“A memorandum is not to inform the reader but to protect the writer.” — Dean Acheson
A reader asked me “How long do I need to keep confined space entry permits for a covered process?” He knew my thoughts on retaining hot work permits and wondered if the same approach applied to other permits in the process.
No. It’s different.
Confined Space Entry As Part Of Process Safety
Unlike hot work permits, which are explicitly required by the Process Safety Management (PSM) standard, in 29 CFR 1910.119(k) and the Risk Management Planning (RMP) Program 3 rule, in 40 CFR 68.85, none of the fourteen elements of the PSM standard, or the twelve elements of the RMP Program 3 rule, is specifically about confined space entry. However, both standards call for safe work practices during confined space entry in their sections on operating procedures (in 29 CFR 1910.119(f)(4) and 40 CFR 68.69(d), respectively).
Other than mentioning confined space entry, neither regulation nor their associated letters of interpretation have anything to add to the subject. They don’t even mention OSHA’s Permit-Required Confined Spaces standard, 29 CFR 1910.146, promulgated in 1993, after the PSM standard was promulgated in 1992. The OSHA instructions (CPL 02-01-065) to compliance, safety and health officers (CSHOs), last updated on December 14, 2023, for doing PSM inspections addresses many topics, but not confined space entry.
Thus, it is reasonable to conclude that for process safety, confined space entry permit retention is simply a matter of complying with 29 CFR 146.
What Confined Space Entry Permit Retention Does OSHA Require?
There is an old letter of interpretation, from November 26, 1996, that asserts that since confined-space entry permits include atmospheric monitoring of the confined space, they constitute employee exposure records, and must be retained for 30 years [emphasis added], per 29 CFR 1910.1020(d)(1)(ii). Fortunately, OSHA walked that back in a November 3, 2023 letter of interpretation which noted that the text of 29 CFR 1910.1020(d)(1) includes an exception: “unless a specific occupational safety and health standard provides a different period of time.”
The Permit-Required Confined Spaces standard does provide a different period of time.
Unfortunately, OSHA is a bit schizophrenic in its requirements about permit retention. The purpose of retention is to facilitate auditing. (Or as the EPA openly admits, to facilitate agency enforcement efforts.) In 29 CFR 1910.146(d)(14), OSHA requires employers to “Review the permit space program, using the canceled permits retained under paragraph (e)(6) of this section within 1 year [emphasis added] after each entry…” But in 29 CFR 1910.146(e)(6), OSHA requires employers to “retain each canceled entry permit for at least 1 year [emphasis added] to facilitate the review of the of the permit-required confined space program required by paragraph (d)(14) of this section.”
The question then is, “Within 1 year” or “For at least 1 year”? OSHA letters of interpretation are sometimes helpful in sorting out apparent conflicts like these.
The newer letter of interpretation goes on to repeat the requirement from 29 CFR 1910.146(e)(6) that employers maintain canceled entry permits for at least one year. Nowhere do they say, for at least one year or until audited.
Where Does That Leave Us?
There are two distinct timing requirements in the Permit-Required Confined Spaces standard. One for auditing, and one for permit retention. OSHA considers them separate requirements. Permits must be audited in less than a year. However, they must be retained for more than a year.
Keep Two Folders
I suggest an approach that puts all cancelled permits in a folder to be audited at the conclusion of a 12-month period (or shorter if you want a buffer). That folder will contain cancelled permits ranging from 1 day old to 365 days old (or whatever period less than a year that you choose). After auditing them, set the folder of audited permits aside.
At the completion of the audit, start a second folder in which to collect unaudited permits while saving the audited permits. At the end of the second period, discard the audited permits that are over a year old, audit the collected unaudited permits, then retain them in the audited permit folder. Repeat. At any time, there should only be two folders: audited and aging, and fresh and unaudited.
This should keep you in compliance with the confined-space entry permit retention requirements.
