“SECRETARY OF LABORComplainantv.GENERAL DYNAMICS LAND SYSTEM DIVISION, INC.,Respondent.INTERNATIONAL UNION, UNITEDAUTOMOBILE, AEROSPACE ANDAGRICULTURAL IMPLEMENT WORKERSOF AMERICA, and its LOCAL UNION NO. 1200,Authorized Employee Representatives.OSHRC Docket No. 83-1293_DECISION_BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSIONAt issue in this case is whether Administrative Law JudgePaul L. Brady erred in vacating a citation that alleged that Respondent,General Dynamics, willfully violated section 5(a)(1), 29 U.S. ?654(a)(1), of the Occupational Safety and Health Act of 1970, 29 U.S.C.?? 651-78 (\”the Act\”).I. _Procedural History_General Dynamics manufactures the M-1 Abrams Battle Tank at a facilityin Detroit, Michigan. During assembly, oil from hydraulic linesfrequently Ieaks into the tank’s interior shell. As part of the finalstage of assembly, employees were required to clean up the leaked oil.In order to clean up the oil and other greases, employees used thesolvent Gensolv D, a brand of 1, 1, 2 trichloro 1, 2, 2 trifluoroethane,also known as \”freon.\”General Dynamics was originally issued two citations, both of whichinvolved employee exposure to freon while working inside M-1 Abramstanks under construction. One citation, alleging that General Dynamicsviolated 29 C.F.R. ? 1910.1000(a) by exposing employees to freon fumesabove permissible levels, was vacated by the judge on evidentiarygrounds and is no longer at issue. The other citation alleged aviolation of section 5(a)(1), the general duty clause of the Act, on thegrounds that employees were required to enter the tanks immediatelyafter pouring in freon, thereby exposing themselves to the hazards ofasphyxiation and or chemical poisoning. This citation was vacated by thejudge on the ground that the general duty clause was preempted by anapplicable standard, ? 1910.1000(a). The judge’s decision was notdirected for review by the Commission.Both the Secretary and the authorized employee representative, theUnited Auto Workers (\”UAW\”), appealed the judge’s decision on thepreemption issue to the United States Court of Appeals for the Districtof Columbia Circuit. In its decision, the court noted that ?1910.1000(a) addressed the hazard of long-term exposure to freon, andconcluded that the standard did not necessarily preempt the general dutyclause because the standard did not protect employees from the danger ofasphyxiation due to concentrations of freon fumes in a confined apace.The court therefore remanded the case to the Commission to determinewhether the section 5(a)(1) citation accurately described the hazard,whether that hazard was adequately addressed by the standard and, ifnot, whether the record supports the citation. 815 F.2d 1570 (D.C. Cir.1987) , cert. denied, 108 S.Ct. 485 (1987).The Commission remanded the matter to the judge with instructions todetermine, in accord with the remand order of the D.C. Circuit, whetherthe record established a violation of section 5(a)(1), and, if so,whether the violation was willful.On remand, the judge again vacated the citation. He found that thecitation failed to adequately describe the practices at the worksite andthat the tanks were not confined spaces. He concluded that it was notnecessary for General Dynamics to institute a \”confined space entryprocedure.\”Both the Secretary and the UAW filed petitions for review of the judge’sdecision, and review was directed on the issues raised by these parties.Upon review of the record as a whole, we reverse the judge and affirmthe citation.II. _Background _A.Freon is widely used in industry as a solvent for use on electricalcomponents. Although it is of relatively low toxicity when compared toother available solvents, exposure to freon vapors in sufficientquantities can pose a substantial health hazard. At 1000 parts permillion (ppm) there are no apparent effects over an eight hour exposure.However, the evidence demonstrates that at the 2500-5000 ppm level,depression of the central nervous system can occur. Also, at that levelexposed individuals will become noticeably dizzy, may lose hand-eyecoordination and the ability to concentrate, and may develop nasal andthroat irritation. Exposures to 50,000-100,000 ppm may cause an erraticheart beat, resulting in cardiac arrhythmia and possibly ventricularfibrillation. Finally, evidence presented at the hearing indicates thatexposure to levels in excess of 100,000 ppm can result in death. Allthese effects will be heightened and may occur at lower levels ofexposure in the case of employees taking drugs containing amphetamines,such as diet pills. Exacerbating the hazard are the low odor propertiesof freon, which make it difficult to detect by smell, unless it ispresent in very high concentrations.Additionally, freon is 6 1\/2 times heavier than oxygen and evaporatesrapidly. It can, therefore, displace oxygen in a work area lackingadequate ventilation. Employees working in such an environment areexposed to the risk of asphyxiation.B.General Dynamics’ employees were instructed to try to restrict freonusage to a quart or less when they cleaned up the leakage in the tanks,but it was generally left up to them as to how much to use. Sometimes,employees would spray freon from pint size squirt bottles. At othertimes, however, they would pour 4-15 gallons of freon into a tank. Whencleaning the completed tank with the turret attached, [[1\/]] employeeswould pour large quantities of freon into the tank, rotate the turret toget the freon all over the compartment, then drain it from openings atthe bottom of the tank. Employees would then wait outside the tank foras long as 45 minutes before climbing in to wipe up the remaining greaseand freon.To help provide ventilation while inside the tank, employees wereprovided portable air movers or could use the turret blowers on thetanks. However, the use of these devices did not eliminate ventilationproblems. The turret blowers were not fully effective in removing freonfumes. Furthermore, the employees were not required to use the portableair movers and the record indicates that they were never giveninstruction on their proper use or placement.In August 1982, an employee on the M-1 hull assembly line was renderedunconscious by freon vapors in a confined space conveyor pit. Theincident led to an OSHA inspection and the issuance of a citationalleging that General Dynamics violated the general duty clause, section5(a)(1) of the Act, by exposing employees to the recognized hazard ofasphyxiation associated with entering confined spaces. In a settlementagreement resolving this earlier citation, which preceded byapproximately fourteen months the citation that is now before us,General Dynamics represented that it had developed and implementedcontinued space entry procedures and that it would conduct a survey toidentify all confined spaces at the worksite. However, the tanks werenot identified as a confined space in the survey.In March 1983, Robert Kinzer, an assembly fitter in the marriagedepartment, where the turret is attached, or \”married,\” to the tankbody, noticed that the smell of freon kept getting stronger while he wasdriving a \”married\” tank. He got dizzy and crawled out of the driver’scompartment. He reported the incident to his supervisor and to hissafety representative, who filed a grievance. The grievance complainedof employees being forced to use \”excessive amounts\” of freon as acleaning agent. The grievance also alleged that, at temperatures above250[DEG]F., freon breaks down into such chemicals as phosgene andhalogen, and demanded that all freon chemicals be removed immediatelyfrom the plant.[[2\/]]In reply to the grievance, General Dynamics stated that moderate use offreon was not hazardous and referred to its new safety bulletin of April1983, which gave instructions in the proper use of freon. This bulletinlisted the characteristics and hazards of freon and stated thatventilation must be utilized when freon is used in \”enclosed spaces suchas the inside of tracked vehicles.\” The bulletin also stated that, whereventilation was not being used, freon use \”must be limited to one pintquantities,\” and emphasized that the solvent should not be used where itwas not required. Despite the bulletin’s limitation on the use of freon,employees continued to use the solvent in quantities of a gallon or morewithout using ventilators.On June 10, 1983, the UAW filed a second grievance, alleging thatemployees had to go on sick leave due to freon exposure. The UAWrequested that the use of freon be stopped immediately and that analternative be substituted. General Dynamics’ reply to the secondgrievance was that freon was the safest solvent available because allalternate solvents were even more toxic. Accordingly, it responded thatthe UAW’s demand could not be honored.The UAW filed a third grievance on June 29, 1983, alleging that,contrary to the Company’s April safety bulletin, employees were stillobtaining freon in five gallon buckets, rather than using one pintdispensers. The union demanded that only one pint dispensers be used andthat management follow their own safety rules. At the same time, UAWsafety representative Farrugia had discussions with General Dynamics’safety administrator Mathews about employee complaints of dizzinessassociated with the use of freon. Farrugia requested that GeneralDynamics develop and implement confined space entry procedures, becauseemployees affected by freon fumes could have difficulty getting out of atank, especially when the turret was turned to a position that blockedthe hatches. However, the union’s safety representative and GeneralDynamics’ safety administrator were unable to develop a confined spaceentry procedure, because they could not agree as to which parts of thetank constituted a confined space.On July 9,1983, a driver-mechanic, Frederick Spearing, who was normallyemployed at General Dynamics’ nearby Centerline facility, was assignedto the Detroit Arsenal plant to conduct the short duration road testingand cleaning of a fully assembled M-1 tank. After Spearing positionedthe tank for cleaning, two other driver-mechanics poured five gallons offreon into the turret. They rotated the turret in order to get thesolvent to pass through the turret floor access door onto the hull floorbelow.About 10-15 seconds after the freon was poured, Spearing, who was stillin the driver’s compartment, became dizzy. He tried to exit the tank,but was trapped by the rapidly rotating turret. Spearing called forhelp, but soon lost consciousness. Eventually, Spearing was rescued fromthe tank and taken to the workplace medical office for examination. Inthe accident report, the company noted that Spearing was overcome byfreon fumes. The report included a recommendation intended to preventsimilar accidents: \”Do not use large amounts of Gensolv D in a confinedarea.\”Also during July of 1983, Safety Administrator Mathews ran a 15-20minute air sampling test in one of the tanks. Sampling was interruptedbecause, according to Mathews, the pump malfunctioned. Farrugia urgedMathews to have testing done by outside firms, but no additional testingwas done. The sample that was taken was not sent out for analysis untilDecember. Because of the age of the sample, the lab indicated that theresults were unreliable.On September 21, 1983, Charles Paling and his partner, assembly fitterSteven Valentine, were assigned to make repairs on a \”married\” M-1 tank.During the course of making repairs in the driver’s compartment, oilfrom a hydraulic line spilled onto the turret distribution manifold andthe turret floor. Following their usual procedure, Paling began the tankcleaning process by pouring freon into the tank from a five gallonbucket which was one-half to three-quarters full. He set up a small airmover to remove freon fumes from the tank and then spent approximately45 minutes outside the tank doing work, while the freon drained out andthe tank ventilated. Eventually, Paling reentered the driver’scompartment to check his work. He then noticed another leak, and waspreparing to repair it, when he suddenly lost consciousness. Valentine,who had been working in another area, returned to find his partnerunconscious, shaking and foaming at the mouth. Paling was taken to theplant medical office where his pulse and heart beat were found to beerratic. He was hospitalized for six days. Paling was diagnosed assuffering from \”Trichlorotrifluoroethane Exposure, Industrial, Severe.\”His use of medication, approximately two weeks prior to the accident,may have exacerbated the effects of freon exposure.Within 45 minutes after Paling’s rescue, Valentine was ordered back intothe tank to complete Paling’s work, with instructions to get out and getair should he become dizzy. No tests were performed to determine airquality before Valentine was ordered back into the tank. Valentinetestified that the tank \”was still full of freon\” and that, although hebecame dizzy as soon as he entered the tank, he was able to get out ofthe tank to get air.In response to the accident, the union filed a grievance asking thatboth supervisors and employees be educated about the dangers of freon,and that the use of freon be prohibited in confined spaces. GeneralDynamics replied by reminding the union that the issue of freon use wasaddressed in its April bulletin. General Dynamics further stated that,as of September 22, instructions were being given to personnel on aone-to-one basis to reach all concerned. Furthermore, the company statedthat classroom instruction and demonstrations were being planned forlate November or early December. The individual instruction referred toin the reply was a safety bulletin restricting the use of freon to onepint inside a fully assembled and occupied tank and requiring the use ofventilation. In addition, the bulletin applied the one pint limit to thecrew and turret compartments of a \”married\” tank, but allowed the use oflarger amounts in the engine compartment of \”marred\” tank. The bulletinpermitted the use of greater quantities of freon inside \”unmarried\”vehicles when blowers or fans were used. Furthermore, it warned that,while one pint could not cause unconsciousness, it could causedizziness. Additionally, the bullet in set forth warnings about thehazards of freon at various concentrations.Following an OSHA investigation of the incident involving Paling, theSecretary issued to General Dynamics a citation alleging a violation ofsection 5(a)(1) of the Act, the general duty clause. The citationdescribed the hazard in pertinent part as follows:…. employees working in the Heavy Repair, Test and Adjust, Marriageand Ml Hull Lines were required to spray or pour varying quantities of[freon] into the turret and driver’s compartment of Ml tanks andimmediately enter these compartments to perform clean-up and otherroutine asphyxiation and\/or chemical poisoning. A confined space entryprocedure, specific for these operations, had not been implented whentoxic compounds were introduced into the vehicle.III. _Accuracy of Description of the Hazard_In remanding the case to the Commission, after reviewing the firstdecision of Judge Brady, the United States Court of Appeals for theDistrict of Columbia Circuit directed the Commission to determinewhether the citation \”accurately described\” the hazard at the worksite. In his decision on remand vacating the general duty clause citation, the judge found that employees were not \”required\” to \”immediatelyenter\” the tanks, as alleged in the citation, but rather were encouragedto wait a period of the time to allow the fumes to dissipate beforeentering. On that basis, the judge found that the citation failed toaccurately describe the hazard.For the following reasons, we find that, contrary to the judge’sdetermination, the citation described the hazard to which GeneralDynamics’ employees were exposed with sufficient accuracy to give noticeof the violation that was being alleged. It is well settled that administrative pleadings are to be liberallyconstrued and easily amended. Brock v. Dow Chemical U.S.A., 801 F.2d 926(7th Cir. 1986); Simplex Time Recorder Co. v. Secretary of Labor 766F.2d 575, 585 (D.C. Cir. 1985); National Realty and Construction Co. v.OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). This has been particularly truefor citations issued under the Act, which are drafted by non-legalpersonnel who are required to act with dispatch. To inflexibly hold theSecretary to a narrow construction of the language of a citation wouldunduly cripple enforcement of the Act. Dow Chemical, 801 F.2d at 930;Donovan v. Williams Enterprises, Inc., 744 F.2d 170 (D.C. Cir. 1984).That administrative pleadings are to be liberally construed does not,however, obviate the need for particularity in the statement of thecharge against the employer. Dow Chemical, id.; Donovan v. Royal LoggingCo., 645 F.2d 822, 828 (9th Cir. 1981). Administrative pleadings mustafford the employer a fair opportunity to prepare and present a defense.A citation must be drafted with sufficient particularity to inform theemployer of what it allegedly did wrong and that it must either contestthe Secretary’s allegations or pay the proposed penalty. Dow Chemical,801 F.2d at 930; Royal Logging, 645 F.2d at 828. A general duty clausecitation must also apprise the employer of its obligations and identifyconditions or practices over which the employer can reasonably beexpected to exercise control. Davey Tree Expert Co., 11 BNA OSHC 1898,1899, 1983-84 CCH OSHD (P) 26,852 at p. 34,399 (No. 77- 2350, 1984).The case of Babcock and Wilcox Co. v. OSHRC, 622 F.2d 1160 (3d Cir.1980) presents a close analogy to the situation here. Babcock and Wilcoxwas issued a citation alleging that it violated section 5(a)(1) becauseits employees, working near a melt furnace, were exposed to the hazardof possible explosions and burn injuries when Large quantities of waterand hydraulic fuel were puddled in the area beneath the furnace tap andon the apron of the furnace base during a pour of molten steel. At thehearing, the parties focused on how quickly the water should have beenremoved and whether it was a recognized hazard to operate a furnace withstanding water in the vicinity. However, Babcock and Wilcox argued thatthe issue should have been limited to the express words of the citation,i.e., whether it was a violation of the Act to have proceeded to tap thefurnace despite the presence of water in the vicinity. The Third Circuitagreed that the citation was inartfully drawn and failed to accuratelydescribe to the employer the violative condition that was tried.Nevertheless, it upheld the citation.We have no doubt that the employer was put on notice as to the nature ofthe Secretary’s complaint. Citations must give fair notice to theemployer so that it understands the charge being made and has anadequate opportunity to prepare and present a defense. Citations,however, are prepared by inspectors who are not legally trained and whoshould act with dispatch. For these reasons, citations should not be astightly construed as other pleadings–a grand jury indictment, for example.Id. at 1164.Here, although the record establishes that employees were not \”required\”to enter the tanks immediately after the introduction of freon, thecitation clearly informed General Dynamics that its procedures for theuse of freon in tanks and for restricting employee entry into the tanksafter the introduction of freon were deemed hazardous by the secretary.General Dynamics was fully prepared to, and did, defend against thischarge. Indeed, during the hearing, the parties fully litigated issuesinvolving the hazards caused by the use of freon in the tanks. Moreover,the evidence established that, although not \”required\” to do so, someemployees would enter the tanks immediately after pouring freon into thetanks. We therefore find that the citation described the alleged hazardwith an accuracy sufficient to enable General Dynamics to fully litigatethe relevant issues.IV. _Are the Tank Compartments \”Confined Spaces\”_To establish a violation of section 5(a)(1), the Secretary must provethat: (1) a condition or activity in the employer’s workplace presenteda hazard to employees, (2) the cited employer or the employer’s industryrecognized the hazard, (3) the hazard was causing or likely to causedeath or serious physical harm, and (4) feasible means existed toeliminate or materially reduce the hazard. Kastalon Inc., 12 BNA OSHC1928, 1931, 1986-87 CCH OSHD (P) 27,643 at p. 35,973 (Nos. 79-3561 and79-5543, 1986); Pelron Corp.,12 BNA OSHC 1833, 1835, 1986-87 CCH OSHD(P) 27,605 at p. 35,871 (No. 82-388, 1986).A.The parties do not dispute that employee entry into a confined space isa recognized hazard and that appropriate measures must be taken toprotect employees who enter such areas. The parties vigorously dispute,however, whether the tank compartments constitute confined spaces.When \”married,\” the top half or turret of the tank is affixed and weldedto the bottom half or hull. In this configuration, the tank consists ofthree definable sections: the crew\/hull compartment, the driver’scompartment and the turret compartment.The crew compartment of a \”married\” tank has an air volume of 69.7 cubicfeet and poor ventilation. It has a diameter of approximately 90 inchesand is approximately 5’6\” deep. The area is enclosed, the only openingsbeing a hole in the side leading to the driver’s compartment and twohatch openings. One of the hatches is 17 inches and the other is 22inches in width. Egress from the compartment is accomplished by grabbingthe top of the tank and pulling oneself out of the tank, by use of aportable ladder, or by climbing through the opening to the driver’scompartment.The driver’s compartment of a \”married\” tank is a totally enclosed areawith an air volume of 17.6 cubic feet, and no natural ventilation. Thedepth of the compartment ranges from 26-36 inches. With only onemanhole-type hatch available, egress is restricted. Depending on how theturret is oriented, the gun canrender the hatch unusable, and the employee would have to exit bycrawling into the crew compartment and escaping through one of its twohatches.The \”turret\” compartment is created by the marriage of the hull and theturret. It is a separately assembled enclosure inserted into the hull tocomplete the tank. This compartment has an air volume of 181.2 cubicfeet. It has two hatch openings in the turret through which an employeewould be able to leave the compartment. The \”tank commander’s hatch\” isabout 17 inches in diameter, and the \”loader’s hatch\” is about 22 incheswide. Neither hatch has a ladder or other device to assist an employeeattempting to exit the compartment.Although the citation did not differentiate between \”married\” and\”unmarried\” tanks, the Secretary and the union, at the hearing, alsosought to establish that the use of freon in the \”unmarried tanks\”constituted a recognized hazard. When \”unmarried,\” the tank consists ofonly two sections, the crew and driver’s compartment. In this\”unmarried\” configuration, the crew compartment is 36-41 inches deep andonly comes up to the average person’s waist. The diameter of the crewcompartment of an \”unmarried\” vehicle is approximately 90 inches. Thedriver’s compartment of an \”unmarried\” tank is open and is 26-36 inchesdeep.B.There is no single definition of a \”confined space.\” Safety and healthorganizations, such as the American National Standards Institute(\”ANSI\”) the National Institute for Occupational Safety and Health(\”NIOSH\”), as well as OSHA, and different safety and healthprofessionals, have varying definitions, all of which are open tosubjective interpretation.ANSI standard Z. 117.1-1977 (\”American National Standard SafetyRequirements for Working in Tanks and Other Confined Spaces\”) at ? 2.2sets forth its definition for confined spaces:2.2 Confined Spaces. Confined spaces are normally considered enclosureshaving limited means of access and egress such as, but not limited to:(1) Storage tanks, tank cars, process vessels, bins, silos, boilers, andother tank-like compartments usually with only a manhole for entry.(2) Open-topped spaces of more than 4 ft in depth, such as pits, vaults,and vessels, not subject to good natural ventilation.(3) Septic tanks, sewers, underground utility tunnels and pipelines, andsimilar structures.Explanatory Note E2.2 accompanying the section, which is not officiallypart of the ANSI code, states in relevant part:(1) A tank or other vessel under construction may not meet thedefinition of \”confined space\” until it is completely enclosed.NIOSH issued recommended standards in its document, \”Working in ConfinedSpaces.\” According to that document, a confined space:[r]efers to a space which by design has limited openings for entry andexit; unfavorable natural ventilation which could contain or producedangerous air contaminants, and which is not intended for continuousemployee occupancy. Confined spaces include but are not limited tostorage tanks, compartments of ships, process vessels, pits, silos,vats, degreasers, reaction vessels, boilers, ventilation and exhaustducts, sewers, tunnels, underground utility vaults, and pipelines.The Michigan Occupational Safety and Health Administration (\”MIOSHA\”)administers standards and sets forth guidelines on occupational safetyand health. These guidelines and standards contain a number ofdefinitions of a \”confined space\” that were relied upon by GeneralDynamics in its determination of whether the tanks constituted \”confinedspaces.\”The definition set forth in the MIOSHA guidelines states that:[t]he phrase \”confined or process space\” means any space which haslimited openings for employee entry and exit, unfavorable naturalventilation which could contain or produce dangerous concentrations ofair contaminants, flammable gases or vapors, or a deficiency of oxygen,and is not intended for continuous employee occupancy. Confined orprocess spaces include, but are not limited to: storage tanks, processvessels, bins, boilers, ventilation or exhaust ducts, sewers,underground utility vaults, tunnels, pipelines, and open top spaces morethan four feet in depth such as pits, tubs, vaults, and vessels.\”Confined Or Process Space Entry,\” Occupational Health Guide C, MichiganDepartment of Public Health.A confined space is further defined by MIOSHA rule 3303(2)(a) as \”arelatively small or restricted space such as a tank, boiler, pressurevessel, or small compartment of a ship.\”On January 27, 1984, a few months after the citation in this case wasissued, OSHA circulated to its field staff a draft standard on confinedspaces.[[3\/]] While General Dynamics cannot be charged with knowledge ofthis proposal, we consider it instructive in determining the generalconsensus of what constitutes a confined space. The draft standard wasdesignated as {sec} 1910.146. According to paragraph (b)(3) of the proposal:[A] \”Confined space\” means a tank, vessel, silo, vault, pit, open toppedspace more than four feet (1.2m) deep, or any other enclosed space thatis not designed for continuos employee occupancy and has one or more ofthe following characteristics:(1) contains an actual or potential hazardous atmosphere or other safetyor health hazard;(2) makes ready escape difficult (i.e., prevents egress in a normalwalking position); or(3) restricts entry for rescue operationAccording to the Appendix to the draft standard:2. Application. The spaces covered by this standard are those that arenot designed for humans to work in routinely, e.g., for a regular shift,but which may have to, be entered for specific work-related purposes.The standard requires the employer to assume that entry into a confinedspace is dangerous to the safety and health of employees unless theemployer has determined by a thorough evaluation of the space that thisis not the case.The types of confined spaces addressed are mobile and fixed tanks,digesters and other reactor vessels, vaults other than bank vaults,steam and other equipment tunnels, pits and below ground chambers,boilers, ovens, furnaces, pipelines and sewers, manholes, kilns, andsilos. Floating roof tanks, vats, tubs, and other spaces where the depthis more than four feet (1.3m) are other examples of confined spaces.In addition the parties also adduced substantial testimony on whatconstitutes a \”confined space.\”The compliance officer, Morgan, testified that, in his opinion,exceptions contained in the various standards for spaces \”intended forcontinuous occupancy\” and for areas \”under construction\” do not exemptthe tanks in this action from the \”confined space\” designation. He drewa parallel between the M-1 tanks and space capsules being built forNASA. He testified that, to his knowledge, even though the spacecapsules were under construction and intended for continuous occupancy,they were considered \”confined\” spaces. Morgan identified lack ofventilation and limited ingress\/egress as key factors in determiningwhether a space is \”confined.\” He noted that although the tank inquestion had a ventilation system, it was not used. He testified thatthe use of the ventilation system would not necessarily stop the M-1tank from being a dangerous \”confined\” space because the company had notevaluated the tank while the system was on.Dr. Sheldon Rabinovitz, a senior scientist at NIOSH with wide experiencein industrial hygiene, was qualified as an expert in the identificationand handling of confined spaces. Dr. Rabinovitz testified that, from thestandpoint of industrial hygiene, a \”confined\” space is an enclosurethat has limited entry and egress and limited ventalation. Other, thoughless important characteristics or limited visibility. Dr. Rabinovitztestified that, in his opinion, all of the compartments of the \”married\”M-1 tanks he examined at the Detroit Arsenal Plant were confined spacesbecause each was enclosed and had limited visibility and limitedpotential for communication.Dr. Rabinovitz testified that the ANSI exception for spaces \”underconstruction\” do not apply to the M-1 tanks. In his view, the exceptionceases to apply when construction is at the stage where ingress\/ingressbecomes limited. The M-1 tanks had passed that stage. Furthermore, hetestified that the language in the NIOSH, MIOSHA and OSHA standardsexempting vehicles \”intended for continuous employee occupancy\” did notapply to the tanks. He believed that the important consideration wasthat the tanks were not intended for continuous occupancy duringassembly when toxic materials may be used that would not be introducedwhen assembly is completed. Finally, Dr. Rabinovitz noted that at theFord Motor Company, automobiles were sometimes considered confinedspaces during assembly.At the request of the UAW, Dr. Rafael Moure conducted an investigationof the Paling incident at the Detroit Arsenal plant. Dr. Moure as aPh.D. in environmental health and industrial hygiene and at the time ofthe hearing, was an industrial hygienist for the UAW in Detroit. Priorto holding that position with the UAW, he was employed by the Oil,Chemical and Atomic Workers Union (OCAW) and in that capacity, hadinvestigated incidents involving confined spaces. In addition, he was aconsultant for NIOSH in the preparation of its criteria document onconfined spaces.Dr Moure defined a confined space as an area not intended for permanentwork, with limited egress\/ingress and unfavorable natural ventilation,and which may contain dangerous air contaminants and\/or low oxygenlevels. He believed that the primary characteristic of a confined spaceis the potential for a dangerous level of contaminants Dr. Mouretestified that not all of the characteristics need to be present at thesame time for a space to be confined. He concluded that, with theintroduction of freon, the driver and crew compartments of the \”married\”M-1 tanks met the definition of a confined space and, therfore, confinedspace procedures should have been instituted.Dr. Moure further testified that the M-1 tanks were not intended forcontinuous occupancy. He observed that where operations on a vehicle arebeing conducted that required employee exposure to a dangerousatmosphere, the vehicle, at that stage, is not intended for continuousoccupancy. He noted that, because of limited openings and unfavorablenatural ventilation, crew compartments in ships under construction areconsidered confined spaces when dangerous chemicals are introduced, eventhough they are ultimately intended for permanent employee occupancy. General Dynamics argues in support of the judge’s conclusion that thehazard alleged in the citation is the use of freon in a confined space.It argues that, to prove a violation, the Secretary must show that M-1tank compartments are confined spaces. The Secretary’s experts, itpoints out, could not agree on the elements characteristic of a confinedspace and, therefore, could not agree on the hazard it was expected torecognize. Moreover, it argues that if the tanks were confined spaces,they should have been, but were not, so designated during previousinspections conducted by safety officials of the UAW and OSHA. Inaddition, General Dynamics contends that the criteria set forth in thevarious non-OSHA standards defining confined spaces were not met by theM-1 battle tanks.Both the Secretary and the UAW contend that, even if the tankcompartments are not confirmed spaces, the alleged violations shouldnevertheless be upheld because the evidence established that the use offreon in the tanks constituted a recognized hazard likely to cause deathor serious physical harm to employees. They claim that the citation’sreference to a \”confined space entry procedure\” [[6\/]]does not describethe hazard that is at issue in this case, but rather relates only to apossible means of abating the hazard.The judge rejected the argument that a recognized hazard was establishedeven if the M-1 tank compartments were not recognized as confinedspaces. Noting that the citation required that General Dynamicsimplement a \”confined space entry procedure,\” he concluded that unlessthe tank compartments were confined spaces, the citation failed toadequately describe the hazard and must be vacated. Examining the issue,the judge concluded that the M-1 tanks failed to satisfy the criteriafor \”confined spaces\” set forth in the various industry and proposedOSHA standards. Specifically, the judge found that, contrary to therequirements of the NIOSH standard, MIOSHA guidelines, and proposed OSHAstandards, the tanks were intended for continuous employee occupancy.For the following reasons, we find that the three compartments of a\”married tank\” are recognized as confined spaces[[5\/]]D.upon initial examination, it appears that, whenever freon is being usedfor cleaning purposes, all of the compartment of the \”married\” M-l tankhave the characteristics of a confined space, as described by thewitnesses and referred to in the standards. They each have limitedventilation and restricted ingress\/ egress, and could contain dangerousquantities of freon or a deficiency of oxygen. The language relied onby General Dynamics in some of the standards does not require adifferent result.Under the ANSI standard, MIOSHA guidelines, and 1984 draft OSHAstandards, open-topped spaces are considered to be \”confirmed\” when theyare four feet or more in depth. Strictly construing these provisions,only the crew compartment of a \”married\” tank, which is over five feetdeep, would be considered a \”confined space.\” However, there isnothing in the record to indicate anything \”magical\” about a 48-inchdepth. We therefore find that the 48-inch criterion may play a part indetermining whether certain spaces are confined, but the limited natureof the violation, and the difficulty of ingress\/ egress, both of whichare certainly present here, appear to be be the more pivota; factors. In fact the shallowness of the \”married\” tank compartments, whencombined with the difficulty of ingress\/ egress, may make them even moreconfined and, therefore, more hazardous than compartments four feet ormore in depth.We also find that the language in the NIOSH standard, MIOSHA guidelinesand the draft OSHA standards expempting confined spaces intended for\”continuous employee occupancy\” from the coverage of those standardsdoes not apply to the tank compartments. The testimony at the hearingestablished that the continuous occupancy exclusion is operative onlywhen the area is being used for its intended purpose. Although GeneralDynamics employees regularly entered the M-1 tanks at this stage oftheir manufacture, they generally did so only to repair hydraulic linesor to clean up oil and residual freon. The appendix to the proposed OSHAconfined space standard is helpful on this point. At paragraph two(\”application\”), it expressly includes as \”confined spaces\” those areas\”that are not designed for humans to work in routinely, e.g. for aregular shift, but which may have to be entered for specific workrelated purposes. \”The tanks were not intended to constitute a regularworkstation for General Dynamics employees, but rather, were entered forthe specific purpose of cleaning the tank.[[6\/]] Itis, therefore,apparent that the exclusion for areas \”intended for continuous employeeoccupancy\” does not apply to the M-1 tanks [[7]]In summary, we find that the various standards and the expert testimonyestablish a consensus that a \”confined space\” is an area with limitednatural ventilation and limited ingress\/egress. Perhaps the mostcritical factor in determining whether a space is \”confined\” is theintroduction of some substance into the environment that, due to thelack of natural ventilation, may cause a toxic or oxygen deficientatmosphere. Whether the area has limited employee occupancy, is \”underconstruction,\” or is 48 inches deep are factors that may contribute tocreating a confined space, but individually they are not determinativein deciding whether a space i confined.We therefore find that the various standards and the expert testimonyestablish that the different compartments of a \”married\” M-1 AbramsBattle Tank constitute \”confined spaces.\” The compartments lacksignificant natural ventilation and have limited means foringress\/egress. Because of these conditions, the introduction of freonin the quantities involved here into the tanks created a substantialrisk of a toxic or oxygen deficient atmosphere, typical of the type ofhazards associated with confined spaces.On the other hand, the record establishes that the compartments of the\”unmarried\” tanks are open, no deeper than the average person’s waistand present little difficulty in ingress or egress. Moreover, testimonyof the experts revealed considerable equivocation as to whether theunmarried tanks compartments were confined spaces. The record,therefore, fails to establish that the \”unmarried\” tank compartmentswere confined spaces.EWe must next determine whether General Dynamics, or industry in general,recognized that the entry of employees into the tanks after the use offreon constituted a hazard to its employees.General Dynamics contends that, where those who enforce standards cannotargee on whether a condition is hazardous, an employer can not beexpected to comply with those standards, citing Kent Nowlin ConstructionCo. v. OSHRC, 593 F.2d 368(10th Cir. 1979) (\”Kent Nowlin\”). It claimsthat what the Secretary now contends are confined spaces were notdesignated as confined spaces during previous inspections conducted byboth union and OSHA safety officials. General Dynamics claims that thisprecludes the Commission from finding that the company should haverecognized the tank compartments as confined spaces. we disagree. It iswell settled that an employer cannot rely on an earlier failure by OSHAto issue a citation as a basis for arguing that it lacked knowledge of ahazardous condition. Columbian Art Works, Inc., 10 BNA OSHC 1132, 1133,1981 CCH OSHD (p) 25,737 at p. 32,102 (No. 78–29, 1981). This isparticularly true here where, although they were cataloguing confinedspaces at General Dynamics’ facility, the Secretary and Dr. Moure werenot familiar with the use of freon in the tanks and were focusing on onworksites within the plant. The tanks at issue simply were not among theworkstations surveyed.The court’s holding in Kent Nowlin provides no support for GeneralDynamics’ argument. In that case, the Tenth Ciircuit held that anemployer should not be penalized for deviating from a standard whenneither the Secretary’s enforcement officials, the judge, nor themembers of the Commission could agree on how to interpret the standard.Here, there were no such disagreements. Furthermore, the recordestablishes that, between April 1983 and the incident in September 1983,several of General Dynamics’ employees suffered adverse consequencesfrom freon exposure while working in the tanks. These other incidents,recounted earlier, caused symptoms ranging from dizziness to loss ofconsciousness, caused employees to take sick leave, and led the UAW tofile three formal grievances about the use of freon in the tanks. Theseincidents, together with the filing of formal grievances, but GeneralDynamics on notice that its employees were being exposed to a confinedspace hazard caused by the use of freon in the tanks. Indeed, theunion’s safety representative attempted, unsuccessfully, to have GeneralDynamics label the tank compartments as confined spaces. Respondent’srecognition of the hazard was further underscored by its issuance ofseveral safety bulletins attempting to restrict and control the use offreon. Accordingly, we conclude that General Dynamics recognized orshould have recognized that employee entry into the \”married\” tanksafter the use of freon exposed those employees to a confined space hazard.F.The record is replete with instances where employees who entered thetanks after the introduction of freon suffered ill effects ranging fromdizziness to near asphyxiation. We therefore find that employees whoentered into married tanks after the use of freon were exposed to ahazard that was likely to a hazard that was likely to cause death orserious physical harm.V. _Feasible means of Abatement_A.In order to prove a violation of section 5(a)(1) of the Act, the generalduty clause, the Secretary must also establish that there is a feasiblemeans of eliminating or at least materially reducing the recognizedhazard. Kastalon Inc., 12 BNA OSHC at 1931, 1986-87 CCH OSHD at p.35,973. Although the parties dispute whether the tank compartments wereconfined spaces, there is no dispute about the steps that must be takento eliminate the hazards posed by confined spaces. The testimony of theexperts establishes, and the relevant NIOSH, MIOSHA and ANSI standardsconfirm, that to protect employees from the hazard of entering aconfined space, a \”confined space entry procedure\” should be instituted.[[8\/]] Indeed, General Dynamics had promulgated a set of such proceduresfor those areas of its plant that it had designated as \”confined spaces.\”General Dynamics argues that the Secretary failed to establish that itwas feasible to apply \”confined space entry procedures\” to the M-1tanks. It claims that the judge correctly held that such procedures arenot appropriate where employees are performing numerous tasks on the tanks.General Dynamics also contends that it took adequate measures to protectits employees. It submits that, in response to employee complaints, itdistributed safety bulletins that instructed employees to limit theamount of solvent used in married vehicles to one pint, a quantity itdetermined to be safe. It provided fans for ventilation, and held safetymeetings concerning the safe use of the solvent. Moreover, as employeePaling testified, hatches and drains were left open during ventilation,which, as part of normal procedures, took up to an hour. In addition,the company relies on the testimony of the compliance officer that itssafety measures sufficiently addressed the use of freon in the tanks.B.The record demonstrates that General Dynamics did attempt to limit freonuse to one pint, and to provide ventilation. [[9\/]] However, thecompliance officer did not testify that the safety program wassufficient to abate the hazard. Rather, he stated that the measurestaken by General Dynamics might have been sufficient to free theworkplace of the hazard had the employer taken the additional step oftesting the atmosphere. He testified that without such testing GeneralDynamics could not be certain that these measure were sufficient toabate the hazard. Morgan further testified that employees were notinstructed in the proper use and placement of the ventilator. Indeed,the failure to train employees in the proper use of the ventilators andthe lack of atmospheric testing created the possibility that theventilation was not only inadequate, but was actually recirculatingfreon fumes back into the tank. Moreover, the use of ventilators was notrequired by General Dynamics but, rather, was essentially voluntaryunder the company’s rules.The evidence established that General Dynamics’ attempts to limit thequantities of freon used by the employees were almost totally ignored byboth employees and supervisors. Indeed, the various safety bulletins putout by the company concerning the freon problem were poorly communicatedto the employees. Some employees testified that they first saw thebulletins lying on their foreman’s desk. Thus, the employees learned ofthe freon policies as often by accident as by design. In sum, theevidence establishes that the measures taken by General Dynamics failedto either eliminate or materially reduce the hazard posed by the use offreon in a confined space.C.The only reason General Dynamics gives for not applying its \”confinedspace entry procedures\” to the M-1 tanks is that it never identified thetank compartments as confined spaces. However, there is no indication inthe record that the same \”confined space entry procedures\” already ineffect in other areas of the facility could not have feasibly beenapplied to the M-1 tanks.There is no single preestablished \”confined space entry procedure.\”Rather, the formulation of the procedure depends on the situation.Nonetheless, expert testimony established that the two measures centralto any \”confined space entry procedure\” are ventilation andenvironmental testing. There is substantial evidence that both of thesemeasures were feasible.General Dynamics provided ventilation in the form of air movers to manyof its employees. Although there is no evidence that the devices wereinadequate, as noted above, the company failed to train employees intheir proper use. In addition, employees were not instructed or requiredto test the atmosphere to determine if, after ventilation, freon levelshad been reduced to safe levels. The evidence establishes that airquality testers were available and could have been used to test theatmosphere in the tanks. Some of these devices continuously monitor theenvironment and sound an alarm when a preset concentration of a toxicchemical is reached.Furthermore, the evidence established the feasibility of other measuresusually found in a \”confined space entry procedure.\” For example, twoemployees would regularly take the tanks out for the final cleaning.There is no evidence to indicate that a formal \”buddy system\” could nothave been instituted in conjunction with this normal work practice orthat such a system would have been cost prohibitive. In addition, thecompany gave confined space training to those employees working in areasit identified as confined. Such training clearly could have beenextended to include those employees working in the tanks. Accordingly,we find that the Secretary established that it was feasible for GeneralDynamics to institute a \”confined space entry procedure\” for the M-1 tanks.Finally, we would note that the hazard could have been abated byeliminating the use of freon as a cleaning agent. The evidenceestablished that employees could use soap and water to clean the M-1tanks. While the use of soap and water took longer and requiredemployees to use more \”elbow grease\” than required when using freon,nothing in the record indicates that this increase in time and effortwas so substantial as to be infeasible. Indeed, as a result of incidentsoccurring after the Paling incident, General Dynamics stopped usingfreon and began using soap and water to clean the tanks.VI._Willfulness_A.A willful violation is a violation committed voluntarily withintentional disregard for the requirements of the Act, or plainindifference to employee safety. United States Steel Corp., 12 BNA OSHC1692, 1903, 1986 CCH OSHD (p) 27,517 at p. 35,675 (No. 79-1998, 1986)The Secretary’s burden of or proving willfulness is notably moredifficult when an employer is charged with a violation of section5(a)(1), the general duty clause. Id. To establish a WiIliful violationof section 5(a)(1), the Secretary must show that the employerintentionally disregarded or was indifferent to its statutory duty tofurnish a workplace free of recognized hazards causing or likely tocause death or serious physical harm. Thus, there must be evidence,apart from that establishing knowledge of the hazard, from which it maybe concluded that the employer intentionally disregarded or wasindifferent to the safety of its employees. St. Joe Minerals Corp. d\/b\/aSt. Joe Lead Co. v OSHRC, 647 F.2d 840 (8th Cir. 1981); Kus-TumBuilders. 10 BNA OSHC 1128, 1131, 1981 CCH OSHD (p) 25,738 at p. 32,106(No. 76-2644, 1981).The Secretary and the UAW argue that the violation was willful. TheSecretary points out that, as a result of the September 1982 citation,the company was aware of the basic hazard of freon use in a confinedspace. She claims that, as a result of the numerous written and verbal.complaints filed, the company was on notice of the hazard posed by freonuse to employees working in the M-1 tanks, but failed to monitor thehazard or take other steps necessary for an effective \”confined spaceentry procedure.\” The Secretary further argues that General Dynamics’bulletins warning of the dangers from freon exposure were ineffectivebecause they were neither posted nor adequately communicated to employees.General Dynamics stresses that no citations were issued for overexposureto freon after two earlier inspections, even though the complianceofficer observed employees using as much as 14 gallons of freon in theM-1 tanks. The company’s primary defense against the charge ofwillfulness, however, is based on those steps it took to reduce thehazard to employees. It contends that just because these steps were noteffective is not a sufficient reason to find the violation to bewillful. The company also points out that its safety administrator,Mathews, did not know that employees were continuing to use too muchfreon in violation of the instructions in its bulletins. Indeed, itargues, when Mathews was informed of an incident involving freon, heresponded with such measures as ordering one pint spray bottles and newair blowers, making other cleaning fluids available, and arranging foradditional training. Although this did not satisfy the UAW, GeneralDynamics argues that its safety administrator’s actions preclude afinding that it either disregarded or was indifferent to employee safety.B.Based on the particular circumstances here, we find that the evidencefails to establish that General Dynamics either intentionallydisregarded or was indifferent to employee safety.Although it did not classify the tanks as \”confined,\” and implement\”confined, space entry procedures, [[10\/]] General Dynamics did takemeasures to protect employees. The company responded to complaints byordering a reduction in the quantities of the solvent used. It alsoordered ventilators for use in the tanks, and took other measuresintended to reduce the use of freon. Where, as here, an employerundertakes serious steps to reduce a hazard, such good faith attempts tocomply with the Act will usually preclude a finding of willfulness.Wright & Lopez, Inc. , 8 BNA OSHC 1261, 1266, 1980 CCH OSHD (p) 24,419at p. 29,777 (No. 76-3743, 1980) . Although its steps were inadequatelyimplemented, Respondent’s actions over a period of time demonstrate thatit made efforts to abate the hazard that were sufficient to overcome acharge of willfulness, particularly where the general duty clause, whichprescribes no specific abatement method, is involved. As such, we holdthat Respondent’s violation of the general duty clause was not willful.C. PenaltyWhen determining an appropriate penalty, the occupational Safety andHealth Act directs the Commission to consider the size of the business,the gravity of the violation, the good faith of the employer, and thehistory of previous violations. 29 U.S.C. ?666(j), section 17(j) of theAct.Generals Dynamics is a large company with a history of prior OSHAviolations. Although the company exhibited good faith in its incompleteattempts to reduce the hazard caused by the use of freon in the M-itanks, the hazard remained one of high gravity. The record not onlyreveals a substantial number of employee complaints and injuries due tofreon exposure, but also establishes the life threatening nature ofhazard. Considering these factors, we find a penalty of $900 to beappropriate.VII.. _ORDER_Accordingly, the judge’s decision is reversed. We affirm the citationfor violation of section 5(a)(l) of the Act, but vacate the willfulcharacterization. A penalty of $900 is assessed. Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: September 11, 1991OSHRC Docket No. 83-1293SECRETARY OF LABOR,complainant,v.GENERAL DYNAMICS LAND SYSTEMS DIVISION, INC. ,Respondent,andINTERNATIONAL UNION, UNITEDAUTOMOBILE, AEROSPACE ANDAGRICULTURAL IMPLEMENTWORKERS OF AMERICA, and itsLOCAL UNION NO. 1200,Authorized EmployeeRepresentative.APPEARANCES:Richard J. Fiore, Esquire, and Mark A. Holbert, Esquire, Office of theSolicitor, U. S. Department of Labor, Chicago, Illinois, on behalf ofcomplainant.John P. Hancock, Esquire, and Lisabeth Coakley, Esquire, Butzel, Long,Gust, Klein and Van Zile, Detroit, Michigan on behalf of respondent.Beverly Tucker, Esquire, and Diane Thomas, Law Clerk, United Automobile,Aerospace and Agricultural Implement Workers of America, InternationalUnion, Detroit, Michigan, on behalf of the authorized employeerepresentative.Charles Farrugia, Health and Safety Representative, United Automobile,Aerospace and Agricultural Implement Workers of America, Local Union No.1200, on behalf of the authorized employee representative._DECISION AND ORDER ON REMAND_BRADY, Judge: This case is before the undersigned on remand from theUnited States Court of Appeals for the District of Columbia Circuit,[UAW v. General Dynamics Land systems, Inc.,815 F.2d 1570 (D.C. Cir.1987)], and the occupational Safety and Health Review Commission(Commission), March 24, 1989. The Commission stated that the purpose ofthe remand is \”to make the necessary credibility and factual findings\”to determine, in light of the court of appeals opinion, \”whether therecord establishes a violation of 5(a)(1) and, if so, whether theviolation was willful.\”_PROCEDURAL HISTORY_On November 29, 1983, the Secretary of Labor (Secretary) issued acitation and notification of proposed penalty to General Dynamics LandSystems Division, Inc., (General Dynamics) charging two willfulviolations of the occupational Safety and Health Act of 1970 (the Act)and certain specific occupational safety and health standardspromulgated pursuant to the Act. Item one charged that General Dynamicsviolated the Act’s general duty clause, section 5(a)(1), in that itfailed to implement confined space entry procedures for employees whowere exposed to dangerous concentrations of trichloro trifluoroethanewhile performing production tasks inside the compartments of the M1Abrams main battle tank. Items 2a and 2b of the citation charged that onSeptember 21, 1983, an employee in M1 test and adjust department wasexposed to concentrations of trichloro trifluoroethane in excess of theeight-hour time-weighted average limit established for this material bythe air contaminant standard, 29 C.F.R. {sec} 1910.1000, and thatGeneral Dynamics failed to implement feasible controls to reduce suchexposure. A penalty in the amount of $9,000.00 was proposed by theSecretary for each item of the citation. General Dynamics contested thecitation and the matter was docketed by the Commission for hearing. TheInternational Union of the United Automobile, Aerospace and AgriculturalImplement Workers of America, and its Local Union No. 1200 (the union)elected and were granted party status.Following the hearing, a decision was issued by the undersigned vacatingboth items of the citation. The Secretary and the Union petitioned thefull Commission for discretionary review of the decision. When noCommissioner directed review within 30 days, the decision became thefinal order of the Commission pursuant to section 12(i) of the Act. TheSecretary and Union sought judicial review of that portion of the finalorder vacating item one of the citation, the section 5(a)(1) charge. Thecourt of appeals granted the petitions for review and vacated that partof the Commission’s final order vacating the 5(a)(1) charge and remandedthe case to address the merits of the section 5(a)(1) citation.STATEMENT OF FACTSGeneral Dynamics is a defense contractor engaged in, among other things,the production of M1 Abrams main battle tanks. Its workplace, known asthe Detroit Arsenal Tank Plant (DATP), in Warren, Michigan, is a U.S.Department of Defense installation where the United States holdsexclusive federal jurisdiction.General Dynamics began producing the M1 Abrams battle tanks in March1982. At any given time, there were between 60 and 100 M1 tanks invarious stages of production under the direction of General Dynamics atthe DATP.Tanks are produced in three assembly stages, Ml hull assembly, Ml turretassembly, and M1 marriage (joining of the turret to the hull) (Ex.C-28(a) and (b); Tr. 88). Following the completion of these assemblystages, the assembled vehicle proceeds to the final test and adjustdepartment (also known as the heavy repair department) where it isinspected, tested, and deficiencies discovered are noted and corrected.These production tasks are performed by employees of General Dynamicsholding the job classification of tank repairman, assembler- fitter, orinspector.BACKGROUND OF THE ALLEGED_SECTION 5(a)(1) VIOLATION_On August 31, 1982, a representative of the occupational Safety andHealth Administration (OSHA) conducted an (investigation at the DATP inresponse to a union complaint (Tr. 2289).The complaint indicated that anemployee was overcome by vapor from 1, 1, 2 trichloro 1, 2, 2,trifluoroethane (freon), a liquid degreasing and cleaning solvent whichhad accumulated in a pit under a conveyor line (Ex. C-6).An investigation of the incident by OSHA resulted in the issuance of acitation alleging a violation of section 5(a)(1). The citation allegedthat employees were exposed to the hazard of asphyxiation when theyentered the pits where vapors and gases had accumulated. In order toabate the hazard, the citation required implementation of a confinedspace entry procedure throughout the plant.In response, General Dynamics’ safety and health director conducted asurvey of the plant and compiled a list of those specific areas heconsidered to be confined spaces after reviewing the Michiganoccupational Safety and Health Act (MIOSRA) (Tr. 2289-2290). A confinedspace entry procedure was implemented for those areas and variousportable ventilation systems and life lines and safety harnesses wereprovided (Ex. C-19, R-2; Tr. 2294-2295). General Dynamics also conductedclasses for employees regarding the hazards associated with confinedspaces and the precautions which must be taken prior to entry (Tr. 2291).In June 1983, the Secretary, General Dynamics and the Union executed asettlement agreement regarding the contested citation arising out of theAugust 1982 incident. General Dynamics withdrew its notice of contest tothe section 5(a)(1) citation and the agreement stated (Secretary ofLabor v. General Dynamics, OSHRC Docket No. 82-1001):…the violative conditions alleged have been abated in accordance withthe abatement procedures set forth in the Citation by the implementationof amended Confined Spare and Lockout Procedures developed with the fullinput and cooperation of authorized employee representatives.In accordance with the agreement, the Union surveyed the plant andsubmitted a list of areas believed to be confined spaces to GeneralDynamics and OSHA. The M1 Abrams battle tank was not included on thelist (Tr. 1341, 1344, 1442).In March 1983, another complaint was made to OSHA concerning the use offreon at DATP. It stated in part \”employees made to wash out tanks with14 gallons of freon\” and employees made to drive under the influence ofthese gases (Ex. C-9). The same compliance officer conducted the secondinvestigation concerning use of the freon. The union representativeexplained to him how the solvent was used including the fact that freonwas used inside the fully assembled tanks (Tr. 1353). The inspectingofficer never advised General Dynamics that he believed the tank was aconfined space or that there was a potential hazard (Tr. 437, 440-443).In April, following the incident and prior to the second investigation,General Dynamics issued a safety bulletin regarding use of freon. Itlimited the use of freon generally with adequate ventilation butspecifically in fully assembled vehicles. In preparing the safetybulletin, the manufacturer’s data sheets were reviewed and thelimitations were based on mathematical calculations. ventilation sourcesincluded blowers constructed inside the tanks, outside fresh air,overhead-mounted fans, free-standing portable fans and portable airblowers’ (Ex. C-20; Tr. 2310-2213).On June 9, 1983, the union filed another complaint regarding the use offreon in the Ml hull assembly department. This complaint was withdrawnAugust 16, 1983 (Ex. C-2). During the same month, safety representativesof the local and international unions conducted a walkaround inspectionof DATP at which time employee use of freon was observed. At a meetingfollowing the inspection to discuss safety and health problems, employeeuse of freon was not raised by the union officials (Tr. 1430, 1431).The record shows that employees have complained of ill effects fromworking with the solvent. The evidence also reveals that GeneralDynamics responded adequately to the complaints and maintained safecontrols and work practices.THE INSTANT CITATION_ALLEGING VIOLATION OF SECTION 5(a)(1)_This case arose as a result of an OSHA inspection complaint of anemployee injury on September 21, 1983. The employee, Charles Paling, wasa member of a two-man team to \”work off\” tank \”deficiencies\” or defectsin the test and adjust department. Paling was working in a fullyassembled tank which he entered through the driver’s compartment toreach a hydraulic line on the turret distribution manifold.In order to accomplish his task, it was necessary to position himselfhead first about five or six inches from the driver’s hatch and 12inches from the floor (Tr. 802, 806). After replacing the hydraulicline, he poured about two three gallons of freon into the tank to cleanup the spilled hydraulic oil. He then ventilated the tank with an airblower 45 minutes to an hour with all drains and hatches open (Tr. 867).The blower was halfway in and halfway outside the tank to bring in freshair [[2]] (Tr. 871). The ventilating procedure was consistent with thehazard abatement procedures set forth in the citation issued September30, 1982.Paling discovered another loak and, approximately ten minutes afterre-entering the tank (with the blowers still operating), he was foundunconscious, overcome by freon (Tr. 813).On September 29, 1983, the compliance officer who conducted the twoprior investigations of employee use of freon commenced his third, Herecommended issuance of a serious citation of 29 C.F.R. {sec} 1910.based on the September 21, 1983, incident (Tr. 358, 383). Before thecitation was issued, however, a second compliance officer was ,Assignedto the investigation who subsequently recommended Issuance of a citationfor willful violation of section 5(a)(1), the general duty clause._THE REMAND ORDER_The court of appeals announced the following principle to be considered,which is controlling in this matter:[If] an employer knows that a specific standard will not protect hisworkers against a particular hazard, his duty under section 5(a)(1) willnot be discharged no matter how faithfully he observes that standard.Scienter is the key.By the same token, absent such knowledge, an employer may rely on hiscompliance with a safety standard to absolve him from liability for anyinjury actually suffered by employees as a consequence of a hazard thestandard was intended to address, and lie will be deemed to have met hisobligation under the general duty clause with respect thereto. In otherwords, compliance with a safety standard will not relieve an employer ofhis duty under section 5(a)(1); rather, it satisfies that duty.The court then stated that:… [A] decision in the case at hand depends on the following factualdeterminations: Is the hazard alleged in the statutory charge accuratelydescribed? If so, is it adequately addressed by the freon standard? Andif it is not, did General Dynamics have knowledge of the fact and takeappropriate measures to mitigate the hazard?The answers to these questions, for the reasons stated below, supportthe conclusion that General Dynamics did not violate the general dutyclause.The citation describes the hazard as follows:. . . employees working in the Heavy Repair, Test and Adjust, Marriageand M1 Hull Line were required to spray or pour varying quantities of 1,1, 2 trichloro 1, 2, 2 trifluoroethane into the turret and driver’scompartments of M1 tanks and immediately enter these compartments toperform. clean-up and other routine tasks thereby exposing themselves tothe hazard of asphyxiation and\/or chemical poisoning. A confined spaceentry procedure, specific for these operations, had not been implementedwhen toxic compounds were introduced into the vehicle.In response to the court’s first inquiry, it must be concluded that thecitation is deficient in two respects.1. The assertion that employees \”were required to ..immediately enter\”compartments of the tank following introduction of the solvent does notaccurately describe the practices instituted by General Dynamics.2. The stated requirement of a \”confined space entry procedure\” is alsoinaccurate, because the areas in question are not confined spaces.The employee involved in the incident of September 21, 1983, ventilatedthe tank for nearly an hour prior to re-entry after use of the solvent.Employees were not required to immediately enter tanks after use of thesolvent, and the procedure of using an air blower while the hatches anddrains were open was in accordance with the hazard abatement proceduresset forth in the citation issued September 10, 1982.The citation incorrectly indicates that the various compartments of thetank are confined spaces. The citation states, \”a confined space entryprocedure, specific for these operations, had not been implemented whentoxic compounds were introduced into the vehicle.\”The record is clear that General Dynamics was not required by anyregulation or standard to provide confined space entry procedures. Infact, designated spaces at the plant approved by the parties for suchprocedures, did not include \”these operations\” (M1 tanks) (Tr. 367)The American National Standards Institute (ANSI) upon which theSecretary relies, provides [section E 2.2(l)] (Ex. C-35a, p. 8):Confined Spaces(1) A tank or other vessel under construction may not meet thedefinition of \”confined space\” until it is completely enclosed.The citation, therefore, incorrectly assumes that the M1 Abrams tankunder construction is a confined space. The National Institute forOccupational Safety and Health (NIOSH), the Michigan Occupational Safetyand Health Administration (MIOSHA), and a proposed OSHA standard,neither of which is binding on General Dynamics, indicate the error inciting for failure to implement a confined space entry procedure.NIOSH defines a confined space as \”a space which by design has limitedopenings for entry and exit; unfavorable natural ventilation which couldcontain or produce dangerous air contaminants, and which is not intendedfor continuous employee occupancy ….\” (Ex. –35b).MIOSHA states that (Ex. C-35d):For this purpose of this guide, the phrase \”confined or process space\”weans any space which has limited openings for employee entry and exit,unfavorable natural ventilation which could contain or produce dangerousconcentration of air contaminants, flammable gases or vapors, or adeficiency of oxygen, and is not intended for continuous employeeoccupancy……And, the record disclosed that the proposed OSHA standard provided that(Ex. C- 35c):\”Confined space\” means a tank, vessel, silo, vault, pit, open toppedspace more than four feet deep, or any other enclosed space that is notdesigned for continuous employee occupancy and has one or more of thefollowing characteristics (p. 3)the covered by this standard are those that are no designed or humans towork in routinely, e.g. for a regular ,shift, but which may have to beentered for specific work related purposes. (p. 16).The compliance officer, whose inspection gave rise to issuance of thecitation, conceded that at various stages the M1 tank is continuallyoccupied by General Dynamics’ employees (Tr. 581, 583). He also agreedthat the M1 tank is intended for continuous human occupancy (Tr. 647).Based upon the foregoing, it must be concluded the alleged hazard is notaccurately described in the citation.The last question the court of appeals and Commission stated should beaddressed is whether General Dynamics \”had knowledge of the hazard\” andtook appropriate measures to mitigate the hazard. The court stated:[I]f an employer knows that a specific standard will not protect hisworkers against a particular hazard, his duty under section 5(a)(1) willnot be discharged no matter how faithfully he observes that standard.Scienter is the key.The evidence demonstrates that General Dynamics was cognizant of thespecific federal regulations governing use of the solvent andimplemented procedures to ensure compliance. It also implemented safetyprecautions to address the complaints of employees suffering from illeffects upon use of the solvent.Following receipt of the citation for violation of section 5(a)(1) in1982, General Dynamics implemented a confined space entry program forthe agreed areas, and a safety bulletin was issued which limited thequantity of solvent to be used inside the tanks. Ventilation wasrequired and source included blowers constructed inside the tanks,overhead-mounted fans, free- standing portable fans and portable airblowers. The directive was based on several mathematical equationsdeveloped by the safety director regarding use of the solvent inevaluating a potential hazard. The inspecting officer agreed that suchcalculations were an appropriate means to evaluate this type ofpotential hazard (Tr. 436, 2313).The employee involved in the incident that gave rise to issuance of thecitation had testified he ventilated the compartment for nearly an hourwith all hatches and drains open. The inspecting officer agreed thatproper use of the portable air blower by the employee was an appropriatemeans of addressing the problem of exposure (Tr. 491).In this regard, the decision, following the initial hearing, containedthe following at page nine:The Secretary strongly contends that the respondent had actual knowledgeof the hazards associated with employee entry into confined spaces andknowingly exposed its employees to such hazards in the M1 tanks. Therecord indicates, however, that the basic criteria for identifying aconfined space requiring safe entry procedures is the extent ofenclosure and inadequacy of natural ventilation to purge the atmosphere.In the instant case, Mr. Paling testified the hatches and drains wereopen when he ventilated the space for up to an hour as part of hisnormal procedure. The conditions under which he worked suggest safeoperating procedures were being employed which included purging of theatmosphere by mechanical ventilation.The record clearly demonstrates that General Dynamics was withoutknowledge that the particular hazard alleged in the citation existed.The inspecting officer admitted that the confined space entry procedureGeneral Dynamics followed at the time of his investigation was adequateexcept for the fact that it did not include the M1 tank (Tr. 504). Thetanks, of course, were not included in the designated spaces which wereapproved by the parties for safe confined space entry procedures. Healso admitted that, after three investigations involving use of freon atthe plant, OSHA never gave any notice there was a problem with its usein the M1 tank as a confined space (Tr. 363).This officer was the first in his agency to contend the M1 tank was aconfined space (Tr. 362). He acknowledged this his investigation beganalmost two months after the initial investigation by the officer whorecommended a serious violation under section 5(a)(2) for overexposure(Tr. 358). It is noted that the initial investigation was conducted bythe same officer who had investigated use of freon at the plant on threeformer occasions. His area director also recommended the citation foroverexposure prior to the investigation leading to the 5(a)(1) citation(Tr. 383).In this regard, General Dynamics argues that the citation should bevacated, citing L. R. Willson & Sons, 685 F.2d 664, at 675-676 (D.C.Cir. 1982). The United States Court of Appeals for the District ofColumbia Circuit stated that:In addition, we note that the record shows some disagreement on thisbetween the compliance officers who conducted the inspection ofWillson’s worksite. It is uncontested that during the initial visit inFebruary the OSHA officers informed James Willson that if either safetybelts or safety nets were utilized he would be in compliance with theAct. At the hearing, however, one of the officers testified that bothnets and safety belts were required. This apparent conflict ispresumably premised on the compliance officer’s belief that it is notpossible for structural steel employees to tie off at all times. Willson\”should not be penalized for deviation from a standard theinterpretation of which, in relationship with kindred standards, cannotbe agreed upon by those who are responsible for compelling compliancewith it and with oversight of the procedures for its enforcement.\” KentNowlin Construction Co. v. OSHRC, 593 F.2d 368, 371 (10th Cir. 1979).Of course the Commission is not bound by the representations orinterpretations of OSHA compliance officers. Western Steel ManufacturingCo., OSHRC No. 3528, 4 OSHC (BNA) 1640 (1976). Such representations,however, are relevant in a particular case to whether an employer hasadequate notice of what is required under the Act.The Commission has stated \”[t]he intent of section 5(a)(1) is . . . toreduce preventable hazards. . . . To further that intent hazards shouldbe defined in a way that apprises the employer of its obligations andidentifies conditions or practices over which the employer canreasonably be expected to exercise control.\” FMC Corp., _____ OSAHRC_____, BNA OSHD _______ 1986-1987 CCH OSHD (P) 27,686, at 36,116 (No.85-1253, 1986), citing Pelron Corp, ___ OSAHRC ______, ________ CCH OSHD_________, 1986-1986 CCH OSHD (P) 27,605. (No. 82-388, 1986).A review of the evidence presented at trial shows that the Secretary hasfailed to establish a violation of the general duty clause as alleged.The necessary burden of proof has riot been met to establish that (1)this employer failed to render a workplace free from a hazard; (2) whichwas recognized; and (3) caused or was likely to cause a death or seriousphysical harm. Continental Oil Co. v. Occupational Safety & HealthReview Commission, 630 f.2d 446 (6th Cir.1980), cert. denied, 450 U.S.965 (1981). In addition, the Secretary has not demonstrated that theduty imposed upon the employer or the means of abatement is feasible andcapable of achievement by the employer. Empire-Detroit Steel v.Occupational Safety & Health Review Commission, 579 F.2d 378 (6th Cir.1978).In its brief, General Dynamics accurately points out that:Under the Secretary’s proposed method of abatement, all tank productionworkers would be required to \”test the atmosphere,\” use \”mechanicalventilation,\” and have emergency rescue crews standing by with \”safetyharnesses\” to hoist the \”employee from the confined space.\” The factsdeveloped at the hearing revealed, however, that the Secretary’sproposed method of abatement–that is, a confined entry procedure– isnot appropriate where employees are performing numerous different worktasks on or in an M-1 tank. . . . Thus, In the absence of proof by theSecretary that its proposed method of abatement is feasible or thatGeneral Dynamic’s method of abatement (administrative controls) wasineffective, a citation based upon a violation of the general dutyclause may not be affirmed.The record in this case does not contain preponderating evidence tosupport the allegations of a section 5(a)(1) violation. The citation is,therefore, vacated._FINDINGS OF FACT_1. General Dynamics Land Systems Division, Inc, at all times hereinaftermentioned, maintained a place of business at 28251 Van Dyke Road,Warren, Michigan, where it was engaged the business of manufacturing M1Abrams battle tanks.2. On September 10, 1982, respondent was issued a citation for violationof section 5(a)(1) of Act. The citation, which was affirmed, allegedthat employees were exposed to the hazard of asphyxiation when theyentered pits where vapors and gases had accumulated. The violation wasabated in accordance with a settlement agreement which provided forimplementation of a confined space entry procedure throughout the plant.3. The designated spaces at the plant which were approved by the partiesfor safe confined entry procedures did not include the M1 tanks.4. Trichloro trifluoroethane was use by employees in varying amounts asa cleaning solvent inside the compartments of both fully assembled andpartially assembled tanks.5. In April 1983, General Dynamics issued a safety bulletin limiting theuse of freon by employees working in tanks. The limitations were basedon the manufacturer’s data sheets and mathematical calculations.Ventilation was also required.6. In June 1983, a formal complaint was made by the authorized employeerepresentative regarding excessive use of the solvent by employees. Thiscomplaint was withdrawn August 16, 1983.7. Safety representatives of the international and local unionsconducted a walkaround inspection also during August 1983. At a meetingwith company officials following the inspection, employee use of thesolvent was not a matter raised discussion.8. On September 21, 1983, a repairman in the test and adjust departmentwas overcome by freon after re-entering a tank following use of thesolvent. As a result, General Dynamics was issued the citation alleginga willful violation of section 5(a)(1) of the Act.9. After the repairman poured solvent into the tank, it was ventilatedfor 45 minutes to an hour with the three compartment hatches and thedrain system open before he re-entered it. The ventilating device heused could move between 500 and 1,000 cubic feet of air per minute. Theatmospheric volume of the fully assembled tank is 268.5 cubic feet.10. The ventilating procedures employed by the repairman were inaccordance with the hazard abatement procedures outlined in the citationissued September 10, 1982.11. The compliance officer, who had conducted three inspections of theworkplace prior to issuance of the instant citation, was aware of howemployees used the solvent and the procedures respondent had developedfor its use in the tanks. He, at no time, advised respondent thatemployee use of the solvent in the tanks presented a potential hazard.12. The hazard alleged in the citation is not accurately describedbecause employees were not required to immediately enter compartments ofa tank after using the solvent. In addition, the compartments are notconfined spaces requiring specific entry procedures.13. General Dynamics had knowledge of the hazards related to use offreon in construction of the M1 tanks. Appropriate measures were takento mitigate all such hazards.On the basis of the record and foregoing findings of fact, the citationalleging violation of section 5(a)(1) of the Act is hereby vacated.Dated this 7th day of September, 1989.PAUL L LRADYJudge FOOTNOTES:[[1\/]]The turret is the upper structure of the tank on which the gun ismounted. It can be rotated to allow movement of the gun.[[2\/]] A complaint was filed with OSHA as a result of the incident. OSHAinvestigated the complaint, but no citation was issued by the Secretary.[[3\/]] On June 5, 1989, the Secretary formally proposed a new standardfor confined spaces. 54 Fed. Reg. 24,080 (1989). Under this proposal,confined spaces are divided into two types. \”High hazard permit requiredconfined spaces\” would require, among other things, both a permit andsafety attendant stationed outside of the space. \”Low hazard permitrequired confined spaces,\” on the other hand, would require a permit butnot an attendant.Under paragraph (b)(23) of the proposed standard, a \”permit requiredconfined space\” means an enclosed space which:(i) Is large enough and configured that an employee can bodily enter andperform assigned work;(ii) Has limited or restricted means for entry or exit (some examplesare tanks, vessels, silos, storage bins, hoppers, vaults, pits and dikedareas);(iii) Is not designed for continuous employee occupancy; and(iv) Has one or more of the following characteristics:(A) contains or has a known potential to contain a hazardous atmosphere;(B)contains a material with the potential for engulfment of entrant,(C) Has an internal configuration such that an entrant could be trappedor asphyxiated by inwardly converging walls, or a floor which slopesdownward and tapers to a smaller cross section; or,(D) Contains any other recognized serious safety or health hazard.54 Fed Reg. at 24, 103[[4\/]] According to the expert testimony, while the structure of aconfined space entry procedure could vary depending upon the hazardsinvolved and the nature of the space being entered, it generallyincludes the following components:1. Determining the atmospheric situation in the space;2. Determining if the situation presents a hazard to employees;3. If there is a potential hazard, determining the steps needed topermit employees to work safely in the space. Such steps would generallyinclude:a. ventilation;b. buddysystem (one employee remains outside space to effect rescue ifnecessary); andc. training;4. Testing the atmosphere to determine if it is safe for entry;5. Issuance of entry permits;6. After employee entry, the use of ventilation or other engineeringtechniques to maintain safety;7. If it is not feasible to provide respirable atmosphere, the use ofrespiratory equipment[[5\/]] Accordingly, we need not determine whether the Secretary and theUAW are correct in arguing that the citation does not requirecategorizing the tank compartments as confined spaces[[6\/]] The current OSHA proposed standard provides some support for theinterpretation put forth by General Dynamics. In the preamble, theSecretary states thatOSHA proposes paragraph [(b)(23)(iii)] to make it clear that the workareas covered by this standard are unsuitable, by nature for continuousemployee occupancy, because those spaces were created to contain suchthings as degreasers, sawdust, and sewage, not to accommodate people.54 Fed. Reg. at 24,089.however,this language does not so much exclude the tanks from theconfined space category as it fails to take them into account. Furtherdiscussion in the preamble suggests that the Secretary is not yetcertain about the validity of her criteria.OSHA has proposed a definition for \”permit required confined space\”(permit space) [1910.146(b)(23)] in order to state clearly the criteriaby which employers must evaluate their workplaces to determine if theycontain permit spaces. Is the definition clear? Are there circumstanceswhere the application of the proposed definition would either includework areas that should be excluded, or exclude work areas that should beincluded within the scope of this proposal? OSHA requests input on theadequacy of the proposed definition….54 Fed Reg. at 24,086.[[7]] we especially note the unrefuted testimony establishing that bothcars and space capsules are regarded as confined spaces during themanufacturing process, although both are ultimately intended for\”continuous employee occupancy.\”[[8\/]] According to the citation, the \”confined space entry procedure\”would include the following measures:(1) Written procedures covering a permit system, ventilation,atmospheric testing, rescue procedures, and employee training .(2) The completion and posting of a confined space entry permit whichrequires authorization and approval in writing that specifies thelocation and type of work to be done and certifies that all existinghazards have been evaluated by a qualified person and necessaryprotective measures have been taken to insure the safety of each worker.(3) Mechanical ventilation of the confined space prior to entry andcontinued ventilation t provide a safe atmosphere.(4) testing the atmosphere of the confined space prior to entry and on aregular basis for presence of sufficient oxygen (19.5 percent) andabsence of hazardous levels of toxic or combustible gases or vapors.(5) Emergency rescue procedures with a requirement that trainedpersonnel are available and are stationed outside the confined spacewith proper equipment to provide for the rescue of persons entering thespace. Such equipment must include safety harness and life lines withprovisions for hoisting employee from to confined space. If entry isrequired for rescue, the rescuing employee must be equipped withapproved air supplied respiratory equipment and other appropriatepersonal protective equipment.(6) training of any and all employees required to enter the confinedspaces after toxic compounds have been introduced into vehicle. Thistraining shall include procedures required prior to entry and thehazards associated with work in confined spaces.[[9\/]] In concluding that General Dynamics was using proper workpractices, the judge relied heavily upon its use of ventilation,particularly paling’s use of ventilation for nearly an hour before[[10\/]] In this regard, we would note that General Dynamics instituted\”confined space entry procedures\” for those areas that were identifiedas \”confined\” on the list compiled in conjunction with the UAW.[[1]] The safety director’s evaluation and calculations were similar tothose used to support the instant citation and approved by theinspecting officer as an appropriate means of evaluating this type ofpotential hazard (Tr. 436, 549, 2313). The three foremen who testifiedat the hearing in this matter indicated they distributed the safetybulletin to their employees. Supervisor Kurth specifically recalledgiving the bulletin to all employees in the test and adjust departmentincluding employee Charles Paling (Tr. 3147-3148).[[2]] The atmospheric volume of a full assembled M1 tank is 268.5 cubicfeet (Ex. C-.29; Tr. 131), and the ventilating device could move between500 and 1,000 cubic feet of air per minute (Tr. 1622, 1623).”