“It doesn't provide a lot of protection because it's short on specifics,” adds David E. Jones, who leads the OSHA Practice Group at the Ogletree Deakins law firm in Atlanta. “I expect that the new standard will impose a great deal more compliance obligations upon employers, and there could be a lot of cost involved.” He says that although the standard is designed to apply largely to the private construction industry, public works departments would be directly affected in a variety of ways, and the penalties for violations of OSHA standards can range up to $70,000/incident.

OSHA representatives say the proposed change is worth it, explaining that the new standard would prevent six fatalities and 880 injuries annually.


The general industry standard requires the host employer (usually the general contractor or the government agency overseeing public work) to coordinate with all subcontractors involved. The proposed change would require that the municipality or county is notified by all private contractors of any construction to ensure the safety of public employees working nearby. For example, if a gas line is disrupted by utility crews, the safety of public works employees working several blocks away might be in jeopardy. As a result, this proposed requirement would require all contractors working in the public right of way to share plans with the host municipality or county.

“You will see another level of communication, and that isn't a bad thing,” says Diane Matthew-Brown, health and safety specialist with the American Federation of State, County, and Municipal Employees. “It would help the city or county know exactly what each contractor is doing.”

Lowell Patton, the public works director for the City of Fernley, Nev., says that he plans to discuss the proposed change with his staff and city contractors. “If a contractor is performing hazard analyses … on the type of infrastructure contemplated in the rule, and is sharing those analyses with city inspectors (and the inspector is following the recommendations from the analyses), then the spirit of the rule will be met,” he explains.


“Dealing with the requirements that public works directors should set on contractors when they write bids is probably where this is going to most affect them,” Brown says of the proposed record-keeping requirement. “Public works departments might as well come up with some kind of permit system, or if they already have one, they should be asking contractors to use it. That way they're getting all the proper documentation.”

So Brown advises public works departments to begin including some of the proposed requirements (such as a written confined space program, proof of record-keeping protocol, and inventory of appropriate equipment such as monitors for atmospheric hazards and rescue equipment) into their bid process. “There are some good things in this proposed standard that they could put in their bids,” she says.

Patton does acknowledge that the proposed requirements would affect his budget. “I don't anticipate that this rule will require additional certifications,” he adds. “It may, however, slightly increase the cost of a project since its compliance requires added analysis and record-keeping.”

OSHA estimates that the proposed change would increase the cost of construction projects by about .03% on average. Those costs likely would be passed on to consumers.

The federal agency estimates that the total annual cost of compliance would be about $77 million. The total compliance costs are estimated at $5.6 million for evaluation, classification, and notification of confined spaces and $6.1 million to issue entry permits, verify the safety of spaces, and review procedures.