Two recent adjudicated OSHA court cases, involving worker fatalities in sanitary sewers, have confirmed OSHA's intentions while rebuffing some employers' views. Each case (one a federal case, while the other was a state plan) had very similar circumstances:
Two workers died inside each sewer
Both locations used excavations (trenches)
The reason for the work was to re-line the existing sewers (albeit using two different methods of re-lining)
While atmospheric monitoring had been performed in days prior to the fatal entries, neither site monitored prior to worker entry the days the workers died
None of the four workers wore full-body harnesses with retrieval lines attached
Neither company sending workers into their respective confined spaces used an entry permit
These employers stated multiple reasons for complying exclusively with the construction standard. They maintained that:
the work involved construction equipment to dig the trenches;
their municipal clients specifically required them to comply with OSHA's trenching regulations under the Construction Standard (CFR 1926.651) and;
that their purpose was to "improve, alter, and repair" the sewer system. Therefore, the employers felt that the construction standard (including trenching and training requirements for construction confined spaces under CFR 1926.61) was more appropriate, even though it is less stringent than the General Industry Confined Space Standard (CFR 1910.146), which requires a permit, attendants, retrieval equipment, a rescue service, etc.
OSHA maintained that excavations, as well as a wide variety of other work sites, can and should be governed by more than one regulation, while both companies separately attempted to make the case that complying with multiple regulations is too onerous a requirement. OSHA's experts in the two separate cases testified that the work being performed at the time of the fatalities was maintenance work, which falls under the general industry standard. (In one of the cases, OSHA's Department of Labor's solicitors even hedged their bet by filing against the employer under BOTH the general industry standard as well as the construction standard, in case the administrative judge dismissed the general industry argument.) In both cases, administrative judges had to decide if the work was indeed repair work, as maintained by the two employers, or whether the re-lining was indeed only keeping the system from degrading, which would be considered maintenance and thus fall under the general industry regulation.
Additionally, while not related to the decisions ultimately reached in these two cases, will the proposed new construction confined space regulation address sewers? If so, will it clearly indicate that sewer relining and other work be considered permit required? The answer may surprise you.
