“*SECRETARY OF LABOR**Complainant.**v.**CBI SERVICES, INC.,**Respondent.**OSHRC Docket-No. 90-1719**DECISION*Before: FOULKE, Chairman: WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:CBI Services, Inc. (\”CBI\”) operates a facility in Cordova, Alabama,where it manufactures steel plated structures for use in submarinehulls. Following an inspection at that facility, the Occupational Safetyand Health Administration (\”OSHA\”) issued a citation which alleged inpart a serious violation of 29 C.F.R. ? 1910.252(e)(4)(iv) [[1]] forCBI’s failure to station an attendant with a pre-planned rescueprocedure outside a confined space. Review Commission Administrative LawJudge Edwin G. Salyers found that the space in question was a \”confinedspace\” within the meaning of the standard, affirmed the citation asserious. and assessed a penalty of $320. For the reasons set forthbelow, we affirm a serious violation of the standard and assess apenalty of $320.I. BackgroundCBI’s facility was inspected on March 14, 1990, by OSHA ComplianceOfficer Horace McCann. During his inspection, McCann observed employeeJohnny Crapet climb up a ladder and enter into a 20-foot-tall section ofa hull in order to perform certain welding operations. Having enteredthe structure, Crapet climbed down approximately nine feet to get to hiswork area, passing through openings that ranged from 20 inches indiameter to one that was oval in shape and measured approximately 26 by15 inches.[[2]] There were three additional openings in the sectionwhere Crapet was working, two of which measured approximately 6 to 8inches in diameter, and one which measured 8 inches in diameter. As partof the welding process, the outer skin of the structure was heated to200*. The compliance officer testified that the hazards of welding in aconfined space include possible exposure to iron oxide, chromium,arsenic, carbon dioxide, or carbon monoxide weld fumes. Other potentialhazards include the lack of oxygen or ventilation to remove any toxicmaterials. He testified that a welder who is in a confined space andinhales such weld fumes or has inadequate ventilation is \”apt to pass out.\”As a result of the inspection, CBI was issued a two-item citation in Mayof 1990. Neither party sought review of that portion of the judge’sdecision relating to Item 1, and it is not at issue here. Items 2(a) and2(b) both allege a serious violation of 29 C.F.R. ? 1910.252(e)(4)(iv).Item 2(a) alleges a serious violation of the standard for failure toprovide a means for quickly removing welders working in confined spacesin case of emergency. The judge vacated the citation for item 2(a). Hefound that the Secretary failed to prove by a preponderance of theevidence that CBI did not have the required means of removing workersworking in the confined spaces. Item 2(b) alleges it serious violationof the standard for failure to station an attendant with a pre-plannedrescue procedure outside the confined space to observe and assist thewelder(s) in case of an emergency.At the hearing, McCann did not testify about the conditions in the areawhere Crapet welded because he had not entered that area. Nor did theSecretary call Crapet as a witness to elaborate upon the conditionswhere he welded. However, Garry Bruce Davis, a welder and head of theCBI safety committee, was called by the union representative to testifyabout the conditions inside the hull sections. Davis worked as a welderin the same areas as Crapet and performed the same duties on a differentshift. Davis testified that some of the work areas were \”three foot insize, two foot in size by eighteen inches tall, and you’ve got to crawlup in there. You can’t sit up. There’s no room to sit up.\” Davis alsotestified that at the site. \”ventilation equipment is just not thatavailable. We don’t have enough hoses: we don’t have enough air movers.\”Davis testified that he had breathing problems while he welded in spacessimilar to the one in which Crapet worked during the complianceofficer’s inspection.In deciding item 2, Judge Salyers first determined that Crapet wasworking in a confined space because \”[t]he circumstances described inthe record of this case bring the space at issue within the ambit of thestandard’s definition.\” The judge affirmed the citation for item 2(b).He found that CBI violated that portion of the standard which requiresthat \”an attendant with a preplanned rescue procedure shall be stationedoutside to observe the welder at all times and be capable of puttingrescue operations into effect.\” The Secretary proposed a penalty of $640for both items 2(a) and 2(b). The judge assessed a penalty of $320 forthe violation of item 2(b).CBI petitioned for discretionary review with respect to item 2(a)insofar as it holds that the space in question is a confined space anditem 2(b) in its entirety.II. Issues on Review1. Whether the administrative law judge erred in ruling that thedefinition of \”confined space\” set forth in 29 CF.R. ? 1910.252(e)(4)(i)is sufficient to provide fair notice to employers of conditions fallingwithin the meaning of that term?i.The judge found that the space in question was a confined space asdefined by 29 C.F.R. ? 1910.252(e)(4)(i). A confined space is defined bythis standard as follows:As used herein, confined space is intended to mean a relatively small orrestricted space such as a tank, boiler, pressure vessel. or smallcompartment of a ship.The judge rejected both CBI’s argument that the standard isunenforceably vague, as well as its claim that if the standard is notunenforceably vague, then other sources must be consulted for guidancein defining a confined space, such as American National StandardsInstitute (\”ANSI\”) Z117.1-1989, Safety Requirements for Confined Spaces,section 2 (\”ANSI Z117.1\”). The judge found that since the definitioncontained in the cited standard is clear, there is no need to refer toother sources.[[3]] The judge held that the definition of confined spaceas a \”relatively small or restricted space,\” while general in nature. issufficient to provide an employer with fair notice of the requiredconduct for compliance. We found that \”[t]his is especially true when… the definition includes as an example of ‘confined space’ the ‘smallcompartment of a ship’\” and \”the space at issue is a small compartmentof a submarine which is indistinguishable from that of a ship.\”CBI argues that section 1910.252(e)(4)(i) is impermissibly vague in itsdefinition of \”confined space\” and is therefore unenforceable. CBIbelieves that the definition of confined space is insufficient toprovide fair notice to employers of conditions falling within that term.CBI notes that when the compliance officer was asked for his definitionof the term \”confined space.\” he did not rely on the definition found in? 1910.252, but defined the term as \”[b]asically, a small space withlimited number of entries or exits … to a certain extent closed orconfined where the possibility of hazards may be created as a result ofthat space.’\” CBI argues that the fact that the compliance officer\”finds it necessary to rely on outside sources to aid in the definitionof confined spaces is compelling evidence that the standard is vague tothe point of being unenforceable.\”CBI also appears to argue that the standard is vague because moredetailed definitions exist of what constitutes a confined space. CBIclaims. for example, that ANSI Z117.1 provides a more detaileddefinition of confined spaces than the standard. This standard defines aconfined space as follows:CONFINED SPACE: An enclosed area that has the following characteristics: -its primary function is something other than human occupancy.and-has restricted entry and exit.and-may contain potential or known hazards.Furthermore, CBI noted that its expert witness and corporate safetydirector, Mr. James Rhudy, relied on outside sources such as ANSI Z117.1in testifying as to what is required for a confined space. Rhudy servedon the ANSI committee that developed ANSI Z117.1.CBI also takes issue with the judge’s finding that because the standardmentions a \”small compartment of a ship\” as an example of a confinedspace, and since the space would eventually be a compartment of a ship,the space was a confined space. CBI argues that the judge ignored thefact that the space was still under construction and \”was not even yet acompartment of a ship.\”CBI cites General Dynamics Land Systems Div., Inc., 15 BNA OSHC 1275,1991 CCH OSHD ? 29,467 (No. 83-1293, 1991) (\”General Dynamics\”),petition for review filed, No. 91-4052 (6th Cir. Nov. 8, 1991), toillustrate \”the nebulous parameters of the definition of a confinedspace.\” CBI notes that \”[a]lt no point … did the Review Commissionrely on or even cite the definition of confined space set out in1910.252(e)(4)(i).\”CBI argues that [i]n light of the Review Commission’sexamining numerous sources and ultimately developing its own definitionof confined space in General Dynamics, it would he incongruous to holdRespondent to the amorphous definition of confined space contained in1910.252(c)(4)(1) in this case.\”In summary, CBI argues that \”[g]iven the fact that compliance officers,industry experts and members of the Review Commission have considerabledifficulty identifying and defining what is a confined space, it wouldseem that the answer to the ‘ultimate question’ posed by the judge isthat the barebones, simplistic definition of confined space set forth in1910.252(e)(4)(i) is indefinite, vague, and unenforceable.\”The Secretary argues that \”[a] reasonably prudent employer can … lookto the natural and plain meaning of the words ‘relatively small orrestricted space’ and ascertain what is meant by confined space.\” TheSecretary admits that the definition incorporates an element of degree,but argues that absolute precision in a standard is not required. Sheargues that a standard is not vague because its application requires theexercise of judgment and that [t]he purported vagueness of a standard isnot judged from the face of the standard; it is determined in light ofthe application of the standard to the facts of the case.\” Moreover, theSecretary points out that the space at issue here \”falls squarely withinthe definition’s inclusion, as an example of a ‘small or restrictedspace,’ of a ‘small compartment of a ship.\”‘ In response to CBI’s claimthat the cited compartment was not yet a ship, the Secretary points outthat \”[i]f a ship’s compartment is small or restricted in the completedvessel, it Is likely to be small or restricted at some point in itsmanufacture.The Secretary also relies on Ed Taylor Constr v. OSHRC, 938 F.2d 1265(11th Cir. (\”Ed Taylor\”), a case in which a similar definition ofconfined space was challenged.[[4]] There, the Fifth Circuit found thatthe plain language of the regulation was unambiguous and that it gaveclear warning of what spaces are included under its terms. 938 F.2d at1272. The court also determined that it was irrelevant that anyone inthe industry may have believed that a confined space may he defined inanother manner. Id.For the purposes of paragraph (b)(6)(1) of this section,\”confined orenclosed space\” means any space having a limited means of egress, whichis subject to the accumulation of toxic or flammable contaminants or hasan oxygen deficient atmosphere. Confined or enclosed space include, butare not limited to, storage tanks, process vessels, bins, boilers,ventilation or exhaust ducts, sewers, underground utility vaults,tunnels, pipelines, and open top spaces more than 4 feet in depth suchas pits, tubs, vaults. and vessels.The Secretary contends that General Dynamics is distinguishable fromthis case because it involved the Act’s general duty clause, section5(a)(1) of the Act, rather than a specific standard. The Secretary alsostates that the relevance of CBI’s argument that in General Dynamics theCommission failed to cite section 1910.252(e)(4)(i) is not clear. Shepoints out that \”[t]he Commission may not have been aware of[1910.252(e)(4)(i)], or it may have concluded that the weldingstandard’s definition, being limited in its criteria was irrelevant tothe type of analysis it was doing.\” The Secretary argues that even underthe General Dynamics test, the necessary elements of a confined spacewere present.[[5]]In its reply brief, CBI distinguishes Ed Taylor by noting that it is acase which arose under the construction standards, 29 C.F.R. Part 1926,and that the definition in that standard provides \”considerably moredetail and assistance to an employer in determining what is a confinedspace.\” CBI asserts that this case is similar to the situation in KroppForge Co. v. Secretary of Labor, 657 F.2d 119 (7th Cir. 1981), where thecourt found unreasonably vague the Secretary’s hearing conservationregulation calling for an \”effective\” hearing conservation program. CBIargues that \”[d]etermining what a ‘relatively’ or ‘somewhat’ small orrestricted space is no easier or less subjective than determining whatan ‘effective’ hearing conservation program is.\”ii.CBI premises its notice argument on the vagueness of the definition of aconfined space in section 1910.252(e)(4)(i):A relatively small or restricted space such as a tank, boiler, pressurevessel, or small compartment of a ship.In considering a vagueness claim, we have held that the words of astandard are to be viewed in context, not in isolation, and that thepurported vagueness of a standard is not judged from the face of thestandard but in light of the application of the standard to the facts ofthe case. Ormet Corp., 14 BNA OSHC 2134, 2135, 1991 CCH OSHD ? 29,154,p. 39,200 (No. 85-531, 1991). We have also noted that the due processclause does not impose drafting requirements of mathematical precisionor impossible specificity. Id. Applying the standard to the facts ofthis case, we find that the space Crapet was working in was a confinedspace within the meaning of section 1910.252(c)(4)(i). While CBI hasbrought a number of other definitions of confined space to ourattention, we are not persuaded that these definitions have any bearingon the one before us.We therefore find that the administrative law judge did not err inruling that the definition of \”confined space\” set forth in 29 C.F.R. ?1910.252(e)(4)(i) is sufficient to provide fair notice to employers ofconditions tailing within the meaning of that term.*2. Whether, with respect to his ruling on Serious Citation No. 1, Items2(a) and (b), the administrative law judge erred in concluding that thesection of submarine hull in question was a \”confined space \” within themeaning of 29 C.F.R. ? 1910.252(e) (4) (i) ?**i.*The judge held that the section of submarine hull in question was aconfined space within the meaning of the standard. He rejected CBI’sargument that outside sources, specifically ANSI Z117.1, must beconsulted for guidance in defining whether this is a confined space. Thejudge held that since ? 1910.252(e)(4)(1) is clear in its meaning, thereis no need to refer to outside sources. He also found, however, thateven under ANSI Z117.1, the space in question would be considered aconfined space. The judge determined that Crapet was working in aconfined space because \”[t]he circumstances described in the record ofthis case bring the space at issue within the ambit of the standard’sdefinition\” since the standard refers to a \”small compartment of a ship\”as an example of a confined space and \”the space at issue is a smallcompartment of a submarine which is indistinguishable from that of a ship.\”*ii.*CBI’s main argument on this issue again centers on the existence ofother definitions of confined space. CBI has not, however, shown anyrelevancy of those definitions to the case before us. Regardless, itwould appear that CBI’s space would be confined under those standards aswell. ANSI Z117.1 provides that a confined space has a primary functionfor something other than human occupancy, a restricted entry and exit,and contains potential or known hazards. The space in question is anarea of the submarine that is not meant for human occupancy, has arestricted entry and exit, and may contain potential or known hazardsduring welding. In General Dynamics, we defined a confined space as anarea with limited natural ventilation and limited ingress\/egress inwhich a toxic or oxygen deficient atmosphere could be created. GeneralDynamics, 15 BNA OSHC at 1284-85, 1991 CCH OSHD at p. 39,756. In thepresent case, the evidence establishes that Crapet was working in anarea with limited natural ventilation and limited ingress\/egress, andthat a toxic or oxygen deficient atmosphere could be created in thespace during the welding process.We therefore find that the administrative law judge did not err inconcluding that the section of submarine hull in question was a\”confined space\” within the meaning of 29 C.F.R. ? 1910.252(e)(4)(i).*3. Whether the administrative law judge erred in affirming SeriousCitation No. 1, Item 2(b), alleging a violation of 29 C.F.R. ?1910.252(e)(4)(iv), based on the failure of Respondent to station anattendant outside the section of submarine hull to observe and conductrescue operations if required?*The judge held that CBI violated the portion of ? 1910.252(e)(4)(iv)that requires \”an attendant with a preplanned rescue procedure shall bestationed outside to observe the welder at all times and be capable ofputting rescue operations into effect.\” The judge noted that it isundisputed that no one from CBI was observing Crapet while he worked inthe hull section. The judge contrasted the testimony of Dean May, Jr.,CBI’s shop superintendent, that there were inspectors occasionallychecking each welders’ work, with the standard’s, requirement that anattendant be stationed outside to observe a welder at all times.CBI argue, that even if the area question may be characterized as aconfined space, the precaution of an attendant with a pre-planned rescueprocedure was not necessary. It relies on ANSI Z117.1, which does notrequire such a precaution as long as there is adequate ventilation, andon, ANSI Z49.1-1988, Safety in Welding and Cutting, section 7.5, whichdoes not require such a precaution unless there is an atmosphere insidethe space that is immediately dangerous to life.[[6]] CBI notes that therecord \”establishes that the atmosphere inside the hull section was farfrom dangerous.\” CBI argues that even if there was a need for anattendant with a pre-planned rescue procedure, the evidence establishesthat Respondent had sufficient measures in place at the time of theinspection. CBI asserts that the record indicates that the \”welders aremonitored and supervised by their foreman in addition to the assistantsuperintendent of the Weld Shop and the welding inspectors\” and that it\”had ample pre-planned rescue procedures in place.\”The Secretary argues that \”the provision of adequate ventilation doesnot obviate an employees express duty to provide an attendant whilewelding in a confined space is taking place.\” She contends that \”[i]narguing that an attendant is not required so long as the ventilation isadequate, CBI is doing nothing less than impermissibly questioning thewisdom of the Secretary’s standard.\”*ii.*CBI has not dispute that it failed to have an attendant who was capableof putting a pre-planned rescue procedure into effect stationed outsideto observe the welder at all times. CBI only questions the standard and,pointing to other standards. asserts that an attendant is not necessary,because there was adequate ventilation. The only reason CBI has given usfor not following the clear command of the Secretary’s standard is thatit differs from other workplace safety standards. However, CBI does notclaim that these other standards apply to its workplace or that theirrequirements differ in any significant respect from the cited standard.We therefore find that CBI violated 29 C.F.R. ? 1910.252 (e)(4)(iv) byfalling to station an attendant outside the section of submarine hull toobserve and conduct rescue operations.*4. Whether the administrative law judge erred in characterizing asserious the violation of 29 C.F.R. ? 1910.252(e)(4)(iv) alleged inSerious Citation No. 1, Item 2(b)? **i. *The judge affirmed the violation of section 1910.252(e)(4)(iv) asserious. He relied on Davis’ testimony that the air hose used forventilation could not reach some areas where the welders had to work andon CBI’s practice of heating the skin of the structure to 200* duringthe welding. The judge found that these factors resulted in poorventilation in many work areas and caused welders to experiencebreathing problems. CBI argues that [t]he record evidence is clear thatany hazards in the hull section were effectively controlled oreliminated by ventilation\” and that \”the Secretary has failed to showthat the alleged violation had an immediate relation to safety orhealth.\” [[7]] CBI argues that if a violation is found, it should beclassified as de minimis with no abatement requirement because thealleged violation bears no direct or immediate relation to safety andhealth. CBI notes that it is undisputed that the space where Crapetworked was being ventilated by one mechanical exhaust hose and twomechanical fresh air hoses.The Secretary argues that we should affirm the judge’s classification ofthe violation as serious. The Secretary cites the compliance officer’stestimony that harmful fumes might be present during the weldingoperations which, if inhaled, could cause an employee to pass out. TheSecretary acknowledges that CBI provided some ventilation through theuse of air hoses, but she notes that the hoses could not reach someareas where the welders had to work, resulting in poor ventilation inmany work areas and workers experiencing breathing problems.[[8]] *ii.* Section 17(k) of the Act, 29 U.S.C. ? 666(k), defines a serious violation as follows: [A] serious violation shall be deemed to exist In a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists ….We have found that a serious violation existed where the recordestablished a \”‘likelihood that various hazardous contaminants were inthe atmosphere as a natural consequence of the welding operation beingperformed\” as well as a lack of sufficient ventilation to remove thecontaminants or to prevent the accumulation of an increasingconcentration of the contaminants as the welding progressed. DravoCorp., 7 BNA OSHC 2095, 2101, 1980 CCH OSHD ? 24,158, p. 29,370 (No.16317, 1980). Here, the record establishes that various hazardouscontaminants could be generated into the atmosphere as a result ofwelding and that in some areas where welding was taking place there wasa lack of sufficient ventilation. Clearly, if an employee welding in thecited location needed to be rescued, there is a substantial probabilitythat the failure to have an attendant stationed outside, who is able toput a preplanned rescue procedure into effect, could result in death orserious physical harm. We therefore find that the violation of thestandard is properly characterized as serious.The Secretary proposed a $640 penalty for both items 2(a) and 2(b). Thejudge only found a violation of item 2(b). and assessed a penalty of$320. Having considered the penalty factors enumerated in section 17(j)of the Act. 29 U.S.C. ? 666(j). we assess a penalty of $320.Ill. OrderAccordingly,we find a serious violation of 29 C. F. R. ? 1910.252 (e)(4) (iv) as alleged in Serious Citation No. 1, Item 2 (b) and affirm apenalty of $320.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: December 21, 1992————————————————————————*SECRETARY OF LABOR,**Complainant, **v.**CBI SERVICES, INC, **Respondent.**OSHRC Docket No. 90-1719**APPEARANCES*:L. K. Cooper, Jr., Esquire, Office of the Solicitor, U. S. Department ofLabor Birmingham, Alabama, on behalf on complainant. Richard J.Brodecki, Esquire, Assistant Counsel, CBI Services, Inc., Oak Brook,Illinois, on behalf of respondent. Larry R. Davis, President, Local8311, United Steelworkers of America, Cordova, Alabama, on behalf ofauthorized employee representative.*DECISION AND ORDER*SALYERS, Judge: CBI Services, Inc. (CBI), operates a facility inCordova, Alabama, where it manufactures steel plated structures to beused as parts of the hulls of submarines (Tr. 115). CBI’s facility wasinspected on March 14, 1990, by OSHA compliance officer Horace McCann(Tr. 18). As a result of the inspection, CBI was issued a citation onMay 9, 1990, Containing two items. Item 1 of the citation alleged aserious violation of 29 C.F.R. ? 1910.252 (e)(1)(ii) for failure to keepwelding cables and other equipment clear of passageways. Item, 2 of thecitation alleges a serious violation of 29 C.F.R. ? 1910.252 (e)(4)(iv)for failure to provide means for quickly removing welders working inconfined spaces in case of emergency, and for failure to station anattendant with a pre-planned rescue procedure outside the confined space._ITEM 1_ 29 C.F.R. ? 1910.252 (e) (1) (ii) provides: Welders shall place welding cable and other equipment so that it is clear of passageways, ladders, and stairways.Exhibits C-1 and C-2 are photographs of an area in welding shop #3 ofthe facility. Numerous cables are visible laying in a tangled pile onthe floor (Tr. 20). The cables were weld leads, electric pre-heat leads,and airhoses, all of which were used in the assembly of the tank thatappears at the right in Exhibit C-1 (Tr. 120). The configuration ofthese cables creates an obvious tripping hazard to anyone attempting totraverse the area.CBI contends that it has permanent aisleways in its facility that aredesignated by yellow lines. Employees are not supposed to use the areadepicted in Exhibits C-1 and C-2 as passageways. Respondent asserts thatemployees are only to be In that area when performing work (Tr. 79,119-120, 148).CBI argues that since the area in question was not a\”passageway\”, but a work area, the cited standard is inapplicable.In determining the application of the standard to the area in question,the actual use made of the area, and not its designation, must beconsidered. Compliance officer McCann observed several employees \”movingback and forth through this area\” (Tr. 22). An office trailer waslocated near the area, and when employees left the trailer, they passedthrough this area to get to other areas of the facility (Tr. 22). McCannobserved six to eight employees pass through the area during the courseof his inspection (Tr. 23). Dean May, CBI’s shop superintendent,testified that a majority of the employees in the shop #3 area wereworking at this location, but also admitted that other employees \”passedthrough that area\” (Tr. 119).The evidence supports a finding that the shop #3 area was used as apassageway by a number of CBI employees. This circumstance is sufficientto sustain the Secretary’s charge that CBI was in violation of 29 C.F.R.? 1910.252(e)(1)(ii).McCann testified that the tangled cables strewn throughout thepassageway presented a tripping hazard. The immediate area containedelectrical equipment and sharp protruding objects, which could haveresulted in further injuries if an employee fell onto them (Tr. 26). Thehazard presented by the cables could have resulted in a serious physicalinjury. Thus, the violation of ? 1910.252 (e) (1) (ii) was serious._ITEM 2_29 C.F.R. ? 1910.252 (e) (4) (iv) provides:Where a welder must enter a confined space through a manhole or othersmall opening, means shall be provided for quickly removing him in caseof emergency. When safety belts and lifelines are used for this purposethey shall be so attached to the welder’s body that his body cannot bejammed in a small exit opening. An attendant with a pre-planned rescueprocedure shall be stationed outside to observe the welder at all timesand be capable of putting rescue operations into effect.Item 2a of the citation alleges that \”[i]n welding shop #2 whereemployees were required to enter vessel\/hulls of submarines throughsmall openings and weld in small confined spaces, no means was providedfor quick removal of a welder from the confined space in case ofemergency.\” Item 2b alleges that \”[i]n welding shop #2 where employeeswere required to enter confined spaces and weld, an attendant withpre-planned rescue procedures was not stationed outside the confinedspaces to observe and assist the welder(s) in case of an emergency.\”The space which the Secretary alleges is a \”confined space\” within themeaning of the cited standard is a section of a hull of a United States688 Attack Submarine. One of the openings in a bulkhead of the sectionmeasured 20 inches in diameter. The other opening was oblong, measuring15 x 23 inches. There were three additional openings in this section,two of which measured approximately six inches to eight inches indiameter and one which measured eight inches in diameter (Tr. 115-116).The section of the hull at issue was approximately 20 feet tall (Tr.116). Exhibits C-10 and C-11 show a hull section similar to the one inquestion, without the outer \”skin\” covering it (Tr. 117). Exhibit C-3shows the actual hull section at issue (Tr. 138). Exhibit C-13 shows anemployee working in a hull section which does not have the \”skin\” on it.This section is similar to the interior of the hull which employeeJohnny Crapet, a welder, entered (Tr. 55-56).McCann observed CBI employee Crapet climb a ladder leaning against thestructure and enter the structure from an opening in the top (Tr. 37).The opening was 20 inches in diameter (Exs. C-5 – C-9, Tr. 59). Crapethad to descend about nine feet to get to his work area, where he engagedin welding operations (Tr. 47).McCann did not enter the area where the welding was performed nor wasCrapet called as a witness by the Secretary to elaborate upon theconditions which existed in this area. However, Garry B. Davis, [[1]]called by the union representative, gave a vivid description of themaze-like conditions (Tr. 212) which existed inside the structure.Davis testified it was necessary to go through a series of compartmentsin the structure to gain access to the working area (Tr. 211) This wasaccomplished by \”crawling a ladder\” and going through manholes, some ofwhich were only twenty inches in diameter (Tr. 211). It was necessaryfor the welders to carry a welding whip and an air hose into the workareas. The air hose was used for ventilation to exhaust welding fumes,but could not reach some areas where the welders had to work (Tr. 214).As a result, ventilation was poor in many work areas and weldersexperienced breathing problems (Tr. 224, 226). Lack of sufficientventilation equipment also added to this problem (Tr. 232). In additionto the welding fumes and poor ventilation in these compartments, Davisdescribed a problem with excessive heat. This condition resulted fromthe fact that the outer \”skin\” of the structure was heated to 200degrees during the welding process (Tr. 214-215).The size of the work areas varied, but Davis testified some were \”threefoot in size, two foot in size by eighteen inches tall, and you’ve gotto crawl up in there. You can’t sit up. There’s not room to sit up\” (Tr.229). Davis used a table in the courtroom to depict the narrow confinesof some work areas (Tr. 230). This table measured about 36 inches high,40 to 42 inches long and approximately three feet wide (Tr. 231). Hetestified he would consider this amount of space to be \”a good hole\” andthat he worked in much smaller spaces (Tr. 231, 232). The testimony ofDavis is convincing that welders routinely worked in very small areaswhere body movement was restricted and cramped.Before turning to the question of whether CBI was in violation of theconfined space standard, it must first be determined whether the spaceat issue was a confined space. CBI contends that it was not.29 C.F.R. ? 1910.252(e)(4)(i) provides:As used herein confined space is intended to mean a relatively small orrestricted space such as a tank, boiler, pressure vessel, or smallcompartment of a ship.CBI argues that this standard is \”vague in its definition and thusunenforceable\” (CBI’s Brief, p. 10). CBI further argues that if thestandard is not unenforceably vague, then outside sources must beconsulted for guidance in defining a confined space. Specifically, CBIrefers to ANSI Standard 117.1, which defines a confined space as \”[a]nenclosed area that has the following characteristics: its primaryfunction is something other than human occupancy and it has restrictedentry and exit and it may contain potential or known hazards.\”CBI contends that ? 1910.252(e)(4)(iv) is enforced, primaryconsideration must be given to the ANSI definition [[2]]Vagueness challenges directed at standards promulgated by Secretary havenot met with much success. The ultimate question in such a challenge \”iswhether the standard is so indefinite that men of common intelligencemust necessarily at its meaning and differ as to its application.\”_Allis-Chalmers Corp. v. OSAHRC_, 542 F.2d 27, 30 (7th Cir. 1976). _Seealso Ryder Truck Lines, Inc. v. Brennan_, 497 F.2d 230 (5th Cir. 1974).In _Dravo Corporation_, 80 OSAHRC 2\/B10, 7 BNA OSHC 2095, 1980 CCH OSHD? 24,158 (No. 16317, 1980), _aff’d_ 639 F.2d 772 (3rd Cir. 1980), theemployer raised a vagueness challenge to the meaning of the term\”confined space\” as defined in the Maritime Standards. 29 C.F.R. ?1916.2(m) of these standards defines this term as:A confined space is…a compartment of small size and limited access such as a doublebottom tank, cofferdam, or other space which by its small size andconfined nature can readily create or aggravate a hazardous exposure.In striking down the vagueness defense, the Commission noted:Whenever an employer cannot determine whether a space is confined orenclosed from the examples given in the definitions, the employer mustuse his experience, knowledge, and judgment to decide whether the hazardit which the standard is directed is increased by the size andconfiguration of the space. A standard is not vague simply because itsapplication requires the exercise of judgment. See, e.g. Allis-ChalmersCorp. v. OSAHRC, 542 F.2d 27, 30 (7th Cir. 1976); M-Co EquipmentCompany, Inc., 75 OSAHRC 37\/C3, 2 BNA OSHC 1660, 1974-75 CCH OSHD ?19,394 (No. 3811, 1975).The cited standard defines \”confined space\” in terms of \”relativelysmall or restricted space.\” This definition while general in nature issufficient to afford an employer with fair notice of the requiredconduct. _Ryder Truck Lines, supra_. This is especially true whenconsidered in conjunction with the fact that the definition includes asan example of \”confined space\” the \”small compartment of a ship.\” Inthis case, the space at issue is a small compartment of a submarinewhich is indistinguishable from that of a ship. The circumstancesdescribed in the record of this case bring the space at issue within theambit of the standard’s definition._ITEM 2a_Having determined that the area in question was a confined space it mustnow be determined if respondent violated the provisions of ?1910.252(e)(4)(iv) which provides:Where a welder must enter a confined space through a manhole or othersmall opening, means shall be provided for quickly removing him in caseof emergency.McCann testified May told him that CBI had no written emergencyprocedures to rescue welders (Tr. 61, 65) and that CBI had no means forquick removal of a welder from a confined space, other than cutting himout with a torch, a procedure estimated to take 30 minutes (Tr. 60-65).McCann’s testimony on this point was directly contradicted by May at thehearing. May testified that prior to McCann’s inspection, CBI had ropes,basket stretchers, and litters available to conduct a rescue procedure,as well as cutting torches (Tr. 122). McCann acknowledged that ropes,basket stretchers and cutting torches were acceptable means for removingemployees (Tr. 92-94). Because the existence of the removal equipment iscrucial to the resolution of this issue, it must be determined whetherto credit McCann’s testimony over that of May’s.Both men appeared as credible, trustworthy witnesses. McCann has been anindustrial hygienist with OSHA since 1975 and has conducted over 400inspections (Tr.16-17). May had been at CBI for 26 years at the time ofthe hearing, and had been shop superintendent for two years (Tr. 114).May was in a better position to know what equipment was available thanwas McCann. What complicates the situation is that McCann supposedly gothis information from May during the inspection. May was not questionedat The hearing regarding his statements to McCann during the inspection.We are left then to weigh the testimony of the two witnesses againsteach other.Unfortunately for the Secretary, she has the burden of proof on theelements of the violation. Here, she has the burden of proving that CBIdid not have \”means…for quickly removing\” a welder in an emergency.Her sole evidence on the point is McCann’s statement that May told himno such means existed. Since May’s testimony flatly contradictsMcCann’s, and May’s testimony was in no way discredited, it cannot besaid that the Secretary around by a preponderance of the evidence thatCBI did not have the required means of removal available. Item 2a of thecitation will be vacated._ITEM 2b_Item 2b alleges that CBI violated that portion of ? 1910.252(e)(4)(iv)that provides: \”an attendant with a preplanned rescue procedure shall bestationed outside to observe the welder at all times and be capable ofputting rescue operations into effect.\”It is undisputed that no one from CBI was observing Crapet while heworked in the hull section (Tr. 61). When asked about the monitoring ofemployees working in confined spaces, May replied (Tr. 123-124):The main responsibility falls on the employee’s immediate supervisor…We have a general foreman of each of our weld shops. We’ve also gotwelding supervisors that are in and out of all the work areas checkingor the quality and on the progress of the work.We’ve also got inspectors that are also in and out of these areas atdifferent times.*******Then [the foremen] will follow that up later; follow the progress. Itmay be from a distance. He may not go directly up to the person and talkto them.Clearly, this procedure is inadequate to meet the requirements of thestandard. The standard requires that an attendant \”be stationed outsideto observe the welder _at_ _all_ _times_\”; (emphasis added). There is noprovision for the kind of spot checking that CBI has implemented. CBIwas in violation of ? 1910.252(e)(4)(iv) with respect to Item 2b._PENALTY DETERMINATION_The Commission is the final arbiter of penalties in all contested cases._Secretary v. OSAHRC and Interstate Glass Co.,_ 487 F.2d 438 (8th Cir.1973). Under 17(j) of the Occupational Safety and Health Act of 1970(Act), the Commission is required to find and give \”due consideration\”to the size of the employer’s business, the gravity of the violation,the good faith of the employer, and the history of previous violationsin determining the assessment of the appropriate penalty.CBI employs approximately 460 employees. CBI demonstrated good faithduring the course of OSHA’s inspection and it had no previous history ofcitations for the same violations.Upon due consideration of the relevant factors, it is determined that apenalty determined that a penalty of $240.00 for the violation of ?1910.252 (e) (1) (ii) (Item 1), and a penalty of $320.00 for theviolation of ? 1910.252 (e) (4) (iv)) (Item 2b) are appropriate.FINDINGS OF FACT AND CONCLUSIONS OF LAWThe findings of fact and conclusions of law contained in this opinionare incorporated herein in accordance with Rule 52 (a) of the FederalRules of Civil Procedure.ORDERIn view of the foregoing and good cause appearing in support of thedeterminations, it is ORDERED:1. That Item 1 of the citation is affirmed and a penalty of $240.00 isassessed for the violation of 29 C.F.R. ? 1910.252 (e) (1) (ii).2. That Item 2a of the citation is vacated and no penalty is assessed, and3. That Item 2b of the citation is affirmed and a penalty of 320.00 isassessed for the violation of 29 C.F.R. ? 1910.252(e)(4)(iv).Dated this 13th day of June, 1991EDWIN G. SALYERSJudge————————————————————————FOOTNOTES:[[1]] 29 C.F.R. ? 1910.252 (e)(4)(iv) provides:Where a welder must enter a confined space through a manhole or othersmall opening, means shall be provided for quickly removing him in caseof emergency. When safety belts and lifelines are used for this purposethey shall be so attached to the welder’s body that his body cannot bejammed in a small exit opening. An attendant with a pre-planned rescueprocedure shall be stationed outside to observe the welder at all timesand be capable of putting rescue operations into effect.On April 11, 1990, 29 C.F.R. ? 1910.252(c)(4) was recodified without anysubstantive changes to 29 C.F.R. ? 1910.252(b) (4) 55 Fed Reg. 13,695.96(1990). For consistency, the original codification will be used in thisdecision.[[2]] Dean W. May, Jr., the shop superintendent for the Cordovafacility. testified that the measurements for the oval opening were 23by 15 inches.[[3]] The judge found that even under ANSI Z117.1, the space in questionwould be considered a confined space.[[4]] At issue in Ed Taylor was the following direction of a confinedspace in 29 C.F.R. ? 1926.21(b)(6)(ii):For the purposes of paragraph (b)(6)(i) of this section, \”confines orenclosed space\” means any space having a limited means of egress, whichis subject to the accumulation of toxic or flammable contaminants or hasan oxygen deficient atmosphere. Confined or enclosed spaces include,but are not limited to, storage tanks, process vessels, bins, boilers,ventilation or exhaust ducts, sewer, underground utility vaults,tunnels, pipelines, and open top spaces more than 4 feet in depth, suchas pits, tubs, vaults, and vessels.[[5]] In General Dynamics, the Commission held:In summary, we find that the various standards and the expert testimonyestablish a consensus that a \”confined space\” is in area with limitednatural ventilation and limited ingress egress. Perhaps the mostcritical factor in determining whether a space is \”confined\” is theintroduction of some substance into the environment that, due to thelack of natural ventilation, may cause a toxic or oxygen deficientatmosphere.General Dynamics, 15 BNA OSHC at 1284-85, 1991 CCH OSHD at p. 39,756. Inthe present case, the evidence establishes that Crapet was working in anarea with limited natural ventilation and limited ingress egress andthat a toxic or oxygen deficient atmosphere could be created in thespace during the welding process.[[6]] ANSI Z49.1-1988, section 7.5, provides as follows:Attendants in Areas Immediately Hazardous to Life. When operations arecarried on in confined spaces where atmospheres immediately hazardous tolife may be present or may develop, an attendant shall be stationed onthe outside of the confined space to ensure the safety of those workingwithin.[[7]] For support, CBI notes Shop Superintendent May’s testimony thatduring the two years he held that position, he was not \”aware of anylost time to accidents in the plant that are related to atmosphericconditions in one of the vessels being constructed by the company.\”[[8]] The Secretary also argues that the Commission is without statutoryauthority to classify a violation as de minimis. However this argument is in direct contrast to Commission precedent in which we have held thatthe Commission hs the authority to determine that a citation is deminimis. Super Excavators, Inc., 15 BNA OSHC 1312, 1314, 1991 CCH OSHD ?29,498, p. 39,802 (No. 89-2253, 1991).[[1]] Davis has worked as a welder for respondent during the past 25years and has been a member of the company safety committee for threeyears (Tr. 209). During the period preceding the Secretary’s inspection,he worked as a welder in the same areas and performed the same duties asCrapet except on a different shift (Tr. 210, 212, 213, 228).[[2]] This Court disagrees. If the definition contained in the citedstandard is clear, then the Court has no need to refer to other sources.This Court finds little consolation for respondent even if the ANSIdefinition should prevail. The characteristics described in thatdefinition would have clear application to the facts contained in therecord of this case.”