Docket No. 90-1719

SECRETARY OF LABOR

Complainant.

CBI SERVICES, INC.,

Respondent.

OSHRC Docket-No. 90-1719

DECISION

Before: FOULKE, Chairman: WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

CBI Services, Inc. ("CBI") operates a facility in Cordova, Alabama, where it manufactures steel plated structures for use in submarine hulls. Following an inspection at that facility, the Occupational Safety and Health Administration ("OSHA") issued a citation which alleged in part a serious violation of 29 C.F.R. § 1910.252(e)(4)(iv) [[1]] for CBI's failure to station an attendant with a pre-planned rescue procedure outside a confined space. Review Commission Administrative Law Judge Edwin G. Salyers found that the space in question was a "confined space" within the meaning of the standard, affirmed the citation as serious. and assessed a penalty of $320. For the reasons set forth below, we affirm a serious violation of the standard and assess a penalty of $320.

I. Background

CBI's facility was inspected on March 14, 1990, by OSHA Compliance Officer Horace McCann. During his inspection, McCann observed employee Johnny Crapet climb up a ladder and enter into a 20-foot-tall section of a hull in order to perform certain welding operations. Having entered the structure, Crapet climbed down approximately nine feet to get to his work area, passing through openings that ranged from 20 inches in diameter to one that was oval in shape and measured approximately 26 by 15 inches.[[2]] There were three additional openings in the section where Crapet was working, two of which measured approximately 6 to 8 inches in diameter, and one which measured 8 inches in diameter. As part of the welding process, the outer skin of the structure was heated to 200*. The compliance officer testified that the hazards of welding in a confined space include possible exposure to iron oxide, chromium, arsenic, carbon dioxide, or carbon monoxide weld fumes. Other potential hazards include the lack of oxygen or ventilation to remove any toxic materials. He testified that a welder who is in a confined space and inhales such weld fumes or has inadequate ventilation is "apt to pass out."

As a result of the inspection, CBI was issued a two-item citation in May of 1990. Neither party sought review of that portion of the judge's decision relating to Item 1, and it is not at issue here. Items 2(a) and 2(b) both allege a serious violation of 29 C.F.R. § 1910.252(e)(4)(iv). Item 2(a) alleges a serious violation of the standard for failure to provide a means for quickly removing welders working in confined spaces in case of emergency. The judge vacated the citation for item 2(a). He found that the Secretary failed to prove by a preponderance of the evidence that CBI did not have the required means of removing workers working in the confined spaces. Item 2(b) alleges it serious violation of the standard for failure to station an attendant with a pre-planned rescue procedure outside the confined space to observe and assist the welder(s) in case of an emergency.

At the hearing, McCann did not testify about the conditions in the area where Crapet welded because he had not entered that area. Nor did the Secretary call Crapet as a witness to elaborate upon the conditions where he welded. However, Garry Bruce Davis, a welder and head of the CBI safety committee, was called by the union representative to testify about the conditions inside the hull sections. Davis worked as a welder in the same areas as Crapet and performed the same duties on a different shift. Davis testified that some of the work areas were "three foot in size, two foot in size by eighteen inches tall, and you've got to crawl up in there. You can't sit up. There's no room to sit up." Davis also testified that at the site. "ventilation equipment is just not that available. We don't have enough hoses: we don't have enough air movers." Davis testified that he had breathing problems while he welded in spaces similar to the one in which Crapet worked during the compliance officer's inspection.

In deciding item 2, Judge Salyers first determined that Crapet was working in a confined space because "[t]he circumstances described in the record of this case bring the space at issue within the ambit of the standard's definition." The judge affirmed the citation for item 2(b). He found that CBI violated that portion of the standard which requires that "an attendant with a preplanned rescue procedure shall be stationed outside to observe the welder at all times and be capable of putting rescue operations into effect." The Secretary proposed a penalty of $640 for both items 2(a) and 2(b). The judge assessed a penalty of $320 for the violation of item 2(b).

CBI petitioned for discretionary review with respect to item 2(a) insofar as it holds that the space in question is a confined space and item 2(b) in its entirety.

II. Issues on Review

1. Whether the administrative law judge erred in ruling that the definition of "confined space" set forth in 29 CF.R. § 1910.252(e)(4)(i) is sufficient to provide fair notice to employers of conditions falling within the meaning of that term?

The judge found that the space in question was a confined space as defined by 29 C.F.R. § 1910.252(e)(4)(i). A confined space is defined by this standard as follows:

As used herein, confined space is intended to mean a relatively small or restricted space such as a tank, boiler, pressure vessel. or small compartment of a ship.

The judge rejected both CBI's argument that the standard is unenforceably vague, as well as its claim that if the standard is not unenforceably vague, then other sources must be consulted for guidance in defining a confined space, such as American National Standards Institute ("ANSI") Z117.1-1989, Safety Requirements for Confined Spaces, section 2 ("ANSI Z117.1"). The judge found that since the definition contained in the cited standard is clear, there is no need to refer to other sources.[[3]] The judge held that the definition of confined space as a "relatively small or restricted space," while general in nature. is sufficient to provide an employer with fair notice of the required conduct for compliance. We found that "[t]his is especially true when ... the definition includes as an example of 'confined space' the 'small compartment of a ship'" and "the space at issue is a small compartment of a submarine which is indistinguishable from that of a ship."

CBI argues that section 1910.252(e)(4)(i) is impermissibly vague in its definition of "confined space" and is therefore unenforceable. CBI believes that the definition of confined space is insufficient to provide fair notice to employers of conditions falling within that term. CBI notes that when the compliance officer was asked for his definition of the term "confined space." he did not rely on the definition found in § 1910.252, but defined the term as "[b]asically, a small space with limited number of entries or exits ... to a certain extent closed or confined where the possibility of hazards may be created as a result of that space.'" CBI argues that the fact that the compliance officer "finds it necessary to rely on outside sources to aid in the definition of confined spaces is compelling evidence that the standard is vague to the point of being unenforceable."

CBI also appears to argue that the standard is vague because more detailed definitions exist of what constitutes a confined space. CBI claims. for example, that ANSI Z117.1 provides a more detailed definition of confined spaces than the standard. This standard defines a confined space as follows:

CONFINED SPACE: An enclosed area that has the following characteristics:

-its primary function is something other than human occupancy.

and

-has restricted entry and exit.

and

-may contain potential or known hazards.

Furthermore, CBI noted that its expert witness and corporate safety director, Mr. James Rhudy, relied on outside sources such as ANSI Z117.1 in testifying as to what is required for a confined space. Rhudy served on the ANSI committee that developed ANSI Z117.1.

CBI also takes issue with the judge's finding that because the standard mentions a "small compartment of a ship" as an example of a confined space, and since the space would eventually be a compartment of a ship, the space was a confined space. CBI argues that the judge ignored the fact that the space was still under construction and "was not even yet a compartment of a ship."

CBI cites General Dynamics Land Systems Div., Inc., 15 BNA OSHC 1275, 1991 CCH OSHD ś 29,467 (No. 83-1293, 1991) ("General Dynamics"), petition for review filed, No. 91-4052 (6th Cir. Nov. 8, 1991), to illustrate "the nebulous parameters of the definition of a confined space." CBI notes that "[a]lt no point ... did the Review Commission rely on or even cite the definition of confined space set out in 1910.252(e)(4)(i)."CBI argues that [i]n light of the Review Commission's examining numerous sources and ultimately developing its own definition of confined space in General Dynamics, it would he incongruous to hold Respondent to the amorphous definition of confined space contained in 1910.252(c)(4)(1) in this case."

In summary, CBI argues that "[g]iven the fact that compliance officers, industry experts and members of the Review Commission have considerable difficulty identifying and defining what is a confined space, it would seem that the answer to the 'ultimate question' posed by the judge is that the barebones, simplistic definition of confined space set forth in 1910.252(e)(4)(i) is indefinite, vague, and unenforceable."

The Secretary argues that "[a] reasonably prudent employer can ... look to the natural and plain meaning of the words 'relatively small or restricted space' and ascertain what is meant by confined space." The Secretary admits that the definition incorporates an element of degree, but argues that absolute precision in a standard is not required. She argues that a standard is not vague because its application requires the exercise of judgment and that [t]he purported vagueness of a standard is not judged from the face of the standard; it is determined in light of the application of the standard to the facts of the case." Moreover, the Secretary points out that the space at issue here "falls squarely within the definition's inclusion, as an example of a 'small or restricted space,' of a 'small compartment of a ship."' In response to CBI's claim that the cited compartment was not yet a ship, the Secretary points out that "[i]f a ship's compartment is small or restricted in the completed vessel, it Is likely to be small or restricted at some point in its manufacture.

The Secretary also relies on Ed Taylor Constr v. OSHRC, 938 F.2d 1265 (11th Cir. ("Ed Taylor"), a case in which a similar definition of confined space was challenged.[[4]] There, the Fifth Circuit found that the plain language of the regulation was unambiguous and that it gave clear warning of what spaces are included under its terms. 938 F.2d at 1272. The court also determined that it was irrelevant that anyone in the industry may have believed that a confined space may he defined in another manner. Id.

For the purposes of paragraph (b)(6)(1) of this section,"confined or enclosed space" means any space having a limited means of egress, which is subject to the accumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere. Confined or enclosed space include, but are not limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults, tunnels, pipelines, and open top spaces more than 4 feet in depth such as pits, tubs, vaults. and vessels.

The Secretary contends that General Dynamics is distinguishable from this case because it involved the Act's general duty clause, section 5(a)(1) of the Act, rather than a specific standard. The Secretary also states that the relevance of CBI's argument that in General Dynamics the Commission failed to cite section 1910.252(e)(4)(i) is not clear. She points out that "[t]he Commission may not have been aware of [1910.252(e)(4)(i)], or it may have concluded that the welding standard's definition, being limited in its criteria was irrelevant to the type of analysis it was doing." The Secretary argues that even under the General Dynamics test, the necessary elements of a confined space were present.[[5]]

In its reply brief, CBI distinguishes Ed Taylor by noting that it is a case which arose under the construction standards, 29 C.F.R. Part 1926, and that the definition in that standard provides "considerably more detail and assistance to an employer in determining what is a confined space." CBI asserts that this case is similar to the situation in Kropp Forge Co. v. Secretary of Labor, 657 F.2d 119 (7th Cir. 1981), where the court found unreasonably vague the Secretary's hearing conservation regulation calling for an "effective" hearing conservation program. CBI argues that "[d]etermining what a 'relatively' or 'somewhat' small or restricted space is no easier or less subjective than determining what an 'effective' hearing conservation program is."

ii.

CBI premises its notice argument on the vagueness of the definition of a confined space in section 1910.252(e)(4)(i):

A relatively small or restricted space such as a tank, boiler, pressure vessel, or small compartment of a ship.

In considering a vagueness claim, we have held that the words of a standard are to be viewed in context, not in isolation, and that the purported vagueness of a standard is not judged from the face of the standard but in light of the application of the standard to the facts of the case. Ormet Corp., 14 BNA OSHC 2134, 2135, 1991 CCH OSHD ś 29,154, p. 39,200 (No. 85-531, 1991). We have also noted that the due process clause does not impose drafting requirements of mathematical precision or impossible specificity. Id. Applying the standard to the facts of this case, we find that the space Crapet was working in was a confined space within the meaning of section 1910.252(c)(4)(i). While CBI has brought a number of other definitions of confined space to our attention, we are not persuaded that these definitions have any bearing on the one before us.

We therefore find that the administrative law judge did not err in ruling that the definition of "confined space" set forth in 29 C.F.R. § 1910.252(e)(4)(i) is sufficient to provide fair notice to employers of conditions tailing within the meaning of that term.

2. Whether, with respect to his ruling on Serious Citation No. 1, Items 2(a) and (b), the administrative law judge erred in concluding that the section of submarine hull in question was a "confined space " within the meaning of 29 C.F.R. § 1910.252(e) (4) (i) ?

The judge held that the section of submarine hull in question was a confined space within the meaning of the standard. He rejected CBI's argument that outside sources, specifically ANSI Z117.1, must be consulted for guidance in defining whether this is a confined space. The judge held that since § 1910.252(e)(4)(1) is clear in its meaning, there is no need to refer to outside sources. He also found, however, that even under ANSI Z117.1, the space in question would be considered a confined space. The judge determined that Crapet was working in a confined space because "[t]he circumstances described in the record of this case bring the space at issue within the ambit of the standard's definition" since the standard refers to a "small compartment of a ship" as an example of a confined space and "the space at issue is a small compartment of a submarine which is indistinguishable from that of a ship."

ii.

CBI's main argument on this issue again centers on the existence of other definitions of confined space. CBI has not, however, shown any relevancy of those definitions to the case before us. Regardless, it would appear that CBI's space would be confined under those standards as well. ANSI Z117.1 provides that a confined space has a primary function for something other than human occupancy, a restricted entry and exit, and contains potential or known hazards. The space in question is an area of the submarine that is not meant for human occupancy, has a restricted entry and exit, and may contain potential or known hazards during welding. In General Dynamics, we defined a confined space as an area with limited natural ventilation and limited ingress/egress in which a toxic or oxygen deficient atmosphere could be created. General Dynamics, 15 BNA OSHC at 1284-85, 1991 CCH OSHD at p. 39,756. In the present case, the evidence establishes that Crapet was working in an area with limited natural ventilation and limited ingress/egress, and that a toxic or oxygen deficient atmosphere could be created in the space during the welding process.

We therefore find that the administrative law judge did not err in concluding that the section of submarine hull in question was a "confined space" within the meaning of 29 C.F.R. § 1910.252(e)(4)(i).

3. Whether the administrative law judge erred in affirming Serious Citation No. 1, Item 2(b), alleging a violation of 29 C.F.R. § 1910.252(e)(4)(iv), based on the failure of Respondent to station an attendant outside the section of submarine hull to observe and conduct rescue operations if required?

The judge held that CBI violated the portion of § 1910.252(e)(4)(iv) that requires "an attendant with a preplanned rescue procedure shall be stationed outside to observe the welder at all times and be capable of putting rescue operations into effect." The judge noted that it is undisputed that no one from CBI was observing Crapet while he worked in the hull section. The judge contrasted the testimony of Dean May, Jr., CBI's shop superintendent, that there were inspectors occasionally checking each welders' work, with the standard's, requirement that an attendant be stationed outside to observe a welder at all times.

CBI argue, that even if the area question may be characterized as a confined space, the precaution of an attendant with a pre-planned rescue procedure was not necessary. It relies on ANSI Z117.1, which does not require such a precaution as long as there is adequate ventilation, and on, ANSI Z49.1-1988, Safety in Welding and Cutting, section 7.5, which does not require such a precaution unless there is an atmosphere inside the space that is immediately dangerous to life.[[6]] CBI notes that the record "establishes that the atmosphere inside the hull section was far from dangerous." CBI argues that even if there was a need for an attendant with a pre-planned rescue procedure, the evidence establishes that Respondent had sufficient measures in place at the time of the inspection. CBI asserts that the record indicates that the "welders are monitored and supervised by their foreman in addition to the assistant superintendent of the Weld Shop and the welding inspectors" and that it "had ample pre-planned rescue procedures in place."

The Secretary argues that "the provision of adequate ventilation does not obviate an employees express duty to provide an attendant while welding in a confined space is taking place." She contends that "[i]n arguing that an attendant is not required so long as the ventilation is adequate, CBI is doing nothing less than impermissibly questioning the wisdom of the Secretary's standard."

ii.

CBI has not dispute that it failed to have an attendant who was capable of putting a pre-planned rescue procedure into effect stationed outside to observe the welder at all times. CBI only questions the standard and, pointing to other standards. asserts that an attendant is not necessary, because there was adequate ventilation. The only reason CBI has given us for not following the clear command of the Secretary's standard is that it differs from other workplace safety standards. However, CBI does not claim that these other standards apply to its workplace or that their requirements differ in any significant respect from the cited standard. We therefore find that CBI violated 29 C.F.R. § 1910.252 (e)(4)(iv) by falling to station an attendant outside the section of submarine hull to observe and conduct rescue operations.

4. Whether the administrative law judge erred in characterizing as serious the violation of 29 C.F.R. § 1910.252(e)(4)(iv) alleged in Serious Citation No. 1, Item 2(b)?

The judge affirmed the violation of section 1910.252(e)(4)(iv) as serious. He relied on Davis' testimony that the air hose used for ventilation could not reach some areas where the welders had to work and on CBI's practice of heating the skin of the structure to 200* during the welding. The judge found that these factors resulted in poor ventilation in many work areas and caused welders to experience breathing problems. CBI argues that [t]he record evidence is clear that any hazards in the hull section were effectively controlled or eliminated by ventilation" and that "the Secretary has failed to show that the alleged violation had an immediate relation to safety or health." [[7]] CBI argues that if a violation is found, it should be classified as de minimis with no abatement requirement because the alleged violation bears no direct or immediate relation to safety and health. CBI notes that it is undisputed that the space where Crapet worked was being ventilated by one mechanical exhaust hose and two mechanical fresh air hoses.

The Secretary argues that we should affirm the judge's classification of the violation as serious. The Secretary cites the compliance officer's testimony that harmful fumes might be present during the welding operations which, if inhaled, could cause an employee to pass out. The Secretary acknowledges that CBI provided some ventilation through the use of air hoses, but she notes that the hoses could not reach some areas where the welders had to work, resulting in poor ventilation in many work areas and workers experiencing breathing problems.[[8]]

ii.

Section 17(k) of the Act, 29 U.S.C. § 666(k), defines a serious violation as follows:
[A] serious violation shall be deemed to exist In a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists ....

We have found that a serious violation existed where the record established a "'likelihood that various hazardous contaminants were in the atmosphere as a natural consequence of the welding operation being performed" as well as a lack of sufficient ventilation to remove the contaminants or to prevent the accumulation of an increasing concentration of the contaminants as the welding progressed. Dravo Corp., 7 BNA OSHC 2095, 2101, 1980 CCH OSHD ś 24,158, p. 29,370 (No. 16317, 1980). Here, the record establishes that various hazardous contaminants could be generated into the atmosphere as a result of welding and that in some areas where welding was taking place there was a lack of sufficient ventilation. Clearly, if an employee welding in the cited location needed to be rescued, there is a substantial probability that the failure to have an attendant stationed outside, who is able to put a preplanned rescue procedure into effect, could result in death or serious physical harm. We therefore find that the violation of the standard is properly characterized as serious.

The Secretary proposed a $640 penalty for both items 2(a) and 2(b). The judge only found a violation of item 2(b). and assessed a penalty of $320. Having considered the penalty factors enumerated in section 17(j) of the Act. 29 U.S.C. § 666(j). we assess a penalty of $320.

Ill. Order

Accordingly,we find a serious violation of 29 C. F. R. § 1910.252 (e) (4) (iv) as alleged in Serious Citation No. 1, Item 2 (b) and affirm a penalty of $320.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: December 21, 1992

SECRETARY OF LABOR,

Complainant,

CBI SERVICES, INC,

Respondent.

OSHRC Docket No. 90-1719

APPEARANCES:

L. K. Cooper, Jr., Esquire, Office of the Solicitor, U. S. Department of Labor Birmingham, Alabama, on behalf on complainant. Richard J. Brodecki, Esquire, Assistant Counsel, CBI Services, Inc., Oak Brook, Illinois, on behalf of respondent. Larry R. Davis, President, Local 8311, United Steelworkers of America, Cordova, Alabama, on behalf of authorized employee representative.

DECISION AND ORDER

SALYERS, Judge: CBI Services, Inc. (CBI), operates a facility in Cordova, Alabama, where it manufactures steel plated structures to be used as parts of the hulls of submarines (Tr. 115). CBI's facility was inspected on March 14, 1990, by OSHA compliance officer Horace McCann (Tr. 18). As a result of the inspection, CBI was issued a citation on May 9, 1990, Containing two items. Item 1 of the citation alleged a serious violation of 29 C.F.R. § 1910.252 (e)(1)(ii) for failure to keep welding cables and other equipment clear of passageways. Item, 2 of the citation alleges a serious violation of 29 C.F.R. § 1910.252 (e)(4)(iv) for failure to provide means for quickly removing welders working in confined spaces in case of emergency, and for failure to station an attendant with a pre-planned rescue procedure outside the confined space.

ITEM 1

29 C.F.R. § 1910.252 (e) (1) (ii) provides:

Welders shall place welding cable and other equipment so that it is clear of passageways, ladders, and stairways.

Exhibits C-1 and C-2 are photographs of an area in welding shop #3 of the facility. Numerous cables are visible laying in a tangled pile on the floor (Tr. 20). The cables were weld leads, electric pre-heat leads, and airhoses, all of which were used in the assembly of the tank that appears at the right in Exhibit C-1 (Tr. 120). The configuration of these cables creates an obvious tripping hazard to anyone attempting to traverse the area.

CBI contends that it has permanent aisleways in its facility that are designated by yellow lines. Employees are not supposed to use the area depicted in Exhibits C-1 and C-2 as passageways. Respondent asserts that employees are only to be In that area when performing work (Tr. 79, 119-120, 148).CBI argues that since the area in question was not a "passageway", but a work area, the cited standard is inapplicable.

In determining the application of the standard to the area in question, the actual use made of the area, and not its designation, must be considered. Compliance officer McCann observed several employees "moving back and forth through this area" (Tr. 22). An office trailer was located near the area, and when employees left the trailer, they passed through this area to get to other areas of the facility (Tr. 22). McCann observed six to eight employees pass through the area during the course of his inspection (Tr. 23). Dean May, CBI's shop superintendent, testified that a majority of the employees in the shop #3 area were working at this location, but also admitted that other employees "passed through that area" (Tr. 119).

The evidence supports a finding that the shop #3 area was used as a passageway by a number of CBI employees. This circumstance is sufficient to sustain the Secretary's charge that CBI was in violation of 29 C.F.R. § 1910.252(e)(1)(ii).

McCann testified that the tangled cables strewn throughout the passageway presented a tripping hazard. The immediate area contained electrical equipment and sharp protruding objects, which could have resulted in further injuries if an employee fell onto them (Tr. 26). The hazard presented by the cables could have resulted in a serious physical injury. Thus, the violation of § 1910.252 (e) (1) (ii) was serious.

ITEM 2

29 C.F.R. § 1910.252 (e) (4) (iv) provides:

Where a welder must enter a confined space through a manhole or other small opening, means shall be provided for quickly removing him in case of emergency. When safety belts and lifelines are used for this purpose they shall be so attached to the welder's body that his body cannot be jammed in a small exit opening. An attendant with a pre-planned rescue procedure shall be stationed outside to observe the welder at all times and be capable of putting rescue operations into effect.

Item 2a of the citation alleges that "[i]n welding shop #2 where employees were required to enter vessel/hulls of submarines through small openings and weld in small confined spaces, no means was provided for quick removal of a welder from the confined space in case of emergency." Item 2b alleges that "[i]n welding shop #2 where employees were required to enter confined spaces and weld, an attendant with pre-planned rescue procedures was not stationed outside the confined spaces to observe and assist the welder(s) in case of an emergency."

The space which the Secretary alleges is a "confined space" within the meaning of the cited standard is a section of a hull of a United States 688 Attack Submarine. One of the openings in a bulkhead of the section measured 20 inches in diameter. The other opening was oblong, measuring 15 x 23 inches. There were three additional openings in this section, two of which measured approximately six inches to eight inches in diameter and one which measured eight inches in diameter (Tr. 115-116). The section of the hull at issue was approximately 20 feet tall (Tr. 116). Exhibits C-10 and C-11 show a hull section similar to the one in question, without the outer "skin" covering it (Tr. 117). Exhibit C-3 shows the actual hull section at issue (Tr. 138). Exhibit C-13 shows an employee working in a hull section which does not have the "skin" on it. This section is similar to the interior of the hull which employee Johnny Crapet, a welder, entered (Tr. 55-56).

McCann observed CBI employee Crapet climb a ladder leaning against the structure and enter the structure from an opening in the top (Tr. 37). The opening was 20 inches in diameter (Exs. C-5 - C-9, Tr. 59). Crapet had to descend about nine feet to get to his work area, where he engaged in welding operations (Tr. 47).

McCann did not enter the area where the welding was performed nor was Crapet called as a witness by the Secretary to elaborate upon the conditions which existed in this area. However, Garry B. Davis, [[1]] called by the union representative, gave a vivid description of the maze-like conditions (Tr. 212) which existed inside the structure.

Davis testified it was necessary to go through a series of compartments in the structure to gain access to the working area (Tr. 211) This was accomplished by "crawling a ladder" and going through manholes, some of which were only twenty inches in diameter (Tr. 211). It was necessary for the welders to carry a welding whip and an air hose into the work areas. The air hose was used for ventilation to exhaust welding fumes, but could not reach some areas where the welders had to work (Tr. 214). As a result, ventilation was poor in many work areas and welders experienced breathing problems (Tr. 224, 226). Lack of sufficient ventilation equipment also added to this problem (Tr. 232). In addition to the welding fumes and poor ventilation in these compartments, Davis described a problem with excessive heat. This condition resulted from the fact that the outer "skin" of the structure was heated to 200 degrees during the welding process (Tr. 214-215).

The size of the work areas varied, but Davis testified some were "three foot in size, two foot in size by eighteen inches tall, and you've got to crawl up in there. You can't sit up. There's not room to sit up" (Tr. 229). Davis used a table in the courtroom to depict the narrow confines of some work areas (Tr. 230). This table measured about 36 inches high, 40 to 42 inches long and approximately three feet wide (Tr. 231). He testified he would consider this amount of space to be "a good hole" and that he worked in much smaller spaces (Tr. 231, 232). The testimony of Davis is convincing that welders routinely worked in very small areas where body movement was restricted and cramped.

Before turning to the question of whether CBI was in violation of the confined space standard, it must first be determined whether the space at issue was a confined space. CBI contends that it was not.

29 C.F.R. § 1910.252(e)(4)(i) provides:

As used herein confined space is intended to mean a relatively small or restricted space such as a tank, boiler, pressure vessel, or small compartment of a ship.

CBI argues that this standard is "vague in its definition and thus unenforceable" (CBI's Brief, p. 10). CBI further argues that if the standard is not unenforceably vague, then outside sources must be consulted for guidance in defining a confined space. Specifically, CBI refers to ANSI Standard 117.1, which defines a confined space as "[a]n enclosed area that has the following characteristics: its primary function is something other than human occupancy and it has restricted entry and exit and it may contain potential or known hazards."

CBI contends that § 1910.252(e)(4)(iv) is enforced, primary consideration must be given to the ANSI definition [[2]]

Vagueness challenges directed at standards promulgated by Secretary have not met with much success. The ultimate question in such a challenge "is whether the standard is so indefinite that men of common intelligence must necessarily at its meaning and differ as to its application." Allis-Chalmers Corp. v. OSAHRC, 542 F.2d 27, 30 (7th Cir. 1976). See also Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974).

In Dravo Corporation, 80 OSAHRC 2/B10, 7 BNA OSHC 2095, 1980 CCH OSHD ś 24,158 (No. 16317, 1980), aff'd 639 F.2d 772 (3rd Cir. 1980), the employer raised a vagueness challenge to the meaning of the term "confined space" as defined in the Maritime Standards. 29 C.F.R. § 1916.2(m) of these standards defines this term as:

A confined space is

...a compartment of small size and limited access such as a double bottom tank, cofferdam, or other space which by its small size and confined nature can readily create or aggravate a hazardous exposure.

In striking down the vagueness defense, the Commission noted:

Whenever an employer cannot determine whether a space is confined or enclosed from the examples given in the definitions, the employer must use his experience, knowledge, and judgment to decide whether the hazard it which the standard is directed is increased by the size and configuration of the space. A standard is not vague simply because its application requires the exercise of judgment. See, e.g. Allis-Chalmers Corp. v. OSAHRC, 542 F.2d 27, 30 (7th Cir. 1976); M-Co Equipment Company, Inc., 75 OSAHRC 37/C3, 2 BNA OSHC 1660, 1974-75 CCH OSHD ś 19,394 (No. 3811, 1975).

The cited standard defines "confined space" in terms of "relatively small or restricted space." This definition while general in nature is sufficient to afford an employer with fair notice of the required conduct. Ryder Truck Lines, supra. This is especially true when considered in conjunction with the fact that the definition includes as an example of "confined space" the "small compartment of a ship." In this case, the space at issue is a small compartment of a submarine which is indistinguishable from that of a ship. The circumstances described in the record of this case bring the space at issue within the ambit of the standard's definition.

ITEM 2a

Having determined that the area in question was a confined space it must now be determined if respondent violated the provisions of § 1910.252(e)(4)(iv) which provides:

Where a welder must enter a confined space through a manhole or other small opening, means shall be provided for quickly removing him in case of emergency.

McCann testified May told him that CBI had no written emergency procedures to rescue welders (Tr. 61, 65) and that CBI had no means for quick removal of a welder from a confined space, other than cutting him out with a torch, a procedure estimated to take 30 minutes (Tr. 60-65). McCann's testimony on this point was directly contradicted by May at the hearing. May testified that prior to McCann's inspection, CBI had ropes, basket stretchers, and litters available to conduct a rescue procedure, as well as cutting torches (Tr. 122). McCann acknowledged that ropes, basket stretchers and cutting torches were acceptable means for removing employees (Tr. 92-94). Because the existence of the removal equipment is crucial to the resolution of this issue, it must be determined whether to credit McCann's testimony over that of May's.

Both men appeared as credible, trustworthy witnesses. McCann has been an industrial hygienist with OSHA since 1975 and has conducted over 400 inspections (Tr.16-17). May had been at CBI for 26 years at the time of the hearing, and had been shop superintendent for two years (Tr. 114). May was in a better position to know what equipment was available than was McCann. What complicates the situation is that McCann supposedly got his information from May during the inspection. May was not questioned at The hearing regarding his statements to McCann during the inspection. We are left then to weigh the testimony of the two witnesses against each other.

Unfortunately for the Secretary, she has the burden of proof on the elements of the violation. Here, she has the burden of proving that CBI did not have "means...for quickly removing" a welder in an emergency. Her sole evidence on the point is McCann's statement that May told him no such means existed. Since May's testimony flatly contradicts McCann's, and May's testimony was in no way discredited, it cannot be said that the Secretary around by a preponderance of the evidence that CBI did not have the required means of removal available. Item 2a of the citation will be vacated.

ITEM 2b

Item 2b alleges that CBI violated that portion of § 1910.252(e)(4)(iv) that provides: "an attendant with a preplanned rescue procedure shall be stationed outside to observe the welder at all times and be capable of putting rescue operations into effect."

It is undisputed that no one from CBI was observing Crapet while he worked in the hull section (Tr. 61). When asked about the monitoring of employees working in confined spaces, May replied (Tr. 123-124):

The main responsibility falls on the employee's immediate supervisor...

We have a general foreman of each of our weld shops. We've also got welding supervisors that are in and out of all the work areas checking or the quality and on the progress of the work.

We've also got inspectors that are also in and out of these areas at different times.

*******

Then [the foremen] will follow that up later; follow the progress. It may be from a distance. He may not go directly up to the person and talk to them.

Clearly, this procedure is inadequate to meet the requirements of the standard. The standard requires that an attendant "be stationed outside to observe the welder at all times"; (emphasis added). There is no provision for the kind of spot checking that CBI has implemented. CBI was in violation of § 1910.252(e)(4)(iv) with respect to Item 2b.

PENALTY DETERMINATION

The Commission is the final arbiter of penalties in all contested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under 17(j) of the Occupational Safety and Health Act of 1970 (Act), the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of the appropriate penalty.

CBI employs approximately 460 employees. CBI demonstrated good faith during the course of OSHA's inspection and it had no previous history of citations for the same violations.
Upon due consideration of the relevant factors, it is determined that a penalty determined that a penalty of $240.00 for the violation of § 1910.252 (e) (1) (ii) (Item 1), and a penalty of $320.00 for the violation of § 1910.252 (e) (4) (iv)) (Item 2b) are appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact and conclusions of law contained in this opinion are incorporated herein in accordance with Rule 52 (a) of the Federal Rules of Civil Procedure.

ORDER

In view of the foregoing and good cause appearing in support of the determinations, it is ORDERED:

1. That Item 1 of the citation is affirmed and a penalty of $240.00 is assessed for the violation of 29 C.F.R. § 1910.252 (e) (1) (ii).

2. That Item 2a of the citation is vacated and no penalty is assessed, and

3. That Item 2b of the citation is affirmed and a penalty of 320.00 is assessed for the violation of 29 C.F.R. § 1910.252(e)(4)(iv).

Dated this 13th day of June, 1991

EDWIN G. SALYERS

Judge

FOOTNOTES:

[[1]] 29 C.F.R. § 1910.252 (e)(4)(iv) provides:

On April 11, 1990, 29 C.F.R. § 1910.252(c)(4) was recodified without any substantive changes to 29 C.F.R. § 1910.252(b) (4) 55 Fed Reg. 13,695.96 (1990). For consistency, the original codification will be used in this decision.

[[2]] Dean W. May, Jr., the shop superintendent for the Cordova facility. testified that the measurements for the oval opening were 23 by 15 inches.

[[3]] The judge found that even under ANSI Z117.1, the space in question would be considered a confined space.

[[4]] At issue in Ed Taylor was the following direction of a confined space in 29 C.F.R. § 1926.21(b)(6)(ii):

For the purposes of paragraph (b)(6)(i) of this section, "confines or enclosed space" means any space having a limited means of egress, which is subject to the accumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere. Confined or enclosed spaces include, but are not limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewer, underground utility vaults, tunnels, pipelines, and open top spaces more than 4 feet in depth, such as pits, tubs, vaults, and vessels.

[[5]] In General Dynamics, the Commission held:

In summary, we find that the various standards and the expert testimony establish a consensus that a "confined space" is in area with limited natural ventilation and limited ingress egress. Perhaps the most critical factor in determining whether a space is "confined" is the introduction of some substance into the environment that, due to the lack of natural ventilation, may cause a toxic or oxygen deficient atmosphere.

General Dynamics, 15 BNA OSHC at 1284-85, 1991 CCH OSHD at p. 39,756. In the present case, the evidence establishes that Crapet was working in an area with limited natural ventilation and limited ingress egress and that a toxic or oxygen deficient atmosphere could be created in the space during the welding process.

[[6]] ANSI Z49.1-1988, section 7.5, provides as follows:

Attendants in Areas Immediately Hazardous to Life. When operations are carried on in confined spaces where atmospheres immediately hazardous to life may be present or may develop, an attendant shall be stationed on the outside of the confined space to ensure the safety of those working within.

[[7]] For support, CBI notes Shop Superintendent May's testimony that during the two years he held that position, he was not "aware of any lost time to accidents in the plant that are related to atmospheric conditions in one of the vessels being constructed by the company."

[[8]] The Secretary also argues that the Commission is without statutory authority to classify a violation as de minimis. However this argument is in direct contrast to Commission precedent in which we have held that the Commission hs the authority to determine that a citation is de minimis. Super Excavators, Inc., 15 BNA OSHC 1312, 1314, 1991 CCH OSHD ś 29,498, p. 39,802 (No. 89-2253, 1991).

[[1]] Davis has worked as a welder for respondent during the past 25 years and has been a member of the company safety committee for three years (Tr. 209). During the period preceding the Secretary's inspection, he worked as a welder in the same areas and performed the same duties as Crapet except on a different shift (Tr. 210, 212, 213, 228).

[[2]] This Court disagrees. If the definition contained in the cited standard is clear, then the Court has no need to refer to other sources. This Court finds little consolation for respondent even if the ANSI definition should prevail. The characteristics described in that definition would have clear application to the facts contained in the record of this case.