[Federal Register Volume 89, Number 26 (Wednesday, February 7, 2024)]
[Notices]
[Pages 8442-8451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02437]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2023-0010]


Ballard Marine Construction Bay Park Conveyance Tunnel Project; 
Grant of Permanent Variance

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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SUMMARY: In this notice, OSHA grants a permanent variance to Ballard 
Marine Construction (Ballard) related to work in compressed air 
environments.

DATES: The permanent variance specified by this notice becomes 
effective on February 7, 2024 and shall remain in effect until the 
completion of the Bay Park Conveyance Tunnel Project or until modified 
or revoked by OSHA.

FOR FURTHER INFORMATION CONTACT: Information regarding this notice is 
available from the following sources:
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office 
of

[[Page 8443]]

Communications, U.S. Department of Labor; telephone: (202) 693-1999; 
email: <a href="/cdn-cgi/l/email-protection#f79a929e9b9e99909285d991859699949e84c5b793989bd9909881"><span class="__cf_email__" data-cfemail="204d45494c494e4745520e4652414e4349531260444f4c0e474f56">[email protected]</span></a>.
    General and technical information: Contact Mr. Kevin Robinson, 
Director, Office of Technical Programs and Coordination Activities, 
Directorate of Technical Support and Emergency Management, Occupational 
Safety and Health Administration, U.S. Department of Labor; telephone: 
(202) 693-1911; email: <a href="/cdn-cgi/l/email-protection#cab8a5a8a3a4b9a5a4e4a1afbca3a48aaea5a6e4ada5bc"><span class="__cf_email__" data-cfemail="2c5e434e45425f43420247495a45426c484340024b435a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 
    Copies of this Federal Register notice. Electronic copies of this 
Federal Register notice are available at http://www.regulations.gov. 
This Federal Register notice, as well as news releases and other 
relevant information, also are available at OSHA's web page at http://www.osha.gov.

I. Overview

    On March 25, 2022, Ballard Marine Construction (Ballard or the 
applicant), submitted under Section 6(d) of the Occupational Safety and 
Health Act of 1970 (the Act), 29 U.S.C. 655, and 29 CFR 1905.11 
(variances and other relief under Section 6(d)), three applications for 
a permanent variance from several provisions of the OSHA standard that 
regulates work in compressed air, 1926.803 of 1926 Subpart S--
Underground Construction, Caissons, Cofferdams, and Compressed Air, and 
an interim order allowing it to proceed while OSHA considers the 
request for a permanent variance (OSHA-2023-0010-0002) (OSHA-2023-0010-
0003) and (OSHA-2023-0010-0004). This notice addresses Ballard's 
application for a permanent variance and interim order for construction 
of the Bay Park Conveyance Tunnel Project in Nassau County, New York 
only and is not applicable to future Ballard tunneling projects.
    This notice addresses Ballard's application for a permanent 
variance and interim order from the provisions of the standard that: 
(1) require the use of the decompression values specified in 
decompression tables in Appendix A of subpart S (29 CFR 
1926.803(f)(1)); and (2) require the use of automated operational 
controls and a special decompression chamber (29 CFR 
1926.803(g)(1)(iii) and (xvii), respectively).
    OSHA reviewed Ballard's application for the variance and interim 
order and determined that they were appropriately submitted in 
compliance with the applicable variance procedures in Section 6(d) of 
the Occupational Safety and Health Act of 1970 (OSH Act; 29 U.S.C. 655) 
and OSHA's regulations at 29 CFR 1905.11 (Variances and other relief 
under section 6(d)), including the requirement that the applicant 
inform workers and their representatives of their rights to petition 
the Assistant Secretary of Labor for Occupational Safety and Health for 
a hearing on the variance application.
    OSHA reviewed the alternative procedures in Ballard's application 
and preliminarily determined that the applicant's proposed 
alternatives, on the whole, subject to the conditions in the request 
and imposed by the interim order, provide measures that are as safe and 
healthful as those required by the cited OSHA standards. On August 4, 
2023, OSHA published a Federal Register notice announcing Ballard's 
application for permanent variance, stating the preliminary 
determination along with the basis of that determination, and granting 
the interim order (88 FR 51862). OSHA requested comments on each.
    OSHA did not receive any comments or other information disputing 
the preliminary determination that the alternatives were at least as 
safe as OSHA's standard, nor any objections to OSHA granting a 
permanent variance. Accordingly, through this notice OSHA grants a 
permanent variance, subject to the conditions set out in this document.

A. Background

    The information that follows about Ballard, its methods, and the 
Bay Park Conveyance Tunnel Project comes from the Ballard variance 
application.
    Ballard is a contractor for the Bay Park Conveyance Tunnel Project 
(the project), that works on complex tunnel projects using innovations 
in tunnel-excavation methods. The applicant's workers engage in the 
construction of tunnels using advanced shielded mechanical excavation 
techniques in conjunction with an earth pressure balance tunnel boring 
machine (TBM). Using shielded mechanical excavation techniques, in 
conjunction with precast concrete tunnel liners and backfill grout, 
TBMs provide methods to achieve the face pressures required to maintain 
a stabilized tunnel face through various geologies and isolate that 
pressure to the forward section (the working chamber) of the TBM.
    Ballard asserts that it bores tunnels using a TBM at levels below 
the water table through soft soils consisting of clay, silt, and sand. 
TBMs are capable of maintaining pressure at the tunnel face, and 
stabilizing existing geological conditions, through the controlled use 
of a mechanically driven cutter head, bulkheads within the shield, 
ground-treatment foam, and a screw conveyor that moves excavated 
material from the working chamber. The forward-most portion of the TBM 
is the working chamber, and this chamber is the only pressurized 
segment of the TBM. Within the shield, the working chamber consists of 
two sections: the forward working chamber and the staging chamber. The 
forward working chamber is immediately behind the cutter head and 
tunnel face. The staging chamber is behind the forward working chamber 
and between the man-lock door and the entry door to the forward working 
chamber.
    The TBM has twin man-locks located between the pressurized working 
chamber and the non-pressurized portion of the machine. Each man-lock 
has two compartments. This configuration allows workers to access the 
man-locks for compression and decompression, and medical personnel to 
access the man-locks if required in an emergency.
    Ballard's Hyperbaric Operations Manual (HOM) for the Bay Park 
Conveyance Tunnel Project indicates that the maximum pressure to which 
it is likely to expose workers during project interventions for the 
three tunnel drives is 29 pounds per square inch gauge (p.s.i.g). The 
applicant will pressurize the working chamber to the level required to 
maintain a stable tunnel face, which for this project Ballard estimates 
will be up to a pressure not exceeding 29 p.s.i.g., which does not 
exceed the maximum pressure specified by the OSHA standard at 29 CFR 
1926.803(e)(5).\1\ Ballard is not seeking a variance from this 
provision of the compressed-air standard.
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    \1\ The decompression tables in Appendix A of subpart S express 
the working pressures as pounds per square inch gauge (p.s.i.g.). 
Therefore, throughout this notice, OSHA expresses the p.s.i. value 
specified by 29 CFR 1926.803(e)(5) as p.s.i.g., consistent with the 
terminology in Appendix A, Table 1 of subpart S.
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    Ballard employs specially trained personnel for the construction of 
the tunnel. To keep the machinery working effectively, Ballard asserts 
that these workers must periodically enter the excavation working 
chamber of the TBM to perform hyperbaric interventions during which 
workers would be exposed to air pressures up to 29 p.s.i.g, which does 
not exceed the maximum pressure specified by the existing OSHA standard 
at 29 CFR 1926.803(e)(5). These interventions consist of conducting 
inspections or maintenance work on the cutter-head structure and 
cutting tools of the TBM, such as changing replaceable cutting tools 
and disposable wear bars, and, in rare cases, repairing structural 
damage to the cutter head. These interventions are the only

[[Page 8444]]

time that workers are exposed to compressed air. Interventions in the 
excavation working chamber (the pressurized portion of the TBM) take 
place only after halting tunnel excavation and preparing the machine 
and crew for an intervention.
    During interventions, workers enter the working chamber through one 
of the twin man-locks that open into the staging chamber. To reach the 
forward part of the working chamber, workers pass through a door in a 
bulkhead that separates the staging chamber from the forward working 
chamber. The man-locks and the working chamber are designed to 
accommodate three people, which is the maximum crew size allowed under 
the permanent variance. When the required decompression times are 
greater than work times, the twin man-locks allow for crew rotation. 
During crew rotation, one crew can be compressing or decompressing 
while the second crew is working. Therefore, the working crew always 
has an unoccupied man-lock at its disposal.
    Ballard asserts that these innovations in tunnel excavation have 
greatly reduced worker exposure to hazards of pressurized air work 
because they have eliminated the need to pressurize the entire tunnel 
for the project and thereby reduce the number of workers exposed, as 
well as the total duration of exposure, to hyperbaric pressure during 
tunnel construction. These advances in technology have substantially 
modified the methods used by the construction industry to excavate 
subaqueous tunnels compared to the caisson work regulated by the 
current OSHA compressed-air standard for construction at 29 CFR 
1926.803.
    In addition to the reduced exposures resulting from the innovations 
in tunnel-excavation methods, Ballard asserts that innovations in 
hyperbaric medicine and technology improve the safety of decompression 
from hyperbaric exposures. These procedures, however, deviate from the 
decompression process that OSHA requires for construction in 29 CFR 
1926.803(f)(1) and the decompression tables in Appendix A of 29 CFR 
1926, subpart S. Nevertheless, according to Ballard, their use of 
decompression protocols incorporating oxygen is more efficient, 
effective, and safer for tunnel workers than compliance with the 
decompression tables specified by the existing OSHA standard.
    Ballard contends that the alternative safety measures included in 
the application provide Ballard's workers with a place of employment 
that is at least as safe as they would be under OSHA's compressed-air 
standard for construction. Ballard also provided OSHA a project-
specific HOM (OSHA-2023-0010-0005) for the Bay Park Conveyance Tunnel 
Project that requires specialized medical support and hyperbaric 
supervision to provide assistance to a team of specially trained man-
lock attendants and hyperbaric or compressed-air workers to support 
their assertions of equivalency in worker protection.
    OSHA included all of the above information in the Federal Register 
notice announcing Ballard's variance application and did not receive 
any comments disputing any of that information, including the safety 
assertions made by Ballard in the variance application.

II. The Variance Application

    Pursuant to the requirements of OSHA's variance regulations (29 CFR 
1905.11), the applicant has certified that it notified its affected 
workers \2\ of the variance application and request for interim order 
by posting, at prominent locations where it normally posts workplace 
notices, a summary of the application and information specifying where 
the workers can examine a copy of the application. In addition, the 
applicant has certified that it informed its workers of their right to 
petition the Assistant Secretary of Labor for Occupational Safety and 
Health for a hearing on the variance application.
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    \2\ See the definition of ``Affected employee or worker'' in 
section VII.C of this Notice.
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III. OSHA History of Approval of Nearly Identical Variance Requests

    OSHA has previously approved several nearly identical variances 
involving the same types of tunneling equipment used for similar 
projects (tunnel construction variances). OSHA notes that it granted 
several subaqueous tunnel construction permanent variances from the 
same provisions of OSHA's compressed-air standard (29 CFR 
1926.803(e)(5), (f)(1), (g)(1)(iii), and (g)(1)(xvii)) that are the 
subject of the present application: (1) Traylor JV for the completion 
of the Blue Plains Tunnel in Washington, DC (80 FR 16440 (March 27, 
2015)); (2) Impregilo, Healy, Parsons, Joint Venture (IHP JV) for the 
completion of the Anacostia River Tunnel in Washington, DC (80 FR 50652 
(August 20, 2015)); (3) Tully/OHL USA Joint Venture for the completion 
of the New York Economic Development Corporation's New York Siphon 
Tunnel project (79 FR 29809 (May 23, 2014)); (4) Salini-Impregilo/Healy 
Joint Venture for the completion of the Northeast Boundary Tunnel in 
Washington, DC (85 FR 27767, (May 11, 2020)); (5) McNally/Kiewit SST 
Joint Venture for the completion of the Shoreline Storage Tunnel 
Project in Cleveland, Ohio (88 FR 15080, March 10, 2023); and (6) 
Traylor-Shea Joint Venture for the completion of the Alexandria River 
Renew Tunnel Project in Alexandria Virginia and Washington DC (88 FR 
15080, March 10, 2023). The proposed alternate conditions in this 
notice are nearly identical to the alternate conditions of the previous 
permanent variances.\3\ OSHA is not aware of any injuries or other 
safety issues that arose from work performed under these conditions in 
accordance with the previous variances.
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    \3\ The previous tunnel construction variances allowed further 
deviation from OSHA standards by permitting employee exposures above 
50 p.s.i., based on the composition of the soil and the amount of 
water that will be above the tunnel for various sections of this 
project. The current permanent variance includes substantively the 
same safeguards as the variances that OSHA granted previously even 
though employees will not be exposed to pressures higher than 29 
p.s.i.g.
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IV. Applicable OSHA Standard and the Relevant Variance

A. Variance From Paragraph (f)(1) of 29 CFR 1926.803, Requirement To 
Use OSHA Decompression Tables

    OSHA's compressed-air standard for construction requires 
decompression in accordance with the decompression tables in Appendix A 
of 29 CFR 1926, subpart S (see 29 CFR 1926.803(f)(1)). As an 
alternative to the OSHA decompression tables, the applicant proposes to 
use newer decompression schedules (the 1992 French Decompression 
Tables) that rely on staged decompression and supplement breathing air 
used during decompression with air or oxygen (as appropriate).\4\ The 
applicant asserts decompression protocols using the 1992 French 
Decompression Tables for air or oxygen as specified by the Integrated 
Pipeline Tunnel Project-specific HOM are safer for tunnel workers than 
the decompression protocols specified in Appendix A of 29 CFR 1926 
Subpart S. Accordingly, the applicant commits to following the 
decompression procedures described in that HOM, which requires Ballard 
to follow the 1992 French Decompression Tables to decompress compressed 
air workers

[[Page 8445]]

(CAWs) after they exit the hyperbaric conditions in the working 
chamber.
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    \4\ In 1992, the French Ministry of Labour replaced the 1974 
French Decompression Tables with the 1992 French Decompression 
Tables, which differ from OSHA's decompression tables in Appendix A 
by using: (1) staged decompression as opposed to continuous (linear) 
decompression; (2) decompression tables based on air or both air and 
pure oxygen; and (3) emergency tables when unexpected exposure times 
occur (up to 30 minutes above the maximum allowed working time).
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    Depending on the maximum working pressure and exposure times, the 
1992 French Decompression Tables provide for air decompression with or 
without oxygen. Ballard asserts that oxygen decompression has many 
benefits, including (1) keeping the partial pressure of nitrogen in the 
lungs as low as possible; (2) keeping external pressure as low as 
possible to reduce the formation of gas bubbles in the blood; (3) 
removing nitrogen from the lungs and arterial blood and increasing the 
rate of nitrogen elimination; (4) improving the quality of breathing 
during decompression stops so that workers are less tired and to 
prevent bone necrosis; (5) reducing decompression time by approximately 
33 percent as compared to air decompression; and (6) reducing 
inflammation.
    In addition, the project-specific HOM requires a physician, 
certified in hyperbaric medicine, to manage the medical condition of 
CAWs during hyperbaric exposures and decompression. A trained and 
experienced man-lock attendant is also required to be present during 
hyperbaric exposures and decompression. This man-lock attendant is to 
operate the hyperbaric system to ensure compliance with the specified 
decompression table. A hyperbaric supervisor, who is trained in 
hyperbaric operations, procedures, and safety, directly oversees all 
hyperbaric interventions, and ensures that staff follow the procedures 
delineated in the HOM or by the attending physician.

B. Variance From Paragraph (g)(1)(iii) of 29 CFR 1926.803, 
Automatically Regulated Continuous Decompression

    Ballard seeks a permanent variance from the OSHA standard at 29 CFR 
1926.803(g)(1)(iii), which requires automatic controls to regulate 
decompression. As noted above, the applicant is conducting the staged 
decompression according to the 1992 French Decompression Tables under 
the direct control of the trained man-lock attendant and under the 
oversight of the hyperbaric supervisor.
    Breathing air under hyperbaric conditions increases the amount of 
nitrogen gas dissolved in a CAW's tissues. The greater the hyperbaric 
pressure under these conditions and the more time spent under the 
increased pressure, the greater the amount of nitrogen gas is dissolved 
in the tissues. When the pressure decreases during decompression, 
tissues release the dissolved nitrogen gas into the blood system, which 
then carries the nitrogen gas to the lungs for elimination through 
exhalation. Releasing hyperbaric pressure too rapidly during 
decompression can increase the size of the bubbles formed by nitrogen 
gas in the blood system, resulting in decompression illness (DCI), 
commonly referred to as ``the bends.'' This description of the etiology 
of DCI is consistent with current scientific theory and research on the 
issue.
    The 1992 French Decompression Tables, proposed for use by the 
applicant, provide for stops during worker decompression (i.e., staged 
decompression) to control the release of nitrogen gas from tissues into 
the blood system. Studies show that staged decompression, in 
combination with other features of the 1992 French Decompression Tables 
such as the use of oxygen, result in a lower incidence of DCI than the 
use of automatically regulated continuous decompression.\5\ In 
addition, the applicant asserts that staged decompression administered 
in accordance with its HOM is at least as effective as an automatic 
controller in regulating the decompression process because the HOM 
requires a hyperbaric supervisor who directly supervises all hyperbaric 
interventions and ensures that the man-lock attendant, who is a 
competent person in the manual control of hyperbaric systems, follows 
the schedule specified in the decompression tables, including stops.
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    \5\ See, e.g., Dr. Eric Kindwall, EP (1997), Compressed air 
tunneling and caisson work decompression procedures: development, 
problems, and solutions. Undersea and Hyperbaric Medicine, 24(4), 
pp. 337-345. This article reported 60 treated cases of DCI among 
4,168 exposures between 19 and 31 p.s.i.g. over a 51-week contract 
period, for a DCI incidence of 1.44% for the decompression tables 
specified by the OSHA standard. Dr. Kindwall notes that the use of 
automatically regulated continuous decompression in the Washington 
State safety standards for compressed-air work (from which OSHA 
derived its decompression tables) was at the insistence of 
contractors and the union, and against the advice of the expert who 
calculated the decompression table and recommended using staged 
decompression. Dr. Kindwall then states, ``Continuous decompression 
is inefficient and wasteful. For example, if the last stage from 4 
p.s.i.g. . . . to the surface took 1h, at least half the time is 
spent at pressures less than 2 p.s.i.g. . . ., which provides less 
and less meaningful bubble suppression . . . .'' In addition, Dr. 
Kindwall addresses the continuous-decompression protocol in the OSHA 
compressed-air standard for construction, noting that ``[a]side from 
the tables for saturation diving to deep depths, no other widely 
used or officially approved diving decompression tables use straight 
line, continuous decompressions at varying rates. Stage 
decompression is usually the rule, since it is simpler to control.''
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C. Variance From Paragraph (g)(1)(xvii) of 29 CFR 1926.803, Requirement 
of Special Decompression Chamber

    The OSHA compressed-air standard for construction requires 
employers to use a special decompression chamber of sufficient size to 
accommodate all CAWs being decompressed at the end of the shift when 
total decompression time exceeds 75 minutes (see 29 CFR 
1926.803(g)(1)(xvii)). Use of the special decompression chamber enables 
CAWs to move about and flex their joints to prevent neuromuscular 
problems during decompression.
    Space limitations in the TBM do not allow for the installation and 
use of an additional special decompression lock or chamber. The 
applicant proposes that it be permitted to rely on the man-locks and 
staging chamber in lieu of adding a separate, special decompression 
chamber. Because only a few workers out of the entire crew are exposed 
to hyperbaric pressure, the man-locks (which, as noted earlier, connect 
directly to the working chamber) and the staging chamber are of 
sufficient size to accommodate all of the exposed workers during 
decompression. The applicant uses the existing man-locks, each of which 
adequately accommodates a three-member crew for this purpose when 
decompression lasts up to 75 minutes. When decompression exceeds 75 
minutes, crews can open the door connecting the two compartments in 
each man-lock (during decompression stops) or exit the man-lock and 
move into the staging chamber where additional space is available. The 
applicant asserts that this alternative arrangement is as effective as 
a special decompression chamber in that it has sufficient space for all 
the CAWs at the end of a shift and enables the CAWs to move about and 
flex their joints to prevent neuromuscular problems.

V. Decision

    After reviewing the proposed alternatives, OSHA has determined that 
the applicant's proposed alternatives, on the whole, subject to the 
conditions in the request and imposed by this permanent variance, 
provide measures that are as safe and healthful as those required by 
the cited OSHA standards addressed in section IV of this notice.
    In addition, OSHA has determined that each of the following 
alternatives are at least as effective as the specified OSHA 
requirements:

A. 29 CFR 1926.803(f)(1)

    The applicant has proposed to implement equally effective 
alternative measures to the requirement in 29 CFR

[[Page 8446]]

1926.803(f)(1) for compliance with OSHA's decompression tables. The HOM 
specifies the procedures and personnel qualifications for performing 
work safely during the compression and decompression phases of 
interventions. The HOM also specifies the decompression tables the 
applicant proposes to use (the 1992 French Decompression Tables). 
Depending on the maximum working pressure and exposure times during the 
interventions, the tables provide for decompression using air, pure 
oxygen, or a combination of air and oxygen. The decompression tables 
also include delays or stops for various time intervals at different 
pressure levels during the transition to atmospheric pressure (i.e., 
staged decompression). In all cases, a physician certified in 
hyperbaric medicine will manage the medical condition of CAWs during 
decompression. In addition, a trained and experienced man-lock 
attendant, experienced in recognizing decompression sickness or 
illnesses and injuries, will be present. Of key importance, a 
hyperbaric supervisor, trained in hyperbaric operations, procedures, 
and safety, will directly supervise all hyperbaric operations to ensure 
compliance with the procedures delineated in the project-specific HOM 
or by the attending physician.
    Prior to granting the six previous permanent variances to IHP JV, 
Traylor JV, Tully JV, Salini-Impregilo Joint Venture, Ballard, and 
Traylor TSJV, OSHA conducted a review of the scientific literature and 
concluded that the alternative decompression method (i.e., the 1992 
French Decompression Tables) Ballard proposed would be at least as safe 
as the decompression tables specified by OSHA when applied by trained 
medical personnel under the conditions imposed by the permanent 
variance.
    Some of the literature indicates that the alternative decompression 
method may be safer, concluding that decompression performed in 
accordance with these tables resulted in a lower occurrence of DCI than 
decompression conducted in accordance with the decompression tables 
specified by the standard. For example, H. L. Anderson studied the 
occurrence of DCI at maximum hyperbaric pressures ranging from 4 
p.s.i.g. to 43 p.s.i.g. during construction of the Great Belt Tunnel in 
Denmark (1992-1996).\6\ This project used the 1992 French Decompression 
Tables to decompress the workers during part of the construction. 
Anderson observed 6 DCI cases out of 7,220 decompression events and 
reported that switching to the 1992 French Decompression tables reduced 
the DCI incidence to 0.08% compared to a previous incidence rate of 
0.14%. The DCI incidence in the study by H. L. Anderson is 
substantially less than the DCI incidence reported for the 
decompression tables specified in Appendix A.
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    \6\ Anderson HL (2002). Decompression sickness during 
construction of the Great Belt tunnel, Denmark. Undersea and 
Hyperbaric Medicine, 29(3), pp. 172-188.
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    OSHA found no studies in which the DCI incidence reported for the 
1992 French Decompression Tables were higher than the DCI incidence 
reported for the OSHA decompression tables.\7\
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    \7\ Le P[eacute]chon JC, Barre P, Baud JP, Ollivier F (September 
1996). Compressed air work--French Tables 1992--operational results. 
JCLP Hyperbarie Paris, Centre Medical Subaquatique Interentreprise, 
Marseille: Communication a l'EUBS, pp. 1-5 (see Ex. OSHA-2012-0036-
0005).
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    OSHA's experience with the previous six variances, which all 
incorporated nearly identical decompression plans and did not result in 
safety issues, also provides evidence that the alternative procedure as 
a whole is at least as effective for this type of tunneling project as 
compliance with OSHA's decompression tables. The experience of State 
Plans \8\ that either granted variances (Nevada, Oregon and Washington) 
\9\ for hyperbaric exposures occurring during similar subaqueous 
tunnel-construction work, provide additional evidence of the 
effectiveness of this alternative procedure.
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    \8\ Under Section 18 of the OSH Act, Congress expressly provides 
that States and U.S. territories may adopt, with Federal approval, a 
plan for the development and enforcement of occupational safety and 
health standards. OSHA refers to such States and territories as 
``State Plan States'' Occupational safety and health standards 
developed by State Plan States must be at least as effective in 
providing safe and healthful employment and places of employment as 
the Federal standards (29 U.S.C. 667).
    \9\ These state variances are available in the docket for the 
2015 Traylor JV variance: Exs. OSHA-2012-0035-0006 (Nevada), OSHA-
2012-0035-0005 (Oregon), and OSHA-2012-0035-0004 (Washington).
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B. 29 CFR 1926.803(g)(1)(iii)

    The applicant developed, and proposed to implement, an equally 
effective alternative to 29 CFR 1926.803(g)(1)(iii), which requires the 
use of automatic controllers that continuously decrease pressure to 
achieve decompression in accordance with the tables specified by the 
standard. The applicant's alternative includes using the 1992 French 
Decompression Tables for guiding staged decompression to achieve lower 
occurrences of DCI, using a trained and competent attendant for 
implementing appropriate hyperbaric entry and exit procedures, and 
providing a competent hyperbaric supervisor and attending physician 
certified in hyperbaric medicine to oversee all hyperbaric operations.
    In reaching this conclusion, OSHA again notes the experience of 
previous nearly identical tunneling variances, the experiences of State 
Plan States, and a review of the literature and other information noted 
earlier.

C. 29 CFR 1926.803(g)(1)(xvii)

    The applicant developed, and proposed to implement, an effective 
alternative to the use of the special decompression chamber required by 
29 CFR 1926.803(g)(1)(xvii). The TBM's man-lock and working chamber 
appear to satisfy all of the conditions of the special decompression 
chamber, including that they provide sufficient space for the maximum 
crew of three CAWs to stand up and move around, and safely accommodate 
decompression times up to 360 minutes. Therefore, again noting OSHA's 
previous experience with nearly identical variances including the same 
alternative, OSHA preliminarily determined that the TBM's man-lock and 
working chamber function as effectively as the special decompression 
chamber required by the standard.
    Based on a review of available evidence, the experience of State 
Plans that either granted variances (Nevada, Oregon, and Washington) 
\10\ for hyperbaric exposures occurring during similar subaqueous 
tunnel-construction work, and the information provided in the 
applicant's variance application, OSHA is granting the permanent 
variance.
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    \10\ These state variances are available in the docket: Exs. 
OSHA-2012-0035-0006 (Nevada), OSHA-2012-0035-0007 (Oregon), and 
OSHA-2012-0035-0008 (Washington).
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    Pursuant to Section 6(d) of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 655(d)), and based on the record discussed above, 
the agency finds that when Ballard complies with the conditions of the 
following order, the working conditions of the workers are at least as 
safe and healthful as if it complied with the working conditions 
specified by paragraphs (f)(1), (g)(1)(iii), and (g)(1)(xvii) of 29 CFR 
1926.803. Therefore, Ballard must: (1) comply with the conditions 
listed below under ``Conditions Specified for the Permanent Variance'' 
for the period between the date of this notice and completion of the 
Bay Park Conveyance Tunnel Project; (2) comply fully with all other 
applicable provisions of 29 CFR

[[Page 8447]]

part 1926; and (3) provide a copy of this Federal Register notice to 
all employees affected by the conditions, including the affected 
employees of other employers, using the same means it used to inform 
these employees of the application for a permanent variance. 
Additionally, this order will remain in effect until one of the 
following conditions occurs: (1) completion of the Bay Park Conveyance 
Tunnel Project; or (2) OSHA modifies or revokes this final order in 
accordance with 29 CFR 1905.13.

VI. Description of the Specified Conditions for the Permanent Variance

    The conditions for the variance are set out in the Order at the end 
of this document. This section provides additional detail regarding the 
conditions in the Order.

Condition A: Scope

    The scope of the permanent variance limits coverage to the work 
situations specified. Clearly defining the scope of the permanent 
variance provides Ballard, Ballard's employees, potential future 
applicants, other stakeholders, the public, and OSHA with necessary 
information regarding the work situations in which the permanent 
variance applies. To the extent that Ballard exceeds the defined scope 
of this variance, it will be required to comply with OSHA's standards. 
This permanent variance applies only to the applicant, Ballard, and 
only to the remainder of construction work on the Bay Park Conveyance 
Tunnel Project.

Condition B: List of Abbreviations

    Condition B defines abbreviations used in the permanent variance. 
OSHA believes that defining these abbreviations serves to clarify and 
standardize their usage, thereby enhancing the applicant's and its 
employees' understanding of the conditions specified by the permanent 
variance.

Condition C: Definitions

    The condition defines a series of terms, mostly technical terms, 
used in the permanent variance to standardize and clarify their 
meaning. OSHA believes that defining these terms serves to enhance the 
applicant's and its employees' understanding of the conditions 
specified by the permanent variance.

Condition D: Safety and Health Practices

    This condition requires the applicant to develop and submit to OSHA 
an HOM specific to the Bay Park Conveyance Tunnel Project at least six 
months before using the TBM for tunneling operations. The applicant 
must also submit, at least six months before using the TBM, proof that 
the TBM's hyperbaric chambers have been designed, fabricated, 
inspected, tested, marked, and stamped in accordance with the 
requirements of ASME PVHO-1.2019 (or the most recent edition of Safety 
Standards for Pressure Vessels for Human Occupancy). These requirements 
ensure that the applicant develops hyperbaric safety and health 
procedures suitable for the project.
    The submission of the HOM enables OSHA to determine whether the 
safety and health instructions and measures it specifies are 
appropriate to the field conditions of the tunnel (including expected 
geological conditions), conform to the conditions of the variance, and 
adequately protect the safety and health of the CAWs. It also 
facilitates OSHA's ability to ensure that the applicant is complying 
with these instructions and measures. The requirement for proof of 
compliance with ASME PVHO-1.2019 is intended to ensure that the 
equipment is structurally sound and capable of performing to protect 
the safety of the employees exposed to hyperbaric pressure. The 
applicant has submitted the HOM and proof of compliance with ASME PVHO-
1.2019.
    Additionally, the condition includes a series of related hazard 
prevention and control requirements and methods (e.g., decompression 
tables, job hazard analyses (JHA), operations and inspections 
checklists, incident investigation, and recording and notification to 
OSHA of recordable hyperbaric injuries and illnesses) designed to 
ensure the continued effective functioning of the hyperbaric equipment 
and operating system.

Condition E: Communication

    This condition requires the applicant to develop and implement an 
effective system of information sharing and communication. Effective 
information sharing and communication are intended to ensure that 
affected workers receive updated information regarding any safety-
related hazards and incidents, and corrective actions taken, prior to 
the start of each shift. The condition also requires the applicant to 
ensure that reliable means of emergency communications are available 
and maintained for affected workers and support personnel during 
hyperbaric operations. Availability of such reliable means of 
communications enables affected workers and support personnel to 
respond quickly and effectively to hazardous conditions or emergencies 
that may develop during TBM operations.

Condition F: Worker Qualification and Training

    This condition requires the applicant to develop and implement an 
effective qualification and training program for affected workers. The 
condition specifies the factors that an affected worker must know to 
perform safely during hyperbaric operations, including how to enter, 
work in, and exit from hyperbaric conditions under both normal and 
emergency conditions. Having well-trained and qualified workers 
performing hyperbaric intervention work is intended to ensure that they 
recognize, and respond appropriately to, hyperbaric safety and health 
hazards. These qualification and training requirements enable affected 
workers to cope effectively with emergencies, as well as the discomfort 
and physiological effects of hyperbaric exposure, thereby preventing 
worker injury, illness, and fatalities.
    Paragraph (2)(e) of this condition requires the applicant to 
provide affected workers with information they can use to contact the 
appropriate healthcare professionals if the workers believe they are 
developing hyperbaric-related health effects. This requirement provides 
for early intervention and treatment of DCI and other health effects 
resulting from hyperbaric exposure, thereby reducing the potential 
severity of these effects.

Condition G: Inspections, Tests, and Accident Prevention

    Condition G requires the applicant to develop, implement, and 
operate a program of frequent and regular inspections of the TBM's 
hyperbaric equipment and support systems, and associated work areas. 
This condition helps to ensure the safe operation and physical 
integrity of the equipment and work areas necessary to conduct 
hyperbaric operations. The condition also enhances worker safety by 
reducing the risk of hyperbaric-related emergencies.
    Paragraph (3) of this condition requires the applicant to document 
tests, inspections, corrective actions, and repairs involving the TBM, 
and maintain these documents at the jobsite for the duration of the 
job. This requirement provides the applicant with information needed to 
schedule tests and inspections to ensure the continued safe operation 
of the equipment and systems, and to determine that the actions taken 
to correct defects in hyperbaric equipment and systems were

[[Page 8448]]

appropriate, prior to returning them to service.

Condition H: Compression and Decompression

    This condition requires the applicant to consult with the 
designated medical advisor regarding special compression or 
decompression procedures appropriate for any unacclimated CAW and then 
implement the procedures recommended by the medical advisor. This 
proposed provision ensures that the applicant consults with the medical 
advisor, and involves the medical advisor in the evaluation, 
development, and implementation of compression or decompression 
protocols appropriate for any CAW requiring acclimation to the 
hyperbaric conditions encountered during TBM operations. Accordingly, 
CAWs requiring acclimation have an opportunity to acclimate prior to 
exposure to these hyperbaric conditions. OSHA believes this condition 
will prevent or reduce adverse reactions among CAWs to the effects of 
compression or decompression associated with the intervention work they 
perform in the TBM.

Condition I: Recordkeeping

    Under OSHA's recordkeeping requirements in 29 CFR part 1904 
regarding Recording and Reporting Occupational Injuries and Illnesses, 
the employer must maintain a record of any recordable injury, illness, 
or fatality (as defined by 29 CFR part 1904) resulting from exposure of 
an employee to hyperbaric conditions, or any other work conditions, by 
completing the OSHA Form 301 Incident Report and OSHA Form 300 Log of 
Work-Related Injuries and Illnesses. The applicant did not seek a 
variance from this standard and therefore Ballard must comply fully 
with those requirements.
    Examples of important information to include on the OSHA Form 301 
Injury and Illness Incident Report (along with the corresponding 
questions on the form) are:
Q14
    <bullet> the task performed;
    <bullet> the composition of the gas mixture (e.g., air or oxygen);
    <bullet> an estimate of the CAW's workload;
    <bullet> the maximum working pressure;
    <bullet> temperature in the work and decompression environments;
    <bullet> unusual occurrences, if any, during the task or 
decompression
Q15
    <bullet> time of symptom onset;
    <bullet> duration between decompression and onset of symptoms
Q16
    <bullet> type and duration of symptoms;
    <bullet> a medical summary of the illness or injury
Q17
    <bullet> duration of the hyperbaric intervention;
    <bullet> possible contributing factors;
    <bullet> the number of prior interventions completed by the injured 
or ill CAW; and the pressure to which the CAW was exposed during those 
interventions.\11\
---------------------------------------------------------------------------

    \11\ See 29 CFR 1904 Recording and Reporting Occupational 
Injuries and Illnesses (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9631); recordkeeping 
forms and instructions https://www.osha.gov/recordkeeping/forms.
---------------------------------------------------------------------------

    Condition J below adds additional reporting responsibilities, 
beyond those already required by the OSHA standard. The applicant is 
required to maintain records of specific factors associated with each 
hyperbaric intervention. The information gathered and recorded under 
Condition J, in concert with the information provided under Condition I 
(using OSHA Form 301 Injury and Illness Incident Report to investigate 
and record hyperbaric recordable injuries as defined by 29 CFR 1904.4, 
1904.7, and 1904.8-.12), enables the applicant and OSHA to assess the 
effectiveness of the permanent variance in preventing DCI and other 
hyperbaric-related effects.

Condition J: Notifications

    Under the notifications condition, the applicant is required, 
within specified periods of time, to notify OSHA of: (1) any recordable 
injury, illness, in-patient hospitalization, amputation, loss of an 
eye, or fatality that occurs as a result of hyperbaric exposures during 
TBM operations; and in-patient hospitalization, amputation, loss of an 
eye or fatality that occurs during other operations must also be 
reported pursuant to 29 CFR 1910.39(a); (2) provide OSHA a copy of the 
hyperbaric exposures incident investigation report (using OSHA Form 301 
Injury and Illness Incident Report) of these events within 24 hours of 
the incident; (3) include on OSHA Form 301 Injury and Illness Incident 
Report information on the hyperbaric conditions associated with the 
recordable injury or illness, the root-cause determination, and 
preventive and corrective actions identified and implemented; (4) 
provide the certification that affected workers were informed of the 
incident and the results of the incident investigation; (5) notify 
OSHA's Office of Technical Programs and Coordination Activities (OTPCA) 
and the OSHA Area Office in Long Island, New York within 15 working 
days should the applicant need to revise the HOM to accommodate changes 
in its compressed-air operations that affect Ballard's ability to 
comply with the conditions of the permanent variance; and (6) provide 
OTPCA and the OSHA Area Office in Long Island, New York, at the end of 
the project, with a report evaluating the effectiveness of the 
decompression tables.
    It should be noted that the requirement for completing and 
submitting the hyperbaric exposure-related (recordable) incident 
investigation report (OSHA 301 Injury and Illness Incident Report) is 
more restrictive than the current recordkeeping requirement of 
completing OSHA Form 301 Injury and Illness Incident Report within 7 
calendar days of the incident (1904.29(b)(3)). This modified, more 
stringent incident investigation and reporting requirement is 
restricted to intervention-related hyperbaric (recordable) incidents 
only. Providing rapid notification to OSHA is essential because time is 
a critical element in OSHA's ability to determine the continued 
effectiveness of the variance conditions in preventing hyperbaric 
incidents, and the applicant's identification and implementation of 
appropriate corrective and preventive actions.
    Further, these notification requirements also enable the applicant, 
its employees, and OSHA to assess the effectiveness of the permanent 
variance in providing the requisite level of safety to the applicant's 
workers and based on this assessment, whether to revise or revoke the 
conditions of the permanent variance. Timely notification permits OSHA 
to take whatever action may be necessary and appropriate to prevent 
possible further injuries and illnesses. Providing notification to 
employees informs them of the precautions taken by the applicant to 
prevent similar incidents in the future.
    Additionally, this condition requires the applicant to notify OSHA 
if it ceases to do business, has a new address or location for the main 
office, or transfers the operations covered by the permanent variance 
to a successor company. In addition, the condition specifies that the 
transfer of the permanent variance to a successor company must be 
approved by OSHA. These requirements allow OSHA to communicate 
effectively with the applicant regarding the status of the permanent 
variance and expedite the agency's administration and enforcement of 
the permanent variance.

[[Page 8449]]

Stipulating that the applicant is required to have OSHA's approval to 
transfer a variance to a successor company provides assurance that the 
successor company has knowledge of, and will comply with, the 
conditions specified by permanent variance, thereby ensuring the safety 
of workers involved in performing the operations covered by the 
permanent variance.

VII. Order

    As of the effective date of this final order, OSHA is revoking the 
interim order granted to the employer on August 4, 2023 (88 FR 51862) 
and replacing it with a permanent variance order. Note that there are 
not any substantive changes in the conditions between the interim order 
and this final order.
    OSHA issues this final order authorizing Ballard to comply with the 
following conditions instead of complying with the requirements of 29 
CFR 1926.803 (f)(1), (g)(1)(iii), and (g)(1)(xvii). These conditions 
are:

A. Scope

    The permanent variance applies only when Ballard stops the tunnel-
boring work, pressurizes the working chamber, and the CAWs either enter 
the working chamber to perform an intervention (i.e., inspect, 
maintain, or repair the mechanical-excavation components), or exit the 
working chamber after performing interventions.
    The permanent variance applies only to work:
    1. That occurs in conjunction with construction of the Bay Park 
Conveyance Tunnel Project, a tunnel constructed using advanced shielded 
mechanical-excavation techniques and involving operation of an TBM;
    2. In the TBM's forward section (the working chamber) and 
associated hyperbaric chambers used to pressurize and decompress 
employees entering and exiting the working chamber; and
    3. Performed in compliance with all applicable provisions of 29 CFR 
part 1926 except for the requirements specified by 29 CFR 1926.803 
(f)(1), (g)(1)(iii), and (g)(1)(xvii).
    4. This order will remain in effect until one of the following 
conditions occurs: (1) completion of the Bay Park Conveyance Tunnel 
Project; or (2) OSHA modifies or revokes this final order in accordance 
with 29 CFR 1905.13.

B. List of Abbreviations

    Abbreviations used throughout this permanent variance includes the 
following:

1. CAW--Compressed-air worker
2. CFR--Code of Federal Regulations
3. DCI--Decompression Illness
4. DMT--Diver Medical Technician
5. TBM--Earth Pressure Balanced Tunnel Boring Machine
6. HOM--Hyperbaric Operations Manual
7. JHA--Job hazard analysis
8. OSHA--Occupational Safety and Health Administration
9. OTPCA--Office of Technical Programs and Coordination Activities

C. Definitions

    The following definitions apply to this permanent variance, 
Ballard's project-specific HOM, and all work carried out under the 
conditions of this permanent variance.
    1. Affected employee or worker--an employee or worker who is 
affected by the conditions of this permanent variance, or any one of 
his or her authorized representatives. The term ``employee'' has the 
meaning defined and used under the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 651 et seq.).
    2. Atmospheric pressure--the pressure of air at sea level, 
generally 14.7 pounds per square inch absolute (p.s.i.a.), 1 atmosphere 
absolute, or 0 p.s.i.g.
    3. Compressed-air worker--an individual who is specially trained 
and medically qualified to perform work in a pressurized environment 
while breathing air at pressures not exceeding 29 p.s.i.g.
    4. Competent person--an individual who is capable of identifying 
existing and predictable hazards in the surroundings or working 
conditions that are unsanitary, hazardous, or dangerous to employees, 
and who has authorization to take prompt corrective measures to 
eliminate them.\12\
---------------------------------------------------------------------------

    \12\ Adapted from 29 CFR 1926.32(f).
---------------------------------------------------------------------------

    5. Decompression illness--an illness (also called decompression 
sickness or ``the bends'') caused by gas bubbles appearing in body 
compartments due to a reduction in ambient pressure. Examples of 
symptoms of decompression illness include, but are not limited to: 
joint pain (also known as the ``bends'' for agonizing pain or the 
``niggles'' for slight pain); areas of bone destruction (termed 
dysbaric osteonecrosis); skin disorders (such as cutis marmorata, which 
causes a pink marbling of the skin, or in people with darker skin 
tones, the rash will appear as a marbled or lacy dark brown or purplish 
color); spinal cord and brain disorders (such as stroke, paralysis, 
paresthesia, and bladder dysfunction); cardiopulmonary disorders, such 
as shortness of breath; and arterial gas embolism (gas bubbles in the 
arteries that block blood flow).\13\
---------------------------------------------------------------------------

    \13\ See Appendix 10 of ``A Guide to the Work in Compressed-Air 
Regulations 1996,'' published by the United Kingdom Health and 
Safety Executive available from NIOSH at http://www.cdc.gov/niosh/docket/archive/pdfs/NIOSH-254/compReg1996.pdf.

    Note:  Health effects associated with hyperbaric intervention, 
but not considered symptoms of DCI, can include: barotrauma (direct 
damage to air-containing cavities in the body such as ears, sinuses, 
and lungs); nitrogen narcosis (reversible alteration in 
consciousness that may occur in hyperbaric environments and is 
caused by the anesthetic effect of certain gases at high pressure); 
and oxygen toxicity (a central nervous system condition resulting 
from the harmful effects of breathing molecular oxygen 
---------------------------------------------------------------------------
(O<INF>2</INF>) at elevated partial pressures).

    6. Diver Medical Technician--Member of the dive team who is 
experienced in first aid.
    7. Earth Pressure Balanced Tunnel Boring Machine--the machinery 
used to excavate a tunnel.
    8. Hot work--any activity performed in a hazardous location that 
may introduce an ignition source into a potentially flammable 
atmosphere.\14\
---------------------------------------------------------------------------

    \14\ Also see 29 CFR 1910.146(b).
---------------------------------------------------------------------------

    9. Hyperbaric--at a higher pressure than atmospheric pressure.
    10. Hyperbaric intervention--a term that describes the process of 
stopping the TBM and preparing and executing work under hyperbaric 
pressure in the working chamber for the purpose of inspecting, 
replacing, or repairing cutting tools and/or the cutterhead structure.
    11. Hyperbaric Operations Manual--a detailed, project-specific 
health and safety plan developed and implemented by Ballard for working 
in compressed air during the Bay Park Conveyance Tunnel Project.
    12. Job hazard analysis--an evaluation of tasks or operations to 
identify potential hazards and to determine the necessary controls.
    13. Man-lock--an enclosed space capable of pressurization, and used 
for compressing or decompressing any employee or material when either 
is passing into, or out of, a working chamber.
    14. Medical Advisor--medical professional experienced in the 
physical requirements of compressed air work and the treatment of 
decompression illness.
    15. Pressure--a force acting on a unit area. Usually expressed as 
pounds per square inch (p.s.i.).
    16. p.s.i--pounds per square inch, a common unit of measurement of 
pressure; a pressure given in p.s.i. corresponds to absolute pressure.

[[Page 8450]]

    17. p.s.i.a.--pounds per square inch absolute, or absolute 
pressure, is the sum of the atmospheric pressure and gauge pressure. At 
sea-level, atmospheric pressure is approximately 14.7 p.s.i.a. Adding 
14.7 to a pressure expressed in units of p.s.i.g. will yield the 
absolute pressure, expressed as p.s.i.a.
    18. p.s.i.g.--pounds per square inch gauge, a common unit of 
pressure; pressure expressed as p.s.i.g. corresponds to pressure 
relative to atmospheric pressure. At sea-level, atmospheric pressure is 
approximately 14.7 p.s.i.a Subtracting 14.7 from a pressure expressed 
in units of p.s.i.a. yields the gauge pressure, expressed as p.s.i.g. 
At sea level the gauge pressure is 0 psig.
    19. Qualified person--an individual who, by possession of a 
recognized degree, certificate, or professional standing, or who, by 
extensive knowledge, training, and experience, successfully 
demonstrates an ability to solve or resolve problems relating to the 
subject matter, the work, or the project.\15\
---------------------------------------------------------------------------

    \15\ Adapted from 29 CFR 1926.32(m).
---------------------------------------------------------------------------

    20. Working chamber--an enclosed space in the TBM in which CAWs 
perform interventions, and which is accessible only through a man-lock.

D. Safety and Health Practices

    1. Ballard must implement the project-specific HOM submitted to 
OSHA as part of the application (see OSHA-2023-0010-0005). The HOM 
provides the minimum requirements regarding expected safety and health 
hazards (including anticipated geological conditions) and hyperbaric 
exposures during the tunnel-construction project.
    2. Ballard must demonstrate that the TBM on the project is 
designed, fabricated, inspected, tested, marked, and stamped in 
accordance with the requirements of ASME PVHO-1.2019 (or most recent 
edition of Safety Standards for Pressure Vessels for Human Occupancy) 
for the TBM's hyperbaric chambers.
    3. Ballard must implement the safety and health instructions 
included in the manufacturer's operations manuals for the TBM, and the 
safety and health instructions provided by the manufacturer for the 
operation of decompression equipment.
    4. Ballard must ensure that there are no exposures to pressures 
greater than 29 p.s.i.g.
    5. Ballard must ensure that air or oxygen is the only breathing gas 
in the working chamber.
    6. Ballard must follow the 1992 French Decompression Tables for air 
or oxygen decompression as specified in the HOM; specifically, the 
extracted portions of the 1992 French Decompression tables titled, 
``French Regulation Air Standard Tables.''
    7. Ballard must equip man-locks used by employees with an air or 
oxygen delivery system, as specified by the HOM for the project. 
Ballard is prohibited from storing in the tunnel any oxygen or other 
compressed gases used in conjunction with hyperbaric work.
    8. Workers performing hot work under hyperbaric conditions must use 
flame-retardant personal protective equipment and clothing.
    9. In hyperbaric work areas, Ballard must maintain an adequate 
fire-suppression system approved for hyperbaric work areas.
    10. Ballard must develop and implement one or more Job Hazard 
Analysis (JHA) for work in the hyperbaric work areas, and review, 
periodically and as necessary (e.g., after making changes to a planned 
intervention that affects its operation), the contents of the JHAs with 
affected employees. The JHAs must include all the job functions that 
the risk assessment \16\ indicates are essential to prevent injury or 
illness.
---------------------------------------------------------------------------

    \16\ Also see 29 CFR 1910.146(b).
---------------------------------------------------------------------------

    11. Ballard must develop a set of checklists to guide compressed-
air work and ensure that employees follow the procedures required by 
the permanent variance (including all procedures required by the HOM 
approved by OSHA for the project, which this permanent variance 
incorporates by reference). The checklists must include all steps and 
equipment functions that the risk assessment indicates are essential to 
prevent injury or illness during compressed-air work.
    12. Ballard must ensure that the safety and health provisions of 
this project-specific HOM adequately protect the workers of all 
contractors and subcontractors involved in hyperbaric operations for 
the project to which the HOM applies.

E. Communication

    1. Prior to beginning a shift, Ballard must implement a system that 
informs workers exposed to hyperbaric conditions of any hazardous 
occurrences or conditions that might affect their safety, including 
hyperbaric incidents, gas releases, equipment failures, earth or 
rockslides, cave-ins, flooding, fires, or explosions.
    2. Ballard must provide a power-assisted means of communication 
among affected workers and support personnel in hyperbaric conditions 
where unassisted voice communication is inadequate.
    (a) Ballard must use an independent power supply for powered 
communication systems, and these systems have to operate such that use 
or disruption of any one phone or signal location will not disrupt the 
operation of the system from any other location.
    (b) Ballard must test communication systems at the start of each 
shift and as necessary thereafter to ensure proper operation.

F. Worker Qualifications and Training

    Ballard must:
    1. Ensure that each affected worker receives effective training on 
how to safely enter, work in, exit from, and undertake emergency 
evacuation or rescue from, hyperbaric conditions, and document this 
training.
    2. Provide effective instruction on hyperbaric conditions, before 
beginning hyperbaric operations, to each worker who performs work, or 
controls the exposure of others, and document this instruction. The 
instruction must include:
    (a) The physics and physiology of hyperbaric work;
    (b) Recognition of pressure-related injuries;
    (c) Information on the causes and recognition of the signs and 
symptoms associated with decompression illness, and other hyperbaric 
intervention-related health effects (e.g., barotrauma, nitrogen 
narcosis, and oxygen toxicity);
    (d) How to avoid discomfort during compression and decompression;
    (e) Information the workers can use to contact the appropriate 
healthcare professionals should the workers have concerns that they may 
be experiencing adverse health effects from hyperbaric exposure; and
    (f) Procedures and requirements applicable to the employee in the 
project-specific HOM.
    3. Repeat the instruction specified in paragraph (G) of this 
condition periodically and as necessary (e.g., after making changes to 
its hyperbaric operations).
    4. When conducting training for its hyperbaric workers, make this 
training available to OSHA personnel and notify the OTPCA at OSHA's 
national office and OSHA's Long Island, New York Area Office before the 
training takes place.

[[Page 8451]]

G. Inspections, Tests, and Accident Prevention

    1. Ballard must initiate and maintain a program of frequent and 
regular inspections of the TBM's hyperbaric equipment and support 
systems (such as temperature control, illumination, ventilation, and 
fire-prevention and fire-suppression systems), and hyperbaric work 
areas, as required under 29 CFR 1926.20(b)(2), including:
    (a) Developing a set of checklists to be used by a competent person 
in conducting weekly inspections of hyperbaric equipment and work 
areas; and
    (b) Ensuring that a competent person conducts daily visual checks 
and weekly inspections of the TBM.
    2. Removing any equipment that is found to constitute a safety 
hazard until Ballard corrects the hazardous condition and has the 
correction approved by a qualified person.
    3. Ballard must maintain records of all tests and inspections of 
the TBM, as well as associated corrective actions and repairs, at the 
job site for the duration of the tunneling project and for 90 days 
after the final project report is submitted to OSHA.

H. Compression and Decompression

    Ballard must consult with its attending physician concerning the 
need for special compression or decompression exposures appropriate for 
CAWs not acclimated to hyperbaric exposure.

I. Recordkeeping

    In addition to completing OSHA Form 301 Injury and Illness Incident 
Report and OSHA Form 300 Log of Work-Related Injuries and Illnesses, 
Ballard must maintain records of:
    1. The date, times (e.g., time compression started, time spent 
compressing, time performing intervention, time spent decompressing), 
and pressure for each hyperbaric intervention.
    2. The names of all supervisors and DMTs involved for each 
intervention.
    3. The name of each individual worker exposed to hyperbaric 
pressure and the decompression protocols and results for each worker.
    4. The total number of interventions and the amount of hyperbaric 
work time at each pressure.
    5. The results of the post-intervention physical assessment of each 
CAW for signs and symptoms of decompression illness, barotrauma, 
nitrogen narcosis, oxygen toxicity or other health effects associated 
with work in compressed air for each hyperbaric intervention.

J. Notifications

    1. To assist OSHA in administering the conditions specified herein, 
Ballard must:
    (a) Notify the OTPCA and the OSHA Area Office in Long Island, New 
York at www.osha.gov/contactus/byoffice of any recordable injury, 
illness, or fatality (by submitting the completed OSHA Form 301 Injury 
and Illness Incident Report) \17\ resulting from exposure of an 
employee to hyperbaric conditions, including those that do not require 
recompression treatment (e.g., nitrogen narcosis, oxygen toxicity, 
barotrauma), but still meet the recordable injury or illness criteria 
of 29 CFR 1904. The notification must be made within 8 hours of the 
incident or 8 hours after becoming aware of a recordable injury, 
illness, or fatality; a copy of the incident investigation (OSHA Form 
301 Injuries and Illness Incident Report) must be submitted to OSHA 
within 24 hours of the incident or 24 hours after becoming aware of a 
recordable injury, illness, or fatality. In addition to the information 
required by OSHA Form 301 Injuries and Illness Incident Report, the 
incident-investigation report must include a root-cause determination, 
and the preventive and corrective actions identified and implemented.
---------------------------------------------------------------------------

    \17\ See 29 CFR 1904 (Recording and Reporting Occupational 
Injuries and Illnesses) (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9631); recordkeeping 
forms and instructions https://www.osha.gov/recordkeeping/forms.
---------------------------------------------------------------------------

    (b) Provide certification to OTPCA and the OSHA Area Office in Long 
Island, New York within 15 working days of the incident that Ballard 
informed affected workers of the incident and the results of the 
incident investigation (including the root-cause determination and 
preventive and corrective actions identified and implemented).
    (c) Notify the OTPCA and the OSHA Area Office in Long Island, New 
York within 15 working days and in writing, of any change in the 
compressed-air operations that affects Ballard's ability to comply with 
the conditions specified herein.
    (d) Upon completion of the Bay Park Conveyance Tunnel Project, 
evaluate the effectiveness of the decompression tables used throughout 
the project, and provide a written report of this evaluation to the 
OTPCA and the OSHA Area Office in Long Island, New York.

    Note:  The evaluation report must contain summaries of: (1) The 
number, dates, durations, and pressures of the hyperbaric 
interventions completed; (2) decompression protocols implemented 
(including composition of gas mixtures (air and/or oxygen), and the 
results achieved; (3) the total number of interventions and the 
number of hyperbaric incidents (decompression illnesses and/or 
health effects associated with hyperbaric interventions as recorded 
on OSHA Form 301 Injuries and Illness Incident Report and OSHA Form 
300 Log of Work-Related Injuries and Illnesses, and relevant medical 
diagnoses, and treating physicians' opinions); and (4) root causes 
of any hyperbaric incidents, and preventive and corrective actions 
identified and implemented.

    (e) To assist OSHA in administering the conditions specified 
herein, inform the OTPCA and the OSHA Area Office in Long Island, New 
York as soon as possible, but no later than seven (7) days, after it 
has knowledge that it will:
    (i) Cease doing business;
    (ii) Change the location and address of the main office for 
managing the tunneling operations specified herein; or
    (iii) Transfer the operations specified herein to a successor 
company.
    (f) Notify all affected employees of this permanent variance by the 
same means required to inform them of its application for a permanent 
variance.
    2. This permanent variance cannot be transferred to a successor 
company without OSHA approval.

VIII. Authority and Signature

    James S. Frederick, Deputy Assistant Secretary of Labor for 
Occupational Safety and Health, 200 Constitution Avenue NW, Washington, 
DC 20210, authorized the preparation of this notice. Accordingly, the 
agency is issuing this notice pursuant to 29 U.S.C. 655(d), Secretary 
of Labor's Order No. 8-2020 (85 FR 58393, Sept. 18, 2020), and 29 CFR 
1905.11.

    Signed at Washington, DC, on January 31, 2024.
James S. Frederick,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2024-02437 Filed 2-6-24; 8:45 am]
BILLING CODE 4510-26-P


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