UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 16317

DRAVO CORPORATION,

 

                                              Respondent.

 

January 9, 1980

DECISION

BEFORE CLEARY, Chairman; and BARNAKO, Commissioner.*

BY THE COMMISSION:

            A decision of Administrative Law Judge Donald K. Duvall is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, § 661(i) (‘the Act’).[1] Judge Duvall held that Dravo Corporation (‘Dravo’) committed two violations of section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2): a serious violation for failing to comply with the standard at 29 C.F.R. § 1916.31(b)(1) and a repeat violation for failing to comply with the standard at 29 C.F.R. § 1916.51(a). Penalties of $700 and $250, respectively, were assessed.

            The Commission agrees with the judge’s conclusion that Dravo committed a serious violation of the Act by failing to comply with section 1916.31(b)(1) and also affirms the judge’s assessment of a $700 penalty for that violation. However, having reviewed the entire record, the Commission members are divided on the appropriate disposition of the citation for repeated violation of section 1916.51(a) and the $250 penalty assessed by the judge for that violation. In view of the statutory purpose of expeditious adjudication, the members agree to resolve their impasse by affirming the judge’s order. That part of the judge’s decision and order affirming the citation for repeated violation of section 1916.51(a) and assessing a penalty of $250 for that violation is accorded the precedential value of an unreviewed judge’s decision. Sun Petroleum Products Co., 79 OSAHRC ——, 7 BNA OSHC 1306, 1979 CCH OSHD ¶ 23,502 (No. 76-3749, 1979), appeal filed, No. 79-1828 (3d Cir. June 26, 1979); Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶22,313 (No. 14910, 1977), aff’d, 591 F.2d 991 (4th Cir. 1979).

I

            During an inspection of Dravo’s shipyard near Pittsburgh, Pennsylvania, a compliance officer for the Occupational Safety and Health Administration observed an employee emerge from a deck hatch on a barge under construction. The employee had been making welding repairs in the rake, a compartment at the sloped bow of the barge, for four hours.[2] The rake is 54 feet wide, 38 feet long, and 2 to 10 feet high, and has a volume of 14,570 cubic feet. The 15-inch by 23-inch oval hatch from which the welder was seen emerging is the sole opening in the rake. Blue smoke filled the rake while the welder was inside. No artificial ventilation was provided.

            Dravo was cited for failing to provide either general mechanical or local exhaust ventilation required by section 1916.31(b)(1) (‘the ventilation standard’).[3] Dravo raises the following contentions in its defense:

(1) The rake is not a ‘confined space’;

 

(2) The ventilation standard is unenforceable because the phrase ‘confined space’ is vague and uninformative;

 

(3) An element of proof of a failure to comply with the ventilation standard is the presence of air contaminants beyond safe limits;

 

(4) There is no evidence that the air in the rake was contaminated beyond safe limits; and

 

(5) The violation, if any, was not serious.

 

            A confined space is

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

 

29 C.F.R. § 1916.2(m). Three witnesses with extensive experience in maritime safety—compliance officer George Reed,[4] senior maritime compliance officer William Draper,[5] and Acting Area Director Leo Carey[6]—testified that the rake on Dravo’s barge created the possibility of a hazardous exposure because the rake is small, has limited access, and lacks natural ventilation to remove welding fumes.[7] Dravo’s chief maritime engineer, Cornelis Van Mook, testified that the rake is an enclosed space, not a confined space, because it is closer in size to the examples given in the definition of enclosed space.[8] The judge credited the testimony of the Secretary’s witnesses because they possess expertise in maritime safety while Van Mook does not. He concluded that the Secretary’s contention that the rake ‘falls within the definition of ‘confined space’ is supported credible testimonial evidence of the relatively small size of the space . . ., the very limited access to the space . . ., [and] the generation and accumulation of smoke and fumes from the burning welding rods in the space during the welder’s normal working hours’; this evidence and the evidence as to the contaminants emitted from the welding rods ‘indicate that such a space, in the circumstances of this case, could readily create or aggravate a hazardous exposure.’ Dravo argues that Van Mook’s testimony should be credited over the testimony of the other witnesses because they necessarily are prejudiced in favor of the position of their employer—the Secretary—and they expressed somewhat differing opinions of the application of the ventilation standard to conditions other than those on Dravo’s barge.

            We conclude that the judge’s finding that the rake on Dravo’s barge is a confined space is supported by a preponderance of the evidence. Accordingly, we reject Dravo’s exceptions to that finding. In particular, we conclude that Judge Duvall did not err in relying on the expert opinion testimony of the Secretary’s witnesses or in discrediting the testimony of Van Mook. We note that Van Mook testified that he is not qualified to decide if a compartment readily can create or aggravate a hazardous exposure and that his testimony was based exclusively on a comparison of the size of the rake and the compartments listed in subsections 1916.2(m) and (n).[9] Moreover, the argument that we should discredit the testimony of the Secretary’s witnesses because of their employment status applies with equal force to Van Mook’s testimony. Finally, disagreement over the scope of the application of the ventilation standard is not a sufficient reason to discredit the witnesses’ uniform testimony with respect to the standard’s application in this case.

            Additional evidence supports the judge’s finding. The welder in the rake had been provided with ventilation equipment when he worked on Dravo’s towboats, and he attempted to obtain ventilating equipment before beginning this project. The foreman of the welder called to him periodically during the welding to check on his condition. Furthermore, we note that the general industry standard at 29 C.F.R. § 1910.252(f)(2)(i) requires mechanical ventilation when welding is done in a room less than 16 feet high. (The rake is 2 to 10 feet high.) The evidence and the general industry standard set forth above support the testimony of the Secretary’s witnesses that welding in an area like the rake creates the potential for a hazardous exposure. We therefore adopt the judge’s finding that the rake is a confined space.

            Dravo argues that the phrase ‘confined space’ is vague because an employer necessarily must guess as to the meaning and differ as to the application of the phrases ‘small size,’ ‘confined nature,’ and ‘can readily create or aggravate a hazardous exposure.’ See 29 C.F.R. § 1916.2(m), quoted supra. Dravo claims support from the fact that the Secretary’s witnesses differed as to whether certain spaces are confined. Finally, the meaning of confined space is even more uncertain, Dravo claims, when viewed in light of the definition of enclosed space. See note 8 supra.

            The definition of confined space is not as perplexing as Dravo suggests. When read together, subsections 1916.2(m) and (n) inform employers that any below-deck space on a vessel is either confined or enclosed. Furthermore, the definitions give examples of each type of space. Thus, the definitions give employers considerable guidance in distinguishing a confined space from an enclosed space.

            As Judge Duvall noted,

[t]he range and variety . . . of compartments in the various types of vessels constructed or repaired in American shipyards . . . and the diversity of working conditions affecting the breathable air in such compartments . . . make the drafting of . . . [a ventilation standard] with exactitude most difficult.

 

            Accordingly, the ventilation standard necessarily includes some broad terms. This does not render the standard unenforceably vague. Instead, it means that an employer must read it in light of the conduct to which it applies and guide his actions accordingly. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 (1952); Brennan v. OSHRC (Santa Fe Trail Transport Co.), 505 F.2d 869 (10th Cir. 1974).

            Whenever an employer cannot determine whether a space is confined or enclosed from the examples given in the definitions, the employer must use his experience, knowledge, and judgment to decide whether the hazard at which the standard is directed is increased by the size and configuration of the space. A standard is not vague simply because its application requires the exercise of judgment.[10] See, e.g., Allis-Chalmers Corp. v. OSAHRC, 542 F.2d 27, 30 (7th Cir. 1976); M-Co Equipment Company, Inc., 75 OSAHRC 37/C3, 2 BNA OSHC 1660, 1974-75 CCH OSHD ¶ 19,394 (No. 3811, 1975). For further guidance, if necessary, the employer can look to other standards or to industry custom and practice. Modern Automotive Service, Inc., 74 OSAHRC 9/A11, 1 BNA OSHC 1544, 1973-74 CCH OSHD ¶17,369 (No. 1541, 1974). The employer is not required to simply ‘guess’ at what the definition means.

            Finally, we agree with Judge Duvall’s statement that, ‘[i]n any event, the appropriate test in this case is whether a reasonably prudent man familiar with the [11]circumstances of the shipbuilding industry would have protected against the hazard.’[12] We also agree with his determination that such a person would have provided protection against the hazard at Dravo’s workplace.[13]

            Accordingly, for all of the reasons stated, we reject Dravo’s contention that 29 C.F.R. § 1916.31(b)(1) is unenforceably vague.

            Dravo offers two reasons to support the contention that the ventilation standard, 29 C.F.R. § 1916.31(b)(1), imposes on the Secretary the burden of proving that welding fumes and smoke in a confined space exceeded safe limits. First, a hazardous exposure must be shown to have existed because a confined space is one that readily creates or aggravates a hazardous exposure. Second, the ventilation standard incorporates by reference the requirement of subsection 1916.31(a) that ventilative be of sufficient capacity to keep fumes and smoke within safe limits. Accordingly, ‘. . . 29 C.F.R. 1916.31(b)(1) does not require mechanical ventilation unless welding fumes and smoke are beyond safe limits’ (emphasis supplied by Dravo). Dravo claims that its incorporation by reference argument is supported by the Commission opinion in Bethlehem Fabricators, Inc., 76 OSAHRC 62/C2, 4 BNA OSHC 1289, 1976-77 CCH OSHD ¶20,782 (No. 7176, 1976). Dravo poses the following hypotheticals if this burden is not placed on the Secretary: striking a welding arc for one second in a confined space, and striking an arc in a confined space with sufficient natural ventilation to keep fumes within safe limits, would be violations. It implicitly argues that these results would be unreasonable.

            Judge Duvall rejected Dravo’s contention on the ground that the standard is preventive in nature. We agree. A confined space differs from other spaces by its potential for creating or aggravating a hazardous exposure, not, as Dravo states, by the actual creation or aggravation of such an exposure. This is clear from the express language of the definition: ‘. . . space which by its small size and confined nature can readily create or aggravate a hazardous exposure’ (emphasis added). Ventilation is required when welding begins in order to prevent injuries that might occur if an employer were permitted and decided to withhold ventilation until excessive fumes and smoke were predicted or discovered and the prediction were faulty or the discovery untimely. Cf. Marshall v. Western Electric, Inc., 565 F.2d 240, 244-245 (2d Cir. 1977) (testing for presence of vinyl chloride required if it is released during work operation, not only when there is a ‘reliable prediction’ of presence of excessive quantities).

            The ventilation standard does refer to subsection 1916.31(a). The requirements of a standard to which reference is made in another standard are not, however, incorporated automatically into the latter standard. See, e.g., Wisconsin Electric Power Company, 76 OSAHRC 134/B2, 4 BNA OSHC 1783, 1976-77 CCH OSHD ¶ 21,234 (No. 5209, 1976), aff’d, 567 F.2d 735 (7th Cir. 1977). Reference in the ventilation standard to subsection 1916.31(a) is limited to noting that the ventilation provided pursuant to the standard must perform as required by the subsection. The Bethlehem Fabricators opinion offers no support to Dravo’s incorporation argument. The Commission recently overruled that opinion in Westinghouse Electric Corporation, 79 OSAHRC ——, 7 BNA OSHC 1318, 1979 CCH OSHD ¶23,542 (No. 13955, 1979), appeal docketed, No. 79-1556 (7th Cir. May 24, 1979).

            Finally, Dravo’s hypotheticals do not persuade us to reverse the judge. Dravo is correct that welding in a confined space for even a moment would constitute a failure to comply with the ventilation standard if artificial ventilation were not present. The Act provides for this type of violation: the violation would be de minimis under section 9(a) of the Act. Penalties are not assessed and abatement requirements are not imposed for de minimis violations. E.g., Combustion Engineering, Inc., 77 OSAHRC 182/A2, 5 BNA OSHC 1943, 1977-78 CCH OSHD ¶ 22,241 (No. 76-2210, 1977). As to the second hypothetical, if sufficient natural ventilation is present in a space to prevent the accumulation of air contaminants, the space is not one in which a hazardous exposure could be created. Thus, the space would not be classified as ‘confined’ and a failure to comply with the ventilation standard could not be found. Dravo’s contention that the Secretary must prove the presence of unsafe levels of air contaminants is therefore rejected. Dravo’s fourth contention—that the Secretary failed to establish the presence of air contaminants beyond safe limits—is therefore irrelevant.

            Dravo also takes exception to Judge Duvall’s conclusion that its failure to comply with the ventilation standard was a serious violation of the Act.[14] Compliance officer Reed testified that he recommended to his area director that Dravo’s alleged noncompliance with section 1916.31(b)(1) be classified as a serious violation. He based this recommendation on the concentration of welding fumes he observed rising from the hatch, which concentration he described as a ‘steady flow,’ and on the welder’s statement as to the length of time he had been in the rake. In Reed’s view, these factors created a ‘very serious likelihood that he [the welder] would not have enough breathable air.’ Reed conceded that he did not enter the rake and that he took no measurements or tests to determine either the concentration or the composition of the welding fumes.

            Based on the record evidence as to the size and configuration of the rake and the testimony concerning the welding operation, Draper stated that the atmospheric conditions inside the rake were such that the air was moving from inside the compartment to the outside with little, if any, replacement air coming back in. Thus, there was no natural ventilation in the rake. Draper further testified that these conditions could cause death due to oxygen deficiency. On cross-examination, Draper asserted that, despite the absence of any atmospheric tests, the evidence he had seen and heard provided a sufficient basis for his conclusions.

            Carey also testified that the conditions created the possibility of death or serious physical harm due to oxygen deficiency. Because the welding process itself produces oxides, that is, chemical compounds composed in part of oxygen drawn from the surrounding air, and because ‘based on my experience with confined spaces . . . I would consider that natural ventilation was not adequate to restore oxygen that was used up in the process,’ Carey concluded that the potential for an oxygen deficient atmosphere was present in the rake. He further testified that ‘the fact that similar operations in confined spaces has [sic] created oxygen deficiencies . . . is a matter of general agreement among the community in safety and health.’ He conceded, however, that he could not know, in the absence of atmospheric testing, the degree of oxygen deficiency in the rake or whether an oxygen deficiency had occurred at the time of the inspection.

            In addition, Carey testified that the welding operation at issue created a potential for exposure to ferric or ferrous oxides (iron oxides), manganese oxides, carbon monoxide, carbon dioxide, nitrogen oxide and ozone. He based this testimony on information supplied by the manufacturer of the welding rods used in the welding operation in question and on his own experience as an industrial hygienist in evaluating similar welding operations. Carey stated that iron oxides, manganese oxides, and carbon dioxide are ‘decomposition products’ generated as a result of welding with the type of rods that were used at the time of the inspection. He further testified that the welding arc produces energy in the form of ultra-violet radiation and that this energy in turn causes nitrogen oxides and ozone to form in the surrounding atmosphere. On cross-examination, Carey admitted that he did not know the amount of any of these contaminants that was present in the rake at the time of the inspection. However, he asserted that there was only a ‘remote’ possibility that the welder was not exposed to the contaminants at any level. He also noted that, because of the confined nature of the rake and the lack of ventilation, contaminants generated by the welding process were not removed from the rake, with the exception of those contaminants that went out through the hatch.

            Carey further testified as to the potential consequences of exposure to the contaminants he had listed. He stated that exposure to carbon monoxide can result in permanent brain damage or death by asphyxiation. Exposure to carbon dioxide or ozone can result in permanent impairment of the respiratory system. Moreover, exposure to manganese oxides can permanently affect the nervous system, while exposure to nitrogen oxides can result in death due to pulmonary edema (a release of fluids into the lungs). Carey conceded that, with respect to each of these contaminants, whether exposure in fact results in death or serious physical harm depends on the concentration of the contaminant in the atmosphere and that he did not know what those concentrations were at the time of the inspection.

            Judge Duvall stated that the ‘unrebutted credible testimony’ of Draper and Carey established that serious injury or death ‘could result from exposure to the violative condition.’ He found that exposure to the contaminants emitted by the burning welding rods ‘results in serious hazards, such as the possibility of permanent damage to the nervous system (manganese oxide), discomfort to respiratory system (nitrogen dioxide), collapse and/or death due to oxygen deficiency (carbon monoxide).’ Accordingly, he concluded that Dravo’s failure to comply with section 1916.31(b)(1) was a serious violation of the Act ‘because if the potential hazard of oxygen deficiency and/or air contamination when welding in an unventilated confined space became actual or actually occurred, there is a substantial probability that death or serious physical harm could result to the welder thus exposed. . . .’

            Dravo argues that the judge erred because the evidence is insufficient to support his conclusion that the violation was serious. Citing Carey’s concession that the concentration of contaminants in the atmosphere of the rake would determine whether death or serious physical injury actually occurred, it emphasizes the fact that tests of the atmosphere were taken. It also emphasizes evidence indicating that the welder’s exposure to the welding smoke and fumes was relatively limited. Dravo asserts that the Secretary’s witnesses ‘simply never went beyond what hazards might be possible’ to establish ‘a substantial probability that death or serious physical harm could result from the conditions found at the time of the inspection.’

            We do not agree. For a violation to be serious within the meaning of the Act, the record must establish that there was a substantial probability that death or serious physical harm could result if an accident occurred. The probability of the accident occurring is irrelevant. Niagara Mohawk Power Corp., 79 OSAHRC ——, 7 BNA OSHC 1447, 1979 CCH OSHD ¶ 23,670 (No. 76-2414, 1979). Here the record establishes a likelihood that various hazardous contaminants were in the atmosphere as a natural consequence of the welding operation being performed. It also establishes that there was not sufficient ventilation in the rake to remove the contaminants or to prevent the accumulation of an increasing concentration of the contaminants as the welding progressed. In addition, the record establishes the possibility that an oxygen deficient atmosphere would develop in the rake. Finally, the record supports Judge Duvall’s conclusion that there was a substantial probability that death or serious physical harm could result if an oxygen deficiency or sufficiently contaminated atmosphere actually were created. Accordingly we affirm the judge’s conclusion that Dravo’s failure to comply with section 1916.31(b)(1) was a serious violation of the Act.[15] We also affirm his conclusion that a penalty of $700 is appropriate in light of the statutory criteria specified in section 17(j) of the Act.

II

            Approximately 15 Dravo employees were working on the deck of a towboat under construction when it was inspected. Numerous houses and lines[16] were scattered around the deck, including in front of the stairway that provided the only means of access to the boat. As stated above, the judge concluded that these conditions were not in compliance with section 1916.51(a) (‘the housekeeping standard’) and that the violation was repeated.[17] Dravo raises the following arguments in opposition to the judge’s conclusions:[18]

1. The presence of the hoses and lines on the boat was not forbidden by the housekeeping standard because it provides an exception for hoses and lines that are in use and Dravo’s were used constantly;

 

2. Compliance was impossible; and

 

3. The Secretary has not proven that the alleged violation was a repeated one.

 

            Most, if not all, of the hoses and lines on the towboat were being used when it was inspected. The judge nonetheless concluded that the conditions did not fall within the ‘in use’ exception. He interpreted the standard to require that hoses and lines be maintained as neatly as possible without interfering with their use. We agree with the judge’s conclusion, but not his reasoning. The ‘in use’ exception does not apply to hoses and lines. See FMC Corp., 79 OSAHRC ——, 7 BNA OSHC 1419, 1420, 1979 CCH OSHD ¶23,631 at p. 28,656 (No. 12311, 1979). Under the express terms of the standard, separate and independent requirements are established with respect to (a) ‘tools, materials, and equipment’ and (b) ‘hose and electric conductors.’ See note 17 supra. The ‘in use’ exception is contained in the former provision and applies only to tools, materials and equipment that are in use. The provision relating to hoses and lines, which is the requirement at issue in this case, contains no exception for hoses and lines that are in use. Dravo’s first contention is rejected.

            The presence of hoses and lines on the decks of vessels under construction is an inherent problem in the shipbuilding industry. All witnesses testified that all lines and hoses could not have been eliminated from the deck of Dravo’s boat. Even if full compliance with a standard is not possible, however, an employer must provide all the protection that is possible. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1146-1147, 1979 CCH OSHD ¶ 23,330 at p. 28,230 (No. 15094, 1979). See also, Sletten Construction Co., 77 OSAHRC 200/F8, 6 BNA OSHC 1091, 1977-78 CCH OSHD ¶22,349 (No. 11028, 1977); Somogyi Construction Co., Inc., 77 OSAHRC 192/E8, 5 BNA OSHC 2065, 1977-78 CCH OSHD ¶22,319 (No. 76-3020, 1977). In order to establish an impossibility defense, an employer must prove that (1) compliance with the standard was functionally impossible or would have precluded performance of necessary work and (2) alternative means of employee protection were used or unavailable. M.J. Lee Construction Co., supra.

            Compliance officer Draper testified that the number of tripping hazards on the deck of the towboat could have been reduced substantially, by as much as 75 percent, if a combination of the following available abatement methods had been implemented. Hoses and lines could have been suspended above a working surface on cable trees and channeled in raceway troughs. Cross-over plates could have been placed over individual or groups of cables. Indeed, a plate was placed over the lines at the access stairway of the boat after the inspection. A grid manifold system consisting of one large power source feeding several temporary manifolds placed about the working surface would have permitted employees to use short, neatly arranged hoses and lines because of easy access to the temporary power outlets rather than long (up to two-thirds of the length of the boat) and tangled hoses and lines observed on the boat. Finally, the hoses and lines could have been pushed against the side of the deck house. Draper testified that he had seen various combinations of these abatement methods used on towboats at the same stage of construction as Dravo’s.[19]

            Dravo’s interpretation of the impossibility defense is best characterized as ‘all or nothing,’ i.e., the defense is established if the hazards that existed could not have been eliminated completely. For example, Dravo’s boatyard superintendent testified that cable trees would not have eliminated hoses and lines from the deck because part of each still would come down to the deck when in use, and that the number of cross-over plates necessary to cover all hoses and lines would be so great as to cover the entire deck, making it uneven and creating tripping hazards.[20] Dravo’s general hull structural superintendent testified that use of a manifold grid system might reduce the length of the hoses and lines, but would not eliminate them from the deck, and that a linesman would reduce the tripping hazards but only at an impractical cost. Dravo’s interpretation of the impossibility defense, and the evidence relied upon to prove that the defense as interpretated by Dravo has been established, is inconsistent with Commission precedent cited above. Moreover, at no point does Dravo or its witnesses consider the efficacy of combining abatement methods as suggested by Draper. We therefore agree with the judge’s finding that use of a combination of abatement methods would have improved the conditions on Dravo’s boat substantially.[21]

            Judge Duvall concluded that Dravo’s failure to comply with the housekeeping standard is a repeat violation. He relied on the Third Circuit’s position in Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976), that the test of whether a violation is repeated is whether the employer ‘flaunted’ the Act. Dravo argues that the judge used the proper test, but applied it improperly. There is no need to review the judge’s application of a flaunting test, however, because the Commission adopted a different test subsequent to the judge’s decision.[22]

            The Commission held in Potlatch Corporation, 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1063, 1979 CCH OSHD ¶23,294 at p. 28,171 (No. 16183, 1979), that,

[a] violation is repeated under section 17(a) of the Act if, at the time of the alleged violation, there was a Commission final order against the same employer for a substantially similar violation.

 

            Chairman Cleary and Commissioner Barnako do not agree on the proof necessary for a prima facie showing that a prior and present violation of the same standard are substantially similar.[23] The Chairman requires the Secretary to prove only that the prior and present violations involve the same standard. An employer can then rebut this showing with evidence that the hazards and conditions involved in the prior violation were significantly different from those in the present violation. Commissioner Barnako does not presume that a violation of the same standard fulfills the substantial similarity requirement and shifts the burden to the employer to prove otherwise. Instead he looks to whether the second violation is of such a nature that the employer, as a result of the notice provided by the first citation, should have taken steps to eliminate from its workplace the condition allegedly constituting a repeated violation. Where such notice is not apparent from the face of the first citation, Commissioner Barnako requires the Secretary to prove substantial similarity by other means. In addition, once substantial similarity is established, Commissioner Barnako permits the employer to defend against a repeated charge by proving that it took reasonable, good faith steps after entry of a prior final order to prevent the recurrence of a substantially similar violation. See generally, Stearns-Roger Inc., 79 OSAHRC ——, 7 BNA OSHC ——, 1979 CCH OSHD ¶24,008 (No. 76-2326, October 31, 1979) (concurring opinion).

            The parties stipulated that three citations alleging failures to comply with the housekeeping standard became final orders of the Commission before issuance of the citation in this case. The prior citations had become final orders under section 10(a) of the Act because they were not contested by Dravo. There is no further evidence about the prior violations. Chairman Cleary would hold that the final orders alone establish a prima facie showing of a repeat violation. In addition, he would hold that it is obvious that the prior violations of the same housekeeping standard involved similar hazards and that there are no possible dissimilarities of circumstances that Dravo could prove that would rebut the Secretary’s prima facie case. Accordingly, he would affirm the judge’s conclusion that Dravo’s failure to comply with 29 C.F.R. § 1916.51(a) was a repeated violation of the Act. See Stearns-Roger Inc., supra, 7 BNA OSHC at ——, 1979 CCH OSHD at p. 29,159. See also, Todd Shipyards Corp. v. Secretary of Labor and O.S.H.R.C., 566 F.2d 1327 (9th Cir. 1977).

            Commissioner Barnako would hold that the Secretary has not established a prima facie case because of the absence of evidence of the hazards and conditions that gave rise to the citations that were not contested. He notes that the Commission has previously held that ‘[t]he several requirements of § 1916.51(a) each create independent abatement responsibilities.’ FMC Corp., supra, 7 BNA OSHC at 1421, 1979 CCH OSHD at p. 28,656. Accordingly, it cannot be assumed that the prior citations, which have not been introduced into evidence, placed Dravo on notice that it should take steps to eliminate from its workplace the hazard created by hoses and electric conductors. See Automatic Sprinkler Corp. of America, 79 OSAHRC ——, 7 BNA OSHC 1957, 1979 CCH OSHD ¶ 24,076 (No. 76-5271, 1979) (concurring in part and dissenting in part) (citation for repeated violation vacated where cited standard applies to two distinct situations and first citation did not involve same or substantially similar conditions as repeated allegation). Nor has the Secretary otherwise established that the prior violations were substantially similar to the present violation. Commissioner Barnako would remand the case, however, to permit the Secretary a further opportunity to present evidence on this issue and, if necessary, to permit Dravo to present rebuttal evidence. In addition, he would permit Dravo to raise the affirmative defense that it took reasonable good faith steps after entry of the prior final orders to prevent the recurrence of a substantially similar violation.[24] If the defense were raised, Commissioner Barnako would permit the parties to introduce evidence relevant to the defense.

            Accordingly, the decision and order of the administrative law judge, as modified by his decision, is AFFIRMED.

 

It is so ORDERED.

 

FOR THE COMMISSION:

 

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: JAN 9, 1980

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 16317

DRAVO CORPORATION,

 

                                              Respondent.

 

 

October 12, 1976

APPEARANCES

Marshall H. Harris, Regional Solicitor Regina Kossek, Esquire U.S. Department of Labor, Philadelphia, Pa. For Complainant

 

Thorp, Reed & Armstrong Pittsburgh, Pa. By Carl H. Hellerstedt, Jr., Esq. For Respondent

 

Gatz, Cohen, Segal & Koener Pittsburgh, Pa. By Christopher Lepore, Esq. For Respondent’s Affected Employees

 

DECISION AND ORDER

            This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) contesting an alleged serious violation and an alleged repeated violation contained in two citations, and the proposed penalties pertinent thereto, issued by complainant to respondent, a river craft manufacturer, under section 9(a) of the Act.

            Specifically, in Citation Number 5, as amended at the hearing in this matter held on April 6, 1976, at Pittsburgh, Pennsylvania, a repeated violation of the standard set forth at 29 CFR 1916.51(a) is alleged in that on hull #6613, located in respondent’s shipbuilding yard at Neville Island, Pennsylvania, hoses and electric conductors were not elevated or placed under the walkway or working surface or covered by adequate crossover plank on November 14, 1975, the date of an OSHA inspection of respondent’s shipyard. The parties stipulated that there had been three previous citations issued to respondent for violations of the same aforestated standard which had become final orders (Tr. 15). A penalty of $270 was proposed for this alleged repeat violation.

            Citation Number 2 alleged a serious violation of the standard set forth at 29 CFR 1916.31(b)(1) in that, at the down river end of barge S.F.1. 41 Boat Fitting Dock, neither general mechanical nor local exhaust ventilation was provided during 4 hours of welding done in a confined space on November 14, 1975. A penalty of $900 was proposed for this alleged serious violation.

            By way of defense, respondent claims that, respecting the alleged housekeeping violation, it was impracticable to raise or cover the hoses and electric conductors cited in Citation Number 5 by reason of the nature of the fabrication process on the towboat then under construction; that the hazard, if any, was minimal, and that if any violation occurred it was not a repeated violation since it did not flaunt the Act.

            As for Citation Number 2, respondent claims (1) that no violation has been proved because of lack of proof of a concentration of fumes in the alleged confined space in excess of the safe (permissible) limits prescribed in the Threshold Limit Values of the American Conference of Governmental Industrial Hygienists (see 29 CFR 1916.5 and 1916.21(b)); (2) that the space in which the cited welding was being performed was an enclosed rather than a confined space within the meaning of the cited standard; and/or (3) that the term ‘confined space’ as used in the cited standard is vague, thus rendering the cited standard unenforceable. Finally, respondent contends that the alleged violation in Citation Number 2 is not serious, and that the proposed penalties for both alleged violations are improper, excessive, arbitrary and capricious.

Findings of Fact

            Based on all the evidence of record, I find the following facts:

            1. At all times material herein respondent was a corporation with its principal place of business located in Pittsburgh, Pennsylvania, where it was engaged in shipbuilding and other activities which entailed shipping finished products to persons and firms in several states (Complaint, Answer).

            2. Citations numbered 2 and 5, issued by complainant to respondent on November 28, 1975, and the Notification of Proposed Penalty dated December 3, 1975, were contested by respondent on December 17, 1975 (Citation Numbers 2 and 5, Notification of Proposed Penalty, Notice of Contest).

            3. On November 14, 1975, George Reed, respondent’s compliance officer, conducted an official OSHA inspection of respondent’s shipyard at Neville Island, Pittsburgh, Pennsylvania (Tr. 30; Citations)

            29 CFR 1916.51(a)

            4. On November 14, 1975, 10 to 15 employees of respondent were working on a towboat (hull number 6613) under construction in respondent’s shipbuilding yard. There were a number of hoses and electric conductors lying in the walkway and across the sole access way at the top of stairs to the deck of the towboat, which hoses and electric conductors were not elevated over or placed under the walkway or covered by any crossover planks (Tr. 30–40, 46–50, 69–71, Exhibits C–1, CR–5).

            5. The 10–15 workers on the towboat at the time, including welders, pipefitters and electricians performing their various tasks of welding, chipping, grinding, cutting and burning, were exposed to the condition of the hoses and conductors set forth in 4, above, and to the tripping hazard created thereby (Tr. 35, 40, 43, 48, 51, 69).

            6. Many if not all of the hoses and conductors on the boat deck were in use on the inspection date by the workers on the towboat at the time. Workers requiring separate hoses or electric conductors pulled them on board by themselves and used several machine sources of energy on the ground near the towboat. Each worker needs 5 to 10 feet of slack in his hose or line in order to perform his work, which typically involves movement to different locations on the towboat as each particular task is completed (Tr. 30, 37, 40–41, 44, 48, 51–54, 62–63, 65, 69, 413, 419–420).

            7. The condition of the hoses and electric conductors crisscrossing the working surface and walkways of towboats and other vessels in the same stage of construction as respondent’s towboat here is inherent in the shipbuilding industry and practically cannot be totally eliminated. But various devices used or available for use by employees in the industry, such as stanchions or cable trees, troughs or raceways, crossover planks or covers, grid manifold systems, and linesmen, can substantially and practicably reduce or improve the condition in many instances (Tr. 50, 406–407, 425, 429, 435–453, 455–469).

            8. Previously, respondent has used stanchions, treadles or crossover planks and line channeling when practicable, i.e., where it has not restricted workers’ movements, interfered with work on the deck surface, or produced more line entanglement (Tr. 409–413).

            9. A crossover plank could have been used to cover the lines in the access walkway on the cited towboat shown in Exhibit C–1 herein and thus have eliminated a tripping hazard without difficulty (Tr. 418–419, 425, 429). The hoses and lines shown in Exhibit C–1 were, subsequent to the inspection, moved to the side of the deck passageway closer to the deck housing without making use of the hoses or lines more difficult (Tr. 49–50, 56–57).

            10. Complainant previously issued to respondent four other citations for alleged violations of the occupational safety and health standard 29 CFR 1916.51(a), three of which have become final orders of the Commission (Stipulation, Tr. 15, 22).

            11. Respondent has approximately 1,000 employees, of whom about 450 work in the Boatyard Department, and its gross income for 1975 was approximately 749 million dollars (Tr. 14–15, 385).

            29 CFR 1916.31(b)(1)

            12. On November 14, 1975, respondent’s employee, Carl Sustrich, spent approximately four (4) hours, with a 15-minute break after the first two (2) hours and 30–35 minutes for lunch at noon, repairing welds 1 to 8 inches long (welding and chipping) with Fleetweld 5P 60–10 welding rods in a non-cargo hold approximately 36 feet by 54 feet by 2–10 feet with overhead bulkheads and a sole access deck hatch about 15 inches by 23 inches and without any general mechanical or local exhaust ventilation in the rake end of a barge (S.F.1. 41) at respondent’s boat-fitting dock on the Ohio River at Neville Island, Pittsburgh, Pennsylvania (Tr. 15, 103, 107–108, 118, 127–128, 147–149, 157–158, 218, 330–333).

            13. At the time of the inspection, the barge S.F.1. 41 was afloat on the navigable waters of the Ohio River within respondent’s boatfitting area (Tr. 105, 118, 144).

            14. The air in the compartment in the rake end of the barge in which respondent’s employee was welding was contaminated by welding fumes to an unmeasured and untested extent; a steady flow of blue smoke issued from the open hatch into the hold at the time of the OSHA inspection and the welder wore a dust filter (white cloth mouthpiece—not an approved respirator) under his welder’s hood while welding in the hold. The hold was smoky, and there was no general mechanical or local exhaust ventilation present or in use, the closest available ventilating equipment being an impractical distance away (Tr. 103, 105, 116, 130–131, 163–166, 386).

            Respondent’s welder used about 50–60 welding rods to repair some 50 welds in the hold, 1 rod lasting for about one minute of arc time, 30–40 percent of total time in the hold being estimated arc time (Tr. 365–378). The contaminants emitted by burning welding rods include oxides of iron, manganese, carbon and carbon monoxide, ozone and nitrogen dioxide and human (Mr. Sustrich here) exposure to these contaminants results in serious hazards, such as the possibility of permanent damage to the nervous system (manganese oxide), discomfort to respiratory system (nitrogen dioxide), collapse and/or death due to oxygen deficiency (carbon monoxide) (Tr. 128–130, 274–275, 284). The cans containing the welding rods had a notice on them advising adequate ventilation when used (Tr. 162).

            15. In determining whether a confined space exists within the meaning of 29 CFR 1916.31(b), safety professionals consider access and degree of enclosure most important; other factors considered include availability of natural ventilation, the nature (toxicity) of foreign objects or substances introduced or work process performed, size, design and construction of the space (Tr. 108–113, 116–117, 212–213).

            16. No employee of respondent entered the space to evaluate, inspect or test the atmosphere before or during the welding performed by Mr. Sustrich in the cited space on the material date (Tr. 384–383). Welder Sustrich’s foreman entered the space sometime prior to welding in order to mark the welds to be repaired (Tr. 365), but there is no evidence of record that the foreman was a competent person within the meaning of 29 CFR 1916.10.

            17. Respondent’s Superintendent of Boatyards, Joseph Paquette, entered the cited space on the material date several hours after the OSHA inspection and had no trouble breathing (Tr. 382–384).

            18. It is respondent’s policy and practice to check the air in spaces of the type here involved before entry of personnel only when there is reason to believe that explosive or high concentration of fumes are present. In the Boatyard Department of which Mr. Paquette was superintendent, three assistant superintendents had authority to ask for an air check, but the foreman on the job (directly supervising welder Sustrich) was under instructions to obtain mechanical ventilation equipment whenever he believed such equipment was necessary (Tr. 385–386). The foreman checked on Mr. Sustrich every 20–25 minutes while he was welding in the space, but never issued him any ventilation equipment or furnished him with a requisition to secure same from the nearest toolroom located in the towboat area some distance away (Tr. 151–152). On the material date, Mr. Sustrich looked on neighboring boats in the area for ventilation equipment, which was normal practice, but did not go to the towboat area (right field) to look for it since that would have consumed about an hour’s time (Tr. 151–152, 159–160, 163).

            19. The interior compartment space of the rake end of the cited tank barge contained a net air volume of about 14,570 cubic feet and was intersected by parallel rows of upright and diagonal L-shaped iron or steel angles or supports (Tr. 331–332, Exhibits R–4, 6, 7, 8).

            20. While the precise amount of breathable air in the cited space is conjectural in the absence of any scientific tests on the material date, safety and health professionals generally agree, based on experience in similar operations, that welding in such a space under the circumstances present here creates a potential oxygen-deficient or contaminated atmosphere which is deemed to be a serious hazard (Tr. 223–257, 274–275, 286–306).

            21. In determining proposed penalties for the alleged standard violations herein, OSHA considered the gravity of the violations, respondent’s good faith, the size of its business, and its history of violations under the Act (Tr. 74–99). Due to an arithmetical miscalculation the proposed penalty for the alleged violation set forth in Citation Number 5, item 1 should be $260 instead of $270 (Tr. 74–81, 89–96, 99–100, 295–305).

Opinion

            Housekeeping Standard

            At the hearing in this matter respondent took exception to the presiding judge’s ruling granting complainant’s motion, filed the day before the hearing, to amend the complaint and citation to provide a clearer, more accurate description of the location of ‘Hull #6613,’ the subject of Citation Number 5 relating to the cited housekeeping standard 29 CFR 1916.51(a). In its post-hearing brief, respondent renews and argues its position on this ruling thus, in effect, seeking reconsideration of the prior ruling. That ruling should be affirmed because respondent’s legal arguments are without merit.

            To recapitulate the pertinent facts, the citation in question was issued on November 28, 1975, alleging respondent’s violation, on November 14, 1975, at its Neville Island, Pennsylvania, place of employment, of the standard 29 CFR 1916,51(a) and the Act in that ‘At the following location hoses and electric conductors had not been elevated over or placed under the walkway or working surface or covered by adequate crossover plank.’ No more specific location was stated in the original citation. In its complaint, issued on January 9, 1976, complainant amended the citation by adding to the violation description: ‘Hull #6613 moored at the fitting dock on the main channel of the Ohio River.’ Thereafter, in its April 5, 1976, motion to amend the complaint and the citation for the second time, complainant corrected the added sentence to read ‘Hull #6613 located in the shipbuilding yard,’ thus clarifying that said hull was on land and not water. Respondent argues that the second amendment came too late and prejudiced respondent for lack of adequate notice and that, if denied, the citation as first amended should be vacated for lack of specificity as required by section 9(a) of the Act.

            Amendments of pleadings subsequent to the complaint, being not covered by the Commission’s Rules, are governed by the applicable Federal Rules of Civil Procedure (29 CFR 2200.2(b)). Federal Rule 15 provides in pertinent part that, after service of responsive pleadings, ‘a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.’ The only change effected by the second amendment was to locate hull #6613 in the shipbuilding yard rather than in the fitting dock on the Ohio River. Where the sought amendment would not mislead or otherwise prejudice the opposing party, leave to amend will be freely given when justice so requires. Lovell Clay Products Company, 10 OSAHRC 237, 238 (1974); J. L. Mabry Grading, Inc., 9 OSAHRC 98, 110–112 (1973). It is the practice of the Commission to allow the complainant to amend the citation when such amendment corrects minor errors in the citation, or when the amendment is made to more fully describe the violation indicated in the citation. Structural Panel Components, 8 OSAHRC 271, 272–273 (1974). Here the amendment simply corrected the location of the stated hull within respondent’s shipyard and in no way changed the cited standard or the subject and description of the violation.

            While the lateness (some four months after issuance of the citation) of this second amendment may be deplorable and unprofessional (see complainant’s explanation, Tr. 12–13), in the absence of any substantial showing of misleading or prejudice, it is not fatal. Respondent could not have been misled as to the subject and substance of the citation since the citation from the outset specified ‘Hull #6613,’ the location of which on the inspection date complainant should have known by reason of the fact that its Boatyard superintendent accompanied the OSHA compliance officer on the walk-around inspection. Alternatively, pre-trial discovery procedures were available to respondent to seek clarification. Furthermore, by its own admission, and commendably so, respondent was prepared with appropriate witnesses at trial to present evidence on the citation as amended and it did so (Tr. 10–11).

            The legal authorities cited by respondent in its brief are inapposite. These cases involve amendments substantially changing the violative issues or standards alleged in the original citation and are therefore distinguishable from the case at bar (See Old Forge Construction Company, Inc., CCH 1975–76 OSHD para. 20,063 (1975); Marquette Cement Manufacturing Company, CCH 1975–76 OSHD para. 20,353 (1976)). The instant case is also distinguishable from Del Monte Corp., CCH 1974–75 OSHD para. 19,751 (OSHRC Docket No. 11865), since the only possible ambiguity of the citation in the present case related to the location of the specified vessel under respondent’s control on which the specified housekeeping violation allegedly occurred. Furthermore, the ‘particularity’ requirement of section 9(a) of the Act (29 U.S.C. 658(a)) is satisfied if the ‘Respondent was appraised of the subject facts so that it could take proper corrective action and/or file a notice of contest or otherwise defend itself in this matter.’ L. E. Myers Company, 16 OSAHRC 686, 687–688 (1975), quoting the Commission in J. L. Mabry Grading, Inc., supra. It is evident that respondent here was so appraised.

            Respecting the alleged repeated housekeeping violation set forth in Citation Number 5 herein, the cited standard, 29 CFR 1916.51(a), reads as follows:

Good housekeeping conditions shall be maintained at all times. Adequate aisles and passageways shall be maintained in all work areas. All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or drydocks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod trips, bolts, nuts, and similar material. Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.

 

            A preponderance of the relevant evidence of record, including unrebutted testimony of compliance officer George Reed, welder Richard Sala, and rigger Claude Willey, establishes that on November 14, 1975, there were a substantial number of hoses and electric conductors, including welding leads, cluttering the top of the stairway access, walkways, and passageways or working areas on the deck of the towboat (hull number 6613) in respondent’s shipbuilding yard. Said hoses and electric conductors were not elevated over or placed under the walkway or working surfaces or covered by any crossover planks. (Finding of Fact 4, supra.) As many as 15 of respondent’s employees working on the towboat at the time of inspection were exposed to the tripping hazard posed by the number, disorder, and location of the cited lines and conductors on the inspection date (Finding of Fact 5, supra). However inherent or necessary in the industry may be the welter of hoses and conductors on the deck of a towboat under construction, there were and are ample additional practical housekeeping measures which respondent could and should have implemented (as it had on previous occasions) to minimize the hazards of the cited condition, based on the substantially unrebutted testimony of employees Richard Sala and Joseph Paquette and safety professional William Draper (Findings of Fact 6 to 9, supra).

            Since the record herein establishes by a preponderance of the evidence that most if not all of the hoses and conductors on the towboat were in use at the time of inspection, respondent’s defense relies on the ‘in use’ exception provided in the cited standard (29 CFR 1916.51(a)). However, read in the context of the standard as a whole and consistent with the remedial purpose of the Act, the ‘in use’ exception may not, in the circumstances of this case, reasonably be construed to operate so absolutely as to free respondent from any and all obligation to minimize the hazard of ‘in use’ hoses, lines and conductors lying on the deck of the towboat under construction here when housekeeping measures to minimize such hazard may be accomplished without substantially restricting or interfering with the use of said hoses, lines and conductors. Mr. Sala testified that, following the inspection, a number of the hoses and lead conductors were ‘neatened up’ to the side of the walkway next to the deck housing without inhibiting their use (Tr. 50, 62); Mr. Reed and Mr. Paquette verified that respondent designed and used stanchions previously to uplift hoses over walkways on boats under construction (Tr. 41–42; 416–418) and could have planked over most of the hoses and conductors at the access area of the ship (Tr. 419).

            Contrary to respondent’s contention (Respondent’s Brief, p. 17), such a ‘degrees of neatness’ construction, so long as it is reasonably compatible with effective use of the hoses and conductors, is more consistent with the purpose of the Act—to assure safe working conditions for all working men and women—than an ‘unequivocal exception’ construction. Respondent’s citation of Underhill Construction Corp., OSHRC Docket No. 2232, 1974–75 OSHD par. 19,328 (1975) (recognizing that some degree of hazard in workplace may be permissible when job could not otherwise be completed) is inapt since in the instant case steps to alleviate or minimize at least some multiple hose and conductors lying on deck passageways could have been taken without substantially interfering with use of the hoses and related equipment or completion of the job. While closer channeling and grouping of hoses and conductors might increase the risk of entanglement and limited mobility, such risks have not been shown to be unavoidable or even probable on this record; indeed there is credible expert testimony by Mr. Draper that through appropriate planning and use of techniques these risks are substantially avoidable (Tr. 414–420, 435–453).

            To give operative effect to the cited housekeeping standard as a whole, we are bound to construe the ‘in use’ exception provision in context with the other provisions of the standard, including the general unqualified requirements that ‘Good housekeeping conditions shall be maintained at all times’ and that ‘Adequate aisles and passageways shall be maintained in all work areas’ (emphasis added). To carve out an absolute ‘in use’ exception without reference to the circumstances in each case would unreasonably nullify the effect and defeat the intent of the quoted provisions and actually preclude the kind of practical consideration and balancing which both parties here seek and which sound legal construction requires.

            Respondent’s further argument, that the cited violation of the housekeeping standard does not constitute a ‘repeat’ violation within the meaning and intent of the Act, is more troublesome. Complainant bases this citation principally on the stipulation of three previous citations alleging violations of the same standard which became final orders of the Commission (Complainant’s Brief, pp. 14–15; Tr. 15). Complainant’s position is in accord with the Commission’s decision in Bethlehem Steel Corporation, 20 OSAHRC 227 (Docket No. 8392, 1975), wherein the Commission found ‘no language in the Act or its legislative history indicating that a second violation must result from any particular state of the employer’s mind in order to be a repeated violation within the meaning of section 17(a)’ (29 U.S.C. 666(a)).[25] However, on appeal, this decision was modified by the Third Circuit Court of Appeals. Bethlehem Steel Corporation v. Occupational Safety and Health Review Commission and Secretary of Labor, No. 75–2301, —— F.2d —— (3rd Cir., 1976).

            In the latter decision, involving the identically-worded housekeeping standard for Ship Repairing (29 CFR 1915.51(a)), the Court held that ‘sec. 666(a) is directed to particularly flagrant conduct, and therefore the objective conduct which ‘repeatedly’ encompasses must be similar to that which would raise an inference of willfulness.’ In developing a workable definition of ‘repeatedly’ the Court favorably quoted the Commission’s decision in General Electric Company, 17 OSAHRC 49, 65–66 (No. 2739, 1975) (on appeal, No. 75–4116, 2d Cir. C.A.):

‘As a starting point, it should be observed that the size of a penalty that can be imposed for a ‘repeated’ violation is ten times that for a singular ‘serious’ violation. Hence, it is obvious that Congress intended to deal with a more flagrant type of conduct than just a single serious violation. Cf. Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3rd Cir. 1974), which discusses ‘willful’ violations as being the most severe in the hierarchy of civil penalties. The term ‘repeated’ is therefore read to mean happening more than once in a manner which flaunts the requirements of the Act. With a test of whether the requirements of the Act are being flaunted it cannot be said abstractly just how many places of employment or conditions of employment should be considered. Each case must be decided upon its own merits and turn upon the nature and extent of the violations involved.’

 

            The Court further stated that ‘the mere occurrence of a violation of a standard or regulation more than twice does not constitute that flaunting necessary to be found before a penalty can be assessed under sec. 666(a).’ In determining what acts constitute flaunting of the Act’s requirements, we are to be guided by the Court’s statements in Irey because a broad interpretation of ‘repeatedly’ would ‘disrupt the gradations of penalties and violations so carefully provided in the Act’ just as much as a broad interpretation of ‘willfully.’ Bethlehem Steel Corp. v. Occupational Safety and Health Review Commission and Secretary of Labor, supra. Thus, the flaunting required for a repeated violation should contain ‘an element of obstinate refusal to comply’: ‘defiance,’ in effect, ‘or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting of the Act.’ Among the factors specified by the Court that the Commission should consider when determining whether a course of conduct is flaunting the requirement of the Act are the number, proximity in time, nature and extent of violations, their factual and legal relatedness, the degree of care of the employer in his efforts to prevent violations of the type involved, and the nature of the duties, standards, or regulations violated. In the Court’s view ‘repeatedly’ is an objective test. While the Commission has considerable discretion in determining whether conduct comes within sec. 666(a), the acts themselves must flaunt the requirements of the statute and the Commission need not determine whether the acts were performed with intent to flaunt the requirement of the statute. Bethlehem Steel Corp. v. Occupational Safety and Health Review Commission and Secretary of Labor, supra at Fn. 12(a).

            Here the alleged housekeeping violation constituted respondent’s fifth citation under the same standard (three of these were affirmed as final orders, one under Commission review) since the effective date of the Act (respondent alleges two of the three past violations occurred in 1973, Respondent’s Brief, p. 32) Given the size of respondent’s shipbuilding operations (500 employees approximately, Tr. 385) and the nature of such operations, which requires the simultaneous presence of different types of tradesmen using multiple lines on a shifting basis over a substantial period of time in the construction of each towboat-type vessel, the number and proximity of respondent’s prior violations of the housekeeping standard hardly connotes flaunting within the meaning of the Act. See National Steel and Shipbuilding Co., OSAHRC Docket Nos. 11769 and 11011, CCH 1975–76, par. 19,762 (under review) (5,000 employees operating on a three-shift basis).

            On the other hand, even taking into account that the lines on deck problem are inherent in the industry and cannot be totally eliminated, the fact that the record evidence here shows no effort by respondent to alleviate this problem on the cited towboat prior to the inspection, despite previous citations for the same standard violation, thus exposing approximately 15 employees to the tripping hazard created, does suggest an element of obstinate refusal to comply with the standard. This suggestion is reinforced by testimonial evidence of witnesses for both parties that the towboat conditions cited were normal and daily (Tr. 55, 70, 427–428) and that complainant, while taking some steps to alleviate specific problems of this nature on occasion (Tr. 54–55, 409), had no affirmative, systematic safety program to alleviate this problem generally as a matter of policy, principally because of the company’s position that there is no practical way to eliminate the line-tripping hazard beyond use of the tree-stanchions (Tr. 417–418) and manifolds for gas and oxygen lines at times (Tr. 461–463).

            It is further noted that, although the cited standard requires that adequate aisles and passageways be maintained in all work areas, complainant considers the entire boat a work surface at this stage of construction, with no designated aisles or walkways practical since work is taking place all over the boat (Tr. 424–425). Complainant has undertaken no study of this problem by safety professionals (Tr. 418, 425), but has consulted its safety director and others, including its supervisory officials, like Superintendent of Boatyards Paquette and General Hull Superintendent Seddon. in their view it is impossible to eliminate all lines lying on a boat under construction and impractical to channel or group them close together (as would occur with use of stanchions, troughs, or crossover planks) since, with the degree of mobility required, that would likely increase entanglement of the lines, unduly cover the working surface making it more difficult to walk and work on, and cause an undue time-consumption factor on the part of employees using the lines (Tr. 411–416, 460–461). Similarly, complainant deems the use of grid manifolds and linesmen of limited value because they would not eliminate the problem, although, admittedly they could reduce the problem to some extent (Tr. 425–426, 429, 456–457, 464–465, 469).

            On balance, I find that complainant, after three previous violations, has failed to exercise the degree of care required of a prudent employer in his efforts to prevent violations of the type here involved. There is no evidence that any such efforts were made on the cited towboat on which some 15 tradesmen were working. While the broad, comprehensive requirements of the housekeeping standard make compliance difficult, respondent cannot ignore its compliance responsibilities in this area. In National Steel and Shipbuilding Co., supra, involving a substantially larger shipbuilding operation, the employer took affirmative and reasonable action to improve the housekeeping situation at the worksite, including the assignment of five different creaft foremen with areas of responsibility for housekeeping on each ship under construction, as well as periodic safety inspections of the shipyard and ships under construction giving attention to the immediate correction of existing unsafe housekeeping conditions. In contrast, respondent appears to take the position that since lines cannot be totally eliminated from decks of vessels under construction, little or no sustained corrective or preventive action is required by the standard, particularly if such action entails essentially nonproductive cost in this very competitive industry (Tr. 418, 425–429, 455–456, 459–460, 463–469). Such an attitude, viewed in the context of the circumstances here, bespeaks an element of obstinate refusal to comply or attempt to comply with the cited standard. Such flaunting of the statute by respondent warrants applicability of 29 CFR 666(a) to the case at bar.

            In computing the proposed penalty for the housekeeping standard violation, I would accord respondent more credit for good faith and less for history of past violations than did OSHA (Finding of Fact 20, supra) for some of the reasons discussed above. Accordingly, a penalty of $250 would be appropriate.

Ventilation Standard

            Respecting the cited ventilation standard (29 CFR 1916.31(b)), respondent contends that it is so vague as to violate due process of law (Respondent’s Brief, pp. 33–36).

            Respondent also questions whether the cited compartment in the rake end of the barge concerned is a confined space within the meaning of the standard and as defined in 29 CFR 1916.2(m), including whether or not under this standard in the circumstances of this case complainant has the burden of proving hazardous exposure, i.e., employee exposure to a concentration of smoke and gaseous fumes from burning welding rods in excess of the safe limits permitted by the Threshold Limit Values of the American Conference of Governmental Industrial Hygienists (see 29 CFR 1916.5 and 21(b); Respondent’s Brief, p. 47).

            Respondent contends that the cited rake end compartment of the barge falls within the definition of ‘enclosed space’ (29 CFR 1916.2(n)) rather than confined space and, alternatively, that complainant has not met its burden of proving hazardous exposure.

            Ventilation and Protection in Welding, Cutting and Heating, 29 CFR 1916.31 provides in pertinent part as follows:

(b) Welding, cutting and heating in confined spaces

 

(1) Except as provided in paragraphs (b)(3) and (c)(2) of this section [not applicable here], either general mechanical or local exhaust ventilation meeting the requirements of paragraph (a) of this section shall be provided whenever welding, cutting or heating is performed in a confined space.

 

29 CFR 1917.31(a), Mechanical Ventilation; requirements, provides in pertinent part as follows:

(1) For purposes of this section, mechanical ventilation shall meet the following requirements:

(i) mechanical ventilation shall consist of either general mechanical ventilation systems or local exhaust systems.

 

(ii) General mechanical ventilation shall be of sufficient capacity and so arranged as to produce the number of air changes necessary to maintain welding fumes and smoke within safe limits.

 

(iii) Local exhaust ventilation shall consist of freely movable hoods intended to be placed by the welder or burner as close as practicable to the work. This system shall be of sufficient capacity and so arranged as to remove fumes and smoke at the source and keep the concentration of them in the breathing zone within safe limits.

 

29 CFR 1916.2—Definitions, provides in pertinent part as follows:

(m) The term ‘confined’ space means a compartment of small size and limited access such as a double bottom tank, cofferdam, or other space which by its small size and confined nature can readily create or aggravate a hazardous exposure.

 

(n) The term ‘enclosed space’ means any space other than a confined space, which is enclosed by bulkheads and overhead. It includes cargo holds, tanks, quarters and machinery and boiler spaces.

 

            The vagueness issue raised by respondent is essentially based on the varying approaches or interpretations apparently given by complainant’s witnesses to the term ‘confined space,’ which term, as defined in sec. 1916.2(m), governs the applicability of cited standard sec. 1916.31(b) (see Respondent’s Brief, pp. 33–36). While the illustrative examples in the definition give some guidance as to the type of compartment of ‘small size and limited access’ which constitutes ‘confined space,’ no such guideline examples are given respecting ‘other space which by its small size and confined nature can readily create or aggravate a hazardous exposure.’ Such a lack of definitional precision tends to thrust more responsibility upon the judgment and expertise of enforcement officials and makes it more difficult for employers to know or anticipate the proper metes and bounds of the standard with which they are bound to comply.

            A statute (or regulation) which is so vague that men and women of common intelligence must necessarily guess at its meaning and differ as to its application violates due process. Brennan v. Occupational Safety and Health Review Commission and Santa Fe Trail Transport Company, 505 F.2d 869, 872 (1974); Connally v. General Construction Co., 269 U.S. 385, 391; Boyce Motor Lines, Inc. v. United States, 342 U.S. 337. But a regulation promulgated pursuant to remedial civil legislation must be construed in the light of the conduct to which it is applied. Santa Fe Trail Transport Company Case, supra (hereinafter Santa Fe) at 872, citing Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974); United States v. National Dairy Corp., 372 U.S. 29, 36 (1963). The question is whether the regulation ‘delineates its reach in words of common understanding,’ bearing in mind that a permissible ‘leeway’ is allowed in the field of regulatory statutes governing business activities in narrow categories, Santa Fe, supra, citing Cameron v. Johnson, 390 U.S. 611, 616 (1968); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).

            While the cited standard may not on its face inform a person of common intelligence precisely how small or confined a space must be absolutely or in order to readily create a hazardous exposure to someone present or working in the space, with or without personal protective equipment, and thus require mechanical ventilation, the standard does clearly emphasize the need for ventilation whenever welding is performed in a confined or restricted space. In thus seeking to avoid or prevent on-the-job injuries, the standard certainly furthers the objectives of the Act.

            While the regulation may not be a model of perfect precision, I do not believe its imprecision renders it unenforceably vague. As remedial civil legislation applicable to an entire industry, the regulation was drafted in the light of the myriad conceivable situations which could arise and which would be capable of causing injury or creating potential hazards. See Ryder Truck Lines, Inc. v. Brennan, supra; McLean Trucking Co. v. Occupational Safety and Health Review Commission and Secretary of Labor, 503 F.2d 8 (4th Cir. 1974). The range and variety of sizes, limited access, and structural constriction of compartments in the various types of vessels constructed or repaired in American shipyards, including respondent’s, and the diversity of work conditions affecting the breathable air in such compartments, including the amount of natural ventilation, the specific nature, duration and intensity of the work activity performed therein and the nature and hazard potential of any air contaminants incident to such work activity in the compartment—all these variable factors make the drafting of such a regulation with exactitude most difficult. At the same time, inherent in this standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard or potential hazard of respiratory difficulty or bodily injury due to oxygen insufficiency or air contamination when welding is performed in a relatively confined space, which would warrant mechanical ventilation. So long as the regulation affords a reasonable warning of the proscribed conduct in the light of common understanding and practices, it will pass constitutional muster. Ryder Truck Lines, Inc., supra; United States v. Petrillo, 332 U.S. 1, 4 (1947).

            In any event, the appropriate test in this case is whether a reasonably prudent man familiar with the circumstances of the shipbuilding industry would have protected against the hazard. See Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. Occupational Safety and Health Review Commission, 512 F.2d 1148 (1st Cir. 1975). The unrebutted testimony of expert witness Draper, a senior OSHA maritime compliance officer experienced as a marine safety engineer and as a shipyard competent person, establishes that the need for adequate ventilation when welding is performed in confined spaces is well known throughout the industry (Tr. 215). Indeed, according to this credible expert witness, ‘all professional societies that are involved in welding and safety, including the National Safety Council, recommend that any area that has less than 50,000 cubic feet of space be ventilated prior to work’ (Tr. 216). In the largest American shipyard, it is the policy that no spaces or voids, confined or not confined, are to be entered without previously determining the atmosphere and providing adequate exhaust and mechanical ventilation (Tr. 215). The testimony of the welder in this case, particularly his repeated efforts to secure mechanical ventilation for his work on the cited and other barges, just as he had when working earlier on towboats, tends to confirm that the use of mechanical ventilation by welders in the type of compartment space here involved is an accepted practice and well within the common understanding and experience of those working in the industry (Finding of Fact 17, supra). Industrial hygienist Carey also indicated that it is a matter of general agreement within the safety and health community that similar operations in confined spaces have created oxygen deficiencies (Tr. 287).

            Complainant’s contention that the non-cargo compartment in the rake end of the cited barge falls within the definition of ‘confined space’ is supported by credible testimonial evidence of the relatively small size of the space (approximately 54 x 36 x 2–10 feet; net air volume of about 14,500 cubic feet, allowing for numerous interior structural members), the very limited access to the space (one hatch 15 x 23 inches in size), the generation and accumulation of smoke and fumes from the burning welding rods in the space during the welder’s normal working hours (smoke observed rising from hatch after welder exited, wearing respiratory protection face mask, after about 4 hours’ work broken by a short rest period and 1/2 hour lunch period). Bearing in mind the hazardous contaminants emitted by the burning welding rods (Finding of Fact 14, supra), a preponderance of the evidence of record and the reasonable inferences to be drawn therefrom indicate that such a space, in the circumstances of this case, could readily create or aggravate a hazardous exposure.

            While the space here is considerably larger than the examples of compartments of small size and limited access referred to in the definition of ‘confined space,’ the definition also encompasses ‘other space which by its small size and confined nature can readily create or aggravate a hazardous exposure.’ The examples are deemed to be illustrative and not strict size and access limitations, especially in a potential health hazard situation. Accord, Construction Safety and Health Standards, which have the identical ventilation/welding provision (29 CFR 1926.353(b)(1)), but the same definition for ‘confined’ and ‘enclosed’ spaces (1926.21(b)(6)). By the essentially unrebutted testimony of Mr. Carey, an experienced industrial hygienist with expertise in evaluating confined spaces (Tr. 268–269) and of Mr. Draper, a senior maritime compliance officer, marine safety engineer, and former shipyard competent person with substantial experience in evaluating confined spaces on barges of the type here involved from a safety and health standpoint (Tr. 169–202), complainant has sustained the OSHA determination, based on the recommendation of the inspecting compliance officer, Mr. Reed, that the cited space under the work conditions existing on the inspection date was indeed a confined space within the meaning of the cited standard, as defined (Tr. 108, 214–216, 241, 278). The opinion to the contrary by respondent’s qualified chief marine engineer (Mr. Van Mook) was based primarily on construction engineering and design considerations, untutored by safety and health considerations, to which the cited standard is particularly attuned (Tr. 322–324, 348, 352, 356–357, 361).

            The purpose and thrust of the cited standard as defined is clearly to require employers to take appropriate steps to prevent or avoid exposures of employees to any conditions which could readily become hazardous, such as by reason of oxygen deficiency or concentrations of toxic smoke and fumes beyond safe limits. The preventive intent, based on a competent potential risk-evaluation before entry into a confined space, is implicit in the definition of confined space.

            Since determining a confined space as defined necessarily involves a potential hazard evaluation prior to entry into such space, so does the cited standard itself which, with certain inapplicable exceptions, explicitly requires mechanical ventilation ‘whenever welding . . . is performed in a confined space.’ This preventive or precautionary intent (as distinguished from correction or elimination of existing hazard), expressed in the language of the cited standard, is reinforced by other provisions of Subpart D of the ‘Shipbuilding’ standards and other parts of the maritime standards. See 29 CFR 1916.31(c) and (e), 32, 33 and 34. The precautionary thrust of the cited standard is evident when contrasted with sec. 1916.31(e), which requires suitable mechanical ventilation for general welding not involving conditions or materials described in paragraph (b) only where, because of unusual physical or atmospheric conditions, an unsafe accumulation of contaminants exists. Similarly, in 1916.82 (Respiratory Protection), appropriate respiratory protective equipment is required when employees are exposed even to unknown concentrations in a gaseous contaminated atmosphere not immediately dangerous to life (29 C.F.R. 1916.82(c) and (e)).

            Certainly the keystone of the Act is preventability. Brennan v. Occupational Safety and Health Review Commission and Underhill Construction Corporation, 513 F.2d 1032, 1039 (2d Cir. 1975); National Realty and Construction Corporation v. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1266–67 (D.C. Cir. 1973); Brennan v. Occupational Safety and Health Review Commission and Gerosa, Incorporated, 491, F.2d 1340, 1742 (1974). And the purpose of the Act is ‘to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.’ Sec. 2(b), Occupational Safety and Health Act of 1970.

            The fact that the cited standard incorporates by reference requirements for mechanical ventilation equipment which include a capacity to keep the concentration of welder smoke and fumes in the breathing zone ‘within safe limits,’ does not, in the context of the regulatory scheme previously discussed, require complainant to prove the existence of unsafe air concentrations, i.e., specific threshold limit values in excess of those promulgated by the Department of Labor or the American Conference of Government Industrial Hygienists, in order to show a violation of the cited standard. The Secretary need only show, as was done in this case, the existence of welding in a confined space. Compare: Bethlehem Fabrications, Inc., OSAHRC Docket No. 7176 (1976) (proof of dangerous quantities of emission from spray painting activities required under 29 CFR 1910.94(c)(2) read in conjunction with the definition of spraying area at sec. 1910.107(a)(2)).

            As thus interpreted, the cited standard clearly imposes the risk of noncompliance on employers, including respondent here, who fail to make competent pre-entry determinations as to whether a compartment in which welding is to be performed is a confined space within the meaning of the standard. While the cited standard, unlike some other sections of the welding subpart (see 29 CFR 1916.33(d) and 1916.34(c)), does not specifically require a competent person, as defined in 1916.10, to make pre-entry atmospheric tests or evaluations, such a designated person or one of comparable qualification could well be used by the employer to make any potential hazard determination which may be deemed prudent in order to assure compliance with the standard (Tr. 200–202, 232–233).

            Adequate provision of appropriate mechanical ventilation equipment where confined space determinations are made is required for compliance with the standard. Such precautionary requirements appear to be practical and consistent with normal customs and practices within the industry. All professional societies involved in welding, including the National Safety Council, the American Welding Society and the pertinent ANSI standards, recommend that any welding area with less than 50,000 cubic feet of space be ventilated prior to work (Tr. 216, 239). Indeed, compliance officer Reed had on previous inspections at this employer’s shipyard seen mechanical ventilation being used on these types of barges (Tr. 106) and Mr. Sustrich stated that ventilation equipment had been regularly issued him when he was working on towboats (Tr. 154–155).

            Respondent’s violation of the cited ventilation standard was a serious violation within the meaning of section 17(k) of the Act because if the potential hazard of oxygen deficiency and/or air contamination when welding in an unventilated confined space became actual or actually occurred, there is a substantial probability that death or serious physical harm could result to the welder thus exposed from the condition created or from the practices, methods, operations or processes used. The unrebutted credible testimony of Mr. Carey, complainant’s certified industrial hygienist, and of Mr. Draper, complainant’s expert marine safety engineer, provide ample evidence of the serious types of injury or death which could result from exposure to the violative condition, e.g., oxygen deficiency or toxic contamination of the breathable air generated by the welding process in the confined space (Finding of Fact 13, supra; Tr. 216).

            The fact that the welder here was wearing a cloth mouthpiece and that no air contamination tests or verification were made does not preclude a finding of a serious violation of the cited standard. The personal protective mouthpiece worn was not an approved respirator, as required by sec 1916.82(a) (see 1916.31(b)(3)). As previously noted, complainant’s burden of proof of violation of the standard did not require a showing of the existence of a contamination beyond safe limits in the confined space, but only a showing of the potential hazard of welding in such space. Indeed, unlike the employer in Bethlehem Fabricators, Inc., supra, respondent here did not make any atmospheric tests or measurements, so that the extent of the air contamination in the confined space at the time of inspection remains undetermined.

            Respecting the penalty for the serious ventilation violation, since the appropriate equipment was apparently available but not effectively provided and used in respondent’s barge division and the record showing no previous violation of this standard by respondent, I would give it more credit for good faith and history and assess a penalty of $700.

Conclusions of Law

            1. At all times material herein respondent was an employer with employees engaged in a business affecting commerce within the meaning of sections 3(5) and 5(a) of the Act, and the Commission has jurisdiction of the parties and the subject matter herein under section 10 of the Act.

            2. At all times material herein respondent was subject to the requirements of the Act and the occupational safety and health standards promulgated thereunder pursuant to section 6 of the Act, including the standards cited herein.

            3. Complainant’s motion to amend the complaint and Citation Number 5 herein was properly granted in accordance with the applicable Rules of Procedure and section 9(a) of the Act as interpreted by the Commission under law.

            4. On November 14, 1975, as set forth in the pertinent amended citation herein, respondent violated the occupational safety and health standard set forth at 29 CFR 1916.51(a) under section 5(a)(2) of the Act. Said violation was a repeated violation under section 17(a) of the Act, for which a civil penalty of $250 is assessed in accordance with section 17(j) of the Act.

            5. The occupational safety and health standard 29 CFR 1910.31(b)(1) is not unenforceably vague and constitutes no substantial denial of due process.

            6. On November 14, 1975, as set forth in the pertinent citation herein, respondent violated the occupational safety and health standard set forth at 29 CFR 1916.31(b)(1) under section 5(a)(2) of the Act. Said violation was a serious violation under section 17(b) and (k) of the Act, for which a civil penalty of $700 is assessed in accordance with section 17(j) of the Act.

ORDER

            Based on the foregoing findings of fact, opinion, and conclusions of law and the record herein as a whole, it is ORDERED that serious Citation Number 2 and repeated Citation Number 5, as amended, both issued on November 28, 1975, be and hereby are affirmed, with penalties of $250 and $700, respectively, hereby assessed.

 

DONALD K. DUVALL

Judge, OSHRC

Dated: October 12, 1976

 

Hyattsville, Maryland

 


*Commissioner COTTINE took no part in the consideration or decision of this case.

[1] Former Commissioner Moran directed review of Judge Duvall’s decision without specifying issues. Dravo Corporation subsequently raised issues in a petition for review and presented argument on those issues in a brief. Under these circumstances, the Commission will address the issues raised by Dravo. See Grossman Steel & Aluminum Corp., 78 OSAHRC 85/A2, 6 BNA OSHC 2020 (No. 76-2834, 1978) (not reported in CCH OSHD).

[2] Dravo properly notes that the welder was in the rake for four hours but was not welding during the entire period. Contrary to Dravo’s implicit assertion, the time spent welding is not a significant factor in this case.

[3] The ventilation standard provides, in pertinent part, that

. . . either general mechanical or local exhaust ventilation meeting the requirements of paragraph (a) of this section shall be provided whenever welding, cutting, or heating is performed in a confined space.

[4] Reed had been safety director for the Irvin Works division of the United States Steel Corporation for 15 years before being employed as a compliance officer in 1971 or 1972. He testified that United States Steel had developed procedures for entry into confined spaces twenty years before the hearing in this case.

[5] Draper was the maritime safety engineer for the Newport News Shipbuilding and Drydock Company, the largest shipbuilding and repair facility in the United States, for three years before joining the Department of Labor. In that position, he was responsible for the safety of 2600 welders. For eight years prior to this Draper was a marine safety specialist with the United States Army Reserve. A significant part of his time during the four years prior to the hearing was spent inspecting barges. Judge Duvall qualified Draper as an expert on matters of maritime safety.

[6] Carey was employed by the State of Pennsylvania as an industrial hygienist from 1969 through 1975. He specialized in investigating confined space entry procedures during the last two and one-half years of his tenure with Pennsylvania. (The definition of confined space that Carey used as a Pennsylvania employee is not identical to the definition at 29 C.F.R. § 1916.2(m), but Carey testified that the same factors—size and access—are relevant to both.) He is certified to practice industrial hygiene by the American Board of Industrial Hygienists.

[7] Dravo argues that reliance on the absence of natural ventilation in deciding whether a space is confined is improper because the definition of confined space refers only to access and size. We disagree. The extent to which a space is ventilated naturally has a direct bearing on whether a hazardous exposure can be created, which is the principal test of the standard.

[8] The term ‘enclosed space’ is defined as follows:

. . . any space, other than a confined space, which is enclosed by bulkheads and overhead. It includes cargo holds, tanks, quarters and machinery and boiler spaces.

29 C.F.R. § 1916.2(n).

[9] Van Mook admitted that a cofferdam and a double bottom tank of a large tanker could have a volume greater than the rake on Dravo’s barge. Both of these compartments are used as examples of a confined space in its definition. Thus, even if size were the only factor to be used to decide if a space is confined or enclosed, Van Mook’s testimony would not compel a finding that the rake is an enclosed space. The testimony raises the question of whether Van Mook considered large vessels in forming his opinion that the rake is an enclosed space.

[10] There can be no assurance that two people, even those with expertise, always will agree on the application of a standard that cannot be applied with mathematical precision. Individual views necessarily influence a person’s judgment. Thus, it is not surprising that the Secretary’s witnesses did not agree on the application of the ventilation standard to a few spaces hypothesized by Dravo’s counsel at the hearing. Nor is the disagreement grounds for concluding that the ventilation standard is vague. The relevant inquiry is whether reasonable persons would agree as to the application of the ventilation standard to the circumstances of this case. As noted previously, there was no disagreement among the Secretary’s witnesses as to this issue. Moreover, we conclude infra that reasonable persons would agree as to the need for mechanical ventilation in the rake on Dravo’s barge.

[11] In support of this conclusion, the judge cited Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. Occupational Safety and Health Review Commission, 512 F.2d 1148 (1st Cir. 1975). He also stated the following:

At the same time, inherent in this standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard or potential hazard of respiratory difficulty or bodily injury due to oxygen insufficiency or air contamination when welding is performed in a relatively confined space, which would warrant mechanical ventilation.

[12] Section 17(k) of the Act, 29 U.S.C. § 666(j), defines a serious violation as follows:

(k) For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[13] The relevant portions of subsection 1916.31(a) provide the following:

§ 1916.31 Ventilation and protection in welding, cutting and heating. (a) Mechanical ventilation; requirements.

(1) For purposes of this section, mechanical ventilation shall meet the following requirements:

(i) Mechanical ventilation shall consist of either general mechanical ventilation systems or local exhaust systems.

(ii) General mechanical ventilation shall be of sufficient capacity and so arranged as to produce the number of air changes necessary to maintain welding fumes and smoke within safe limits.

(iii) Local exhaust ventilation shall consist of freely movable hoods intended to be placed by the welder or burner as close as practicable to the work. This system shall be of sufficient capacity and so arranged as to remove fumes and smoke at the source and keep the concentration of them in the breathing zone within safe limits.

[14] Section 17(k) of the Act, 29 U.S.C. § 666(j), defines a serious violation as follows:

(k) For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[15] The inspected workplace involved in this case is located within the physical jurisdiction of the United States Court of Appeals for the Third Circuit. Accordingly, there is a possibility that our decision in this case may be reviewed by that court. Section 11(a) of the Act, 29 U.S.C. § 660(a). We note that the court recently issued its decision in Bethlehem Steel Corp. v. OSHRC and Marshall, Docket No. 78-2337 (3d Cir. Oct. 24, 1979). In that decision, the court reversed and remanded a Commission judge’s decision holding that Bethlehem Steel committed a serious violation of the Act by failing to comply with several standards relating to the providing of adequate ventilation for welders in confined spaces. Among the alleged violations at issue was an asserted failure to comply with 29 C.F.R. § 1916.31(b)(1), the same standard at issue in the instant case.

We conclude that there is no inconsistency between our decision in this case and the court’s decision in Bethlehem Steel Corp. The basis of the court’s order in that case was the failure of the Commission judge to comply with ‘the minimum standards required by the Administrative Procedure Act.’ Slip opinion at p. 8. In particular, the judge’s conclusion that the violation was serious was inadequate because ‘the ALJ nowhere relate[d] the evidentiary basis upon which a serious violation might be found. . . . [and] the ALJ’s findings of fact [did] not specify how and why a substantial probability of death or bodily harm existed from inadequate ventilation . . . on the day of the OSHA inspection.’ Id. Here, we have fully explained ‘how and why’ the conditions at Dravo’s workplace created a substantial probability that death or serious physical harm could result. We have also fully set forth the evidentiary basis for our findings and our conclusion. The instant case and Bethlehem Steel Corp. are therefore clearly distinguishable.

We also note that the court in Bethlehem Steel Corp. did not rule upon the merits of the allegation that the violation was serious and that it endorsed the test for determining whether a violation is serious that we have applied in this case. Slip opinion at p. 7.

[16] The various hoses and lines included electrical lines for lighting, air hoses for pneumatic tools, oxygen and gas lines for burning, and weld lines for welding. Each was attached to a stationary outlet on the ground near the hull of the towboat.

[17] § 1916.51 Housekeeping.

(a) Good housekeeping conditions shall be maintained at all times. Adequate aisles and passageways shall be maintained in all work areas. All staging platforms, ramps, stairways, walk-ways, aisles, and passageways on vessels or drydocks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod tips, bolts, nuts, and similar material. Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.

[18] Dravo claimed in its petition for review that the hoses and lines did not present a hazard. This claim was not argued in Dravo’s brief. Assuming that the contention remains before us, it is without merit. Section 1916.51(a) consists of ‘requirements or prohibitions that by their terms must be observed whenever specified conditions, practices or procedures are encountered.’ Austin Bridge Company, 79 OSAHRC ——, 7 BNA OSHC 1761, 1765-66, 1979 CCH OSHD ¶23, 935 at p. 29,021 (No. 76-93, 1979). The provisions of the standard, ‘are predicated on the existence of a hazard when their terms are not met’ and accordingly ‘the Secretary is not required to prove that noncompliance . . . creates a hazard in order to establish a violation.’ Id. Furthermore, the record supports the judge’s finding that Dravo’s employees were exposed to tripping hazards created by the cited conditions.

[19] The housekeeping standard lists only three methods of preventing hoses and lines from becoming tripping hazards: (1) elevating them over the walkway or working surface, (2) placing them under the walkway or working surface, or (3) covering them by adequate crossover planks. Dravo argues that these are the only methods required by the standard and, therefore, that the other methods suggested by the compliance officer are irrelevant. We disagree. The standard establishes a preference for the listed methods. If these methods cannot eliminate the hazard, an employer must use alternative methods in order to comply with the requirements of the first two sentences of the standard, i.e., maintain good housekeeping generally and clear passageways specifically. See Kelly Construction Services, Inc., 76 OSAHRC 89/F3, 4 BNA OSHC 1491, 1976-77 CCH OSHD ¶20,925 (No. 7102, 1976).

[20] Judge Duvall found that Dravo previously used cable trees and cross-over plates. Dravo excepts to this finding apparently because it can be read to mean that Dravo stopped using these devices. We do not read the finding in this way, and it does not appear that the judge intended or relied on the finding as read by Dravo.

[21] Dravo also asserts that elevating and covering the lines and hoses could have increased the hazards to which employees were exposed. It is difficult to decide whether this assertion is part of Dravo’s impossibility defense or a separate defense. If it is the former, it does not alter the discussion or conclusion reached above. If the separate greater hazard defense is being raised, it must be rejected. In order to establish this defense, an employer must prove that (a) the hazards that would have been created by complying with the relevant standard would have been greater than the hazards that resulted from noncompliance, (b) alternative means of protecting employees were either used or unavailable, and (c) a variance application under section 6(d) of the Act would have been inappropriate. M.J. Lee Construction Co., supra. As noted above, we have affirmed the judge’s finding that Dravo could have substantially reduced the tripping hazards on the boat. Accordingly, Dravo has not established the first and primary element of the greater hazard defense, that compliance would create a greater hazard.

[22] Dravo asserts that the Commission is obligated to follow the Third Circuit’s opinion in the Bethlehem Steel case. Dravo is incorrect. See, e.g., S & H Riggers and Erectors, Inc., 79 OSAHRC ——, 7 BNA OSHC 1260, 1979 CCH OSHD ¶23,480 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979).

[23] The Chairman would also find a violation repeated if, ‘[i]n the absence of evidence that the antecedent and present violations concern noncompliance with the same standard,’ the Secretary establishes through other evidence ‘that the violations are substantially similar in nature.’ Potlatch Corp., supra, 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28, 172.

[24] Commissioner Barnako notes that Dravo has introduced evidence relating to the difficulty of maintaining good housekeeping conditions and efforts it has made to do so. See FMC Corp., supra (Barnako separate opinion). However, the ‘good faith effort’ defense has neither been clearly raised nor fully tried in this case.

[25] Section 17(a) of the Act provides: ‘Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.’