A contractor recently succeeded, on appeal to the Occupational Safety & Health Review Commission (OSHRC), in getting a General Duty Clause citation issued in a confined space double-fatality dismissed because it was able to demonstrate “reasonable diligence” in its work practices and training.
In S.J. Louis Construction of Texas (OSHRC 2016), the employer was a utility contractor who had two employees enter a manhole for an active sewer line, one of whom was the crew leader. The workers died after they were exposed to toxic levels of hydrogen sulfide (H2S) and also suffered asphyxia from low oxygen concentrations. The crew leader entered the space first but had not discussed the dangers of entry or emergency procedures with his crew, nor did he perform any air monitoring, complete a permit as required by the employer’s confined space program, ventilate the space, wear personal protective equipment, or set up rescue equipment.
Once inside, the crew leader became incapacitated and while one crew member returned with a rope, he found the second crew member face down in the manhole. The crew leader’s body was eventually found in a reservoir about a mile away. When emergency personnel arrived, they found the concentrations of H2S at 60 ppm and oxygen levels were at 5 percent. At 6 percent or less oxygen, respiration ceases and it can be fatal within minutes, and H2S has a concentration limit of 10 ppm and is immediately dangerous to life and health at 100 ppm. This information was included in the contractor’s confined space program.
OSHA initially charged the employer under the general industry confined space standard, 29 CFR 1910.146 seeking nearly $21,000 in penalties, but had charged the employer in the alternative under Section 5(a)(1) of the OSH Act, the “General Duty Clause” (GDC), with a proposed $6,930 penalty. At the initial trial, the ALJ dismissed the general industry citations because the company was engaged in construction work but upheld the GDC citation with a $5,000 fine.
At the time of the accident, OSHA lacked a construction-specific confined space standard, but has since codified one that took effect in 2015. A confined space is one that has the potential to contain a hazardous atmosphere, has material that could engulf an entrant, has an internal configuration that could trap or asphyxiate an entrant, or contains any other recognized serious health or safety hazard.
To prove a GDC violation, OSHA has the burden of demonstrating that the employer had actual or constructive knowledge of the hazardous conditions that could cause death or serious physical harm, and there must be a feasible and effective means to eliminate or materially reduce the hazard. In determining reasonable diligence, OSHRC will consider factors including the employer’s obligations to implement adequate work rules, training programs, adequate supervision, and whether the employer anticipated hazards and took measures to prevent violations from occurring.
OSHA claimed that the company had constructive knowledge of the hazardous condition on the basis that it provided insufficient instruction to the crew leader, and that it had a deficient safety program. The instructions given prior to the accident were a series of conversations involving several individuals. The area manager’s intention was for the crew to evaluate the worksite (a residential neighborhood) for things like dogs and fences, and then another work crew would schedule to do the manhole plug removal—a “fit tested” crew who could enter a hazardous atmosphere while wearing appropriate respiratory protection.
When determining the adequacy of instructions, the OSHRC considered how effectively the information was communicated in light of the employee’s training and that more generalized instruction may be permitted if the employee has specialized training and experience. Here, the senior managers knew that the manhole was a confined space, and that H2S would be present, the crew leader was not authorized to perform permit-required confined space jobs, and the crew leader’s trailer containing the necessary equipment for confined space entry had broken down the day before the accident. The area manager testified at the first trial that he would not be surprised if the crew leader decided to “pop the lid and evaluate” the situation. The judge consequently found that the instructions were ambiguous, vague, and inadequate.
The OSHRC panel disagreed and found that the crew leader was authorized to enter a confined space as long as breathing apparatus was not required—e.g., by rendering the space safe through use of ventilation. The Commission also found that the crew leader fully understood the confined space training he had received on at least three occasions, including one class about 6 weeks prior to the accident. He had 22 years of experience in underground utility work and a spotless safety record at this company in his 7 years of employment.
OSHRC also found that the training and equipment provided to him (ventilation and rescue equipment, a permit entry form, and a gas monitor) were appropriate for his authorization to enter a confined space when breathing apparatus was not needed. Testimony concerning the discussions between the crew leader and the project coordinator further supported that additional instruction were not needed. OSHRC also found that the training, work rules, and safety program were appropriate, that the company safety director and five field safety supervisors conducted random safety audits, and that they examined confined space entry permits, noting if there were any deficiencies and discussing them with the employees. Disciplinary records also showed that employees were warned or suspended dozens of times for safety violations, including some involving confined spaces.
In short, OSHRC held that the Secretary did not establish that the company’s programs were deficient and it added that it was not foreseeable that the crew leader would engage in misconduct by entering the space in the manner that occurred. The bottom line is that, even when tragedy strikes, OSHA may not succeed in substantiating citations as long as the employer has a robust safety program, documents training, and diligently enforces its rules. ■
About the Author: Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions – May 2016
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