Tully/OHL USA Joint Venture: Grant of a Permanent Variance, 29809-29819 [2014-12016]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 79, Number 100 (Friday, May 23, 2014)]
[Notices]
[Pages 29809-29819]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-12016]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2012-0036]


Tully/OHL USA Joint Venture: Grant of a Permanent Variance

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice of grant of a permanent variance.

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SUMMARY: In this notice, OSHA grants a permanent variance to Tully/OHL 
USA Joint Venture from the provisions of OSHA standards that regulate 
work in compressed-air environments at 29 CFR 1926.803.

DATES: The permanent variance specified by this notice becomes

[[Page 29810]]

effective on May 23, 2014 and shall remain in effect until March 31, 
2015.

FOR FURTHER INFORMATION CONTACT: Information regarding this notice is 
available from the following sources:
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office 
of Communications, U.S. Department of Labor, 200 Constitution Avenue 
NW., Room N-3647, Washington, DC 20210; telephone: (202) 693-1999; 
email: Meilinger.francis2@dol.gov.
    General and technical information: Contact Mr. David Johnson, 
Director, Office of Technical Programs and Coordination Activities, 
Directorate of Technical Support and Emergency Management, Occupational 
Safety and Health Administration, U.S. Department of Labor, 200 
Constitution Avenue NW., Room N-3655, Washington, DC 20210; telephone: 
(202) 693-2110; email: johnson.david.w@dol.gov. OSHA's Web page 
includes information about the Variance Program (see https://www.osha.gov/dts/otpca/variances/).

SUPPLEMENTARY INFORMATION:
    Copies of this Federal Register notice. Electronic copies of this 
Federal Register notice are available at https://www.regulations.gov. 
This Federal Register notice and other relevant information are also 
available at OSHA's Web page at https://www.osha.gov.

I. Notice of Application

    On July 12, 2012, Tully/OHL USA Joint Venture (``Tully'' or ``the 
applicant''), 355 Front Street, Construction Site, Staten Island, NY 
10304, submitted under Section 6(d) of the Occupational Safety and 
Health Act of 1970 (``OSH Act''; 29 U.S.C. 655) and 29 CFR 1905.11 
(``Variances and other relief under section 6(d)'') an application for 
a permanent variance from several provisions of the OSHA standard that 
regulates work in compressed air at 29 CFR 1926.803, as well as a 
request for an interim order pending OSHA's decision on the application 
for a variance (Document ID No. OSHA-2012-0036-0003). Specifically, 
Tully seeks a variance from the provisions of the standard that: (1) 
Prohibit compressed-air worker exposure to pressures exceeding 50 
pounds per square inch (p.s.i.) except in an emergency (29 CFR 
1926.803(e)(5)); \1\ (2) require the use of the decompression values 
specified in decompression tables in Appendix A of the compressed-air 
standard for construction (29 CFR 1926.803(f)(1)); and (3) require the 
use of automated operational controls and a special decompression 
chamber (29 CFR 1926.803(g)(1)(iii) and .803(g)(1)(xvii), 
respectively).
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    \1\ The decompression tables in Appendix A of subpart S express 
the maximum working pressures as pounds per square inch gauge 
(p.s.i.g.), with a maximum working pressure of 50 p.s.i.g. 
Therefore, throughout this notice, OSHA expresses the 50 p.s.i. 
value specified by Sec.  1926.803(e)(5) as 50 p.s.i.g., consistent 
with the terminology in Appendix A, Table 1 of subpart S.
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    Tully is a contractor that works on complex tunnel projects using 
recently developed equipment and procedures for soft-ground tunneling. 
Tully's workers engage in the construction of subaqueous tunnels using 
advanced shielded mechanical excavation techniques in conjunction with 
an Earth Pressure Balanced Tunnel Boring Machine (EPBTBM).
    According to its application, Tully is currently the managing 
partner of Tully/OHL USA Joint Venture, the general contractor for the 
New York Economic Development Corporation's New York Siphon Tunnel 
Project. Tully is seeking the permanent variance solely for the 
duration of the New York Economic Development Corporation's New York 
Siphon Tunnel Project (hereafter, ``the project'').
    The project consists of a 12-foot diameter tunnel beneath New York 
Harbor between Staten Island and Brooklyn. Tully will bore the tunnel 
below the water table through soft soils consisting of clay, silt, and 
sand. Tully employs specially trained personnel for the construction of 
the tunnel, and states that this construction will use shielded 
mechanical-excavation techniques. Tully asserts that its workers 
perform hyperbaric interventions at pressures greater than 50 p.s.i.g. 
in the excavation chamber of the EPBTBM; these interventions consist of 
conducting inspections and maintenance work on the cutter-head 
structure and cutting tools of the EPBTBM.
    Tully asserts that innovations in tunnel excavation, specifically 
with EPBTBMs, have, in most cases, eliminated the need to pressurize 
the entire tunnel. This technology negates the requirement that all 
members of a tunnel-excavation crew work in compressed air while 
excavating the tunnel. These advances in technology modified 
substantially the methods used by the construction industry to excavate 
subaqueous tunnels compared to the caisson work regulated by the 
current OSHA compressed-air standard for construction at 29 CFR 
1926.803. Such advances reduce the number of workers exposed, and the 
total duration of exposure, to hyperbaric pressure during tunnel 
construction.
    Using shielded mechanical-excavation techniques, in conjunction 
with precast concrete tunnel liners and backfill grout, EPBTBMs provide 
methods to achieve the face pressures required to maintain a stabilized 
tunnel face through various geologies, and isolate that pressure to the 
forward section (the working chamber) of the EPBTBM. Interventions in 
the working chamber (the pressurized portion of the EPBTBM) take place 
only after halting tunnel excavation and preparing the machine and crew 
for an intervention. Interventions occur to inspect or maintain the 
mechanical-excavation components located in the working chamber. 
Maintenance conducted in the working chamber includes changing 
replaceable cutting tools and disposable wear bars, and, in rare cases, 
repairing structural damage to the cutter head.
    In addition to innovations in tunnel-excavation methods, Tully 
asserts that innovations in hyperbaric medicine and technology improve 
the safety of decompression from hyperbaric exposures. According to 
Tully, the use of decompression protocols incorporating oxygen is more 
efficient, effective, and safer for tunnel workers than compliance with 
the decompression tables specified by the existing OSHA standard (29 
CFR 1926, subpart S, Appendix A decompression tables). These hyperbaric 
exposures are possible due to advances in technology, a better 
understanding of hyperbaric medicine, and the development of a project-
specific Hyperbaric Operations Manual (HOM) that requires specialized 
medical support and hyperbaric supervision to provide assistance to a 
team of specially trained man-lock attendants and hyperbaric or 
compressed-air workers.
    OSHA initiated a technical review of the Tully's variance 
application and developed a set of follow-up questions that it sent to 
Tully on August 29, 2012 (Document ID No. OSHA-2012-0036-0004). On 
October 9, 2012, Tully submitted its response and a request for an 
interim order (Document ID No. OSHA-2012-0036-0005). In its response to 
OSHA's follow-up questions, Tully indicated that the maximum pressure 
to which it is likely to expose workers during interventions for the 
New York Economic Development Corporation's New York Siphon Tunnel 
Project is 58 p.s.i.g. Therefore, to work effectively on this project, 
Tully must perform hyperbaric interventions in compressed air at 
pressures higher than the maximum pressure specified by in the existing 
OSHA standard, 29 CFR 1926.803(e)(5), which states: ``No employee shall 
be

[[Page 29811]]

subjected to pressure exceeding 50 p.s.i.g. except in emergency'' (see 
footnote 1 in this notice).
    OSHA considered Tully's application for a permanent variance and 
interim order. On January 7, 2014, OSHA published a Federal Register 
notice announcing Tully's application for permanent variance and 
interim order, grant of an interim order, and request for comments (79 
FR 844).

II. The Variance Application

A. Background

    The applicant asserts that the advances in tunnel-excavation 
technology described in Section I of this notice modified significantly 
the equipment and methods used by contractors to construct subaqueous 
tunnels, thereby making several provisions of OSHA's compressed-air 
standard for construction at 29 CFR 1926.803 inappropriate for this 
type of work. These advances reduce both the number of employees 
exposed, and the total duration of exposure, to the hyperbaric 
conditions associated with tunnel construction.
    Using shielded mechanical-excavation techniques, in conjunction 
with pre-cast concrete tunnel liners and backfill grout, EPBTBMs 
provide methods to achieve the pressures required to maintain a 
stabilized tunnel face, through various geologies, while isolating that 
pressure to the forward section (working or excavation chamber) of the 
EPBTBM.
    Interventions involving the working chamber (the pressurized 
chamber at the head of the EPBTBM) take place only after the applicant 
halts tunnel excavation and prepares the machine and crew for an 
intervention. Interventions occur to inspect or maintain the 
mechanical-excavation components located in the forward portion of the 
working chamber. Maintenance conducted in the forward portion of the 
working chamber includes changing replaceable cutting tools and 
disposable wear bars, and, in rare cases, making repairs to the cutter 
head due to structural damage.
    In addition to innovations in tunnel-excavation methods, research 
conducted after OSHA published its compressed-air standard for 
construction in 1971 resulted in advances in hyperbaric medicine. In 
this regard, the applicant asserts that the use of decompression 
protocols incorporating oxygen is more efficient, effective, and safer 
for tunnel workers than compliance with the existing OSHA standard (29 
CFR 1926, subpart S, Appendix A decompression tables). According to the 
applicant, contractors routinely and safely expose employees performing 
interventions in the working chamber of EPBTBMs to hyperbaric pressures 
up to 75 p.s.i.g., which is 50% higher than the maximum pressure 
specified by the existing OSHA standard (see 29 CFR 1926.803(e)(5)). 
The applicant asserts that these hyperbaric exposures are possible 
because of advances in hyperbaric technology, a better understanding of 
hyperbaric medicine, and the development of a project-specific HOM that 
requires specialized medical support and hyperbaric supervision to 
provide assistance to a team of specially trained man-lock attendants 
and hyperbaric workers.
    The applicant contends that the alternative safety measures 
included in its application provide its workers with a place of 
employment that is at least as safe and healthful as they would obtain 
under the existing provisions of OSHA's compressed-air standard for 
construction. The applicant certifies that it provided employee 
representatives of affected workers \2\ with a copy of the variance 
application. The applicant also certifies that it notified its workers 
of the variance application by posting, at prominent locations where it 
normally posts workplace notices, a summary of the application and 
information specifying where the workers can examine a copy of the 
application. In addition, the applicant informed its workers and their 
representatives of their rights to petition the Assistant Secretary of 
Labor for Occupational Safety and Health for a hearing on the variance 
application.
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    \2\ See the definition of ``Affected employee or worker'' below 
in section VI. D of this notice.
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B. Variance From Paragraph (e)(5) of 29 CFR 1926.803, Prohibition of 
Exposure To Pressure Greater Than 50 p.s.i.g. (See Footnote 1 in This 
Notice)

    The applicant states that it may perform hyperbaric interventions 
at pressures greater than 50 p.s.i.g. in the working chamber of the 
EPBTBM; this pressure exceeds the pressure limit of 50 p.s.i.g. 
specified for nonemergency purposes by 29 CFR 1926.803(e)(5). The 
EPBTBM has twin man locks, with each man lock having two compartments. 
This configuration allows workers to access the man locks for 
compression and decompression, and medical personnel to access the man 
locks if required in an emergency.
    EPBTBMs are capable of maintaining pressure at the tunnel face, and 
stabilizing existing geological conditions, through the controlled use 
of propel cylinders, a mechanically driven cutter head, bulkheads 
within the shield, ground-treatment foam, and a screw conveyor that 
moves excavated material from the working chamber. As noted earlier, 
the forward-most portion of the EPBTBM is the working chamber, and this 
chamber is the only pressurized segment of the EPBTBM. Within the 
shield, the working chamber consists of two sections: The staging 
chamber and the forward working chamber. The staging chamber is the 
section of the working chamber between the man-lock door and the entry 
door to the forward working chamber. The forward working chamber is 
immediately behind the cutter head and tunnel face.
    The applicant will pressurize the working chamber to the level 
required to maintain a stable tunnel face. Pressure in the staging 
chamber ranges from atmospheric (no increased pressure) to a maximum 
pressure equal to the pressure in the working chamber. The applicant 
asserts that most of the hyperbaric interventions will be around 14.7 
p.s.i.g. However, the applicant maintains that they may have to perform 
interventions at pressures up to 58 p.s.i.g.
    During interventions, workers enter the working chamber through one 
of the twin man locks that open into the staging chamber. To reach the 
forward part of the working chamber, workers pass through a door in a 
bulkhead that separates the staging chamber from the forward working 
chamber. The maximum crew size allowed in the forward working chamber 
is three. At certain hyperbaric pressures (i.e., when decompression 
times are greater than work times), the twin man locks allow for crew 
rotation. During crew rotation, one crew can be compressing or 
decompressing while the second crew is working. Therefore, the working 
crew always has an unoccupied man lock at its disposal.
    The applicant developed a project-specific HOM (Document ID No. 
OSHA-2012-0036-0006) that describes in detail the hyperbaric procedures 
and required medical examinations used during the tunnel-construction 
project. The HOM is project specific, and discusses standard operating 
procedures and emergency and contingency procedures. The procedures 
include using experienced and knowledgeable man-lock attendants who 
have the training and experience necessary to recognize and treat 
decompression sickness and diving-related illnesses and injuries. The 
attendants are under the direct supervision of the hyperbaric 
supervisor and attending physician. In addition, procedures include 
medical screening and review of prospective

[[Page 29812]]

compressed-air workers (CAWs). The purpose of this screening procedure 
is to vet prospective CAWs with medical conditions (e.g., deep vein 
thrombosis, poor vascular circulation, and muscle cramping) that could 
be aggravated by sitting in a cramped space (e.g., a man lock) for 
extended periods or by exposure to elevated pressures and compressed 
gas mixtures. A transportable recompression chamber (shuttle) is 
available to extract workers from the hyperbaric working chamber for 
emergency evacuation and medical treatment; the shuttle attaches to the 
topside medical lock, which is a large recompression chamber. The 
applicant believes that the procedures included in the HOM provide safe 
work conditions when interventions are necessary, including 
interventions above 50 p.s.i.g.

C. Variance From Paragraph (f)(1) of 29 CFR 1926.803, Requirement To 
Use OSHA Decompression Tables

    OSHA's compressed-air standard for construction requires 
decompression in accordance with the decompression tables in Appendix A 
of 29 CFR 1926, subpart S (see 29 CFR 1926.803(f)(1)). As an 
alternative to the OSHA decompression tables, the applicant proposes to 
use newer decompression schedules that supplement breathing air used 
during decompression with pure oxygen. The applicant asserts that these 
decompression protocols are safer for tunnel workers than the 
decompression protocols specified in Appendix A of 29 CFR 1926, subpart 
S. Accordingly, the applicant proposes to use the 1992 French 
Decompression Tables to decompress CAWs after they exit the hyperbaric 
conditions in the working chamber.
    Depending on the maximum working pressure and exposure times, the 
1992 French Decompression Tables provide for air decompression with or 
without oxygen. Tully asserts that oxygen decompression has many 
benefits, including reducing decompression time by about 33 percent, 
and significantly lowering the rate of decompression illness (DCI), 
compared to the air-decompression tables in Appendix A of 29 CFR 1926, 
subpart S. In addition, the HOM requires a physician certified in 
hyperbaric medicine to manage the medical condition of CAWs during 
hyperbaric exposures and decompression. A trained and experienced man-
lock attendant also will be present during hyperbaric exposures and 
decompression. This man-lock attendant will operate the hyperbaric 
system to ensure compliance with the specified decompression table. A 
hyperbaric supervisor (competent person), trained in hyperbaric 
operations, procedures, and safety, directly oversees all hyperbaric 
interventions, and ensures that staff follow the procedures delineated 
in the HOM or by the attending physician.
    The applicant asserts that at higher hyperbaric pressures, 
decompression times exceed 75 minutes. The HOM establishes protocols 
and procedures that provide the basis for alternate means of protection 
for CAWs under these conditions. Accordingly, based on these protocols 
and procedures, the applicant requests to use the 1992 French 
Decompression Tables for hyperbaric interventions up to 58 p.s.i.g. for 
the project. The applicant is committed to follow the decompression 
procedures described in the project-specific HOM during these 
interventions.

D. Variance From Paragraph (g)(1)(iii) of 29 CFR 1926.803, 
Automatically Regulated Continuous Decompression

    According to the applicant, breathing air under hyperbaric 
conditions increases the amount of nitrogen gas dissolved in a CAW's 
tissues. The greater the hyperbaric pressure under these conditions, 
and the more time spent under the increased pressure, the greater the 
amount of nitrogen gas dissolved in the tissues. When the pressure 
decreases during decompression, tissues release the dissolved nitrogen 
gas into the blood system, which then carries the nitrogen gas to the 
lungs for elimination through exhalation. Releasing hyperbaric pressure 
too rapidly during decompression can increase the size of the bubbles 
formed by nitrogen gas in the blood system, resulting in DCI, commonly 
referred to as ``the bends.'' This description of the etiology of DCI 
is consistent with current scientific theory and research on the issue 
(see footnote 8 in this notice discussing a 1985 NIOSH report on DCI).
    The 1992 French Decompression Tables proposed for use by the 
applicant provide for stops during worker decompression (i.e., staged 
decompression) to control the release of nitrogen gas from tissues into 
the blood system. Studies show that staged decompression, in 
combination with other features of the 1992 French Decompression Tables 
such as the use of oxygen, result in a lower incidence of DCI than the 
OSHA decompression requirements of 29 CFR 1926.803, which specify the 
use of automatically regulated continuous decompression (see footnotes 
5 through 10 below for references to these studies).\3\ In addition, 
the applicant asserts that staged decompression is at least as 
effective as an automatic controller in regulating the decompression 
process because:
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    \3\ In the study cited in footnote 6, starting at page 338, Dr. 
Eric Kindwall notes that the use of automatically regulated 
continuous decompression in the Washington State safety standards 
for compressed-air work (from which OSHA derived its decompression 
tables) was at the insistence of contractors and the union, and 
against the advice of the expert who calculated the decompression 
table, who recommended using staged decompression. Dr. Kindwall then 
states, ``Continuous decompression is inefficient and wasteful. For 
example, if the last stage from 4 psig . . . to the surface took 1 
h, at least half the time is spent at pressures less than 2 psig . . 
., which provides less and less meaningful bubble suppression . . . 
.'' In addition, the report referenced in footnote 5 under the 
section titled ``Background on the Need for Interim Decompression 
Tables'' addresses the continuous-decompression protocol in the OSHA 
compressed-air standard for construction, noting that ``[a]side from 
the tables for saturation diving to deep depths, no other widely 
used or officially approved diving decompression tables use straight 
line, continuous decompressions at varying rates. Stage 
decompression is usually the rule, since it is simpler to control.''
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    A. A hyperbaric supervisor (a competent person experienced and 
trained in hyperbaric operations, procedures, and safety) directly 
supervises all hyperbaric interventions and ensures that the man-lock 
attendant, who is a competent person in the manual control of 
hyperbaric systems, follows the schedule specified in the decompression 
tables, including stops; and
    B. The use of the 1992 French Decompression Tables for staged 
decompression offers an equal or better level of management and control 
over the decompression process than an automatic controller and results 
in lower occurrences of DCI.
    Accordingly, the applicant is applying for a permanent variance 
from the OSHA standard at 29 CFR 1926.803(g)(1)(iii), which requires 
automatic controls to regulate decompression. As noted above, the 
applicant is committed to conduct the staged decompression according to 
the 1992 French Decompression Tables under the direct control of the 
trained man-lock attendant and under the oversight of the hyperbaric 
supervisor.

E. Variance From Paragraph (g)(1)(xvii) of 29 CFR 1926.803, Requirement 
of Special Decompression Chamber

    The OSHA compressed-air standard for construction requires 
employers to use a special decompression chamber when total 
decompression time exceeds 75 minutes (see 29 CFR 
1926.803(g)(1)(xvii)). Another provision

[[Page 29813]]

of OSHA's compressed-air standard calls for locating the special 
decompression chamber adjacent to the man lock on the atmospheric 
pressure side of the tunnel bulkhead (see 29 CFR 1926.803(g)(2)(vii)). 
However, since only the working chamber of the EPBTBM is under 
pressure, and only a few workers out of the entire crew are exposed to 
hyperbaric pressure, the man locks (which, as noted earlier, connect 
directly to the working chamber) are of sufficient size to accommodate 
the exposed workers. In addition, available space in the EPBTBM does 
not allow for an additional special decompression lock. Again, the 
applicant uses the man locks, each of which adequately accommodates a 
three-member crew, for this purpose when decompression lasts up to 75 
minutes. When decompression exceeds 75 minutes, crews can open the door 
connecting the two compartments in each man lock during decompression 
stops or exit the man lock and move into the staging chamber where 
additional space is available. This alternative enables CAWs to move 
about and flex their joints to prevent neuromuscular problems during 
decompression.

F. State Plan Impact

    Tully only applied for an interim order and variance for one site, 
the New York Siphon Tunnel Project, so the permanent variance OSHA is 
granting Tully is in effect in the State of New York solely during 
completion of the project. While the State of New York has an OSHA-
approved safety and health program, that program covers only public-
sector employers and not private-sector employers such as Tully; 
therefore, Federal OSHA continues to cover private-sector employers in 
the State of New York.

III. Description of the Conditions Specified for the Permanent Variance

    This section describes the alternative means of compliance with 29 
CFR 1926.803(e)(5), (f)(1), (g)(1)(iii), and (g)(1)(xvii) and provides 
additional detail regarding the conditions that form the basis of 
Tully's permanent variance.

Condition A: Scope

    The scope of the permanent variance limits coverage to the work 
situations specified under this condition. Clearly defining the scope 
of the permanent variance provides Tully, Tully's employees, and OSHA 
with necessary information regarding the work situations in which the 
permanent variance applies.

Condition B: Application

    This condition specifies the circumstances under which the 
permanent variance is in effect, notably only for hyperbaric work 
performed during interventions. The condition places clear limits on 
the circumstances under which the applicant can expose its employees to 
hyperbaric pressure.

Condition C: List of Abbreviations

    Condition C defines a number of abbreviations used in the permanent 
variance. OSHA believes that defining these abbreviations serves to 
clarify and standardize their usage, thereby enhancing the applicant's 
and its employees' understanding of the conditions specified by the 
permanent variance.

Condition D: Definitions

    The condition defines a series of terms, mostly technical terms, 
used in the permanent variance to standardize and clarify their 
meaning. Defining these terms serves to enhance the applicant's and its 
employees' understanding of the conditions specified by the permanent 
variance.

Condition E: Safety and Health Practices

    This condition requires the applicant to develop and submit to OSHA 
a project-specific HOM at least six months before using the EPBTBM for 
tunneling operations. This requirement ensures that the applicant 
develops hyperbaric safety and health procedures suitable for each 
specific project. The HOM enables OSHA to determine that the specific 
safety and health instructions and measures it specifies are 
appropriate and will adequately protect the safety and health of the 
CAWs. It also enables OSHA to enforce these instructions and measures. 
Additionally, the condition includes a series of related hazard 
prevention and control requirements and methods (e.g., decompression 
tables, job hazard analysis (JHA), operations and inspections 
checklists) designed to ensure the continued effective functioning of 
the hyperbaric equipment and operating system.

Condition F: Communication

    Condition F requires the applicant to develop and implement an 
effective system of information sharing and communication. Effective 
information sharing and communication ensures that affected workers 
receive updated information regarding any safety-related hazards and 
incidents, and corrective actions taken, prior to the start of each 
shift. The condition also requires the applicant to ensure that 
reliable means of emergency communications are available and maintained 
for affected workers and support personnel during hyperbaric 
operations. Availability of such reliable means of communications 
enables affected workers and support personnel to respond quickly and 
effectively to hazardous conditions or emergencies that may develop 
during EPBTBM operations.

Condition G: Worker Qualification and Training

    This condition requires the applicant to develop and implement an 
effective qualification and training program for affected workers. The 
condition specifies the factors that an affected worker must know to 
perform safely during hyperbaric operations, including how to enter, 
work in, and exit from hyperbaric conditions under both normal and 
emergency conditions. Having well-trained and qualified workers 
performing hyperbaric intervention work ensures that they recognize, 
and respond appropriately to, hyperbaric safety and health hazards. 
These qualification and training requirements enable affected workers 
to cope effectively with emergencies, as well as the discomfort and 
physiological effects of hyperbaric exposure, thereby preventing worker 
injury, illness, and fatalities.
    Paragraph (2)(e) of this condition also requires the applicant to 
provide affected workers with information they can use to contact the 
appropriate healthcare professionals if they believe they are 
developing hyperbaric-related health effects. This requirement provides 
for early intervention and treatment of DCI and other health effects 
resulting from hyperbaric exposure, thereby reducing the potential 
severity of these effects.

Condition H: Inspections, Tests, and Accident Prevention

    Condition H requires the applicant to develop, implement, and 
operate a program of frequent and regular inspections of the EPBTBM's 
hyperbaric equipment and support systems, and associated work areas. 
This condition helps to ensure the safe operation and physical 
integrity of the equipment and work areas necessary to conduct 
hyperbaric operations. The condition also enhances worker safety by 
reducing the risk of hyperbaric-related emergencies.
    Paragraph (3) of this condition requires the applicant to document 
tests, inspections, corrective actions, and repairs involving the 
EPBTBM, and maintain these documents at the job site for the duration 
of the job. This

[[Page 29814]]

requirement provides the applicant with information needed to schedule 
tests and inspections to ensure the continued safe operation of the 
equipment and systems, and to determine that the actions taken to 
correct defects in hyperbaric equipment and systems were appropriate, 
prior to returning them to service.

Condition I: Compression and Decompression

    This condition requires the applicant to consult with its 
designated medical advisor regarding special compression or 
decompression procedures appropriate for any unacclimated CAW. This 
provision ensures that the applicant consults with the medical advisor, 
and involves the medical advisor in the evaluation, development, and 
implementation of compression or decompression protocols appropriate 
for any CAW requiring acclimation to the hyperbaric conditions 
encountered during EPBTBM operations. Accordingly, CAWs requiring 
acclimation have an opportunity to acclimate prior to exposure to these 
hyperbaric conditions. OSHA believes this condition will prevent or 
reduce adverse reactions among CAWs to the effects of compression or 
decompression associated with the intervention work they perform in the 
EPBTBM.

Condition J: Recordkeeping

    Condition J requires the applicant to maintain records of specific 
factors associated with each hyperbaric intervention. The information 
gathered and recorded under this provision, in concert with the 
information provided under Condition K, enables the applicant and OSHA 
to determine the effectiveness of the permanent variance in preventing 
DCI and other hyperbaric-related effects.

Condition K: Notifications

    Under this condition, the applicant must, within specified periods: 
(1) Notify OSHA of any recordable injuries, illnesses, or fatalities 
that occur as a result of hyperbaric exposures during EPBTBM operations 
(using the OSHA 301 Incident Report form \4\ to investigate and record 
hyperbaric recordable injuries as defined by 29 CFR 1904.4, and 1904.7 
through 1904.12); (2) provide OSHA with a copy of the incident 
investigation report (using OSHA 301 form) of these events; (3) include 
on the 301 form information on the hyperbaric conditions associated 
with the recordable injury or illness, the root-cause determination, 
and preventive and corrective actions identified and implemented by the 
applicant; and (4) its certification that it informed affected workers 
of the incident and the results of the incident investigation. This 
condition also requires the applicant to: Notify OTPCA and the 
Manhattan Area Office within 15 working days should the applicant need 
to revise its HOM to accommodate changes in its compressed-air 
operations that affect its ability to comply with the conditions of the 
permanent variance; and provide OTPCA and the Manhattan Area Office, at 
the end of the project, with a report evaluating the effectiveness of 
the decompression tables.
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    \4\ See 29 CFR 1904 (Recording and Reporting Occupational 
Injuries and Illnesses) (https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9631); recordkeeping 
forms and instructions (https://www.osha.gov/recordkeeping/RKform300pkg-fillable-enabled.pdf); and the OSHA Recordkeeping 
Handbook (https://www.osha.gov/recordkeeping/handbook/).
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    These notification requirements enable the applicant, its 
employees, and OSHA to determine the effectiveness of the permanent 
variance in providing the requisite level of safety to the applicant's 
workers and, based on this determination, whether to revise or revoke 
the conditions of the permanent variance. Timely notification permits 
OSHA to take whatever action may be necessary and appropriate to 
prevent further injuries and illnesses. Providing notification to 
employees informs them of the precautions taken by the applicant to 
prevent similar incidents in the future.
    This condition also requires the applicant to notify OSHA if it 
ceases to do business, has a new address or location for its main 
office, or transfers the operations covered by the permanent variance 
to a successor company. In addition, the condition specifies that OSHA 
must approve the transfer of the permanent variance to a successor 
company. These requirements allow OSHA to communicate effectively with 
the applicant regarding the status of the permanent variance, and 
expedite the Agency's administration and enforcement of the permanent 
variance. Stipulating that an applicant must have OSHA's approval to 
transfer a variance to a successor company provides assurance that the 
successor company has knowledge of, and will comply with, the 
conditions specified by permanent variance, thereby ensuring the safety 
of workers involved in performing the operations covered by the 
permanent variance.

IV. Comments on the Proposed Variance Application

    OSHA received one public comment on the proposed variance 
application. Minda Nieblas, M.D. (occupational health physician), 
supported granting the permanent variance (Document ID No. OSHA-2012-
0036-0012). In her comment, Dr. Nieblas proposed expanding and 
clarifying specific conditions of the proposed variance as follows: (1) 
Incorporating a clear definition of decompression illness (DCI) to 
include a broader range of hyperbaric health effects; (2) expanding the 
training provided to compressed air workers to improve their ability to 
recognize and report the signs and symptoms of decompression illness; 
(3) expanding the data collection associated with decompression 
illnesses experienced by CAWs to include a broader range of hyperbaric 
health effects; and (4) expanding the investigation and reporting 
criteria for hyperbaric incidents.
    The remainder of this section describes the specific comments 
submitted by Dr. Nieblas and OSHA's responses to them.
    Comment 1: The first comment addressed proposals to modify the 
definition of DCI and expand the training provided to compressed air 
workers. Regarding proposed conditions D and G (Definitions and Worker 
Qualification and Training), Dr. Nieblas recommended:

    It is important for CAW to recognize the signs and symptoms of 
decompression illness. However, it is also important that workers 
are trained about and how to recognize other adverse health effects 
from working at pressures. OSHA should consider adding requirements 
for training CAW regarding barotrauma, nitrogen narcosis, oxygen 
toxicity and any other health effects associated with work in 
compressed air or mixed gasses. It is not clear from the variance if 
the definition of DCI encompasses these adverse health effects.

    OSHA's response: OSHA determined that the comments have merit and, 
therefore, is modifying the respective proposed conditions of the 
variance application. Tully's HOM provides the current decompression-
illness definition, and the proposed variance did not include a 
distinct definition of this term. The HOM defines decompression illness 
as ``[an] illness caused by gas bubbles appearing in body compartments 
due to a reduction in ambient pressure.'' OSHA is adding a definition 
to proposed condition D that it adapted from the HOM's definition of 
DCI, as well as the National Institute for Occupational Safety and 
Health's (NOISH's) definition of

[[Page 29815]]

decompression sickness or decompression illness.\5\ OSHA is also adding 
DCI to the list of abbreviations found in proposed condition C. 
Additionally, OSHA is amending proposed condition G (specifically 
G(2)(c)) to include training in recognizing the symptoms of DCI and 
other hyperbaric intervention-related health effects (e.g., barotrauma, 
nitrogen narcosis, and oxygen toxicity).
---------------------------------------------------------------------------

    \5\ See NIOSH's Decompression Sickness and Tunnel Workers page 
at https://www.cdc.gov/NIOSH/topics/Decompression/.
---------------------------------------------------------------------------

    Comment 2: The second comment focused on proposals to modify and 
improve the recordkeeping requirements included in proposed condition 
J. Regarding proposed condition J (Recordkeeping), Dr. Nieblas 
recommended:

    Section J (Recordkeeping) OSHA should consider requiring 
additional recordkeeping for hyperbaric interventions. OSHA should 
consider requiring recordkeeping information to include post-
intervention assessment of each individual worker for signs and 
symptoms of decompression illness, barotrauma, nitrogen narcosis, 
oxygen toxicity or other health effects associated with work in 
compressed air or mixed gasses for each hyperbaric intervention. 
Lack of standardized data collection has made it difficult to 
evaluate the incidence of adverse health effects in these workers. 
It would be useful if OSHA, NIOSH, and experts from academia and 
industry developed standardized tools to assess CAW pre/post 
intervention. This data collection could be used to refine tables 
and practices across the industry.

    OSHA's response: Proposed condition J requires Tully to identify, 
investigate, and record all cases of work-related injury and illness 
requiring medical treatment as specified by 29 CFR 1904 (Recording and 
Reporting Occupational Injuries and Illnesses). Thus, Tully must 
identify each compressed air worker who requires medical treatment when 
presenting with signs and symptoms of decompression illness, 
barotrauma, or other health effects associated with work in compressed 
air during or after hyperbaric interventions. Additionally, Tully must 
complete OSHA form 301 (Injury and Illness Incident Report) and OSHA 
form 300 (Log of Work-Related Injuries and Illnesses) for each such 
recordable (medical treatment) case.
    OSHA finds that the recommendation to develop standardized tools 
for assessing CAWs for pre- and post-hyperbaric intervention health 
effects, while undoubtedly highly useful for analyzing and evaluating 
the incidence of adverse health outcomes, is well beyond the scope of 
this variance. However, OSHA added language to conditions J and K to 
clarify the hyperbaric conditions that Tully must identify and include 
on the OSHA 301 form as part of the recordable injury or illness 
investigation.
    Comment 3: The last of Dr. Nieblas' comments addressed proposals to 
modify and expand the notifications requirements included in proposed 
condition K. Regarding proposed condition K (Notifications), Dr. 
Nieblas recommended:

    OSHA should clarify that the incident must be reported even if 
the worker did not require recompression. OSHA should also be 
notified about injuries and illness that may have been the result of 
impairment from elevated nitrogen or oxygen partial pressures since 
these are the result of exposure to hyperbaric conditions. The 
incident investigation report must include an estimate of employee 
workload, the composition of the gas mixture, temperature in the 
work and decompression environments, a medical summary of the 
illness or injury, and the contact information for the treating 
healthcare provider.

    This information is needed to determine the root cause of the 
injury/illness.
    OSHA's response: As noted in the response to comment 2, proposed 
condition J requires Tully to identify, investigate, and record all 
cases of work-related injury and illness requiring medical treatment. 
Proposed condition K requires Tully to notify OSHA (OTPCA and the 
Manhattan Area Office) of any injury, illness (including decompression 
illness as defined by revised condition D(5)), or fatality resulting 
from exposure of a CAW to hyperbaric conditions. Additionally, Tully 
must provide a copy of the incident-investigation report within 24 
hours of the incident.
    As a result of these comprehensive reporting and notification 
requirements, OSHA finds that the recommendation to expand the 
information requirements, while undoubtedly highly useful for 
evaluating and determining the root cause of hyperbaric incidents, is 
well beyond the scope of this proposed variance application. However, 
OSHA added language to condition K to clarify that recordable 
hyperbaric injuries or illnesses include those conditions that do not 
require recompression treatment (e.g., nitrogen narcosis, oxygen 
toxicity, barotrauma).

V. Decision

    As noted earlier, on January 7, 2014, OSHA granted Tully an interim 
order (79 FR 844) to remain in effect until completion of the project 
or until the Agency makes a decision on its application for a permanent 
variance. During this period, the applicant had to comply fully with 
the conditions of the interim order (as an alternative to complying 
with the requirements of 29 CFR 1926.803 (hereafter, ``the standard'')) 
that:
    A. Prohibit employers using compressed air under hyperbaric 
conditions from subjecting workers to pressure exceeding 50 p.s.i.g., 
except in an emergency (29 CFR 1926.803(e)(5));
    B. Require the use of decompression values specified by the 
decompression tables in Appendix A of the compressed-air standard (29 
CFR 1926.803(f)(1)); and
    C. Require the use of automated operational controls and a special 
decompression chamber (29 CFR 1926.803(g)(1)(iii) and .803(g)(1)(xvii), 
respectively).
    After reviewing the proposed alternatives OSHA determined that:
    A. Tully developed, and proposed to implement, effective 
alternative measures to the prohibition of using compressed air under 
hyperbaric conditions exceeding 50 p.s.i.g. The alternative measures 
include use of engineering and administrative controls of the hazards 
associated with work performed in compressed-air conditions exceeding 
50 p.s.i.g. while engaged in the construction of a subaqueous tunnel 
using advanced shielded mechanical-excavation techniques in conjunction 
with an EPBTBM. Prior to conducting interventions in the EPBTBM's 
pressurized working chamber, the applicant halts tunnel excavation and 
prepares the machine and crew to conduct the interventions. 
Interventions involve inspection, maintenance, or repair of the 
mechanical-excavation components located in the working chamber.
    B. Tully developed, and proposed to implement, safe hyperbaric work 
procedures, emergency and contingency procedures, and medical 
examinations for the project's CAWs. The applicant compiled these 
standard operating procedures into a project-specific HOM. The HOM 
discusses the procedures and personnel qualifications for performing 
work safely during the compression and decompression phases of 
interventions. The HOM also specifies the decompression tables the 
applicant proposes to use. Depending on the maximum working pressure 
and exposure times during the interventions, the tables provide for 
decompression using air, pure oxygen, or a combination of air and 
oxygen. The decompression tables also include delays or stops for 
various time intervals at different pressure levels during the 
transition to atmospheric pressure (i.e., staged

[[Page 29816]]

decompression). In all cases, a physician certified in hyperbaric 
medicine will manage the medical condition of CAWs during 
decompression. In addition, a trained and experienced man-lock 
attendant, experienced in recognizing decompression sickness or 
illnesses and injuries, will be present. Of key importance, a 
hyperbaric supervisor (competent person), trained in hyperbaric 
operations, procedures, and safety, will directly supervise all 
hyperbaric operations to ensure compliance with the procedures 
delineated in the project-specific HOM or by the attending physician.
    C. Tully developed, and proposed to implement, a training program 
to instruct affected workers in the hazards associated with conducting 
hyperbaric operations.
    D. Tully developed, and proposed to implement, an effective 
alternative to the use of automatic controllers that continuously 
decrease pressure to achieve decompression in accordance with the 
tables specified by the standard. The alternative includes using the 
1992 French Decompression Tables for guiding staged decompression to 
achieve lower occurrences of DCI, using a trained and competent 
attendant for implementing appropriate hyperbaric entry and exit 
procedures, and providing a competent hyperbaric supervisor and 
attending physician certified in hyperbaric medicine, to oversee all 
hyperbaric operations.
    E. Tully developed, and proposed to implement, an effective 
alternative to the use of the special decompression chamber required by 
the standard. EPBTBM technology permits the tunnel's work areas to be 
at atmospheric pressure, with only the face of the EPBTBM (i.e., the 
working chamber) at elevated pressure. The applicant limits 
interventions conducted in the working chamber to performing required 
inspection, maintenance, and repair of the cutting tools on the face of 
the EPBTBM. The EPBTBM's man lock and working chamber provide 
sufficient space for the maximum crew of three CAWs to stand up and 
move around, and safely accommodate decompression times up to 360 
minutes. Therefore, OSHA determined that the EPBTBM's man lock and 
working chamber function as effectively as the special decompression 
chamber required by the standard.
    OSHA conducted a review of the scientific literature regarding 
decompression to determine whether the alternative decompression method 
(i.e., the 1992 French Decompression Tables) proposed by the applicant 
provide a workplace as safe and healthful as that provided by the 
standard. Based on this review, OSHA determined that tunneling 
operations performed with these tables \6\ result in a lower occurrence 
of DCI than the decompression tables specified by the standard.\7\ \8\ 
\9\
---------------------------------------------------------------------------

    \6\ In 1992, the French Ministry of Labour replaced the 1974 
French Decompression Tables with the 1992 French Decompression 
Tables, which differ from OSHA's decompression tables in Appendix A 
by using: (1) staged decompression as opposed to continuous (linear) 
decompression; (2) decompression tables based on air or both air and 
pure oxygen; and (3) emergency tables when unexpected exposure times 
occur (up to 30 minutes above the maximum allowed working time).
    \7\ Kindwall, EP (1997). Compressed air tunneling and caisson 
work decompression procedures: development, problems, and solutions. 
Undersea and Hyperbaric Medicine, 24(4), pp. 337-345. This article 
reported 60 treated cases of DCI among 4,168 exposures between 19 
and 31 p.s.i.g. over a 51-week contract period, for a DCI incidence 
of 1.44% for the decompression tables specified by the OSHA 
standard.
    \8\ Sealey, JL (1969). Safe exit from the hyperbaric 
environment: medical experience with pressurized tunnel operations. 
Journal of Occupational Medicine, 11(5), pp. 273-275. This article 
reported 210 treated cases of DCI among 38,600 hyperbaric exposures 
between 13 and 34 p.s.i.g. over a 32-month period, for an incidence 
of 0.54% for the decompression tables specified by the Washington 
State safety standards for compressed-air work, which are similar to 
the tables in the OSHA standard. Moreover, the article reported 51 
treated cases of DCI for 3,000 exposures between 30 and 34 p.s.i.g., 
for an incidence of 1.7% for the Washington State tables.
    \9\ In 1985, the National Institute for Occupational Safety and 
Health (NIOSH) published a report entitled ``Criteria for Interim 
Decompression Tables for Caisson and Tunnel Workers''; this report 
reviewed studies of DCI and other hyperbaric-related injuries 
resulting from use of OSHA's tables. This report is available on 
NIOSH's Web site: https://www.cdc.gov/niosh/topics/decompression/default.html.
---------------------------------------------------------------------------

    The review conducted by OSHA found several research studies 
supporting the determination that the 1992 French Decompression Tables 
result in a lower rate of DCI than the decompression tables specified 
by the standard. For example, H. L. Anderson studied the occurrence of 
DCI at maximum hyperbaric pressures ranging from 4 p.s.i.g. to 43 
p.s.i.g. during construction of the Great Belt Tunnel in Denmark (1992-
1996); \10\ this project used the 1992 French Decompression Tables to 
decompress the workers during part of the construction. Anderson 
observed 6 DCS cases out of 7,220 decompression events, and reported 
that switching to the 1992 French Decompression tables reduced the DCI 
incidence to 0.08%. The DCI incidence in the study by H. L. Andersen is 
substantially less than the DCI incidence reported for the 
decompression tables specified in Appendix A. OSHA found no studies in 
which the DCI incidence reported for the 1992 French Decompression 
Tables were higher than the DCI incidence reported for the OSHA 
decompression tables, nor did OSHA find any studies indicating that the 
1992 French Decompression Tables were more hazardous to employees than 
the OSHA decompression tables.\11\
---------------------------------------------------------------------------

    \10\ Anderson HL (2002). Decompression sickness during 
construction of the Great Belt tunnel, Denmark. Undersea and 
Hyperbaric Medicine, 29(3), pp. 172-188.
    \11\ Le P[eacute]chon JC, Barre P, Baud JP, Ollivier F 
(September 1996). Compressed air work--French tables 1992--
operational results. JCLP Hyperbarie Paris, Centre Medical 
Subaquatique Interentreprise, Marseille: Communication a l'EUBS, pp. 
1-5 (see Ex. OSHA-2012-0036-0005).
---------------------------------------------------------------------------

    Based on a review of available evidence, the experience of State 
Plans that either granted variances (Nevada, Oregon, and Washington) 
\12\ or promulgated a new standard (California) \13\ for hyperbaric 
exposures occurring during similar subaqueous tunnel-construction work, 
and the information provided in the applicant's variance application, 
OSHA is granting the permanent variance.
---------------------------------------------------------------------------

    \12\ These state variances are available in the docket: Exs. 
OSHA-2012-0035-0006 (Nevada), OSHA-2012-0035-0007 (Oregon), and 
OSHA-2012-0035-0008 (Washington).
    \13\ See California Code of Regulations, Title 8, Subchapter 7, 
Group 26, Article 154, available at https://www.dir.ca.gov/title8/sb7g26a154.html.
---------------------------------------------------------------------------

    Under Section 6(d) of the Occupational Safety and Health Act of 
1970 (29 U.S.C. 655), and based on the record discussed above, the 
Agency finds that when the employer complies with the conditions of the 
following order, the working conditions of the employer's workers are 
at least as safe and healthful as if the employer complied with the 
working conditions specified by paragraphs (e)(5), (f)(1), (g)(1)(iii), 
and (g)(1)(xvii) of 29 CFR 1926.803. Therefore, Tully will: (1) Comply 
with the conditions listed below under ``Specific Conditions of the 
Permanent Variance'' for the period between the date of this notice and 
completion of the New York Siphon Tunnel Project, but no later than 
March 31, 2015; (2) comply fully with all other applicable provisions 
of 29 CFR part 1926; and (3) provide a copy of this Federal Register 
notice to all employees affected by the conditions, including the 
affected employees of other employers, using the same means it used to 
inform these employees of its application for a permanent variance. 
Additionally, this order will remain in effect until one of the 
following conditions occurs: (1) Completion of the New York Siphon 
Tunnel Project but no later than March 31, 2015; or (2) OSHA modifies 
or

[[Page 29817]]

revokes this final order in accordance with 29 CFR 1905.13.

VI. Order

    As of the effective date of this final order, OSHA is revoking the 
interim order granted to the employer on January 7, 2014.
    OSHA issues this final order authorizing Tully/OHL USA Joint 
Venture (``the employer'') to comply with the following conditions 
instead of complying with the requirements of paragraphs 29 CFR 
1926.803(e)(5), (f)(1), (g)(1)(iii), and (g)(1)(xvii). This final order 
applies to Tully/OHL USA Joint Venture at the New York Siphon Tunnel 
Project. These conditions are:

A. Scope

    The permanent variance applies only to work:
    1. That occurs in conjunction with construction of the New York 
Siphon Tunnel Project, a subaqueous tunnel constructed using advanced 
shielded mechanical-excavation techniques and involving operation of an 
EPBTBM;
    2. Performed under compressed-air and hyperbaric conditions up to 
58 p.s.i.g.;
    3. In the EPBTBM's forward section (the working chamber) and 
associated hyperbaric chambers used to pressurize and decompress 
employees entering and exiting the working chamber; and
    4. Except for the requirements specified by 29 CFR 1926.803(e)(5), 
(f)(1), (g)(1)(iii), and (g)(1)(xvii), Tully must comply fully with all 
other applicable provisions of 29 CFR part 1926.
    5. This order will remain in effect until one of the following 
conditions occurs: (1) completion of the New York Siphon Tunnel 
Project, but no later than March 31, 2015; or (2) OSHA modifies or 
revokes this final order in accordance with 29 CFR 1905.13.

B. Application

    The permanent variance applies only when Tully stops the tunnel-
boring work, pressurizes the working chamber, and the CAWs either enter 
the working chamber to perform interventions (i.e., inspect, maintain, 
or repair the mechanical-excavation components), or exit the working 
chamber after performing interventions.

C. List of Abbreviations

    Abbreviations used throughout this permanent variance include the 
following:

1. CAW--Compressed-air worker
2. CFR--Code of Federal Regulations
3. DCI--Decompression Illness
4. EPBTBM--Earth Pressure Balanced Tunnel Boring Machine
5. HOM--Hyperbaric Operations and Safety Manual
6. JHA--Job hazard analysis
7. OSHA--Occupational Safety and Health Administration
8. OTPCA--Office of Technical Programs and Coordination Activities

D. Definitions

    The following definitions apply to this permanent variance. These 
definitions supplement the definitions in Tully's project-specific HOM.
    1. Affected employee or worker--an employee or worker who is 
affected by the conditions of this permanent variance, or any one of 
his or her authorized representatives. The term ``employee'' has the 
meaning defined and used under the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 651 et seq.)
    2. Atmospheric pressure--the pressure of air at sea level, 
generally 14.7 p.s.i.a., 1 atmosphere absolute, or 0 p.s.i.g.
    3. Compressed-air worker--an individual who is specially trained 
and medically qualified to perform work in a pressurized environment 
while breathing air at pressures up to 58 p.s.i.g.
    4. Competent person--an individual who is capable of identifying 
existing and predictable hazards in the surroundings or working 
conditions that are unsanitary, hazardous, or dangerous to employees, 
and who has authorization to take prompt corrective measures to 
eliminate them.\14\
---------------------------------------------------------------------------

    \14\ Adapted from 29 CFR 1926.32(f).
---------------------------------------------------------------------------

    5. Decompression illness (also called decompression sickness or the 
bends)--an illness caused by gas bubbles appearing in body compartments 
due to a reduction in ambient pressure. Examples of symptoms of 
decompression illness include (but are not limited to): joint pain 
(also known as the ``bends'' for agonizing pain or the ``niggles'' for 
sight pain); areas of bone destruction (termed ``dysbaric 
osteonecrosis''); skin disorders (such as cutis marmorata, which causes 
a pink marbling of the skin); spinal cord and brain disorders (such as 
stroke, paralysis, paresthesia, and bladder dysfunction); 
cardiopulmonary disorders, such as shortness of breath; and arterial 
gas embolism (gas bubbles in the arteries that block blood flow).\15\
---------------------------------------------------------------------------

    \15\ See Appendix 10 of ``A Guide to the Work in Compressed Air 
Regulations 1996,'' published by the United Kingdom Health and 
Safety Executive and available from NIOSH at  https://www.cdc.gov/niosh/docket/archive/pdfs/NIOSH-254/compReg1996.pdf
---------------------------------------------------------------------------

    Note: Health effects associated with hyperbaric intervention, but 
not considered symptoms of DCI, can include: barotrauma (direct damage 
to air-containing cavities in the body such as ears, sinuses, and 
lungs); nitrogen narcosis (reversible alteration in consciousness that 
may occur in hyperbaric environments and caused by the anesthetic 
effect of certain gases at high pressure); and oxygen toxicity (a 
central nervous system condition resulting from the harmful effects of 
breathing molecular oxygen (O2) at elevated partial 
pressures).
    6. Earth Pressure Balanced Tunnel Boring Machine--the machinery 
used to excavate the tunnel.
    7. Hot work--any activity performed in a hazardous location that 
may introduce an ignition source into a potentially flammable 
atmosphere.\16\
---------------------------------------------------------------------------

    \16\ Also see 29 CFR 1910.146(b).
---------------------------------------------------------------------------

    8. Hyperbaric--at a higher pressure than atmospheric pressure.
    9. Hyperbaric intervention--a term that describes the process of 
stopping the EPBTBM and preparing and executing work under hyperbaric 
pressure in the working chamber for the purpose of inspecting, 
replacing, or repairing cutting tools and/or the cutterhead structure.
    10. Hyperbaric Operations Manual--a detailed, project-specific 
health and safety plan developed and implemented by the employer for 
working in compressed air during the New York Siphon Tunnel Project.
    11. Job hazard analysis--an evaluation of tasks or operations to 
identify potential hazards and to determine the necessary controls.
    12. Man lock--an enclosed space capable of pressurization, and used 
for compressing or decompressing any employee or material when either 
is passing into or out of a working chamber.
    13. Pressure--a force acting on a unit area; usually expressed as 
pounds per square inch (p.s.i.).
    14. p.s.i.--pounds per square inch, a common unit of measurement of 
pressure; a pressure given in p.s.i. corresponds to absolute pressure.
    15. p.s.i.a--pounds per square inch absolute, or absolute pressure, 
is the sum of the atmospheric pressure and gauge pressure. At sea 
level, atmospheric pressure is approximately 14.7 p.s.i. Adding 14.7 to 
a pressure expressed in units of p.s.i.g. will yield the absolute 
pressure, expressed as p.s.i.a.
    16. p.s.i.g.--pounds per square inch gauge, a common unit of 
pressure; pressure expressed as p.s.i.g. corresponds to pressure 
relative to atmospheric pressure. At sea level,

[[Page 29818]]

atmospheric pressure is approximately 14.7 p.s.i. Subtracting 14.7 from 
a pressure expressed in units of p.s.i.a. yields the gauge pressure, 
expressed as p.s.i.g.
    17. Qualified person--an individual who, by possession of a 
recognized degree, certificate, or professional standing, or who, by 
extensive knowledge, training, and experience, successfully 
demonstrates an ability to solve or resolve problems relating to the 
subject matter, the work, or the project.\17\
---------------------------------------------------------------------------

    \17\ Adapted from 29 CFR 1926.32(m).
---------------------------------------------------------------------------

    18. Working chamber--an enclosed space in the EPBTBM in which CAWs 
perform interventions, and which is accessible only through a man lock.

E. Safety and Health Practices

    1. Tully must develop and implement a project-specific HOM, and 
submit the HOM to OSHA at least six months before using the EPBTBM. 
Tully must receive a written acknowledgement from OSHA regarding the 
acceptability of the HOM.\18\ The HOM shall provide the governing 
safety and health requirements regarding hyperbaric exposures during 
the tunnel-construction project.
---------------------------------------------------------------------------

    \18\ The previously granted interim order (79 FR 844) 
constitutes such acknowledgement by OSHA of the acceptability of the 
HOM provided by Tully for the New York Siphon Tunnel Project.
---------------------------------------------------------------------------

    2. Tully must implement the safety and health instructions included 
in the manufacturer's operations manuals for the EPBTBM, and the safety 
and health instructions provided by the manufacturer for the operation 
of decompression equipment.
    3. Tully must use air as the only breathing gas in the working 
chamber.
    4. Tully must use the 1992 French Decompression Tables for air, 
air-oxygen, and oxygen decompression specified in the HOM, specifically 
the tables titled ``French Regulation Air Standard Tables.''
    5. Tully must equip man-locks used by its employees with an oxygen-
delivery system as specified by the HOM. Tully must not store oxygen or 
other compressed gases used in conjunction with hyperbaric work in the 
tunnel.
    6. Workers performing hot work under hyperbaric conditions must use 
flame-retardant personal protective equipment and clothing.
    7. In hyperbaric work areas, Tully must maintain an adequate fire-
suppression system approved for hyperbaric work areas.
    8. Tully must develop and implement one or more JHAs for work in 
the hyperbaric work areas, and review, periodically and as necessary 
(e.g., after making changes to a planned intervention that affects its 
operation), the contents of the JHAs with affected employees. The JHAs 
must include all the job functions that the risk assessment \19\ 
indicates are essential to prevent injury or illness.
---------------------------------------------------------------------------

    \19\ See ANSI/AIHA Z10-2012, American National Standard for 
Occupational Health and Safety Management Systems, for reference.
---------------------------------------------------------------------------

    9. Tully must develop a set of checklists to guide compressed-air 
work and ensure that employees follow the procedures required by this 
permanent variance (including all procedures required by the HOM, which 
this permanent variance incorporates by reference). The checklists must 
include all steps and equipment functions that the risk assessment 
indicates are essential to prevent injury or illness during compressed-
air work.
    10. Tully must ensure that the safety and health provisions of the 
HOM adequately protect the workers of all contractors and 
subcontractors involved in hyperbaric operations.\20\
---------------------------------------------------------------------------

    \20\ See ANSI/ASSE A10.33-2011, American National Standard for 
Construction and Demolition Operations--Safety and Health Program 
Requirements for Multi-Employer Projects, for reference.
---------------------------------------------------------------------------

F. Communication

    1. Prior to beginning a shift, Tully must implement a system that 
informs workers exposed to hyperbaric conditions of any hazardous 
occurrences or conditions that might affect their safety, including 
hyperbaric incidents, gas releases, equipment failures, earth or rock 
slides, cave-ins, flooding, fires, or explosions.
    2. Tully must provide a power-assisted means of communication among 
affected workers and support personnel in hyperbaric conditions where 
unassisted voice communication is inadequate.
    a. Tully must use an independent power supply for powered 
communication systems, and these systems must operate such that use or 
disruption of any one phone or signal location will not disrupt the 
operation of the system from any other location.
    b. Tully must test communication systems at the start of each shift 
and as necessary thereafter to ensure proper operation.

G. Worker Qualifications and Training

    Tully must:
    1. Ensure that each affected worker receives effective training on 
how to safely enter, work in, exit from, and undertake emergency 
evacuation or rescue from, hyperbaric conditions, and document this 
training.
    2. Provide effective instruction, before beginning hyperbaric 
operations, to each worker who performs work, or controls the exposure 
of others, in hyperbaric conditions, and document this instruction. The 
instruction must include topics such as:
    a. The physics and physiology of hyperbaric work;
    b. Recognition of pressure-related injuries;
    c. Information on the causes and recognition of the signs and 
symptoms associated with decompression illness, and other hyperbaric 
intervention-related health effects (e.g., barotrauma, nitrogen 
narcosis, and oxygen toxicity).
    d. How to avoid discomfort during compression and decompression; 
and
    e. Information the workers can use to contact the appropriate 
healthcare professionals should the workers have concerns that they may 
be experiencing adverse health effects from hyperbaric exposure.
    3. Repeat the instruction specified in paragraph (2) of this 
condition periodically and as necessary (e.g., after making changes to 
its hyperbaric operations).
    4. When conducting training for its hyperbaric workers, make this 
training available to OSHA personnel and notify the OTPCA at OSHA's 
national office and OSHA's Manhattan Area Office before the training 
takes place.

H. Inspections, Tests, and Accident Prevention

    1. Tully must initiate and maintain a program of frequent and 
regular inspections of the EPBTBM's hyperbaric equipment and support 
systems (such as temperature control, illumination, ventilation, and 
fire-prevention and fire-suppression systems), and hyperbaric work 
areas, as required under 29 CFR 1926.20(b)(2) by:
    a. Developing a set of checklists to be used by a competent person 
in conducting weekly inspections of hyperbaric equipment and work 
areas; and
    b. Ensuring that a competent person conducts daily visual checks, 
as well as weekly inspections of the EPBTBM.
    2. If the competent person determines that the equipment 
constitutes a safety hazard, Tully must remove the equipment from 
service until it corrects the hazardous condition and has the 
correction approved by a qualified person.
    3. Tully must maintain records of all tests and inspections of the 
EPBTBM, as well as associated corrective actions and repairs, at the 
job site for the duration of the job.

[[Page 29819]]

I. Compression and Decompression

    Tully must consult with its attending physician concerning the need 
for special compression or decompression exposures appropriate for CAWs 
not acclimated to hyperbaric exposure.

J. Recordkeeping

    Tully must maintain a record of any recordable injury, illness, or 
fatality (as defined by 29 CFR part 1904 Recording and Reporting 
Occupational Injuries and Illnesses) resulting from exposure of an 
employee to hyperbaric conditions by completing the OSHA 301 Incident 
Report form and OSHA 300 Log of Work Related Injuries and Illnesses.

    Note: Examples of important information to include on the OSHA 
301 Incident Report form (along with the corresponding question on 
the form) are: the task performed (Question (Q) 14); an estimate of 
the CAW's workload (Q 14); the composition of the gas mixture (e.g., 
air or oxygen (Q 14)); the maximum working pressure (Q 14); 
temperatures in the work and decompression environments (Q 14); 
unusual occurrences, if any, during the task or decompression (Q 
14); time of symptom onset (Q 15); duration between decompression 
and onset of symptoms (Q 15); type and duration of symptoms (Q 16); 
a medical summary of the illness or injury (Q 16); duration of the 
hyperbaric intervention (Q 17); possible contributing factors (Q 
17); the number of prior interventions completed by the injured or 
ill CAW (Q 17); the number of prior interventions completed by the 
injured or ill CAW at this working pressure (Q 17); contact 
information for the treating healthcare provider (Q 17); and date 
and time of last hyperbaric exposure for this CAW.

    In addition to completing the OSHA 301 Incident Report form and 
OSHA 300 Log of Work Related Injuries and Illnesses, the employer must 
maintain records of:
    1. The date, times (e.g., began compression, time spent 
compressing, time performing intervention, time spent decompressing), 
and pressure for each hyperbaric intervention.
    2. The name of each individual worker exposed to hyperbaric 
pressure and the decompression protocols and results for each worker.
    3. The total number of interventions and the total hyperbaric 
exposure duration at each pressure.
    4. The results of the post-intervention physical assessment of each 
CAW for signs and symptoms of decompression illness, barotrauma, 
nitrogen narcosis, oxygen toxicity or other health effects associated 
with work in compressed air or mixed gases for each hyperbaric 
intervention.

K. Notifications

    1. To assist OSHA in administering the conditions specified herein, 
the employer must:
    a. Notify the OTPCA and the Manhattan Area Office of any recordable 
injury, illness, or fatality (by submitting the completed OSHA 301 
Incident Report form \21\) resulting from exposure of an employee to 
hyperbaric conditions, including those exposures that do not require 
recompression treatment (e.g., nitrogen narcosis, oxygen toxicity, 
barotrauma), but still meet the recordable injury or illness criteria 
of 29 CFR 1904. The employer shall provide the notification within 8 
hours of the incident or 8 hours after becoming aware of a recordable 
injury, illness, or fatality, and submit a copy of the incident 
investigation (OSHA form 301) within 24 hours of the incident or 24 
hours after becoming aware of a recordable injury, illness, or 
fatality. In addition to the information required by the OSHA form 301, 
the incident-investigation report must include a root-cause 
determination, and the preventive and corrective actions identified and 
implemented.
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    \21\ See footnote 4.
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    b. Provide certification within 15 days of the incident that the 
employer informed affected workers of the incident and the results of 
the incident investigation (including the root-cause determination and 
preventive and corrective actions identified and implemented).
    c. Notify the OTPCA and the Manhattan Area Office within 15 working 
days in writing of any change in the compressed-air operations that 
affects the employer's ability to comply with the conditions specified 
herein.
    d. Upon completion of the New York Siphon Tunnel Project, evaluate 
the effectiveness of the decompression tables used throughout the 
project, and provide a written report of this evaluation to the OTPCA 
and the Manhattan Area Office.
    Note: The evaluation report is to contain summaries of: (1) The 
number, dates, durations, and pressures of the hyperbaric interventions 
completed; (2) decompression protocols implemented (including 
composition of gas mixtures (air and/or oxygen), and the results 
achieved; (3) the total number of interventions and the number of 
hyperbaric incidents (decompression illnesses and/or health effects 
associated with hyperbaric interventions as recorded on OSHA 301 and 
300 forms, and relevant medical diagnoses and treating physicians' 
opinions); and (4) root causes of any hyperbaric incidents, and 
preventive and corrective actions identified and implemented.
    e. To assist OSHA in administering the conditions specified herein, 
inform the OTPCA and the Manhattan Area Office as soon as possible 
after it has knowledge that it will:
    i. Cease to do business;
    ii. Change the location and address of the main office for managing 
the tunneling operations specified herein; or
    iii. Transfer the operations specified herein to a successor 
company.
    f. Notify all affected employees of this permanent variance by the 
same means required to inform them of its application for a variance.
    2. OSHA must approve the transfer of this permanent variance to a 
successor company.

VII. Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for 
Occupational Safety and Health, 200 Constitution Avenue NW., 
Washington, DC 20210, authorized the preparation of this notice. 
Accordingly, the Agency is issuing this notice pursuant to Section 29 
U.S.C. 655(6)(d), Secretary of Labor's Order No. 1-2012 (77 FR 3912, 
Jan. 25, 2012), and 29 CFR 1905.11.

    Signed at Washington, DC on May 20, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2014-12016 Filed 5-22-14; 8:45 am]
BILLING CODE 4510-26-P