CSE: contractors are always responsible

So, you want to get serious about safety where Confined Space Entry is concerned? Get out your wallet to purchase the following additional items (last month's column included a four-gas tester at $1,262): Tripod with manual-crank hoist rated for emergency extraction for CSE. Cost = $2,176.50 A ventilator with a long snorkel hose that can reach all areas within the pit. Cost = $689.50 Lifeline with

So, you want to get serious about safety where Confined Space Entry is concerned? Get out your wallet to purchase the following additional items (last month's column included a four-gas tester at $1,262):

  • Tripod with manual-crank hoist rated for emergency extraction for CSE. Cost = $2,176.50

  • A ventilator with a long snorkel hose that can reach all areas within the pit. Cost = $689.50

  • Lifeline with D-ring and four- or five-point safety harness. Cost = $298.

  • A sump pump and flex hose kit. Cost = $97.

  • A 2,000-watt 12-volt/120-volt inverter to run blower and/or sump pump. Cost = $175.

  • Water-proof thigh-high boots. Cost = $23.

  • Four traffic safety cones. Cost = $30.

  • Two vests with reflective safety stripes. Cost = $25.

  • Two hard hats. Cost = $23.

Toss in a few extras: pump-up hand-held tank-sprayer with clean water to clean muck off of the backflow preventer(s) potable-water test-ports, carabineers, gloves, wipes, hand sanitizer and safety glasses. Your total investment will be roughly $5,000. And that doesn't include the high-pressure hose, PSID certified test-gauge and brass test-port adaptors needed for testing any back-flow preventer.

While that's a pretty harsh financial reality where CSE is concerned, an even harsher reality is the finality associated with rolling the dice and gambling with lives. None of the BFP test forms we receive incorporate fill in the blanks for air quality, much less a disclaimer or warning about CSE compliance. When questioned about this issue and if our local water company was concerned about associated liability, the official's response was, “We're not liable — the contractor bears full responsibility.” This is in spite of the fact that everyone involved knows that contractors are knowingly, or unknowingly, performing unsafe and unprotected CSE while testing backflow preventers under the program being administered by our water company.

Really, that's it? I'm not liable because I ignored the safety issues? I knew of them, but chose not to tell the tester? As an employer, red flags went up because none of us who own businesses can hide behind ignorance of CSE regulations if anything goes wrong and someone gets hurt or dies.

I contacted a long-time friend and advisor at OSHA to seek his input. Just who is responsible? Does York Water Co. get a free-pass from liability by ignoring this issue? What about the property owner(s)? After all, the pits and backflow preventer(s) are their personal property?

“Well Dave, sometimes you can lead a horse to water, but if the air has little oxygen, you can't keep them alive,” said my friend, the OSHA advisor. “Something for your water company to think about is the concept of ‘creating and controlling entity.' Even if they don't send their own people down into pits, if they can be considered the general contractor (which they can), they are eligible for citations from OSHA (and certainly if they send their people down there). But in reality, we are the little guy on the block when it comes to what hits the fan when people get killed on the job. Lawyers do make their living on these things. By the way, one of my co-workers is looking into a recent confined space death where a fellow was working in a new sewer that was not connected to the rest of the system yet. It was about 30-ft. deep and not enough 02 to let him get up the ladder. If you don't test…” If OSHA's the “little guy,” what about those lawyers making a living by targeting everyone who so much as touched any part of this issue? They're called “shotgun” lawsuits because of the wide pattern that targets everyone involved.

I asked one of my other friends who is a lawyer to give me his input on the issue. He asked some interesting questions — did NEWWA include CSE information in the three day backflow testers' certification course? (From my notes and notebook, I found no indication they had included CSE information.) Did York Water provide information about CSE dangers within the water company classroom facility? (Not that I recall.) Was there any warning included with the backflows purchased? (No.) Did the vault suppliers provide any CSE information? (No.) Did the property owner provide CSE information or require proof of training by the testers? Did the contractor provide CSE gear that was OSHA-approved and was at least one on-site employee properly trained?

We do have a few customers who require proof of CSE OSHA-certified training. Most have permit-required pits due to known hazardous environments their businesses create, but even then, only a handful of them truly enforce and follow regulations to ensure testers follow safety procedures. Only two out of several dozen permit-required pits for whom we test follow the letter of the law.

Who's responsible? In the final analysis, the burden as always falls squarely on your shoulders.

Dave Yates owns F.W. Behler, a contracting company in York, Pa. He can be reached by phone at 717/843-4920 or by e-mail at [email protected].

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