Ballard Marine Construction; Application for Permanent Variance and Interim Order; Grant of Interim Order, 5253-5263 [2021-01110]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 86, Number 11 (Tuesday, January 19, 2021)]
[Notices]
[Pages 5253-5263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01110]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2019-0008]


Ballard Marine Construction; Application for Permanent Variance 
and Interim Order; Grant of Interim Order

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

ACTION: Notice; request for comments.

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SUMMARY: In this notice, OSHA announces Ballard Marine Construction's 
application for a Permanent Variance and Interim Order

[[Page 5254]]

from provisions of OSHA standards that regulate work in compressed air 
environments and presents the agency's preliminary finding to grant the 
Permanent Variance. OSHA also announces the granting of an Interim 
Order. OSHA invites the public to submit comments on the variance 
application to assist the agency in determining whether to grant the 
applicant a Permanent Variance based on the conditions specified in 
this application.

DATES: Submit comments, information, documents in response to this 
notice, and request for a hearing on or before February 18, 2021. The 
Interim Order described in this notice will become effective on January 
19, 2021, and shall remain in effect until the completion of the 
Suffolk County Outfall Tunnel, in West Babylon, New York or the Interim 
Order is modified or revoked.

ADDRESSES: 
    Electronically: You may submit comments and attachments 
electronically at: https://www.regulations.gov, which is the Federal 
eRulemaking Portal. Follow the instructions online for submitting 
comments.
    Mail, hand delivery, express mail, messenger, or courier service: 
When using this method, you must submit a copy of your comments and 
attachments to the OSHA Docket Office, Docket No. OSHA-2019-0008, 
Occupational Safety and Health Administration, U.S. Department of 
Labor, Room N-3653, 200 Constitution Avenue NW, Washington, DC 20210; 
telephone (202) 693-2350. OSHA's TTY number is (877) 889-5627. Please 
note: While OSHA's docket office is continuing to accept and process 
submissions by regular mail, due to the COVID-19 pandemic, the Docket 
Office is closed to the public and not able to receive submissions to 
the rulemaking record by express delivery, hand delivery and messenger 
service.
    Instructions: All submissions must include the agency name and OSHA 
docket number (OSHA-2019-0008). All comments, including any personal 
information you provide, are placed in the public docket without 
change, and may be made available online at https://www.regulations.gov.
    Docket: To read or download comments or other material in the 
docket, go to https://www.regulations.gov or the OSHA Docket Office at 
the above address. All documents in the docket (including this Federal 
Register notice) are listed in the https://www.regulations.gov index; 
however, some information (e.g., copyrighted material) is not publicly 
available to read or download through the website. All submissions, 
including copyrighted material, are available for inspection through 
the OSHA Docket Office. You may also contact Kevin Robinson, Director 
Office of Technical Programs and Coordination Activities (OTPCA) at the 
below address.

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; telephone: (202) 693-1999; 
email: [email protected].
    General and technical information: Contact Mr. Kevin Robinson, 
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; telephone: 
(202) 693-2110; email: [email protected].
    Copies of this Federal Register notice. Electronic copies of this 
Federal Register notice are available at https://www.regulations.gov. 
This Federal Register notice, as well as news releases and other 
relevant information, also are available at OSHA's web page at https://www.osha.gov.
    Hearing Requests. According to 29 CFR 1905.15, hearing requests 
must include: (1) A short and plain statement detailing how the 
permanent variance would affect the requesting party; (2) a 
specification of any statement or representation in the variance 
application that the commenter denies, and a concise summary of the 
evidence offered in support of each denial; and (3) any views or 
arguments on any issue of fact or law presented in the variance 
application.

SUPPLEMENTARY INFORMATION: 

I. Notice of Application

    OSHA's standards in subpart S of 29 CFR part 1926 govern 
underground construction, caissons, cofferdams, and compressed air. On 
January 2, 2019, Ballard Marine Construction (``Ballard'' or ``the 
applicant''), 727 S. 27th Street, Washougal, Washington 98761, 
submitted under Section 6(d) of the Occupational Safety and Health Act 
of 1970 (the ``Act''), 29 U.S.C. 655, and 29 CFR 1905.11 an application 
for a Permanent Variance from several provisions of the OSHA standard 
that regulates work in compressed air, 1926.803 of subpart S, and an 
Interim Order allowing it to proceed while OSHA considers the request 
for a Permanent Variance (OSHA-2019-0008-0001). This notice addresses 
Ballard's application for a Permanent Variance and Interim Order for 
construction of the Suffolk County Outfall Tunnel Project in West 
Babylon, New York only and is not applicable to future Ballard 
tunneling projects.
    Specifically, this notice addresses Ballard's application for a 
Permanent Variance and Interim Order from the provisions of the 
standard that: (1) Require the use of the decompression values 
specified in decompression tables in Appendix A of subpart S (29 CFR 
1926.803(f)(1)); and (2) require the use of automated operational 
controls and a special decompression chamber (29 CFR 
1926.803(g)(1)(iii) and (xvii), respectively).
    OSHA has previously approved nearly identical provisions when 
granting several other very similar variances, as discussed in more 
detail in Section II. OSHA preliminarily concludes that the proposed 
variance is appropriate, grants an Interim Order temporarily allowing 
the proposed activity, and seeks comment on the proposed variance.

A. Background

    Ballard is a contractor that works on complex tunnel projects using 
innovations in tunnel-excavation methods. The applicant's workers 
engage in the construction of tunnels using advanced shielded 
mechanical excavation techniques in conjunction with an earth pressure 
balanced micro-tunnel boring machine (EPBMTBM). Using shielded 
mechanical excavation techniques, in conjunction with precast concrete 
tunnel liners and backfill grout, EPBMTBMs 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 excavation working chamber) of the EPBMTBM.
    Ballard asserts that generally it bores tunnels using an EPBMTBM at 
levels below the water table through soft soils. EPBMTBMs 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 a protective shield, 
ground-treatment foam, and a screw conveyor that moves excavated 
material from the working chamber. The forward-most portion of the 
EPBMTBM is the working chamber, and this chamber is the only 
pressurized segment of the EPBMTBM. Within the shield, the working 
chamber consists of two sections: the forward working chamber and the 
staging chamber. The forward working chamber is

[[Page 5255]]

immediately behind the cutter head and tunnel face. The staging chamber 
is behind the forward working chamber and between the manlock door and 
the entry door to the forward working chamber.
    The EPBMTBM has twin manlocks located between the pressurized 
working chamber and the non-pressurized portion of the machine. Each 
manlock has two compartments. This configuration allows workers to 
access the manlocks for compression and decompression, and medical 
personnel to access the manlocks if required in an emergency.
    The applicant will pressurize the working chamber to the level 
required to maintain a stable tunnel face, which for this project 
Ballard estimates will be up to a pressure not exceeding 30 pounds per 
square in gauge (p.s.i.g.). Pressure in the staging chamber ranges from 
atmospheric (no increased pressure) to a maximum pressure equal to the 
pressure in the forward excavation working chamber.
    Ballard employs specially trained personnel for the construction of 
the tunnel. Ballard asserts that to keep the machinery working 
effectively, these workers must periodically enter the excavation 
working chamber of the EPBMTBM to perform hyperbaric interventions 
during which workers would be exposed to air pressures up to 30 
p.s.i.g., which does not exceed the maximum pressure specified by the 
existing OSHA standard at 29 CFR 1926.803(e)(5). These interventions 
consist of conducting inspections or maintenance work on the cutter-
head structure and cutting tools of the EPBMTBM, such as changing 
replaceable cutting tools and disposable wear bars, and, in rare cases, 
repairing structural damage to the cutter head. These interventions are 
the only time that workers are exposed to compressed air. Interventions 
in the excavation working chamber (the pressurized portion of the 
EPBMTBM) take place only after halting tunnel excavation and preparing 
the machine and crew for an intervention.
    During interventions, workers enter the excavation working chamber 
through one of the twin manlocks 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 
excavation working chamber. The manlocks and the excavation working 
chamber are designed to accommodate three people, which is the maximum 
crew size allowed under the proposed variance (Ballard only plans to 
employ a crew of two people for these activities). When the required 
decompression times are greater than work times, the twin manlocks 
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 manlock available 
for use.
    Ballard asserts that these innovations in tunnel excavation have 
greatly reduced worker exposure to hazards of pressurized air work 
because they have eliminated the need to pressurize the entire tunnel 
for the project and thereby reduced the number of workers exposed, as 
well as the total duration of exposure, to hyperbaric pressure during 
tunnel construction. These advances in technology have substantially 
modified the methods used by the construction industry to excavate 
subaqueous tunnels compared to the caisson work that was typical when 
OSHA adopted the compressed-air standard for construction, 29 CFR 
1926.803.
    In addition to the reduced exposures resulting from the innovations 
in tunnel-excavation methods, Ballard asserts that innovations in 
hyperbaric medicine and technology improve the safety of decompression 
from hyperbaric exposures. These procedures, however, would deviate 
from the decompression process that OSHA requires for construction in 
29 CFR 1926.803(f)(1) and the decompression tables in Appendix A of 29 
CFR part 1926, subpart S. Nevertheless, according to Ballard, their 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.
    Ballard therefore believes its workers will be at least as safe 
under its proposed alternatives as they would be under OSHA's existing 
standard because of the reduction in the number of workers and duration 
of hyperbaric exposures, improved application of hyperbaric medicine, 
and the development of a project-specific Hyperbaric Operations Manual 
(HOM) (OSHA-2019-0008-0002) that requires specialized medical support 
and hyperbaric supervision to provide assistance to a team of specially 
trained manlock attendants and hyperbaric or compressed-air workers 
(CAWs).
    Based on an initial review of Ballard's application for a Permanent 
Variance and Interim Order for the construction of the Suffolk County 
Outfall Tunnel in West Babylon, New York, OSHA has preliminarily 
determined that Ballard has proposed an alternative that would provide 
a workplace at least as safe and healthful as that provided by OSHA's 
existing standard.

II. The Variance Application

    Pursuant to the requirements of OSHA's variance regulations, the 
applicant certifies that it provided employee representatives of 
affected workers with a copy of the variance application.\1\ 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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    \1\ See the definition of ``Affected employee or worker'' in 
section VI. D.
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A. OSHA History of Approval of Nearly Identical Variance Requests

    OSHA previously approved several nearly identical variances 
involving the same types of tunneling equipment used for similar 
projects. OSHA notes that it granted four subaqueous tunnel 
construction permanent variances from the same provisions of OSHA's 
compressed-air standard (29 CFR 1926.803(f)(1), (g)(1)(iii), and 
(g)(1)(xvii)) that are the subject of the present application: (1) 
Impregilo, Healy, Parsons, Joint Venture (IHP JV) for the completion of 
the Anacostia River Tunnel in Washington, DC, 80 FR 50652 (Aug. 20, 
2015); (2) Traylor JV for the completion of the Blue Plains Tunnel in 
Washington, DC, 80 FR 16440 (March 27, 2015); (3) Tully/OHL USA Joint 
Venture for the completion of the New York Economic Development 
Corporation's New York Siphon Tunnel project, 79 FR 29809 (May 23, 
2014); and (4) Salini-Impregilo Joint Venture in Washington, DC, 85 FR 
27767 (May 11, 2020). The proposed alternate conditions in this notice 
are nearly identical to the alternate conditions of the previous 
Permanent Variances.\2\ OSHA is not aware of any injuries or other 
safety issues that arose from work

[[Page 5256]]

performed under these conditions in accordance with the previous 
variances.
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    \2\ Most of the other subaqueous tunnel construction variances 
allowed further deviation from OSHA standards by permitting employee 
exposures above 50 p.s.i.g. based on the composition of the soil and 
the amount of water above the tunnel for various sections of those 
projects. The current proposed variance includes substantively the 
same safeguards as the variances that OSHA granted previously, even 
though employees will only be exposed to pressures up to 30 p.s.i.g.
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B. 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 according to the decompression tables in Appendix A of 29 
CFR part 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 (the 1992 French Decompression Tables), which 
rely on staged decompression, and to supplement breathing air used 
during decompression with air or oxygen (as appropriate).\3\ The 
applicant asserts decompression protocols using the 1992 French 
Decompression Tables for air or oxygen as specified by the Suffolk 
County Outfall Tunnel-specific HOM are safer for tunnel workers than 
the decompression protocols specified in Appendix A of 29 CFR part 
1926, subpart S. Accordingly, the applicant would commit to following 
the decompression procedures described in its HOM, which would require 
it to follow the 1992 French Decompression Tables to decompress 
compressed-air workers (CAWs) after they exit the hyperbaric conditions 
in the excavation working chamber.
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    \3\ 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). 
Source: J.C. Le Pechon, P. Barre, J.P. Baudi, F. Olivier, Compressed 
Air Work--French Tables 1992--Operational Results. JCLP Hyperbarie 
Paris, Centre Medical Subaquatique Interentreprise, Marseille: 
Communication a l'EUBS, pp. 1-5 (September 1996) (see Ex. OSHA-2012-
0036-0005).
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    Depending on the maximum working pressure and exposure times, the 
1992 French Decompression Tables provide for air decompression with or 
without oxygen. Ballard asserts that oxygen decompression has many 
benefits, including (1) keeping the partial pressure of nitrogen in the 
lungs as low as possible; (2) maintaining appropriate levels of 
external pressure to reduce the formation of bubbles in the blood; (3) 
removing nitrogen from the lungs and arterial blood and increasing the 
rate of nitrogen elimination; (4) improving the quality of breathing 
during decompression stops to diminish worker fatigue and to prevent 
bone necrosis; (5) reducing decompression time by about 33 percent as 
compared to air decompression; and (6) reducing inflammation.
    In addition, Ballard has stated that a physician certified in 
hyperbaric medicine will be required to manage the medical condition of 
CAWs during hyperbaric exposures and decompression. The project-
specific HOM also requires a trained and experienced manlock attendant 
to be present during hyperbaric exposures and decompression. This 
manlock attendant, who will be a competent person with respect to 
hyperbaric systems, is to operate the hyperbaric system to ensure 
compliance with the specified decompression table. A intervention 
supervisor (competent person), who is 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.

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

    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 conducting the staged decompression according to the 1992 
French Decompression Tables under the direct control of the trained 
manlock attendant and under the oversight of the hyperbaric supervisor.
    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 decompression illness (``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.\4\
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    \4\ See infra note 6, discussing a 1985 NIOSH report on DCI.
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    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 
use of automatically regulated continuous decompression.\5\ In 
addition, the applicant asserts that staged decompression administered 
in accordance with its HOM is at least as effective as an automatic 
controller in regulating the decompression process because the HOM 
includes an intervention supervisor (a competent person experienced and 
trained in hyperbaric operations, procedures, and safety) who directly 
supervises all hyperbaric interventions and ensures that the manlock 
attendant, who is a competent person in the manual control of 
hyperbaric systems, follows the schedule specified in the decompression 
tables, including stops.
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    \5\ See, e.g., Eric Kindwall, Compressed Air Tunneling and 
Caisson Work Decompression Procedures: Development, Problems, and 
Solutions, 24(4) Undersea and Hyperbaric Medicine 337, 337-45 
(1997). 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. Dr. 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 and recommended using staged 
decompression. Dr. Kindwall then states, ``Continuous decompression 
is inefficient and wasteful. For example, if the last stage from 4 
p.s.i.g. . . . to the surface took 1h, at least half the time is 
spent at pressures less than 2 p.s.i.g. . . ., which provides less 
and less meaningful bubble suppression . . . .'' In addition, Dr. 
Kindwall 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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D. 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 of sufficient size to 
accommodate all CAWs being decompressed at the end of the shift when 
total decompression time exceeds 75 minutes (see 29 CFR 
1926.803(g)(1)(xvii)). Use of the special decompression chamber enables 
CAWs to move about and flex their joints to prevent neuromuscular 
problems during decompression.

[[Page 5257]]

    The applicant proposes that it be permitted to rely on the manlocks 
and staging chamber in lieu of adding a separate, special decompression 
chamber. Because only a few workers out of the entire crew are exposed 
to hyperbaric pressure, the manlocks (which, as noted earlier, connect 
directly to the working chamber) and the staging chamber are of 
sufficient size to accommodate all of the exposed workers during 
decompression. The applicant uses the existing manlocks, each of which 
adequately accommodates a three-member crew for this purpose when 
decompression lasts up to 75 minutes. Under Ballard's application, only 
two crew members would have to decompress at the same time. When 
decompression exceeds 75 minutes, crews can open the door connecting 
the two compartments in each manlock (during decompression stops) or 
exit the manlock and move into the staging chamber where additional 
space is available. The applicant asserts that this alternative 
arrangement is at least as effective as a special decompression chamber 
in that it has sufficient space for all the CAWs at the end of a shift 
and enables the CAWs to move about and flex their joints to prevent 
neuromuscular problems.

III. Agency Preliminary Determinations

    After reviewing the proposed alternatives OSHA has preliminarily 
determined that collectively the applicant's proposed alternatives, 
subject to the conditions in the request and imposed by this Interim 
Order, provide measures that are as safe and healthful as those 
required by the cited OSHA standard addressed in section II of this 
document.
    In addition, OSHA has preliminarily determined that each of the 
following alternatives are at least as effective as the specified OSHA 
requirements:

29 CFR 1926.803(f)(1), Requirement to Use OSHA Decompression Tables.

    Ballard has proposed to implement equally effective alternative 
measures to the requirement in 29 CFR 1926.803(f)(1) for compliance 
with OSHA's decompression tables. The HOM specifies the procedures and 
personnel qualifications for performing work safely during the 
compression and decompression phases of interventions. The HOM also 
specifies the use of the 1992 French Decompression Tables. Depending on 
the maximum working pressure and exposure times during the 
interventions, these 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 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 manlock 
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.
    As it did when granting the four previous variances to IHP JV, 
Traylor JV, Tully JV, and Salini-Impregilo, OSHA conducted a review of 
the scientific literature and concluded that the alternative 
decompression method (i.e., the 1992 French Decompression Tables) 
Ballard proposes would be at least as safe as the decompression tables 
specified by OSHA when applied by trained medical personnel under the 
conditions that would be imposed by the proposed variance.
    Some of the literature concluded that decompression performed in 
accordance with these tables resulted in a lower occurrence of DCI than 
decompression conducted in accordance with the decompression tables 
specified by the standard.\6\ 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).\7\ This project used the 1992 French Decompression 
Tables to decompress the workers during part of the construction. 
Anderson observed 6 DCI cases out of 7,220 decompression events, and 
reported that switching to the 1992 French Decompression tables reduced 
the DCI incidence to 0.08% compared to a previous incidence rate of 
0.14%.
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    \6\ 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 website: https://www.cdc.gov/niosh/topics/decompression/default.html.
    \7\ H.L. Anderson HL, Decompression sickness during construction 
of the Great Belt tunnel, Denmark, 29(3) Undersea and Hyperbaric 
Medicine 172, 172-88 (2002).
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    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.\8\
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    \8\ J.C. Le P[eacute]chon, P. Barre, J.P. Baud, F. Ollivier, 
Compressed Air Work--French Tables 1992--Operational Results, JCLP 
Hyperbarie Paris, Centre Medical Subaquatique Interentreprise, 
Marseille: Communication a l'EUBS, pp. 1-5 (September 1996) (see Ex. 
OSHA-2012-0036-0005).
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    OSHA's experience with the previous four variances, which all 
incorporated nearly identical decompression plans and did not result in 
safety issues, also provides evidence that the alternative procedure as 
a whole is at least as effective for this type of tunneling project as 
compliance with OSHA's decompression tables. The experience of State 
Plans \9\ that either granted variances (Nevada, Oregon and Washington) 
\10\ or promulgated a standard (California) \11\ for hyperbaric 
exposures occurring during similar subaqueous tunnel-construction work, 
provide additional evidence of the effectiveness of this alternative 
procedure.
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    \9\ Under Section 18 of the OSH Act, Congress expressly provides 
that States and U.S. territories may adopt, with Federal approval, a 
plan for the development and enforcement of occupational safety and 
health standards. OSHA refers to such States and territories as 
``State Plan States.'' Occupational safety and health standards 
developed by State Plan States must be at least as effective in 
providing safe and healthful employment and places of employment as 
the Federal standards. See 29 U.S.C. 667.
    \10\ These state variances are available in the docket for the 
2015 Traylor JV variance: Exs. OSHA-2012-0035-0006 (Nevada), OSHA-
2012-0035-0005 (Oregon), and OSHA-2012-0035-0004 (Washington).
    \11\ See California Code of Regulations, Title 8, Subchapter 7, 
Group 26, Article 154, available at https://www.dir.ca.gov/title8/sb7g26a154.html.
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29 CFR 1926.803(g)(1)(iii), Automatically Regulated Continuous 
Decompression

    Ballard developed, and has proposed to implement, an equally 
effective alternative to 29 CFR 1926.803(g)(1)(iii), which requires the 
use of automatic controllers that continuously decrease pressure to 
achieve decompression in accordance with the tables specified by the 
standard. The applicant's 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.
    In reaching this preliminary conclusion, OSHA again notes the 
experience of previous, nearly identical

[[Page 5258]]

approved tunneling variances, the experiences of State Plan states, and 
a review of the literature and other information noted earlier.

29 CFR 1926.803(g)(1)(xvii), Requirement of Special Decompression 
Chamber

    Ballard developed, and proposed to implement, an alternative that 
is at least as effective as the use of the special decompression 
chamber required by 29 CFR 1926.803(g)(1)(xvii). The EPBMTBM's manlock 
and excavation working chamber appear to satisfy most of the conditions 
of the special decompression chamber, including that they provide 
sufficient space for the maximum crew of three CAWs to stand up and 
move around. While the alternative does not indicate that their 
chambers would be able to safely accommodate decompression times up to 
360 minutes, Ballard addressed this issue in correspondence with OSHA 
and explained how their process is at least as effective as OSHA's 
requirement, which was designed to accommodate a different process:

    With the relatively low pressure expected during hyperbaric 
interventions, the decompression process with oxygen (French tables) 
proposed could never reach this [360 minute] duration. The maximum 
decompression duration at 30 psi (2.07 bar) is 121 minutes.

(Justin Costello email August 11, 2020) (OSHA-2019-0008-0003). Ballard 
later added that their decompression chamber is fully capable of 
operating for much longer than the necessary 121 minutes:

    The manlock where decompression occurs is capable of continuous 
operation, 24 hours per day for multiple days at a time. Operators of 
the manlock change shifts at the control station.

(Justin Costello email November 25, 2020) (OSHA-2019-0008-0004). 
Therefore, again noting OSHA's previous experience with nearly 
identical variances including the same alternative, OSHA preliminarily 
determined that the EPBMTBM's manlock and working chamber function at 
least as effectively as the special decompression chamber required by 
the standard.

    Pursuant to 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 preliminarily finds that when the employer complies with the 
conditions of this Interim Order, the working conditions of the 
employer's workers would be at least as safe and healthful as if the 
employer complied with the working conditions specified by paragraphs 
29 CFR 1926.803(f)(1), (g)(1)(iii), and (g)(1)(xvii).

IV. Grant of Interim Order, Proposal for Permanent Variance, and 
Request for Comment

    OSHA announces the decision to grant an Interim Order allowing 
Ballard's CAWs to perform interventions in hyperbaric conditions not 
exceeding 30 p.s.i.g. during the Suffolk County Outfall Tunnel, subject 
to the conditions that follow in this document. This Interim Order will 
remain in effect until completion of the Suffolk County Outfall Tunnel 
or until the agency modifies or revokes the Interim Order or makes a 
decision on Ballard's application for a Permanent Variance. During the 
period starting with the publication of this notice until completion of 
the Suffolk County Outfall Tunnel, or until the agency modifies or 
revokes the Interim Order or makes a decision on its application for a 
Permanent Variance, the applicant is required to comply fully with the 
conditions of the Interim Order as an alternative to complying with the 
following requirements of 29 CFR 1926.803 (``the standard'') that:
    1. 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));
    2. Require the use of automated operational controls (29 CFR 
1926.803(g)(1)(iii)); and
    3. Require the use of a special decompression chamber (29 CFR 
1926.803(g)(1)(xvii)).
    In order to avail itself of the Interim Order, Ballard must: (1) 
comply with the conditions listed in the Interim Order for the period 
starting with the grant of the Interim Order and ending with Ballard's 
completion of the Suffolk County Outfall Tunnel (or until the agency 
modifies or revokes the Interim Order or makes a decision on its 
application for a Permanent Variance); (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 proposed 
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.
    OSHA is also proposing that the same requirements (see above 
section IV, parts A through C) would apply to a Permanent Variance if 
OSHA ultimately issues one for this project. OSHA requests comment on 
those conditions as well as OSHA's preliminary determination that the 
specified alternatives and conditions would provide a workplace as safe 
and healthful as those required by the standard from which a variance 
is sought. After reviewing comments, OSHA will publish in the Federal 
Register the agency's final decision approving or rejecting the request 
for a Permanent Variance.

V. Description of the Specified Conditions of the Interim Order and the 
Application for a Permanent Variance

    This section describes the alternative means of compliance with 29 
CFR 1926.803(f)(1), (g)(1)(iii), and (g)(1)(xvii) and provides 
additional detail regarding the proposed conditions that form the basis 
of Ballard's application for an Interim Order and for a Permanent 
Variance. The conditions are listed in Section VI. For brevity, the 
discussion that follows refers only to the Permanent Variance, but the 
same conditions apply to the Interim Order.

Proposed Condition A: Scope

    The scope of the proposed Permanent Variance would limit coverage 
to the work situations specified. Clearly defining the scope of the 
proposed Permanent Variance provides Ballard, Ballard's employees, 
potential future applicants, other stakeholders, the public, and OSHA 
with necessary information regarding the work situations in which the 
proposed Permanent Variance would apply. To the extent that Ballard 
exceeds the defined scope of this variance, it would be required to 
comply with OSHA's standards.
    Pursuant to 29 CFR 1905.11, an employer (or class or group of 
employers) \12\ may request a Permanent Variance for a specific 
workplace or workplaces. If OSHA approves a Permanent Variance, it 
would apply only to the specific employer(s) that submitted the 
application and only to the specific workplace or workplaces designated 
as part of the project. In this instance, if OSHA were to grant a 
Permanent Variance, it would apply to only the applicant, Ballard 
Marine Construction, and only to the Suffolk County Outfall Tunnel. As 
a result, it is important to understand that if OSHA were to grant 
Ballard a Permanent Variance, it would not apply to any other employers 
or projects the

[[Page 5259]]

applicant may undertake in the future. However, 29 CFR 1905.13 does 
contain provisions for future modification of Permanent Variances to 
add or include additional employers if future joint ventures are 
established.
---------------------------------------------------------------------------

    \12\ A class or group of employers (such as members of a trade 
alliance or association) may apply jointly for a Variance provided 
an authorized representative for each employer signs the application 
and the application identifies each employer's affected facilities.
---------------------------------------------------------------------------

Proposed Condition B: Duration

    The Interim Order is only intended as a temporary measure pending 
OSHA's decision on the Permanent Variance, so this condition specifies 
the duration of the Order. If OSHA approves a Permanent Variance, it 
would specify the duration of the Permanent Variance as the remainder 
of the Suffolk County Outfall Tunnel.

Proposed Condition C: List of Abbreviations

    Proposed condition C defines a number of abbreviations used in the 
proposed 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 proposed Permanent Variance.

Proposed Condition D: Definitions

    The proposed condition defines a series of terms, mostly technical 
terms, used in the proposed 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 proposed Permanent Variance.

Proposed Condition E: Safety and Health Practices

    This proposed condition requires the applicant to develop and 
submit to OSHA an HOM specific to the Suffolk County Outfall Tunnel at 
least six months before using the EPBMTBM for tunneling operations. The 
applicant must also submit, at least six months before using the 
EPBMTBM, proof that the EPBMTBM's hyperbaric chambers have been 
designed, fabricated, inspected, tested, marked, and stamped in 
accordance with the requirements of ASME PVHO-1.2019 (or the most 
recent edition of Safety Standards for Pressure Vessels for Human 
Occupancy). These requirements ensure that the applicant develops 
hyperbaric safety and health procedures suitable for the project.
    The submission of the HOM to OSHA, which Ballard has already 
completed, enables OSHA to determine whether the safety and health 
instructions and measures Ballard specifies are appropriate to the 
field conditions of the tunnel (including expected geological 
conditions), conform to the conditions of the variance, and adequately 
protect the safety and health of the CAWs. It also facilitates OSHA's 
ability to ensure that the applicant is complying with these 
instructions and measures. The requirement for proof of compliance with 
ASME PVHO-1.2019 is intended to ensure that the equipment is 
structurally sound and capable of performing to protect the safety of 
the employees exposed to hyperbaric pressure.
    Additionally, the proposed condition includes a series of related 
hazard prevention and control requirements and methods (e.g., 
decompression tables, job hazard analyses (JHA), operations and 
inspections checklists, incident investigation, and recording and 
notification to OSHA of recordable hyperbaric injuries and illnesses) 
designed to ensure the continued effective functioning of the 
hyperbaric equipment and operating system.

Proposed Condition F: Communication

    This proposed condition requires the applicant to develop and 
implement an effective system of information sharing and communication. 
Effective information sharing and communication are intended to ensure 
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 proposed 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 would enable affected workers and support personnel to 
respond quickly and effectively to hazardous conditions or emergencies 
that may develop during EPBMTBM operations.

Proposed Condition G: Worker Qualification and Training

    This proposed condition requires the applicant to develop and 
implement an effective qualification and training program for affected 
workers. The proposed 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 is intended 
to ensure 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 proposed condition requires the applicant 
to provide affected workers with information they can use to contact 
the appropriate healthcare professionals if the workers 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.

Proposed Condition H: Inspections, Tests, and Accident Prevention

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

Proposed Condition I: Compression and Decompression

    This proposed condition would require the applicant to consult with 
the designated medical advisor regarding special compression or 
decompression procedures appropriate for any unacclimated CAW and then 
implement the procedures recommended by the medical consultant. This 
proposed provision would ensure 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

[[Page 5260]]

during EPBMTBM operations. Accordingly, CAWs requiring acclimation 
would have an opportunity to acclimate prior to exposure to these 
hyperbaric conditions. OSHA believes this condition would prevent or 
reduce adverse reactions among CAWs to the effects of compression or 
decompression associated with the intervention work they perform in the 
EPBMTBM.

Proposed Condition J: Recordkeeping

    Under OSHA's existing recordkeeping requirements in 29 CFR part 
1904 regarding Recording and Reporting Occupational Injuries and 
Illnesses, Ballard must maintain a record of any recordable injury, 
illness, or fatality (as defined by 29 CFR part 1904) resulting from 
exposure of an employee to hyperbaric conditions by completing the 
OSHA's Form 301 Injury and Illness Incident Report and OSHA's Form 300 
Log of Work-Related Injuries and Illnesses. The applicant did not seek 
a variance from this standard, and therefore must comply fully with 
those requirements.
    Examples of important information to include on the OSHA's Form 301 
Injury and Illness Incident Report (along with the corresponding 
question on the form) are:

Q14

     the task performed;
     the composition of the gas mixture (e.g., air or oxygen);
     an estimate of the CAW's workload;
     the maximum working pressure;
     temperature in the work and decompression environments; 
and
     unusual occurrences, if any, during the task or 
decompression.

Q15

     time of symptom onset; and
     duration between decompression and onset of symptoms.
Q16

     type and duration of symptoms; and
     a medical summary of the illness or injury.
Q17

     duration of the hyperbaric intervention;
     possible contributing factors; and
     the number of prior interventions completed by the injured 
or ill CAW; and the pressure to which the CAW was exposed during those 
interventions.\13\
---------------------------------------------------------------------------

    \13\ 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 OSHA Recordkeeping Handbook 
(https://www.osha.gov/recordkeeping/handbook/).
---------------------------------------------------------------------------

    Proposed Condition J would add additional reporting 
responsibilities, beyond those already required by the OSHA standard. 
The applicant would be required 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 proposed Condition K (using OSHA's Form 301 Injury and 
Illness Incident Report to investigate and record hyperbaric recordable 
injuries as defined by 29 CFR 1904.4, 1904.7, 1904.8-.12), would enable 
the applicant and OSHA to assess the effectiveness of the Permanent 
Variance in preventing DCI and other hyperbaric-related effects.

Proposed Condition K: Notifications

    Under the proposed condition, the applicant is required, within 
specified periods of time, to: (1) Notify OSHA of any recordable 
injury, illness, in-patient hospitalization, amputation, loss of an 
eye, or fatality that occurs as a result of hyperbaric exposures during 
EPBMTBM operations; (2) provide OSHA a copy of the hyperbaric exposures 
incident investigation report (using OSHA's Form 301 Injury and Illness 
Incident Report) of these events within 24 hours of the incident; (3) 
include on OSHA's Form 301 Injury and Illness Incident Report 
information on the hyperbaric conditions associated with the recordable 
injury or illness, the root-cause determination, and preventive and 
corrective actions identified and implemented; (4) provide the 
certification that affected workers were informed of the incident and 
the results of the incident investigation; (5) notify OSHA's Office of 
Technical Programs and Coordination Activities (OTPCA) and the Long 
Island New York OSHA Area Office (LIAO) within 15 working days should 
the applicant need to revise the HOM to accommodate changes in its 
compressed-air operations that affect Ballard's ability to comply with 
the conditions of the proposed Permanent Variance; and (6) provide 
OTPCA and the LIAO, at the end of the project, with a report evaluating 
the effectiveness of the decompression tables.
    It should be noted that the requirement for completing and 
submitting the hyperbaric exposure-related (recordable) incident 
investigation report (OSHA's Form 301 Injury and Illness Incident 
Report) is more restrictive than the existing recordkeeping requirement 
of completing OSHA's Form 301 Injury and Illness Incident Report within 
7 calendar days of the incident (1904.29(b)(3)). This modified, more 
stringent incident investigation and reporting requirement is 
restricted to intervention-related hyperbaric (recordable) incidents 
only. Providing rapid notification to OSHA is essential because time is 
a critical element in OSHA's ability to determine the continued 
effectiveness of the variance conditions in preventing hyperbaric 
incidents, and the applicant's identification and implementation of 
appropriate corrective and preventive actions.
    Further, these notification requirements also enable the applicant, 
its employees, and OSHA to assess the effectiveness of the Permanent 
Variance in providing the requisite level of safety to the applicant's 
workers and, based on this assessment, whether to revise or revoke the 
conditions of the proposed Permanent Variance. Timely notification 
permits OSHA to take whatever action may be necessary and appropriate 
to prevent possible further injuries and illnesses. Providing 
notification to employees informs them of the precautions taken by the 
applicant to prevent similar incidents in the future.
    Additionally, this proposed condition requires the applicant to 
notify OSHA if it ceases to do business, has a new address or location 
for the main office, or transfers the operations covered by the 
proposed Permanent Variance to a successor company. In addition, the 
condition specifies that the transfer of the Permanent Variance to a 
successor company must be approved by OSHA. These requirements allow 
OSHA to communicate effectively with the applicant regarding the status 
of the proposed Permanent Variance, and expedite the agency's 
administration and enforcement of the Permanent Variance. Stipulating 
that an applicant is required to 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 proposed Permanent Variance, thereby ensuring the safety 
of workers involved in performing the operations covered by the 
proposed Permanent Variance.

VI. Specific Conditions of the Interim Order and the Proposed Permanent 
Variance

    The following conditions apply to the Interim Order OSHA is 
granting to Ballard. These conditions specify the alternative means of 
compliance with the requirements of paragraphs 29 CFR 1926.803(f)(1), 
(g)(1)(iii), and (g)(1)(xvii). In addition, these conditions are 
specific to the alternative means of

[[Page 5261]]

compliance with the requirements of paragraphs 29 CFR 1926.803(f)(1), 
(g)(1)(iii), and (g)(1)(xvii) that OSHA is proposing for Ballard's 
Permanent Variance. To simplify the presentation of the conditions, 
OSHA generally refers only to the conditions of the proposed Permanent 
Variance, but the same conditions apply to the Interim Order except 
where otherwise noted.\14\
---------------------------------------------------------------------------

    \14\ In these conditions, OSHA is using the future conditional 
form of the verb (e.g., ``would''), which pertains to the 
application for a Permanent Variance (designated as ``Permanent 
Variance'') but the conditions are mandatory for purposes of the 
Interim Order.
---------------------------------------------------------------------------

    The conditions would apply with respect to all employees of Ballard 
exposed to hyperbaric conditions. These conditions are outlined in this 
Section:

Scope

    The Interim Order applies, and the Permanent Variance would apply, 
only when Ballard stops the tunnel-boring work, pressurizes the working 
chamber, and the CAWs either enter the working chamber to perform an 
intervention (i.e., inspect, maintain, or repair the mechanical-
excavation components), or exit the working chamber after performing 
interventions.
    The Interim Order and Proposed Variance apply only to work:
    1. That occurs in conjunction with construction of the Suffolk 
County Outfall Tunnel, a tunnel constructed using advanced shielded 
mechanical-excavation techniques and involving operation of an EPBMTBM;
    2. In the EPBMTBM's forward section (the excavation working 
chamber) and associated hyperbaric chambers used to pressurize and 
decompress employees entering and exiting the working chamber; and
    3. Performed in compliance with all applicable provisions of 29 CFR 
part 1926 except for the requirements specified by 29 CFR 
1926.803(f)(1), (g)(1)(iii), and (g)(1)(xvii).

Duration

    The Interim Order granted to Ballard will remain in effect until 
OSHA modifies or revokes this Interim Order or grants Ballard's request 
for a Permanent Variance in accordance with 29 CFR 1905.13. The 
proposed Permanent Variance, if granted, would remain in effect until 
the completion of Ballard's Suffolk County Outfall Tunnel.

List of Abbreviations

    Abbreviations used throughout this proposed Permanent Variance 
would include the following:

1. CAW--Compressed-air worker
2. CFR--Code of Federal Regulations
3. DCI--Decompression illness
4. DMT--Diver medical technician
5. EPBMTBM--Earth pressure balanced micro-tunnel boring machine
6. HOM--Hyperbaric operations manual
7. JHA--Job hazard analysis
8. OSHA--Occupational Safety and Health Administration
9. OTPCA--Office of Technical Programs and Coordination Activities

Definitions

    The following definitions would apply to this proposed Permanent 
Variance. These definitions would supplement the definitions in 
Ballard's project-specific HOM.
    1. Affected employee or worker--an employee or worker who is 
affected by the conditions of this proposed Permanent Variance, or any 
one of his or her authorized representatives. The term ``employee'' has 
the meaning defined by 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 pounds per square inch absolute (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 not exceeding 30 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.\15\
---------------------------------------------------------------------------

    \15\ Adapted from 29 CFR 1926.32(f).
---------------------------------------------------------------------------

    5. Decompression illness--an illness (also called decompression 
sickness or ``the bends'') 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 slight 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).\16\
---------------------------------------------------------------------------

    \16\ See U.K. Health & Safety Executive, A Guide to the Work in 
Compressed-Air Regulations 1996, 69 (2002), available at https://www.cdc.gov/niosh/docket/archive/pdfs/NIOSH-254/compReg1996.pdf 
(Appendix 10).

    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 is 
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. Diver Medical Technician-- member of the dive team who is 
experienced in first aid.
    7. Earth Pressure Balanced Micro-Tunnel Boring Machine--the 
machinery used by Ballard to excavate the tunnel in the Suffolk County 
Outfall Tunnel Project in West Babylon, New York.
    8. Hot work--any activity performed in a hazardous location that 
may introduce an ignition source into a potentially flammable 
atmosphere.\17\
---------------------------------------------------------------------------

    \17\ See also 29 CFR 1910.146(b).
---------------------------------------------------------------------------

    9. Hyperbaric--at a higher pressure than atmospheric pressure.
    10. Hyperbaric intervention--a term that describes the process of 
stopping the EPBMTBM 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.
    11. Hyperbaric Operations Manual--a detailed, project-specific 
health and safety plan developed and implemented by Ballard for working 
in compressed air during the Suffolk County Outfall Tunnel.
    12. Job hazard analysis--an evaluation of tasks or operations to 
identify potential hazards and to determine the necessary controls.
    13. Manlock--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.
    14. Pressure--a force acting on a unit area, usually expressed as 
pounds per square inch (p.s.i.).
    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.a. 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;

[[Page 5262]]

pressure expressed as p.s.i.g. corresponds to pressure relative to 
atmospheric pressure. At sea-level, atmospheric pressure is 
approximately 14.7 p.s.i.a. Subtracting 14.7 from a pressure expressed 
in units of p.s.i.a. yields the gauge pressure, expressed as p.s.i.g. 
At sea level the gauge pressure is 0 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.\18\
---------------------------------------------------------------------------

    \18\ Adapted from 29 CFR 1926.32(m).
---------------------------------------------------------------------------

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

Safety and Health Practices

    1. Ballard would have to adhere to the project-specific HOM 
submitted to OSHA as part of the application (see OSHA-2019-0018-0002). 
The HOM provides the minimum requirements regarding protections from 
expected safety and health hazards (including anticipated geological 
conditions) and hyperbaric exposures during the tunnel-construction 
project.
    2. Ballard would have to demonstrate that the EPBMTBM on the 
project is designed, fabricated, inspected, tested, marked, and stamped 
in accordance with the requirements of ASME PVHO-1.2019 (or most recent 
edition of Safety Standards for Pressure Vessels for Human Occupancy) 
for the EPBMTBM's hyperbaric chambers.
    3. Ballard would have to implement the safety and health 
instructions included in the manufacturer's operations manuals for the 
EPBMTBM, and the safety and health instructions provided by the 
manufacturer for the operation of decompression equipment.
    4. The decompression chamber must be capable of providing a minimum 
decompression duration of 121 minutes.
    5. Ballard would have to ensure that air or oxygen is the only 
breathing gas in the working chamber.
    6. Ballard would have to follow the 1992 French Decompression 
Tables for air or oxygen decompression as specified in the HOM; 
specifically, the extracted portions of the 1992 French Decompression 
tables titled, ``French Regulation Air Standard Tables.''
    7. Ballard would have to equip manlocks used by employees with an 
air or oxygen delivery system, as specified by the HOM, for the 
project. Ballard would be required not to store in the tunnel any 
oxygen or other compressed gases used in conjunction with hyperbaric 
work.
    8. Workers performing hot work under hyperbaric conditions would 
have to use flame-retardant personal protective equipment and clothing.
    9. In hyperbaric work areas, Ballard would have to maintain an 
adequate fire-suppression system approved for hyperbaric work areas.
    10. Ballard would have to develop and implement one or more JHA(s) 
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 would have to 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.
---------------------------------------------------------------------------

    11. A qualified person must perform a 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 for each hyperbaric 
intervention.
    12. Ballard would have to develop a set of checklists to guide 
compressed-air work and ensure that employees follow the procedures 
required by the proposed Permanent Variance and this Interim Order 
(including all procedures required by the HOM approved by OSHA for the 
project, which this proposed Permanent Variance would incorporate by 
reference). The checklists would have to include all steps and 
equipment functions that the risk assessment indicates are essential to 
prevent injury or illness during compressed-air work.
    Ballard would have to ensure that the safety and health provisions 
of this project-specific HOM adequately protect the workers of all 
contractors and subcontractors involved in hyperbaric operations for 
the project to which the HOM applies.

Communication

    Ballard would have to:
    1. Prior to beginning each shift, 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. Provide a power-assisted means of communication among affected 
workers and support personnel in hyperbaric conditions where unassisted 
voice communication is inadequate.
    (a) Use an independent power supply for powered communication 
systems, and these systems would have to 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) Test communication systems at the start of each shift and as 
necessary thereafter during each shift to ensure proper operation.

Worker Qualifications and Training

    Ballard would have to:
    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 on hyperbaric conditions, before 
beginning hyperbaric operations, to each worker who performs work, or 
controls the exposure of others, and document this instruction. The 
instruction would need to include:
    (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;
    (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; and
    (f) Procedures and requirements applicable to the employee in the 
project-specific HOM.
    3. Repeat the instruction specified in paragraph (G)(2) of this 
proposed 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 nearest affected Area Office before the 
training takes place.

Inspections, Tests, and Accident Prevention

    1. Ballard would have to initiate and maintain a program of 
frequent and

[[Page 5263]]

regular inspections of the EPBMTBM'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), including:
    (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 
and weekly inspections of the EPBMTBM.
    2. Remove from service any equipment that constitutes a safety 
hazard until it corrects the hazardous condition and has the correction 
approved by a qualified person.
    3. Ballard would have to maintain records of all tests and 
inspections of the EPBMTBM, as well as associated corrective actions 
and repairs, at the job site for the duration of the job.

Compression and Decompression

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

Recordkeeping

    In addition to completing OSHA's Form 301 Injury and Illness 
Incident Report and OSHA's Form 300 Log of Work-Related Injuries and 
Illnesses, Ballard would have to maintain records of:
    1. The date, times (e.g., time compression started, time spent 
compressing, time performing intervention, time spent decompressing), 
and pressure for each hyperbaric intervention.
    2. The names of all supervisors and DMTs involved for each 
intervention.
    3. The name of each individual worker exposed to hyperbaric 
pressure and the decompression protocols and results for each worker.
    4. The total number of interventions and the amount of hyperbaric 
work time at each pressure.
    5. 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 for each hyperbaric intervention.

Notifications

    1. To assist OSHA in administering the conditions specified herein, 
Ballard would have to:
    (a) Notify the OTPCA and the LIAO of any recordable injury, 
illness, in-patient hospitalization, amputation, loss of an eye, or 
fatality that occurs as a result of hyperbaric exposures during EPBMTBM 
operations, including those 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 
notification would have to be made within 8 hours of the incident or 8 
hours after becoming aware of a recordable injury, illness, or 
fatality; a copy of the incident investigation (OSHA's Form 301 Injury 
and Illness Incident Report) must be submitted to OSHA 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 OSHA's Form 301 Injury and Illness Incident Report, the incident-
investigation report would have to include a root-cause determination, 
and the preventive and corrective actions identified and implemented.
    (b) Provide certification to the LIAO within 15 working days of the 
incident that Ballard informed affected workers of the incident and the 
results of the incident investigation (including the root-cause 
determination as well as the preventive and corrective actions 
identified and implemented).
    (c) Notify the OTPCA and the LIAO within 15 working days and in 
writing, of any change in the compressed-air operations that affects 
Ballard's ability to comply with the proposed conditions specified 
herein.
    (d) Upon completion of the Suffolk County Outfall Tunnel, evaluate 
the effectiveness of the decompression tables used throughout the 
project, and provide a written report of this evaluation to the OTPCA 
and the LIAO.

    Note:  The evaluation report would have 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's Form 301 Injury and Illness Incident Report and OSHA's 
Form 300 Log of Work-Related Injuries and Illnesses, 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 proposed conditions 
specified herein, inform the OTPCA and the LIAO as soon as possible, 
but no later than seven (7) days, after it has knowledge that it will:
    (i) Cease doing 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 proposed Permanent 
Variance by the same means required to inform them of its application 
for a Variance.
    2. OSHA would have to approve the transfer of the proposed 
Permanent Variance to a successor company.

VII. Authority and Signature

    Loren Sweatt, Principal Deputy 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. 8-2020 (85 FR 58393; Sept. 18, 2020), 
and 29 CFR 1905.11.

    Signed at Washington, DC, on January 13, 2021.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety 
and Health.
[FR Doc. 2021-01110 Filed 1-15-21; 8:45 am]
BILLING CODE 4510-26-P