“Docket No. 90-1719 SECRETARY OF LABORComplainant.v.CBI SERVICES, INC.,Respondent.OSHRC Docket-No. 90-1719DECISIONBefore: FOULKE, Chairman: WISEMAN and MONTOYA,Commissioners. BY THE COMMISSION:CBI Services, Inc. (\”CBI\”) operates afacility in Cordova, Alabama, where it manufactures steel plated structures for use insubmarine hulls. Following an inspection at that facility, the Occupational Safety andHealth Administration (\”OSHA\”) issued a citation which alleged in part a seriousviolation of 29 C.F.R. ? 1910.252(e)(4)(iv) [[1]] for CBI’s failure to station anattendant with a pre-planned rescue procedure outside a confined space. Review CommissionAdministrative Law Judge Edwin G. Salyers found that the space in question was a\”confined space\” within the meaning of the standard, affirmed the citation asserious. and assessed a penalty of $320. For the reasons set forth below, we affirm aserious violation of the standard and assess a penalty of $320.I. BackgroundCBI’s facility was inspected on March 14, 1990, byOSHA Compliance Officer Horace McCann. During his inspection, McCann observed employeeJohnny Crapet climb up a ladder and enter into a 20-foot-tall section of a hull in orderto perform certain welding operations. Having entered the structure, Crapet climbed downapproximately nine feet to get to his work area, passing through openings that ranged from20 inches in diameter to one that was oval in shape and measured approximately 26 by 15inches.[[2]] There were three additional openings in the section where Crapet was working,two of which measured approximately 6 to 8 inches in diameter, and one which measured 8inches in diameter. As part of the welding process, the outer skin of the structure washeated to 200*. The compliance officer testified that the hazards of welding in a confinedspace include possible exposure to iron oxide, chromium, arsenic, carbon dioxide, orcarbon monoxide weld fumes. Other potential hazards include the lack of oxygen orventilation to remove any toxic materials. He testified that a welder who is in a confinedspace and inhales such weld fumes or has inadequate ventilation is \”apt to passout.\”As a result of the inspection, CBI was issued atwo-item citation in May of 1990. Neither party sought review of that portion of thejudge’s decision relating to Item 1, and it is not at issue here. Items 2(a) and 2(b) bothallege a serious violation of 29 C.F.R. ? 1910.252(e)(4)(iv). Item 2(a) alleges a seriousviolation of the standard for failure to provide a means for quickly removing weldersworking in confined spaces in case of emergency. The judge vacated the citation for item2(a). He found that the Secretary failed to prove by a preponderance of the evidence thatCBI did not have the required means of removing workers working in the confined spaces.Item 2(b) alleges it serious violation of the standard for failure to station an attendantwith a pre-planned rescue procedure outside the confined space to observe and assist thewelder(s) in case of an emergency.At the hearing, McCann did not testify about theconditions in the area where Crapet welded because he had not entered that area. Nor didthe Secretary call Crapet as a witness to elaborate upon the conditions where he welded.However, Garry Bruce Davis, a welder and head of the CBI safety committee, was called bythe union representative to testify about the conditions inside the hull sections. Davisworked as a welder in the same areas as Crapet and performed the same duties on adifferent shift. 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 crawl up in there. Youcan’t sit up. There’s no room to sit up.\” Davis also testified that at the site.\”ventilation equipment is just not that available. We don’t have enough hoses: wedon’t have enough air movers.\” Davis testified that he had breathing problems whilehe welded in spaces similar to the one in which Crapet worked during the complianceofficer’s inspection.In deciding item 2, Judge Salyers first determinedthat Crapet was working in a confined space because \”[t]he circumstances described inthe record of this case bring the space at issue within the ambit of the standard’sdefinition.\” The judge affirmed the citation for item 2(b). He found that CBIviolated that portion of the standard which requires that \”an attendant with apreplanned rescue procedure shall be stationed outside to observe the welder at all timesand be capable of putting rescue operations into effect.\” The Secretary proposed apenalty of $640 for both items 2(a) and 2(b). The judge assessed a penalty of $320 for theviolation of item 2(b).CBI petitioned for discretionary review withrespect to item 2(a) insofar as it holds that the space in question is a confined spaceand item 2(b) in its entirety.II. Issues on Review1. Whether the administrative law judge erred inruling that the definition 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 aconfined space as defined by 29 C.F.R. ? 1910.252(e)(4)(i). A confined space is definedby this standard as follows: As used herein, confined space is intended tomean a relatively small or restricted space such as a tank, boiler, pressure vessel. orsmall compartment of a ship.The judge rejected both CBI’s argument that thestandard is unenforceably vague, as well as its claim that if the standard is notunenforceably vague, then other sources must be consulted for guidance in defining aconfined space, such as American National Standards Institute (\”ANSI\”)Z117.1-1989, Safety Requirements for Confined Spaces, section 2 (\”ANSI Z117.1\”).The judge found that since the definition contained in the cited standard is clear, thereis no need to refer to other sources.[[3]] The judge held that the definition of confinedspace as a \”relatively small or restricted space,\” while general in nature. issufficient to provide an employer with fair notice of the required conduct for compliance.We found that \”[t]his is especially true when … the definition includes as anexample of ‘confined space’ the ‘small compartment of a ship’\” and \”the space atissue is a small compartment of a submarine which is indistinguishable from that of aship.\”CBI argues that section 1910.252(e)(4)(i) isimpermissibly vague in its definition of \”confined space\” and is thereforeunenforceable. CBI believes that the definition of confined space is insufficient toprovide fair notice to employers of conditions falling within that term. CBI notes thatwhen the compliance officer was asked for his definition of the term \”confinedspace.\” he did not rely on the definition found in ? 1910.252, but defined the termas \”[b]asically, a small space with limited number of entries or exits … to acertain extent closed or confined where the possibility of hazards may be created as aresult of that space.’\” CBI argues that the fact that the compliance officer\”finds it necessary to rely on outside sources to aid in the definition of confinedspaces is compelling evidence that the standard is vague to the point of beingunenforceable.\”CBI also appears to argue that the standard isvague because more detailed definitions exist of what constitutes a confined space. CBIclaims. for example, that ANSI Z117.1 provides a more detailed definition of confinedspaces than the standard. This standard defines a confined space as follows:CONFINED SPACE: An enclosed area that has thefollowing characteristics:\u00a0 -its primary function is something other thanhuman occupancy.and-has restricted entry and exit.and-may contain potential or known hazards.Furthermore, CBI noted that its expert witness andcorporate safety director, Mr. James Rhudy, relied on outside sources such as ANSI Z117.1in testifying as to what is required for a confined space. Rhudy served on the ANSIcommittee that developed ANSI Z117.1.CBI also takes issue with the judge’s finding thatbecause the standard mentions a \”small compartment of a ship\” as an example of aconfined space, and since the space would eventually be a compartment of a ship, the spacewas a confined space. CBI argues that the judge ignored the fact that the space was stillunder construction and \”was not even yet a compartment of a ship.\”CBI cites General Dynamics Land Systems Div.,Inc., 15 BNA OSHC 1275, 1991 CCH OSHD ? 29,467 (No. 83-1293, 1991) (\”GeneralDynamics\”), petition for review filed, No. 91-4052 (6th Cir. Nov. 8, 1991), toillustrate \”the nebulous parameters of the definition of a confined space.\” CBInotes that \”[a]lt no point … did the Review Commission rely on or even cite thedefinition of confined space set out in 1910.252(e)(4)(i).\”CBI argues that [i]n lightof the Review Commission’s examining numerous sources and ultimately developing its owndefinition of confined space in General Dynamics, it would he incongruous to holdRespondent to the amorphous definition of confined space contained in 1910.252(c)(4)(1) inthis case.\”In summary, CBI argues that \”[g]iven the factthat compliance officers, industry experts and members of the Review Commission haveconsiderable difficulty identifying and defining what is a confined space, it would seemthat the answer to the ‘ultimate question’ posed by the judge is that the barebones,simplistic definition of confined space set forth in 1910.252(e)(4)(i) is indefinite,vague, and unenforceable.\”The Secretary argues that \”[a] reasonablyprudent employer can … look to the natural and plain meaning of the words ‘relativelysmall or restricted space’ and ascertain what is meant by confined space.\” TheSecretary admits that the definition incorporates an element of degree, but argues thatabsolute precision in a standard is not required. She argues that a standard is not vaguebecause its application requires the exercise of judgment and that [t]he purportedvagueness of a standard is not judged from the face of the standard; it is determined inlight of the application of the standard to the facts of the case.\” Moreover, theSecretary points out that the space at issue here \”falls squarely within thedefinition’s inclusion, as an example of a ‘small or restricted space,’ of a ‘smallcompartment of a ship.\”‘ In response to CBI’s claim that the cited compartment wasnot yet a ship, the Secretary points out that \”[i]f a ship’s compartment is small orrestricted in the completed vessel, it Is likely to be small or restricted at some pointin its manufacture.The Secretary also relies on Ed Taylor Constr v.OSHRC, 938 F.2d 1265 (11th Cir. (\”Ed Taylor\”), a case in which a similardefinition of confined space was challenged.[[4]] There, the Fifth Circuit found that theplain language of the regulation was unambiguous and that it gave clear warning of whatspaces are included under its terms. 938 F.2d at 1272. The court also determined that itwas irrelevant that anyone in the industry may have believed that a confined space may hedefined in another manner. Id. For the purposes of paragraph (b)(6)(1) of thissection,\”confined or enclosed space\” means any space having a limited means ofegress, which is subject to the accumulation of toxic or flammable contaminants or has anoxygen deficient atmosphere. Confined or enclosed space include, but are not limited to,storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers,underground utility vaults, tunnels, pipelines, and open top spaces more than 4 feet indepth such as pits, tubs, vaults. and vessels.The Secretary contends that General Dynamics isdistinguishable from this case because it involved the Act’s general duty clause, section5(a)(1) of the Act, rather than a specific standard. The Secretary also states that therelevance of CBI’s argument that in General Dynamics the Commission failed to cite section1910.252(e)(4)(i) is not clear. She points out that \”[t]he Commission may not havebeen aware of [1910.252(e)(4)(i)], or it may have concluded that the welding standard’sdefinition, being limited in its criteria was irrelevant to the type of analysis it wasdoing.\” The Secretary argues that even under the General Dynamics test, the necessaryelements of a confined space were present.[[5]]In its reply brief, CBI distinguishes Ed Taylor bynoting that it is a case which arose under the construction standards, 29 C.F.R. Part1926, and that the definition in that standard provides \”considerably more detail andassistance to an employer in determining what is a confined space.\” CBI asserts thatthis case is similar to the situation in Kropp Forge Co. v. Secretary of Labor, 657 F.2d119 (7th Cir. 1981), where the court found unreasonably vague the Secretary’s hearingconservation regulation calling for an \”effective\” hearing conservation program.CBI argues that \”[d]etermining what a ‘relatively’ or ‘somewhat’ small or restrictedspace is no easier or less subjective than determining what an ‘effective’ hearingconservation program is.\”ii. CBI premises its notice argument on the vaguenessof the definition of a confined space in section 1910.252(e)(4)(i):A relatively small or restricted space such as atank, boiler, pressure vessel, or small compartment of a ship.In considering a vagueness claim, we have heldthat the words of a standard are to be viewed in context, not in isolation, and that thepurported vagueness of a standard is not judged from the face of the standard but in lightof the application of the standard to the facts of the case. Ormet Corp., 14 BNA OSHC2134, 2135, 1991 CCH OSHD ? 29,154, p. 39,200 (No. 85-531, 1991). We have also noted thatthe due process clause does not impose drafting requirements of mathematical precision orimpossible specificity. Id. Applying the standard to the facts of this case, we find thatthe space Crapet was working in was a confined space within the meaning of section1910.252(c)(4)(i). While CBI has brought a number of other definitions of confined spaceto our attention, we are not persuaded that these definitions have any bearing on the onebefore us.We therefore find that the administrative lawjudge did not err in ruling that the definition of \”confined space\” set forth in29 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 onSerious Citation No. 1, Items 2(a) and (b), the administrative law judge erred 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) ?i.The judge held that the section of submarine hullin question was a confined space within the meaning of the standard. He rejected CBI’sargument that outside sources, specifically ANSI Z117.1, must be consulted for guidance indefining whether this is a confined space. The judge held that since ? 1910.252(e)(4)(1)is clear in its meaning, there is no need to refer to outside sources. He also found,however, that even under ANSI Z117.1, the space in question would be considered a confinedspace. The judge determined that Crapet was working in a confined space because\”[t]he circumstances described in the record of this case bring the space at issuewithin the ambit of the standard’s definition\” since the standard refers to a\”small compartment of a ship\” as an example of a confined space and \”thespace at issue is a small compartment of a submarine which is indistinguishable from thatof a ship.\”ii.CBI’s main argument on this issue again centers onthe existence of other definitions of confined space. CBI has not, however, shown anyrelevancy of those definitions to the case before us. Regardless, it would appear thatCBI’s space would be confined under those standards as well. ANSI Z117.1 provides that aconfined space has a primary function for something other than human occupancy, arestricted entry and exit, and contains potential or known hazards. The space in questionis an area of the submarine that is not meant for human occupancy, has a restricted entryand exit, and may contain potential or known hazards during welding. In General Dynamics,we defined a confined space as an area with limited natural ventilation and limitedingress\/egress in which a toxic or oxygen deficient atmosphere could be created. GeneralDynamics, 15 BNA OSHC at 1284-85, 1991 CCH OSHD at p. 39,756. In the present case, theevidence establishes that Crapet was working in an area with limited natural ventilationand limited ingress\/egress, and that a toxic or oxygen deficient atmosphere could becreated in the space during the welding process.We therefore find that the administrative lawjudge did not err in concluding 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 judgeerred in affirming Serious Citation 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 an attendant outside thesection of submarine hull to observe and conduct rescue 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 procedureshall be stationed outside to observe the welder at all times and be capable of puttingrescue operations into effect.\” The judge noted that it is undisputed that no onefrom CBI was observing Crapet while he worked in the hull section. The judge contrastedthe testimony of Dean May, Jr., CBI’s shop superintendent, that there were inspectorsoccasionally checking 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 becharacterized as a confined space, the precaution of an attendant with a pre-plannedrescue procedure was not necessary. It relies on ANSI Z117.1, which does not require sucha precaution as long as there is adequate ventilation, and on, ANSI Z49.1-1988, Safety inWelding and Cutting, section 7.5, which does not require such a precaution unless there isan atmosphere inside the space that is immediately dangerous to life.[[6]] CBI notes thatthe record \”establishes that the atmosphere inside the hull section was far fromdangerous.\” CBI argues that even if there was a need for an attendant with apre-planned rescue procedure, the evidence establishes that Respondent had sufficientmeasures in place at the time of the inspection. CBI asserts that the record indicatesthat the \”welders are monitored and supervised by their foreman in addition to theassistant superintendent 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 ofadequate ventilation does not obviate an employees express duty to provide an attendantwhile welding in a confined space is taking place.\” She contends that \”[i]narguing that an attendant is not required so long as the ventilation is adequate, CBI isdoing nothing less than impermissibly questioning the wisdom of the Secretary’sstandard.\”ii.CBI has not dispute that it failed to have anattendant who was capable of putting a pre-planned rescue procedure into effect stationedoutside to observe the welder at all times. CBI only questions the standard and, pointingto other standards. asserts that an attendant is not necessary, because there was adequateventilation. The only reason CBI has given us for not following the clear command of theSecretary’s standard is that it differs from other workplace safety standards. However,CBI does not claim that these other standards apply to its workplace or that theirrequirements differ in any significant respect from the cited standard. We therefore findthat CBI violated 29 C.F.R. ? 1910.252 (e)(4)(iv) by falling to station an attendantoutside the section of submarine hull to observe and conduct rescue operations.4. Whether the administrative law judgeerred in characterizing as serious the violation of 29 C.F.R. ? 1910.252(e)(4)(iv)alleged in Serious Citation No. 1, Item 2(b)? i.\u00a0The judge affirmed the violation of section1910.252(e)(4)(iv) as serious. He relied on Davis’ testimony that the air hose used forventilation could not reach some areas where the welders had to work and on CBI’s practiceof heating the skin of the structure to 200* during the welding. The judge found thatthese factors resulted in poor ventilation in many work areas and caused welders toexperience breathing problems. CBI argues that [t]he record evidence is clear that anyhazards in the hull section were effectively controlled or eliminated by ventilation\”and that \”the Secretary has failed to show that the alleged violation had animmediate relation to safety or health.\” [[7]] CBI argues that if a violation isfound, it should be classified as de minimis with no abatement requirement because thealleged violation bears no direct or immediate relation to safety and health. CBI notesthat it is undisputed that the space where Crapet worked was being ventilated by onemechanical exhaust hose and two mechanical fresh air hoses.The Secretary argues that we should affirm thejudge’s classification of the violation as serious. The Secretary cites the complianceofficer’s testimony that harmful fumes might be present during the welding operationswhich, if inhaled, could cause an employee to pass out. The Secretary acknowledges thatCBI provided some ventilation through the use of air hoses, but she notes that the hosescould not reach some areas 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 existedwhere the record established a \”‘likelihood that various hazardous contaminants werein the atmosphere as a natural consequence of the welding operation being performed\”as well as a lack of sufficient ventilation to remove the contaminants or to prevent theaccumulation of an increasing concentration of the contaminants as the welding progressed.Dravo Corp., 7 BNA OSHC 2095, 2101, 1980 CCH OSHD ? 24,158, p. 29,370 (No. 16317, 1980).Here, the record establishes that various hazardous contaminants could be generated intothe atmosphere as a result of welding and that in some areas where welding was takingplace there was a lack of sufficient ventilation. Clearly, if an employee welding in thecited location needed to be rescued, there is a substantial probability that the failureto have an attendant stationed outside, who is able to put a preplanned rescue procedureinto effect, could result in death or serious physical harm. We therefore find that theviolation of the standard is properly characterized as serious.The Secretary proposed a $640 penalty for bothitems 2(a) and 2(b). The judge only found a violation of item 2(b). and assessed a penaltyof $320. Having considered the penalty factors enumerated in section 17(j) of the Act. 29U.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 affirma penalty of $320.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: December 21, 1992SECRETARY OF LABOR,Complainant, v.CBI SERVICES, INC, Respondent.OSHRC Docket No. 90-1719APPEARANCES: L. K. Cooper, Jr., Esquire, Office of the Solicitor, U. S.Department of Labor Birmingham, Alabama, on behalf on complainant. Richard J. Brodecki,Esquire, Assistant Counsel, CBI Services, Inc., Oak Brook, Illinois, on behalf ofrespondent. Larry R. Davis, President, Local 8311, United Steelworkers of America,Cordova, Alabama, on behalf of authorized employee representative.DECISION AND ORDERSALYERS, Judge: CBI Services, Inc. (CBI), operates a facilityin Cordova, Alabama, where it manufactures steel plated structures to be used as parts ofthe hulls of submarines (Tr. 115). CBI’s facility was inspected on March 14, 1990, by OSHAcompliance officer Horace McCann (Tr. 18). As a result of the inspection, CBI was issued acitation on May 9, 1990, Containing two items. Item 1 of the citation alleged a seriousviolation of 29 C.F.R. ? 1910.252 (e)(1)(ii) for failure to keep welding cables and otherequipment clear of passageways. Item, 2 of the citation alleges a serious violation of 29C.F.R. ? 1910.252 (e)(4)(iv) for failure to provide means for quickly removing weldersworking in confined spaces in case of emergency, and for failure to station an attendantwith 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 of the facility. Numerous cables are visible laying in a tangled pile on the floor (Tr.20). The cables were weld leads, electric pre-heat leads, and airhoses, all of which wereused in the assembly of the tank that appears at the right in Exhibit C-1 (Tr. 120). Theconfiguration of these cables creates an obvious tripping hazard to anyone attempting totraverse the area.CBI contends that it has permanent aisleways in its facilitythat are designated by yellow lines. Employees are not supposed to use the area depictedin Exhibits C-1 and C-2 as passageways. Respondent asserts that employees are only to beIn that area when performing work (Tr. 79, 119-120, 148).CBI argues that since the area inquestion was not a \”passageway\”, but a work area, the cited standard isinapplicable.In determining the application of the standard to the area inquestion, the actual use made of the area, and not its designation, must be considered.Compliance officer McCann observed several employees \”moving back and forth throughthis area\” (Tr. 22). An office trailer was located near the area, and when employeesleft the trailer, they passed through this area to get to other areas of the facility (Tr.22). McCann observed six to eight employees pass through the area during the course of hisinspection (Tr. 23). Dean May, CBI’s shop superintendent, testified that a majority of theemployees in the shop #3 area were working at this location, but also admitted that otheremployees \”passed through that area\” (Tr. 119).The evidence supports a finding that the shop #3 area was usedas a passageway by a number of CBI employees. This circumstance is sufficient to sustainthe 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 contained electrical equipmentand sharp protruding objects, which could have resulted in further injuries if an employeefell onto them (Tr. 26). The hazard presented by the cables could have resulted in aserious physical injury. Thus, the violation of ? 1910.252 (e) (1) (ii) was serious.ITEM 229 C.F.R. ? 1910.252 (e) (4) (iv) provides:Where a welder must enter a confined space through a manhole orother small opening, means shall be provided for quickly removing him in case ofemergency. When safety belts and lifelines are used for this purpose they shall be soattached to the welder’s body that his body cannot be jammed in a small exit opening. Anattendant with a pre-planned rescue procedure shall be stationed outside to observe thewelder at all times and be capable of putting rescue operations into effect.Item 2a of the citation alleges that \”[i]n welding shop #2where employees were required to enter vessel\/hulls of submarines through small openingsand weld in small confined spaces, no means was provided for quick removal of a welderfrom the confined space in case of emergency.\” Item 2b alleges that \”[i]nwelding shop #2 where employees were required to enter confined spaces and weld, anattendant with pre-planned rescue procedures was not stationed outside the confined spacesto observe and assist the welder(s) in case of an emergency.\”The space which the Secretary alleges is a \”confinedspace\” within the meaning of the cited standard is a section of a hull of a UnitedStates 688 Attack Submarine. One of the openings in a bulkhead of the section measured 20inches in diameter. The other opening was oblong, measuring 15 x 23 inches. There werethree additional openings in this section, two of which measured approximately six inchesto eight inches in diameter 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-10and C-11 show a hull section similar to the one in question, without the outer\”skin\” covering it (Tr. 117). Exhibit C-3 shows the actual hull section at issue(Tr. 138). Exhibit C-13 shows an employee working in a hull section which does not havethe \”skin\” on it. This section is similar to the interior of the hull whichemployee Johnny Crapet, a welder, entered (Tr. 55-56).McCann observed CBI employee Crapet climb a ladder leaningagainst the structure and enter the structure from an opening in the top (Tr. 37). Theopening was 20 inches in diameter (Exs. C-5 – C-9, Tr. 59). Crapet had to descend aboutnine feet to get to his work area, where he engaged in welding operations (Tr. 47).McCann did not enter the area where the welding was performednor was Crapet called as a witness by the Secretary to elaborate upon the conditions whichexisted in this area. However, Garry B. Davis, [[1]] called by the union representative,gave a vivid description of the maze-like conditions (Tr. 212) which existed inside thestructure.Davis testified it was necessary to go through a series ofcompartments in the structure to gain access to the working area (Tr. 211) This wasaccomplished by \”crawling a ladder\” and going through manholes, some of whichwere only twenty inches in diameter (Tr. 211). It was necessary for the welders to carry awelding whip and an air hose into the work areas. The air hose was used for ventilation toexhaust 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 welders experiencedbreathing problems (Tr. 224, 226). Lack of sufficient ventilation equipment also added tothis problem (Tr. 232). In addition to the welding fumes and poor ventilation in thesecompartments, Davis described a problem with excessive heat. This condition resulted fromthe fact that the outer \”skin\” of the structure was heated to 200 degrees duringthe welding process (Tr. 214-215).The size of the work areas varied, but Davis testified somewere \”three foot in size, two foot in size by eighteen inches tall, and you’ve got tocrawl up in there. You can’t sit up. There’s not room to sit up\” (Tr. 229). Davisused a table in the courtroom to depict the narrow confines of some\u00a0 work areas (Tr.230). This table measured about 36 inches high, 40 to 42 inches long and approximatelythree feet wide (Tr. 231). He testified he would consider this amount of space to be\”a good hole\” and that he worked in much smaller spaces (Tr. 231, 232). Thetestimony of Davis is convincing that welders routinely worked in very small areas wherebody movement was restricted and cramped.Before turning to the question of whether CBI was in violationof the confined space standard, it must first be determined whether the space at issue wasa 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 relativelysmall or restricted space such as a tank, boiler, pressure vessel, or small compartment ofa ship.CBI argues that this standard is \”vague in its definitionand thus unenforceable\” (CBI’s Brief, p. 10). CBI further argues that if the standardis not unenforceably vague, then outside sources must be consulted for guidance indefining a confined space. Specifically, CBI refers to ANSI Standard 117.1, which definesa confined space as \”[a]n enclosed area that has the following characteristics: itsprimary function is something other than human occupancy and it has restricted entry andexit 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 bySecretary have not met with much success. The ultimate question in such a challenge\”is whether the standard is so indefinite that men of common intelligence mustnecessarily at its meaning and differ as to its application.\” Allis-Chalmers Corp.v. OSAHRC, 542 F.2d 27, 30 (7th Cir. 1976). See also 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 \”confinedspace\” as defined in the Maritime Standards. 29 C.F.R. ? 1916.2(m) of thesestandards defines this term as:A confined space is…a compartment of small size and limited access such as adouble bottom tank, cofferdam, or other space which by its small size and confined naturecan readily create or aggravate a hazardous exposure.In striking down the vagueness defense, the Commission noted: Whenever an employer cannot determine whether a space isconfined or enclosed from the examples given in the definitions, the employer must use hisexperience, knowledge, and judgment to decide whether the hazard it which the standard isdirected is increased by the size and configuration of the space. A standard is not vaguesimply because its application requires the exercise of judgment. See, e.g. Allis-ChalmersCorp. v. OSAHRC, 542 F.2d 27, 30 (7th Cir. 1976); M-Co Equipment Company, Inc., 75 OSAHRC37\/C3, 2 BNA OSHC 1660, 1974-75 CCH OSHD ? 19,394 (No. 3811, 1975).The cited standard defines \”confined space\” in termsof \”relatively small or restricted space.\” This definition while general innature is sufficient to afford an employer with fair notice of the required conduct. RyderTruck Lines, supra. This is especially true when considered in conjunction with thefact that the definition includes as an example of \”confined space\” the\”small compartment of a ship.\” In this case, the space at issue is a smallcompartment of a submarine which is indistinguishable from that of a ship. Thecircumstances described in the record of this case bring the space at issue within theambit of the standard’s definition. ITEM 2aHaving determined that the area in question was a confinedspace it must now 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 orother small opening, means shall be provided for quickly removing him in case ofemergency. McCann testified May told him that CBI had no written emergencyprocedures to rescue welders (Tr. 61, 65) and that CBI had no means for quick removal of awelder from a confined space, other than cutting him out with a torch, a procedureestimated to take 30 minutes (Tr. 60-65). McCann’s testimony on this point was directlycontradicted by May at the hearing. May testified that prior to McCann’s inspection, CBIhad ropes, basket stretchers, and litters available to conduct a rescue procedure, as wellas cutting torches (Tr. 122). McCann acknowledged that ropes, basket stretchers andcutting torches were acceptable means for removing employees (Tr. 92-94). Because theexistence of the removal equipment is crucial to the resolution of this issue, it must bedetermined whether to credit McCann’s testimony over that of May’s.Both men appeared as credible, trustworthy witnesses. McCannhas been an industrial hygienist with OSHA since 1975 and has conducted over 400inspections (Tr.16-17). May had been at CBI for 26 years at the time of the hearing, andhad been shop superintendent for two years (Tr. 114). May was in a better position to knowwhat equipment was available than was McCann. What complicates the situation is thatMcCann supposedly got his information from May during the inspection. May was notquestioned at The hearing regarding his statements to McCann during the inspection. We areleft then to weigh the testimony of the two witnesses against each other.Unfortunately for the Secretary, she has the burden of proof onthe elements of the violation. Here, she has the burden of proving that CBI did not have\”means…for quickly removing\” a welder in an emergency. Her sole evidence onthe point is McCann’s statement that May told him no such means existed. Since May’stestimony flatly contradicts McCann’s, and May’s testimony was in no way discredited, itcannot be said that the Secretary around by a preponderance of the evidence that CBI didnot have the required means of removal available. Item 2a of the citation will be vacated.ITEM 2bItem 2b alleges that CBI violated that portion of ?1910.252(e)(4)(iv) that provides: \”an attendant with a preplanned rescue procedureshall be stationed outside to observe the welder at all times and be capable of puttingrescue operations into effect.\”It is undisputed that no one from CBI was observing Crapetwhile he worked in the hull section (Tr. 61). When asked about the monitoring of employeesworking in confined spaces, May replied (Tr. 123-124):The main responsibility falls on the employee’s immediatesupervisor…We have a general foreman of each of our weld shops. We’ve alsogot welding supervisors that are in and out of all the work areas checking or the qualityand on the progress of the work.We’ve also got inspectors that are also in and out of theseareas at different times.*******Then [the foremen] will follow that up later; follow theprogress. It may be from a distance. He may not go directly up to the person and talk tothem.Clearly, this procedure is inadequate to meet the requirementsof the standard. The standard requires that an attendant \”be stationed outside toobserve the welder at all times\”; (emphasis added). There is noprovision for the kind of spot checking that CBI has implemented. CBI was in violation of? 1910.252(e)(4)(iv) with respect to Item 2b.PENALTY DETERMINATIONThe Commission is the final arbiter of penalties in allcontested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8thCir. 1973). Under 17(j) of the Occupational Safety and Health Act of 1970 (Act), theCommission is required to find and give \”due consideration\” to the size of theemployer’s business, the gravity of the violation, the good faith of the employer, and thehistory of previous violations in determining the assessment of the appropriate penalty.CBI employs approximately 460 employees. CBI demonstrated goodfaith during the course of OSHA’s inspection and it had no previous history of citationsfor the same violations.Upon due consideration of the relevant factors, it is determined that a penalty determinedthat a penalty of $240.00 for the violation of ? 1910.252 (e) (1) (ii) (Item 1), and apenalty of $320.00 for the violation of ? 1910.252 (e) (4) (iv)) (Item 2b) areappropriate. FINDINGS OF FACT AND CONCLUSIONS OF LAWThe findings of fact and conclusions of law contained in thisopinion are incorporated herein in accordance with Rule 52 (a) of the Federal Rules ofCivil Procedure.ORDERIn view of the foregoing and good cause appearing in support ofthe determinations, it is ORDERED:1. That Item 1 of the citation is affirmed and a penalty of$240.00 is assessed 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 isassessed, and3. That Item 2b of the citation is affirmed and a penalty of320.00 is assessed for the violation of 29 C.F.R. ? 1910.252(e)(4)(iv).Dated this 13th day of June, 1991EDWIN G. SALYERSJudgeFOOTNOTES: [[1]] 29 C.F.R. ? 1910.252 (e)(4)(iv) provides:Where a welder must enter a confined space through a manhole orother small opening, means shall be provided for quickly removing him in case ofemergency. When safety belts and lifelines are used for this purpose they shall be soattached to the welder’s body that his body cannot be jammed in a small exit opening. Anattendant with a pre-planned rescue procedure shall be stationed outside to observe thewelder at all times and be capable of putting rescue operations into effect.On April 11, 1990, 29 C.F.R. ? 1910.252(c)(4) was recodifiedwithout any substantive 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 this decision.[[2]] Dean W. May, Jr., the shop superintendent for the Cordovafacility. testified that the measurements for the oval opening were 23 by 15 inches.[[3]] The judge found that even under ANSI Z117.1, the space inquestion would be considered a confined space.[[4]] At issue in Ed Taylor was the following direction of aconfined space in 29 C.F.R. ? 1926.21(b)(6)(ii): For the purposes of paragraph (b)(6)(i) of this section,\”confines or enclosed space\” means any space having a limited means of egress,which is subject to the accumulation of toxic or flammable contaminants or has an oxygendeficient atmosphere.\u00a0 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 indepth, such as pits, tubs, vaults, and vessels.[[5]] In General Dynamics, the Commission held:In summary, we find that the various standards and the experttestimony establish a consensus that a \”confined space\” is in area with limitednatural ventilation and limited ingress egress. Perhaps the most critical factor indetermining whether a space is \”confined\” is the introduction of some substanceinto the environment that, due to the lack of natural ventilation, may cause a toxic oroxygen deficient atmosphere.General Dynamics, 15 BNA OSHC at 1284-85, 1991 CCH OSHD at p.39,756. In the present case, the evidence establishes that Crapet was working in an areawith limited natural ventilation and limited ingress egress and that a toxic or oxygendeficient atmosphere could be created in the space during the welding process.[[6]] ANSI Z49.1-1988, section 7.5, provides as follows:Attendants in Areas Immediately Hazardous to Life. Whenoperations are carried on in confined spaces where atmospheres immediately hazardous tolife may be present or may develop, an attendant shall be stationed on the outside of theconfined space to ensure the safety of those working within.[[7]] For support, CBI notes Shop Superintendent May’stestimony that during the two years he held that position, he was not \”aware of anylost time to accidents in the plant that are related to atmospheric conditions in one ofthe vessels being constructed by the company.\”[[8]] The Secretary also argues that the Commission is withoutstatutory authority to classify a violation as de minimis. However this argument\u00a0 isin direct contrast to Commission precedent in which we have held that the Commission hsthe authority to determine that a citation is de minimis. Super Excavators, Inc., 15 BNAOSHC 1312, 1314, 1991 CCH OSHD ? 29,498, p. 39,802 (No. 89-2253, 1991).[[1]] Davis has worked as a welder for respondent during thepast 25 years and has been a member of the company safety committee for three years (Tr.209). During the period preceding the Secretary’s inspection, he worked as a welder in thesame areas and performed the same duties as Crapet except on a different shift (Tr. 210,212, 213, 228).[[2]] This Court disagrees. If the definition contained in thecited standard is clear, then the Court has no need to refer to other sources. This Courtfinds little consolation for respondent even if the ANSI definition should prevail. Thecharacteristics described in that definition would have clear application to the factscontained in the record of this case.”