CBI Services, Inc.

Plain-English summary

CBI Services manufactured steel-plated submarine hull sections at its Alabama facility. OSHA observed a welder enter a hull section through restricted openings and work about nine feet below the entry point without an attendant stationed outside. The Commission held that the welding standard's definition of a confined space gave fair notice and covered the small, restricted submarine compartment. It rejected CBI's reliance on other standards that would require an attendant only when the atmosphere was immediately dangerous, because the cited OSHA standard expressly required continuous observation and a preplanned rescue procedure. Occasional checks by supervisors and inspectors did not satisfy the requirement to station an attendant outside at all times. The Commission affirmed the serious violation and assessed a $320 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.252(e)(1)(ii) and 1910.252(e)(4)(iv).
• Outcome: The serious confined-space welding violation was affirmed, with a $320 penalty; the separate passageway-cable item was not under Commission review.
• Key point: Welding in a small, restricted hull compartment required a continuously stationed attendant capable of carrying out a preplanned rescue, even when ventilation was considered adequate.

Full text (OSHRC public release)

Docket No. 90-1719

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
submarine hulls. Following an inspection at that facility, the Occupational Safety and
Health Administration ("OSHA") issued a citation which alleged in part a serious
violation of 29 C.F.R. � 1910.252(e)(4)(iv) [[1]] for CBI's failure to station an
attendant with a pre-planned rescue procedure outside a confined space. Review Commission
Administrative Law Judge Edwin G. Salyers found that the space in question was a
"confined space" within the meaning of the standard, affirmed the citation as
serious. and assessed a penalty of $320. For the reasons set forth below, we affirm a
serious violation of the standard and assess a penalty of $320.

I. Background

CBI's facility was inspected on March 14, 1990, by
OSHA Compliance Officer Horace McCann. During his inspection, McCann observed employee
Johnny Crapet climb up a ladder and enter into a 20-foot-tall section of a hull in order
to perform certain welding operations. Having entered the structure, Crapet climbed down
approximately nine feet to get to his work area, passing through openings that ranged from
20 inches in diameter to one that was oval in shape and measured approximately 26 by 15
inches.[[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 8
inches in diameter. As part of the welding process, the outer skin of the structure was
heated to 200*. The compliance officer testified that the hazards of welding in a confined
space include possible exposure to iron oxide, chromium, arsenic, carbon dioxide, or
carbon monoxide weld fumes. Other potential hazards include the lack of oxygen or
ventilation to remove any toxic materials. He testified that a welder who is in a confined
space and inhales 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 May of 1990. Neither party sought review of that portion of the
judge's decision relating to Item 1, and it is not at issue here. Items 2(a) and 2(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 to provide a means for quickly removing welders
working in confined spaces in case of emergency. The judge vacated the citation for item
2(a). He found that the Secretary failed to prove by a preponderance of the evidence that
CBI 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 attendant
with a pre-planned rescue procedure outside the confined space to observe and assist the
welder(s) in case of an emergency.

At the hearing, McCann did not testify about the
conditions in the area where Crapet welded because he had not entered that area. Nor did
the 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 by
the union representative to testify about the conditions inside the hull sections. Davis
worked as a welder in the same areas as Crapet and performed the same duties on a
different shift. Davis testified that some of the work areas were "three foot in
size, two foot in size by eighteen inches tall, and you've got to crawl up in there. You
can'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: we
don't have enough air movers." Davis testified that he had breathing problems while
he welded in spaces similar to the one in which Crapet worked during the compliance
officer's inspection.

In deciding item 2, Judge Salyers first determined
that Crapet was working in a confined space because "[t]he circumstances described in
the record of this case bring the space at issue within the ambit of the standard's
definition." The judge affirmed the citation for item 2(b). He found that CBI
violated that portion of the standard which requires that "an attendant with a
preplanned rescue procedure shall be stationed outside to observe the welder at all times
and be capable of putting rescue operations into effect." The Secretary proposed a
penalty of $640 for both items 2(a) and 2(b). The judge assessed a penalty of $320 for the
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
and item 2(b) in its entirety.

II. Issues on Review

1. Whether the administrative law judge erred in
   ruling 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 falling
   within the meaning of that term?

i.

The judge found that the space in question was a
confined space as defined by 29 C.F.R. � 1910.252(e)(4)(i). A confined space is defined
by this standard as follows:

As used herein, confined space is intended to
mean a relatively small or restricted space such as a tank, boiler, pressure vessel. or
small compartment of a ship.

The judge rejected both CBI's argument that the
standard is unenforceably vague, as well as its claim that if the standard is not
unenforceably vague, then other sources must be consulted for guidance in defining a
confined 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, there
is no need to refer to other sources.[[3]] The judge held that the definition of confined
space as a "relatively small or restricted space," while general in nature. is
sufficient 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 an
example of 'confined space' the 'small compartment of a ship'" and "the space at
issue is a small compartment of a submarine which is indistinguishable from that of a
ship."

CBI argues that section 1910.252(e)(4)(i) is
impermissibly vague in its definition of "confined space" and is therefore
unenforceable. CBI believes that the definition of confined space is insufficient to
provide fair notice to employers of conditions falling within that term. CBI notes that
when the compliance officer was asked for his definition of 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 with limited number of entries or exits ... to a
certain extent closed or confined where the possibility of hazards may be created as a
result 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 confined
spaces is compelling evidence that the standard is vague to the point of being
unenforceable."

CBI also appears to argue that the standard is
vague because more detailed definitions exist of what constitutes a confined space. CBI
claims. for example, that ANSI Z117.1 provides a more detailed definition of confined
spaces than the standard. This standard defines a confined 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 safety director, Mr. James Rhudy, relied on outside sources such as ANSI Z117.1
in testifying as to what is required for a confined space. Rhudy served on the ANSI
committee that developed ANSI Z117.1.

CBI also takes issue with the judge's finding that
because the standard mentions a "small compartment of a ship" as an example of a
confined space, and since the space would eventually be a compartment of a ship, the space
was a confined space. CBI argues that the judge ignored the fact that the space was still
under 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) ("General
Dynamics"), petition for review filed, No. 91-4052 (6th Cir. Nov. 8, 1991), to
illustrate "the nebulous parameters of the definition of a confined space." CBI
notes that "[a]lt no point ... did the Review Commission rely on or even cite the
definition of confined space set out in 1910.252(e)(4)(i)."CBI argues that [i]n light
of the Review Commission's examining numerous sources and ultimately developing its own
definition of confined space in General Dynamics, it would he incongruous to hold
Respondent to the amorphous definition of confined space contained in 1910.252(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
considerable difficulty identifying and defining what is a confined space, it would seem
that 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] reasonably
prudent employer can ... look to the natural and plain meaning of the words 'relatively
small or restricted space' and ascertain what is meant by confined space." The
Secretary admits that the definition incorporates an element of degree, but argues that
absolute precision in a standard is not required. She argues that a standard is not vague
because its application requires the exercise of judgment and that [t]he purported
vagueness of a standard is not judged from the face of the standard; it is determined in
light of the application of the standard to the facts of the case." Moreover, the
Secretary points out that the space at issue here "falls squarely within the
definition's inclusion, as an example of a 'small or restricted space,' of a 'small
compartment of a ship."' In response to CBI's claim that the cited compartment was
not yet a ship, the Secretary points out that "[i]f a ship's compartment is small or
restricted in the completed vessel, it Is likely to be small or restricted at some point
in 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 similar
definition of confined space was challenged.[[4]] There, the Fifth Circuit found that the
plain language of the regulation was unambiguous and that it gave clear warning of what
spaces are included under its terms. 938 F.2d at 1272. The court also determined that it
was irrelevant that anyone in the industry may have believed that a confined space may he
defined in another manner. Id.

For the purposes of paragraph (b)(6)(1) 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 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 in
depth such as pits, tubs, vaults. and vessels.

The Secretary contends that General Dynamics is
distinguishable from this case because it involved the Act's general duty clause, section
5(a)(1) of the Act, rather than a specific standard. The Secretary also states that the
relevance of CBI's argument that in General Dynamics the Commission failed to cite section
1910.252(e)(4)(i) is not clear. She points out that "[t]he Commission may not have
been aware of [1910.252(e)(4)(i)], or it may have concluded that the welding standard's
definition, being limited in its criteria was irrelevant to the type of analysis it was
doing." The Secretary argues that even under the General Dynamics test, the necessary
elements of a confined space were present.[[5]]

In its reply brief, CBI distinguishes Ed Taylor by
noting that it is a case which arose under the construction standards, 29 C.F.R. Part
1926, and that the definition in that standard provides "considerably more detail and
assistance to an employer in determining what is a confined space." CBI asserts that
this case is similar to the situation in Kropp Forge Co. v. Secretary of Labor, 657 F.2d
119 (7th Cir. 1981), where the court found unreasonably vague the Secretary's hearing
conservation regulation calling for an "effective" hearing conservation program.
CBI argues that "[d]etermining what a 'relatively' or 'somewhat' small or restricted
space is no easier or less subjective than determining what an 'effective' hearing
conservation program is."

ii.

CBI premises its notice argument on the vagueness
of the definition of a confined space in section 1910.252(e)(4)(i):

A relatively small or restricted space such as a
tank, boiler, pressure vessel, or small compartment of a ship.

In considering a vagueness claim, we have held
that the words of a standard are to be viewed in context, not in isolation, and that the
purported vagueness of a standard is not judged from the face of the standard but in light
of the application of the standard to the facts of the 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 process clause does not impose drafting requirements of mathematical precision or
impossible specificity. Id. Applying the standard to the facts of this case, we find that
the space Crapet was working in was a confined space within the meaning of section
1910.252(c)(4)(i). While CBI has brought a number of other definitions of confined space
to our attention, we are not persuaded that these definitions have any bearing on the one
before us.

We therefore find that the administrative law
judge did not err in ruling 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 of
conditions tailing within the meaning of that term.

2. Whether, with respect to his ruling on
   Serious Citation No. 1, Items 2(a) and (b), the administrative law judge erred 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) ?

i.

The judge held that the section of submarine hull
in question was a confined space within the meaning of the standard. He rejected CBI's
argument that outside sources, specifically ANSI Z117.1, must be consulted for guidance in
defining 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 confined
space. 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 issue
within 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 "the
space at issue is a small compartment of a submarine which is indistinguishable from that
of a ship."

ii.

CBI's main argument on this issue again centers on
the existence of other definitions of confined space. CBI has not, however, shown any
relevancy of those definitions to the case before us. Regardless, it would appear that
CBI's space would be confined under those standards as well. ANSI Z117.1 provides that a
confined space has a primary function for something other than human occupancy, a
restricted entry and exit, and contains potential or known hazards. The space in question
is an area of the submarine that is not meant for human occupancy, has a restricted entry
and 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 limited
ingress/egress in which a toxic or oxygen deficient atmosphere could be created. 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 area with limited natural ventilation
and limited ingress/egress, and that a toxic or oxygen deficient atmosphere could be
created in the space during the welding process.

We therefore find that the administrative law
judge 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 judge
   erred 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 the
   section 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 procedure
shall be stationed outside to observe the welder at all times and be capable of putting
rescue operations into effect." The judge noted that it is undisputed that no one
from CBI was observing Crapet while he worked in the hull section. The judge contrasted
the testimony of Dean May, Jr., CBI's shop superintendent, that there were inspectors
occasionally checking each welders' work, with the standard's, requirement that an
attendant be stationed outside to observe a welder at all times.

CBI argue, that even if the area question may be
characterized as a confined space, the precaution of an attendant with a pre-planned
rescue procedure was not necessary. It relies on ANSI Z117.1, which does not require such
a precaution as long as there is adequate ventilation, and on, ANSI Z49.1-1988, Safety in
Welding and Cutting, section 7.5, which does not require such a precaution unless there is
an atmosphere inside the space that is immediately dangerous to life.[[6]] CBI notes that
the record "establishes that the atmosphere inside the hull section was far from
dangerous." CBI argues that even if there was a need for an attendant with a
pre-planned rescue procedure, the evidence establishes that Respondent had sufficient
measures in place at the time of the inspection. CBI asserts that the record indicates
that the "welders are monitored and supervised by their foreman in addition to the
assistant 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 of
adequate ventilation does not obviate an employees express duty to provide an attendant
while welding in a confined space is taking place." She contends that "[i]n
arguing that an attendant is not required so long as the ventilation is adequate, CBI is
doing nothing less than impermissibly questioning the wisdom of the Secretary's
standard."

ii.

CBI has not dispute that it failed to have an
attendant who was capable of putting a pre-planned rescue procedure into effect stationed
outside to 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 us for not following the clear command of the
Secretary'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 their
requirements differ in any significant respect from the cited standard. We therefore find
that CBI violated 29 C.F.R. � 1910.252 (e)(4)(iv) by falling to station an attendant
outside the section of submarine hull to observe and conduct rescue operations.

4. Whether the administrative law judge
   erred 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. 

The judge affirmed the violation of section
1910.252(e)(4)(iv) as serious. He relied on Davis' testimony that the air hose used for
ventilation could not reach some areas where the welders had to work and on CBI's practice
of heating the skin of the structure to 200* during the welding. The judge found that
these factors resulted in poor ventilation in many work areas and caused welders to
experience breathing problems. CBI argues that [t]he record evidence is clear that any
hazards in the hull section were effectively controlled or eliminated by ventilation"
and that "the Secretary has failed to show that the alleged violation had an
immediate relation to safety or health." [[7]] CBI argues that if a violation is
found, it should be classified as de minimis with no abatement requirement because the
alleged violation bears no direct or immediate relation to safety and health. CBI notes
that it is undisputed that the space where Crapet worked was being ventilated by one
mechanical exhaust hose and two mechanical fresh air hoses.

The Secretary argues that we should affirm the
judge's classification of the violation as serious. The Secretary cites the compliance
officer's testimony that harmful fumes might be present during the welding operations
which, if inhaled, could cause an employee to pass out. The Secretary acknowledges that
CBI provided some ventilation through the use of air hoses, but she notes that the hoses
could not reach some areas where the welders had to work, resulting in poor ventilation in
many 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 record established a "'likelihood that various hazardous contaminants were
in 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 the
accumulation 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 into
the atmosphere as a result of welding and that in some areas where welding was taking
place there was a lack of sufficient ventilation. Clearly, if an employee welding in the
cited location needed to be rescued, there is a substantial probability that the failure
to have an attendant stationed outside, who is able to put a preplanned rescue procedure
into effect, could result in death or serious physical harm. We therefore find that the
violation of the standard is properly characterized as serious.

The Secretary proposed a $640 penalty for both
items 2(a) and 2(b). The judge 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. Order

Accordingly,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
a penalty of $320.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: 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 of Labor 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, Local 8311, United Steelworkers of America,
Cordova, Alabama, on behalf of authorized employee representative.

DECISION AND ORDER

SALYERS, Judge: CBI Services, Inc. (CBI), operates a facility
in Cordova, Alabama, where it manufactures steel plated structures to be used as parts of
the hulls of submarines (Tr. 115). CBI's facility was inspected on March 14, 1990, by OSHA
compliance officer Horace McCann (Tr. 18). As a result of the inspection, CBI was issued a
citation on May 9, 1990, Containing two items. Item 1 of the citation alleged a serious
violation of 29 C.F.R. � 1910.252 (e)(1)(ii) for failure to keep welding cables and other
equipment clear of passageways. Item, 2 of the citation alleges a serious violation of 29
C.F.R. � 1910.252 (e)(4)(iv) for failure to provide means for quickly removing welders
working in confined spaces in case of emergency, and for failure to station an attendant
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 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 were
used in the assembly of the tank that appears at the right in Exhibit C-1 (Tr. 120). The
configuration of these cables creates an obvious tripping hazard to anyone attempting to
traverse the area.

CBI contends that it has permanent aisleways in its facility
that are designated by yellow lines. Employees are not supposed to use the area depicted
in Exhibits C-1 and C-2 as passageways. Respondent asserts that employees 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 be considered.
Compliance officer McCann observed several employees "moving back and forth through
this area" (Tr. 22). An office trailer was located near the area, and when employees
left 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 his
inspection (Tr. 23). Dean May, CBI's shop superintendent, testified that a majority of the
employees in the shop #3 area were working at this location, but also admitted that other
employees "passed through that area" (Tr. 119).

The evidence supports a finding that the shop #3 area was used
as a passageway by a number of CBI employees. This circumstance is sufficient to 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 the
passageway presented a tripping hazard. The immediate area contained electrical equipment
and sharp protruding objects, which could have resulted in further injuries if an employee
fell onto them (Tr. 26). The hazard presented by the cables could have resulted in a
serious physical injury. 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
other small opening, means shall be provided for quickly removing him in case of
emergency. When safety belts and lifelines are used for this purpose they shall be so
attached to the welder's body that his body cannot be jammed in a small exit opening. An
attendant with a pre-planned rescue procedure shall be stationed outside to observe the
welder at all times and be capable of putting rescue operations into effect.

Item 2a of the citation alleges that "[i]n welding shop #2
where employees were required to enter vessel/hulls of submarines through small openings
and weld in small confined spaces, no means was provided for quick removal of a welder
from the confined space in case of emergency." Item 2b alleges that "[i]n
welding shop #2 where employees were required to enter confined spaces and weld, an
attendant with pre-planned rescue procedures was not stationed outside the confined spaces
to observe and assist the welder(s) in case of an emergency."

The space which the Secretary alleges is a "confined
space" within the meaning of the cited standard is a section of a hull of a United
States 688 Attack Submarine. One of the openings in a bulkhead of the section measured 20
inches in diameter. The other opening was oblong, measuring 15 x 23 inches. There were
three additional openings in this section, two of which measured approximately six inches
to 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-10
and 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 have
the "skin" on it. This section is similar to the interior of the hull which
employee Johnny Crapet, a welder, entered (Tr. 55-56).

McCann observed CBI employee Crapet climb a ladder leaning
against the structure 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). Crapet had to descend about
nine 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 performed
nor was Crapet called as a witness by the Secretary to elaborate upon the conditions which
existed 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 the
structure.

Davis testified it was necessary to go through a series of
compartments in the structure to gain access to the working area (Tr. 211) This was
accomplished by "crawling a ladder" and going through manholes, some of which
were only twenty inches in diameter (Tr. 211). It was necessary for the welders to carry a
welding whip and an air hose into the work areas. 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 welders experienced
breathing problems (Tr. 224, 226). Lack of sufficient ventilation equipment also added to
this problem (Tr. 232). In addition to the welding fumes and poor ventilation in these
compartments, Davis described a problem with excessive heat. This condition resulted from
the fact that the outer "skin" of the structure was heated to 200 degrees during
the welding process (Tr. 214-215).

The size of the work areas varied, but Davis testified some
were "three foot in size, two foot in size by eighteen inches tall, and you've got to
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 confines of some  work areas (Tr.
230). This table measured about 36 inches high, 40 to 42 inches long and approximately
three 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). The
testimony of Davis is convincing that welders routinely worked in very small areas where
body movement was restricted and cramped.

Before turning to the question of whether CBI was in violation
of the confined space standard, it must first be determined whether the space at 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 or restricted space such as a tank, boiler, pressure vessel, or small compartment of
a ship.

CBI argues that this standard is "vague in its definition
and thus unenforceable" (CBI's Brief, p. 10). CBI further argues that if the standard
is not unenforceably vague, then outside sources must be consulted for guidance in
defining a confined space. Specifically, CBI refers to ANSI Standard 117.1, which defines
a confined space as "[a]n enclosed area that has the following characteristics: its
primary function is something other than human occupancy and it has restricted entry and
exit and it may contain potential or known hazards."

CBI contends that � 1910.252(e)(4)(iv) is enforced, primary
consideration must be given to the ANSI definition [[2]]

Vagueness challenges directed at standards promulgated by
Secretary 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 must
necessarily 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), the
employer 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
double bottom tank, cofferdam, or other space which by its small size and confined 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 or enclosed from the examples given in the definitions, the employer must use his
experience, knowledge, and judgment to decide whether the hazard it which the standard is
directed is increased by the size and configuration of the space. A standard is not vague
simply because its application requires the exercise of judgment. See, e.g. Allis-Chalmers
Corp. v. OSAHRC, 542 F.2d 27, 30 (7th Cir. 1976); M-Co Equipment Company, 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 "relatively small or restricted space." This definition while general in
nature is sufficient to afford an employer with fair notice of the required conduct. Ryder
Truck Lines, supra . This is especially true when considered in conjunction with the
fact 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 small
compartment of a submarine which is indistinguishable from that of a ship. The
circumstances described in the record of this case bring the space at issue within the
ambit of the standard's definition.

ITEM 2a

Having determined that the area in question was a confined
space 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 or
other small opening, means shall be provided for quickly removing him in case of
emergency.

McCann testified May told him that CBI had no written emergency
procedures to rescue welders (Tr. 61, 65) and that CBI had no means for quick removal of a
welder from a confined space, other than cutting him out 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 the hearing. 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 removing employees (Tr. 92-94). Because the
existence of the removal equipment is crucial to the resolution of this issue, it must be
determined whether to credit McCann's testimony over that of May's.

Both men appeared as credible, trustworthy witnesses. McCann
has been an industrial hygienist with OSHA since 1975 and has conducted over 400
inspections (Tr.16-17). May had been at CBI for 26 years at the time of the hearing, and
had been shop superintendent for two years (Tr. 114). May was in a better position to know
what equipment was available than was McCann. What complicates the situation is that
McCann supposedly got his information from May during the inspection. May was not
questioned at The hearing regarding his statements to McCann during the inspection. We are
left then to weigh the testimony of the two witnesses against each other.

Unfortunately for the Secretary, she has the burden of proof on
the 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 on
the point is McCann's statement that May told him no such means existed. Since May's
testimony flatly contradicts McCann's, and May's testimony was in no way discredited, it
cannot be said that the Secretary around by a preponderance of the evidence that CBI did
not have the required means of removal available. Item 2a of the citation 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 be stationed outside to observe the welder at all times and be capable of putting
rescue operations into effect."

It is undisputed that no one from CBI was observing Crapet
while he worked in the hull section (Tr. 61). When asked about the monitoring of employees
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
got welding supervisors that are in and out of all the work areas checking or the quality
and on the progress of the work.

We've also got inspectors that are also in and out of these
areas at different times.

Then [the foremen] will follow that up later; follow the
progress. It may be from a distance. He may not go directly up to the person and talk to
them.

Clearly, this procedure is inadequate to meet the requirements
of the standard. The standard requires that an attendant "be stationed outside to
observe the welder at all times "; (emphasis added). There is no
provision 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 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 violations in determining the assessment of the appropriate penalty.

CBI employs approximately 460 employees. CBI demonstrated good
faith during the course of OSHA's inspection and it had no previous history of citations
for the same violations.

Upon due consideration of the relevant factors, it is determined that a penalty 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 the violation of � 1910.252 (e) (4) (iv)) (Item 2b) are
appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact and conclusions of law contained in this
opinion are incorporated herein in accordance with Rule 52 (a) of the Federal Rules of
Civil Procedure.

ORDER

In view of the foregoing and good cause appearing in support of
the 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 is
   assessed, and

3. That Item 2b of the citation is affirmed and a penalty of
   320.00 is assessed for the violation of 29 C.F.R. � 1910.252(e)(4)(iv).

Dated this 13th day of June, 1991

EDWIN G. SALYERS

Judge

FOOTNOTES:

[[1]] 29 C.F.R. � 1910.252 (e)(4)(iv) provides:

Where a welder must enter a confined space through a manhole or
other small opening, means shall be provided for quickly removing him in case of
emergency. When safety belts and lifelines are used for this purpose they shall be so
attached to the welder's body that his body cannot be jammed in a small exit opening. An
attendant with a pre-planned rescue procedure shall be stationed outside to observe the
welder 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 recodified
without 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 Cordova
facility. 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 in
question would be considered a confined space.

[[4]] At issue in Ed Taylor was the following direction of a
confined 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 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, such as pits, tubs, vaults, and vessels.

[[5]] In General Dynamics, the Commission held:

In summary, we find that the various standards and the expert
testimony establish a consensus that a "confined space" is in area with limited
natural ventilation and limited ingress egress. Perhaps the most critical factor in
determining whether a space is "confined" is the introduction of some substance
into the environment that, due to the lack of natural ventilation, may cause a toxic or
oxygen 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 area
with limited natural ventilation and limited ingress egress and that a toxic or oxygen
deficient 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. When
operations are carried on in confined spaces where atmospheres immediately hazardous to
life may be present or may develop, an attendant shall be stationed on the outside of the
confined space to ensure the safety of those working within.

[[7]] For support, CBI notes Shop Superintendent May's
testimony that during the two years he held that position, he was not "aware of any
lost time to accidents in the plant that are related to atmospheric conditions in one of
the vessels being constructed by the company."

[[8]] The Secretary also argues that the Commission is without
statutory authority to classify a violation as de minimis. However this argument  is
in direct contrast to Commission precedent in which we have held that the Commission hs
the authority to determine that a citation is de minimis. 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 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 the
same 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 the
cited standard is clear, then the Court has no need to refer to other sources. This Court
finds little consolation for respondent even if the ANSI definition should prevail. The
characteristics described in that definition would have clear application to the facts
contained in the record of this case.