The New MSHA Hazard Alert And Accompanying Statements And Enforcement Are Poised To Create A Great Deal Of Confusion.
by Avi Meyerstein
Just a few weeks ago, MSHA issued a new “Confined Space Entry Hazard Alert.” Unfortunately, the new alert and accompanying MSHA statements and enforcement are poised to create a great deal of confusion, rather than clarity, about how mine operators should handle confined space entry.
The Hazard Alert, issued on Nov. 10, 2015, appears to present at least three significant challenges. First, it’s not clear what new requirements, if any, it actually presents; second, it is vague and confusing in its recommendations; and third, in all this confusion, it also appears to contradict long-time OSHA regulations and industry consensus standards, making anyone who thought they knew something about confined space entry ill-prepared for MSHA compliance.
Does It Require Anything New?
The Hazard Alert’s first stumbling block is that it is entirely unclear what effect MSHA expects it to have. At first glance, it appears to have MSHA’s official imprimatur.
It states that it was developed as part of the MSHA “Alliance Program,” MSHA published it on its website, and MSHA officials promoted the document at the Southeast Mine Safety and Health Conference in November. Moreover, MSHA officials in at least one district have repeated the confusing messages of the Hazard Alert in enforcement actions.
But, at the same time, the Hazard Alert also disclaims official authority. On its face, the document states that it “does not necessarily reflect the official views of MSHA.” While it does cite and reference some MSHA standards, it also primarily describes “best practices.”
It is clear that mine operators already must comply with the standards cited in the Hazard Alert, but what about MSHA’s apparent attempt to expand the meaning and application of those standards? As discussed below, does it signal that MSHA will consider all bins, hoppers, silos, tanks, and surge piles to be confined spaces?
Does it suggest that its regulations of those spaces under 56/57.16002 covers situations where no material hazard exists? Will MSHA seek to re-write that regulation to cover atmospheric hazards? Is it essentially requiring lifelines and attendants every time someone enters one of these spaces? What about the Hazard Alert’s “best practices?”
The Hazard Alert does not spell out where MSHA thinks the line is between recommendations and requirements, and this will leave mine operators uncertain about what effect the policy document has.
What Does It Mean, Anyway?
The lingering question of whether the Hazard Alert requires anything new is particularly concerning because the rest of the alert is vague and may even be confusing. It’s not clear which hazards most concern the writers of the alert, which, on the one hand, talks about atmospheric hazards but, on the other hand, focuses on bins, tanks, and other areas that MSHA regulates primarily to prevent entrapment and material-related hazards.
The alert begins with the general premise that “[u]nsafe work in confined spaces has led to miner deaths and injuries in the metal and nonmetal mining industry.” It goes on to focus most of its discussion on hazards relating to entering a confined space with an atmospheric hazard, such as low oxygen content or toxic air contaminants. But, at the same time, the Hazard Alert seems to focus entirely on “entering bins, hoppers, silos, tanks, and surge piles” and the “MSHA standards related to” these spaces. By their own terms, the standards at 56/57.16002 are not about atmospheric conditions. Rather, they focus explicitly on hazards of “loose unconsolidated material,” particularly “entrapment by the caving or sliding of materials.”
Of course, there can be both material hazards and hazardous atmospheric conditions in confined spaces. Certainly, there is nothing wrong with alerting miners and mine operators to all of these possible conditions.
But, the Hazard Alert appears to mush them all together. Does this mean that, in the absence of an actual MSHA confined space entry standard, MSHA simply intends to cobble together an assortment of regulations meant for other purposes and apply them to such spaces? If MSHA finds a bin or tank with a hazardous atmosphere, will it cite the operator for violating the standard that was designed to protect against sliding material?
This leads to the most significant challenge of the new Hazard Alert. In its ambiguity, it appears to conflict with decades of OSHA regulations and industry consensus standards on how to handle confined space entry.
Neither the Hazard Alert nor MSHA regulations define the term “confined space.” Indeed, the Alert’s apparent focus on “bins, hoppers, silos, tanks, and surge piles” may be a hint that MSHA believes all of these spaces are confined spaces. The Alert does not distinguish between such spaces that contain hazards and those that do not. The six MSHA regulations listed by MSHA in the Alert do not address confined spaces specifically though MSHA says they are “related to hazards of entering bins, hoppers, silos, tanks, and surge piles.”
Further blurring the lines, the Hazard Alert then generally describes “best practices” for confined space entry, without making a distinction based on the type of space, type of entry, or presence of hazards. It states, “A best practice is to conduct a hazard assessment and implement a permitting system as part of a safe entry standard operating procedure (SOP).”
The Hazard Alert thus recommends generically that operators should identify which spaces at the mine are confined spaces, post signs prohibiting entry without permits, establish a written plan requiring permits to work and enter, establish communication protocols and emergency plans, train miners accordingly, identify authorized entrants, isolate the space through lock-out/tag-out, conduct pre-entry atmospheric testing, continuously monitor the atmosphere during entry, and use an attendant in contact during entry.
If this guidance sounds familiar, it’s because it is similar – though a gross generalization of – many of the key elements of a “permit-required confined space entry” program under OSHA regulations and long-time industry standards, such as ANSI/ASSE Z117.1-2009.
But, with this ambiguous Hazard Alert, MSHA makes none of the precise definitions or distinctions that OSHA or ANSI do. Without saying so clearly, it appears to be telling mine operators that they should treat all bins, hoppers, silos, tanks, and surge piles as confined spaces; that they should treat all confined spaces as hazardous; and therefore, that they should treat all such spaces as permit-required confined spaces. The alert may be saying all of this, yet it does not even define “confined spaces.” In some parts, it claims not even to be an official statement by MSHA.
Under OSHA regulations, the type of space and type of hazard make an important difference. A confined space is one that is large enough for an employee to “bodily enter and perform assigned work” but has “limited or restricted means for entry or exit” and “is not designed for continuous occupancy.” 29 C.F.R. § 1910.146. Such spaces that do not contain hazards capable of causing death or serious injury are “non-permit confined spaces.”
In so doing, OSHA’s regulation matches the protection required to the hazard that may be present. Where there are potential hazards, OSHA rules require an elaborate and exacting process, including permits, lifelines, attendants, emergency response equipment, forced ventilation, monitoring, training and more.
Companies can invest in such extensive steps because they are able to apply these resources selectively, where real hazards may exist. Likewise, workers willingly follow these procedures because they know they are only asked to do so where necessary and appropriate for their safety.
What happens when companies try to follow MSHA’s guidance and identify confined spaces but cannot find any definition to apply? Even applying OSHA’s standards does not help because of the ways in which the MSHA Hazard Alert blurs important lines. What happens to the complexity of training when miners must study ambiguous MSHA guidance alongside conflicting OSHA procedures?
Perhaps most importantly, what happens when workers begin to feel that they are being told to jump through time-consuming hoops for no reason, like setting up lifelines, attendants, forced ventilation, and monitoring to enter a space that has no atmospheric or other hazards? Implementing these protections is important. Keeping people vigilant about doing so requires that they know that it is truly a matter of safety.
Confined space entry is an important topic and safety issue. MSHA deserves credit for its desire to raise awareness about the potential hazards. But, unfortunately, because of its confusing approach, the Hazard Alert may not achieve MSHA’s or industry’s safety goals.