[Federal Register Volume 88, Number 149 (Friday, August 4, 2023)]
[Notices]
[Pages 51862-51872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16669]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2023-0010]


Ballard Marine Construction Bay Park Conveyance Tunnel Project; 
Application for Permanent Variance and Interim Order; Grant of Interim 
Order; Request for Comments

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

ACTION: Notice.

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SUMMARY: In this notice, OSHA announces the application of Ballard 
Marine Construction for a permanent variance and interim order from 
provisions of OSHA standards that regulate work in compressed air 
environments, presents the agency's preliminary finding on Ballard's 
application, and 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 September 5, 2023. The 
interim order described in this notice will become effective on August 
4, 2023, and shall remain in effect until the completion of the Bay 
Park Tunnel Conveyance Project in Nassau County, New York or the 
interim order is modified or revoked.

ADDRESSES: 
    Electronically: You may submit comments, including attachments, 
electronically at http://www.regulations.gov, the Federal eRulemaking 
Portal. Follow the instructions online for making electronic 
submissions.
    Instructions: All submissions must include the agency's name and 
the docket number for this rulemaking (Docket No. OSHA-2023-0010). 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. Therefore, OSHA cautions commenters about 
submitting information they do not want made available to the public, 
or submitting materials that contain personal information (either about 
themselves or others), such as Social Security numbers and birthdates.
    Docket: To read or download comments or other material in the 
docket, go to http://www.regulations.gov. Documents in the docket 
(including this Federal Register notice) are listed in the http://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. Contact the OSHA Docket 
Office at (202) 693-2350 (TTY (877) 889-5627) for assistance in 
locating docket submissions.
    Extension of comment period: Submit requests for an extension of 
the comment period on or before September 5, 2023 to the 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-3653, Washington, DC 20210, or by fax to (202) 693-
1644.

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

[[Page 51863]]

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 http://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 http://www.osha.gov.
    Hearing Requests: According to 29 CFR 1905.15, hearing requests 
must include: (1) a concise statement of facts 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

    On March 25, 2022, Ballard Marine Construction (Ballard or the 
applicant), 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 
(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, 1926.803 of 1926 Subpart S--
Underground Construction, Caissons, Cofferdams, and Compressed Air, and 
an interim order allowing it to proceed while OSHA considers the 
request for a permanent variance (OSHA-2023-0010-0001). This notice 
addresses Ballard's application for a permanent variance and interim 
order for construction of the Bay Park Conveyance Tunnel Project in 
Nassau County, 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

    The applicant 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 (TBM). Using shielded mechanical 
excavation techniques, in conjunction with precast concrete tunnel 
liners and backfill grout, TBMs 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 TBM.
    Ballard asserts that it bores tunnels using TBM at levels below the 
water table through soft soils consisting of clay, silt and sand. TBMs 
are capable of maintaining pressure at the tunnel face and stabilizing 
existing geological conditions through the controlled use of a 
mechanically driven cutter head, bulkheads within the shield, ground-
treatment foam, and a screw conveyor that moves excavated material from 
the working chamber. The forward-most portion of the TBM is the working 
chamber, and this chamber is the only pressurized segment of the TBM. 
Within the shield, the working chamber consists of two sections: the 
forward working chamber and the staging chamber. The forward working 
chamber is immediately behind the cutter head and tunnel face. The 
staging chamber is behind the forward working chamber and between the 
man-lock door and the entry door to the forward working chamber.
    The TBM has twin man-locks located between the pressurized working 
chamber and the non-pressurized portion of the machine. Each man-lock 
has 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.
    Ballard's Hyperbaric Operations Manual (HOM) for the Bay Park 
Conveyance Tunnel Project (OSHA-2003-0010-0004) indicates that the 
maximum pressure to which it is likely to expose workers during project 
interventions for the three tunnel drives is 29 pounds per square inch 
gauge (p.s.i.g). 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 29 
p.s.i.g., which does not exceed the maximum pressure specified by the 
OSHA standard at 29 CFR 1926.803(e)(5).\1\ Ballard is not seeking a 
variance from this provision of the compressed-air standard.
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    \1\ The decompression tables in Appendix A of subpart S express 
the working pressures as pounds per square inch gauge (p.s.i.g.). 
Therefore, throughout this notice, OSHA expresses the p.s.i. value 
specified by 29 CFR 1926.803(e)(5) as p.s.i.g., consistent with the 
terminology in Appendix A, Table 1 of subpart S.
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    Ballard employs specially trained personnel for the construction of 
the tunnel. To keep the machinery working effectively, Ballard asserts 
that these workers must periodically enter the excavation working 
chamber of the TBM to perform hyperbaric interventions during which 
workers would be exposed to air pressures up to 29 p.s.i.g, These 
interventions consist of conducting inspections or maintenance work on 
the cutter-head structure and cutting tools of the TBM, 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 TBM) take place only after halting tunnel excavation and 
preparing the machine and crew for an intervention.
    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 man-locks 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 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.
    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

[[Page 51864]]

entire tunnel for the project and thereby reduce the number of workers 
exposed, as well as the total duration of exposure, to hyperbaric 
pressure during tunnel construction. These advances in technology 
substantially modified the methods used by the construction industry to 
excavate subaqueous tunnels compared to the caisson work regulated by 
the OSHA compressed-air standard for construction at 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 standard 
because of the reduction in number of workers and duration of 
hyperbaric exposures, better application 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 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 Bay Park 
Conveyance Tunnel Project in Nassau County, 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 the standard.

II. The Variance Application

    Pursuant to the requirements of OSHA's variance regulations (29 CFR 
part 1905), the applicant has certified that it notified its workers 
\2\ of the variance application and request for interim order 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'' 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 several 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 (August 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)); (4) Salini-Impregilo/Healy Joint Venture for the completion of 
the Northeast Boundary Tunnel in Washington, DC (85 FR 27767, May 11, 
2020); (5) Traylor-Shea Joint Venture for the completion of the 
Alexandria RiverRenew Tunnel Project in Alexandria, Virginia and 
Washington, DC (87 FR 54536, September 6, 2022); and (6) McNally/Kiewit 
Joint Venture for the completion of the Shoreline Storage Tunnel 
Project in Cleveland, Ohio (87 FR 58379, September 25, 2022) and (7) 
Traylor-Sundt Joint Venture for the Integrated Pipeline Tunnel Project 
in Dallas Texas, (88 FR 26600, May 1, 2023). OSHA also granted an 
interim order to Ballard Marine Construction for the Suffolk County 
Outfall Tunnel Project in West Babylon, New York (86 FR 5253, January 
19, 2021). The proposed alternate conditions in this notice are nearly 
identical to the alternate conditions of the previous permanent 
variances and interim orders.\3\ OSHA is not aware of any injuries or 
other safety issues that arose from work performed under these 
conditions in accordance with the previous variances and interim 
orders.
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    \3\ 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 29 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).\4\ The 
applicant asserts decompression protocols using the 1992 French 
Decompression Tables for air or oxygen as specified by the Bay Park 
Conveyance Tunnel Project 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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    \4\ 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).
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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, the project-specific HOM requires a physician 
certified in

[[Page 51865]]

hyperbaric medicine, to manage the medical condition of CAWs during 
hyperbaric exposures and decompression. A trained and experienced man-
lock attendant is also required to be present during hyperbaric 
exposures and decompression. This man-lock attendant is to operate the 
hyperbaric system to ensure compliance with the specified decompression 
table. A hyperbaric supervisor, 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 
man-lock 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.
    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 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.
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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.
    Space limitations in the TBM do not allow for the installation and 
use of an additional special decompression lock or chamber. The 
applicant proposes that it be permitted to rely on the man-locks 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 man-locks (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 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. The 
applicant asserts that this alternative arrangement is 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 the applicant's proposed alternatives on the whole, 
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:

A. 29 CFR 1926.803(f)(1)

    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 project-specific HOM specifies 
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 (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 man-lock 
attendant,

[[Page 51866]]

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.
    Prior to granting the several previous permanent variances to IHP 
JV, Traylor JV, Tully JV, Salini-Impregilo Joint Venture, Traylor-Shea 
JV and McNally/Kiewit JV, Traylor-Sundt JV, and Ballard (Interim Order, 
January 19, 2021), OSHA conducted a review of the scientific literature 
and concluded that the alternative decompression method (i.e., the 1992 
French Decompression Tables) Ballard proposed 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 indicates that the alternative decompression 
method may be safer, concluding 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. 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).\6\ 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%. 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.
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    \6\ Anderson HL (2002). Decompression sickness during 
construction of the Great Belt tunnel, Denmark. Undersea and 
Hyperbaric Medicine, 29(3),pp. 172-188.
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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.\7\
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    \7\ 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 several 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 \8\ that either granted variances (Nevada, Oregon and Washington) 
\9\ or promulgated a standard (California) \10\ for hyperbaric 
exposures occurring during similar subaqueous tunnel-construction work, 
provide additional evidence of the effectiveness of this alternative 
procedure.
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    \8\ 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 Plans.'' Occupational safety and health standards developed 
by State Plans 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.
    \9\ 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).
    \10\ See California Code of Regulations, Title 8, Subchapter 7, 
Group 26, Article 154, available at http://www.dir.ca.gov/title8/sb7g26a154.html.
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B. 29 CFR 1926.803(g)(1)(iii)

    Ballard developed, and 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 approved tunneling variances, 
the experiences of State Plans, and a review of the literature and 
other information noted earlier.

C. 29 CFR 1926.803(g)(1)(xvii)

    Ballard developed, and proposed to implement, an effective 
alternative to the use of the special decompression chamber required by 
29 CFR 1926.803(g)(1)(xvii). The TBM's man-lock and working chamber 
appear to satisfy all 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, and safely accommodate 
decompression times up to 360 minutes. Therefore, again noting OSHA's 
previous experience with nearly identical variances including the same 
alternative, OSHA preliminarily determined that the TBM's man-lock and 
working chamber function 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 the proposed modified variance, 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 (e)(5), (f)(1), (g)(1)(iii), and (g)(1)(xvii) of 29 CFR 
1926.803.

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

    OSHA hereby announces the preliminary decision to grant an interim 
order allowing Ballard's CAWs to perform interventions in hyperbaric 
conditions not exceeding 29 p.s.i.g. during the Bay Park Conveyance 
Tunnel Project, subject to the conditions that follow in this document. 
This interim order will remain in effect until completion of the Bay 
Park Conveyance Tunnel Project 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 Bay Park Conveyance Tunnel Project, 
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

[[Page 51867]]

    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 Bay Park Conveyance Tunnel Project (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 III, 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) \11\ 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 Bay Park Conveyance Tunnel 
Project. 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 to projects the applicant may undertake in the future.
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    \11\ 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 Bay Area Conveyance Tunnel Project.

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. OSHA believes that 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 Bay Area Conveyance Tunnel 
Project at least six months before using the TBM for tunneling 
operations. The applicant must also submit, at least six months before 
using the TBM, proof that the TBM'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

[[Page 51868]]

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 TBM 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 TBM'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 TBM, 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 during TBM 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 TBM.

Proposed Condition J: Recordkeeping

    Under OSHA's existing recordkeeping requirements in 29 CFR part 
1904 regarding Recording and Reporting Occupational Injuries and 
Illnesses, the employer 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 Ballard 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.\12\
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    \12\ See 29 CFR 1904, Recording and Reporting Occupational 
Injuries and Illnesses (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9631; recordkeeping 
forms and instructions (http://www.osha.gov/recordkeeping/RKform300pkg-fillable-enabled.pdf); and OSHA Recordkeeping Handbook 
(http://www.osha.gov/recordkeeping/handbook/index.html).
---------------------------------------------------------------------------

    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 
TBM 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

[[Page 51869]]

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 for the Bay Area Conveyance Tunnel Project. 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 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.\13\
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    \13\ 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:

A. 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 permanent variance apply only to 
work:
    1. That occurs in conjunction with construction of the Bay Area 
Conveyance Tunnel Project, a tunnel constructed using advanced shielded 
mechanical-excavation techniques and involving operation of an TBM;
    2. In the TBM'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).

B. 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 Bay Area Conveyance Tunnel Project.

C. 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. TBM--Earth pressure balanced micro-tunnel boring machine
6. HOM--Hyperbaric operations manual
7. JHA--Job hazard analysis
8. LIAO--Long Island Area Office
9. OSHA--Occupational Safety and Health Administration
10. OTPCA--Office of Technical Programs and Coordination Activities

D. 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 modified 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 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 29 p.s.i.g.
    4. Competent person--an individual who is capable of identifying 
existing

[[Page 51870]]

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--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).\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 available from NIOSH at http://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 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 Tunnel Boring Machine--the machinery 
used to excavate a tunnel.
    8. 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 1926.1202 for examples of hot work.
---------------------------------------------------------------------------

    9. Hyperbaric--at a higher pressure than atmospheric pressure.
    10. Hyperbaric intervention--a term that describes the process of 
stopping the TBM 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 Bay Area Conveyance Tunnel Project.
    12. Job hazard analysis--an evaluation of tasks or operations to 
identify potential hazards and to determine the necessary controls.
    13. 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.
    14. Medical Advisor--medical professional experienced in the 
physical requirements of compressed air work and the treatment of 
decompression illness.
    15. Pressure--a force acting on a unit area. Usually expressed as 
pounds per square inch (p.s.i.).
    16. 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.
    17. 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, 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 psig.
    18. 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\
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    \17\ Adapted from 29 CFR 1926.32(m).
---------------------------------------------------------------------------

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

E. 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-2023-0010-0004). 
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 TBM 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 TBM's hyperbaric chambers.
    3. Ballard would have to implement the safety and health 
instructions included in the manufacturer's operations manuals for the 
TBM, and the safety and health instructions provided by the 
manufacturer for the operation of decompression equipment.
    4. Ballard would have to ensure that there are no exposures to 
pressures greater than 29 p.s.i.g.
    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 man-locks 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 \18\ indicates are essential to prevent injury or 
illness.
---------------------------------------------------------------------------

    \18\ See ANSI/AIHA Z10-2012, American National Standard for 
Occupational Health and Safety Management Systems, for reference.
---------------------------------------------------------------------------

    11. 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

[[Page 51871]]

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.
    12. 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.

F. Communication

    Ballard would have to:
    1. Prior to beginning a 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.

G. 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.

H. Inspections, Tests, and Accident Prevention

    1. Ballard would have to initiate and maintain a program of 
frequent and regular inspections of the TBM'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 TBM.
    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 TBM, as well as associated corrective actions and 
repairs, at the job site for the duration of the job.

I. 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.

J. 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.

K. Notifications

    1. To assist OSHA in administering the conditions specified herein, 
Ballard would have to:
    (a) Notify the OTPCA and the OSHA Area Office in Long Island, New 
York of any recordable injury, illness or fatality (by submitting the 
completed OSHA Form 301 Injuries and Illness Incident Report) resulting 
from exposure of an employee to hyperbaric conditions, 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 Form 301 Injuries 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 Form 301 Injuries 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 OSHA Area Office in Long Island, 
New York 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 and preventive 
and corrective actions identified and implemented).
    (c) Notify the OTPCA and the OSHA Area Office in Long Island, New 
York within 15 working days and in writing, of any change in the 
compressed-air operations that affects Ballard's ability

[[Page 51872]]

to comply with the proposed conditions specified herein.
    (d) Upon completion of the Integrated Pipeline 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 OSHA Area Office in Long Island, New York.

    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 Form 301 Injuries and Illness Incident Report and OSHA 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 modified 
permanent variance by the same means required to inform them of its 
application for a modified permanent variance.
    2. OSHA would have to approve the transfer of the proposed modified 
permanent variance to a successor company through a new application for 
a modified variance.

VII. Authority and Signature

    James S. Frederick, Deputy Assistant Secretary of Labor for 
Occupational Safety and Health, 200 Constitution Avenue NW, Washington, 
DC 20210, authorized the preparation of this notice. The agency is 
issuing this notice pursuant to 29 U.S.C. 655(6)(d), Secretary of 
Labor's Order No. 8-2020 (85 FR 58393, Sept. 18, 2020), and 29 CFR 
1905.14(b).

    Signed at Washington, DC, on July 27, 2023.
James S. Frederick,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2023-16669 Filed 8-3-23; 8:45 am]
BILLING CODE 4510-26-P