SECRETARY OF LABOR
Complainant
v.
GENERAL DYNAMICS LAND SYSTEM DIVISION, INC.,
Respondent.

INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS
OF 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 COMMISSION

At issue in this case is whether Administrative Law Judge
Paul 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 facility in Detroit, Michigan. During assembly, oil from hydraulic lines frequently Ieaks into the tank's interior shell. As part of  the final stage of assembly, employees were required to clean up the leaked oil. In order to clean up the oil and other greases, employees used the solvent 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 which involved employee exposure to freon while working inside M-1 Abrams tanks under construction. One citation, alleging that General Dynamics violated 29 C.F.R. 1910.1000(a) by exposing employees to freon fumes above permissible levels, was vacated by the judge on evidentiary grounds and is no longer at issue. The other citation alleged a violation of section 5(a)(1), the general duty clause of the Act, on the grounds that employees were required to enter the tanks immediately after pouring in freon, thereby exposing themselves to the hazards of asphyxiation and or chemical poisoning. This citation was vacated by the judge on the ground that the general duty clause was preempted by an applicable standard, 1910.1000(a). The judge's decision was not directed for review by the Commission.

Both the Secretary and the authorized employee representative, the United Auto Workers ("UAW"), appealed the judge's decision on the preemption issue to the United States Court of Appeals for the District of Columbia Circuit. In its decision, the court noted that 1910.1000(a) addressed the hazard of long-term exposure to freon, and concluded that the standard did not necessarily preempt the general duty clause because the standard did not protect employees from the danger of asphyxiation due to concentrations of freon fumes in a confined apace. The court therefore remanded the case to the Commission to determine whether the section 5(a)(1) citation accurately described the hazard, whether that hazard was adequately addressed by the standard and, if not, 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 to determine, in accord with the remand order of the D.C. Circuit, whether the 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 the citation failed to adequately describe the practices at the worksite and that the tanks were not confined spaces. He concluded that it was not necessary for General Dynamics to institute a "confined space entry procedure."

Both the Secretary and the UAW filed petitions for review of the judge's decision, and review was directed on the issues raised by these parties.
Upon review of the record as a whole, we reverse the judge and affirm the citation.

II. Background

A.

Freon is widely used in industry as a solvent for use on electrical components. Although it is of relatively low toxicity when compared to other available solvents, exposure to freon vapors in sufficient quantities can pose a substantial health hazard. At 1000 parts per million (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 level exposed individuals will become noticeably dizzy, may lose hand-eye coordination and the ability to concentrate, and may develop nasal and throat irritation. Exposures to 50,000-100,000 ppm may cause an erratic heart beat, resulting in cardiac arrhythmia and possibly ventricular fibrillation. Finally, evidence presented at the hearing indicates that exposure to levels in excess of 100,000 ppm can result in death. All these effects will be heightened and may occur at lower levels of exposure in the case of employees taking drugs containing amphetamines, such as diet pills. Exacerbating the hazard are the low odor properties of freon, which make it difficult to detect by smell, unless it is present in very high concentrations.

Additionally, freon is 6 1/2 times heavier than oxygen and evaporates rapidly. It can, therefore, displace oxygen in a work area lacking adequate ventilation. Employees working in such an environment are exposed to the risk of asphyxiation.


B.

General Dynamics' employees were instructed to try to restrict freon usage 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 other times, however, they would pour 4-15 gallons of freon into a tank. When cleaning the completed tank with the turret attached, [[1/]] employees would pour large quantities of freon into the tank, rotate the turret to get the freon all over the compartment, then drain it from openings at the bottom of the tank. Employees would then wait outside the tank for as long as 45 minutes before climbing in to wipe up the remaining grease and freon.

To help provide ventilation while inside the tank, employees were provided portable air movers or could use the turret blowers on the tanks. However, the use of these devices did not eliminate ventilation problems. The turret blowers were not fully effective in removing freon fumes. Furthermore, the employees were not required to use the portable air movers and the record indicates that they were never given instruction on their proper use or placement.

In August 1982, an employee on the M-1 hull assembly line was rendered unconscious by freon vapors in a confined space conveyor pit. The incident led to an OSHA inspection and the issuance of a citation alleging that General Dynamics violated the general duty clause, section 5(a)(1) of the Act, by exposing employees to the recognized hazard of asphyxiation associated with entering confined spaces. In a settlement agreement resolving this earlier citation, which preceded by approximately fourteen months the citation that is now before us, General Dynamics represented that it had developed and implemented continued space entry procedures and that it would conduct a survey to identify all confined spaces at the worksite. However, the tanks were not identified as a confined space in the survey.

In March 1983, Robert Kinzer, an assembly fitter in the marriage department, where the turret is attached, or "married," to the tank body, noticed that the smell of freon kept getting stronger while he was driving a "married" tank. He got dizzy and crawled out of the driver's compartment. He reported the incident to his supervisor and to his safety representative, who filed a grievance. The grievance complained of employees being forced to use "excessive amounts" of freon as a cleaning agent. The grievance also alleged that, at temperatures above 250[DEG]F., freon breaks down into such chemicals as phosgene and halogen, and demanded that all freon chemicals be removed immediately from the plant.[[2/]]

In reply to the grievance, General Dynamics stated that moderate use of freon was not hazardous and referred to its new safety bulletin of April 1983, which gave instructions in the proper use of freon. This bulletin listed the characteristics and hazards of freon and stated that ventilation must be utilized when freon is used in "enclosed spaces such as the inside of tracked vehicles." The bulletin also stated that, where ventilation was not being used, freon use "must be limited to one pint quantities," and emphasized that the solvent should not be used where it was not required. Despite the bulletin's limitation on the use of freon, employees continued to use the solvent in quantities of a gallon or more without using ventilators.

On June 10, 1983, the UAW filed a second grievance, alleging that employees had to go on sick leave due to freon exposure. The UAW requested that the use of freon be stopped immediately and that an alternative be substituted. General Dynamics' reply to the second grievance was that freon was the safest solvent available because all alternate solvents were even more toxic. Accordingly, it responded that the 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 still obtaining freon in five gallon buckets, rather than using one pint dispensers. The union demanded that only one pint dispensers be used and that management follow their own safety rules. At the same time, UAW safety representative Farrugia had discussions with General Dynamics' safety administrator Mathews about employee complaints of dizziness associated with the use of freon. Farrugia requested that General Dynamics develop and implement confined space entry procedures, because employees affected by freon fumes could have difficulty getting out of a tank, especially when the turret was turned to a position that blocked the hatches. However, the union's safety representative and General Dynamics' safety administrator were unable to develop a confined space entry procedure, because they could not agree as to which parts of the tank constituted a confined space.

On July 9,1983, a driver-mechanic, Frederick Spearing, who was normally employed at General Dynamics' nearby Centerline facility, was assigned to the Detroit Arsenal plant to conduct the short duration road testing and cleaning of a fully assembled M-1 tank. After Spearing positioned the tank for cleaning, two other driver-mechanics poured five gallons of freon into the turret. They rotated the turret in order to get the solvent to pass through the turret floor access door onto the hull floor below.

About 10-15 seconds after the freon was poured, Spearing, who was still in the driver's compartment, became dizzy. He tried to exit the tank, but was trapped by the rapidly rotating turret. Spearing called for help, but soon lost consciousness. Eventually, Spearing was rescued from the tank and taken to the workplace medical office for examination. In the accident report, the company noted that Spearing was overcome by freon fumes. The report included a recommendation intended to prevent similar accidents: "Do not use large amounts of Gensolv D in a confined area."

Also during July of 1983, Safety Administrator Mathews ran a 15-20 minute air sampling test in one of the tanks. Sampling was interrupted because, according to Mathews, the pump malfunctioned. Farrugia urged Mathews to have testing done by outside firms, but no additional testing was done. The sample that was taken was not sent out for analysis until December. Because of the age of the sample, the lab indicated that the results were unreliable.

On September 21, 1983, Charles Paling and his partner, assembly fitter Steven Valentine, were assigned to make repairs on a "married" M-1 tank. During the course of making repairs in the driver's compartment, oil from a hydraulic line spilled onto the turret distribution manifold and the turret floor. Following their usual procedure, Paling began the tank cleaning process by pouring freon into the tank from a five gallon bucket which was one-half to three-quarters full. He set up a small air mover to remove freon fumes from the tank and then spent approximately 45 minutes outside the tank doing work, while the freon drained out and the tank ventilated. Eventually, Paling reentered the driver's compartment to check his work. He then noticed another leak, and was preparing to repair it, when he suddenly lost consciousness. Valentine, who had been working in another area, returned to find his partner unconscious, shaking and foaming at the mouth. Paling was taken to the plant medical office where his pulse and heart beat were found to be erratic. He was hospitalized for six days. Paling was diagnosed as suffering 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 into the tank to complete Paling's work, with instructions to get out and get air should he become dizzy. No tests were performed to determine air quality before Valentine was ordered back into the tank. Valentine testified that the tank "was still full of freon" and that, although he became dizzy as soon as he entered the tank, he was able to get out of the tank to get air.

In response to the accident, the union filed a grievance asking that both supervisors and employees be educated about the dangers of freon, and that the use of freon be prohibited in confined spaces. General Dynamics replied by reminding the union that the issue of freon use was addressed in its April bulletin. General Dynamics further stated that, as of September 22, instructions were being given to personnel on a one-to-one basis to reach all concerned. Furthermore, the company stated that classroom instruction and demonstrations were being planned for late November or early December. The individual instruction referred to in the reply was a safety bulletin restricting the use of freon to one pint inside a fully assembled and occupied tank and requiring the use of ventilation. In addition, the bulletin applied the one pint limit to the crew and turret compartments of a "married" tank, but allowed the use of larger amounts in the engine compartment of "marred" tank. The bulletin permitted 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 cause dizziness. Additionally, the bullet in set forth warnings about the hazards of freon at various concentrations.

Following an OSHA investigation of the incident involving Paling, the Secretary issued to General Dynamics a citation alleging a violation of section  5(a)(1) of the Act, the general duty clause.  The citation described the hazard in pertinent part as follows:

.... employees working in the Heavy Repair, Test and Adjust, Marriage and Ml Hull Lines were required to spray or pour varying quantities of [freon] into the turret and driver's compartment of Ml tanks and immediately enter these compartments to perform clean-up and other routine asphyxiation and/or chemical poisoning.  A confined space entry procedure, specific for these operations, had not been implented when toxic compounds were introduced into the vehicle.

III. Accuracy of Description of the Hazard

In remanding the case to the Commission, after reviewing the first decision of Judge Brady, the United States Court of Appeals for the District of Columbia Circuit directed the Commission to determine whether 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 "immediately enter" the tanks, as alleged in the citation, but rather were encouraged to wait a period of the time to allow the fumes to dissipate before entering.   On that basis, the judge found that the citation failed to accurately describe the hazard.

For the following reasons, we find that, contrary to the judge's determination, the citation described the hazard to which General Dynamics' employees were exposed with sufficient accuracy to give notice of the violation that was being alleged. 

It is well settled that administrative pleadings are to be liberally construed 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 766 F.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 true for citations issued under the Act, which are drafted by non-legal personnel who are required to act with dispatch. To inflexibly hold the Secretary to a narrow construction of the language of a citation would unduly 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 the charge against the employer. Dow Chemical, id.; Donovan v. Royal Logging Co., 645 F.2d 822, 828 (9th Cir. 1981). Administrative pleadings must afford the employer a fair opportunity to prepare and present a defense. A citation must be drafted with sufficient particularity to inform the employer of what it allegedly did wrong and that it must either contest the 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 clause citation must also apprise the employer of its obligations and identify conditions or practices over which the employer can reasonably be expected 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 Wilcox was issued a citation alleging that it violated section 5(a)(1) because its employees, working near a melt furnace, were exposed to the hazard of possible explosions and burn injuries when Large quantities of water and hydraulic fuel were puddled in the area beneath the furnace tap and on the apron of the furnace base during a pour of molten steel. At the hearing, the parties focused on how quickly the water should have been removed and whether it was a recognized hazard to operate a furnace with standing water in the vicinity. However, Babcock and Wilcox argued that the 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 the furnace despite the presence of water in the vicinity. The Third Circuit agreed that the citation was inartfully drawn and failed to accurately describe 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 of the Secretary's complaint. Citations must give fair notice to the employer so that it understands the charge being made and has an adequate opportunity to prepare and present a defense. Citations, however, are prepared by inspectors who are not legally trained and who should act with dispatch. For these reasons, citations should not be as tightly 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, the citation clearly informed General Dynamics that its procedures for the use of freon in tanks and for restricting employee entry into the tanks after the introduction of freon were deemed hazardous by the secretary. General Dynamics was fully prepared to, and did, defend against this charge. Indeed, during the hearing, the parties fully litigated issues involving the hazards caused by the use of freon in the tanks. Moreover, the evidence established that, although not "required" to do so, some employees would enter the tanks immediately after pouring freon into the tanks. We therefore find that the citation described the alleged hazard with an accuracy sufficient to enable General Dynamics to fully litigate the relevant issues.

IV. Are the Tank Compartments "Confined Spaces"

To establish a violation of section 5(a)(1), the Secretary must prove that: (1) a condition or activity in the employer's workplace presented a hazard to employees, (2) the cited employer or the employer's industry recognized the hazard, (3) the hazard was causing or likely to cause death or serious physical harm, and (4) feasible means existed to eliminate or materially reduce the hazard. Kastalon Inc., 12 BNA OSHC 1928, 1931, 1986-87 CCH OSHD (P) 27,643 at p. 35,973 (Nos. 79-3561 and 79-5543, 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 is a recognized hazard and that appropriate measures must be taken to protect 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 welded to the bottom half or hull. In this configuration, the tank consists of three definable sections: the crew/hull compartment, the driver's compartment and the turret compartment.

The crew compartment of a "married" tank has an air volume of 69.7 cubic feet and poor ventilation. It has a diameter of approximately 90 inches and is approximately 5'6" deep. The area is enclosed, the only openings being a hole in the side leading to the driver's compartment and two hatch openings. One of the hatches is 17 inches and the other is 22 inches in width. Egress from the compartment is accomplished by grabbing the top of the tank and pulling oneself out of the tank, by use of a portable ladder, or by climbing through the opening to the driver's compartment.

The driver's compartment of a "married" tank is a totally enclosed area with an air volume of 17.6 cubic feet, and no natural ventilation. The depth of the compartment ranges from 26-36 inches. With only one manhole-type hatch available, egress is restricted. Depending on how the turret is oriented, the gun can
render the hatch unusable, and the employee would have to exit by crawling into the crew compartment and escaping through one of its two hatches.

The "turret" compartment is created by the marriage of the hull and the turret. It is a separately assembled enclosure inserted into the hull to complete the tank. This compartment has an air volume of 181.2 cubic feet. It has two hatch openings in the turret through which an employee would be able to leave the compartment. The "tank commander's hatch" is about 17 inches in diameter, and the "loader's hatch" is about 22 inches wide. Neither hatch has a ladder or other device to assist an employee attempting to exit the compartment.

Although the citation did not differentiate between "married" and "unmarried" tanks, the Secretary and the union, at the hearing, also sought to establish that the use of freon in the "unmarried tanks" constituted a recognized hazard. When "unmarried," the tank consists of only two sections, the crew and driver's compartment. In this "unmarried" configuration, the crew compartment is 36-41 inches deep and only comes up to the average person's waist. The diameter of the crew compartment of an "unmarried" vehicle is approximately 90 inches. The driver's compartment of an "unmarried" tank is open and is 26-36 inches deep.

B.

There is no single definition of a "confined space." Safety and health organizations, 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 health professionals, have varying definitions, all of which are open to subjective interpretation.

ANSI standard Z. 117.1-1977 ("American National Standard Safety Requirements for Working in Tanks and Other Confined Spaces") at 2.2 sets forth its definition for confined spaces:

2.2 Confined Spaces. Confined spaces are normally considered enclosures having limited means of access and egress such as, but not limited to:

(1) Storage tanks, tank cars, process vessels, bins, silos, boilers, and other 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, and similar structures.
Explanatory Note E2.2 accompanying the section, which is not officially part of the ANSI code, states in relevant part:

(1) A tank or other vessel under construction may not meet the definition of "confined space" until it is completely enclosed.
NIOSH issued recommended standards in its document, "Working in Confined Spaces." According to that document, a confined space:
[r]efers to a space which by design has limited openings for entry and exit; unfavorable natural ventilation which could contain or produce dangerous air contaminants, and which is not intended for continuous employee occupancy. Confined spaces include but are not limited to storage tanks, compartments of ships, process vessels, pits, silos, vats, degreasers, reaction vessels, boilers, ventilation and exhaust ducts, sewers, tunnels, underground utility vaults, and pipelines.

The Michigan Occupational Safety and Health Administration ("MIOSHA") administers standards and sets forth guidelines on occupational safety and health. These guidelines and standards contain a number of definitions of a "confined space" that were relied upon by General Dynamics in its determination of whether the tanks constituted "confined spaces."

The definition set forth in the MIOSHA guidelines states that:

[t]he phrase "confined or process space" means any space which has limited openings for employee entry and exit, unfavorable natural ventilation which could contain or produce dangerous concentrations of air contaminants, flammable gases or vapors, or a deficiency of oxygen, and is not intended for continuous employee occupancy. Confined or process spaces 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 four feet in depth such as pits, tubs, vaults, and vessels.

"Confined Or Process Space Entry," Occupational Health Guide C, Michigan Department of Public Health.

A confined space is further defined by MIOSHA rule 3303(2)(a) as "a relatively small or restricted space such as a tank, boiler, pressure vessel, or small compartment of a ship."

On January 27, 1984, a few months after the citation in this case was issued, OSHA circulated to its field staff a draft standard on confined spaces.[[3/]] While General Dynamics cannot be charged with knowledge of this proposal, we consider it instructive in determining the general consensus of what constitutes a confined space. The draft standard was designated as {sec} 1910.146. According to paragraph (b)(3) of the proposal:

[A] "Confined space" means a tank, vessel, silo, vault, pit, open topped space more than four feet (1.2m) deep, or any other enclosed space that is not designed for continuos employee occupancy and has one or more of the following characteristics:

(1) contains an actual or potential hazardous atmosphere or other safety or health hazard;

(2) makes ready escape difficult (i.e., prevents egress in a normal walking position); or

(3) restricts entry for rescue operation

According to the Appendix to the draft standard:

2. Application. The spaces covered by this standard are those that are not 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 confined space is dangerous to the safety and health of employees unless the employer has determined by a thorough evaluation of the space that this is 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, and silos. Floating roof tanks, vats, tubs, and other spaces where the depth is more than four feet (1.3m) are other examples of confined spaces.

In addition the parties also adduced substantial testimony on what constitutes a "confined space."
The compliance officer, Morgan, testified that, in his opinion, exceptions contained in the various standards for spaces "intended for continuous occupancy" and for areas "under construction" do not exempt the tanks in this action from the "confined space" designation. He drew a parallel between the M-1 tanks and space capsules being built for NASA. He testified that, to his knowledge, even though the space capsules were under construction and intended for continuous occupancy, they were considered "confined" spaces. Morgan identified lack of ventilation and limited ingress/egress as key factors in determining whether a space is "confined." He noted that although the tank in question had a ventilation system, it was not used. He testified that the use of the ventilation system would not necessarily stop the M-1 tank from being a dangerous "confined" space because the company had not evaluated the tank while the system was on.

Dr. Sheldon Rabinovitz, a senior scientist at NIOSH with wide experience in industrial hygiene, was qualified as an expert in the identification and handling of confined spaces. Dr. Rabinovitz testified that, from the standpoint of industrial hygiene, a "confined" space is an enclosure that has limited entry and egress and limited ventalation. Other, though less important characteristics or limited visibility. Dr. Rabinovitz testified that, in his opinion, all of the compartments of the "married" M-1 tanks he examined at the Detroit Arsenal Plant were confined spaces because each was enclosed and had limited visibility and limited potential for communication.

Dr. Rabinovitz testified that the ANSI exception for spaces "under construction" do not apply to the M-1 tanks. In his view, the exception ceases to apply when construction is at the stage where ingress/ingress becomes limited. The M-1 tanks had passed that stage. Furthermore, he testified that the language in the NIOSH, MIOSHA and OSHA standards exempting vehicles "intended for continuous employee occupancy" did not apply to the tanks. He believed that the important consideration was that the tanks were not intended for continuous occupancy during assembly when toxic materials may be used that would not be introduced when assembly is completed. Finally, Dr. Rabinovitz noted that at the Ford Motor Company, automobiles were sometimes considered confined spaces during assembly.
At the request of the UAW, Dr. Rafael Moure conducted an investigation of the Paling incident at the Detroit Arsenal plant. Dr. Moure as a Ph.D. in environmental health and industrial hygiene and at the time of the hearing, was an industrial hygienist for the UAW in Detroit. Prior to holding that position with the UAW, he was employed by the Oil, Chemical and Atomic Workers Union (OCAW) and in that capacity, had investigated incidents involving confined spaces. In addition, he was a consultant for NIOSH in the preparation of its criteria document on confined spaces.

Dr Moure defined a confined space as an area not intended for permanent work, with limited egress/ingress and unfavorable natural ventilation, and which may contain dangerous air contaminants and/or low oxygen levels. He believed that the primary characteristic of a confined space is the potential for a dangerous level of contaminants Dr. Moure testified that not all of the characteristics need to be present at the same time for a space to be confined. He concluded that, with the introduction of freon, the driver and crew compartments of the "married" M-1 tanks met the definition of a confined space and, therfore, confined space procedures should have been instituted.

Dr. Moure further testified that the M-1 tanks were not intended for continuous occupancy. He observed that where operations on a vehicle are being conducted that required employee exposure to a dangerous atmosphere, the vehicle, at that stage, is not intended for continuous occupancy. He noted that, because of limited openings and unfavorable natural ventilation, crew compartments in ships under construction are considered confined spaces when dangerous chemicals are introduced, even though they are ultimately intended for permanent employee occupancy. 

General Dynamics argues in support of the judge's conclusion that the hazard 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-1 tank compartments are confined spaces. The Secretary's experts, it points out, could not agree on the elements characteristic of a confined space and, therefore, could not agree on the hazard it was expected to recognize. Moreover, it argues that if the tanks were confined spaces, they should have been, but were not, so designated during previous inspections conducted by safety officials of the UAW and OSHA. In addition, General Dynamics contends that the criteria set forth in the various non-OSHA standards defining confined spaces were not met by the M-1 battle tanks.

Both the Secretary and the UAW contend that, even if the tank compartments are not confirmed spaces, the alleged violations should nevertheless be upheld because the evidence established that the use of freon in the tanks constituted a recognized hazard likely to cause death or serious physical harm to employees.  They claim that the citation's reference to a "confined space entry procedure" [[6/]]does not describe the hazard that is at issue in this case, but rather relates only to a possible means of abating the hazard.

The judge rejected the argument that a recognized hazard was established even if the M-1 tank compartments were not recognized as confined spaces. Noting that the citation required that General Dynamics implement a "confined space entry procedure," he concluded that unless the tank compartments were confined spaces, the citation failed to adequately describe the hazard and must be vacated. Examining the issue, the judge concluded that the M-1 tanks failed to satisfy the criteria for "confined spaces" set forth in the various industry and proposed OSHA standards. Specifically, the judge found that, contrary to the requirements of the NIOSH standard, MIOSHA guidelines, and proposed OSHA standards, 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 used for cleaning purposes, all of the compartment of the "married" M-l tank have the characteristics of a confined space, as described by the witnesses and referred to in the standards.  They each have limited ventilation and restricted ingress/ egress, and could contain dangerous quantities of freon or a deficiency of oxygen.  The language relied on by General Dynamics in some of the standards does not require a different result.

Under the ANSI standard, MIOSHA guidelines, and 1984 draft OSHA standards, open-topped spaces are considered to be "confirmed" when they are four feet or more in depth.  Strictly construing  these provisions, only the crew compartment of a "married" tank, which is over five feet deep, would be considered  a "confined space."  However, there is nothing in the record to indicate anything "magical" about a 48-inch depth.  We therefore find that the 48-inch criterion may play a part in determining whether certain spaces are confined, but the limited nature of the violation, and the difficulty of ingress/ egress, both of which are certainly present here, appear to be be the more pivota; factors.   In fact the shallowness of the "married" tank compartments, when combined with the difficulty of ingress/ egress, may make them even more confined and, therefore, more hazardous than compartments four feet or more in depth.

We also find that the language in the NIOSH standard, MIOSHA guidelines and the draft OSHA standards expempting confined spaces intended for "continuous employee occupancy" from the coverage of those standards does not apply to the tank compartments. The testimony at the hearing established that the continuous occupancy exclusion is operative only when the area is being used for its intended purpose. Although General Dynamics employees regularly entered the M-1 tanks at this stage of their manufacture, they generally did so only to repair hydraulic lines or to clean up oil and residual freon. The appendix to the proposed OSHA confined 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 a regular shift, but which may have to be entered for specific work related purposes. "The tanks were not intended to constitute a regular workstation for General Dynamics employees, but rather, were entered for the specific purpose of cleaning the tank.[[6/]] Itis, therefore, apparent that the exclusion for areas "intended for continuous employee occupancy" does not apply to the M-1 tanks [[7]]

In summary, we find that the various standards and the expert testimony establish a consensus that a "confined space" is an 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. Whether the area has limited employee occupancy, is "under construction," or is 48 inches deep are factors that may contribute to creating a confined space, but individually they are not determinative in deciding whether a space i confined.

We therefore find that the various standards and the expert testimony establish that the different compartments of a "married" M-1 Abrams Battle Tank constitute "confined spaces." The compartments lack significant natural ventilation and have limited means for ingress/egress. Because of these conditions, the introduction of freon in the quantities involved here into the tanks created a substantial risk of a toxic or oxygen deficient atmosphere, typical of the type of hazards 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 waist and present little difficulty in ingress or egress. Moreover, testimony of the experts revealed considerable equivocation as to whether the unmarried tanks compartments were confined spaces. The record, therefore, fails to establish that the "unmarried" tank compartments were confined spaces.

E

We must next determine whether General Dynamics, or industry in general, recognized that the entry of employees into the tanks after the use of freon constituted a hazard to its employees.

General Dynamics contends that, where those who enforce standards cannot argee on whether a condition is hazardous, an employer can not be expected to comply with those standards, citing Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368(10th Cir. 1979) ("Kent Nowlin"). It claims that what the Secretary now contends are confined spaces were not designated as confined spaces during previous inspections conducted by both union and OSHA safety officials. General Dynamics claims that this precludes the Commission from finding that the company should have recognized the tank compartments as confined spaces. we disagree. It is well settled that an employer cannot rely on an earlier failure by OSHA to issue a citation as a basis for arguing that it lacked knowledge of a hazardous 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 is particularly true here where, although they were cataloguing confined spaces at General Dynamics' facility, the Secretary and Dr. Moure were not familiar with the use of freon in the tanks and were focusing on on worksites within the plant. The tanks at issue simply were not among the workstations surveyed.

The court's holding in Kent Nowlin provides no support for General Dynamics' argument. In that case, the Tenth Ciircuit held that an employer should not be penalized for deviating from a standard when neither the Secretary's enforcement officials, the judge, nor the members of the Commission could agree on how to interpret the standard. Here, there were no such disagreements. Furthermore, the record establishes that, between April 1983 and the incident in September 1983, several of General Dynamics' employees suffered adverse consequences from freon exposure while working in the tanks. These other incidents, recounted earlier, caused symptoms ranging from dizziness to loss of consciousness, caused employees to take sick leave, and led the UAW to file three formal grievances about the use of freon in the tanks. These incidents, together with the filing of formal grievances, but General Dynamics on notice that its employees were being exposed to a confined space hazard caused by the use of freon in the tanks. Indeed, the union's safety representative attempted, unsuccessfully, to have General Dynamics label the tank compartments as confined spaces. Respondent's recognition of the hazard was further underscored by its issuance of several safety bulletins attempting to restrict and control the use of freon. Accordingly, we conclude that General Dynamics recognized or should have recognized that employee entry into the "married" tanks after the use of freon exposed those employees to a confined space hazard.


F.

The record is replete with instances where employees who entered the tanks after the introduction of freon suffered ill effects ranging from dizziness to near asphyxiation. We therefore find that employees who entered into married tanks after the use of freon were exposed to a hazard that was likely to a hazard that was likely to cause death or serious physical harm.

V. Feasible means of Abatement

A.

In order to prove a violation of section 5(a)(1) of the Act, the general duty clause, the Secretary must also establish that there is a feasible means of eliminating or at least materially reducing the recognized hazard. Kastalon Inc., 12 BNA OSHC at 1931, 1986-87 CCH OSHD at p. 35,973. Although the parties dispute whether the tank compartments were confined spaces, there is no dispute about the steps that must be taken to eliminate the hazards posed by confined spaces. The testimony of the experts establishes, and the relevant NIOSH, MIOSHA and ANSI standards confirm, that to protect employees from the hazard of entering a confined space, a "confined space entry procedure" should be instituted. [[8/]] Indeed, General Dynamics had promulgated a set of such procedures for those areas of its plant that it had designated as "confined spaces."

General Dynamics argues that the Secretary failed to establish that it was feasible to apply "confined space entry procedures" to the M-1 tanks. It claims that the judge correctly held that such procedures are not appropriate where employees are performing numerous tasks on the tanks.
General Dynamics also contends that it took adequate measures to protect its employees. It submits that, in response to employee complaints, it distributed safety bulletins that instructed employees to limit the amount of solvent used in married vehicles to one pint, a quantity it determined to be safe. It provided fans for ventilation, and held safety meetings concerning the safe use of the solvent. Moreover, as employee Paling 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 its safety measures sufficiently addressed the use of freon in the tanks.

B.

The record demonstrates that General Dynamics did attempt to limit freon use to one pint, and to provide ventilation. [[9/]] However, the compliance officer did not testify that the safety program was sufficient to abate the hazard. Rather, he stated that the measures taken by General Dynamics might have been sufficient to free the workplace of the hazard had the employer taken the additional step of testing the atmosphere. He testified that without such testing General Dynamics could not be certain that these measure were sufficient to abate the hazard. Morgan further testified that employees were not instructed in the proper use and placement of the ventilator. Indeed, the failure to train employees in the proper use of the ventilators and the lack of atmospheric testing created the possibility that the ventilation was not only inadequate, but was actually recirculating freon fumes back into the tank. Moreover, the use of ventilators was not required by General Dynamics but, rather, was essentially voluntary under the company's rules.

The evidence established that General Dynamics' attempts to limit the quantities of freon used by the employees were almost totally ignored by both employees and supervisors. Indeed, the various safety bulletins put out by the company concerning the freon problem were poorly communicated to the employees. Some employees testified that they first saw the bulletins lying on their foreman's desk. Thus, the employees learned of the freon policies as often by accident as by design. In sum, the evidence establishes that the measures taken by General Dynamics failed to either eliminate or materially reduce the hazard posed by the use of freon in a confined space.

C.

The only reason General Dynamics gives for not applying its "confined space entry procedures" to the M-1 tanks is that it never identified the tank compartments as confined spaces. However, there is no indication in the record that the same "confined space entry procedures" already in effect in other areas of the facility could not have feasibly been applied 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 central to any "confined space entry procedure" are ventilation and environmental testing. There is substantial evidence that both of these measures were feasible.

General Dynamics provided ventilation in the form of air movers to many of its employees. Although there is no evidence that the devices were inadequate, as noted above, the company failed to train employees in their proper use. In addition, employees were not instructed or required to test the atmosphere to determine if, after ventilation, freon levels had been reduced to safe levels. The evidence establishes that air quality testers were available and could have been used to test the atmosphere in the tanks. Some of these devices continuously monitor the environment and sound an alarm when a preset concentration of a toxic chemical is reached.

Furthermore, the evidence established the feasibility of other measures usually found in a "confined space entry procedure." For example, two employees would regularly take the tanks out for the final cleaning. There is no evidence to indicate that a formal "buddy system" could not have been instituted in conjunction with this normal work practice or that such a system would have been cost prohibitive. In addition, the company gave confined space training to those employees working in areas it identified as confined. Such training clearly could have been extended to include those employees working in the tanks. Accordingly, we find that the Secretary established that it was feasible for General Dynamics to institute a "confined space entry procedure" for the M-1 tanks.

Finally, we would note that the hazard could have been abated by eliminating the use of freon as a cleaning agent. The evidence established that employees could use soap and water to clean the M-1 tanks. While the use of soap and water took longer and required employees to use more "elbow grease" than required when using freon, nothing in the record indicates that this increase in time and effort was so substantial as to be infeasible. Indeed, as a result of incidents occurring after the Paling incident, General Dynamics stopped using freon and began using soap and water to clean the tanks.

VI. Willfulness

A.

A willful violation is a violation committed voluntarily with intentional disregard for the requirements of the Act, or plain indifference to employee safety. United States Steel Corp., 12 BNA OSHC 1692, 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 more difficult when an employer is charged with a violation of section 5(a)(1), the general duty clause. Id. To establish a WiIliful violation of section 5(a)(1), the Secretary must show that the employer intentionally disregarded or was indifferent to its statutory duty to furnish a workplace free of recognized hazards causing or likely to cause death or serious physical harm. Thus, there must be evidence, apart from that establishing knowledge of the hazard, from which it may be concluded that the employer intentionally disregarded or was indifferent to the safety of its employees. St. Joe Minerals Corp. d/b/a St. Joe Lead Co. v OSHRC, 647 F.2d 840 (8th Cir. 1981); Kus-Tum Builders. 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. The Secretary points out that, as a result of the September 1982 citation, the company was aware of the basic hazard of freon use in a confined space. She claims that, as a result of the numerous written and verbal. complaints filed, the company was on notice of the hazard posed by freon use to employees working in the M-1 tanks, but failed to monitor the hazard or take other steps necessary for an effective "confined space entry procedure." The Secretary further argues that General Dynamics' bulletins warning of the dangers from freon exposure were ineffective because they were neither posted nor adequately communicated to employees.

General Dynamics stresses that no citations were issued for overexposure to freon after two earlier inspections, even though the compliance officer observed employees using as much as 14 gallons of freon in the M-1 tanks. The company's primary defense against the charge of willfulness, however, is based on those steps it took to reduce the hazard to employees. It contends that just because these steps were not effective is not a sufficient reason to find the violation to be willful. The company also points out that its safety administrator, Mathews, did not know that employees were continuing to use too much freon in violation of the instructions in its bulletins. Indeed, it argues, when Mathews was informed of an incident involving freon, he responded with such measures as ordering one pint spray bottles and new air blowers, making other cleaning fluids available, and arranging for additional training. Although this did not satisfy the UAW, General Dynamics argues that its safety administrator's actions preclude a finding that it either disregarded or was indifferent to employee safety.

B.

Based on the particular circumstances here, we find that the evidence fails to establish that General Dynamics either intentionally disregarded 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 take measures to protect employees. The company responded to complaints by ordering a reduction in the quantities of the solvent used. It also ordered ventilators for use in the tanks, and took other measures intended to reduce the use of freon. Where, as here, an employer undertakes serious steps to reduce a hazard, such good faith attempts to comply with the Act will usually preclude a finding of willfulness. Wright & Lopez, Inc. , 8 BNA OSHC 1261, 1266, 1980 CCH OSHD (p) 24,419 at p. 29,777 (No. 76-3743, 1980) . Although its steps were inadequately implemented, Respondent's actions over a period of time demonstrate that it made efforts to abate the hazard that were sufficient to overcome a charge of willfulness, particularly where the general duty clause, which prescribes no specific abatement method, is involved. As such, we hold that Respondent's violation of the general duty clause was not willful.

C. Penalty

When determining an appropriate penalty, the occupational Safety and Health Act directs the Commission to consider the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations.  29 U.S.C. 666(j), section 17(j) of the Act.

Generals Dynamics is a large company with a history of prior OSHA violations.  Although the company exhibited good faith in its incomplete attempts to reduce the hazard caused by the use of freon in the M-i tanks, the hazard remained one of high gravity.  The record not only reveals a substantial number of employee complaints and injuries due to freon exposure, but also establishes the life threatening nature of hazard.  Considering these factors, we find a penalty of $900 to be appropriate.

VII.. ORDER

Accordingly, the judge's decision is reversed.  We affirm the citation for violation of section 5(a)(l) of the Act, but vacate the willful characterization.  A penalty of $900 is assessed.

 

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: September 11, 1991





OSHRC Docket No. 83-1293
SECRETARY OF LABOR,
complainant,
v.
GENERAL DYNAMICS LAND SYSTEMS DIVISION, INC. ,
Respondent,
and
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, and its
LOCAL UNION NO. 1200,

Authorized Employee
Representative.


APPEARANCES:

Richard J. Fiore, Esquire, and Mark A. Holbert, Esquire, Office of the Solicitor, U. S. Department of Labor, Chicago, Illinois, on behalf of complainant.
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, International Union, Detroit, Michigan, on behalf of the authorized employee representative.
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 the United 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 of the remand is "to make the necessary credibility and factual findings" to determine, in light of the court of appeals opinion, "whether the record establishes a violation of 5(a)(1) and, if so, whether the violation was willful."

PROCEDURAL HISTORY

On November 29, 1983, the Secretary of Labor (Secretary) issued a citation and notification of proposed penalty to General Dynamics Land Systems Division, Inc., (General Dynamics) charging two willful violations of the occupational Safety and Health Act of 1970 (the Act) and certain specific occupational safety and health standards promulgated pursuant to the Act. Item one charged that General Dynamics violated the Act's general duty clause, section 5(a)(1), in that it failed to implement confined space entry procedures for employees who were exposed to dangerous concentrations of trichloro trifluoroethane while performing production tasks inside the compartments of the M1 Abrams main battle tank. Items 2a and 2b of the citation charged that on September 21, 1983, an employee in M1 test and adjust department was exposed to concentrations of trichloro trifluoroethane in excess of the eight-hour time-weighted average limit established for this material by the air contaminant standard, 29 C.F.R. {sec} 1910.1000, and that General Dynamics failed to implement feasible controls to reduce such exposure. A penalty in the amount of $9,000.00 was proposed by the Secretary for each item of the citation. General Dynamics contested the citation and the matter was docketed by the Commission for hearing. The International Union of the United Automobile, Aerospace and Agricultural Implement 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 vacating both items of the citation. The Secretary and the Union petitioned the full Commission for discretionary review of the decision. When no Commissioner directed review within 30 days, the decision became the final order of the Commission pursuant to section 12(i) of the Act. The Secretary and Union sought judicial review of that portion of the final order vacating item one of the citation, the section 5(a)(1) charge. The court of appeals granted the petitions for review and vacated that part of the Commission's final order vacating the 5(a)(1) charge and remanded the case to address the merits of the section 5(a)(1) citation.

STATEMENT OF FACTS

General Dynamics is a defense contractor engaged in, among other things, the production of M1 Abrams main battle tanks. Its workplace, known as the Detroit Arsenal Tank Plant (DATP), in Warren, Michigan, is a U.S. Department of Defense installation where the United States holds exclusive federal jurisdiction.

General Dynamics began producing the M1 Abrams battle tanks in March 1982. At any given time, there were between 60 and 100 M1 tanks in various stages of production under the direction of General Dynamics at the DATP.

Tanks are produced in three assembly stages, Ml hull assembly, Ml turret assembly, and M1 marriage (joining of the turret to the hull) (Ex. C-28(a) and (b); Tr. 88). Following the completion of these assembly stages, the assembled vehicle proceeds to the final test and adjust department (also known as the heavy repair department) where it is inspected, tested, and deficiencies discovered are noted and corrected. These production tasks are performed by employees of General Dynamics holding the job classification of tank repairman, assembler- fitter, or inspector.

BACKGROUND OF THE ALLEGED
SECTION 5(a)(1) VIOLATION

On August 31, 1982, a representative of the occupational Safety and Health Administration (OSHA) conducted an (investigation at the DATP in response to a union complaint (Tr. 2289).The complaint indicated that an employee was overcome by vapor from 1, 1, 2 trichloro 1, 2, 2, trifluoroethane (freon), a liquid degreasing and cleaning solvent which had accumulated in a pit under a conveyor line (Ex. C-6).

An investigation of the incident by OSHA resulted in the issuance of a citation alleging a violation of section 5(a)(1). The citation alleged that employees were exposed to the hazard of asphyxiation when they entered the pits where vapors and gases had accumulated. In order to abate the hazard, the citation required implementation of a confined space entry procedure throughout the plant.

In response, General Dynamics' safety and health director conducted a survey of the plant and compiled a list of those specific areas he considered to be confined spaces after reviewing the Michigan occupational Safety and Health Act (MIOSRA) (Tr. 2289-2290). A confined space entry procedure was implemented for those areas and various portable ventilation systems and life lines and safety harnesses were provided (Ex. C-19, R-2; Tr. 2294-2295). General Dynamics also conducted classes for employees regarding the hazards associated with confined spaces and the precautions which must be taken prior to entry (Tr. 2291).

In June 1983, the Secretary, General Dynamics and the Union executed a settlement agreement regarding the contested citation arising out of the August 1982 incident. General Dynamics withdrew its notice of contest to the section 5(a)(1) citation and the agreement stated (Secretary of Labor v. General Dynamics, OSHRC Docket No. 82-1001):

...the violative conditions alleged have been abated in accordance with the abatement procedures set forth in the Citation by the implementation of amended Confined Spare and Lockout Procedures developed with the full input and cooperation of authorized employee representatives.

In accordance with the agreement, the Union surveyed the plant and submitted a list of areas believed to be confined spaces to General Dynamics and OSHA. The M1 Abrams battle tank was not included on the list (Tr. 1341, 1344, 1442).

In March 1983, another complaint was made to OSHA concerning the use of freon at DATP. It stated in part "employees made to wash out tanks with 14 gallons of freon" and employees made to drive under the influence of these gases (Ex. C-9). The same compliance officer conducted the second investigation concerning use of the freon. The union representative explained to him how the solvent was used including the fact that freon was used inside the fully assembled tanks (Tr. 1353). The inspecting officer never advised General Dynamics that he believed the tank was a confined 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. It limited the use of freon generally with adequate ventilation but specifically in fully assembled vehicles. In preparing the safety bulletin, the manufacturer's data sheets were reviewed and the limitations were based on mathematical calculations. ventilation sources included blowers constructed inside the tanks, outside fresh air, overhead-mounted fans, free-standing portable fans and portable air blowers' (Ex. C-20; Tr. 2310-2213).

On June 9, 1983, the union filed another complaint regarding the use of freon in the Ml hull assembly department. This complaint was withdrawn August 16, 1983 (Ex. C-2). During the same month, safety representatives of the local and international unions conducted a walkaround inspection of DATP at which time employee use of freon was observed. At a meeting following the inspection to discuss safety and health problems, employee use of freon was not raised by the union officials (Tr. 1430, 1431).

The record shows that employees have complained of ill effects from working with the solvent. The evidence also reveals that General Dynamics responded adequately to the complaints and maintained safe controls 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 an employee injury on September 21, 1983. The employee, Charles Paling, was a member of a two-man team to "work off" tank "deficiencies" or defects in the test and adjust department. Paling was working in a fully assembled tank which he entered through the driver's compartment to reach a hydraulic line on the turret distribution manifold.

In order to accomplish his task, it was necessary to position himself head first about five or six inches from the driver's hatch and 12 inches from the floor (Tr. 802, 806). After replacing the hydraulic line, he poured about two three gallons of freon into the tank to clean up the spilled hydraulic oil. He then ventilated the tank with an air blower 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 fresh air [[2]] (Tr. 871). The ventilating procedure was consistent with the hazard abatement procedures set forth in the citation issued September 30, 1982.

Paling discovered another loak and, approximately ten minutes after re-entering the tank (with the blowers still operating), he was found unconscious, overcome by freon (Tr. 813).

On September 29, 1983, the compliance officer who conducted the two prior investigations of employee use of freon commenced his third, He recommended issuance of a serious citation of 29 C.F.R. {sec} 1910. based on the September 21, 1983, incident (Tr. 358, 383). Before the citation was issued, however, a second compliance officer was ,Assigned to the investigation who subsequently recommended Issuance of a citation for 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 his workers against a particular hazard, his duty under section 5(a)(1) will not 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 his compliance with a safety standard to absolve him from liability for any injury actually suffered by employees as a consequence of a hazard the standard was intended to address, and lie will be deemed to have met his obligation under the general duty clause with respect thereto. In other words, compliance with a safety standard will not relieve an employer of his 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 factual determinations: Is the hazard alleged in the statutory charge accurately described? If so, is it adequately addressed by the freon standard? And if it is not, did General Dynamics have knowledge of the fact and take appropriate measures to mitigate the hazard?

The answers to these questions, for the reasons stated below, support the conclusion that General Dynamics did not violate the general duty clause.

The citation describes the hazard as follows:

. . . employees working in the Heavy Repair, Test and Adjust, Marriage and 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's compartments of M1 tanks and immediately enter these compartments to perform. clean-up and other routine tasks thereby exposing themselves to the hazard of asphyxiation and/or chemical poisoning. A confined space entry procedure, specific for these operations, had not been implemented when toxic compounds were introduced into the vehicle.

In response to the court's first inquiry, it must be concluded that the citation 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 not accurately describe the practices instituted by General Dynamics.

2. The stated requirement of a "confined space entry procedure" is also inaccurate, because the areas in question are not confined spaces.

The employee involved in the incident of September 21, 1983, ventilated the 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 the solvent, and the procedure of using an air blower while the hatches and drains were open was in accordance with the hazard abatement procedures set forth in the citation issued September 10, 1982.

The citation incorrectly indicates that the various compartments of the tank are confined spaces. The citation states, "a confined space entry procedure, specific for these operations, had not been implemented when toxic compounds were introduced into the vehicle."

The record is clear that General Dynamics was not required by any regulation or standard to provide confined space entry procedures. In fact, designated spaces at the plant approved by the parties for such procedures, did not include "these operations" (M1 tanks) (Tr. 367)

The American National Standards Institute (ANSI) upon which the Secretary 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 the definition of "confined space" until it is completely enclosed.

The citation, therefore, incorrectly assumes that the M1 Abrams tank under construction is a confined space. The National Institute for Occupational Safety and Health (NIOSH), the Michigan Occupational Safety and Health Administration (MIOSHA), and a proposed OSHA standard, neither of which is binding on General Dynamics, indicate the error in citing for failure to implement a confined space entry procedure.

NIOSH defines a confined space as "a space which by design has limited openings for entry and exit; unfavorable natural ventilation which could contain or produce dangerous air contaminants, and which is not intended for 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 dangerous concentration of air contaminants, flammable gases or vapors, or a deficiency of oxygen, and is not intended for continuous employee occupancy......

And, the record disclosed that the proposed OSHA standard provided that (Ex. C- 35c):

"Confined space" means a tank, vessel, silo, vault, pit, open topped space more than four feet deep, or any other enclosed space that is not designed for continuous employee occupancy and has one or more of the following characteristics (p. 3)

the covered by this standard are those that are no designed or humans to work in routinely, e.g. for a regular ,shift, but which may have to be entered for specific work related purposes. (p. 16).

The compliance officer, whose inspection gave rise to issuance of the citation, conceded that at various stages the M1 tank is continually occupied by General Dynamics' employees (Tr. 581, 583). He also agreed that the M1 tank is intended for continuous human occupancy (Tr. 647).

Based upon the foregoing, it must be concluded the alleged hazard is not accurately described in the citation.

The last question the court of appeals and Commission stated should be addressed is whether General Dynamics "had knowledge of the hazard" and took appropriate measures to mitigate the hazard. The court stated:

[I]f an employer knows that a specific standard will not protect his workers against a particular hazard, his duty under section 5(a)(1) will not be discharged no matter how faithfully he observes that standard. Scienter is the key.

The evidence demonstrates that General Dynamics was cognizant of the specific federal regulations governing use of the solvent and implemented procedures to ensure compliance. It also implemented safety precautions to address the complaints of employees suffering from ill effects upon use of the solvent.

Following receipt of the citation for violation of section 5(a)(1) in 1982, General Dynamics implemented a confined space entry program for the agreed areas, and a safety bulletin was issued which limited the quantity of solvent to be used inside the tanks. Ventilation was required and source included blowers constructed inside the tanks, overhead-mounted fans, free- standing portable fans and portable air blowers. The directive was based on several mathematical equations developed by the safety director regarding use of the solvent in evaluating a potential hazard. The inspecting officer agreed that such calculations were an appropriate means to evaluate this type of potential hazard (Tr. 436, 2313).

The employee involved in the incident that gave rise to issuance of the citation had testified he ventilated the compartment for nearly an hour with all hatches and drains open. The inspecting officer agreed that proper use of the portable air blower by the employee was an appropriate means of addressing the problem of exposure (Tr. 491).

In this regard, the decision, following the initial hearing, contained the following at page nine:

The Secretary strongly contends that the respondent had actual knowledge of the hazards associated with employee entry into confined spaces and knowingly exposed its employees to such hazards in the M1 tanks. The record indicates, however, that the basic criteria for identifying a confined space requiring safe entry procedures is the extent of enclosure and inadequacy of natural ventilation to purge the atmosphere. In the instant case, Mr. Paling testified the hatches and drains were open when he ventilated the space for up to an hour as part of his normal procedure. The conditions under which he worked suggest safe operating procedures were being employed which included purging of the atmosphere by mechanical ventilation.

The record clearly demonstrates that General Dynamics was without knowledge that the particular hazard alleged in the citation existed. The inspecting officer admitted that the confined space entry procedure General Dynamics followed at the time of his investigation was adequate except for the fact that it did not include the M1 tank (Tr. 504). The tanks, of course, were not included in the designated spaces which were approved by the parties for safe confined space entry procedures. He also admitted that, after three investigations involving use of freon at the plant, OSHA never gave any notice there was a problem with its use in the M1 tank as a confined space (Tr. 363).

This officer was the first in his agency to contend the M1 tank was a confined space (Tr. 362). He acknowledged this his investigation began almost two months after the initial investigation by the officer who recommended a serious violation under section 5(a)(2) for overexposure (Tr. 358). It is noted that the initial investigation was conducted by the same officer who had investigated use of freon at the plant on three former occasions. His area director also recommended the citation for overexposure prior to the investigation leading to the 5(a)(1) citation (Tr. 383).

In this regard, General Dynamics argues that the citation should be vacated, 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 of Columbia Circuit stated that:

In addition, we note that the record shows some disagreement on this between the compliance officers who conducted the inspection of Willson's worksite. It is uncontested that during the initial visit in February the OSHA officers informed James Willson that if either safety belts or safety nets were utilized he would be in compliance with the Act. At the hearing, however, one of the officers testified that both nets and safety belts were required. This apparent conflict is presumably premised on the compliance officer's belief that it is not possible for structural steel employees to tie off at all times. Willson "should not be penalized for deviation from a standard the interpretation of which, in relationship with kindred standards, cannot be agreed upon by those who are responsible for compelling compliance with it and with oversight of the procedures for its enforcement." Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368, 371 (10th Cir. 1979).

Of course the Commission is not bound by the representations or interpretations of OSHA compliance officers. Western Steel Manufacturing Co., OSHRC No. 3528, 4 OSHC (BNA) 1640 (1976). Such representations, however, are relevant in a particular case to whether an employer has adequate notice of what is required under the Act.

The Commission has stated "[t]he intent of section 5(a)(1) is . . . to reduce preventable hazards. . . . To further that intent hazards should be defined in a way that apprises the employer of its obligations and identifies conditions or practices over which the employer can reasonably 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 has failed 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) which was recognized; and (3) caused or was likely to cause a death or serious physical harm. Continental Oil Co. v. Occupational Safety & Health Review Commission, 630 f.2d 446 (6th Cir.1980), cert. denied, 450 U.S. 965 (1981). In addition, the Secretary has not demonstrated that the duty imposed upon the employer or the means of abatement is feasible and capable 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 production workers would be required to "test the atmosphere," use "mechanical ventilation," and have emergency rescue crews standing by with "safety harnesses" to hoist the "employee from the confined space." The facts developed at the hearing revealed, however, that the Secretary's proposed method of abatement--that is, a confined entry procedure-- is not appropriate where employees are performing numerous different work tasks on or in an M-1 tank. . . . Thus, In the absence of proof by the Secretary that its proposed method of abatement is feasible or that General Dynamic's method of abatement (administrative controls) was ineffective, a citation based upon a violation of the general duty clause may not be affirmed.

The record in this case does not contain preponderating evidence to support 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 hereinafter mentioned, maintained a place of business at 28251 Van Dyke Road, Warren, Michigan, where it was engaged the business of manufacturing M1 Abrams battle tanks.

2. On September 10, 1982, respondent was issued a citation for violation of section 5(a)(1) of Act. The citation, which was affirmed, alleged that employees were exposed to the hazard of asphyxiation when they entered pits where vapors and gases had accumulated. The violation was abated in accordance with a settlement agreement which provided for implementation of a confined space entry procedure throughout the plant.

3. The designated spaces at the plant which were approved by the parties for safe confined entry procedures did not include the M1 tanks.

4. Trichloro trifluoroethane was use by employees in varying amounts as a cleaning solvent inside the compartments of both fully assembled and partially assembled tanks.

5. In April 1983, General Dynamics issued a safety bulletin limiting the use of freon by employees working in tanks. The limitations were based on the manufacturer's data sheets and mathematical calculations. Ventilation was also required.

6. In June 1983, a formal complaint was made by the authorized employee representative regarding excessive use of the solvent by employees. This complaint was withdrawn August 16, 1983.

7. Safety representatives of the international and local unions conducted a walkaround inspection also during August 1983. At a meeting with company officials following the inspection, employee use of the solvent was not a matter raised discussion.

8. On September 21, 1983, a repairman in the test and adjust department was overcome by freon after re-entering a tank following use of the solvent. As a result, General Dynamics was issued the citation alleging a willful violation of section 5(a)(1) of the Act.

9. After the repairman poured solvent into the tank, it was ventilated for 45 minutes to an hour with the three compartment hatches and the drain system open before he re-entered it. The ventilating device he used could move between 500 and 1,000 cubic feet of air per minute. The atmospheric volume of the fully assembled tank is 268.5 cubic feet.

10. The ventilating procedures employed by the repairman were in accordance with the hazard abatement procedures outlined in the citation issued September 10, 1982.

11. The compliance officer, who had conducted three inspections of the workplace prior to issuance of the instant citation, was aware of how employees used the solvent and the procedures respondent had developed for its use in the tanks. He, at no time, advised respondent that employee use of the solvent in the tanks presented a potential hazard.

12. The hazard alleged in the citation is not accurately described because employees were not required to immediately enter compartments of a tank after using the solvent. In addition, the compartments are not confined spaces requiring specific entry procedures.

13. General Dynamics had knowledge of the hazards related to use of freon in construction of the M1 tanks. Appropriate measures were taken to mitigate all such hazards.

On the basis of the record and foregoing findings of fact, the citation alleging violation of section 5(a)(1) of the Act is hereby vacated.

Dated this 7th day of September, 1989.

PAUL L LRADY
Judge

 

 

FOOTNOTES:


[[1/]]The turret is the upper structure of the tank on which the gun is mounted. It can be rotated to allow movement of the gun.


[[2/]] A complaint was filed with OSHA as a result of the incident. OSHA investigated the complaint, but no citation was issued by the Secretary.


[[3/]] On June 5, 1989, the Secretary formally proposed a new standard for confined spaces. 54 Fed. Reg. 24,080 (1989). Under this proposal, confined spaces are divided into two types. "High hazard permit required confined spaces" would require, among other things, both a permit and safety attendant stationed outside of the space. "Low hazard permit required confined spaces," on the other hand, would require a permit but not an attendant.
Under paragraph (b)(23) of the proposed standard, a "permit required confined space" means an enclosed space which:
(i) Is large enough and configured that an employee can bodily enter and perform assigned work;
(ii) Has limited or restricted means for entry or exit (some examples are tanks, vessels, silos, storage bins, hoppers, vaults, pits and diked areas);
(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 trapped or asphyxiated by inwardly converging walls, or a floor which slopes downward 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 a confined space entry procedure could vary depending upon the hazards involved and the nature of the space being entered, it generally includes 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 to permit employees to work safely in the space. Such steps would generally include:
a. ventilation;
b. buddysystem (one employee remains outside space to effect rescue if necessary); and
c. 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 engineering techniques to maintain safety;
7. If it is not feasible to provide respirable atmosphere, the use of respiratory equipment

[[5/]] Accordingly, we need not determine whether the Secretary and the UAW are correct in arguing that the citation does not require categorizing the tank compartments as confined spaces

[[6/]] The current OSHA proposed standard provides some support for the interpretation put forth by General Dynamics. In the preamble, the Secretary states that
OSHA proposes paragraph [(b)(23)(iii)] to make it clear that the work areas covered by this standard are unsuitable, by nature for continuous employee occupancy, because those spaces were created to contain such things 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 the confined space category as it fails to take them into account. Further discussion in the preamble suggests that the Secretary is not yet certain 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 criteria by which employers must evaluate their workplaces to determine if they contain permit spaces. Is the definition clear? Are there circumstances where the application of the proposed definition would either include work areas that should be excluded, or exclude work areas that should be included within the scope of this proposal? OSHA requests input on the adequacy of the proposed definition....
54 Fed Reg. at 24,086.

[[7]] we especially note the unrefuted testimony establishing that both cars and space capsules are regarded as confined spaces during the manufacturing 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 which requires authorization and approval in writing that specifies the location and type of work to be done and certifies that all existing hazards have been evaluated by a qualified person and necessary protective measures have been taken to insure the safety of each worker.
(3) Mechanical ventilation of the confined space prior to entry and continued ventilation t provide a safe atmosphere.
(4) testing the atmosphere of the confined space prior to entry and on a regular basis for presence of sufficient oxygen (19.5 percent) and absence of hazardous levels of toxic or combustible gases or vapors.
(5) Emergency rescue procedures with a requirement that trained personnel are available and are stationed outside the confined space with proper equipment to provide for the rescue of persons entering the space. Such equipment must include safety harness and life lines with provisions for hoisting employee from to confined space. If entry is required for rescue, the rescuing employee must be equipped with approved air supplied respiratory equipment and other appropriate personal protective equipment.
(6) training of any and all employees required to enter the confined spaces after toxic compounds have been introduced into vehicle. This training shall include procedures required prior to entry and the hazards associated with work in confined spaces.

[[9/]] In concluding that General Dynamics was using proper work practices, 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 identified as "confined" on the list compiled in conjunction with the UAW.

[[1]] The safety director's evaluation and calculations were similar to those used to support the instant citation and approved by the inspecting officer as an appropriate means of evaluating this type of potential hazard (Tr. 436, 549, 2313). The three foremen who testified at the hearing in this matter indicated they distributed the safety bulletin to their employees. Supervisor Kurth specifically recalled giving the bulletin to all employees in the test and adjust department including employee Charles Paling (Tr. 3147-3148).

[[2]] The atmospheric volume of a full assembled M1 tank is 268.5 cubic feet (Ex. C-.29; Tr. 131), and the ventilating device could move between 500 and 1,000 cubic feet of air per minute (Tr. 1622, 1623).