CONCISE EXPLANATORY STATEMENT Chapter 296-809 WAC Safety Standards For .

CONCISE EXPLANATORY STATEMENT Chapter 296-809 WAC Safety Standards for Confined Spaces Public Hearing: October 30, 2017 Adoption: January 2, 2018 Effective Date: February 5, 2018 Table of Contents 1 I. Purpose of Rulemaking . [page 2] A. Background B. Summary of the Rulemaking Activities II. Changes to the Rules . [page 2] III. Summary of Comments Received and Department Response . [page 4]

I. Purpose of Rulemaking This rulemaking is in response to the Occupational Safety and Health Administration (OSHA’s) final rule for Confined Spaces in construction (29 CFR 1926) published in the Federal Register on May 4, 2015 becoming effective on August 4, 2015. The department is required to update their rules to be at least as effective as OSHA. A. Background The Department of Labor and Industries (L&I) has had a Confined Spaces rule (chapter 296-809 WAC) that applied to both General Industry and Construction as one rule for several years. OSHA had a confined space rule for general industry but not construction until August 2015. L&I updated their confined spaces rule as necessary based on OSHA’s updates. Any changes made by OSHA to the construction rule were updated in the departments rule for both general industry and construction. Since the basic requirements for confined spaces are the same regardless of the industry L&I believed it was better to leave the rule intact as one rule and to apply the new requirements to general industry as well as construction to eliminate confusion. B. Summary of the rulemaking activities L&I held four stakeholder meetings in late 2016 and early 2017 to gather input on the proposed changes. In addition drafts of the proposal were sent out to a stakeholder list that was generated from sending notices to the listserv for standards and construction. II. Changes to the Rules (Proposed rule versus rule adopted) WAC 296-809-099 Definitions. Replaced reference to Appendix G – Sewer System Information to the correct Appendix J – Alternative Methods Documentation in definition of Alternative Methods. Also clarified that Appendix J could be found by going to the labor and industries web site by using the provided link to the Confined Space rule. Clarified that Appendix A – Frequently Asked Questions could be found by going to the labor and industries web site by using the provided link to the Confined Space rule in the definition of Confined Space. Replaced the word OSHA with DOSH in the note for the definition of Entry Employer. Added a footnote number 1 in the text that was inadvertently left out in the definition of Hazardous Atmosphere. 2

Replaced (5) with the correct symbol (%) in the definition of Hazardous Atmosphere. Clarified that Appendix B – Examples of Permit-Required confined Space Hazards could be found by going to the labor and industries web site by using the provided link to the Confined space rule in the definition of Permit-Required Confined space. WAC 296-809-100 Scope Clarified that Appendix C – Rules in Other Chapters that Cover Confined Spaces could be found by going to the labor and industries web site by using the provided link to the Confined Space rule. WAC 296-809-20002 Identify permit-required confined spaces Clarified that Appendix A – Frequently Asked Questions and Appendix B- Examples of Permit-Required Confined Space Hazards could be found by going to the labor and industries web site by using the provided link to the Confined Space rule. WAC 296-809-20004 Inform employees and control entry to permit-required confined spaces. Added and corrected footnotes. WAC 296-809-30002 Develop a written permit-required confined space program. Replaced incorrect reference to Appendix I - Atmospheric Testing Procedures to the correct Appendix J – Alternative Methods Documentation. Also clarified that Appendix J – Alternative Methods Documentation could be found by going to the labor and industries web site by using the provided link to the Confined Space rule. WAC 296-809-50014 Make sure you have adequate rescue and emergency services available Clarified that Appendix H – Evaluating Rescue Teams or Services could be found by going to the labor and industries web site by using the provided link to the Confined Space rule. WAC 296-809-50018 Make sure the entrants know the hazardous conditions and their duties. Added the word “ensure” to clarify the entry supervisors’ role. WAC 296-809-60002 Make sure the following conditions are met if using alternative methods. Added footnote number 2 in the text of the rule to reference the correct note. Added footnote number 3 in the text of the rule to reference the correct note. Added a sentence #2 in the note to provide additional clarification. Changed #2 in the note to #3 to accommodate the new sentence. Added a reference to Appendix J – Alternative Methods Documentation Form. Also clarified that Appendix J – Alternative Methods Documentation could be found by going to the labor and industries web site by using the provided link to the Confined Space rule. 3

III. Summary of Comments Received and Department Response Comments WAC 296-809-200 Scope Almost every crawlspace or attic that would be entered by a public or private inspector meet the three qualifications as listed in the rules as a “Confined Space” which complicates the ability for a single independent inspector to properly perform an inspection of a crawlspace or attic. There are obvious hazards in the crawlspace and attic by their very nature of construction where they meet the three criteria for the definition of a confined space. If I am reading the criteria established in the rules this would then make all entry to crawlspaces and attics a permit required confined space that would require additional paperwork, forms and in some cases a second person to attend the entry of the spaces. There is no clarification or exemption established on the ability to enter a crawlspace or attic to perform an inspection without meeting the criteria of these rules for a permit required confined space. This leaves the person entering the spaces and their employer subject to interpretation of an 4 Department Response Thank you for your comments. OSHA does not have an exception or an exemption for attics, crawlspaces or basements in residential housing. Allowing this exception for attics, crawlspaces, or basements that meet the definition of confined space would cause the Department to be not as effective as OSHA. DOSH believes that this exception is not necessary because the identification of confined space and permit required confined space has not changed. The following excerpts from OSHA’s responses to questions, FAQ’s and letters of interpretation regarding attics, crawlspaces or basements are as follows: In an OSHA interpretation regarding attics as confined spaces OSHA stated that “If an attic space in your building fits the definition of a confined space, then attics are confined spaces. However, attic spaces that are determined to be confined spaces should generally fall into the category of non-permit confined spaces because they have either natural or mechanical ventilation which would prevent accumulation of hazardous atmosphere and because other hazards would not normally be present. “ Spaces in a residential home may be considered confined spaces or permit-required confined spaces during the construction or remodeling process. However, the vast majority of the standard’s requirements only apply to permit-required confined spaces, and attics, basements, and crawl spaces in a residential home — three common spaces – will not typically trigger these requirements. In many instances, an attic will not be considered a confined space because there is not limited or restricted means for entry and exit. For example, an attic that can be accessed via pull down stairs that resemble the structure of a stationary stairway and do not require an employee to ascend /descend hand-over-hand would not be considered a confined space if there are no impediments to egress. Attics that are determined to be confined spaces would generally not be permitrequired confined spaces because they typically do not contain the types of hazards or

Labor and Industries enforcement person. I would request that clarification be made to allow for an exception or exemption to the permit requirements for residential (type R buildings as defined by the International Residential Code as adopted by the State of Washington) crawlspaces and attics to allow for the current inspection processes to continue. The exceptions are exemptions could contain certain criteria that would still require a permit. The issue that is still outstanding if the above requested exemption is allowed is how this would apply to persons doing application of pest control chemicals and if this would then be regulated as a permit required confined space. potential hazards that make a confined space a permit-required confined space (those that could impair an entrant’s ability to exist the space without assistance). However, extreme heat in an attic can be considered a serious physical hazard such that the attic could be considered permit-required confined space. OSHA has not quantified how hot it must be to trigger the permit-required confined spaces requirements. However, heat that is extreme enough to cause heat exhaustion (e.g., dizziness, headaches, severe sweating, and cramps) may impede an entrant’s ability to exit the attic without assistance and would make a confined space permit-required. Additionally OSHA has published an “OSHA Fact Sheet” titled “Confined spaces in Residential Construction” as part of their outreach to the Construction industry after their Confined Spaces in Construction rule was published. OSHA describes this document as follows: “OSHA has developed a standard for Confined Spaces in Construction (29 CFR 1926 Subpart AA) that applies to spaces such as attics, basements, and crawl spaces. This Fact Sheet, developed after consultation with the National Association of Home Builders (NAHB), and a detailed Frequently Asked Questions (FAQs) document, clarify some of the standard’s provisions and their application to residential construction work.” See link: https://www.osha.gov/Publications/OSHA3914.pdf https://www.osha.gov/pls/oshaweb/owadisp.show document?p table INTERPRETATIONS& p id 21990 https://www.osha.gov/confinedspaces/faq.html DOSH will be publish their own Frequently Asked Questions document incorporating these issues regarding attics, basements and crawl spaces. Although the definition of confined space has not significantly changed, the Washington State Department of Labor and Industry’s (L&I) emphasis in the last several years on enforcement and issuing citations has changed. Participants at the October 30th public meeting in Olympia were 5 Thank you for your comments. OSHA does not have an exception or an exemption for attics, crawlspaces or basements in residential housing. Allowing this exception for attics, crawlspaces, or basements that meet the definition of confined space would cause the Department to be not as effective as OSHA. DOSH believes that this exception is not necessary because the identification of confined space and permit required confined space has not changed. The following excerpts from OSHA’s responses to questions, FAQ’s and letters of interpretation regarding attics, crawlspaces or basements are as follows: