Pittsburgh Des Moines Steel Co.; Stone & Webster Engineering Corp.; Dravo Corp.

Plain-English summary

The three contractors were building an 80-foot-wide, open-top reactor structure at the Shoreham Nuclear Power Station. OSHA cited them for bringing gas cylinders into a confined space, failing to provide ventilation for welding in a confined space, and lacking two means of egress. The judge found that the large open-top structure was not a confined space under the cited rules and that the general-industry exit rule did not apply to a building during construction. OSHA abandoned its proposed alternative general-duty allegations during Commission review. The Commission affirmed vacation of all three contested citation types and their proposed penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.350(b)(4), 1926.353(b)(1), and 1910.36(b)(8)
• Outcome: The contested confined-space and means-of-egress citations against all three contractors were vacated.
• Key point: The Commission agreed that this large, open-top reactor structure was not a confined space under the cited construction rules and that the cited exit rule did not govern a structure still under construction.

Full text (OSHRC public release)


Document

UNITED STATES
OF
AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO.

7290, 7291, 7301

PITTSBURGH DES MOINES STEEL CO.,

S TONE & WEBSTER ENGINEERING CORP.,

DRAVO CORP.

Respondent s .

September 10, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A decision of Review Commission Judge Joseph Chodes,
dated May 14, 1975, which is attached hereto as Appendix A, 1
is before this Commission for review pursuant to 29 U.S.C. §   661( i ). That decision vacated those portions of three citations which alleged that each respondent had violated 29 U.S.C. § 654(a)(2) by failing to comply with the occupational safety standards codified at 29 C.F.R. §§ 1926.350(b)(4), 1926.353(b)(1), and 1910.36(b)(8).

Review was directed on whether the Judge erred in denying complainant’s motion to amend the citations and complaints to allege in the alternative that respondents violated 29 U.S.C. § 654(a)(1) and on the correctness of the Judge’s disposition of the
aforementioned charges . 2
We
agree with the Judge’s vacation of the charges for the reasons given in his decision. Since the complainant in his review brief has indicated that he no longer desires to pursue his motion to amend the citations and complaints, discussion of this issue is obviated.

Accordingly, the Judge’s decision is affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: SEP 10, 1976

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I concur with my colleagues’ affirmance of the Judge’s decision insofar as the alleged violation of section 1910.36(b)(8) is concerned. The Judge correctly held that the cited standard contemplates protecting a building’s occupants from hazards associated with smoke and
fire, and
is inapplicable to a structure during construction. I also agree that the Secretary has abandoned his motion to amend in the alternative, to
alleged
a violation of section 5(a)(1) of the Act, and that the issue is no longer before us on review.

I dissent, however, from their affirming the part of the Judge’s decision vacating the citations alleging violations by each respondent of the standards published at 29 CFR §   1926.350(b)(4) and § 1926.353(b)(1). 3

At the time of the inspection preceding the issuance of these citations, respondents were engaged in construction activities in the reactor building of a nuclear power station. The building
was circular, having an 80-foot diameter at ground level, walls 50 feet in height, and an open top. Respondents were alleged to have been in violation of the cited standards in that oxygen and fuel gas cylinders were located on the building floor, which constitutes a ‘confined space’ within the meaning of section 1926.350(b)(4) and the definition in section 1926.21(b)(6)(ii). 4
Also, it was alleged that ventilation systems were not provided in the same confined space in contravention of the requirement of section 1926.353(b)(1).

After the pleadings were filed, respondents’ motion to consolidate the cases was granted. Thereafter, respondents filed a motion to dismiss, pursuant to Commission Rule 2(b), 29 CFR §   2200.2(b), and Fed. R. Civ. p. 12(b), for failure of the complaint to state a claim upon which relief may be granted on the grounds that it alleges violations of standards which are
unenforceably
vague and which, in the alternative, are inapplicable to respondents. In support of the motion, by affidavit and memorandum, respondents contended that the reactor building is not a ‘confined space’ and that, if it were interpreted to be a confined space, the term is
unenforceably
vague.

The Secretary, in his response to the motion to dismiss, relied upon the definition at §   1926.21(b)(6)(ii), and argued that the Commission could find that the interior of the reactor constitutes a confined space, and is subject to the accumulation of toxic of flammable contaminants. In reply, respondents claimed that the Secretary has attempted to vary the proof from his original complaint. Respondents argued that they were prejudiced by the Secretary’s attempting to establish a violation based upon the accumulation of air contaminants rather than merely upon the presence of gas cylinders in the reactor building.

In his decision Judge Chodes ruled that ‘the reactor building does not equate with any of the dictionary definitions of a ‘confined’ space.’ He also found that it was not a ‘confined or enclosed space’ as that term is defined by section 1926.21(b)(6)(ii). Accordingly, he ordered that the complaint be dismissed. He made no mention of Fed. R. Civ. P. 12(b)(6) or the grounds for
granting a motion pursuant to that rule. In affirming ‘the Judge’s vacation of the charges for the reasons given in his decision,’ my colleagues compound the error of ignoring the nature of the motion which was before the Judge.

With respect to a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, it is black-letter law that all well pleaded allegations of the complaint are to be taken as admitted.
Spector Freight System, Inc. , 3 BNA OSHC 1233, 1974–75 CCH OSHD para. 19,718 (No. 3661, 1975) and cases cited therein. It is improper to dismiss a complaint ‘unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.’
Hudson v. Hardy , 412 F.2d 1091, 1093 (D.C. Cir. 1968), citing
Conley v.
Gibsen , 355 U.S. 41 (1957).
Also
to be considered is the mandate of Fed. R. Civ. P. 8(f) that all pleadings be construed to do substantial justice.

In my opinion, the majority and the Administrative Law Judge erred. What is controlling here is a regulatory definition rather than a dictionary definition. 5
The obvious purpose of the cited standards is to keep any enclosed or confined area safe from the possible accumulation of toxic or flammable contaminants. In this connection, the definition in section 1926.21(b)(6) contains a limitation that the space be subject to the accumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere. The application of the definition requires a factual assessment that cannot be properly made without a hearing. I would therefore remand the case for a hearing on the merits.

UNITED STATES
OF
AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO.

7290, 7291, 7301

PITTSBURGH DES MOINES STEEL CO.,

S TONE & WEBSTER ENGINEERING CORP.,

DRAVO CORP.

Respondent s .

May 14, 1975

Memorandum and Order

The
above entitled
consolidated cases are proceedings under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) in which the respondents are contesting citations issued and proposed penalties assessed by the complainant for violation of certain standards promulgated by the complainant and codified in 29 Code of Federal Regulations, Chapter XVII, Parts 1910 and 1926. The citations were issued on March 12, 1974, following an inspection made on March 5, 6 and 7, 1974, of the Shoreham Nuclear Power Station, Unit 1, Wading River, New York.

The respondents have filed notices of contest which conferred jurisdiction on the Occupational Safety and Health Review Commission under the provisions of section 10(a) of the Act (29 U.S.C. § 659(a)). Complaints and answers were filed pursuant to Rule 33 of the Rules of Procedure of the Review Commission.

The respondents have moved for an order dismissing the complaints and vacating the citations and proposed penalties. The grounds for the motion are that the complaints fail to state a claim upon which relief can be granted and that the standards allegedly violated are
unenforceably
vague and inapplicable to the respondents.

On March 12, 1975, complainant filed a motion to amend the citations and complaints to include allegations that each of the respondents violated in the alternative sections 5(a)(1) and/or
5(a)(2) of the Act in that each respondent did not furnish to each of his
employees
employment and a place of employment which were free from recognized hazards that were likely to cause death or serious physical harm to his employees.

Briefs and accompanying affidavits were submitted by the parties in support of their respective positions.

The amendments to the complaints were proposed by the complainant long after the period within which citations must issue under section 9(c) of the Act (29 U.S.C. § 658(c)). The amendments contemplate a substantial change in the allegations charged against the respondents. In
Secretary v.
Murro
Chemical Company , Inc., 12 OSAHRC 364 (1974), Commissioner Van
Namee , commenting on an amendment of the charge from section 5(a)(2) to section 5(a)(1) of the Act, stated that the amendment ‘added a complicated new issue to the case, i.e., the existence of a ‘recognized hazard’ and that ‘[a] last minute change of tactics should not be condoned where respondent suffers prejudice.’ This view was shared by Chairman Moran, and while opposed by Commissioner Cleary,
is considered to be
the opinion of the Commission. In the opinion of the
undersigned
it would be unfair to allow at this late date a substantial change in the violations charged against the respondents.

At the time of inspection, the respondents were engaged in construction work for the Long Island Lighting Corporation of a reactor building, a circular containment structure about 80 feet in diameter and 50 feet in depth with an open top. The reactor building was to contain a nuclear reactor and associated radioactive nuclear fuel. The building was part of a nuclear fueled generating station. 6

Each of the respondents was cited for violations of
a number of
occupational safety standards, but only three of the alleged violations are being contested. 7
The contested items allege violations of the following standards:

1. 29 C.F.R. § 1926.350(b)(4)

Cylinders containing oxygen or
acetylene
or other fuel gas shall not be taken into
confined spaces . (Emphasis added.)

2. 29 C.F.R. § 1910.36(b)(8)

Every building or structure, section, or area thereof of such size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, shall have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions.

3. 29 C.F.R. § 1926.353(b)(1)

Welding, cutting, and heating in confined spaces. (1) Except as provided in subparagraph (2) of this paragraph and paragraph (c)(2) of this section, either general mechanical or local exhaust ventilation meeting the requirements of paragraph (a) of this section shall be provided whenever welding, cutting, or heating is performed in a
confined space . (Emphasis added.)

Violations of the standards in items 1 and 3 can only be sustained if the alleged violations occurred in a ‘confined space.’ Webster’s Unabridged Third New International Dictionary variously defines ‘confine’ as ‘to keep in narrow cramped quarters’, ‘to keep in a limited space or limited area’ and ‘enclosed or otherwise limited space or area’. The complaint refers to 29 C.F.R. § 1926.21(b)(6)(ii) which, under the heading ‘General safety and health provisions’ provides:

For purposes of subdivision ( i ) of this subparagraph, ‘confined 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 oxygen deficient atmosphere. Confined or enclosed spaces 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 in depth such as pits, tubs, vaults, and vessels.

At first glance, it is obvious that the reactor building does not equate with any of the dictionary definitions of a ‘confined’ space.
Certainly
the building, at the time of inspection, was not within the concept of ‘narrow or cramped quarters’, ‘limited area’ or ‘enclosed’ area. Nor is it reasonable to conclude that the work site involved herein, considering its vast dimensions and completely open roof, is within the definition or ‘confined or open space’ set forth in section 1926.21(b)(6)(ii). None of the examples of ‘confined or enclosed spaces’ cited in the standard contemplate a building or structure with the characteristics of the reactor building. In
Secretary v. American
Notors
Corporation , 3 OSAHRC 728 (1973) the Commission upheld a decision holding that an area 50 by 50 feet with a 16-foot ceiling was not a confined space.

With respect to item 2, failure to have at least two means of egress from the reactor building as a protection against fire, it is significant that the standard respondents allegedly violated, 29
C.F.R. § 1910.36(b)(8), appears in Part 1910, Occupational Safety and Health Standards, the so-called general industry standards, and not in Part 1926, Safety and Health Standards for Construction, despite the fact that specific standards covering fire protection and prevention during construction are found at 29 C.F.R. §§ 1926.150–155. This circumstance and the wording of the standards under section 1910.36(b) impel the conclusion that the standards apply only to buildings and structures which have been completed and not during the period of construction.

Section 1910.36(b)(2) speaks of construction of buildings and structures to avoid undue danger from fire to the lives and safety of its occupants. Section 1910.36(b)(3) refers to fire exits appropriate to the building or structure with due regard to the character of the occupancy
so as to
afford all occupants convenient facilities for escape. Section 1910.36(b)(4) requires that exits in buildings and structures be so arranged as to
provide free egress from the building or structure at all times
when it is occupied. Section 1910.36(b)(5) refers to clearly visible exits so that every occupant will readily know the direction of escape. Section 1910.36(b)(8), the standard respondents are charged with violating, refers to ‘the reasonable safety of numbers of occupants.’

Another indication that section 1910.36(b) does not apply to buildings and structures under construction is found in section 1910.36(b)(1) which limits application of the standards to buildings and structures ‘designed for human occupancy’. There is no rational basis for providing different fire protection during construction of a building dependent on whether the building is intended for human occupancy or for other purposes. In any case, when the reactor building is completed there will be no communication between the inside and outside of the building so that it can hardly be said that it was ‘designed for human occupancy’.

Due deliberation having been had on the motions, the supporting documents, the briefs submitted and on all the documents and papers heretofore filed in this proceeding, it is hereby

ORDERED that the complainant’s motion to amend the complaints be denied; and it is further

ORDERED that the complaints filed against the respondents, Pittsburgh Des Moines Steel Company, Stone & Webster Engineering Corporation, and
Dravo
Corporation be dismissed; and it is further

ORDERED that the citations issued against the respondents, Pittsburgh Des Moines Steel Company, Stone & Webster Engineering Corporation, and
Dravo
Corporation for violation of the standards set forth at 29 C.F.R. § 1926.350(b)(4), 29 C.F.R. § 1910.36(b)(8); and 29 C.F.R.
§   1926.353(b)(1), and the penalties proposed by the complainant for such violations, are hereby vacated.

JOSEPH CHODES

Judge, OSAHRC

Dated: MAY 14, 1975

Hyattsville, Maryland

"

1
Chairman
Barnako
does not agree to this attachment.

2
The Judge held that 29 C.F.R. §§ 1926.350(b)(4) and 1926.353(b)(1) did not apply to the reactor building upon which respondents were performing construction work because that building did not constitute a ‘confined space’ which is a requirement for establishing a violation of both standards. The vacation of these charges does not leave respondent’s employees unprotected, however, because 29 C.F.R. § 1926.353(e)(1) requires that ‘suitable mechanical ventilation or respiratory protective equipment shall be provided’ where, ‘because of unusual physical or atmospheric conditions, an unsafe accumulation of contaminants exists’ during welding, cutting, and heating operations.

3
§ 1926.350 Gas Welding and Cutting

(b) Blowing cylinders

(4) Cylinders containing oxygen or
acetylene
or other fuel gas shall not be taken into confined spaces.

§ 1926.353 Ventilation and Protection in Welding, Cutting, and Heating

(b) Welding, cutting, and heating in confined spaces

(1) Except as provided in paragraph (b)(2) of this section, and paragraph (c)(2) of this section, either general mechanical or local exhaust ventilation meeting the requirements of paragraph (a) of this section shall be provided whenever welding, cutting, or heating is performed in a confined space.

4
29 CFR 1926.21(b)(6)(ii) provides as follows:

For purposes of paragraph (b)(6)( i ) of this section, ‘confined 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 oxygen deficient atmosphere. Confined or enclosed spaces 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 in depth such as pits, tubs, vaults, and vessels.

5
The Judge erred in any event in considering the ordinary meaning of the term ‘confined.’ To confine is to restrict or limit. Webster’s Unabridged Third New International Dictionary. A space may be large, as well as small, and yet be limited or restricted. Compare Words and Phrases, ‘Open space .’

6
A photograph of the reactor
building
and work site is in the record.

7
All other cited violations have become final orders of the Commission under the provisions of section 10(a) of the Act (29 U.S.C. § 659(a)).