Shipyard competent persons and non-OSHA exposure limits

April 18, 2016

Mr. Robert H. Walker, III

Marine Chemist Service, Inc.

[Recipient address omitted]

Dear Mr. Walker:

Thank you for your October 29, 2015, letter to the Occupational Safety and Health Administration's (OSHA) Directorate of Enforcement Programs regarding requirements for competent persons in OSHA's Standards for Shipyard Employment, 29 CFR Part 1915. This reply letter constitutes OSHA's interpretation of only the requirements discussed and may not be applicable to any question not detailed in your original correspondence or during subsequent discussions with OSHA staff. After our follow-up communications, OSHA summarized the job scenario and replied to your question, paraphrased below.

Scenario: The term "competent person" is used in several sections of 29 CFR 1915. The focus of this request is on employees who serve as competent persons performing tasks such as testing atmospheres in shipyard operations for hazardous chemicals and flammable vapors or gasses (e.g., diesel and jet fuel) or for safe oxygen levels within work spaces where there is no OSHA permissible exposure limit (PEL).

Question: If a chemical exposure in a shipyard operation does not have a PEL established by OSHA, but the chemical's measured concentration exceeds a Threshold Limit Value® (TLV®) recommended by the American Conference of Governmental Industrial Hygienists® (ACGIH®),1 or other recommended occupational exposure limit (OEL), may a competent person determine protective measures?

Reply: Yes. As specified in the OSHA standards for shipyard employment, Part 1915, the employer's competent person2 may specify the necessary protection for employee exposure to hazardous substances. The definition of the competent person is provided by sections 29 CFR 1915.3 and 29 CFR 1915.4:

1915.3(c) - The responsibilities placed upon the competent person herein shall be deemed to be the responsibilities of the employer.

1915.4(o) - The term "competent person" for purposes of this part means a person who is capable of recognizing and evaluating employee exposure to hazardous substances or to other unsafe conditions and is capable of specifying the necessary protection and precautions to be taken to ensure the safety of employees as required by the particular regulation under the condition to which it applies. For the purposes of Subparts B, C, and D of this part, except for 1915.35(b)(8) and 1915.36(a)(5), to which the above definition applies, the competent person must also meet the additional requirements of 1915.7. [Emphasis added in bold]

As indicated in the definition above, for the purposes of Part 1915 shipyard operations covered by Subpart B, Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment, Subpart C, Surface Preparation and Preservation, and Subpart D, Welding, Cutting and Heating, the competent person must also meet the additional requirements of 29 CFR 1915.7. Further, OSHA refers you to the specific operational requirements for employers in Subpart H, Tools and Related Equipment, Subpart P, Fire Protection in Shipyard Employment, and Subpart Z, Toxic and Hazardous Substances, involving competent persons and hazardous atmospheres.

In situations where there is not a PEL in an OSHA standard for a certain chemical exposure, and the exposure presents a serious hazard to a shipyard worker, or in situations where a chemical exposure presents a serious hazard at a level below an OSHA PEL, the employer must still ensure the competent person "is capable of recognizing and evaluating employee exposure to hazardous substances or to other unsafe conditions and is capable of specifying the necessary protection and precautions to be taken to ensure the safety of employees." 29 CFR 1915.4(o). Such a determination is predicated on the presence of a "serious hazard" and not necessarily based on an exposure measurement exceeding an OEL. A number of OSHA compliance instructions explain this enforcement policy on chemical exposures where there is no PEL or where an exposure below a PEL is a recognized hazard, e.g., OSHA's Field Operations Manual (FOM), CPL 02-00-159 (see Chapter 4), Inspection Procedures for the Respiratory Protection Standard, CPL 02-00-158 (see Section IX), and Inspection Procedures for the Hazard Communication Standard (HCS 2012), CPL 02-02-079 (see Section XI).

If the shipyard employer's competent person is not capable of making the determination that a specific chemical exposure presents a serious hazard to a shipyard worker, then the employer should obtain the services of a marine chemist or certified industrial hygienist.

For additional information on competent persons in shipyard employment, we refer you to OSHA compliance directives: OSHA Instruction, CPL 02-00-157, Shipyard Employment "Tool Bag" Directive, April 1, 2014; and OSHA Instruction, CPL 02-01-051, 29 CFR Part 1915, Subpart B, Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment, May 20, 2011.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website at www.osha.gov. If you have further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Thomas Galassi, Director

Directorate of Enforcement Programs

1 2015 TLVs® and BEIs® Based on the Documentation of the Threshold Limit Values for Chemical Substances and Physical Agents & Biological Exposure Indices, ACGIH®, Cincinnati, Ohio, 2015.

2 For general information about the term "competent person," employers are referred to OSHA's Safety and Health Topics webpage, Competent Persons, https://www.osha.gov/SLTC/competentperson/index.html.