United
States of America
OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION
1924
Building – Room 2R90, 100 Alabama Street SW
Atlanta, Georgia 30303-3104
Secretary of Labor, |
|
Complainant, |
|
v. |
OSHRC Docket No. 15-1121 |
Clean
Fuels of Indiana, Inc., |
|
Respondent. |
|
Appearances:
Uche N. Egemonye,
Esquire, U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia
For the Secretary
Paul J.
Waters, Esquire, Waters Law Group, Clearwater, Florida
For
the Respondent
BEFORE: Administrative
Law Judge Heather A. Joys
DECISION
AND ORDER
This proceeding is before the
Occupational Safety and Health Review Commission pursuant to § 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651- 678 (the
Act). Clean Fuels of Indiana, Inc. (hereinafter
CFI) is a company that specializes in the cleaning of gasoline and gasoline
tanks for gasoline retailers. On December
30 and 31, 2014, Occupational Safety and Health Administration Compliance
Officer (CSHO) Jeffrey Lincoln conducted an inspection of CFI at 1510 South Ridgewood
Avenue in Daytona Beach, Florida, following a fatal accident at that
worksite. An employee of CFI died after
being found unresponsive at the bottom of a well containing a submersible
turbine pump (STP) at a RaceTrac retail store under construction. Based upon CSHO Lincoln’s inspection, the
Secretary of Labor, on May 14, 2015, issued a Citation and Notification of
Penalty with three items (with subparts) to CFI alleging serious violations of 29
C.F.R. § 1910.23(a)(6) for failure to guard an open manhole; various subparts
of § 1910.134 for deficiencies in its respirator program; and various subparts
of § 1910.146 for failure to protect its employees from hazards associated with
confined spaces. The Secretary proposed a
total penalty of $13,600.00 for the Citation.
CFI timely contested the Citation.
All of the violations are at issue.
I held a hearing in this
matter on January 26 and 27, 2016, in Daytona Beach, Florida. The parties filed
post-hearing briefs on April 29, 2016, and reply briefs on May 13, 2016.[1]
For the reasons discussed below, Items 1,
2a, 2b, 2c, 2d, 2e, 2f, 3b, and 3c are affirmed; Items 2g and 3a are vacated; and a total
penalty of $11,600.00 is assessed.
Jurisdiction
At the hearing, the parties stipulated
jurisdiction of this action is conferred upon the Commission pursuant to §
10(c) of the Act. The parties also
stipulated at the hearing that at all times relevant to this action, CFI was an
employer engaged in a business affecting interstate commerce within the meaning
of § 3(5) of the Act (Tr. 8). Based upon
the evidence of record and the stipulation of the parties, I find the
Commission has jurisdiction of this action and CFI is an employer covered under
the Act.
Background
CFI is a small family-owned business
with approximately 30 employees (Tr. 342).
It performs fuel and tank cleaning services for fuel retailers and bulk
storage fuel facilities (Tr. 7). The process used by CFI removes water and
other contaminants from fuel. The
purpose of the service is to ensure that the gasoline meets State consumer
protection standards. A station whose
gasoline does not meet these standards can be prohibited by the State from
selling its gasoline.
The Fuel Cleaning Process
CFI performs two services at retail
sites. Prior to delivery of the initial
supply of fuel at a newly constructed retail store, the tanks and fuel must be
cleaned to remove water and construction debris. At existing stores, fuel can become
contaminated and CFI performs a remediation service. The accident that precipitated the OSHA
inspection in the instant matter arose during the former type of work. The same crew can perform either service and
all equipment necessary for either service is contained in the same truck
operated by the CFI crew.
The procedure for the services performed at new retail stores
was described consistently by CFI employees as a three-day process. When the tanks are placed in the ground, they
are filled with either water or gasoline to act as ballast, ensuring the tanks
remain below grade (Tr. 274, 314). [2] Once the tanks are in place and the concrete tank
pad has been laid over them, the water is removed (Tr. 275). CFI’s first step
in this process is to ensure the tanks are completely dry (Tr. 275, 315). This is done by removing the automatic tank
gauge (which is not operational at the time) and manually checking the water
level with a flashlight and stick (Tr. 315-16). If water remains in the tank, CFI removes it
until the tank is dry. This first step
is generally done the day before the gasoline has been scheduled to be
delivered and, once complete, the tanks are ready to be filled with gasoline
(Tr. 280).
The CFI crew returns to the site on the day gasoline is
scheduled to be delivered. They inspect
the equipment to ensure it is operating properly and bring any problems to the
attention of the construction crew (Tr. 282).
The supplier fills the tanks to approximately 50% capacity (Tr. 281,
320). The crew then cleans the tank of
hard water stains, solids, or any construction debris that may have entered the
tank (Tr. 281-82, 322). This is done by
removing covers to the access ports, including the STP well, and removing the
STP.[3] Next a “stinger” or jet that circulates the
fuel and blasts the residue off the sides of the tank is inserted into the tank
(Tr. 322, 324-26, 332; Exhs. C-11 p. 10; R-18 p. 19). Fuel is pulled from one access port, run
through the filtration system in the CFI truck, and returned through another
(Tr. 325-28). During this process, the
crew are watching the intake and output through “site glasses” on the
filtration equipment (Tr. 326-28; Exh. C-11 p.
4). Once the intake is as clear as the
output, the crew will sample the fuel from the bottom of the tank (Tr.
328). Samples are taken every 5 to 10
minutes until there is no visual particulate (Tr. 328). Once the fuel is visually clear, the crew replaces
the covers and moves on to the next tank (Tr. 331). The process of cleaning one tank of gasoline
takes approximately 2½ hours (Tr. 331).
The crew returns a third day.
Any gasoline in the wrong tank (in a lower grade tank) is transferred to
the correct tank, the tanks are topped off, the gasoline is run through the
filtration process, and its quality is verified (Tr. 283-84, 334). Once these steps are complete, the gasoline
is ready for inspection by the State Department of Agriculture.
This procedure was contrasted in the
record with that performed on existing retail stores with contaminated
fuel. Upon being notified by a store
that there is a problem with its gasoline quality, CFI dispatches one of its
two-man crews to the site. After
assessing the work that needs to be done, CFI provides the retailer with an
estimate of the cost for the services (Tr. 377).[4] Once the scope of the work is determined, CFI
begins the cleaning process in the same manner as performed during the second
stage of the process described above with one exception. Because the fuel is often contaminated with
water, water must be removed with a coalescer (Tr.
289-90). In contrast, because CFI has
removed all the water from the tanks prior to delivery of new fuel, the water coalescer is not necessary at a newly constructed store
(Tr. 290).
Both processes are performed by a
two-man crew consisting of a lead fuel technician and a side technician (Tr.
340). The lead fuel technician receives
notice of the crew’s assignment via email from John Baumgartner, CFI’s
operations manager (Tr. 392). The crew
involved in the accident had performed both types of processes.
The lead fuel technician is the more experienced member of the
crew and directs the work at the site. CFI
requires an individual to go through on-the-job training to become a lead fuel
technician. First, the employee performs
the work of a side technician with another, more experienced, lead fuel technician. After a time, the employee is sent to company
headquarters in Indiana to train with other lead fuel technicians (Tr. 373). Once that training is complete, the employee
is sent out with his own two-man crew to worksites. The lead fuel technician does not have
authority to hire, fire, or discipline the side technician (Tr. 340-41,
393). He does direct the work of the side
technician and is considered the individual with oversight of the worksite,
including addressing any safety issues (Tr. 341, 372-73, 391, 431-32, 490).
The Accident
The worksite at issue
was located at a RaceTrac retail store under construction on South Ridgewood
Avenue in Daytona Beach, Florida. Venture
Construction had contracted to construct the store (Tr. 51). At the time of the accident, construction was
largely complete with only finishes to the interior of the store, some caulking
of the tank pads, and landscaping left to be completed (Tr. 51-52, 54). The gasoline tanks, tank pad, covers, and
gasoline lines were complete (Tr. 52, 54-55 ). The electricity had not been turned on (Tr.
195, 335).
CFI had contracted directly with RaceTrac
to perform the tank preparation and fuel cleaning service six months
prior. CFI was notified via email on December
17, 2014, gasoline was to be delivered to the site on December 29, 2014 (Exh. C-2). Prior to
the delivery day, CFI needed to ensure the tanks were ready to receive fuel.
On December 28, 2014, CFI dispatched
a two-man crew consisting of the Lead Fuel Technician[5] and the Side Technician[6] to the South Ridgewood
Avenue worksite. According to the Lead
Fuel Technician, who testified at the hearing, the crew checked the tanks to
ensure they were ready for fuel delivery and then left the worksite (Tr. 447). They returned early on December 29, 2014, and
waited for the gasoline delivery (Tr. 447).
The gasoline was not delivered until late in the afternoon (Tr. 447-48). At this point in the day, it was growing dark
and the crew used their truck lights to illuminate their work (Tr. 195). Once the gasoline was delivered, the crew
began the process of cleaning the tank.
The first tank cleaned contained regular gasoline (Tr. 459). The crew completed the process on that tank
and had begun the process of moving the hoses and other equipment to the next
tank (Tr. 134,460-62). The Lead Fuel
Technician testified after taking a reading, he went to the cab of the truck to
record the tank level (Tr. 462). He
believed this process took him only a few minutes (Tr. 468). In the meantime, the Side Technician was
moving hoses. The men had left the
covers off the tank openings because they had noticed the odor of gasoline and
wanted to allow the tanks to “air out.” (Tr. 134, 465-66). Neither had donned a respirator. The Lead Fuel Technician testified they opted
to let the tanks vent because putting on respirators would have taken time and
“time is money.” (Tr. 470).
Once he had completed his paperwork,
the Lead Fuel Technician went to continue to assist in setting up for the next
tank. He did not immediately see the
Side Technician and assumed he had gone to the restroom (Tr. 137, 472). He testified he found that unusual because
the crew generally would let one another know if they were leaving the area for
any reason (Tr. 472). At some point, the
Lead Fuel Technician decided to look for the Side Technician (Tr. 473). As he walked past the well containing the
STP, he saw the Side Technician lying in the well with his legs wrapped around
the STP (Tr. 137, 437). The Side
Technician was unresponsive (Tr. 137).
The Lead Fuel Technician entered the STP well and attempted to pull the
Side Technician out, but was unable to do so (Tr. 137, 473). Someone called 911.
The Daytona Beach Fire Department
was dispatched to the worksite and arrived at 6:24 p.m.[7] (Tr. 79). A firefighter wearing fire retardant clothing
and a self-contained breathing apparatus (SCBA), entered the tank and removed
the Side Technician (Tr. 81, 84). The
Side Technician was transported to the hospital where he died. The autopsy
revealed the Side Technician had toxic levels of benzene, toluene, xylene, and
ethylbenzene in his system (Tr. 160; Exh. C-14).
Battalion Chief Robert Turner of the
Daytona Beach Fire Department was at the scene of the rescue and testified at
the hearing. He stated it was dark at
the worksite at the time they arrived (Tr. 80).
The rescue team noticed the odor of gasoline coming from the tank in
which the Side Technician was found (Tr. 84).
Chief Turner used a four-gas meter[8] to test the atmosphere in
the tank (Tr. 96). According to Chief
Turner, the alarm on the meter sounded, indicating a hazardous atmosphere of
less than 19.5 percent oxygen (Tr. 96-97, 112).
After the Side Technician was transported to the hospital, Chief Turner
turned the worksite over to CFI (Tr. 97).
Due to the accident, CFI was not
able to complete the fuel and tank cleaning process (Tr. 337). The store opened with one of the tanks not
having been cleaned or the fuel filtered.
Upon testing by the State, the fuel failed to meet consumer protection
regulatory standards and the store was prohibited from selling it (Tr. 291, 339). The store remained open. CFI came later and completed its work,
allowing the store to resume sale of all the fuel (Tr. 338).
The Inspection
The Daytona Beach Fire Department notified
the OSHA Jacksonville Area Office of the accident the same day (Tr. 118). CSHO Lincoln[9] was assigned to perform
the inspection. He went to the worksite the
following morning (Tr. 118). He observed
the worksite was still under construction, with work being done inside the
store and grading being performed outside (Tr. 118-19, 193). CSHO Lincoln first contacted Norman Higgins,
the construction site superintendent for Venture Construction (Tr. 119). He next contacted Robert Vanover,
CFI’s safety and human resources director via telephone (Tr. 120). He later met with Addam
Vanover[10], a lead fuel technician
with CFI. At the time of the hearing, Addam Vanover held the position
of auditor, responsible for inspecting CFI worksites for compliance with
company policy. CSHO Lincoln interviewed
Addam Vanover, Robert Vanover, and the Lead Fuel Technician involved in the
accident (Tr. 121, 132).
During his inspection, CSHO Lincoln
took photographs and measurements of the worksite (Tr. 122; Exh.
C-11). He measured the depth of the STP well
at 5 feet, 5 inches (Tr. 128; Exh. C-11, p. 8). The outer rim of the hole was 39 inches; the
inner rim was 26 inches (Tr. 128-29; Exh. C-11 p. 9).
CSHO Lincoln did not perform any air sampling in or around the STP well (Tr.
129).
During his interview with Addam Vanover and the Lead Fuel
Technician, CSHO Lincoln asked about CFI’s use of respirators. According to CSHO Lincoln, he was informed CFI
uses half-face tight fitting respirators with 3M brand organic vapor cartridges
(Tr. 138, 164; Exh. C-11, p. 5). The Lead Fuel Technician told CSHO Lincoln
both he and the Side Technician had used the respirators during their fuel
filtration process, but had taken them off just prior to the accident (Tr.
138-39). CSHO Lincoln noted Addam Vanover had facial hair and
asked whether he was able to use a respirator with it (Tr. 140-41). CSHO Lincoln requested CFI provide him with
the company’s safety program, the OSHA 300 logs, and, later, the respiratory
protection program and medical screening forms (Tr. 143). Although CFI provided him with a safety
program and respirator fit test sign-in sheets, CSHO Lincoln testified he did
not receive a respiratory protection program or medical evaluations (Tr. 143). CSHO Lincoln also inquired about the
company’s confined space entry program.
CSHO Lincoln testified he was informed CFI had a policy not to allow
entry into any well deeper than 4 feet.
Based upon his inspection, CSHO
Lincoln recommended citations be issued to CFI.
CSHO Lincoln recommended a citation alleging a violation of §
1910.23(a)(6) be issued for failure to guard the open access port to the STP
well. He recommended citations for
violations of various subparts of § 1910.134 based upon his discussions with Addam Vanover and the Lead Fuel
Technician which led him to conclude CFI did not have an adequate respiratory
protection program. He recommended
citations for violations of various subparts of the standard at § 1910.146 for
failure to protect employees from the hazards associated with confined spaces
based on his conclusion employees were exposed to the toxic vapors in the STP
well during their work duties. CFI
timely contested the citations. CFI
argues the cited general industry standards do not apply to the conditions at
the worksite because CFI was engaged in construction work. To the extent any of the cited standards would
apply to the conditions at the worksite, CFI argues it was not in violation of
those standards.
DISCUSSION
The
Secretary’s Motion to Amend
Post-hearing, the Secretary moved to
amend Item 3c, Citation 1. The amendment
sought would change the date of the alleged violation in the violation
description from December 23, 2014, to December 29, 2014. The Secretary contends the change is intended
to conform to the evidence and does not change the underlying legal theories or
factual allegations. CFI did not oppose
the motion and has not alleged any prejudice should amendment be permitted.
It is well recognized Fed. R. Civ. Pro. 15
governs the amendment of pleadings before the Commission. Miller Brewing Co., 7 BNA
OSHC 2155 (No. 78-3216, 1980); Brown
& Root, Inc., 8 BNA OSHC 1055 (No. 76-3942, 1980). Rule 15(a) directs that leave to amend should
be freely given where justice so requires.
An amendment is not prejudicial where it does not change the cause of
action. The test of whether an amendment
changes a cause of action is whether the “original and amended charges arise
out of the same conduct, transaction, or occurrence.” Id.,
citing, Miller Brewing Co., 7 BNA OSHC 2155. The Secretary’s proposed amendment does not
change the alleged conduct or conditions.
Rather, it seeks only to correct the date to allege conduct on the night
of the accident. Evidence adduced at
trial by both parties addressed conditions and conduct on the night of the
accident or December 29, 2014. CFI never
raised a defense based on an allegation it had no employees on site on December
23, 2014. It did not raise an objection
to the Secretary’s motion to amend nor claim any prejudice. Therefore, I find the amended allegation was
tried by consent. The Secretary’s motion
to amend Item 3c is GRANTED.
Applicability
of the General Industry Standards
A threshold issue to be resolved in this
matter is whether the General Industry Standards at 29 C.F.R. § 1910 apply to
the conditions at the worksite.[11] CFI contends the work being performed by its
employees was construction work as that term is defined in 29 C.F.R. §
1910.12(b) and under Commission precedent because it was integral and necessary
to completion of construction of the RaceTrac.
Therefore, CFI asserts, the Construction Standards at 29 C.F.R. § 1926,
rather than the General Industry Standards, apply. Although conceding the RaceTrac was still
under construction at the time of the accident and inspection, the Secretary
contends the work being performed at the worksite was the same as work
performed at existing retail stores and not integral to construction of the
store. Consequently, the work does not
fall within the definition of construction work. For the following reasons, I determine the
work was not construction work and the General Industry Standards are
applicable to the work performed by employees of CFI.
The definition of construction work
is found at 29 C.F.R. § 1910.12(b) which states, “For purposes of this section,
Construction Work means work for
construction, alteration, and/or repair, including painting and
decorating. See discussion of these
terms in § 1926.13 of this title.” The
Sixth Circuit has held that the “explicit reference to section 1926.13 in
1910.12(b) mandates that the interpretation of the terms ‘construction,
alteration, and repair’ in the Construction Safety Act, Davis-Bacon Act, and
Miller Act should ‘have considerable precedential value’ in defining the term
‘construction work’ in section 1910.12.”
Brock v. Cardinal Indus., 828
F.2d 373, 377 (6th Cir. 1987).
The Secretary’s regulations
implementing the Davis-Bacon Act state:
The terms
“construction” or “repair” mean all types of work done on a particular building
or work at the site thereof…, all work done in the construction or development
of the project, including without limitation, altering, remodeling,
installation (where appropriate) on the site of the work of items fabricated
off-site, painting and decorating, the transporting of materials and supplies
to and from the building or work by the employees of the construction
contractor or construction subcontractor, …or work…by persons employed by the
contractor or subcontractor.
29
C.F.R. § 5.2(j). The term
“subcontractor” is defined in 29 C.F.R. § 1926.13(c) as “a person who agrees to
perform any part of the labor or material requirements of a contract for
construction, alteration or repair.” The
Commission has held the regulations at 29 C.F.R. § 1926 apply to “employers who
are actually engaged in construction work or who are engaged in operations that
are an integral and necessary part of construction work.” Snyder Well
Serv. Inc., 10 BNA OSHC 1371, 1373 (No. 77-1334, 1982).
Based on a review of the totality of the
circumstances, I conclude the work performed by CFI employees was not
construction work. Although performed
while the construction project was underway, the service performed by CFI was
not integral and necessary to completion of the construction work. CFI was not a subcontractor of Venture
Construction, but contracted directly with RaceTrac (Tr. 52). While I am mindful a certain amount of
coordination between Venture Construction and CFI was necessary for CFI to
perform its service, I find nothing in the record to suggest the timing of CFI’s
service would have an impact on the construction process. The testimony of Venture’s site
superintendent is consistent with my finding (Tr. 59-60). CFI’s service could have been performed after
construction of the RaceTrac was complete and, therefore, was not a necessary part
of the construction process. See Snyder
Well Serv., 10 BNA OSHC at 1373. In
fact, the store did open and was operating for some time after the accident,
even though CFI had not completed its work (Tr. 291, 337).
It is undisputed CFI was performing its
services on an active construction site.
Uninstalled equipment remained in boxes and the electricity had not yet
been turned on. Although a nexus to a
construction site is necessary to find activities are construction work, such a
finding is not dispositive. Rather, the
work performed must also be integral to the construction work. To rely strictly on a finding of a nexus to a
construction site would lead to absurd results.
For example, were this the case, a retail establishment’s salesforce
could be found to be performing construction work if that store remained open
during a renovation project. Because CFI’s
activities were not integral to completion of the construction project, its
activities on the worksite were not construction work.
In so finding, I am guided by the
Commission’s holding in Royal Logging
Company, 7 BNA OSHC 1744 (No. 15169, 1979).
In Royal Logging, the
Commission held the employer’s road building activities, which would normally
be considered construction, were not construction because they were “ancillary
to and in aid of its primary nonconstruction
function.” Id. at 1750. The service performed
by CFI was necessary for RaceTrac to sell fuel – a nonconstruction
purpose. It was not necessary to
complete the construction of the store itself.
CFI was not performing construction work because the services it
performed were ancillary to and in aid of a nonconstruction
function.
Nor am I persuaded that the distinction between
the process used at existing sites to clean contaminated fuel and that used on
construction sites renders one service construction and the other not. Commission precedent is clear the factors to
consider are those that relate to the activities’ impact on the completion of
the construction project, not the construction project’s impact on the
activities at issue.
For the foregoing reasons, I find CFI was
not engaged in construction work and the general industry standards cited by
the Secretary apply to the work performed at the worksite.[12]
The Citation
The Secretary has the burden of
establishing the employer violated the cited standard. To prove a violation of an OSHA standard, the
Secretary must show by a preponderance of the evidence that (1) the cited
standard applies; (2) the employer failed to comply with the terms of the cited
standard; (3) employees had access to the violative condition; and (4) the
cited employer either knew or could have known with the exercise of reasonable
diligence of the violative condition. JPC Group, Inc., 22 BNA OSHC 1859, 1861
(No. 05-1907, 2009).
Item 1:
Alleged Serious Violation of 29 C.F.R. § 1910.23(a)(6)
Item 1 alleges:
On or about December
29, 2014, at the pump well manhole, a removable standard railing was not
installed, exposing employees to a 5 feet and 5 inches fall hazard. An employee died after fall[ing] into the unprotected opening.
The standard at 29 C.F.R. § 1910.23(a)(6)
reads:
Every
manhole floor opening shall be guarded by a standard manhole cover which need
not be hinged in place. While the cover is not in place, the manhole opening
shall be constantly attended by someone or shall be protected by removable
standard railings.
Applicability of the Standard
The cited standard
falls under subpart D of the General Industry Standards which covers walking
and working surfaces. Section 1910.23
covers generally “guarding floor and wall openings and holes.” The standard at § 1910.23(a)(6) mandates an
employer protect employees from falls into any “manhole floor opening.” To apply to CFI worksite, the opening to the
STP well opening, depicted in Exhibits C-1 and R-18, must meet the definition
of a “manhole floor opening.”
The definitions applicable to § 1910.23 are
found at § 1910.21. The standard at §
1910.21(a)(2) defines “floor opening” as
An opening
measuring 12 inches or more in its least dimension, in any floor, platform,
pavement, or yard through which persons may fall; such as a hatchway, stair or
ladder opening, pit, or large manhole. Floor openings occupied by elevators, dumb
waiters, conveyors, machinery, or containers are excluded from this subpart.
There is no dispute the
STP well opening met the size requirements of the standard’s definition of a
floor opening. In its Reply, CFI argues
the STP well is occupied by the STP and, therefore, falls within the exception
for those openings occupied by machinery.
CFI’s argument ignores Commission precedent. In National
Rolling Mills Co., 4 BNA OSHC 1719, 1720 (No. 7987, 1976), the Commission
held:
The
clear intent of the exception is to exclude only those openings which are fully
occupied by the listed items so that there is no hazard of falling into the
opening. The inclusion of elevators and dumbwaiters, which totally cover a
floor opening, strongly indicates that the terms ‘machinery’ and ‘conveyors'
should be interpreted as encompassing only those which completely occupy the
opening. Respondent's interpretation of the exception would permit a pit filled
only partially with a machine to be unguarded even though it presents the same
or a greater hazard as a totally empty pit. We will not adopt such an
unreasonable interpretation since it would be inconsistent with the purposes of
the Act.
As evidenced by the Side
Technician’s position in the STP well, the STP does not so occupy the STP well
as to prevent a fall into it. The STP
well opening was a floor opening under the standard.
The standards do not define
“manhole.” The parties both argue the
definition that should be applied is the same dictionary definition of manhole
found in the Merriam-Webster’s Dictionary.
That definition reads, “a hole through which a man may go esp. to gain
access to an underground or enclosed structure.” Merriam
Webster’s New Collegiate Dictionary (1981). The Secretary contends because the opening is
a hole through which a man would go to access the STP well and the STP, it
meets the definition of a manhole. CFI
contends because its employees did not enter the STP well pursuant to its
policy not to enter any well deeper than 4 feet, it is not a hole through which
a man may go. I find CFI’s definition
overly narrow and not consistent with the intent of the standard. Peavey Grain Co., 15 BNA OSHC 1354,
1359, (No. 89–3046, 1991) (narrow definition rejected as incapable of
effectuating standard's evident purpose). Because
the standard does not define the term manhole, it is reasonable to apply a
common understanding or dictionary definition of the term. The definition referenced above is consistent
with common usage of the term manhole[13] and I agree with the
parties it is applicable. The record
establishes the STP well opening meets this definition. The purpose of the opening is to access the
STP well.[14] The opening is large enough for a man to fit
through and the well itself is large enough to hold a man as evidenced by the
accident and subsequent rescue efforts.
Even if CFI employees are prohibited from entering the well, others are
not. Addam Vanover testified if CFI employees cannot remove the STP
with their tools, a maintenance company would be called to do so (Tr.
359-60). In its post-hearing brief, CFI
concedes some work in the STP well would require entry. Respondent’s Post-Hearing Brief at p.
15. That CFI did not use the opening as
a manhole does not mean it is not one.
I am not persuaded because it
prohibited its employees from entering the STP well, CFI lacked fair notice of
the applicability of the standard. Constitutional
due process requires only that the cited employer be given “a fair and
reasonable warning;” it “does not demand that the employer be actually aware
that the regulation is applicable to his conduct or that a hazardous condition
exists.” Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary of
Labor, 674 F.2d 1177, 1185 (7th Cir.1982).
Moreover, “a standard is not impermissibly vague simply because it is
broad in nature.” J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2205, (No.
87–2059, 1993). Instead, “a broad regulation must be interpreted in the light
of the conduct to which it is being applied, and external objective criteria,
including the knowledge and perceptions of a reasonable person, may be used to
give meaning to such a regulation in a particular situation.” Id. at
2205–06. CFI cannot reasonably argue it
could not have recognized the fall hazard created by a 26 inch floor opening of
a 5 feet, 5 inch deep well. Nor do I
find persuasive an argument it lacked warning the standard would be interpreted
so as to give the term “manhole” its common, dictionary definition. CFI was well aware a man could enter the STP
well through the opening. It gave its
employees a specific prohibition against doing so and required its employees to
call someone else when entry was required.
CFI’s argument it lacked fair notice of the applicability of the
standard is without merit.
Failure to Comply with the Terms of
the Standard
The standard allows for the employer
to protect employees from accidental falls into the opening of a manhole by
either a standard manhole cover, temporary guardrails, or by someone
“constantly” attending it. 29 C.F.R. §
1910.23(a)(6). The Lead Fuel Technician
admitted the manhole cover to the STP well remained off and no removable
standard railings had been used (Tr. 82-83, 485; Exh.
C-1 pp. 1-3). In failing to ensure the
STP well manhole was guarded, CFI violated the cited standard.
CFI contends it was in compliance
because the two crew members were constantly attending the manhole. This contention lacks merit. There is no Commission precedent addressing
the meaning of the terms “constantly attended by someone.” The plain meaning of the term “constant” is “invariable”
or “unchanging.” See Merriam Webster’s New Collegiate Dictionary (1981). To attend means “to be present at”
something. Id. Giving the terms their
plain meaning, to constantly attend to something would be to be invariably
present at it. I find an employee who is otherwise engaged in a work activity
cannot be constantly attending an open manhole.[15] Both employees were engaged in their
work activities while the STP well remained uncovered (Tr. 484). At the time of the accident, the Lead Fuel
Technician was completing paperwork while the Side Technician moved hoses (Tr.
134, 211; Exh. C-13).[16] At some point, the Lead
Fuel Technician moved the truck while the Side Technician performed other work
(Tr. 464). During this time, both men
were focused on their tasks and neither was “constantly” attending the STP well
opening.
CFI appears to concede both men were
performing their work. In its
post-hearing brief, CFI states “Given that no one else was present at the
worksite, the mere moving of equipment to a spot a few feet away from the
openings cannot be considered leaving the STP well opening unattended.” Respondent’s Post-Hearing Brief at p. 19.[17] I disagree.
In addressing a similar construction standard, the Commission has held
that the purpose of such requirements is to ensure against “accidental situations when employees are not looking
precisely where they are walking.” Stearns-Rogers, Inc., 7 BNA OSHC 1919,
1922 (No. 76-2326, 1979).[18] The purpose of the standard at §
1910.23(a)(6) is likewise to prevent accidental falls. That the employees are in a position to see
the open manhole while performing their work duties is not the equivalent of
being constantly mindful of their location.
While performing their duties, the crew could not have been constantly aware
of where they were walking; they would be exposed to exactly the hazard the
standard was intended to address.
Because both crew members were performing work duties, the open manhole
to the STP well was not constantly attended.
CFI was in violation of the 29 C.F.R. § 1910.23(a)(6).
Employee
Exposure to a Hazard
The standard presumes a hazard where its
terms are not followed. To establish exposure to the hazard,
“the Secretary ... must show that it is reasonably predictable either by
operational necessity or otherwise (including inadvertence), that employees
have been, are, or will be in the zone of danger.” Delek Ref., Ltd., 25 BNA OSHC 1365, 1376 (No. 08-1386, 2015) (citing Fabricated Metal Prods., Inc., 18
BNA OSHC 1072, 1074 (No. 93-1853, 1997)).
The zone of danger is the “area surrounding the violative condition that
presents the danger to employees.” Boh Bros. Constr. Co.,
LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 2013) (citing RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107,
1995)). The Lead Fuel Technician
and the Side Technician worked throughout the tank pad in proximity to the STP
well opening. While doing so, they were
exposed to the hazard of falling into the STP well while performing their
duties at the worksite. Nothing
prevented either from accidentally falling into the STP well, particularly
while they were attending to separate work duties. The Secretary has established employee
exposure.
Employer
Knowledge of the Violation
The Secretary must establish CFI
had knowledge of the violative condition.
In order to establish employer knowledge of a violative
condition, the Secretary must show that the employer knew, or with the exercise
of reasonable diligence could have known of a hazardous condition. Dun Par Eng’d
Form Co., 12 BNA OSHC 1962, 1965-66 (No. 82-928,
1986). An employer is required to make a reasonable effort to anticipate the
particular hazards to which its employees may be exposed during the course of
their scheduled work. Automatic Sprinkler Corporation of
America, 8 BNA OSHC 1384, 1387 (No 76-5089,
1980). Knowledge of a supervisory
employee may be imputed to an employer. ComTran Group, Inc., v. U.S. Dept. of Labor, 722 F.3d 1304 (11th
Cir. 2013).[19] An
employee who has been delegated authority over another employee, even if only
temporarily, is considered to be a supervisor for
purposes of imputing knowledge to an employer. American
Engineering & Development Corp., 23 BNA OSHC 2093, 2012 (No. 10-0359,
2012); Diamond Installations, Inc.,
21 BNA OSHC 1688 (Nos. 02-2080 & 02-2081, 2006); Tampa Shipyards, Inc., 15 BNA OSHC 1533 (Nos. 86-360 and 86-469,
1992).
It is
undisputed having the STP well manhole open is a necessary part of the fuel
cleaning process and CFI would have been aware of that condition. CFI’s safety and health program addresses
floor openings on walking/working surfaces (Exh. C-9
pp. B20-1 - B20-3). In it, the company
mandates the use of railings or covers for “Every temporary floor opening.” (Exh. C-9 p.
B20-2). The program makes no mention of
the use of an attendant or allowing employees to attend floor openings as an
alternative to guardrails. CFI did not contend it supplied its crews with
temporary guardrails to protect the open manhole openings.[20] The Lead Fuel Technician testified it takes
both crew members to move the hoses (Tr. 460-61). With the exercise of reasonable diligence, CFI
should have been aware the STP well manhole is open during work operations and
that it was not guarded by either temporary guardrails or an employee
constantly attending it.[21]
In
addition to constructive knowledge, the Lead Fuel Technician’s actual knowledge
of the worksite conditions is imputable to CFI.
The Lead Fuel Technician was aware the STP well manhole was open and
neither guarded with temporary guardrails nor constantly attended on the night
of the accident. As previously
discussed, the Lead Fuel Technician was aware the Side Technician was engaged
in work activities on the tank pad while he attended to his paperwork and moved
the truck. The duties of the Lead Fuel Technician
include obtaining the crew’s job assignment, directing the work of the Side
Technician, and providing guidance on safety issues (Tr. 372-73, 392,
431-32). Under Commission precedent, the
Lead Fuel Technician was a supervisor for purposes of imputing knowledge to
CFI. The Lead Fuel Technician’s actual
knowledge of the violative condition is imputed to CFI. See John H. Quinlan d/b/a Quinlan Enterprises v. Secretary of Labor,
812 F.3d 832, 841-42 (11th Cir. 2016) (holding a supervisor’s
knowledge of his own and a subordinate’s simultaneous misconduct is imputed to
the employer).
Classification
of Item 1
The
Secretary alleges Item 1 is a serious violation. A violation is serious when “there is a
substantial probability that death or serious physical harm could result” from
the hazardous condition at issue. 29 U.S.C. § 666(k). The Secretary need not show that there was a
substantial probability that an accident would occur; only that if an accident
did occur, death or serious physical harm would result. The STP well is over 5 feet deep. An employee inadvertently walking into the
STP well would likely sustain serious physical injuries (Tr. 147). He could also be overcome by the oxygen-deficient
atmosphere (Tr. 148). The Secretary has
established a serious violation of 29 C.F.R. § 1910.23(a)(6).
Item
2a: Alleged Violation of 29 C.F.R. §
1910.134(c)(1)
Item 2a alleges:
On
or about December 29, 2014, at the RaceTrac Store number 2367 job site, the
employer had not developed and implemented a written respiratory program for
employees required to wear a tight fitting 3M model 6200 respirator during fuel
tank cleaning operations while overexposed to toxic aromatic vapor components
of gasoline. An employee died from an
overexposure to benzene, ethyl benzene, xylene, acetaldehyde, and toluene. The required elements of items (i) through (ix) of the 29 CFR 1910.134(C)(1) standard were
not in effect, specifically:
1.
The
employer had not established procedures for respirator selection based on
contaminant concentration.
2.
The
employer had not conducted medical evaluations of employees required to wear
respirators.
3.
The
employer had not developed written procedures for the use of respirators in
routine and reasonably foreseeable emergency situations.
4.
The
employer had not developed procedures for cleaning disinfecting, storing,
inspection, repairing, discarding, and otherwise maintaining respirators.
5.
The
employer had not developed procedures for evaluating the effectiveness of the
program.
The
standard at 29 C.F.R. § 1910.134(c)(1) requires:
In any workplace where
respirators are necessary to protect the health of the employee or whenever
respirators are required by the employer, the employer shall establish and
implement a written respiratory protection program with worksite-specific
procedures. The program shall be updated as necessary to reflect those changes
in workplace conditions that affect respirator use. The employer shall include
in the program the following provisions of this section, as applicable:
1910.134(c)(1)(i): Procedures for selecting respirators for use in the workplace;
1910.134(c)(1)(ii):
Medical evaluations of
employees required to use respirators;
1910.134(c)(1)(iii):
Fit testing procedures
for tight-fitting respirators;
1910.134(c)(1)(iv):
Procedures for proper
use of respirators in routine and reasonably foreseeable emergency situations;
1910.134(c)(1)(v):
Procedures and schedules
for cleaning, disinfecting, storing, inspecting, repairing, discarding, and
otherwise maintaining respirators;
1910.134(c)(1)(vi):
Procedures to ensure
adequate air quality, quantity, and flow of breathing air for
atmosphere-supplying respirators;
1910.134(c)(1)(vii):
Training of employees in
the respiratory hazards to which they are potentially exposed during routine
and emergency situations;
1910.134(c)(1)(viii): Training of employees in the proper use of respirators, including
putting on and removing them, any limitations on their use, and their
maintenance; and
1910.134(c)(1)(ix):
Procedures for regularly
evaluating the effectiveness of the program.
Applicability of the Standard
The
standard at 29 C.F.R. § 1910.134(c)(1) requires an employer to establish and
implement a respiratory protection program where either “respirators are
necessary to protect the health of the employees or whenever respirators are
required by the employer…” CFI provided respirators to its fuel technicians
and required their use whenever an employee was performing “a task that could
generate vapors,” such as changing filters on the equipment in the truck, or
any time an employee smelled gasoline vapors (Tr. 346, 349, 378, 385, 410, 421,
478-79). The standard applies and CFI
was required to establish and implement a written respiratory protection
program.
Failure
to Comply with the Terms of the Standard
The
Secretary contends CFI’s respiratory protection program was deficient because
it was not site-specific and did not contain procedures for respirator
selection; medical evaluations; emergency procedures; cleaning procedures; and
did not contain procedures for regular evaluation of the program’s
effectiveness (Tr. 150-57). No
respiratory protection program was provided to CSHO Lincoln upon request during
his inspection (Tr. 143). The record
contains what CFI purports to be its written respiratory protection program at
Exhibit R-14. Robert Vanover
testified he was informed by a consulting company he hired that Exhibit R-14
was obtained from the OSHA website. A
cursory review of the document reveals it to be a PowerPoint presentation
covering the contents of the standard at 29 C.F.R. § 1910.134.
The
standard at 29 C.F.R. § 1910.134 is a performance standard that must be
interpreted in light of what is reasonable.
Based upon my review of the contents of Exhibit R-14, I find no
reasonable employer would conclude it was compliant with the cited
standard. It is lacking the
“worksite-specific procedures and elements required for respirator use”
mandated by 29 C.F.R. § 1910.134(c). See also 63 Fed. Reg. 1152-01, 1187
(January 8, 1998). Much of the content
is inapplicable to the conditions encountered by employees of CFI during their
work activities or to the type of respirators used by employees of CFI. Among other deficiencies, the program does
not contain a provision for medical evaluations and CFI concedes it did not
conduct them. The program does not
provide instruction on cleaning of respirators.
It contains no information regarding selection of respirators. It lacks a schedule or rule for changing of
the respirator cartridges. It does not
contain a provision for evaluating the effectiveness of the program. To the extent Exhibit R-14 is CFI’s written respiratory
protection program, it fails to comply with the requirements of 29 C.F.R. §
1910.134(c)(1). To the extent CFI suggests
because the PowerPoint was obtained from OSHA’s website, it should be found
compliant, I disagree. On the second
page of the document is the following proviso:
This
program is intended to be a resource for instructors of Occupational Safety and
Health and not a substitute for any of the provisions of the Occupational
Safety and Health Act of 1970 or for any standards issued by the United States
Occupational Safety and Health Administration (OSHA).
(Exh. R-14 at p.
2). An employer reading this sentence
could not reasonably conclude the document serves a substitute for a compliant
respiratory protection program.
I
disagree with CFI’s contention the violations alleged in Items 2b-2g are mere
duplications of the allegations in Item 2a.
In the preamble to the standard, the Secretary emphasized the need for
the respiratory protection program to be in writing:
OSHA's experience and that of the
industrial hygiene community have demonstrated that health and safety programs
can best be effectively implemented and evaluated when written. In addition,
because workplaces differ substantially, each program must be tailored to the
specific conditions of the workplace if it is to protect employee health, and
developing a written program is the most efficient way of ensuring that the
program reflects the unique characteristics of each workplace. Developing and
writing down worksite-specific procedures requires employers to design their respiratory
protection programs to address the respiratory hazards in their particular
workplace, and this process requires employers to think about and document all
relevant information pertaining to the hazardous atmospheres that their
employees may encounter under normal operating conditions or during reasonably
foreseeable emergencies that may occur in the workplace. Finally, OSHA's
enforcement data indicate that compliance with the previous standard has not
been optimal, particularly in smaller workplaces, and a written program will
help employers, employees, and compliance officers gauge the adequacy of a
given program.
63
Fed. Reg. 1152-01, 1187-88.[22] Because of the importance of documentation of
the program provisions, CFI’s failure to have a compliant written program is a
violation distinct from the failure to comply with the requirements of the
standards cited in Items 2b – 2g.
Employee
Exposure to a Hazard
A
respiratory protection program is intended to ensure appropriate respirators
are properly used in order to protect employees from inhalation hazards to
which they may be exposed. CFI
management conceded employees were exposed to gasoline vapors. On the night of the accident CFI’s crew and
rescue personnel smelled gasoline vapors.
The Side Technician’s autopsy report indicates he was exposed to fatal
levels of some of the components of gasoline (Exh.
C-14). According to the Material Safety
Data Sheet for gasoline, gasoline poses an inhalation hazard to the “nose,
throat, lungs and respiratory tract.” (Exh. R-15 p. 2). It
can also pose an inhalation hazard to the central nervous system (Exh. R-15 p. 2). The
purpose of a written safety and health program is to ensure effective
protection of employees. The Secretary
has established employees of CFI were exposed to inhalation hazards associated
with gasoline vapors as a result of CFI failure to develop and implement a
respiratory protection program.
Employer
Knowledge of the Violation
There is no dispute CFI was aware its
employees were exposed to gasoline vapors and that there were occasions
employees used respirators for respiratory protection. It is also undisputed CFI management was
aware of the contents of its purported respiratory protection program. Robert Vanover
testified he trained employees using the program contained in Exhibit R-14 (Tr.
398). Addam Vanover testified employees receive annual refresher training
on the program (Tr. 349).
CFI
contends it reasonably relied on the consultant it hired to develop a
respiratory protection program. Such
reliance was not reasonable under the circumstances. The program provided by the consultant was
nothing more than a PowerPoint presentation summarizing the contents of the
standard itself. It contains the proviso
referenced above indicating it was not a substitute for compliance with the
standard. Reasonable diligence requires
an employer, at a minimum, read its safety programs before implementing
them. Even a cursory review of the PowerPoint
presentation would have lead to the conclusion it was
not a substitute for the written program required under 29 C.F.R. §
1910.134(c)(1).[23] The Secretary has established CFI’s knowledge
of the violation.
Item
2b: Alleged Violation of 29 C.F.R.
§1910.134(d)(1)(i)
Item
2b alleges:
On
or about December 29, 2014, the employer had not determined all respiratory
hazards that would affect the selection, performance, and reliability of
respirators worn by employees who were exposed to gasoline vapors and diesel
exhaust gases while filtering fuel tanks.
The standard at 29 C.F.R.
§1910.134(d)(1)(i) reads:
The employer shall select and provide an appropriate respirator
based on the respiratory hazard(s) to which the worker is exposed and workplace
and user factors that affect respirator performance and reliability.
Applicability of the
Standard
Like the requirements of 29 C.F.R. § 1910.134(c), the
requirements of § 1910.134(d)(1) apply whenever an employer provides respirators
to employees and requires their use. 63
Fed. Reg. 1152-01, 1196-97. CFI provided
its employees with respirators and mandated use under certain conditions. The standard applies.
Failure to
Comply with the Terms of the Standard
The Secretary contends CFI failed to make an adequate
assessment of the chemicals to which its employees were exposed before
selecting the respirator for its employees to use (Tr. 159). CFI provided employees with half-face tight
fitting respirators for use at the worksite (Tr. 138). According to Robert Vanover,
he selected the 3M 6003 cartridge filter for use with the respirator based on the
manufacturer’s representation that the cartridge was suitable for use in
“environments where petrochemicals would be present.” (Tr. 411-12). He testified he consulted several
manufacturer’s documents found at Exhibits R-4; R-5; R-6; R-7; R-8; and R-9
(Tr. 412-14). Robert Vanover
had also performed atmospheric testing in the winter of 2013 at a worksite in
Ohio (Tr. 408). On that occasion, he
tested only for hexane (Tr. 408; Exh. C-15). He testified he could not recall specifically
why he only tested for hexane, but believed it was because his review of the
MSDS for gasoline lead him to conclude hexane was “more prevalent and presented
more of a hazard.” (Tr. 409-10). The
Secretary contends this evaluation was inadequate because it did not take into
account all of the components of gasoline or the different concentration levels
that might be found at different worksites at different times. I agree with the Secretary that CFI did not
comply with the requirements of the standard.
As noted in the preamble to § 1910.134(d)(1), the
standard is intended to ensure that employers take into consideration “the
context of the workplace and worker conditions that may reduce or impair the
effectiveness of a respirator otherwise appropriate for the hazard” when
selecting a respirator. 63 Fed. Reg. 1152-01,
1196. The preamble goes on:
There is general agreement that taking working conditions into
account is crucial to proper respirator selection: a respirator that is protective under some
conditions of wear will fail under others, while a respirator that is
appropriate for a given hazard may not be workable in a particular workplace…
Id. Workplace factors such
temperature and humidity may also affect the physiological stress on the wearer
as well as the effectiveness of the filters and cartridges. Id. CFI failure to take into account the
difference in workplace conditions between the tested workplace (a location in
Ohio in the winter) and other workplaces (many of which are in southern states)
violated the mandates of the standard. CFI’s
contention that providing respiratory protection that may be used for exposure
to petrochemicals is sufficient simply ignores the provisions of the standard
requiring the employer take into consideration “workplace and user factors that
affect respirator performance and reliability.”
The Secretary has established CFI failed to comply with the cited
standard.
Nor could CFI have reasonably relied on the information it
points to from the cartridge manufacturer to make its respirator
selection. Robert Vanover
did not explain how he used the documents referenced, he simply testified that
he did. Upon careful review of these
documents, I am unable to find a basis for Robert Vanover’s
reliance on these documents. The manufacturer’s overview of the cartridge from its
product catalog provides only a general description of the types of respiratory
irritants from which it may provide protection (Exh.
R-4). The User Instructions provide even
less information and prohibit use where concentrations of contaminants are unknown
(Exh. R-5 at p. 3).
Exhibit R-6 is an “Article Information Letter” that states “User is
responsible for determining whether 3M product is fit for a particular purpose
and suitable for user’s method of use or application.” The Selection Guide indicates the cartridge
is approved for use to protect against “Certain Organic Vapors, Chlorine,
Hydrogen Chloride, and Sulfur Dioxide or Hydrogen Sulfide or Hydrogen Fluoride
and Particulates.” (Exh.
R-7). It does not specifically indicate
approval for use with petrochemicals or all the chemical components of gasoline
(Compare Exh.
R-15 to R-7). The manufacturer’s
selection guide contained in Exhibit R-8 recommends air sampling and, if
concentrations are unknown, it recommends air-supplied respirators be provided
(Exh. R-8 at pp. 11, 13-14). It also recommends a full-face respirator for
use with exposure to gasoline (Exh. R-8 at p. 57).[24] Exhibit R-9 summarizes the results of a study
that gives no indication it is applicable to CFI’s worksites or work
activities. CFI’s reliance on these
documents to select respirators for use at its worksites does not meet the
requirements of the standard.
Employee
Exposure to a Hazard
The proper selection of respirators ensures employees are
protected from those hazards to which they may be exposed. Failing to take into consideration both the
conditions of the worksite and the respiratory irritants to which employees may
be exposed resulted in CFI employees being exposed to the hazards associated
with inhalation of gasoline vapors previously discussed. In addition, respirators that are not
appropriate to the environment can increase the stress level on employees
wearing those respirators. 63 Fed. Reg. 1152-01,
1196. CFI required its employees to wear
respirators despite having failed to ensure those respirators were appropriate
for the worksite conditions. The Secretary
has established employee exposure.
Employer
Knowledge of the Violation
Robert
Vanover made the selection of respirator for use by CFI
employees. He did so without knowledge
of exposure levels for all components of gasoline or all worksite conditions
that affect exposure to respiratory hazards.
He also made the determination based on documentation that did not
contain sufficient information. CFI had
knowledge of the inadequacy of its respirator selection process.
Item
2c: Alleged Violation of 29 C.F.R. §
1910.134(d)(3)(iii)(B)(2)
Item 2c alleges:
On
or about December 29, 2104, employees wearing tight-fitting respirators with 3M
6003 organic vapor cartridges while exposed to gasoline vapors were not
provided a change schedule by the employer for replacement of the cartridges.
The Standard at 29
C.F.R. § 1910.134(d)(3)(iii)(B)(2) reads:
If there is no ESLI appropriate for conditions in the employer's
workplace, the employer implements a change schedule for canisters and
cartridges that is based on objective information or data that will ensure that
canisters and cartridges are changed before the end of their service life. The
employer shall describe in the respirator program the information and data
relied upon and the basis for the canister and cartridge change schedule and
the basis for reliance on the data.
Applicability of the Standard
The standard applies where air purifying respirators that
do not contain ESLI (end of service life indicator) are used by employees. CFI provided its employees with respirators
and mandated their use. The respirators
used by CFI employees were air purifying respirators and did not have an ESLI (Tr.
375). The standard applies and CFI was
required to implement a change schedule for its respirator cartridges, and to
include the basis for that change schedule in its written respirator program.
Failure
to Comply with the Terms of the Standard
The
standard at § 1910.134(d)(3)(iii)(B) specifies the conditions under which
air-purifying respirators may be used.
Among those conditions is the requirement the employer implement a
change schedule and document the basis for that schedule in its written
respiratory protection program. 63 Fed.
Reg. 1152-01, 1206-07. As explained in
the preamble:
Developing
a filter change schedule involves a number of decisions. The employer must evaluate the hazardous
exposure level, performance capacity of the filters being used, and the
duration of employee use of the respirator, which impact on the service life
calculations. Id.
CFI’s
change schedule consisted of an unwritten rule.
According to Addam and Robert Vanover, employees were instructed to change the cartridges
a minimum of three months “or if it quits working.” (Tr. 353; 375; 420). Employees know the cartridge has quit working
if he or she can “smell gas when you put it on.” (Tr. 354; 420). Robert Vanover could
not recall the “exact” calculation that went into the company’s three month
rule (Tr. 421). He testified it was
based on the time it took to perform those jobs for which the company
anticipated employees would be exposed to gasoline vapors (Tr. 421-22). The Secretary contends CFI policy is
inadequate because it did not include an evaluation of the exposure time or
concentration (Tr. 164). As a result, CFI
would not know the rate at which the cartridges are absorbing the air
contaminants to which its employees may be exposed. I agree with the Secretary, CFI did not comply
with the standard’s requirements.
CFI’s
respiratory protection program contains no instruction on its cartridge change
schedule. Nor does it contain any
information regarding the objective basis for development of its unwritten schedule. The record is devoid of such evidence. CFI conducted no testing of the components of
gasoline vapors to which its employees were exposed and therefore, could not
have known whether its rule was adequate to ensure continued protection. Addam Vanover testified to significant variance from job to job
in the amount of time respirators would be worn (Tr. 347). There was no credible evidence regarding how
employees were to track the three month schedule.[25]
The
only instruction contained in the documents upon which Robert Vanover testified he relied indicate 3M P-series
particulate filters should be disposed of when damaged, soiled, or if breathing
becomes difficult or, when used in environments containing only oil aerosols,
after 40 hours of use or 30 days, whichever is first (Exh.
R-9). To the extent Robert Vanover relied on this document, it does not support his conclusion
that a filter change every three months was appropriate.
Based
upon the totality of the evidence, I find CFI’s policy to change respirator
cartridges every three months was arbitrarily adopted. CFI has not developed a respirator change
schedule in accordance with the requirements of 29 C.F.R. §
1910.134(d)(3)(iii)(B)(2).
Employee
Exposure to a Hazard
A respirator change schedule ensures respirators are not
used beyond their effective life.
Failing to ensure respirators were not used after they had become
ineffective resulted in CFI employees being potentially exposed to the hazards
associated with inhalation of gasoline vapors previously discussed. CFI required its employees to wear
respirators despite having failed to ensure those respirators were appropriate
for the worksite conditions. The
Secretary has established employee exposure.
Employer
Knowledge of the Violation
Robert
Vanover was aware of the contents of CFI respiratory
protection program. He should have been
aware it did not contain documentation of a respirator change schedule or the
objective basis for that schedule. He
could neither recall the calculations upon which the schedule was purportedly
developed, nor did the documentation on which he relied comport with CFI’s unwritten
schedule. CFI had knowledge of the
inadequacy of its respirator change schedule.
Item 2d: Alleged Violation
of 29 C.F.R. § 1910.134(e)(1)
Item 2d alleges: “On or
before December 29, 2014, the employer had not provided medical evaluations to
employees required to wear tight fitting respirators while exposed to gasoline
vapors.”
The standard at 29 C.F.R. § 1910.134(e)(1) requires the
employer to “provide a medical evaluation to determine the employee's ability
to use a respirator, before the employee is fit tested or required to use the
respirator in the workplace.”
Applicability of the Standard
The standard at § 1910.134(e)(1) requires a
medical evaluation prior to fit testing or respirator use. The standard applies regardless of duration
of use. 63 Fed. Reg. 1152-01, 1209. CFI provided employees with respirators, fit
tested those employees for their respirators, and mandated their use. The
standard applies and CFI was required to provide its employees with medical
evaluations.
Failure
to Comply with the Terms of the Standard
CFI
does not dispute it did not provide employees with medical screenings before
providing them with respirators and requiring their use (Tr. 435). When interviewed by CSHO Lincoln, employees
could not recall having had such evaluations before using company supplied
respirators (Tr. 165). CFI violated the
cited standard.
Employee Exposure to a Hazard
The
Lead Fuel Technician testified he used his respirator on December 29th,
prior to the accident, when changing a filter on the filtration system (Tr.
479). He had not undergone a medical
evaluation to determine whether he was able to wear a respirator prior to that
date.
The purpose of the medical evaluation is to
ensure employees do not have a medical condition that could compromise his
ability to tolerate the physiological burden imposed by respirator use (Tr.
165). 63 Fed. Reg. 1152-01, 1208. The record establishes employees were exposed
to hazards associated with this physiological burden.
Employer
Knowledge of the Violation
It
is undisputed CFI was aware it had not provided its employees with medical
evaluations. CFI was aware its employees
had been fit tested, were provided with respirators, and expected employees to
use them. CFI had knowledge of the
violation.
Item 2e: Alleged Violation
of 29 C.F.R. § 1910.134(h)(1)
Item 2e alleges:
On or about December 29, 2014, employees performing fuel tank
filtration wore respirators that had not been properly cleaned following use
with gasoline vapors, allowing migration of contaminants throughout the
respirators.
The standard at 29 C.F.R. §
1910.134(h)(1) states:
The
employer shall provide each respirator user with a respirator that is clean,
sanitary, and in good working order. The employer shall ensure that respirators
are cleaned and disinfected using the procedures in Appendix B-2 of this
section, or procedures recommended by the respirator manufacturer, provided that
such procedures are of equivalent effectiveness.
Applicability of the Standard
The standard requires where
employees use respirators, the employer is required to provide them in a clean,
sanitary and working condition. The
standard applies whenever respirators are provided or used. CFI provided employees with respirators and
mandated their use. The standard
applies.
Failure
to Comply with the Terms of the Standard
The
Secretary contends CFI did not comply with the terms of the standard because
the company did not have written procedures for cleaning respirators, did not
store the respirators in a manner that ensured no cross contamination, and used
only wipes to clean out respirators (Tr. 166-68). During the inspection, CFI did not provide
CSHO Lincoln with any written procedures for cleaning respirators. The Lead Fuel Technician told CSHO Lincoln he
was storing his respirator in a bag on the side of his truck (Tr. 167). CSHO Lincoln found this inadequate because
the company had not instituted any procedures to ensure the respirator was not
subject to contamination during storage (Tr. 167). The Lead Fuel Technician told CSHO Lincoln he was provided wipes
to use for cleaning the respirator (Tr. 168).
The procedures CFI had in place for cleaning of respirators did not comply
with the requirements of the cited standard.
Robert
Vanover testified CFI respirator cleaning procedures
were contained in the company’s respiratory protection program or Exhibit R-14
(Tr. 416-19). According to Robert Vanover, in addition to the procedures contained on page 60
of the Exhibit R-14, employees were verbally “encouraged to clean [their
respirator] as often as they feel comfortable doing so” or at a minimum every
time it is used and before putting in storage (Tr. 420). The Lead Fuel Technician testified it was
“drilled into” him that he was to clean his respirator every two or three times
it was used or if it was visually dirty (Tr. 476).
The
procedures described in Appendix B-2 include washing the respirator with warm
water and a mild cleanser after disassembling it. The section of Exhibit R-14 to which CFI
points contains no specific instructions.
It simply reads: “Use procedures
in Appendix B-2 or the equivalent manufacturer’s instructions.” (Exh. R-14 at p. 60).
It does not specify the frequency with which respirators are to be
cleaned. Rather, it reads: “as often as necessary when issued for
exclusive use.” Id. There was no showing
that the use of wipes is the equivalent of the procedures contained in Appendix
B-2 or recommended by the manufacturer.
The inconsistencies in the testimony of Robert Vanover
and the Lead Fuel Technician belie CFI’s contention it verbally instructed its
employee to clean their respirators consistent with Appendix B-2, the
manufacturer’s instructions, or any other procedure. That is provided employees with only wipes to
clean the respirators establishes CFI’s procedures were inadequate. I find the preponderance of the evidence
establishes CFI did not have procedures to ensure respirators were maintained
in a clean condition consistent with the requirements of 29 C.F.R. §
1910.134(h)(1).[26]
Employee
Exposure to a Hazard
Procedures
for proper cleaning and storage of respirators ensures respirators
remain effective for employee protection.
Allowing the use of respirators that have not been properly cleaned
resulted in CFI’s employees being exposed to the hazards associated with
inhalation of gasoline vapors previously discussed. CFI required its employees to wear
respirators despite having failed to ensure those respirators were
appropriately maintained. The Secretary
has established employee exposure.
Employer
Knowledge of the Violation
Robert
Vanover was aware of the contents of CFI respiratory
protection program. He should have been
aware it did not contain documentation of respirator cleaning procedures. I find CFI’s contention employees were
verbally instructed on proper cleaning procedures not credible. CFI had knowledge of the inadequacy of its
respirator cleaning procedures.
Item 2f: Alleged Violation
of 29 C.F.R. § 1910.134(k)(1)
Item 2f alleges:
On or about December 29, 2014, employees required to wear
respirators when exposed to gasoline vapors while performing fuel tank
filtration had not been trained on proper respirator cleaning, storage, filter
replacement, and all chemical inhalation exposure hazards.
The standard
at 29 C.F.R. § 1910.134(k) requires an employer to provide training to
employees required to wear respirators on, among other things, the
capabilities, proper fit, and maintenance of respirators. The standard at 29 C.F.R. 1910.134(k)(1) specifically
requires the employee be able to demonstrate knowledge of the information
required to be covered in the training.
Applicability of the
Standard
The training
requirements of 29 C.F.R. § 1910.134(k) apply whenever employees are required
to wear respirators. It is undisputed CFI
required its employees to use respirators.
The standard applies.
Failure
to Comply with the Terms of the Standard
The
Secretary contends CFI violated the standard based on statements made by Addam Vanover, the Lead Fuel
Technician, and the documentation provided during the inspection. CSHO Lincoln testified at the time of the
inspection, Addam Vanover
had a growth of facial hair (Tr. 140).
When asked, Addam Vanover
told CSHO Lincoln he believed he could use a respirator with facial hair as
long as he could obtain an adequate seal (Tr. 140-41; 355-56). CSHO Lincoln testified when asked, Addam Vanover did not appear to
understand what a medical screening was (Tr. 141-42). CSHO Lincoln testified the answers given by
the Lead Fuel Technician regarding the cartridge change schedule led him to
conclude he had not been properly instructed on that component of a respiratory
protection program (Tr. 169). Because
the company had not done air sampling for all the components of gasoline, CSHO
Lincoln concluded it could not have provided training to employees on their
potential exposure (Tr. 169).
I
find the evidence establishes CFI did not train its employees consistent with
the requirements of the standard. The
cited standard requires not only that an employer provide training, but that it
ensure that the employees to whom the training is provided can demonstrate
knowledge of the components of that training. The Lead Fuel Technician could not provide a definitive
answer as to when the company required respirators be used. In response to the question “How do you know
when you need to use a respirator?” he
responded, “Common sense mostly.” (Tr.
478-79). He provided incorrect
information regarding the requirements for cleaning his respirator. Addam Vanover’s testimony regarding the use of respirators with
facial hair directly contradicted CFI’s program which reads: “Respirators with tight-fitting facepieces
must not be worn by employees who have facial hair.” (Exh.
R-14 at p. 54; see also Exh. R-8 at p. 4).[27] Neither employee had the demonstrated
understanding of the components of CFI’s respiratory protection program
mandated by the standard. I find it
particularly telling Addam Vanover,
who is responsible for auditing worksites for proper respirator use (Tr. 349),
was unable to state definitively whether company rules regarding respirator use
were in the written program or only verbally explained to employees:
Q: And is that –is that a rule that is
communicated verbally to Clean Fuels’ technicians?
A: It is both verbally –and I believe it’s in
our –it’s in our training manual.
Q: Okay.
And when you say, “it’s in our training,” would that be in Exhibit R-14?
A: It might be. Or it might just have been
something we covered verbally. I’m not
an expert on the safety program.
(Tr.
378).
Robert Vanover
testified he provided training to CFI employees on the contents of the
company’s respiratory protection program.
He testified he goes through the contents of Exhibit R-14 with the
employees and allows them to ask questions (Tr. 418). He initially testified he goes through
“several PowerPoints” at the time individuals are hired (Tr. 394). He did not testify he covers the respiratory
protection program during this initial training. CFI training records indicate the Lead Fuel
Technician and Side Technician were not trained on the contents of the
respiratory protection program until November 14, 2014 – several months after
being hired (Exh. R-17 p. 6). The Lead Fuel Technician was unable to recall
whether there was a written respiratory protection program at the worksite (Tr.
487). When pressed, he admitted he did
not know what a written respiratory protection program was and that he had only
received onsite training on respirator use (Tr. 487-88). The Lead Fuel Technician’s testimony
contradicts Robert Vanover’s testimony about training
of employees on the respiratory protection program.
CFI
admits it did not train employees on its respiratory protection program upon
hire and prior to starting work. In an
attempt to explain away this shortcoming, Robert Vanover
testified neither the Lead Fuel Technician nor the Side Technician would have used
a respirator prior to the November 2014 training and fit testing (Tr.
406). This statement is so implausible
as to lack credibility. The Lead Fuel Technician
testified he had been hired in June of 2014 (Tr. 445). He testified he worked with Addam Vanover as a side technician
before being promoted to a lead fuel technician sometime in August or September
of 2014 (Tr. 446). During that period of
time, he testified he did “everything” including changing filters – a task for
which employees were required to wear respirators (Tr. 444). Addam Vanover testified the Lead Fuel Technician would have
undergone extensive training in Indiana before being promoted (Tr. 373). To suggest the Lead Fuel Technician would not
have worn a respirator during this period is disingenuous. His willingness to tell such an obvious
falsehood draws into question all of Robert Vanover’s
testimony regarding the training he purportedly provided.
The
preponderance of the credible evidence establishes CFI did not adequately train
its employees in respirator fit and maintenance. CFI was in violation of the
standard.
Employee
Exposure to a Hazard
Effective
training is necessary to ensure employees use respirators properly and the
respirators are providing protection.
The Lead Fuel Technician testified he used a respirator on the day of
the accident. His testimony indicated he
did so without the sufficient understanding of its proper use. The evidence establishes employees at the
worksite were exposed to hazardous levels of gasoline vapors. The Secretary has established employee
exposure.
Employer
Knowledge of the Violation
Robert Vanover was responsible
for training employees on the company’s respiratory protection program. He would have been aware whether the training
was provided and of the contents of that training. As previously discussed, I find incredible
his claim he was unaware the Lead Fuel Technician would have worn a respirator
prior to being trained. Given the nature
of the work and the company’s policy regarding when respirators are to be worn,
Robert Vanover should have been aware employees would
be using respirators. The Secretary has
established employer knowledge of the violation.
Item 2g: Alleged Violation
of 29 C.F.R. § 1910.134(l)(1)
Item 2g alleges:
On or about December 29, 2014, the employer had not performed an
evaluation to determine the effectiveness of the 3M 6200 half-face respirators
with organic cartridge filters that employees were required to wear when
exposed to gasoline vapors while performing fuel tank filtration at RaceTrac
store number 2367.
The standard at 29 C.F.R. §
1910.134(l)(1) requires the employer to “conduct evaluations of the workplace
as necessary to ensure that the provisions of the current written program are
being effectively implemented and that it continues to be effective.”
Applicability of the Standard
CFI provided respirators
to its fuel technicians and required their use whenever an employee was
performing “a task that could generate vapors,” such as changing filters on the
equipment in the truck, or any time an employee smelled gasoline vapors (Tr.
346, 349, 378, 385, 410, 421, 478-79). CFI
was required to establish and implement a written respiratory protection
program. The standard applies and CFI
was required to perform an evaluation of that program.
Failure to Comply
with the Terms of the Standard
The
Secretary contends CFI did not comply with the terms of the standard because the
company’s program did not contain procedures for reviewing the effectiveness of
its respirator selection or training (Tr. 170).
CSHO Lincoln testified to comply with the standard the company could
have conducted sampling or used a questionnaire (Tr. 170). As previously noted, CFI’s respiratory
protection program does not contain such procedures and there is no evidence
such procedures were undertaken by the company.
Robert Vanover admitted the company had done
no job hazard analysis at the sited worksite (Tr. 433). He testified the company would become aware
of overexposure of its employees through employee “feedback.” (Tr. 438). Addam Vanover testified he does audits of worksites in his new
position to ensure compliance.
Section
1910.134(l) requires the evaluation contain two components – an evaluation of
the worksite and consultation with employees – both with the purpose of
ensuring the respiratory protection program is being effectively
implemented. The cited standard at §
1910.134(l)(1) addresses the worksite evaluation. It does not prescribe the manner in which
such evaluations are to be conducted and does not require air sampling. In adopting the final rule, the Secretary
determined a more “performance-oriented” standard was appropriate and
eliminated from the proposed rule specific references to annual evaluations and
random worksite audits. 63 Fed. Reg. 1152-01,
1263. Under the final rule, such
evaluations must be conducted “as necessary.”
The standard does not define “as necessary.” The preamble indicates factors to consider
include,
…the nature and extent of workplace
hazards, types of respirators in use, variability of workplace processes and
operations, number of respirator users, and worker experience in the use of
respirators.
63 Fed. Reg. 1152-01, 1263. The Secretary
appears to argue because CFI did not perform a jobsite hazard analysis specific
to each worksite, it failed to comply with the terms of the standard. The Secretary did not explain how the factors
discussed in the preamble necessitate an evaluation of every worksite to which
CFI crews may be dispatched. Because the
cited standard is a performance standard, the Secretary has the burden to prove
not only what a reasonable evaluation of a respiratory protection program would
include, but also when one is necessary under the particular circumstances of
the worksite and work activities. The
Secretary did not present such evidence.
For that reason, I find the Secretary has not met his burden to
establish CFI violated the standard.[28] Item 2g of Citation 1 is vacated.
Classification of Items 2a – 2f
The Secretary contends the violations alleged in Items 2a
through 2f are serious. As previously noted, the MSDS for
gasoline indicates exposure from inhalation can result in irritation to the
respiratory and central nervous system.
Effects to the central nervous system “may include headache, dizziness,
loss of balance and coordination, unconsciousness, coma, respiratory failure,
and death.” (Exh.
R-15 p. 2).
Based on the evidence discussed herein, I find the Secretary has
established a serious injury could result from failure to use, or improper use
of, respiratory protection. The
inadequacies in CFI’s respiratory protection program discussed herein exposed
its employees to a serious hazard. In
addition, failure to ensure employees are physically capable of using a
respirator can pose a serious hazard to employees due to the increased physiological
load associated with respirator use. The
Secretary has met his burden to establish Items 2a through 2f are serious
violations.
Item 3a: Alleged Violation of 29 C.F.R. § 1910.146(c)(1)
Item 3a alleges:
On
or about December 29, 2014, at RaceTrac Store 2367, the employer did not
evaluate the job site to determine that the Submersible Turbo Pump wells were
permit-required confined spaces, exposing employees to a toxic atmosphere.
The standard at 29 C.F.R. § 1910.146(c)(1) requires: “The
employer shall evaluate the workplace to determine if any spaces are
permit-required confined spaces.”
Applicability of the Standard
In
order for the standard to apply, the employer’s workplace must first contain
confined spaces that have the potential to be permit-required. Section 1910.146(b) defines a “confined
space” as one that
(1)
Is
large enough and so configured that an employee can bodily enter and perform
assigned work; and
(2)
Has
limited or restricted means for entry or exit (for example, tanks, vessels,
silos, storage bins, hoppers, vaults, and pits are spaces that may have limited
means of entry): and
(3)
Is
not designed for continuous employee occupancy.
All three listed conditions must be met
for a space to qualify as a confined space.
CSHO Lincoln testified the STP well met the criteria for a confined
space because an employee could enter the well, access in and out of the well
was limited, and employees did not normally work in the well (Tr. 172). There is little dispute the STP well was a confined
space. Employees could enter the well
through the manhole, and, as previously discussed, the well would be entered by
contractors in the event CFI’s tools were inadequate to remove the STP. Entry into and out of the well could only be
made via the manhole which measured 26 inches at its inner opening. Although some work might be performed in the
well, it was intended to house the STP and not designed for continuous
occupancy by employees. The standard
applies and CFI was required to conduct an evaluation to determine whether the
STP well was a permit-required confined space.
Failure to Comply with the Terms of
the Standard
The Secretary contends CFI violated
the standard because the Lead Fuel Technician failed to evaluate the cited
worksite to determine whether the STP well was a permit-required confined
space. CFI contends it complied with the
terms of the standard because it evaluated the STP well, determined it was over
4 feet deep and, as a permit-required confined space, was not to be entered by
employees (Tr. 424-26). The Lead Fuel
Technician measured the STP well before commencing work and determined it was
greater than 4 feet (Tr. 382-83; 448-49).
The Lead Fuel Technician testified in doing so, he determined the
company policy to not enter the well applied (Tr. 449). The Secretary contends because CFI does not
specifically train its employees that doing so is determining whether the space
meets the definition of a permit-required confined space, it has not complied
with the terms of the standard. I
disagree.
The citation specifically addresses
only CFI’s failure to evaluate the cited worksite to determine whether the STP
well was a permit-required confined space.
CSHO Lincoln was told during the inspection about CFI’s policy prohibiting
entry into the STP well if it was over 4 feet deep (Tr. 217-18). That policy is documented in a memorandum to
employees dated April 4, 2013 (Exh. R-13). The Lead Fuel Technician measured the STP
well to determine whether entry was prohibited.
In the preamble to the confined space standard, the Secretary clarified
§ 1910.146(c)(1) “requires only the identification of permit spaces. The
detailed evaluation and classification of hazards found within the space is
addressed by paragraph (d)(2).” 58 Fed.
Reg. R 4462, 4481 (January 14, 1993).
There is no requirement the evaluation be reduced to writing. Given the
minimal requirements of the standard, the Lead Fuel Technician’s measuring of
the STP well to determine whether it was more than 4 feet deep was sufficient
to comply with CFI’s
obligation to evaluate the worksite.[29] The Secretary has failed to meet his burden
to establish CFI violated the cited standard and Item 3a is vacated.
Item 3b: Alleged Violation of 29 C.F.R. §
1910.146(c)(2)
Item 3b alleges:
On
or about December 29, 2014, at RaceTrac store 2367, the employer did not post
danger signs or provide other effective means of alerting employees to the danger
posed by toxic atmosphere in the Submersible Turbine Pump wells, exposing employees
to a toxic atmosphere.
The standard at 29 C.F.R. § 1910.146(c)(2)
reads:
If the workplace
contains permit spaces, the employer shall inform exposed employees, by posting
danger signs or by any other equally effective means, of the existence and
location of and the danger posed by the permit spaces.
NOTE: A sign reading DANGER -- PERMIT-REQUIRED CONFINED SPACE, DO NOT ENTER or
using other similar language would satisfy the requirement for a sign.
Applicability of
the Standard
The cited standard applies where a
worksite contains a permit-required confined space. As previously discussed, the STP well meets
the regulatory definition of a confined space.
For that well to be a “permit space” it must also meet the regulatory
definition of permit-required confined space.
The regulation defines a permit-required confined space as one that has
one or more of the following characteristics:
(1)
Contains
or has a potential to contain a hazardous atmosphere;
(2)
Contains
a material that has the potential for engulfing an entrant;
(3)
Has
an internal configuration such that an entrant could be trapped or asphyxiated
by inwardly converging walls or by a floor which slopes downward and tapers to
a smaller cross-section; or
(4)
Contains
any other recognized serious safety or health hazard.
29
C.F.R. § 1910.146(b). A hazardous
atmosphere is defined as one “that may expose employees to the risk of death,
incapacitation, impairment of ability to self-rescue (that is, escape unaided
from a permit space), injury, or acute illness from” among other causes,
“atmospheric oxygen concentration below 19.5 percent or above 23.5
percent.” 29 C.F.R. § 1910.146(b). Testing performed by the Daytona Beach Fire
Department showed the STP well to contain an atmosphere containing an oxygen
concentration below 19.5 percent (Tr. 96-97; 112). The Secretary has established the STP well
was a permit space and the standard applies.
Failure
to Comply with the Terms of the Standard
There is no dispute CFI did not post
signs warning employees of the hazards of the STP wells (Tr. 178; Exh. C-1). CFI
contends it complied with the standard because it informed employees not to
enter any well in excess of 4 feet deep.[30] In consideration of commentators’ objections
to the proposed standard, the Secretary wrote in the preamble to the standard:
OSHA believes that
this language will require employers to protect their employees but will also
allow them to use the most cost-effective method available. For example,
employers who are already providing sufficient training to protect their
employees effectively need not purchase and maintain unnecessary signs. On the
other hand, employers can choose to post danger signs to protect employees if
they desire. Whatever method is used, the standard requires it to inform
employees exposed to the hazards posed by permit-required confined spaces of
the existence, location, and danger of those spaces. Additionally, the
provision in the final rule makes it clear that the sign is to indicate the
danger involved in permit space entry, not to list all the specific hazards
that might be encountered…
In enforcing this provision, OSHA will
check to ensure that methods other than warning signs are truly effective in
imparting the required information to employees. General training in the OSHA
standard, for example, cannot be expected to adequately inform employees of the
location of permit spaces in the workplace. The final rule places the burdens
of identifying the spaces and of controlling the resultant hazards on the
employer not on the employee.
58 Fed. Reg. 4462, 4483. The alternative to posting of signs contained
in the standard is not met by merely telling employees not to enter permit
spaces. Addam Vanover admitted CFI’s training did not include training on
the definition or hazards of a permit required confined space (Tr.
381-83). CFI violated the requirements
of 29 C.F.R. § 1910.146(c)(2).
Employee
Exposure to a Hazard
Failure
to place employees on notice of the hazards of permit-required confined spaces
exposes them to the hazards associated with entry. As previously noted, entry into the STP well
exposed CFI employees to an oxygen deficient atmosphere. Employees had not been trained on those
hazards, only that they were not to enter the STP well if it was deeper than 4
feet. As previously discussed, that
notice was insufficient. Based on Addam Vanover’s testimony, the
Side Technician would not have been trained on the hazards of permit-required
confined spaces. There is no evidence he was warned about the hazards he might
encounter if he entered the STP well.
The record contains no evidence the Lead Fuel Technician told the Side
Technician the depth of the STP well or warned him not to enter it. The memorandum regarding CFI’s policy on entry
into wells deeper than 4 feet was issued in 2013, a year before the Side
Technician began work for CFI and there is no evidence he was ever provided the
memorandum. The Secretary has established
the Side Technician was exposed to the hazard addressed in the cited standard.
Employer
Knowledge of the Violation
There is no evidence
indicating whether CFI provided signs to its employees to post at any
worksite. The Lead Fuel Technician was
aware no signs were posted. The Lead
Fuel Technician’s actual knowledge of the violation is imputed to CFI.
Contrary to Robert Vanover’s
testimony, Addam Vanover
admitted employees were not trained in permit-required confined space
entry. Both Robert and Addam Vanover were aware of the
contents of employee training. CFI had
knowledge signs were not posted at the STP wells and that employees had not
been informed of the hazards of the STP wells by other effective means within
the meaning of the standard.
Item 3(c): Alleged Violation of 29 C.F.R. §
1910.146(c)(3)
Item 3(c) alleges “On or about
December 29, 2014, at RaceTrac store 2367, the employer had not prevented
employees from entering the permit-required confined spaces of the Submersible
Turbine Pump wells.”
Section 1910.146(c)(3) requires:
If the employer decides that its employees
will not enter permit spaces, the employer shall take effective measures to
prevent its employees from entering the permit spaces and shall comply with
paragraphs (c)(1), (c)(2), (c)(6), and (c)(8) of this section.
Applicability of the Standard
As previously discussed, the STP
well was a permit-required confined space.
CFI does not dispute its policy was to prohibit employees from entry
into the STP well. The standard applies
and CFI was required to take effective measures to prevent employee entry into
the STP well.
Failure to Comply with the Terms of the Standard
The purpose of the cited standard is
to prevent accidental or inadvertent entry into permit-required confined
spaces. In the preamble to the standard,
the Secretary noted,
OSHA also agrees with these comments.
Paragraphs (c)(3) and (d)(1) require the employer to take steps to prevent
unauthorized entry into permit-required confined spaces. These steps are
intended to include measures, such as guarding and barricading, necessary to
protect employees from accidentally entering a permit space. In order to ensure
that employees are adequately protected against falling into or otherwise
inadvertently entering a permit space, the Agency has revised the language in
the proposed definition to include unintentional as well as intentional entry.
58 Fed. Reg. 4462,
4472. The Secretary went on to clarify
that compliance
could include permanently closing the
space and barriers, supplemented by training employees and posting danger
signs. In any event, the steps taken by the employer must be effective in
preventing employee entry into permit spaces.
58 Fed. Reg. 4462, 4483.
While the Side Technician moved the
hoses from one tank to the next and the Lead Fuel Technician completed his
paperwork, the STP well cover remained off and the STP well remained unguarded. The Side Technician was found at the bottom
of the open STP well. Although it will
never be known why the Side Technician entered the STP well, whether his entry
was intentional or accidental is not dispositive. The standard requires measures be taken to
prevent both. Informing employees not to
enter the STP well that is more than 4 feet deep does nothing to prevent
accidental entry. To the extent CFI did
anything, those measures were not effective under the standard.[31]
Employee Exposure to the Hazard
The Side Technician was exposed to
the hazard posed by unauthorized entry into the STP well. The STP well contained an oxygen deficient
atmosphere to which the Side Technician was exposed. The autopsy report also shows the Side
Technician had been exposed to toxic levels of gasoline vapors
(Exh. C-14).
The Secretary has established employee exposure to the hazard.
Employer Knowledge
The Lead Fuel Technician was aware
the STP well remained open while he and the Side Technician continued work at
the site. The Lead Fuel Technician’s
knowledge of the worksite conditions is imputed to CFI. CFI has no rule requiring guarding or
otherwise preventing unauthorized entry into the STP well. The Secretary has established CFI knew, or
with the exercise of reasonable diligence should have known of the violation.
Classification of Items 3b and 3c
The Secretary alleges Items 3b and
3c are serious violations of the confined space standard. As discussed herein, accidental or
inadvertent entry into the STP well exposed employees to the atmospheric
hazards within it. An oxygen deficient
atmosphere can result in an individual losing consciousness to death. As evidenced by the MSDS for gasoline,
inhalation of gasoline vapors can result in serious respiratory irritation,
central nervous system impairment, and ultimately, death. The Secretary has established the violations
of 29 C.F.R. § 1910.146 were serious.
Penalty
Determination
The Commission, in assessing an
appropriate penalty, must give due consideration to the gravity of the
violation and to the size, history and good faith of the employer. See
§ 17(j) of the Act. The Commission is
the final arbiter of penalties. Hern
Iron Works, Inc., 16 BNA OSHC 1619, 1622, (No. 88-1962, 1994), aff’d,
937 F.2d 612 (9th Cir. 1991) (table); see Valdak
Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places
limits for penalty amounts but places no restrictions on the Commission’s
authority to raise or lower penalties within those limits.”), aff’d, 73
F.3d 1466 (8th Cir. 1996). In assessing
a penalty, the Commission gives due consideration to all of the statutory
factors with the gravity of the violation being the most significant. OSH Act § 17(j), 29 U.S.C. § 666(j); Capform Inc., 19 BNA OSHC 1374, 1378 (No.
99-0322, 2001), aff’d, 34 F. App’x 152 (5th
Cir. 2002) (unpublished). “Gravity is a principal factor in a penalty determination
and is based on the number of employees exposed, duration of exposure,
likelihood of injury, and precautions taken against injury.” Siemens Energy and Automation, Inc., 20
BNA OSHC 2196, 2201 (No. 00-1052, 2005).
The Secretary proposed a
penalty of $7,000.00 for Item 1. Both
employees on the worksite were exposed to the hazard of falling into the
unguarded STP wells. The well remains
open for the duration of the tank cleaning process which was approximately 2 ½
hours. Two wells were open while the
Side Technician moved the hoses and the Lead Fuel Technician was otherwise
occupied (Exh. C-13).
During this period, the Side Technician was particularly vulnerable to
an accidental fall into one of the STP wells.
A high gravity-based penalty is warranted. CFI is a small employer. The was no evidence the company has a
significant history of OSHA violations or other accidents. CFI is entitled to a reduction in the
gravity-based penalty. A penalty of $5,000.00
is assessed for Item 1.
The Secretary proposed a total
grouped combined penalty of $5,000.00 for Items 2a – 2g. Item 2g was vacated. My penalty assessment takes into
consideration only Items 2a – 2f. At
various times throughout the workday, employees at CFI’s worksite were exposed
to the hazards associated with inhalation of gasoline vapors. CFI’s poor implementation of its program and
inadequate training made it more likely employees would either not use
respirators when required or use them improperly. A high gravity-based penalty is
warranted. For the reasons discussed
previously, CFI is entitled to a reduction in the gravity-based penalty for its
small size and lack of significant violation history. A penalty of $5,000.00 is assessed.
The Secretary proposed a total
combined penalty of $1,600.00 for Items 3a – 3c. Item 3a was vacated. My penalty assessment takes into
consideration only Items 3b and 3c. Both
the Side Technician and Lead Fuel Technician were exposed throughout the
workday to the open STP well. Although
entry was not necessary to perform their work and the crew members were aware
of the location of the open STP wells, an accidental fall by either crew member
was possible. CFI’s small size and lack
of history merit a reduction in the gravity based penalty. A penalty of $1,600.00 is assessed.
I do not find CFI entitled to
a reduction in any of the penalties for good faith. CFI had a written safety and health program (Exh. C-9), but had failed to implement many of its
provisions at its jobsites. Although
Robert Vanover testified he provided training to
employees on the program, the record makes clear this testimony was not
credible. CFI’s respiratory protection
program is deficient for the reasons discussed herein. The Side Technician and Lead Fuel Technician
were not provided with training on that program nor fit tested for their
respirator until months after starting work and using respirators at jobsites. The Lead Fuel Technician felt he could ignore
the requirement to use respirators when it was too time consuming to do
so. Due to these deficiencies, CFI is
not entitled to a reduction in the penalties for good faith.
Considering all of the statutory factors, it is determined that a penalty of $5,000.00 for Item 1, $5,000.00 for
Items 2a – 2f, and $1,600.00 for Items 3b and 3c, for a total penalty of
$11,600.00 is appropriate.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the
findings of fact and conclusions of law in accordance with Rule 52(a) of the
Federal Rules of Civil Procedure.
ORDER
Based
upon the foregoing decision, it is ORDERED that:
10. Item
3a, Citation 1, alleging a violation of 29 C.F.R. § 1910.146(c)(1), is vacated;
11. Item
3b, Citation 1, alleging a violation of 29 C.F.R. § 1910.146(c)(2), is affirmed
as a serious violation;
12. Item
3c, Citation 1, alleging a violation of 29 C.F.R. § 1910.146(c)(3), is affirmed
as a serious violation; and
13. Items
3b and 3c, Citation 1, are assessed a total combined penalty of $1,600.00.
SO ORDERED.
/s/
Dated:
June 6, 2016 HEATHER
A. JOYS
Administrative Law
Judge
Atlanta, Georgia
[1] In its Answer, CFI raised several
affirmative defenses including isolated or unpreventable employee misconduct
and infeasibility of compliance. It did
not address those defenses in its post-hearing brief. Contrary to the explicit direction of my
Order of February 19, 2016, CFI indicated it was reserving “the right to argue
that defense in a reply brief or otherwise before the Review Commission…” Respondent’s Post-Hearing Brief at p. 35, n.
2. It did not address these affirmative
defenses in its Reply Brief. Therefore,
I am deeming those affirmative defenses not addressed in its briefs, and any
other arguments not addressed in either party’s brief, abandoned. Georgia-Pacific
Corp., 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991).
[2] Tanks set to contain E85 fuel (or
gasoline that is 85% ethanol) are initially filled with gasoline of a lower
grade (or E10 which is 10% ethanol) rather than water because there is no way
to correct the degradation of the E85 fuel if contaminated with water (Tr.
277-78). The E10 fuel is transferred to
another tank and E85 delivered after CFI’s final visit to the worksite (Tr.
278).
[3]
An STP is used to pump the
fuel from the tank where it is stored to the dispenser (Tr. 321).
[4] CFI presented evidence the
contracting and billing process is different for existing stores and new
construction (Tr. 252-58; Exhs. R-24 and R-25). While an existing store is charged a variable
rate based upon the services needed (Tr. 255-56), the services performed at a
newly constructed store are billed on a flat fee basis because the scope of
work is known at the time CFI is hired (Tr. 257). With regard to RaceTrac, CFI deals with
different divisions of that corporation depending on whether it is for an
existing store or new construction (Tr.
257-58, 319).
[5] The Lead Fuel Technician testified
he had been with the company since June 2014 (Tr. 444).
[6] At the time of his death, the Side
Technician had been with the company for less than one year (Tr. 396).
[7] The Daytona Beach Police
Department was also dispatched to the RaceTrac following the rescue attempts
(Tr. 38). Crime Scene Technician Thomas
Youngman was called to the scene and took the photographs that are in the
record at Exhibits C-1 and R-18 (Tr. 37-48).
[8] Chief Turner testified the meter
tests for oxygen, carbon monoxide, sewer gas or methane, and explosives (Tr.
102).
[9] CSHO Lincoln has been with OSHA as
a CSHO for 6 ½ years (Tr. 115). Prior to
that, he served for 20 years as a naval aviator (Tr. 115). He holds a Bachelor’s Degree in mechanical
engineering and a Master’s Degree in aeronautical engineering. He is also a graduate of the Navy’s Aviation
Safety Officer Course (Tr. 117). During
his military service, CSHO Lincoln had experience with use of half-face-piece
respirators and SCBA (Tr. 115-16). He
was also authorized to and performed permit required confined space entry (Tr.
117).
[10] Addam Vanover was at the worksite the night of the accident after
being dispatched there by his father, Greg Vanover
(Tr. 342). Greg Vanover
held the position of vice president with CFI.
The relationship between Addam Vanover and Robert Vanover was
not clarified on the record.
[11] The provisions of 29 C.F.R. §
1910.134 cited in Items 2a – 2g apply to construction work. 29 C.F.R. §§ 1926.103 and 1910.134 (“This
Section applies to ….construction (1926)”). A
determination of whether CFI was engaged in construction or general industry
work is not necessary for finding applicability of those standards.
[12] I note CFI’s safety and health
program at Exhibit C-9 as well as all its training records (Exh.
R-17), reference the General Industry Standards. Any claim CFI lacked notice of the applicability
of those standards lacks merit.
[13] As the Secretary points out, Chief
Turner, a disinterested witness, referred to the STP well opening as a manhole
(Tr. 81, 100-01).
[14] I find unpersuasive CFI’s argument
that the STP well is not a manhole because it does not provide access to any
other area or structure. The STP well is
an underground structure. The STP well’s
opening is a manhole through which a
person gains access to it.
[15] In so holding, I am guided by the
reasoning of the ALJ in Longhorn Service
Company, 25 BNA OSHC 1572 (No. 13-1458, 2015).
[16] On this issue I credit the
statement given by the Lead Fuel Technician to CSHO Lincoln during the
inspection (Exh. C-13). The Lead Fuel Technician’s testimony on this
issue was inconsistent with both his interview statement and his deposition
testimony (Tr. 483-484). When confronted
on cross examination, he became uncomfortable and evasive, hedging his
testimony. Based on his inconsistencies
and evasive demeanor, I find the Lead Fuel Technician’s testimony less than
credible on this issue.
[17] CFI makes a similar concession in
its Reply, stating, “the employees were never more than 10 or 15 feet away from
[the STP well opening], and then only briefly when moving equipment…” Respondent’s Reply Brief at p. 9.
[18] CFI’s reference in its Reply to
the Secretary’s interpretation of “unattended” in the context of the powered
industrial truck standard is inapposite as the purpose of the two standards’
requirements are not the same.
[19]
Under the Act, an employer may seek review in the court
of appeals in the circuit in which the violation occurred, the circuit in which
the employer’s principal office is located, or the District of Columbia
Circuit. 29 U.S.C. § 660(a). The
Secretary may seek review in the circuit in which the violation occurred or in
which the employer has its principal office. 29 U.S.C. § 660(b). This case arose in Florida, which is in the 11th
Circuit. CFI’s principle place of
business is in Indiana which is in the 7th Circuit. In general, where it is highly probable that
a Commission decision would be appealed to a particular circuit, the Commission
has applied the precedent of that circuit in deciding the case, “even though it
may differ from the Commission’s precedent.” Kerns Bros. Tree Serv., 18
BNA OSHC 2064, 2067 (No. 96-1719, 2000).
[20] CFI presented testimony suggesting the use of temporary guardrails would impede the work. CFI ultimately abandoned its infeasibility affirmative defense.
[21] I find this to be the “ordinary”
case referenced in the 11th Circuit’s decision in ComTran in which
knowledge is established where a supervisory employee was or should have been
aware of the exposure of his subordinate to the hazardous condition. ComTran, 722 F.3d at 1308, n. 2.
[22]
The Commission has recognized the language in the preamble is “the best and
most authoritative statement of the Secretary's legislative intent.” American
Sterilizer Co., 15 BNA OSHC 1476, 1478 (No. 86-1179, 1992); Phelps Dodge Corp., 11 BAN OSHC 11441,
1444 (No. 80-3203, 1983).
[23] Addam Vanover, who currently performs the job of auditor,
inspecting CFI worksites for compliance with the respiratory protection
program, testified employees are to use respirators when “performing any of the
listed tasks.” (Tr. 349). He also
testified the rule requiring the use of respirators when the employee smells
gas is “in our training manual.” (Tr. 378).
This suggests Addam Vanover
had not read the program, as it contains neither the rule regarding use of
respirators when an employee smells gas nor a list of tasks requiring
respirator use.
[24] CFI points out the document
contains a recommendation for the use of organic vapor cartridges which the
company provided. While correct, this
ignores that the document also contains a recommendation these be used with
full-face respirators, which it did not provide.
[25] The Lead Fuel Technician testified
he goes by the date on the bag (Tr. 495).
He explained the bag containing the cartridge is dated “when they’re
sent to you, it’s dated before they get sent.”
(Tr. 495). It is not apparent
from looking at the photograph of the bag whether it is dated (Exh. C-11 p. 6). The
Lead Fuel Technician’s testimony is not consistent with other testimony
regarding how employees obtain the cartridges.
Robert Vanover testified employees access
cartridges from a storage unit and that they are encouraged to keep two or
three spare on their trucks (Tr. 424). Addam Vanover also testified when
he audits a worksite, he checks the employees’ safety bag to ensure “that they
have extra cartridges on them.” (Tr.
350). Reliance on the date of the
packaging “when it is sent” under such circumstances would not provide a
reliable method to track the three month change schedule.
[26] I do not agree with CFI’s
contention the Secretary was required to establish employees used an unclean
respirator to show non-compliance with the standard. The preponderance of the evidence establishes
CFI did not have procedures that complied with, or were the equivalent of, Appendix B-2 of
the standard. Failure to follow those
procedures is sufficient to establish improper cleaning of respirators as
referenced in the violation description.
[27] CFI notes the standard at 29
C.F.R. § 1910.134(g)(1)(i)(A) allows an employee
using a respirator
to have facial hair as long as the facial hair does not “come[] between the
sealing surface of the facepiece and the face..” Although Addam Vanover’s testimony is a correct recitation of the
standard, it is not a correct recitation of either the company’s program or
manufacturer’s information.
[28] In so holding, I note that the
lack of procedures for such evaluations in CFI’s written respiratory protection
program was addressed in Item 2a.
[29] In so holding, I make no finding
with regard to the validity of CFI’s determination only those STP wells in
excess of 4 feet deep are permit-required confined spaces or that shallower STP
wells are not permit-required. The
record contains no evidence regarding how CFI reached that conclusion. The citation only alleges CFI failed to evaluate
the worksite at which the accident occurred and, specifically, the STP
well. I am constrained by the specific
allegations in the citation. The Lead
Fuel Technician did make an evaluation of the worksite and the STP well. See
Drexel Chemical Co., 17 BAN OSHC 1908 (No. 94-1460, 1997)(holding failure
to identify all permit-required confined spaces in a worksite does not
necessarily establish failure to conduct an evaluation in violation of 29
C.F.R. § 1910.146(c)(1).)
[30] CFI also argues no signs were
required because tools were needed to remove the STP well covers. In so arguing, CFI relies on an OSHA
Directive and Interpretative Letter, neither of which are in the record. CFI’s argument is unavailing because the STP
well cover was off. It is axiomatic a
secure cover prevents entry only when it is on.
[31] As previously noted, the fact the
STP well covers can be bolted down is irrelevant. At the time of the unauthorized entry, the
well was open.