventilation, plugging pipes and using bypass systems thereby making it
impossible to designate the space non-permit-entry-required. NUCA
members have been performing active sewer line work in this manner
without incident for many years.

NUCA members have a problem with the rescue regulations in both the
general industry and construction standards because both are
impractical, unreasonable and not feasible. NUCA opposes the requirement
for having a standby entry rescue team that can respond to an incident
in a timely manner. According to OSHA, and let me quote, timeliness
depends on how quickly serious physical harm might result from the
physical or atmospheric hazards in a permit-required confined space.

This is ridiculous because an incident can occur in seconds. And even a
well-trained professional on-site team could not respond in a so-called
timely manner.

Additionally, it is unreasonable and burdensome to expect a construction
company to train employees to a level of proficiency where they might
equal professional rescuers placing construction employees in a
situation where they must not only perform the rescue of their
coworkers, but also control their emotions and stress just to place
additional employees at risk. Nor is it reasonable to require
contractors to go to the burdensome expenses of having a trained
professional rescue team on site or standby for the typical three or
four-person utility or sewer construction crew, especially when few
incidents occur in construction operations. With the exception of the
tunneling requirements, other construction standards only require
contractors to have an emergency plan to implement in the event of an
accident. They do not require contractors to have an on-site or standby
rescue team for other types of construction operations or require their
employees to risk their lives to perform a rescue with only a limited
amount of training.

Although some fire departments do not want to take on the burden of
performing confined space rescue often due to potential liability, many
have technical rescue teams with training in confined space entry.
Officers from numerous fire departments have personally told me that
they would prefer to take on the task of rescue because construction
workers are not rescuers and will often make serious mistakes that will
result in further injury to the victim or result in multiple victims.

For example, one team leader gave me an example of a scenario he said
could happen. And that was, a rescue team \-- this lieutenant described
a simple scenario which would appear to have been an easy rescue to
perform. If a worker slipped and fell from the ladder while entering a
confined space and fell 16 feet to the bottom of a lift station injuring
his neck or spine, would you want an amateur rescuer attempting to
rescue? Keep in mind that an amateur rescuer would most likely not be an
EMT and that person would climb down into the hole and possibly do
something wrong when he tried to package the victim to get him out of
the hole.

This lieutenant pointed out that there\'s a good chance that if that
occurred, this individual would permanently be disabled for the rest of
his life and may be a paraplegic. He felt that it\'s not proper to have
a construction worker who\'s a first aider go down and do such a rescue.
So these are things we are concerned about. Therefore, NUCA\'s opinion
that confined space rescue should be left to professional rescuers.

NUCA members are also concerned about requirements that controlling
contractors be notified of the procedures that the contractor entering a
confined space will use. Generally, controlling contractors hire
specialty contractors because of their knowledge and experience.
Notifying and informing a controlling contractor of the location, the
hazards that are posed and the steps taken to enter the confined space
are unnecessary, difficult and often burdensome, if not impossible, and
will not serve to improve safety. Posting warning signs in the area of
the confined space and having an attendant stationed at the portal to
the confined space is sufficient to prevent unauthorized entry and
attempted rescue.

As an active confined space instructor who is also responsible for
training NUCA\'s approved instructors, I continuously watch for
information about confined space accidents. The large volume of
information I have read over the years I have been with NUCA clearly
indicates that fatalities and serious confined space accidents, the
majority of which occur in industries other than construction, are not
due to the lack of a confined space rule and regulation. The fatalities
are due \-- that do occur are caused by the failure of \-- people not
implementing a confined space program that requires training all
employees involved in a confined space entry; (2) not testing the
environment before performing and during the entry; and (3) ventilating
the confined space.

When general industry permit-required confined space standard was issued
in 1993, construction companies had contracted with general industry
host employers were required to comply with the general industry
standard, and this is the norm today. And the standard has carried over
into construction work where many construction companies have used it to
develop their confined space entry programs and train their employees.
NUCA developed a confined space training program based on 1910.146 and
to date has trained approximately 70,000 construction managers,
supervisors and employees in both English and Spanish. Our program is
available in both languages. If a new standard is created, we\'re going
to have to develop another either an addendum or a separate program and
translate it.

At this stage, the drastic changes proposed by OSHA will only serve to
confuse contractors and make it more difficult for them to comply, train
their employees and work with general industry. Equally important is the
belief on the part of most of the industry that issuing a new standard
will not reduce the number of confined space fatalities and injuries in
construction.

In conclusion, NUCA recommends that OSHA simply incorporate by reference
the general industry permit-required confined space 29 C.F.R. 1910.146
into the OSHA construction standards 29 C.F.R. 1926.

If there are any questions, I would be happy to answer them.

JUDGE VITTONE: Thank you, Mr. Kennedy.

Any questions from the audience?

MS. TRAHAN: Hi, I\'m Chris Trahan, with the Building and Construction
Trades Department. I think I have three questions.

I believe you said that the members of NUCA have been doing sewer work
without incident and I wasn\'t sure what exactly you were saying. Does
that mean as far as you\'ve found that there have been no fatalities
related to confined space work in sewage work?

MR. KENNEDY: We didn\'t do a formal survey, but in talking with all of
our membership we have not seen or heard of any confined space incidents
that have occurred.

MS. TRAHAN: In ‑-

MR. KENNEDY: In sewer operations, yes.

MS. TRAHAN: In sewer operations?

MR. KENNEDY: Our members primarily do sewer and water, to a great extent
anyway.

MS. TRAHAN: Okay. And again in sewage work, I think also based on some
questions you asked this morning, you\'re under the impression that OSHA
believe that the hazards cannot be eliminated in sewage work and so they
did the carve out with the additional precautions. But I think you know
otherwise. So is there \-- can you expand upon the way that in existing
sewage work ‑-

MR. KENNEDY: Sewer line.

MS. TRAHAN: ‑- sewer lines. How do you eliminate those hazards based on
atmospheric as well as engulfment?

MR. KENNEDY: Well, there\'s different ways. Sometimes it\'s just as
simple as testing and ventilating the space, making sure you have
ventilation while you\'re working in the space. If it\'s a simple job,
they\'ll do that.

MS. TRAHAN: So ventilation, you\'re considering elimination of the
hazard?

MR. KENNEDY: Controlling the hazard.

MS. TRAHAN: Controlling the hazard.

MR. KENNEDY: Which, in most cases, eliminates the hazard.

MS. TRAHAN: Okay.

MR. KENNEDY: I believe eliminating and controlling go hand-in-hand.

MS. TRAHAN: Okay. I\'m just trying to differentiate between those terms,
because typically OSHA has.

MR. KENNEDY: I don\'t really generally differentiate between them,
personally.

MS. TRAHAN: Oh, okay.

MR. KENNEDY: Now they\'ll ventilate. And then the other methods they use
is they will put pipe plugs upstream, at a manhole upstream, generally.

MS. TRAHAN: Can you describe what a pipe plug is?

MR. KENNEDY: Pipe plug is a big, or little, rubber plug. They come in
all sizes from a few inches to huge, six-foot diameter or more, rubber
plugs. They stuff them in a pipe. They pressurize them.

MS. TRAHAN: So are they inflatable?

MR. KENNEDY: Yes.

MS. TRAHAN: They\'re like balloons?

MR. KENNEDY: Yes, and they have to be fit, I mean they have to be fit
properly. If they fit properly, they blow them up. You know, you inflate
them with a little bit of air, three or four pounds of air. That blocks
the flow of the upstream line.

MS. TRAHAN: Okay.

MR. KENNEDY: Now sometimes they\'ll also go downstream of where they\'re
working and do the same thing. Then they\'ll purge the space, sometimes
with cleaning it, pressure washing it, high steam clean it and
ventilate. Let\'s say they\'re repairing or changing a manhole or doing
a major repair to a manhole. But again, here\'s the situation. That\'s
maintenance, isn\'t it?

MS. TRAHAN: Okay. Yes, that very well could be, I guess.

MR. KENNEDY: So now we got to go to general industry standard.

MS. TRAHAN: If we hold true to

the ‑-

MR. KENNEDY: Okay. Now if we\'re building a new line that we\'re going
to attach to that line and we\'re putting a pipe line in, we\'re going
to attach it into that active sewer line down the road, we\'re doing
construction, and this could be the same crew. MS. TRAHAN: I agree with
you.

The \-- so in the case of the pipe plug, is that typically one unit
installed within a pipe?

MR. KENNEDY: Is it what?

MS. TRAHAN: Is it typically one unit or do you ‑-

MR. KENNEDY: Are you talking about the pipe plugs?

MS. TRAHAN: Yes.

MR. KENNEDY: Yes.

MS. TRAHAN: Or do you usually do them two together in tandem in case
there\'s failure?

MR. KENNEDY: Well, they either have to install one and block it so it
doesn\'t slip out. Or in some cases, what some of the manufacturers like
Churney and Lancis recommend, a double plug.

MS. TRAHAN: Double plug.

MR. KENNEDY: We put two of them, so if one slips, you know, you have a
backup.

MS. TRAHAN: Okay. Now in cases like that where you have installed pipe
plugs and you are controlling the atmosphere through ventilation, would
your contractors typically issue a permit for that type of work?

MR. KENNEDY: Some do; some don\'t.

MS. TRAHAN: Okay.

MR. KENNEDY: They\'ll do a lot of the things that you usually have to do
for permit requirements and a lot of them issue permits. Actually, we
have a NUCA permit that you go through the whole permit, you do all the
check off and you answer all the questions. You get to the bottom, you
check permit or non-permit.

MS. TRAHAN: Okay.

MR. KENNEDY: That you\'ve followed all those procedures. That\'s the way
we approach it. Some of our members have \-- many of our members have
adopted our permit.

MS. TRAHAN: And that\'s designed to comply with the 1910.146 standard as
far as ‑-

MR. KENNEDY: That and ANSI, a combination of the two.

MS. TRAHAN: All right. Well then, it sounds like a lot of the work
that\'s happening by your contractors is following the 1910.146
standards.

MR. KENNEDY: Well, that program is based on it, so we train them \-- we
teach them that way.

MS. TRAHAN: So when you raise the issue of rescue, you say that a lot of
the sewage work is maintenance.

MR. KENNEDY: Yes.

MS. TRAHAN: And therefore your interpretation, my interpretations will
be covered under 1910.146?

MR. KENNEDY: If it\'s maintenance. MS. TRAHAN: How do your contractors
comply with the rescue requirements under 1910.146?

MR. KENNEDY: That\'s a problem. They basically are either B- most of
them are just calling the fire departments to see if they\'ll respond or
if they can respond, they\'ll invite them out to the site. Sometimes
they don\'t. Many of our members; not all, but some of them ‑- I
shouldn\'t say many. Some of our members have trained their people. We
do B- we used to teach confined space rescue training. We used to
provide that. But it is something ‑- the problem is is the teams. We
have so much turnover, you can\'t keep a team together.

MS. TRAHAN: So, but at least, as far as you can tell, a lot of them are
complying with the rescue provisions by prearranging with the local
emergency responder?

MR. KENNEDY: Well, they have a plan, but they don\'t necessarily have
the team on call. Because one of the problems with the general industry,
the standard, the way it\'s written, is you call up a local fire
department, say, I have to evaluate your confined space rescue training.
Fireman\'s going to go, Yes, okay. Come around in about eight months
when we do our training. They\'re not going to do it specially to help
comply. It\'s different when you\'re in the general industry
environment. You got a facility and you\'re donating to that local fire
department.

MS. TRAHAN: Sure.

MR. KENNEDY: So you can evaluate them, you can work with them, you can
train them. But if you\'ve got crews out there all over the state, and
many in multiple states. You\'re going to have to rely on the local
rescuers.

MS. TRAHAN: But I think what you\'re saying, and correct me if I\'m
wrong, that that challenge is going to be there whether or not the
1910.146 standard applies or ‑-

MR. KENNEDY: I think that challenge is still going to be there, yes,
unless we can get OSHA to clarify that too.

MS. TRAHAN: Okay. Thank you very much.

MR. KENNEDY: You\'re welcome.

JUDGE VITTONE: Thank you, Ms. Trahan.

Anyone else? Anybody from the OSHA panel?

MR. BIERSNER: Yes, Your Honor, I have a few questions.

You mentioned a CDC report in your presentation, your testimony.

MR. KENNEDY: Yes.

MR. BIERSNER: Is that the same report that Mr. Marshall addressed
earlier this morning?

MR. KENNEDY: My guess is it is. I went through a bunch of CDC FACE
reports. I went through everything I could find on confined space. And
from 1994, 19 \-- excuse me, 84 to 2004, and I will leave this with you.

MR. BIERSNER: Okay. I have your testimony that you gave me this morning.
But there is a separate document?

MR. KENNEDY: This is a separate document. We never really formally
distributed it and I didn\'t know it was got as round as quite as much
as it has.

MR. BIERSNER: Could you submit it maybe to the post-hearing record?

MR. KENNEDY: Sure, I\'d be happy to.

MR. BIERSNER: That would probably be a little bit easier.

MR. KENNEDY: That\'s the only copy I have, so to answer the questions
about it, you\'ll have to pass it back.

MR. BIERSNER: Well, what I\'m saying is go ahead and submit it later to
us.

MR. KENNEDY: Okay.

MR. BIERSNER: And we\'ll take it into the record at that point, so
appreciate it.

You mentioned the situation in which an employee falls, let\'s say from
16 feet on a ladder down to the deck. And it was ill-advised to have
another employee, a rescue individual. Would this be considered a
non-entry rescue situation, or would it be a rescue?

MR. KENNEDY: Obviously if the man had on fall protection and he was
attached to the tripod, which is an external rescue situation, there
wouldn\'t have been a problem. First off, he wouldn\'t have hit the
deck, hopefully.

MR. BIERSNER: All right.

MR. KENNEDY: And had he not been properly equipped with fall protection,
he was going down a ladder and he slipped and fell, then we would have a
situation where it would be an entry rescue because somebody would have
to go down and, as the rescue people call it, package the victim. And
that would be, put a collar on him, possibly special hoisting devices,
package the victim in a sled, whatever the case may be to get him out
safely. Because you move a guy around with a broken neck or a broken
back, you could permanently disable that individual.

This was a, just a scenario thrown at me by some lieutenant.

MR. BIERSNER: Right. Right. But in most cases you actually use an
off-site rescue service, usually a public ‑-

MR. KENNEDY: Most of the time that\'s what I think most contractors will
turn to.

MR. BIERSNER: Yes.

MR. KENNEDY: Because you\'re going to call them anyway and then they\'re
going to get on-site and they\'re going to take charge of the site, and
you\'re going to be pushed out of the way.

MR. BIERSNER: Okay. How many \-- what percentage of the employers in
your association do you think actually have their own on-site rescue
team?

MR. KENNEDY: I don\'t know. That would be a total guesstimate. I have
not a clue.

MR. BIERSNER: If you can get that information and submit it to the
hearing

record ‑-

MR. KENNEDY: I could try, but I doubt I could get that. you know, maybe
five, 10 percent, 20 percent. Something like that. Because a lot of the
\-- you have to realize a lot of our contractors are small to
medium-size, so it\'s going to be the bigger, larger contractors.

MR. BIERSNER: If they have their own in-house service, how difficult is
it to get training for those employees and would they be able to handle
this kind of a situation where you described an employee dropping to the
deck and breaking their spine?

MR. KENNEDY: It\'s fairly difficult. The programs we used to run for
trench and confined space rescue ran three, sometimes four days. You had
to get a crew there. You had to have the instructors there. It gets very
costly, for one thing. It\'s time consuming. And then historically what
happens is six months down the road you\'ve lost one or two of your
employees because of turnover and your team is broken and you\'re back
to square one. So that becomes a real problem, in my opinion. And as far
as that kind of training being readily available, there are schools
around the country, some of them that teach it. There are some groups
that teach it, but it\'s not something that\'s readily available.

MR. BIERSNER: Mr. Branch I believe has some questions.

MR. BRANCH: First, I have to thank Chris for asking a lot of the
questions that I was going to ask.

With regard to the plugs, are they to prevent engulfment hazards or
atmospheric hazards?

MR. KENNEDY: They can be used for both.

MR. BRANCH: And just for clarity sake again, any time that you block off
that space from the larger space and eliminate the hazards within that
space, it wouldn\'t be a permanent space?

MR. KENNEDY: It depends on whether they\'re installing the plug from
outside or inside the space.

MR. BRANCH: Well, in the beginning, yes. When \-- if you have to \--
until you get rid of your hazards, it\'s still a permit space; I agree
with you there.

MR. KENNEDY: Correct.

MR. BRANCH: When it comes to you having to have rescue services in
attendance, we only require that both in the general industry standard
and in the construction standard, the proposed construction standard. We
only require you to have that when you\'re in a permit space.

MR. KENNEDY: Yes.

MR. BRANCH: So the spaces that you just described you wouldn\'t need
rescue or attendants.

MR. KENNEDY: Once you got to that point.

MR. BRANCH: Right.

MR. KENNEDY: Because again, you\'re going to treat the installation of
that plug ‑- that\'s going to have be ‑- well, it may have to be
permit-required. Again, is there a hazard? You can ventilate, test the
air. No hazard. I mean, if you\'ve got a flooding hazard because a
storm\'s coming in and there\'s rain, that\'s a possibility, well
that\'s a different story. But generally speaking, you know, we have
people enter into spaces frequently without plugging, because they can
control the atmosphere with ventilation and continuous monitoring. And I
know a lot of contractors do it that way.

MR. BRANCH: But if they=re following the 1910 standard, they have to
have rescue provisions.

MR. KENNEDY: If it\'s permit-required.

MR. BRANCH: Right.

MR. KENNEDY: But they can evaluate it from outside and control the
atmosphere with ventilation and enter down and insert the plug and then
clean the space and make it ever more non-permit-required. Generally
speaking, they\'re going to plug it to block flow.

MR. BRANCH: Yes.

MR. KENNEDY: But your question earlier was can it be used for
atmospheres too, and yes, it\'s tight enough. It=s not going to \-- it
shouldn\'t be leaking. If it\'s leaking a little bit in terms of
atmosphere and we\'re monitoring, because I\'m a firm believer in
continuous monitoring also, similar to the earlier gentleman, and
that\'s what we tend to promote is continuous monitoring.

MR. BRANCH: With regard to the engulfment hazards, how do you warn
individuals of engulfment hazards?

MR. KENNEDY: You mean like \-- you\'re talking about the upstream
warnings, like in the new standard? Again, we kind of looked at the way
the general industry standard is written where it says check the weather
report more or less, know what\'s coming, have a plan for that day. And
it makes no sense to have to worry about it upstream if you\'re in
Arizona, in most cases, you know? Unless you got a rainstorm, you know?

MR. BRANCH: Right.

MR. KENNEDY: So you kind of go by what the weather reports are
indicating. So if there\'s a potential for flooding, well then of
course, you know, maybe that\'s not the day to do the work.

MR. BRANCH: So there are no \-- to your knowledge there are no systems
or anything available?

MR. KENNEDY: I\'ve heard of a couple of contractors on occasion when
they did expect a potential for flooding, a guy down in Texas for
example, he put a \-- stationed a man upstream, a mile or two upstream
at another manhole standing there all day with a walkie-talkie. And
that\'s very rare that I\'ve heard that. I only heard that from one
contractor.

MR. BRANCH: Okay. Thank you.

MR. BIERSNER: Allison?

MR. BURT: Couple of questions. You mentioned most sewer work was
maintenance rather than construction. Any idea of a rough percentage of
‑-

MR. KENNEDY: Fifty-fifty. I mean, that\'s a tough one, really.

MR. BURT: Yes, just, okay. I want to better understand the differences
that this standard might cost. Would you need to have more
permit-required or other forms of confined spaces under the standard as
written than under the general industry standard?

MR. KENNEDY: Under the general industry standard, even though we know
about, you know, the alternative method and the others, we generally go
with permit. We teach permit and non-permit and that, you know, again
kind of based on ANSI standard, too. It\'s common terminology, by the
way. That\'s why.

MR. BURT: Now I understand you raised some issues about training and
difficulties of classification, and the multiple contractor provisions.
Let me set those aside for a minute. Are there things you would do
differently with respect to actually running the operation under the
construction standard as you understand it than you do now under the
general industry standard?

MR. KENNEDY: I would say generally no.

MR. BURT: Okay. Thank you.

JUDGE VITTONE: Anything else?

MR. BIERSNER: I have one just comment. I mean these plugs really
interest me. Are they reliable? I mean, once you install them in a sewer
system, do they \-- I mean, will they maintain their integrity without
‑- you inflate them, right?

MR. KENNEDY: Yes, sir.

MR. BIERSNER: In some way. Set them against the side of the bulkhead. I
mean, are there any instances in which they have lost their integrity
for whatever reason and deflate it and come loose? What kind of a force
can they withstand and can a major engulfment hazard coming downstream
or from upstream against that thing? Can it actually keep that force at
bay, or what?

MR. KENNEDY: Okay. First, there\'s a lot of issues on that one. First
off, if they\'re properly installed, they should maintain their
integrity. Have there been failures? Yes. Generally, because they\'re
improperly installed. When they install them, they generally do it
upstream, at a manhole upstream from where they\'re expecting the flow
and then they will bypass from behind the plug. They\'ll put it in the
manhole upstream, because they\'ll put it in the downstream side of an
upstream manhole. They\'ll put a pump there. They\'ll pump it up and run
it on a hose. You may have seen it. I know I\'ve seen here it here in
Washington. You see this hose coming out of a sewer and it goes down the
road a block or two and then all of sudden it goes back into a sewer.
That\'s a bypass system. So that\'s there to relieve pressure from
building up so you don\'t have a large pressure behind the plugs. And if
it\'s done that way, they shouldn\'t have a problem, and including
installing it properly.

So \-- but there have been failures. I mean, there have been plugs that
have been improperly installed because a contractor\'s not following
procedure, not using them correctly. They\'ve exploded and they\'ve
killed and injured workers. But very rarely have I heard of these kind
of incidents occurring. Very seldom.

MR. BIERSNER: And I appreciate your comments. Any information you can
submit on these plugs and stuff to the post-hearing record will be
appreciated.

MR. KENNEDY: Well, I would recommend that you go to the Churney or
Lancis websites and they\'ll send you videos, and information is
available and everything OSHA needs is right there.

MR. BIERSNER: Okay. Thank you.

JUDGE VITTONE: Thank you, Mr. Kennedy.

MR. KENNEDY: Thank you, Judge.

MR. BIERSNER: At this point, I\'d like to admit Mr. Kennedy\'s testimony
to the record as Exhibit 0198 and request that it be entered into the
docket for this hearing.

JUDGE VITTONE: It will be made a part of the record.

Mr. Frazier, Mr. Rhudy. Whenever you\'re ready, you may start.

MR. WILSON FRAZIER: Thank you. Good afternoon, Judge, and ladies and
gentlemen. My name is Wilson Frazier. With me is Jim Rhudy. We\'re
representing the Steel Tank Institute/Steel Plate Fabricators
Association, also known as STI/SPFA.

STI/SPFA has over 170 steel plate fabrication companies on membership.
Our membership is concerned with the health and welfare and safety of
our employees. We employ professional health and safety managers on our
staffs. Our industry has a safety and health committee that is highly
involved and engaged in the safety and health process. We serve on the
ANSI Z117 Committee, have served on several other ANSI committees. We
participated in several rulemaking processes, including hexavalent
chromium, the scaffold standard and the Crane Derrick Advisory Committee
and are honored to be here today.

We have also \-- are an OSHA alliance partner. We\'ve most recently
published a fact sheet on safe tank entry in combination. And we
understand this proposed rule would apply to several of our product
lines if it goes forward. However, we do have a few concerns. Our
industry is responsible ‑- we fabricate potable water storage tanks,
like the picture you see here of an elevated water tank, pressure
vessels, pipe, atmospheric tanks, we do field erection and special
fabricated products.

The drawing you see here is of a above-ground elevated storage tank.
This is known as a hydropillar, or a fluted-column tank. The tanks we
produce are often large-volume tanks. We have few employees on our job
sites. This tank which is a 3 million gallon fluted-column tank that was
built in Ofallon, Missouri, had an average crew size of six to seven
people. At the peak of construction they had as many as nine people, but
typically our average crew size is around four to six people for a
stack, for a tank. To put it in perspective, I did a quick analysis of
this room. This room would fit five times inside just the bowl of this
tank, not including the support pedestal or all the lined areas you see
below the tank itself.

MR. RHUDY: There is no water in the bottom section there. Fire
departments like this type or tank to hang their hoses up on the inside.

MR. WILSON FRAZIER: These tanks range in size. Elevated storage tanks
can ‑- they\'re very rarely as small as 50 or 100,000 gallons. We
measure in terms of gallons. They can go up to 3 million plus and their
heights generally range between 100 and 220 feet elevation.

Another style tank that we produce is a ground storage tank. By the way,
the little photo of the people on these slides were drawn to scale so
that\'s representing a six-foot person. This tank is 2.2 million. This
room would approximately fit four times inside this tank. This crew
size, again you\'re looking at four to six people on average. These
tanks very rarely, but could be as small as 25,000 gallons. Typically
you see them in the 500,000 gallon range, up to 7 million gallons, which
is several hundred feet across.

MR. RHUDY: The industry concern is in the scope of the standard that
specifically calls out tanks such as examples of locations where
confined spaces may occur including tanks such as fuel, chemical, water
or other liquid, solid or gas. We\'d like you to acknowledge that a new
tank under construction should be excluded.

Here\'s an example of a tank with several people in it, the welder
performing a tractor weld on the bottom, welding the bottom plate. And
the gentlemen on the side are putting up the sides with a pontoon for a
floating roof tank.

Here you see two tanks under construction. Plenty of room. Lots of
space. You notice on the far side that the welding operation that the
weld fume is going up. No hazard to anybody.

This is that tank that you saw in the drawing. This is just partially
complete, but gets you an idea of what it looks like on the inside. They
will hang \-- the vertical piece you see there is referred to as one
ring. There will be two more rings that will go on top of that. And
Wilson informed you about how large this is.

Tanks under construction are not considered to be environments that have
hazards associated with confined space. This is recognized in the ANSI
Z117 standard in the exploratory, I=m sorry, in the explanation column.
New tanks under construction are not subject to having oxygen-deficient
or enriched atmosphere. Data that has been collected show that there\'s
no change from normal outside air.

New tanks under construction are not subject to accumulation of welding
fumes or other atmospheric hazards. They have sufficient natural
ventilation to prevent a hazardous atmosphere from forming during
welding, flame cutting or construction activities.

Here is an example of a smaller tank. You see a man on one side
hand-welding and on the other side that framework you see is the
automatic girth welder. It\'s welds the circumstance. Now one thing that
we talk about about a new tank under construction not presenting any
hazards, as was testified to earlier, you want to do a hazard assessment
of where you\'re working. That\'s not to say that there might be a
problem elsewhere in the facility where you\'re erecting this tank. So
in this location, you would want to check out the area around you to
make sure there are not going to be any vapor releases or you\'re going
to have them reduce the pressure, if you will, such that no hazard is
created to your workers. And that may lead you to do some monitoring,
which has already been discussed today, but the object here is that
there\'s no hazard in erection and welding of the tank.

Collected data shows no concerns with concentrations that would be
capable of causing death, incapacitation, impairment of the ability to
self-rescue, injury or acute illness. Example, carbon dioxide used as a
shielding gas in a welding operation. Collected data shows no impact to
oxygen concentrations. Engineering calculations show impossible to reach
dangerous concentrations with the equipment and the staff on site.

MR. WILSON FRAZIER: And we did some engineering analysis to see what
would that actually look like and we ran a sample of a 500,000 gallon
tank, which is approximately the size of this room, take out maybe the
stage and the first two or three rows of seats. We completely assumed
that the tank was completely enclosed and sealed with no exterior air
exchanges happening or occurring within that space. Of course it\'s
important to keep in mind that our true tanks that we fabricate are
constantly naturally venting. They have a vent on the roof and by virtue
of the water raising and lowering, they have to continually self-vent.
But for this example we decided to assume no air exchanges. And we
wanted to know how much carbon dioxide, which is one of the more common
shielding gases, how much carbon dioxide would it take to displace the
oxygen, to bring the oxygen level down to 19.5 percent.

What we found is that would take 384 welders working and breathing for
an eight-hour work day to get that oxygen level down to 19.5 percent. Of
course keep in mind our crew size is four to six people.

MR. RHUDY: We request that there be an added classification that new
tanks under construction should be excluded from the proposed standard.
Modifying 1926.1202(A), Scope. The examples of locations where confined
spaces may occur include existing or completed tanks such as fuel,
chemical, water or other liquid, solid or gas.

MR. WILSON FRAZIER: Another concern that STI/SPFA members have is the
definition of hazardous atmosphere, that this definition is overly broad
and burdensome. It is not consistent with the general industry
definition with respect to 1926.1203 under Hazardous Atmosphere, which
means among several other things, an airborne concentration of a
substance that exceeds the dose or exposure limit specified by an OSHA
requirement.

This definition is missing a critical distinction regarding the severity
of the hazard in the atmosphere. It omits the critical note from general
industry 1910.146 under Hazardous Atmosphere, part 4, that clarifies the
intent to exclude any substance that is not capable of causing death,
incapacitation, impairment of ability of self-rescue, or injury, or
acute illness.

What it also excludes is, or I guess one of the things that we would
like to be brought in, and I know there was some discussion about this
earlier, is the standard Letter of Interpretation, the March 26, 1999
Letter of Interpretation regarding a confined space atmosphere above a
permissible exposure limit is not always a hazardous environment. That
appears to be in direct conflict with some of the things I heard this
morning out of the panel.

It is also not clear what OSHA means by has potential for becoming
hazardous. We respectfully request that the definition of hazardous
atmosphere be modified to include clarification identical to the general
industry, moreover the note, an atmospheric concentration of any
substance that is not capable of causing death, incapacitation,
impairment of ability to self-rescue or injury or acute illness due to
its health effects is not covered by this provision.

And we request that there be clarity to the term potential to mean
reasonably foreseeable and not remotely possible under unforeseeable
circumstances.

MR. RHUDY: Industry concern is that natural ventilation is not
recognized. It is recognized in ANSI Z117.1. Natural ventilation is a
huge contribution to air quality of new tanks under construction. You
have convection currents that are rising, a chimney effect which causes
suction drawing air up. The heating of the welding process carries the
fume upward. Size of open areas facilitate natural air exchanges.

You see an example of that tank that we showed earlier where it\'s
coming in ‑- that opening in the bottom is normally a garage door or
maybe a double garage door for size and air naturally flows right
through this tank up through the top. And as you saw earlier where it
was only half way completed, you get a lot of air going up through that
flute, if you will.

Unlike mechanical ventilation, natural ventilation cannot fail. Natural
is more effective than mechanical. Trying to reverse direction of
natural ventilation takes tremendous mechanical effort to overcome.
Natural ventilation would not require verification that mechanical
ventilation requires; that is, checking to make sure it\'s still
working. Natural ventilation is safe and effective. Poor use of natural
ventilation can adversely effect the benefits of natural ventilation.

We request that if in fact a controlled atmosphere confined space
classification remains, then recognize natural ventilation alone when
demonstrated to be sufficiently effective. Allow assurance of
effectiveness to include historical monitoring data and engineering
calculations, which we have and which we use in the ANSI Z117 standard
to have natural ventilation recognized.

MR. WILSON FRAZIER: The industry is also concerned with the
reclassification process that is confusing in 1926.1207 under the
Reassessment. The general industry has an established procedure and we
simply request there be a clarification or clarify the reclassification
process to be consistent with that in 1910.146 where it would be allowed
for reclassification or a declassification of the confined space when no
atmosphere or physical hazard could be introduced into the space. An
example, if the tank is isolated, cleaned and gas-free.

Finally, we just want to talk about the cost versus the benefit, or the
economic impact. STI/SPFA members employ over 20,000 people.

Potable water storage, our drinking water. As I discussed earlier, the
average crew size is four to six people. These tanks are constructed all
over the United States. Elevated tanks are primarily in the low-lying,
the Midwest and throughout the East Coast. And the ground storage, you
see a lot in the natural elevation areas. This standard would require an
attendant ‑- well an attendant would add 17 to 25 increase in the
skilled labor cost to that four to six people because of the small crew
size. If we\'re in a position where we\'re forced to add an attendant,
that would be significant. It\'s also important to note that the field
labor cost is the second largest cost incurred in the project next to
the steel alone.

An attendant would be required for nearly the entire field of
construction the way the standard is currently written. It would add
significant cost to the project which would ultimately be passed on to
the public utilities and on to the consumers. The cost of a new
municipal tank, our estimates, would increase by about five percent.

More importantly than the cost though, I think is the additional risk to
life and what benefit would this have for life. An attendant would be
exposed potentially to the number one causes of fatalities in
construction, falls from elevation. As we mentioned earlier, our
elevations are 100 to 220 feet in the air. Naturally, many of our tanks
do not have ground access. Their only access is via a vertical fixed
ladder that you climb up the outside of the tank to gain access onto the
structure itself, which is where entry would be required. If we\'re
required to put an attendant up on that tank, there would be some risk
with that attendant being exposed to that fall hazard.

The attendant will be exposed to the number three cause of fatalities in
construction, a struck by object. For those attendants that would be so
fortunate as to not have to climb the tank and would be able to monitor
from ground level, they would be located within our controlled access
zone, which, you know, despite many overhead precautions being taken,
there still would be some level risk that would be there by exposing an
employee to overhead hazards.

So finally, when we question the true benefit for above-ground storage
tanks, which is primarily what we\'ve talked about this afternoon, in
the last 100 years our industry has fabricated over 100,000 tanks in the
United States. In the last 10 years, of the above-ground storage market,
there\'s been 5,650 tanks fabricated in the United States. That really
doesn\'t account for all the ground storage tanks, especially with the
ethanol boom, but of what I could measure, about 5,650 elevated tanks.
The number of deaths related to hazardous atmospheres in new tanks under
construction is zero.

We\'d be happy to answer any questions you might have.

JUDGE VITTONE: Thank you, gentlemen.

Anyone in the audience?

Ms. Trahan?

MR. RHUDY: I\'d have been disappointed if you didn\'t come up here.

MS. TRAHAN: I don\'t want to disappoint you.

Is your prospective primarily from those two types of tanks that you had
the pictures up for, or are there other types of tanks that you think
should be excluded from the standard?

MR. RHUDY: An above-ground tank under construction should be excluded
from the standard.

MS. TRAHAN: All above-ground tanks?

MR. RHUDY: Well, it depends on

the ‑-

MS. TRAHAN: Because I\'m thinking of different types of ‑-

MR. RHUDY: Well, what are you thinking of? A propane tank, or a blimp,
if you will?

MS. TRAHAN: Yes, and lots of others.

MR. RHUDY: Well it depends on how it\'s constructed. But if you\'re on
the inside doing a closing seam, then you\'ve got to examine the
exposure and very likely provide ventilation. Just as in when you\'re
doing one of these elevated tanks or you\'re doing a ground storage
tank, when you\'re closing in the very top of the tank, you\'ve got an
enclosure. It\'s interesting to note that the American Petroleum
Institute recognizes a non-confined space, meaning it doesn\'t have any
product in it. Okay? But when you\'re seal welding underneath, then
you\'re going to be providing mechanical ventilation.

MS. TRAHAN: So when you\'re putting the top on, basically?

MR. RHUDY: When you\'re sealing it up, yes. You can leave a part of the
section out, and you saw some of the pictures, and you do have rushing
air up through that and you will leave part of the top out for
illumination and ventilation.

MS. TRAHAN: Are any of the tanks that the folks that you guys represent
are any stainless tanks, or are they all carbon steel tanks?

MR. RHUDY: They are stainless tanks, yes.

MS. TRAHAN: So it sounds like you did some calculations based on the
carbon dioxide that may be used as a shielding gas to calculate that a
build-up of carbon dioxide could not lead to an oxygen-deficient
atmosphere.

MR. RHUDY: Yes.

MS. TRAHAN: Have you done similar calculations as far as other types of
shielding gas, mixed gases or argon gas?

MR. WILSON FRAZIER: No, we just \-- for this particular example, just
for this, we just did the ‑- that was the most common, one of the most
common gases, in our industry what we\'re using, and so that\'s the one
that we did.

MS. TRAHAN: That has a vapor density about the same as general air,
right?

MR. WILSON FRAZIER: Yes. Yes, it\'s real close.

MS. TRAHAN: So, argon having a much higher vapor density would
accumulate in the lower portions of a tank versus mixed uniformly
throughout the tank?

MR. RHUDY: Well, in responding, you heard us earlier say we\'re
responding to the chrome 6 standard. We did quite a bit of analysis on
that in welding stainless steel and we found that a welder welding down
flat and had his head in the fume plume needed to have respiratory
protection. But the welder that was welding the horizontal seam or a
vertical seam, are in the generalized atmosphere. There was not a
problem with exposure to reaching the action level.

MS. TRAHAN: And that\'s in the large tanks that you were talking about?

MR. RHUDY: Yes. Right. Yes.

MS. TRAHAN: But not necessarily in all tanks?

MR. RHUDY: Depends upon the size again.

MS. TRAHAN: Yes.

MR. RHUDY: If you\'re talking about a propane tank that you see in back
yards, then that would be a concern.

MS. TRAHAN: And then you mentioned a few times that all collected data
shows no problem with atmospheric hazards.

MR. RHUDY: Yes.

MS. TRAHAN: Is that data available as far as what you\'ve looked at to
show that there\'s no atmospheric hazard in the construction of these
tanks?

MR. RHUDY: In the petro-chemical industry they in general want to follow
the general industry standard. And when we bid a job to them, we will
define that a new tank under construction is not necessarily confined
space until completely enclosed. And their purchasing agent will say,
okay, it\'s no problem with us. There will be no extras. And then when
you get to the site, their site safety people said, wait a minute. You
know, you\'ve hung the first ring. You\'ve got a manhole entry. You need
to have an attendant. And we said, wait a minute, we don\'t because you
agreed to it. And they said, wait a minute, you signed the contract. You
said you would follow our rules. So do it or leave, you know? And our
quote it\'s an extra. So you quote them a change order and you put an
attendant on the tank and they will come out and check it every morning
and there is yet to be a problem. And then you get 50 cents on the
dollar.

MS. TRAHAN: All right. Thank you.

MR. RHUDY: Sure. Thank you.

JUDGE VITTONE: Thank you, Ms. Trahan.

MS. BOR: Good afternoon. I\'m Victoria Bor and I\'m also with the
Building and Construction Trades Department. And I just wanted to ask a
couple of follow-up questions from Chris. Because I\'m struggling with
trying to figure out what tank ‑- you know, how one would define the
kind of tank that you seem to be saying to be categorically excluded
from the standard and what I understood you to say in response to some
of Ms. Trahan\'s questions. Which is, there are tanks that you would
include.

And all of the \-- if I understood correctly, the pictures that you
showed of the tanks under construction, all were roofless.

MR. RHUDY: Yes.

MS. BOR: And in some of the discussion that you just had you were
talking about tanks that were completely enclosed. Now, would you draw a
distinction between ‑- again, focusing on your exclusion here, would you
draw a distinction between tanks that are in the process of construction
that are not yet enclosed and tanks that are enclosed?

MR. RHUDY: Sure. The ANSI standard, as I talked about, recognizes the
exception and the exception is tanks and other structures being
constructed may or not be considered confined spaces until completely
closed. So once you close them, okay, then you\'ve got vents normally
that are installed on top. But, you will provide mechanical ventilation
to ensure that the welder is okay. One thing you need to realize, that
as these tanks are being built the welding fume is being created as you
add ring to ring to ring, because the workers are moving from the bottom
all the way through to the top. So that promotes, if you will, the
elimination of the weld fume, the distribution of the fume.

MS. BOR: But if I \-- again, if I understand what you\'re saying,
you\'re saying that up until a certain point in this construction
process, you can depend on natural ventilation.

MR. RHUDY: Yes.

MS. BOR: Which is in effect saying you don\'t have to put in engineering
controls. You wouldn\'t consider it regulated, to use the terminology
here.

MR. RHUDY: Yes, that\'s correct.

MS. BOR: But at some point, because it becomes enclosed or maybe in the
parlance of the standard, it becomes confined, you have to start, or the
ANSI standard requires the implementation of mechanical ventilation,
which is some sort of engineering control, which is again sort of saying
you begin to regulate the environment.

MR. RHUDY: In a controlled space, yes.

MS. BOR: And I think, you know, that sort of ‑- you\'re asking OSHA on
the one hand to exclude tanks. I mean, that was I thought you were ‑-

MR. RHUDY: New tanks under construction. That\'s correct.

MS. BOR: Under construction. And the question is, at what point is it

sufficiently ‑-

MR. RHUDY: Until they become completely enclosed.

MS. BOR: All right. And I guess my question then is, if the standard
applies to confined spaces, which are spaces that have limitations on
ingress and egress and are enclosed ‑-

MR. RHUDY: Well, spaces that have restrictions on egress and places that
a person can humanly enter, and is not designed for a person to be in.
Okay? That\'s the definition of confined space. And if you will, when
you hang that first ring, you\'ve got that definition met.

MS. BOR: All right.

MR. RHUDY: You\'ve got that definition met.

JUDGE VITTONE: Okay. So what you\'re saying is that you shouldn\'t have
to go through the process of doing a hazard analysis to determine what
the atmosphere is in order to get out from underneath ‑- in order to
avoid a permit up until a certain point, because an assumption can be
made that there will not be a hazardous atmosphere. Is that ‑-

MR. RHUDY: Well, again, relying on 117, the atmospheric testing may be
waived for non-permit confined spaces where it has been established
through a formal hazard identification and evaluation study that no
atmospheric hazard exists. I mean, in compliance, once the rule came
out, in compliance, primarily with our petro-chemical customers in doing
analysis, they said, you guys have no problem, you know?

But when you get into the controlling contractor and they\'re in a \--
in confusion as to what would apply, then as the controlling contractor,
they\'re going to say, put an attendant on the space, because they
don\'t want to get a citation from OSHA.

MS. BOR: Do you see anything in the standard that requires a controlling
contractor to require you to have an attendant on the space?

MR. RHUDY: Well, that\'s under the multi-employer doctrine, if you will,
and there is a question there. It all depends upon who you are.

MS. BOR: No, I\'m asking about the standard itself.

MR. RHUDY: Okay.

MS. BOR: Because there\'s been some discussion today about what the
standard requires. Do you understand the standard to require a
controlling contractor to require you to have an attendant if you have a
confined space?

MR. RHUDY: The standard would require the controlling contractor to
oversee that you are following the rules. And if the controlling
contractor determines that that is the rule, then he\'s going to say you
do that.

MS. BOR: I don\'t read the standard that way, but we can disagree about
that.

MR. RHUDY: Okay.

MS. BOR: You\'ve answered my questions. Thank you very much.

MR. RHUDY: Sure. Thank you.

JUDGE VITTONE: Thank you. Anyone else? Anyone from the OSHA panel?

MR. BIERSNER: Yes, Your Honor, we have several questions.

I want to get back to this idea of the enclosed space and ventilation
and being exempted from the standard. So your basing your assertion that
it should not be covered by the standard on historically collected
atmospheric hazard data? Is that what you=re \-- you\'re relying on
available historical data to make that assertion?

MR. RHUDY: Well, you do a hazard analysis, as was discussed earlier
today.

MR. BIERSNER: Right.

MR. RHUDY: And you look at the inside of a tank and you\'re going to
have welding fume from welding and you\'re going to have some fume from
flame cutting. And you can readily see exactly where that fume is going,
you know? You do an analysis for oxygen deficiency and you\'re not going
to find any. You do a check on your welders, and as I stated earlier,
the only problem we\'ve had in the past is the welder who\'s welding
down on the floor, if you will, you know, and the fume plume is coming
back up into the weld hood. And he\'s gotten near the action level
thereby putting \-- requiring respiratory protection.

MR. BIERSNER: My concern is, when a compliance officer gets on site,
they\'re going to want some information showing that that tank under the
conditions in which you are exposing your employees, that size of tank,
that kind of work you\'re doing, employees who are in it, you have
historical data that would indicate that that is not a hazard. And is
that what is being done now?

MR. RHUDY: That has been done, yes.

MR. BIERSNER: Is that what you are proposing, the approach that you
would be proposing to use instead of complying with the standard, or to
get out from under the standard, an exemption under the standard?

MR. RHUDY: The historical data, yes, would be used.

MR. BIERSNER: Okay. Also, you mentioned the situation where you would
have 250 plus welders in the tank and it would take over eight hours
before you depleted the atmosphere to the lowest level that OSHA would
allow under its respirator standard. What about other toxic hazards
other than depleted oxygen? Did you look at carbon dioxide or other
effluents that are a result of welding process?

MR. WILSON FRAZIER: The example that I mentioned was for carbon dioxide.

MR. BIERSNER: Oh, okay.

MR. WILSON FRAZIER: It was just for carbon dioxide displacing the
oxygen.

MR. BIERSNER: Okay. But what were the carbon dioxide levels then?

MR. WILSON FRAZIER: I don\'t have that data in front of me. I could get
that, though.

MR. BIERSNER: Okay. If you\'d submit to the post-hearing record, we\'d
appreciate it.

I have a lot of concern about this natural ventilation. I mean, it is
used in a number of standards, I guess. Could you describe \-- I mean,
are you saying that in every situation until the tank becomes enclosed
you believe that it is appropriate to rely on natural ventilation? Is
that what you\'re saying?

MR. RHUDY: As far as the construction, the erection of the tank is
concerned, yes.

MR. BIERSNER: Would you describe what you mean by natural ventilation? I
mean, is it convection?

MR. RHUDY: It\'s convection. It=s the well fume, if you will, rising
because of the heat to get it out of the way. The ladies up here earlier
tried to get a size definition from me and the response had to be that
it depended upon what it was from a hazard assessment, you know. But if
you\'re talking about a tank 24 feet in diameter, 24 feet tall, no, I
would not be concerned about hazardous exposure until I put the roof on
the tank. And atypically, you\'re not going to have a person in there
when you put the roof on the tank because you\'re on top.

MR. BIERSNER: Okay. Mr. Branch? MR. BRANCH: In your comments on page 3,
or your testimony on page 3, you outline all of the hazard assessments
that you did to come to your conclusions. If you were to do this under
the general \-- under the proposed general \-- the proposed construction
standard, you\'d be making a hazard assessment for that particular site
that we require. Once you determine that there was no hazard, that there
was no potential of the hazardous atmosphere raising to a level that\'s
unsafe and that there were no other physical hazards within the space,
you wouldn\'t have do anything else beyond reevaluating the space once
those conditions changed. Therefore, you\'re really kicking yourself out
of the standard by doing what you\'re required to do under 1204.
Everything up from the beginning to 1204, you\'ve done it in your hazard
assessment.

Another aspect that, kind of, I think I got kind of lost, is once you
get to the point ‑- one, you can\'t assume that all size tanks are going
to behave the same way, the air inside is going to behave the same way,
which you kind of alluded to with Ms. Trahan. I just \-- I don\'t follow
how we can exempt as a whole tanks without requiring you to at least do
what you\'ve done here, your hazard assessment for that particular site.

MR. RHUDY: Well, as requested, then recognized natural ventilation.
Because, doing as you describe, then we would get to the point that we
would have to put a ventilator on one of the manholes to meet the intent
of the standard.

MR. BRANCH: Right. Because the conditions of the tank change.

MR. RHUDY: Well, because you hit the definition of confined space and
then you do the assessment. The minimum thing you would have to meet
would be to put a ventilator on the tank.

MR. BRANCH: Yes.

MR. RHUDY: And that\'s not necessary, because there\'s not a hazard
because it\'s covered by natural ventilation. So amend that minimum
part, the controlled atmospheric section and recognize natural
ventilation.

MR. BRANCH: Can you read that exception for me again from ANSI?

MR. RHUDY: Under the definition of confined space in the explanation
section after they give you the three criteria, tanks and other
structures being constructed may or may not be considered confined
spaces until completely enclosed. Then, a non-permit confined space can
be assessed after an evaluation that it\'s unlikely to have potential
hazards or has the hazards eliminated by engineering controls. And then
you go to atmospheric testing may be waived for normal \-- for
non-permit spaces where it\'s been established through a formal hazard
identification and evaluation study that no atmospheric hazard exists.
And then finally under ventilation, natural ventilation may be
acceptable if it can achieve the same result as mechanical ventilation.

MR. BRANCH: Yes.

MR. RHUDY: That\'s the point. Okay? If natural ventilation can achieve
the same ‑-

MR. BRANCH: But even the exception starts out with may or may not.

MR. RHUDY: That\'s true. And then it goes into atmospheric \-- it goes
into non-permit, then it goes into atmospheric testing, then it goes
into ventilation. That\'s correct.

MR. BRANCH: You said something that was kind of troublesome to me as
well. Can you identify what provisions require a controlling employer to
oversee a contractor?

MR. RHUDY: I\'m sorry. Say that again?

MR. BRANCH: Can you identify what provision requires a controlling
employer to oversee a contractor?

MR. RHUDY: No, I don\'t have that quote. I can get it for you, but I
don\'t have it. It\'s been alluded to here earlier today. Any of those
people answer that question?

MR. BIERSNER: Well, it\'s a bothersome perception for us.

MR. RHUDY: Well, it\'s also in multi-employer, too?

MR. BIERSNER: Well, true. That\'s implied in the general OSHA
multi-employer ‑-

MR. RHUDY: Yes.

MR. BIERSNER: But I question whether or not this proposal actually
requires general oversight. I mean, as a stand-alone document.

MR. RHUDY: Yes.

MR. BIERSNER: Bob, did you have a question?

MR. BURT: Yes. I\'m sorry, I\'m going to sound very confused, and I am,
and I\'m sure it\'s me and maybe even it\'s our standard. But I\'m not
quite getting what you\'re asking for or what the situation is. As the
standard is now written, if it were implemented, are you saying that all
steel tanks under construction would need to do what exactly?

MR. RHUDY: Conduct a hazard assessment and provide mechanical
ventilation.

MR. WILSON FRAZIER: Well, I think the other thing is the confusion that
is raised in whether or not the definition of hazardous environment
actually includes an exceedance of an action level or the permissible
exposure limit.

MR. BURT: Right.

MR. WILSON FRAZIER: That was mentioned ‑-

MR. BURT: Let me hold for a minute on that one and pursue this one.

Now, you don\'t think simply holding that aside is a possibility? Let\'s
assume that isn\'t what\'s happening, you provide ventilation. When you
say you would need an attendant, what situation would that be?

MR. RHUDY: The requirement of attendant atypically comes from the
petro-chemical owner who is attempting to comply with 1910. And by
definition, once we hang the first ring, meaning it\'s eight foot high
and you have a manhole entry, that you now are defined as a confined
space and you need an attendant. And we say where\'s the hazard? They
say, wait a minute, you agreed to follow this rule; you got to have an
attendant.

MR. BURT: In the proposed construction standard as written, would you
need an attendant, as you understand that standard?

MR. RHUDY: Under the controlled atmosphere, no. No, not under
construction. Now that\'s not talking about the owner or the general
contractor, but that ‑- yes.

MR. BURT: Now, let me bring back in the exceeding a PEL that ‑- the way
in this our definition differs from the general industry definition and
includes exceeding PELs for what I broadly call chronic hazards such as
hex chrome, for example.

MR. RHUDY: Such as what?

MR. BURT: Such as hex chrome. Seems to be a good example that would
apply here. How frequently do you think this would be triggered, that
having those words in there would trigger further action?

MR. WILSON FRAZIER: On a stainless steel tank with hex chrome, certainly
more than likely almost all stainless tanks, that would trigger that.
With carbon tanks, you\'re probably running on manganese. Manganese
exposure, you can sometimes ‑- you\'re somewhere between the action
level and the PEL and you might have some exceedances of the PEL. I
would say that you don\'t routinely have exceedances. Historical data
for us shows that, you know, I don\'t know, once in a great while you
might have an exceedance, but it\'s enough that it\'s a concern. You
know, as Jim Rhudy was explaining early, was that welder down flat
welding? You know, what was he doing that caused him to have an
exceedance of manganese. But manganese is probably one of the greatest
concerns with regards to exceedance to the PEL.

MR. BURT: Now let\'s suppose a PEL for a chronic hazard is exceeded.
What additional actions would that trigger for you? I\'m an economist,
so I think cost, but broadly what would you then have to do that you do
not now do?

MR. WILSON FRAZIER: I think then what you\'re saying is that it would be
pulled into the standard and either at least a controlled atmosphere or
confined space, or something else. So we would have to then B

MR. BURT: No, but I just want to understand your understanding of what
you think happens in those circumstances.

MR. WILSON FRAZIER: Yes.

MR. RHUDY: Well, you want to go to the source to dissipate the source.
Okay? So you would create some suction close thereto, not to mess up
your gas shield, but to remove the well fume. Once it gets out in this
large tank, it\'s going to dissipate and not be a problem for you.

MR. BURT: Okay. That covers my questions. Thank you.

JUDGE VITTONE: Anything else?

MS. KRAMER: Actually I was just wondering how you handle rescue services
in the construction in these tanks. I mean, what sort of rescue plan do
you have in place? Do you rely on 911? Do you have personal rescue
teams?

MR. RHUDY: Oftentimes the customer in a petro-chemical plant will have a
rescue team. We utilize that. In municipalities, you\'ll rely, back
again, on 911, if you will, but you\'re going to have to be involved
with it. We had a case a number of years ago of a broken collar bone up
in a tank and the high-angle rescue people came in and fortunately we
had somebody up at the tank. A comment was made earlier I think by
George, that they\'ll tell you to get out of the way. But fortunately we
had somebody there and they wanted to tie off to lower this person down
and we said, no, you don\'t want a tie off there. It doesn\'t have
enough support, you know? So you\'ve got to work with them. But, yes.

MS. KRAMER: Thank you.

MR. RHUDY: Yes.

JUDGE VITTONE: That it?

MR. BIERSNER: I believe that\'s it, Your Honor. At this time I\'d like
to ‑-

JUDGE VITTONE: Sure come on up.

MR. SARVADI: I\'m David Sarvadi with Keller & Heckman. Thank you for
accommodating me here. I had a couple of questions for the gentlemen
about the tank.

Principally it sounded to me like you were concerned primarily about
welding fume in the tank during the construction of the tank, that
that\'s basically what triggers concern about a confined-space
atmosphere being a problem and bringing you within the scope of the
standard. Is that correct?

MR. RHUDY: Yes.

MR. SARVADI: It is?

MR. RHUDY: Yes.

MR. SARVADI: Okay. Okay. You got to speak up. Okay? I\'m a little hard
of hearing.

Are you familiar with the welding standard itself at all, either one of
you? Are you familiar with the provision in the welding standard, for
example, that says you don\'t need mechanical ventilation if you have at
least 10,000 cubic foot per welder?

MR. WILSON FRAZIER: Yes.

MR. SARVADI: If the ceiling is over 16 feet high there\'s ‑-

MR. RHUDY: Yes.

MR. SARVADI: ‑- all of which presume or imply that there\'s not a
significant risk of overexposure during welding operations when those
conditions exist.

MR. RHUDY: Absolutely. But you\'re still going to have to blow the hole.

MR. SARVADI: Well, let me ‑-

MR. RHUDY: Sorry. Provide mechanical ventilation, you know, under the
proposed rule.

MR. SARVADI: I understand that and the point I\'m trying to make is that
I think OSHA\'s already made a significant risk determination in the
welding standard showing that when those two conditions exist, you
don\'t need mechanical ventilation. So the presumption that somehow in
these tanks there\'s going to be a hazardous atmosphere is negated by
that conclusion reached in the welding standard. Would you agree with
that?

MR. RHUDY: Yes.

MR. WILSON FRAZIER: Yes, I would.

MR. SARVADI: Okay. Second question, another line of questioning. You
were asked by Mr. Burt and a couple of the others what other things you
would be required to do if you were brought within the construction
confined-spaces standard. Would you not also be required to do
additional training for the employees that are involved?

MR. WILSON FRAZIER: Yes, right. The rescue portion and the training that
would go with that, yes.

MR. SARVADI: So there\'s a whole long list not just of training, but of
record keeping, administrative tasks, documentation, and would have to
be done not only for the company as a whole, but on a case-by-case basis
for each of those sites. Is that correct?

MR. RHUDY: Well, you\'d have to make them aware of the
four-classification system, yes.

MR. SARVADI: Right.

MR. RHUDY: They\'re presently trained in confined space. It\'s part of
our training program.

MR. SARVADI: Par of your training program is currently confined space.
So it\'s not a matter of people having to be trained about all of the
confined space issues that people address, but rather the unique
characteristics of the construction industry standard.

MR. RHUDY: Of the proposed standard?

MR. SARVADI: The proposed standard.

MR. RHUDY: The four-way classification, yes.

MR. SARVADI: Right. So we\'re going to add another layer of complexity
to the question.

MR. RHUDY: Sure.

MR. SARVADI: Okay. I think that\'s all. Thank you.

JUDGE VITTONE: You\'re welcome. Any other questions?

MR. BIERSNER: No, Your Honor.

JUDGE VITTONE: Okay.

MR. BIERSNER: At this point I\'d like to designate Mr. Rhudy and Mr.
Frazier\'s testimony, or the PowerPoint presentation, as Exhibit 0199
and request that it be submitted to the record for this hearing.

JUDGE VITTONE: It will be made a part of the record.

Thank you, gentlemen.

MR. RHUDY: Thank you.

JUDGE VITTONE: Appreciate your time today.

We\'re going to take a 10-minute recess. Please come back about 25 after
3:00. Okay?

(Whereupon, the above-entitled matter went off the record at 3:15 p.m.
and resumed at 3:29 p.m.)

JUDGE VITTONE: Okay. Let\'s go back on the record, please.

The panel from the Philadelphia Builders Chapter of the Associated
General Contractors.

MR. BIERSNER: Your Honor, before we begin, Mr. Kennedy, during the
intermission submitted to me the document that I had previously
requested entitled, \"Confined Space Fatality Investigation Reports,
Summary Based on CDC NIOSH Investigation Reports,\" and I would like to
designate this as Exhibit 0200 and request that it be admitted to the
record of this hearing.

JUDGE VITTONE: It will be made a part of the record.

Gentlemen, please identify yourselves.

MR. RADOMSKI: Yes, I\'m Phil Radomski. I\'m immediate past chairman of
the General Building Contractors Association.

MR. NAHAS: My name is Mike Nahas. I\'m a member of the GBCA Safety
Committee and safety director for one of the member companies.

JUDGE VITTONE: Okay. You may proceed.

MR. RADOMSKI: I\'m basically going to read off from the letter that was
submitted by Jim Sassaman, our director of safety.

GBCA is the Philadelphia Builders Chapter of the Associated General
Contractors of America. GBCA is the voice of the construction industry
and speaks for approximately 1,000 firms doing work in Pennsylvania, New
Jersey and Delaware. GBCA traces its roots back to 1724 and is the
oldest active trade association in the nation. In occupational safety
and health, GBCA has operated continuously since 1985 its OSHA-approved
30-hour program now offered three times a year. GBCA offers in-depth
education twice a year, an OSHA update and safety retreats. Moreover,
GBCA was one of the first AGC chapters to offer mobile safety training
at construction projects. GBCA has participated in notice and comment
rulemaking, not only with your agency, but also with the Occupational
Safety and Health Review Commission.

GBCA\'s safety committee has focused on several points with respect to
the proposed confined space in construction rule.

\(1\) OSHA proposes to regulate a controlling employer and a host
employer in the rule. GBCA submits that in certain sectors of the
industry such as co-generation and refinery work, such entities who know
the lay of the land can be very useful serving as traffic cops, as it
were, for multiple crews working for multiple employers in
labyrinth-like conditions. GBCA is opposed, however, to the concept of
controlling employer and host employer in new construction.

Here, the employer performing confined space work is doing so in
conditions only recently created and accordingly there is no need for
facilitators having geographic or institutional knowledge.

Moreover, GBCA seeks clarification to determine if OSHA intends the
definition of controlling employer to include construction managers who
hold no contracts and have no responsibility for nor authority over
construction project safety.

\(2\) The general industry standard 29 C.F.R. 1910.146 contains two
classifications of confined space. The proposed rule would create four
classifications. GBCA views the proposed array of classifications as
leading to possible employee exposure attributable to confusion on the
part of employee trainers as well as improperly trained employees. The
four classifications are problematic in that they will provide to be
difficult to explain to employees, especially those only occasionally
performing confined-space work.

Furthermore, it does appear that going beyond the classifications used
in the general industry standard with which many construction industry
employers are familiar will serve to improve worker safety. Permitting
the use any of the classifications as long as the requirements for that
selected classification are met would allow employers to utilize
knowingly or unknowingly classifications that may not provide the best
protection. GBCA recommends using the two general industry
classifications only.

The proposed rule at 72 FR 67405 mentions but does not define what the
Agency means by the phrase in or near confined spaces. Is OSHA referring
to the attendant or any passerby? Clarification is crucial.

The use of the term larger at proposed 29 C.F.R. 1926.1203 under the
definition of a continuous system permit-required confined space is
ambiguous and deserves definition.

The use of the term qualified at proposed standard 29 C.F.R. 1926.1203
under the definition of any entry supervisor also demands definition.

The use of the term monitor periodically at proposed 29 C.F.R. 1926.1205
also demands definition.

Use of the term permanently at proposed standard 1926.1201(B)(1), when
addressing the prohibited entry of employees who are not authorized to
enter permit-required confined spaces needs to be defined.

The performance standard aspect of proposed standard 1926.1209(D)(1)
that employee training must result in an understanding of the hazard
calls for OSHA to set forth criteria or acceptable means for employees
to make such a determination.

The use of the term proficiency at proposed standard 1926.1209(D)(4)
with respect to the duties required by the proposed standard for
employees who will be in or near a permit-required confined space needs
definition.

The use of the term commercially available at proposed 29 C.F.R.
1926.1211(B) with respect to equipment for continuous monitoring also
demands definition.

And finally, the GBCA simply suggests that the scope of an application
of 29 C.F.R. 1910.146 to include construction. Thank you.

JUDGE VITTONE: Thank you, sir.

Can I have a showing of hands, please? Are you sure?

Any questions from the panel?

MR. BIERSNER: Yes, Your Honor, we have few.

Just to the point of clarification, you\'re reading from the comments
submitted by Mr. Sassaman dated February the 27th, 2008?

MR. RADOMSKI: February 27, 2008. That\'s correct.

MR. BIERSNER: Okay. That\'s already in the record. There\'s no need to
admit anything.

I think Mr. Branch has a question.

MR. BRANCH: Yes, sir. With regard to your confusion about the term in or
near, the general industry standard uses the term exposed to confined
spaces hazard, and effected employees with regard to the employer having
to provide protection to these types of employees. As a practical
matter, we used in or near because the attendant is never in the space
unless he\'s relieved or somewhere else, so he\'s near the space. The
entry supervisor, in most cases, won\'t be in the space. These type of
employees made it necessary to put within or near.

The requirement to protect other employees on the site, 1926.20,
requires the employer to not put the employees in any unsanitary or
hazardous situations. And if you go to the next provision,
1926.21(B)(6), it identifies confined spaces as a particular condition
with which we want more specificity as far as protection for employees.

Those two together cover the universe of people that you have to cover
under this standard as well. So I\'m trying to get at what is confusing
about within or near?

MR. NAHAS: Within is not the issue. Near is the issue. Many of our
member companies work in established non-grassroots settings where
employees of others happen by. If this were a lockout tag-out event,
people would have to worry about training and unauthorized affected,
non-affected personnel.

The term near is vague to some of our member companies in terms of what
does it mean for people passing by. In other words, when you set up an
ventilator blower with 20 feet of hose, you obviously have to protect
that and what can be pulled into the inlet side of that house. Somebody
walking by that, does that person need to be trained? That\'s a very
minute example.

So the notion is simply what does near mean. And I understand everything
you just said, but I think that still is an area of confusion in terms
of compliance. Are we in compliance by setting up our equipment,
securing the hole and posting it, having a secured area. But there\'s a
tremendous amount of people that happen by confined-space operations in
the general industry setting we\'re in.

MR. BRANCH: In that universe of people, wouldn\'t you at least, at a
minimum, have to train them not to go into the space and tell them where
the space is?

MR. NAHAS: Some of these confined spaces are on sidewalks, streets.
We\'re literally talking about pedestrians, the public, people who not
otherwise would have any reason to worry about confined spaces.

One thing I\'d like to mention is the comments in our submission are
wrought by some of these 1,000 people, and I\'m trying to articulate
what they explained to me. But near, I don\'t know what near means.

MR. BRANCH: Okay.

JUDGE VITTONE: Anyone else? I\'m sorry, did you want to say something
else?

MR. NAHAS: On number 2 of the submission, I just wanted to make sure
it\'s clear what the intention there. I\'ve heard several commenters
today mention that there\'s, you know, in the general industry setting
there\'s either permit or non-permit required confined spaces. In the
proposed rule there\'s four more criteria. I think it bears stating that
in those general industry requirements is or isn\'t confined space,
there\'s actually seven thought processes one has to go through. So
we\'re adding four more and we have to make sure that people who work in
both industries know the 11 issues that they have to navigate through to
decide if their space is safe for entry. It\'s not just two things in
the general industry; it\'s seven.

MR. BRANCH: Thank you. I appreciate that.

MR. NAHAS: There\'s actually 11 criteria between the two standards. And
the last thing was that the gentleman, Mr. Kennedy I think mentioned it,
that for companies like ours, this is mostly a non-routine task in terms
of confined space entry, tank construction notwithstanding. Because I
think that might be a different type of industry. But for our member
companies, for any one of them, it\'s a non-routine task for the
individual, but it might be a routine task for that company\'s safety
director, who they might have 500 employees and any one of them might
have to go through confined space training but might not enter it more
than twice a year. Yet the company as a whole might have hundreds of
confined space entries per year. So that teaching 11 components of entry
to a person who doesn\'t routinely enter is hazardous in and of itself.

MR. BRANCH: You just made me think of one other question. You mentioned
proficiency. You had problems with that term. Are you aware that under
the general industry standard in 1910.146(G)(3) it says, training shall
establish employee proficiency in the duties required by this section
and shall introduce new or revised procedures as necessary for
compliance with this section?

MR. NAHAS: Yes.

MR. BRANCH: How are you in compliance with the general industry
standard?

MR. NAHAS: Well, not speaking for everybody, but some I\'m fairly well
involved with, their proficiency is determined by testing, you know,
written documented testing. And that should be the standard and I would
hope that that ‑- you know, as a company sets up their training policy,
that could be as simple as a tool box talk or classroom and testing. you
know, as long as they can support what they\'re stating.

If you\'re taking this opportunity and this proposed rule survives this
process, I would like it to simply say testing is the standard. But we
would rather we open up 1910.146 to include both trades, both
industries.

MR. BIERSNER: I have a question. So you don\'t think that just observing
the employee performing the task would be an adequate measure of ‑-

MR. NAHAS: I think there should be ‑- I apologize. I think there\'s a
subjective and an objective, you know, performance portion of it. It
might be more subjective and then the testing portion would be the
subjective ‑- objective ‑- you objectively test and subjectively monitor
performance, is how I would view it.

MR. BURT: I just wanted to ask, if we took the approach of, or compare
the approaches of adopting the general industry standard for
construction and the proposed standard. I\'ve heard your points about
the controlling employer issue, also points about training and the
complexity of classification. Are there other costs or other activities,
either due to more things being confined spaces or additional activities
you would have to undertake that would make the proposed construction
standard different?

MR. NAHAS: It is mostly the administrative costs. I mean, the equipment
is pretty much the same. You use the same equipment from one to the
other. But trying to get a person to understand four ‑- and go through
the decision process of making sure they=ve properly identified four new
spaces when there\'s challenges enough getting them to figure out the
seven that they already have to worry about.

There\'s an administrative down-time to that. No work started until all
that is controlled.

MR. BURT: Thank you.

JUDGE VITTONE: Thank you, gentlemen. Wait a minute.

MS. TRAHAN: Thank you for letting me ask one question out of order, so
to speak, after the OSHA panel.

Can you explain what the seven processes are to determine the
classification under the 1910.146 standard?

MR. NAHAS: Under the 1946 standard, one has to decide if a space is
confined and that is, is it large enough to enter, is there limited
means of ingress or egress and is it designed for continuous occupancy
or not?

MS. TRAHAN: Is that three?

MR. NAHAS: That\'s three.

MS. TRAHAN: Okay.

MR. NAHAS: And then to decide if it requires a permit system, is there
an atmospheric engulfment or entrapment or any other serious safety or
health hazard. That\'s four.

If any one or more of those exist, then it\'s it a permit process. I
hope I got that right, in front of this panel.

MS. TRAHAN: Okay. That\'s it. Thank you.

JUDGE VITTONE: Mr. Kennedy? You\'re going to have to come up here.
Sorry.

MR. KENNEDY: Quick question. You may not have the answer, but the
in-or-near issue. As you understand it, does it apply just to the
attendant, supervisor? How many times have you seen it speckled in the
standard?

MR. NAHAS: For our exposures of our members companies it would be
inclusive of the entrants, the attendants and the supervisors.

MR. KENNEDY: What about other delivery personnel, surveyors,
construction workers in the area, carpenters, anybody like that? Anybody
that might be working on your job?

MR. NAHAS: That\'s the part that begs clarification, because if this is
a confined space entry, 20 feet from here could be carpenters putting up
drywall.

MR. KENNEDY: So it could be near?

MR. NAHAS: Yes.

MR. KENNEDY: That\'s all I wanted to say. Thank you.

JUDGE VITTONE: Thank you, Mr. Kennedy.

MR. BIERSNER: I think that\'s it now.

JUDGE VITTONE: Thank you, gentlemen.

Mr. Skaggs.

MR. SKAGGS: Good afternoon. My name is Tom Skaggs and I\'m representing
the Mechanical Contractors Association of America. I\'m the
Vice-president of Safety for Murphy Company located in Saint Louis,
Missouri.

I\'ve been in safety at Murphy Company for nearly 20 years. Murphy
Company, we\'re a relatively large mechanical construction and service
firm that averages about 850 union workers year-round. We\'re licensed
in 36 states and we provide a wide variety of services in the pipe
fitting, plumbing, heating and ventilation areas, as well as numerous
services in the industrial and heavy industrial markets.

We\'ve been in business since 1907 and we\'ve been a member of the
Mechanical Contractors Association of America since 1956. The MCAA is a
non-profit trade association that represents more than 2,000 mechanical,
construction and service firms and these firms employ more than 270,000
union workers. And I\'m currently the chairman of the MCAA Safety and
Health Committee.

In 1997, the MCAA established a perpetual safety excellence initiative
to help its workers prevent occupational injuries and illnesses to
workers. And on average, the MCAA invests approximately one-half million
dollars towards this initiative annually. And since the inception of
this initiative, we\'ve seen significant reductions in both recordable
and lost-time case rates from your membership. The MCAA is committed to
helping its members achieve safety excellence in all aspects of
construction, including confined space entry.

Many mechanical and construction service workers must enter confined
spaces in order to perform their work activities. Fortunately, our
industry has been extremely successful in protecting workers from the
hazards of confined space by the voluntary compliance with OSHA\'s
general industry standard 29 C.F.R. 1910.146, permit-required confined
spaces.

Please understand the MCAA is in full support of an OSHA confined-space
standard for construction and we salute the Agency for proposing the
rule. However, we foresee several significant issues with the proposed
standard and we offer the following comments and solutions.

After nearly 20 years in this profession, it\'s become perfectly clear
to me that for any safety standard or process to be effective it must be
easy for the workers to understand and even easier to implement; it
simply must be user-friendly. We believe the proposed rule is anything
but user-friendly.

The proposed rule is unnecessarily complicated and it\'s difficult for
the average user to understand. I personally know many seasoned
occupational safety and health professionals that are struggling to
understand how they\'ll effectively implement much of what the Agency
has proposed. The primary source of concern centers on the unnecessarily
complicated multiple confined space definitions proposed by the rule.
We\'ve heard that a number of times today. Having multiple definitions
will be a source of confusion, will be difficult to implement and, we
believe, will ultimately not accomplish the objective of the Agency.

For example, based on the definitions of the proposed standard, the
refining industry alone during turnarounds are going to experience
situations where employees would be required to enter permit-required
confined spaces, controlled-atmosphere confined space and isolated
hazard confined spaces, potentially all in the same day and certainly
all within the same week.

Additionally, based on the proposed rule, many mechanical construction
service firms will have employees that will be entering confined space
governed by the proposed rule during construction activities, but those
same employees will enter confined space governed by a much different
general industry standard while performing routine maintenance
activities.

The most important consideration when determining the effectiveness of a
training program is to determine whether or not your employees
understand and retain the information that you\'ve provided. Training
employees about the various categories of confined space entry and
substantially different definitions would clearly create considerable
confusion and significantly increase the risk of injury to employees.

OSHA correctly states in section 2 of the preamble that, compared to
general industry, the construction industry experiences higher employee
turnover rates, and with this we agree. However, we feel the Agency
failed to consider that firms that experience higher employee turnover
also experience a much higher volume of short-term employment. In many
cases employment could last less than one week. As I previously
mentioned, my firm averages 850 union workers year-round. However, last
year alone, 2007, we employed 1,639 workers. That means that nearly 800
workers were hired by one firm in one year for short-term employment
opportunities. Many of these opportunities involved confined space entry
work.

The MCAA feels it\'s imperative that we have a confined space standard
for construction that\'s easily understood, easily trained and easily
retained. We believe that due to the previously-mentioned issues
regarding employee turnover, multiple confined space definitions and
employees who would be required to enter confined spaces under the
separate jurisdictions of the general industry standard and construction
standard would not only fail to meet the objective of the Agency, but
would actually make it less safe for workers.

We believe the most effective way to protect confined space workers from
the hazards of confined space entry is to make the existing general
industry standard applicable to construction. We\'re confused by the
Agency\'s proposal to make the construction standard considerably and
unnecessarily more complicated than that of the general industry
standard.

OSHA\'s justification for the standard in section 2 of the preamble is
well-received by the MCAA. However, when properly applied, we feel the
general industry standard is more than adequate to protect workers from
the hazards of confined space entry. If the existing general industry
standard is made applicable to construction, it would require affected
employers to implement confined space training programs and permitting
processes any time the oxygen levels are too high or too low, hazardous
levels of flammable gases or vapors are present, airborne combustible
dust is present, hazardous concentrations of toxic substances are
present, there\'s a possibility of a worker getting trapped or
asphyxiated by inwardly converging walls or floors, and possibly most
important, any time there\'s any other recognizable safety or health
hazard present in that space.

When construction employers institute confined space training programs
that completely fulfill the requirements of those established in the
general industry standard for confined space entry, we feel worker
safety is not compromised and injuries do not occur.

The MCAA recommends the following changes to the proposed rule. Use the
existing general industry standard as the basis for the new standard.
Keep the definitions the same and the classifications the same for both.
If necessary, address construction-specific issues such as continuous
system confined space by amending the language of the general industry
standard to make it fit.

I\'d like to close my comments with just a very, very brief story of a
personal experience that I had, related to this, just a week ago today.
Our corporate safety committee met a week ago today; there\'s
approximately 20 people on this. We also have an office in Denver, so
they\'re part of this. That corporate safety committee is made up of
management personnel, a mix of management personnel and about half union
workers that are there. As the meeting was closing, one of the other
managers of the organization asked me to explain to the group for their
knowledge why I was headed to D.C. next week and to explain to them what
we were doing. I started out that explanation by explaining to them that
there was no rule for construction in confined space. Our folks were
bewildered by that. Our industry has been working effectively with the
general industry standard for so long that our employees didn\'t even
understand that there was not a rule for it. And that\'s just a personal
experience I would like to relate to you. We feel the mechanical
industry in particular has been operating very well with the general
industry standard for a long time.

Thank you. I\'d be pleased to take any of your questions.

JUDGE VITTONE: Thank you, sir. Any questions from anyone in the
audience?

Mr. Kennedy?

MR. KENNEDY: A couple of quick questions. I didn\'t finish writing the
last one down.

If the language is not identical, is there an opportunity for confusion?
You seem to think there is, and we agree on that.

MR. SKAGGS: Absolutely.

MR. KENNEDY: Do you agree that confusion leads to accidents and
incidents, injuries?

MR. SKAGGS: Yes.

MR. KENNEDY: Is there a level of cost associated with these injuries?

MR. SKAGGS: Yes.

MR. KENNEDY: To your company.

MR. SKAGGS: Yes.

MR. KENNEDY: What are they, if you can think of them? What would some of
those costs be?

MR. SKAGGS: The level of cost of the injuries?

MR. KENNEDY: No.

MR. SKAGGS: I\'m sorry.

MR. KENNEDY: The associated costs.

MR. SKAGGS: Of implementing the proposed ‑-

MR. KENNEDY: Well, of having the accidents or incidents.

MR. SKAGGS: The indirect cost, I wouldn\'t have ‑-

MR. KENNEDY: Well, I\'m not looking for a number, but like workers comp.

MR. SKAGGS: It\'s significant.

MR. KENNEDY: Yes, workers comp and liability and things like that.

MR. SKAGGS: Yes. Sure.

MR. KENNEDY: And you\'re going to have to retrain your people if the
construction standard is implemented, is that correct?

MR. SKAGGS: Yes.

MR. KENNEDY: And the cost of that will be significant?

MR. SKAGGS: Yes.

MR. KENNEDY: To your company as well as, obviously, to the members of
MCAA?

MR. SKAGGS: Sure.

MR. KENNEDY: Okay. Just wanted to clarify and make sure we\'re on the
same track. Thank you.

JUDGE VITTONE: Anyone else? OSHA panel?

MR. BIERSNER: Yes, we have a few questions, Your Honor.

In your earlier written comments that you submitted to the record, you
mentioned the use of suction as a ventilation mechanism. Why would you
prefer that over forced-air ventilation?

MR. SKAGGS: The basis of that opinion would be that in many facilities,
in particular, chemical plants and refineries, your hazards are not
simply associated with what is in the confined space. And we often
monitor at the point of entry and at the point where we are pulling
from. We do atmospheric monitoring. So in the event, say we have a large
tower and we are pulling from the top of the tower. We\'re actually
monitoring down below where we\'re entering the tower. If there\'s an
upset in the facility, we\'re going to pick that up at the point of
entry prior to it actually getting into the space.

MR. BIERSNER: Using suction?

MR. SKAGGS: Yes.

MR. BIERSNER: Versus going across the hazard and forcing ‑-

MR. SKAGGS: And pushing it in.

MR. BIERSNER: ‑- it into the ‑-

MR. SKAGGS: Yes, sir.

MR. BIERSNER: So what types of confined spaces would you see as most
appropriate for the use of suction ventilation, or for the use of
suction? What types of confined space configurations would you recommend
that suction be used?

MR. SKAGGS: In particular, towers, towers that have a significant number
of trays and so on. It\'s a very effective method with towers.

MR. BIERSNER: Would there be any underground confined spaces that you
see using this type of ventilation? Or could it even be used in an
underground situation?

MR. SKAGGS: I don\'t see how it could.

MR. BIERSNER: Yes. What about situations in which there is a possibility

of a spill hazard or some other sort of sudden release, particularly at
the entryway? Do you think that that would be advisable then to use
suction in that kind of a situation?

MR. SKAGGS: Well yes, again, if you\'re monitoring at the entryway and
not somewhere else which would really be inappropriate, then yes, I do.
If you\'re pushing air in at a lowest part of a vessel, which is
typically what would you do with a push/pull method, you would push
ventilation in at the bottom, pull at the top, if you\'re pushing at the
bottom and there\'s an upset near where you\'re pushing, then you\'re
basically going to push that atmosphere right into your space before
you\'ve had a chance to adequately safeguard yourself from it.

MR. BIERSNER: Are the flow rates for forced-air ventilation and suction
roughly the same? I mean, can you get the same cubic feet of air
displacement using suction that you can with forced-air ventilation?

MR. SKAGGS: I don\'t know about those calculations specifically, but you
would have to simply, based on the size and the configuration of your
vessel, the amount of volume that you have in the vessel, you would just
have to size it appropriately. Air movers range anywhere from a few
hundred CFM per minute to several thousand and you would simply put in
the appropriate size for the vessel. And assuming that you did that, I
would say, yes, you could do that.

MR. BIERSNER: Mr. Branch?

MR. BRANCH: What exactly do you call the spaces that are covered in the
general industry standard by (C)(5) where they used forced-air
ventilation and (C)(7) where you\'ve gotten rid of the hazards? What do
you call those? How do you distinguish them from a typical permit space?

MR. SKAGGS: I\'m sorry. Could you rephrase that? I don\'t know that I
understand what you\'re asking.

MR. BRANCH: You mentioned that you were confused about the
classifications of spaces and how we\'ve named them.

MR. SKAGGS: Yes.

MR. BRANCH: You follow the general industry standard currently, right?

MR. SKAGGS: Yes.

MR. BRANCH: What do you call the alternate spaces, the spaces where
you\'ve done things to a permit space? How do you distinguish those to
your employees?

MR. SKAGGS: If there is the potential for an atmosphere to change, even
though it may be isolated or controlled based on the definition of the
proposed rule, if there is a potential for the atmosphere to change, we
consider it a permit-required confined space and permit it accordingly.
In the event that we believe it cannot change, we would consider it a
non-permit-required confined space.

MR. BRANCH: So all three categories of our spaces would be a permit
space?

MR. SKAGGS: Yes, and therein lies the confusion.

MR. BRANCH: You mentioned you had documentation that describes when
forced air created a back flow out of the fan locations referenced in
comment 1 submitted by Mr. Fousek.

MR. SKAGGS: I don\'t believe I have that with me. I\'m not familiar with
that comment. Let\'s see if I\'ve got it.

MR. BRANCH: Talking about ventilation and how to ventilate, and he says
the preamble and proposed rule apparently make no allowances for suction
ventilation. Within that, we were looking for any documentation that you
have that describes these systems.

MR. SKAGGS: Other than what the manufacturer would tell us about the
CFMs that they\'re capable of moving.

MR. BRANCH: So you would get that information from the manufacturer?

MR. SKAGGS: Yes. Right. And then do the calculations based on the size
of the space and the configuration of the atmosphere to determine our
volume.

MR. BRANCH: It says, in some cases a forced air system actually created
a backflow out of the fan location, not effectively changing out the
air.

MR. SKAGGS: I don\'t understand that. Yes, I don\'t understand.

MR. BRANCH: So I was just looking for information to clarify that.

JUDGE VITTONE: Just a minute, sir. Who are you?

MR. CHANEY: I\'m Pete Chaney. I can clarify this briefly, if you\'d like
for me to.

JUDGE VITTONE: How about let\'s just get him done and then we\'ll bring
you up.

Go ahead.

MR. BRANCH: That\'s all.

JUDGE VITTONE: Any other questions?

MR. BRANCH: No, sir.

JUDGE VITTONE: Thank you, sir.

MR. SKAGGS: Thank you.

JUDGE VITTONE: Come on up. Take a seat. Go ahead and identify yourself.

MR. CHANEY: Good afternoon. I\'m Pete Chaney with the Mechanical
Contractors Association of America and the Director of Safety and
Health.

I just wanted to respond to your question. Those questions actually came
from one of our local affiliates, independent of MCAA. It\'s kind of
like a chapter, like AGC has chapters around the country. We\'ve got
close to 100 local affiliates. I happen to know Dan Fousek and I can
certainly arrange to get that information that you\'re requesting.

MR. BIERSNER: Okay. We\'d appreciate it. If you would have your
organization submit it to the post-hearing comment period, we would
appreciate it.

MR. CHANEY: We\'d be pleased to do that for you.

JUDGE VITTONE: Thank you. I didn\'t realize you guys were together.

Okay. There\'s nothing being introduced, right?

MR. BIERSNER: Mr. Skaggs, you did not have any written testimony?

MR. SKAGGS: I believe it was submitted electronically.

MR. BIERSNER: Yes, it was submitted electronically and we have it in our
record. Yes, we\'re okay.

MR. SKAGGS: Thank you.

JUDGE VITTONE: Thank you, gentlemen.

All right. Building and Construction Trades.

MS. SHADRICK: Good afternoon, Your Honor.

JUDGE VITTONE: Good afternoon.

MS. SHADRICK: Good afternoon, ladies and gentlemen. I am Laurie Shadrack
and I\'m the administrator of safety and health programs for the United
Association of Plumbers and Pipefitters. I am also the chair of the
Building and Construction Trades Department\'s Confined Space
Subcommittee. I\'m appearing today on behalf of the BCTD.

With me on this panel are Travis Parsons, Senior Safety Health
Specialist for the Laborers Health and Safety Fund of North America. I
have Gerald Ryan, Director Training Health and Safety for the Operative
Plasterers and Cement Masons International. I have Brian Gustine here,
Assistant Director of the Finishing Trades Institute of the
International Union of Painters and Allied Trades. Beside me I have
Chris Trahan, a certified industrial hygienist with CPWR, the Center for
Construction Research and Training. And behind me, Victoria Bor, our
counsel through the BCTD.

The BCTD wishes to appreciate the opportunity today to participate in
this important rulemaking proceeding. On behalf of itself and its 13
affiliated national and international unions and the 2.5 million
employees our affiliates represent, construction workers are routinely
called upon to work in and around confined spaces, which present a
potentially lethal working condition. Since 1993, general industry
employees have been protected by a comprehensive confined space standard
while construction employees have had to rely on their employers\'
compliance with a patchwork of requirements. Although many responsible
construction contractors have adopted work practices patterned after the
general industry standard, this is not universally the case. Moreover,
even taking the general industry standard as a starting point, important
modifications must be made to ensure that the construction employees are
adequately protected.

I will begin our presentation by responding to the contentions of other
participants in this proceeding that OSHA can provide construction
employees with adequate protection by doing nothing more than
incorporating the existing general industry standard into part 1926.

My colleagues Travis Parsons and Gerry Ryan will then discuss some of
the BCTD specific recommendations for strengthening the proposed
standard.

A number of the industry participants have urged OSHA to scrap this
rulemaking since the construction contractors have long followed the
general industry standard in protecting employees working in and around
confined spaces. This point has been particularly stressed by
contractors whose maintenance employees may sometimes be covered by the
general energy standards and may at other times be covered by the
construction standards. It is true that many responsible contractors
have developed confined space programs patterned under section 1910.146.
Mandating protections for construction employees is, however, long
overdue.

There are, moreover, two basic reasons why it would not be enough to
simply extend the existing general industry standard to the construction
industry. First, the general industry standard is outdated; and second,
it does not take account to the unique features of a construction site
itself.

OSHA has had a great deal of experience in enforcing and interpreting
section 1910.146 in the 15 years since it promulgated the general
industry standard. During that time, the Agency has issued a Compliance
Directive and numerous Letters of Interpretation clarifying this aspect
of the rule. This rulemaking proceeding gives the Agency the opportunity
to incorporate these interpretations into the standard itself and to
make other changes reflecting its experience with 1910.146.

Of even greater importance is the fact that the general industry
standard does not take into account the dynamics of a construction site.
The general industry standard contemplates a relatively static work
place whose physical structures do not change dramatically from day to
day and of which there is generally a limited number of employers. Thus,
the standard imposes most of its responsibilities on the employer. It
does not acknowledge that there are certain circumstances in which a
host employer may arrange to have employees of another employer perform
work that involves permit space entry prescribing new requirements for
the host and the contractor to exchange information and to coordinate
entry operations. But these situations are generally isolated ones in
which a host employer retains a contractor to perform a specific
function involving entry into a confined space. An example, a boiler,
cleaning a vessel, performing work during an outage.

The reality on a typical construction site is quite different. Rather
than a single employer occasionally retaining a contractor, the entire
operation is generally performed by a series of contractors coming and
going at various times during the life of the project. Moreover, the
nature of the work performed on a construction site is continuously
shifting. An employer therefore must not only be concerned with the
atmospheric conditions within the confined space, but the potential
impact of work operations on these conditions, but also of the effect
that the work will be performed in the proximity of the confined space
may have on those conditions.

As a result, the need for all employers operating on the site to
communicate their work operations, their schedules and their knowledge
about the presence of confined space and to coordinate their operations
in and around confined spaces is once more compelling and more
complicated than the general industry itself. And rather than leaving it
to contractors to develop their own individual mechanisms for
coordination and communication, it is important that OSHA clearly
defined the respective roles and responsibilities of the various actors
on the site. Moreover, the changing conditions on a construction site in
and around the confined space also call for a higher degree of vigilance
than the general industry standard required. For example, where the
general industry standard permits employers to periodically monitor a
controlled atmosphere confined space, continuous monitoring is necessary
in the construction industry because of activities both inside and
outside the confined space that can affect its interior atmosphere.

In addition, an integral component of any construction standard is
defining the critical role of the competent person, someone trained to
recognize hazard conditions and authorized to take steps to protect
potentially exposed employees.

Before concluding, I would return for a moment to the participants that
are urging OSHA not to confuse matters by establishing different
requirements for the construction and the general industry employers. In
this proceeding, the building trades are asking for additional
protection for the construction worker. We are not, however, proposing
anything that is dramatically different from the measures that can be
taken in the general industry. As a result, any employer confused about
which standard applies may be assured that by complying the construction
standard it will be in compliance with the general industry standard as
well.

We will now turn to specific provisions of the proposed standard. In our
comment on the proposed standard, we outline a number of recommendations
and do not intend to repeat them all here. We would, however, like to
expand on some of the issues we consider of most importance to us.

And with that, I would like to turn it over to my colleague, Travis
Parsons.

MR. TRAVIS PARSONS: Good afternoon, everyone. I\'m Travis Parsons,
Senior Safety and Health Specialist for the Laborers Health and Safety
Fund which is a joint labor management fund within the Laborers Union.
At the Fund, I provide safety and health services to the representatives
of the Laborers International Union of North America and union
contractors concerning work place hazards on construction sites.

On behalf of the Fund and the Building and Construction Trades
Department, I am pleased to appear before you today to discuss OSHA\'s
proposed standard for Confined Spaces in Construction.

Like Laurie, I commend OSHA for engaging in this rulemaking and as I
will discuss in a few minutes, for adding very important requirements
that will greatly enhance worker protections.

I am going to address the proposed new classification system for
confined spaces.

There has been a great deal of discussion today and in all the
commenting in this proceeding about the proposed classification system,
which is a little bit too complicated and we would like to see it
simplified.

What has gotten lost in discussion is the fact that OSHA is proposing
positive improvements in approaching work in and around confined spaces.
I would like to make three suggestions for simplifying the proposal, but
at the same time maintaining its enhanced worker protections.

First, I would like to suggest that OSHA drop the new names, the four
different classifications. Although we recognize that OSHA proposed
these new terms: isolated-hazard confined space; controlled-atmosphere
confined space; continuous-system permit-required confined space, to
help guide employers to the particular requirements for working under
specific conditions, these names have instead created the impression
that OSHA is increasing an employer=s regulatory obligations.

Why do we need four different classifications, is the question?

Moreover, the titles also do not really describe different kinds of
confined spaces. Instead, they describe different entry procedures which
leads to my second point.

My second suggestion is that the OSHA structure the rule to follow a
hierarchy of alternatives to the entry procedures and a full permit
system. Under this hierarchy the optimal procedure would be to isolate
and therefore eliminate all atmospheric and physical hazards. If an
employer accomplishes this and could document having done so, they would
be able to avoid the full permit system and instead follow the proposed
requirements for isolated-hazard confined spaces.

For an employer that could eliminate the atmospheric hazards, the next
alternative would be to completely eliminate the hazards and control
atmospheric hazards. Again, an employer that could control the hazards
in this way and could document having done so would avoid the full
permit system, and instead follow the proposed requirements for
controlled-atmosphere confined spaces.

Finally, an employer dealing with a confined space that presents an
actual or potential hazard that cannot be eliminated or controlled would
be required to follow a full permit-required system.

Laying out the requirements in this way as alternative entry
requirements and eliminating the cumbersome labels would go a long way
to helping employers and workers understand what has to be done to
ensure they are working safely.

Finally, we are very pleased with measures that OSHA is proposing to add
to the requirements of section 1910.146 from the general industry
standard for these alternative-entry procedures. In particular, in
addition to the measures currently required under 1910.146(C)(5) for
confined spaces in which the employer has controlled atmospheric hazard,
section 1216 of the proposal requires the employer to make sure the air
monitoring procedures will be good enough to enable employees to exit
safely from a confined space. The proposal also requires documentation
of physical and atmospheric hazards in the confined space and how those
hazards were to be isolated and controlled. It requires employers to
notify employees working nearby about the presence of the dangers posed
by the controlled atmosphere confined spaces on the site. It clearly
requires adequate access to egress from the confined space and it
explicitly requires continuous monitoring if devices are commercially
available.

With respect to confined spaces in which the hazards have been isolated,
the proposed section 1217 contains important additions to section
1910.146(C)(7). The proposed rule requires employers to list each
individual physical and atmospheric hazard that was present and methods
the employer used to eliminate it. It requires employers to document the
date, time, name of the person who eliminated the hazards initially and
to repeat the same procedure before any other employee enters the
confined space to verify the hazards remain isolated. And it requires
the name and signature of the individual who isolated the hazards, who
completed the required documentation, as well as the date, time the
entire document was completed.

The proposal increases worker safety by spelling out additional training
requirements for workers who enter these spaces. In addition to these
new requirements for confined space which the hazards are controlled or
isolated, OSHA\'s proposed rule includes new safeguards for
continuous-system confined spaces, which also should be carried into the
final rule. In particular, section 1215\'s requirements that employers
continuously monitor these spaces and provide both the monitoring
equipment and early warning systems will help ensure the employees can
work safely in these potentially hazardous situations.

Thanks. Now I\'m going to turn it over to Gerry.

MR. RYAN: Thank you, Your Honor, ladies and gentlemen. My name is Gerry
Ryan. I\'m the International Representative and Director of Training in
Health and Safety for the Operative Plasterers and Cement Masons
International Association. On behalf of the building trades, I\'m going
to address several other provisions of the proposed rule, starting with
the multi-employer information-sharing requirements.

For both standards, multi-employer provisions are intended to ensure
that every construction site has an effective system for providing
employers operating in and around confined spaces with as much
information as possible to safeguard their employees. To this end, the
standard imposes information-sharing obligations on the host employer,
the controlling employer and the other contractors on the site and makes
a stab at centralizing the flow of information. The underlying goal of
these provisions is critically important and the Agency has correctly
recognized the pivotal role that the controlling employer can and should
play in collecting and disseminating the information.

We have several proposals, however, for simplifying and strengthening
these provisions.

The proposal defines the host as the employer that owns or manages the
property where the construction is taking place and gives the host
certain responsibilities in collecting and providing information.
Contractors on multi-employer work sites do not, however, necessarily
have contact with the entity that manages the property. Their contact
instead is generally with the entity that manages the construction, or
in the case of lower-tiered subcontractors, with another contractor,
that in turn has a direct-relationship entity managing the construction.
We therefore recommend that the standard define the controlling
contractor as an employer with overall responsibility for managing
construction on a particular site and that the standard give the
controlling contractor specific responsibilities for obtaining,
retaining and disseminating the information, as well as for coordinating
work involving contact with confined spaces.

While the host employer must be required to provide the controlling
contractor with information in the host\'s control, the controlling
contractor must be the one held responsible for making this information
available to the other contractors on the site.

The proposal also requires the controlling contractor and/or the host
employer to give other employers whatever information they may possess,
but does not require the controlling contractor and/or a host actually
to obtain any information. Although we agree that the controlling
contractor need not actually enter a confined space and perform a hazard
assessment, we believe that the controlling contractor must be
responsible for seeking out information about work place hazards. In
this regard, the controlling contractor must be held responsible for
knowing that and informing other contractors about any confined spaces
that are part of the project design. Moreover, all of the
information-sharing obligations in the standard should be reciprocal.
The controlling contractor must ask for information and the entities
with the access to the information must provide it to the controlling
contractor.

In particular, we recommend the following requirements. The first one;
there may be circumstances in which the same entity would be considered
both host employer and controlling contractor. Where that is not the
case, controlling employer must request and the host employer must
provide all information the host employer possesses regarding confined
spaces on that work site.

The second one; the controlling employer must request and all
contractors operating on the site must provide all information the
contractors possess and discover regarding confined spaces on the work
site including the results of their hazard evaluations, entry
precautions and procedures for dealing with hazards associated with the
confined space, and, at the conclusion of entry operations any hazards
that were present or that developed during the operations and any
necessary modifications in those procedures.

The third one; the controlling employer must provide every employer who
operates on the site, and not just those who intend to have employees
enter a confined space, with access to information regarding confined
spaces before the employer begins work in a particular area, including
specific information about the location of any confined spaces, their
hazards, whether a permit is required and precautions and procedures for
operating in and around the space.

The fourth one; any contractor working on the site must be required to
notify the controlling employer about the locations in which it will be
working and to secure from the controlling contractor any information
regarding confined space in those areas.

The last one; the controlling contractor must be responsible for
controlling and coordinating entry operations when more than one
contractor intends to have employees in a confined space at the same
time.

In developing the information-sharing requirements, OSHA must include
contractors working in the vicinity of the confined spaces. The issues
in this regard are not only about ensuring that unauthorized employees
do not enter a confined space, they also concern the fact that on a
construction site work practices outside a confined space can affect
it\'s interior atmosphere. For example, when an employee is using a gas
that is heavier than air and therefore sinks to the ground level, it can
enter and contaminate a confined space. Thus, if a welder is using argon
as a shielding gas near the entrance to a confined space, the argon
could sink, fall to the ground and enter the space creating an
oxygen-deficient atmosphere. The same could be true of workers in the
area who are using or generating various forms of toxins, explosives or
dust without using engineering controls to limit their dispersal into
the area. It is therefore important that any employer working with the
substances or processes that may affect a confined space be made part of
the information-sharing system. A number of commenters have objected to
the OSHA\'s proposed requirements for controlling employers that are too
burdensome, requiring them to take obligations that extend beyond their
ordinary responsibilities. In our view, a centralized system for sharing
the information about confined spaces and their attendant hazards is a
critical part to ensuring the safe and healthy work on a construction
site. That end can only be served moreover by identifying the entity
best positioned to coordinate this system and the entity that otherwise
coordinates the work on this site is the logical choice. For this system
really to be effective, the controlling employer must not only collect
the information, but also actually make it accessible to all employers
that need it to provide their employees with appropriate protection.

The hazard communication standard provides a prototype for making the
information available on the site. It permits construction employers to
make materials safety data sheets available either by maintaining them
in a centralized location on the site or by making them retrievable by
computer. We would support a similar approach under this standard. We
note, however, that the size of some projects may present the
controlling contractor with additional challenges in making the
information accessible to other employers. For example, a contractor
working on a highway project may on any particular day be miles away
from the controlling contractor\'s trailer. Under those circumstances
information maintained in a centralized location may, as a practical
matter, be inaccessible when the contractor is confronted with a
confined space. There are, however, a number of ways that controlling
contractors can deal with this reality in planning its work and
communicating with its contractors before they report to the site.

Moreover, as communication devices like laptop computers and PDAs become
increasingly commonplace, the controlling contractor would be able to
make this information accessible electronically to employers on the work
site. In short, the requirements we are proposing are not burdensome and
are fully justified by the employer\'s need to know as much as possible
about workplace conditions in order to work safely.

I would like briefly to address three other issues. First, it is
important that the standards specify the responsibilities of the
competent person. Section 1926.32(F) defines a competent person as
someone capable of identifying existing and predictable hazards in the
surroundings or working conditions which are unsanitary, hazardous or
dangerous to employees and who has the authorization to take prompt
corrective measures to eliminate them. The proposed standard requires
employers to undertake a number of different responsibilities and also
does designate employees to assume various different roles.

We propose that OSHA add the definition of competent person to 1926.1203
of the standard and clearly specify that a competent person is to
perform any required monitoring, evaluating, identifying or determining
required under the standard. For example, the competent person is to
perform the work site evaluation, perform atmospheric testing and
monitoring, classify the confined space, reassess the space whenever
either the employer or the employees are reasonably certain conditions
have changed and define the conditions under which employees may work
safely in a permit-required confined space and assure that there\'s an
adequate monitoring system in place in case the ventilation system
fails.

Second, we urge OSHA to restore the employee protection provisions found
in the general industry standard. Section 1910.146 requires employers to
consult with effected employees and their authorized representatives on
the development and implementation of all aspects of the required permit
space program and to make all information employers must develop under
the standard available to employees and their authorized
representatives.

In stark contrast, the proposed construction standard\'s sole provision
on employee participation requires employers to provide employees who
enter a confined space and their authorized representatives with the
opportunity to observe the work site evaluation, any reassessment and
atmospheric testing and monitoring. Employees and their representatives
must be given a meaningful opportunity to participate with the employer
in identifying hazardous conditions, determining appropriate
precautions, developing entry and exit procedures and ,in short, in
developing and implementing all aspects of the confined space program.

Moreover, it is not only the employees who will be entering the space we
have an interest in and knowledge about these matters, but all employees
with experience in working in and around confined spaces. We therefore
urge OSHA to restore the employee participation provisions currently
found in 1910.146.

And finally, the standard must require employers to develop written
plans. For a confined space program to be effective, it must clearly set
out information specific to working at the particular work site complete
with the location of the confined space, the nature of the hazards, the
specific individuals to contact in the event of problems, the identity
of the controlling employer and where to go to obtain the centralized
information. The proposed standard ignores the importance of this
site-specific information by giving the employer the option of
maintaining a written compliance program or a copy of the standard at
the site.

We urge OSHA to make it mandatory that employers maintain a written plan
that contains site-specific information.

And, Your Honor, I think you on behalf of the building trades and we are
ready for your questions.

JUDGE VITTONE: Thank you, sir.

Thank you, panel.

Any questions from members of the audience? Mr. Kennedy?

MR. KENNEDY: Your group says a lot, and it\'s tough taking notes because
everybody went so quick and covered so many different areas, many of
which I agree with, some of which I do question and I would like to ask
a few questions.

It almost sounds to me like your group is looking for a guideline or a
guide that might clarify compliance with the general industry standard.
Is this correct? Would that be the answer to your ‑-

MS. TRAHAN: No.

MR. KENNEDY: Okay.

MS. TRAHAN: We would like to see OSHA promulgate a construction confined
space standard.

MR. KENNEDY: A separate standard?

MS. TRAHAN: Yes.

MR. KENNEDY: That would be different from the general industry standard?

MS. TRAHAN: Absolutely.

MR. KENNEDY: And if this was done with the 2.5 million employees that
you have out there, you realize that there would be additional training
required, probably two separate programs because of the maintenance and
construction issue?

MS. TRAHAN: I\'m going to address that and then Gerry will address it,
too.

The approach that\'s advocated by the building trades calls for a
streamlining of the construction regulation and a clarification of that
regulation, and actually the elimination of the new terminology. And
instead, a series of procedures, alternative entry procedures, so to
speak. I don\'t believe that there would be a significant effort that
would be needed to be spent modifying the training programs if those
changes were incorporated.

MR. KENNEDY: So if they eliminated the four types of classifications,
and just went with the general industry classifications?

MS. TRAHAN: No, not the general industry classifications. I know it\'s
hard to follow the testimony as presented, but what we\'re advocating is
an approach that, after an employer identifies the type of space they
have, that they may either go in under a full permit entry system or
choose two different alternatives for entry.

MR. KENNEDY: And those would be?

MS. TRAHAN: Those two different alternatives for entry ‑- the work
practices would be spelled out in the standard and it wouldn\'t be a
full permit entry. One would essentially be declassification of the
permit space to a non-permit space by elimination of all the hazards in
the space. The other would be elimination of the physical hazards and
control of the atmospheric hazards. And again, that wouldn\'t be a
permit entry, but there would be required documentation as proposed
under the isolated-hazard confined space and the controlled-atmosphere
confined space sections, but they would be shifted to be alternate entry
procedures versus a separately defined entry or a separately defined
type of space.

MR. KENNEDY: I\'m confused. What I get here is you\'re looking for
basically the general industry standard definitions even though you\'re
not saying that. You\'re saying alternative entry, but yet you want
controlled- atmosphere confined space and isolated-hazard confined
space, similar to what\'s in the construction standard, which is
basically what an alternative-entry confined space is and, of course,
under general industry we treat that as non-permit and under the new
construction industry standard, I\'m still not quite sure because of the
all documentation that goes along with a controlled atmosphere and an IH
confined space. But no matter how you look at it, what I\'m asking,
going back to my original question is, there\'s going to be a retraining
issue of all your 2.5 million employees and I\'d also ask how many of
them are Hispanic, which means we\'re going to have to translate it into
Spanish.

As a trade association are you ready to retrain your employees that way?

MS. TRAHAN: Well, we can talk about the training infrastructure in the
building trades unions if you\'d like us to. But, I think I\'ve answered
your first question. Have I not?

MR. KENNEDY: Not really. I asked about are you prepared to retrain all
your employees?

MS. TRAHAN: That\'s a separate question. I think he wants ‑-

MR. RYAN: I\'d like to just answer a little about training, because
that\'s what I do for a living, too.

MR. KENNEDY: Good.

MR. RYAN: I think I can speak on behalf of my colleagues and all the
other trades that are represented throughout the National Building
Trades, but I mean, that\'s what we do, is train our people.

MR. KENNEDY: Yes.

MR. RYAN: And, you know, that\'s our bread and butter. If that\'s what
needs to be done, that\'s what we\'re going to do for our signatory
employers or contractors.

MR. KENNEDY: Okay.

MR. RYAN: Again, that\'s what we do. And like I stated in my response
there, you know, I said this standard will be as good or better as the
general industry standard. So if we meet that level, I think we\'ll be
probably in the general industry, the existing general industry as it is
now.

MR. KENNEDY: Okay. And I appreciate that unions do a lot of training.
I\'ve done training for the unions.

MR. TRAVIS PARSONS: I was going to say, and there\'s already a whole lot
of confined-space training that goes in regardless of whether we have a
construction standard or not.

MR. KENNEDY: Correct. But you\'re going to have to go back and retrain
to clarify all these new definitions and some of these new procedures.
And then you recognize the cost to your employers that hire your
workers, what that\'s going to cost them to retrain their people.

MS. BOR: The UA of the Plumbers and Pipefitters, we spend over \$140
million a year on training.

MR. KENNEDY: That\'s good.

MS. BOR: We\'re very into safety.

MR. KENNEDY: Oh, I know that.

MS. BOR: We want our workers coming home safe. We don\'t want four to
die a day.

MR. KENNEDY: We don\'t either.

MS. SHADRICK: Can I just make another stab at the first question though,
because I think, you know, there\'s been a lot of talk today about there
being permit-required spaces and non-permit-required spaces under
general industry. And I\'d like to suggest that in fact there are
non-permit-required and then there are regulated confined spaces.

MR. KENNEDY: Okay.

MS. SHADRICK: And the reason I say that is that under the general
industry standard as it is currently written, under subsection (C)(5)
and subsection (C)(7), under certain circumstances one can opt out of
the permit system.

MR. KENNEDY: Right.

MS. SHADRICK: But you\'re still regulated.

MR. KENNEDY: Yes.

MS. SHADRICK: And as we read what OSHA has tried to do with the proposed
construction standard, it has put names on what is essentially (C)(5)
and (C)(7) as a way of making clear that there are circumstances under
which you may not require a permit, but there\'s still regulations.
There\'s documentation, there\'s monitoring, there are other things that
need to be done. And what we\'re proposing is just a different way of
getting at, I think what OSHA has been trying to accomplish, which is to
say, all right, let\'s, rather than burying (C)(5) and (C)(7) in the
permit-required confined space, because it really is sort of ‑- there
are some different requirements there, let\'s look at what\'s really
going on here, which is that you evaluate the confined space and
depending on the degree to which you can control the hazards, that
determines the degree to which you are either under a permit or not
under a permit.

So what we were talking about in terms of looking at it as different
access requirements is precisely that. It\'s in effect, reordering the
general industry standard just as we think OSHA was trying to do in the
construction standard, eliminating the confusion with new titles and
just setting up basically like a hierarchy of controls.

MR. KENNEDY: A risk assessment plan.

MS. SHADRICK: Which we think, you know, it will in fact create a new
standard, a new structure, but we think it\'s actually simpler and more
intuitive in terms of giving people ‑- understanding what they have to
do than the way in which the general industry standard is set up.

Now that said, as Travis discussed, there are some additional
requirements that OSHA has proposed that would be grafted onto (C)(5),
(C)(7) in the permit, which we think are very important additions. But
we don\'t think that they\'re as extensive as you seem to be suggesting
in terms of what would be required in making sure that people are
adequately trained to follow the new rule. So that\'s sort of a long
answer, but I\'m hoping that explains what it is, sort of the overview
of what it is that we\'re proposing and why, yes, it would be required.
There will be a new standard, there will be some new additional training
requirements, but we don\'t view them as being that extensive.

MR. KENNEDY: Okay. Well see, we see it a little further and that\'s why
I asked. There\'s going an extra step because we got to train the
managers and the foremen and the supervisors and, yes, we do believe in
making sure that people go home every day. And the risk assessment, the
whole nine yards. So I think, okay, you\'ve pretty much answered my
question in that area.

The other one that you brought up is the controlling contractor issue
and this is a huge issue amongst the employers, us, from the
subcontractors= side as opposed to the general contracting side. And the
controlling contractor, I mean, most of you have probably worked on
construction sites and I would ask that; does a controlling contractor
or general contractor, however you want to use that term, always know
what\'s going on in every area on the job site? Do they know when
everybody\'s using fall protection, when everybody\'s entering a
confined space, how everybody\'s approaching their individual hazardous
situations, no matter what trade they\'re in, whether they be plumbers,
mechanical contractors, utility contractors, electrical, et cetera, et
cetera. Do you believe that controlling contractors, in your experience,
have you seen that controlling contractors are in total control of the
site and know what\'s going on everywhere at every point in time?

MR. TRAVIS PARSONS: I was going to say, the answer is obviously going to
be no right away, but they should.

MS. SHADRICK: But also that\'s not what we\'re asking for. What we\'re
asking for is that the controlling contractor act as a repository of
information, just as under the hazard communication standard, there has
to be a centralized location for the collection of data. And that\'s
what we\'re saying, is that on a site somebody has to be in possession
of information that other people can have access to so they know what
the conditions are on the site. Which doesn\'t mean that we\'re saying
that the controlling employer has to be directing operations or has to
know what the conditions are, but rather that anybody working on the
site has to provide the controlling employer with information about the
confined spaces that they encounter so that the next person who comes on
and deals with that same confined space has access to information about
the conditions that they\'re going to confront.

MR. KENNEDY: Have you ever looked for the controlling contractor\'s
representative on a large site? I\'m not being argumentative. It\'s just
this is the issues we\'re running up against.

MR. RYAN: No, you\'re exactly right. It\'s an issue. A perfect example
is Las Vegas right now.

MR. KENNEDY: Good example.

MR. RYAN: A big job. I mean, we\'ve lost too many workers.

MR. KENNEDY: Absolutely.

MR. RYAN: Eleven too many workers. Something needs to change. I mean,
the communication has to change on the job site.

MR. KENNEDY: We need to slow down.

MR. RYAN: And that\'s one of the things in this standard that we\'re
pushing, that that part gets changed, that there is communication being
done.

MR. KENNEDY: So could we run into the situation where, especially being
spread out, and this is where we\'re concerned and we\'re asking you, is
how do you propose handling that large site? You know, it\'s fine to say
the controlling contractor has all this information and I provided him
with my information. Now another contractor comes along and he\'s
looking for this contractor, trying to get his job done, you know,
we\'re moving along. You know, it\'s hard to find him. How do you
propose we centralize it? It\'s not like HazCom. You\'ve mentioned
HazCom. That\'s one thing. We keep MSDSs in the trailer. So we go to the
trailer. We fetch an MSDS. That\'s easy.

But if a contractor runs into a situation where he\'s doing a small job,
how does he put it on record, okay, I got to run up and give the
controlling contractor this information because I have to have a man go
down in that sewer, or a new sewer. We won\'t even call it a sewer.
We\'ll call it a new manhole. Now, I have to put the plan together, run
up and give it to the controlling contractor. So that the next
contractor that\'s walking down the street can access it, how do you
propose we keep track of all these things? I mean, we got contractors
that go into hundreds, hundreds of manholes on a job site in a month. I
mean, we need a proposal. If you\'re going to say we do this, how do we
do it? How do we make it effective?

MS. TRAHAN: You alluded that we were requesting that each contractor had
to provide a controlling employer with a copy of the program, and
that\'s not what we\'re suggesting. We\'re talking about
information-sharing about the circumstances and the hazards.

MR. KENNEDY: Of each location?

MS. TRAHAN: Of the confined spaces on that construction project.

MR. KENNEDY: Again, there could be hundreds on a long pipeline.

MS. TRAHAN: Yes, there could be. Hundreds of hazardous work places.

MR. KENNEDY: Exactly. So how does a controlling contractor keep up with
that and how do I as a utility contractor get that information to them
and ensure that they have it, and if they don\'t pass it onto the next
guy, rather than me passing it on to the guy working there, hey, we got
a confined space over here. Let\'s take care of it. How do they keep up
with it? It\'s different when you got one or two confined spaces on a
job. It\'s a huge, different problem when you\'ve got 50.

MS. TRAHAN: Are you suggesting then that each individual subcontractor
or contractor on the job\'s responsibility is to share that information
with all the other contractors on the job?

MR. KENNEDY: I propose that they share it with contractors who are
working with them on the job.

MS. TRAHAN: At the same moment in time?

MR. KENNEDY: Not everybody on the job, no. The people that are working
around or with them in radiation to the confined space. Because as
earlier I suggested, we post the area. I can see posting. Put up signs.
Warning. Confined space entry. You know, permit only, et cetera.

MR. RYAN: You\'re a mechanical contractor, right? I mean, in an oil
refinery, there\'s hundreds of confined-space operations sometimes going
on even in a given day.

MR. KENNEDY: Yes.

MR. RYAN: Some of the big oil refineries. How is it done there? It\'s
communicated right to the top level and it\'s communicated out to all
the subs. We\'re just saying that same way, communication from the top
down, from the bottom up.

MR. KENNEDY: It\'s a fixed site. But, okay. But that is an issue that
concerns us.

Okay. Make the info accessible. Okay. I don\'t mind sharing information
when we have people there. That makes sense. That\'s no problem.

You suggested that in today\'s modern world we can share information
very easily with PDAs, computers, I guess Blackberrys, you name it. The
question is, do you know how many small and medium contractors have and
use this equipment, have it available to all their supervisors and
foremen, the people who would need to know? Do you know what percentage?

MS. TRAHAN: The contractors might be able to provide that information
better. We were just suggesting them, I think.

MR. KENNEDY: Okay. Well, I suggest you look into it, because you\'ll
find that it\'s not as many as you might think.

I agree with having a competent person.

And that\'s all I have. Thank you, Judge.

JUDGE VITTONE: Thank you, Mr. Kennedy.

Anyone else? Gentleman in the back.

MR. BERNAL: My name is Dean Bernal with the Associated General
Contractors of Texas, appearing tomorrow.

But my question is on the controlling contractor issue. In the highway
business that I\'m involved in, we self-perform about 85 percent of the
work ourselves. And at nearly every instance of sewer work, we would
employ a contractor that\'s a member traditionally from Mr. Kennedy\'s
group.

And then just as a comment on sharing of information, the information in
our industry, in the highway industry, is going to have come from the
underground contractor coming our way in sewer. Since we\'re not doing
that work, we\'re relying on their expertise. So a controlling
contractor for us in the highway industry is a very ‑- not an
anticipated, understood word since we\'re self-performing 85,90 percent
of the work ourselves. So, you know, we have to have it from them coming
the other way. So a controlling contractor for a general in the highway
is not a receptive understanding.

JUDGE VITTONE: Is there a question there, Mr. Bernal?

MR. BERNAL: No, more of a statement, sir. Sorry.

MS. SHADRICK: Could I just make a comment, though?

JUDGE VITTONE: You can make a comment.

MR. BERNAL: Yes.

MS. SHADRICK: If I\'m understanding what you\'re saying properly, we\'re
not suggesting that a controlling employer has to have any kind of
expertise. Again, if you\'re in the position where you are hiring the
subs to do the work and you know that one sub has information that will
have an impact on the other sub, what we\'re saying is that, as the
controlling employer, you should be the conduit for that information.
Which doesn\'t mean that you have to exercise any expertise in this
area, but simply be the source through which people who have information
can provide information to people who need information. Even if that
underground person is not there when the sewer builder comes on the
site.

MR. KENNEDY: All right. Thanks.

JUDGE VITTONE: Thank you, Mr. Bernal.

Any other questions?

Okay. OSHA panel?

MR. BIERSNER: Yes, Your Honor. I am concerned about the severity of the
requirement to share information. I mean, that\'s a serious, substantial
requirement. Are there any circumstances or situations in which this
degree of sharing of information, particularly with regard to confined
spaces occurs now? I mean, can you cite any cases where anybody is doing
this degree of information-sharing that you\'re requesting?

JUDGE VITTONE: I don\'t quite get the question.

MR. BIERSNER: I mean, what I\'m concerned about is what are the added
benefits, I guess, of the degree of communication that you would want to
see in the final standard? I mean, what benefit in and above the
information that we already require that be shared or that a controlling
contractor, we\'d say a contractor, would share with each, what
additional benefit is this additional requirement to provide?

MS. SHADRICK: You know, the way we understand the proposal, you put the
controlling contractor in the position of accepting information if it\'s
handed to him, right, so that you\'re creating a situation where the
controlling contractor has some, but an incomplete amount of information
that the controlling employer/contractor can provide to other
contractors on the site if the controlling contractor has it. It seems
to us that having a more complete set of information makes a whole lot
more sense. And I guess, you know, in some respects this feeds into, you
know, the question that was asked earlier about, you know, using Las
Vegas as an example of what\'s wrong, you know, with construction. You
know, our view is that the more of an overall work site plan there is,
the better, the more safe people are. And to the extent that
construction is phased, phased in, you know, people know where they are
at different points, you have information about what you\'re dealing
with, the better off the employees are and the more effective the
contractors are in being able to do their work.

So if you have someone on the site who has worked, you know, in a
confined space and has information and passes it on to the controlling
employer, it means that the next contractor that comes along will have
access to information about the conditions that were there. So you\'re
not going to have situations where people either don\'t know that there
are confined spaces there or don\'t know what was found in those spaces
at other times.

MR. BIERSNER: Well, we already require that the contractor, once
they\'ve been in the space and performed work, provide that information
back to the controlling contractor. I mean, that\'s already a
requirement.

I mean, all this information-sharing is only getting you to the point
where you\'re doing your initial evaluation, where you\'re at the site
and you want to determine what\'s in that hole. I mean, they still have
to do the assessment. It seems just like, you know, what is the
additional gain for assessment purposes with all of this information? I
mean, they still have to go in and do an assessment.

MS. SHADRICK: Yes, I guess we don\'t see this as adding very much to
what\'s already in the proposed rule, except to the extent of making the
obligations reciprocal, saying, okay, you know, the controlling
contractor has to ask for it as well as the other contractors providing
it and also sort of taking the host employer out of the equation except
to the extent that the host employer has information. But we thought
that there was confusion there about who would in fact be the point
person. But, I guess I\'m not seeing that there\'s that much more being
required here than what you\'re requiring.

MR. BIERSNER: Yes.

MS. SHADRICK: Trying to make it seamless.

MR. BIERSNER: You addressed the issue of a competent person to do
various jobs. Would you use the definition of a competent person that is
already in 1926.32(F)?

MS. SHADRICK: Yes.

MR. BIERSNER: And then just simply define what those tasks would be at
the parts of the standard that require that intervention by that
competent person?

MS. SHADRICK: Yes, we wouldn\'t want a new definition of competent
person in the regs. And we feel it should be sprinkled throughout the
standard where there is a point person who\'s responsible for carrying
out the employer\'s obligation.

MR. BIERSNER: Right now we put that burden on the employer. I mean, we
don\'t really identify anybody. We just say the employer has that
responsibility to do those various tasks.

MS. SHADRICK: Right.

MR. BIERSNER: And you\'re saying what we should do now is to identify a
mechanism which would be the competent person, who would actually
provide the on-site management for that employer of whatever that
particular situation would ‑-

MS. SHADRICK: Well, it would be framed in terms of the employer shall
designate a competent person who will do this and that the obligation
still remain on the employer. It\'s just a question of, there\'s a
certain amount of authority that comes in the definition of a competent
person, and that\'s our concern, is that the person whom the employer
designates to do these various tasks have the authority that comes with
being a competent person.

MS. TRAHAN: And the fact that the construction regulations use this term
consistently and that it reminds the industry that an employer actually
has to have somebody designated to carry out the requirements of this
standard, where I think in the industry sometimes it gets lost when you
don\'t have an on-site person designated to perform specific tasks.

MR. BIERSNER: I have one additional question. The AFL-CIO puts out an
annual safety and health report, usually in the spring of each year, as
I remember. And I was wondering if, based on the data and information
that\'s in that report, if you might have any additional information
available to demonstrate the benefits of this proposed rule, or you
could make that available to us?

MS. TRAHAN: Well, we can check that document and we can check some other
data sources and see if we can submit them in post-hearing comment.

MR. BIERSNER: Okay. I appreciate that.

Garvin?

MR. BRANCH: On page 14 of your written testimony you recommend that OSHA
require continuous monitoring for all confined spaces. Could you kind of
elaborate on your concerns there? Do you have any concerns with periodic
monitoring, especially with regard to our isolated-hazard space?

MS. TRAHAN: Was that page 14 of

our ‑-

MR. BRANCH: Of your written testimony, or your comments.

MS. TRAHAN: The written comments to the proposed rule? You\'re looking
for elaboration?

MR. BRANCH: Yes, I mean, we felt like \-- when we were drafting the
standard we tried to keep as close to the general industry standard as
possible. Once you\'ve classified the spaces, we didn\'t want to put too
many other burdens on the employer that aren\'t in the general industry
standard. One is the competent person and qualified person. That\'s why
we left it out. If we get enough information that we need it in the
construction standard, we shall consider it.

Another is continuous monitoring for isolated-hazard spaces. Because the
hazards are supposed to be removed and eliminated. Well, we thought it
might be burdensome on an employer to require them to have continuous
monitoring. We\'ve had testimony today that said that that\'s pretty
easy for the industry to do now. So I was just trying to get some
comment from you as, what would you recommend as far as this particular
aspect?

MS. TRAHAN: I think that the comments that you\'re referring to were in
general for confined-space work that continuous monitoring was
preferable to periodic monitoring. And I believe part of the reason is
because the monitoring equipment is such that it just provides that when
you\'re talking about gas meters or other meters or other type of
equipment that\'s been widely available since before the general
industry standard came into play.

Specifically as it relates to the isolated-hazard confined space work, I
don\'t think that we have really, you know, decided that that was
necessary or unnecessary. So perhaps I could answer the question ‑-

MR. BRANCH: Oh, on page 15 of your comments, you state that OSHA should
specifically define who\'s responsible for summoning rescue personnel.
Again, during the drafting of the standard we weren\'t quite sure if the
attendant would always have the means to summon rescue personnel or
whether it would be industry practice for the entry supervisor to do
this. In the general industry standard we do recognize that the
attendant is required to do this. Who would you recommend? If we made a
change, who would you recommend for us to ‑-

MS. TRAHAN: The attendant.

MR. BRANCH: The attendant as well?

MS. TRAHAN: If that attendant is there and recognizes the need for entry
rescue, then they should have the equipment to summon that entry rescue
team.

MR. BRANCH: We left it to the employer to determine who does this. Is it
any problem, do you find any problems with the employer making the
decision of who they want to designate?

MR. RYAN: Well, my thinking is the attendant is going to be there,
always going to be there, whereas the entry supervisor might not be
right in that area all the time. The employer, you know, more than
likely, will not be there. Just so there\'s I guess a chain of response
there, immediate response, and we\'re just thinking that the
attendant\'s going to be there to make that immediate response, because
that\'s the attendant\'s duty.

MR. BRANCH: And there\'s also a requirement for the attendant to contact
the employer whenever they do a non-entry rescue, whenever they initiate
a non-entry rescue. I mean, we tried to close the loop there because the
employer has to be made aware that something\'s going on in the space,
as well.

MR. RYAN: I guess, who are you going to contact first?

MR. BRANCH: Right.

MR. RYAN: I would contact the ‑-

MR. BRANCH: 911, right.

MR. RYAN: Right. Got you.

MR. BRANCH: And I have a final one. You mention wanting to have OSHA
require that signs be posted for isolated-hazard spaces. Why would that
be necessary if there are no hazards in the space?

MS. TRAHAN: I think the logic behind that request was because in the
requirements under the isolated hazard section, there\'s a lot of
documentation that has to occur on how physical hazards are identified
and eliminated and how atmospheric hazards are identified and
eliminated, and somebody has to sign off on the entire process and
somebody else has to sign off that they actually ‑- you know, there\'s a
lot that\'s required. And if an employee is going into a confined space
that\'s been essentially declassified from a permit-required confined
space to a non-permit space, which is the case in the isolated hazard
requirements, they should know that there have been a lot of controls
taken here to make this space safe. And they should understand that, you
know, there\'s a whole set of documentation that goes along with me
being allowed to work in here and I should recognize that something
might change which might require me to have to leave the space and it\'s
not just a general work area.

MR. BRANCH: With regard to that, if there are hazards in there, say, a
machine that you isolated, and you take those methods, those isolation
methods off of it, it\'s a permit space after they leave, they already
have a requirement to post for a permit space. We were concerned about
\-- or situations of where they do work in the space and then once they
seal it off, the work is done. Now you have posting requirements for
hazards that aren\'t there. You see what I\'m saying?

MS. TRAHAN: I don\'t really understand what you\'re saying.

MR. BRANCH: While they\'re in the space, there are no hazards there if
they\'ve removed or eliminated all of the hazards. Once they leave the
space, if they close the space up or it becomes part of a structure or
something, what purpose would posting signs have? There were never any
hazards in the space.

MS. TRAHAN: But for the case in an isolated-hazard confined space there
were hazards in the space.

MR. BRANCH: But they were removed.

MS. TRAHAN: That were taken care of.

MR. BRANCH: Yes.

MS. TRAHAN: When the work\'s done, wouldn\'t those hazards return if
that vessel was returned to its original purpose and closed back up and
re-engaged in the process it was engaged in?

MR. BRANCH: In a situation where there\'s, like, machinery or something
in there, yes.

MS. TRAHAN: Yes.

MR. BRANCH: But in a case where they\'re not going to use the confined
space for anything else, it becomes something else, a part of a
structure or something else. I mean, we put an unnecessary burden on the
employer to ‑- I mean, we try to keep our paperwork burdens down.

MS. TRAHAN: I\'m just having a hard time imagining ‑- yes, we\'re in
favor of reduced paperwork.

MR. RYAN: Take the signs down.

MS. TRAHAN: But I\'m just having trouble imagining the space that
you\'re describing. That\'s maybe where the breakdown is.

MR. RYAN: Yes, you know, just take the signs down after it\'s done. But
I think our idea was, too, when we were going over that was that maybe
after whatever work was performed maybe now another contractor, another
employee or some other employees are doing some other work around that
area. Maybe now they\'ve changed the whole scenario of that confined
space, what it was or what it was intended to do afterwards, even
cleaned up or after it was declassified.

MR. BRANCH: But in that situation, after that employer left the space,
it\'s a permit space again.

MR. RYAN: Right.

MR. BRANCH: There\'s already a requirement to post permits, but ‑-

MR. RYAN: I would say, yes, you would take the signs down after that job
previously that was performed, you know. And that would go back to just
the regular permit; right? That\'s what I would think.

MR. BRANCH: Well, I guess we\'re trying to keep the employer from
making, like, all these different types of signs for the same space, is
where we\'re getting at.

MR. RYAN: Well, because if a welder goes in there and the work that he
or she is going to do is going to be a different hazard, the work ‑-
I\'m going to go in there as a cement mason and I\'m going to go in
there grinding or epoxying walls. I\'m going to create a different
atmosphere. So I mean, that was the intent there, that you know, things
are going to change with the process of the construction.

MR. BRANCH: So on a site, based on your experiences, if you were hired
as a sub and your employer told you that it was an isolated- hazard
space or non-permit space, when you got there, would you post signs?

MR. RYAN: Yes.

MR. BRANCH: You would.

MR. RYAN: Yes, because what I\'m going to do in there probably is going
to make it into a different world again.

MR. BRANCH: Okay. Thank you.

JUDGE VITTONE: Any other questions?

MS. KRAMER: Yes, Your Honor. I have a few questions largely related to
your written comments as well.

The first is on page 14 of your written comments, you mention that
atmospheric conditions in confined spaces change too rapidly to rely on
periodic monitoring. What data or other information do you have
available to show that the conditions change rapidly, or might change
rapidly?

MS. TRAHAN: Well, the fatality data. I mean, as far as going through
each fatality and determining if periodic monitoring is employed in that
site or not, I haven\'t done that. I don\'t know if we\'ve done that.

MR. RYAN: Past experience.

MS. TRAHAN: Experience. You have an example, Gerry.

MR. RYAN: Yes, in a water treatment facility. They went in there and the
‑- I can\'t think of the word now ‑- it was a concrete surface on the
whole thing. Went in there and cleaned it out, cleaned the whole tank
out. We\'re going back in there now after it\'s supposedly cleaned to
put an epoxy coating on the walls in the lining of the tank. Well,
because of the concrete being porous, it just started coming back out in
the atmosphere. So it changed and it changed, you know, in a couple
hours= time. I mean, that\'s one example. And then just the work again
that you\'re performing down there could change things again so rapidly.
Just not something to mess around with, in my book.

MS. TRAHAN: And I guess along the same lines is, if periodic is as good
as continuous, wouldn\'t it be good for OSHA to define what periodic
means? Is it every three minutes? Every five minutes? Every 15 minutes?
And then how do you base that on your data? I mean, how do you determine
what is the appropriate interval for periodic monitoring where, in most
cases for the confined space hazard situations, the equipment is readily
available in use and it just is a matter of instead of leaving the
equipment out of the hole, putting it in the hole and forgotten.

MR. RYAN: You know, most contractors nowadays they\'re just putting
monitors on the personnel and they\'re on them all the time. I mean,
it\'s being done all the time. It\'s not like a big cost thing because
you got a monitor, you strap it on the worker. That\'s the way it should
be.

MS. SHADRICK: Did you have anything else on that?

MS. BOR: Well, I just have one more instance. Welding inside of a
vessel, you may have used a grinder and cleaned up all of the elements
around it and then when you\'re welding, that heat penetrates, and now
you\'ve let off toxic fumes along with the argon that might be in the
thank that you\'ve already initiated inside this confined space. I mean,
there are many instances where it can change even if you add weather
conditions, you know, the temperature. You may go to lunch and that tank
may be another 10 degrees hotter, just like a child inside a car. You
know, there are a lot of different changes.

MS. KRAMER: Thank you. Second, why is it necessary to add fire as a
potential confined space hazard to the definitions in 1203 since the
definition of hazardous atmosphere includes flammable gas, vapor, and
mist?

MS. TRAHAN: I\'m just trying to remember why we added fire, who told us
to do it. But I think it\'s just because of the concern that that was
such a hazard in confined spaces that needed to be looked at. If I get a
better answer, I=ll submit in the post-hearing comments.

MS. KRAMER: Great. Thanks. We were also wondering if you guys have any
opinion on the natural ventilation or suction debate that was going on
earlier.

MS. TRAHAN: I wasn\'t really sure what the debate was about. Based on
all my training and the training that we give, because as part of the
training we do with the building trades, we teach a four-day
permit-required confined space course to trainers so that they can in
turn train workers in how to operate under 1910.146. And everything that
OSHA\'s given us on the issue of push versus pull, it\'s a lot better to
push. You move more air for the same amount of energy. Unless you\'re
talking about trying to control things like welding fumes at the point
of generation, and then of course you\'d want to use local exhaust
ventilation in conjunction, hopefully, with a push system for your
mechanical ventilation in a confined space.

And, I mean, based on what the ventilation manufacturers, the data they
provide and the information that\'s provided through all the training
I\'ve ever had, that push is better for confined space work.

The issue of natural ventilation, I actually didn\'t really understand
that there was any kind of controversy in considering that natural
ventilation is part of a method of control of overexposure and control
of hazards inside confined spaces. I think, maybe, when the definitions
were written to address the controlled atmosphere confined spaces, since
OSHA seemed to follow along with the requirements in 1910.146 that talk
about controlling atmospheric hazards through the use of forced-air
ventilation alone, I mean, natural ventilation should be utilized to
supplement mechanical ventilation. But I didn\'t see that in any way the
use of natural ventilation was considered a problem or a bad thing under
these rules.

Anything else?

MR. RYAN: Just back to the push and pull, I\'m not sure, but I always
thought that using the pull or the suction method was supposed to have
been used in partner with ventilation, with blowing the fans. I thought
they were supposed to be a combination. But I could be wrong. I don\'t
know.

MS. KRAMER: Thanks.

JUDGE VITTONE: Mr. Burt?

MR. BURT: I just have a couple of very broad questions, so I won\'t send
you to page 13 of your testimony.

We\'ve heard from many people today that there are many good employers
who are following the general industry standards. Do you have any feel
for what the percentage of people who aren\'t doing what they ought to
be doing might be?

MR. BIERSNER: Can I clarify? Is that in relation to construction work?

MR. BURT: Yes.

MR. BIERSNER: Okay.

MR. BURT: Yes, in relation to construction work in your experience in
the ‑-

MS. TRAHAN: I think it ‑-

MR. RYAN: That\'s ‑-

MS. TRAHAN: I\'m sorry. Go ahead.

MR. RYAN: No, I was just going to state my personal ‑- that\'s a hard
one, but I\'m just ‑- 10 years ago, it was less than five percent. You
know, the last three, four years, maybe up to 30-40 percent. Depends on
the part of the country, too. You know, that makes a big difference. And
training. If they\'re educated. I always say when we\'re educating our
members, that we\'re not out there to burn our employers or contractors;
we\'re there to help them, too, you know, to educate them. And that\'s
the big thing I try to get across, because they\'re small mom-and-pop
outfits and they may not have the resources, so that\'s one of the
things that we try to work with to make it better for everybody.

MS. TRAHAN: I mean, anecdotally, we\'ve heard that the contractors who
have experience working the outages and working turnarounds and working
with the large industrial facilities have it together.

MR. BURT: Yes.

MS. TRAHAN: And, you know, that\'s the mechanical contractors and the
boiler contractors and that type, electrical contractors. Where I think
the largest impact for the rule would be would be for those contractors
who don\'t typically work in that sector. Because for the folks who work
in that sector, I can understand that they would be confused by the
increased number of terms in the perceived larger scale of the work and
understanding. But for the ones who don\'t work in that sector, this is
all going to be new to them, I think, because I don\'t think they\'re
really, you know, following 21(B)(2) and the ANSI Z117 standard the way
they\'re supposed to.

MR. BURT: You mentioned the possibility that, perhaps the construction
standard could be so written that people could know they were in
compliance with general industry by just following the construction
standard. Is that right?

Do you think the standard as it is currently written, you could do that?

MS. TRAHAN: Actually, quick judgment, yes. If a construction employer
were in compliance with the proposed standard, I think they would be in
compliance with 1910.146.

MR. BURT: In other words, yes, I\'m looking ‑- might one solution to the
perplexity of those two standards be, follow the construction and your
safe. Is it your opinion that might be the case? And if it\'s not, are
there things that could be done with the construction standard that
would make that the case?

MS. TRAHAN: No, I think, actually what you said first is the case. I
think that the proposed rule is very comprehensive and hits most of the
requirements of 1910.146, but goes further and clarifies the policies
and procedures outlined in the Compliance Directive and OSHA\'s
experience with the general industry standard.

MR. BURT: Okay. That\'s all I have.

JUDGE VITTONE: Any other questions?

MR. BIERSNER: Yes, I had one additional question, Your Honor.

We\'ve heard concerns expressed today by several employer groups
regarding the definition of a hazardous atmosphere, particularly the
provision that says that it would consist of any airborne concentration
of a substance that exceeds the dose or exposure limit specified by OSHA
requirement, which essentially are the PELs, because it would kick them
into the standard and probably into a permit-required confined space and
that provision does differ from the general industry standard. And they
would normally have to control those exposures anyway. I was wondering
if you had any sort of recommendation regarding whether we should retain
or eliminate that provision from the definition of a hazardous
atmosphere.

MS. TRAHAN: I\'d like to respond to that question in our post-hearing
comments.

MR. BIERSNER: That would be fine.

MS. TRAHAN: Because I think we need to talk about that.

MR. BIERSNER: At this time, Your Honor, I\'d like to enter or mark for
exhibits the testimony of Ms. Laurie Shadrick, which has the same title,
Testimony of Laurie Shadrick, as Exhibit 0201; the document entitled,
Testimony of Travis Parsons as Exhibit 0202; and the document entitled,
Testimony of Gerald Ryan as Exhibit 0203, and request your permission to
enter these documents into the record of this hearing.

JUDGE VITTONE: Those exhibits will be made part of the record.

Okay. We\'ve completed the first day. Thank you very much. Appreciate
your time today.

We will resume tomorrow morning at 9:00 in this room here. Okay? Thank
you.

(Whereupon, the hearing in the above-entitled matter was recessed at
5:25 p.m.)