Offshore Shipbuilding, Inc.

Plain-English summary

Offshore Shipbuilding was repairing a ferry at its Florida shipyard after agreeing in an earlier settlement to correct cited safety violations. The Commission affirmed a repeated training violation because a newly hired welder entered a ballast tank without confined or enclosed-space training; the rule addresses the potential for a dangerous atmosphere and did not require OSHA to prove that an actual hazardous atmosphere existed. It also affirmed failure to abate the rescue-team requirement because Offshore's internal team lacked required respirators and training, while the local fire department had said it lacked the equipment and training needed for an outside rescue arrangement. A second failure-to-abate item involved the absence of a completed written bloodborne-pathogens exposure control plan for designated first-aid responders. The Commission reduced the judge's $75,000 penalty for that paperwork-related item to $7,500 based on low exposure likelihood, the small shipyard operation, partial abatement, and completion of the plan before the follow-up inspection ended. It left the repeated-training penalty at $7,500 and the rescue-team failure-to-abate penalty at $14,000, for total penalties of $29,000. Commissioner Visscher dissented from the training item because he believed the tank had not yet become enclosed while the employee worked in it.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1915.12(d)(2) (training before entry), § 1915.12(e) (rescue teams), and § 1915.1030(c)(1)(i) (bloodborne-pathogens exposure control plan)
• Outcome: Affirmed. The repeated training item and both failure-to-abate items were affirmed, with penalties totaling $29,000 after one penalty was reduced.
• Key point: Maritime entry training is triggered by the potential hazards of confined or enclosed spaces, while a rescue arrangement and exposure-control plan must be operational, not merely contemplated or partially drafted.

Full text (OSHRC public release)

                             United States of America
            OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                        1120 20th Street, N.W., Ninth Floor
                           Washington, DC 20036-3419




 SECRETARY OF LABOR,
                 Complainant,
                       v.                            OSHRC Docket No. 97-257
 OFFSHORE SHIPBUILDING, INC.,


                 Respondent.




                                        DECISION
Before: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.
BY THE COMMISSION:
      This case arises out of a citation and a notification of failure to abate violations issued
by the Secretary of Labor (“the Secretary”) to Offshore Shipbuilding, Inc. (“Offshore”).
During the times in question, Offshore operated a shipyard in Palatka, Florida.
      In June 1995, the Secretary of Labor issued a citation alleging that Offshore had
violated a number of occupational safety and health standards issued under 29 U.S.C.
§ 654(a)(2), section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§§ 651-678 (“the Act”). That citation was resolved by a settlement agreement between
Offshore and the Secretary in which Offshore agreed to abate the cited violations. During
late August and early October 1996, a compliance officer (“the CO”) of the Occupational
Safety and Health Administration of the Department of Labor (“OSHA”) conducted a
follow-up inspection to determine whether the violations had been abated. As a result of
                                                   2

that inspection, OSHA issued Offshore one citation as well as one notification of failure to
abate violations under section 10(b) of the Act, 29 U.S.C. § 659(b).
          The citation alleged a repeated violation of the maritime confined space training
standard. The notification of failure to abate (“FTA notice”) alleged that Offshore had failed
to correct two violations cited in the 1995 citation. Offshore contested the citation and the
FTA notice, and a hearing was held before Administrative Law Judge Ken Welsch. The
judge affirmed all three items, and Offshore petitioned for review of the judge’s decision.
The decision was directed for review pursuant to section 12(j) of the Act, 29 U.S.C. §
661(j).
                                       FAILURE TO TRAIN
          In the first item on review, the Secretary alleged that Offshore had committed a
repeated violation of the maritime confined space standard at 29 C.F.R. § 1915.12(d)(2) by
failing to give an employee confined space entry training before he entered a confined
space.1


          1
              Section 1915.12(d)(2) provides:
                    § 1915.12 Precautions and the order of testing before
                    entering confined and enclosed spaces and other dangerous
                    atmospheres.
                    ....
                    (d) Training of employees entering confined and enclosed
                    spaces or other dangerous atmospheres.
                    ....
                    (2) The employer shall ensure that each employee who enters a
                    confined space, enclosed space, or other areas with dangerous
                    atmospheres is trained to:
                    (i) Recognize the characteristics of the confined space;
                    (ii) Anticipate and be aware of the hazards that may be faced
                    during entry;
                    (iii) Recognize the adverse health effects that may be caused by
                    the exposure to a hazard;
                    (iv) Understand the physical signs and reactions related to
                    exposures to such hazards;
                                                                                       (continued...)
                                               3

                                             Facts
       The OSHA compliance officer began her follow-up inspection in late August of 1996
but did not complete it until October because several Offshore employees were on vacation
and were not available to be interviewed. During both visits, Offshore was performing
extensive repairs on a ferry called the Captain Rusty. The job included cutting out and
replacing badly rusted steel plates. In August, Offshore had removed the deck plates, so the
below-decks area was open. When the CO returned in October, Offshore was replacing the
deck plates over a ballast tank. The ballast tank was approximately 12 feet by 13 feet by 19
feet. It had three openings: two 18-to-22-inch diameter holes in the deck for access, and
a hole approximately 10 feet by 18 inches running horizontally approximately 4 feet above
the floor of the tank.
       The compliance officer learned from Offshore’s paint foreman that a new employee
had been in the ballast tank welding the overhead deck plates. When she interviewed the
welder, he told her that he had been hired by Offshore the previous day and had not been
given any training by the company before he began working in the ballast tank. When the
welder began the job, the ballast tank was open, but he had closed himself in as the work
progressed. The CO considered the ballast tank to be a confined space “because it is not
intended for employees to work in on a regular basis. It’s small, it has limited access, it can
create or aggravate a serious situation” such as chemical exposure, explosive atmosphere,
fumes, or lack of oxygen. She therefore concluded that Offshore had violated section
1915.12(d)(2).




       1
           (...continued)
                  (v) Know what personal protective equipment is needed for safe
                  entry into and exit from the space;
                  (vi) Use personal protective equipment; and
                  (vii) Where necessary, be aware of the presence and proper use
                  of barriers that may be needed to protect an entrant from
                  hazards.
                                               4

       Before anyone had entered the ballast tank, Offshore had performed atmospheric
testing in the tank, testing for oxygen, toxicity, and volatility. The company had also set up
a ventilation system that could blow 3900-4000 cubic feet of air into the ballast tank per
minute. The employee in the ballast tank was performing mig welding using argon, which
is heavier than air, as the inert gas that is sprayed to clean the metal to be welded. Although
the CO did not know what gases were being used for the welding and had no evidence that
a hazardous environment existed in the ballast tank, she testified that she was certain that a
hazardous atmosphere could occur in the tank despite Offshore’s precautions.
       Offshore presented two former OSHA officials as expert witnesses, as well as its part-
time safety director, a member of the local fire department. Each of them testified that the
ballast tank was an enclosed space within the meaning of the standard, not a confined space.
       The judge found that the ballast tank was an enclosed space within the meaning of
the standard. He found that Offshore had committed a repeated violation. On review,
Offshore asserts that the standard cited by the Secretary does not apply to the activities being
performed because that standard is preempted by a more specifically applicable standard.
The company also argues that, even if there is no preemption, the judge erred in finding a
violation because there was no proof that there was a dangerous atmosphere in the ballast
tank, and that, even if the standard does presume the existence of a hazard, that presumption
is rebuttable, and the evidence here has rebutted it. For the reasons below, we reject these
arguments and affirm the judge.
                                         Discussion
       In order to prove that an employer violated an OSHA standard, the Secretary
       must prove that (1) the standard applies to the working conditions cited; (2)
       the terms of the standard were not met; (3) employees had access to the
       violative conditions; and (4) the employer either knew of the violative
       conditions or could have known with the exercise of reasonable diligence.
Armstrong Steel Erect., Inc., 17 BNA OSHC 1385, 1386, 1995-97 CCH OSHD ¶ 30,909,
p. 43,028 (No. 92-262, 1995) (citations omitted). Here, the record establishes that the
second, third, and fourth elements have been established. The welder in the ballast tank had
                                              5

not been trained, so the requirements of the standard had not been met. Because he was in
the tank, he was exposed to the conditions the standard was intended to protect against. We
also find that Offshore had knowledge of the violative condition. The standard imposes an
affirmative duty to train employees before they enter a confined or enclosed space; Offshore
knew where the welder was working and its supervisors acknowledged that it had not
provided him with any training before he entered the tank.
       We also conclude that the standard applies to the cited conditions. By its terms, the
standard applies to confined and enclosed spaces, and to other locations having dangerous
atmospheres. The Secretary proceeded on the theory that the ballast tank was a confined
space, but we agree with the judge that the evidence establishes that the ballast tank was an
enclosed space under the definitions in 29 C.F.R. § 1915.4. Section 1915.4(p) defines the
term “confined space” as “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.” Under section 1915.4(q), “the term
enclosed space means any space, other than a confined space, which is enclosed by
bulkheads and overhead. It includes cargo holds, tanks, quarters, and machinery and boiler
spaces.”(Boldface added). On the record here, we find that the ballast tank in question more
closely fits the definition of an “enclosed space.”
       Offshore asserts that, because the employee was performing welding, the
requirements of section 1915.12 are preempted by the maritime standard that governs
welding in a confined space, section 1915.51(c),2 and it therefore cannot be found in


       2
           That standard provides:
                 § 1915.51 Ventilation and protection in welding, cutting and
                 heating.
                 (a) The provisions of this section shall apply to all ship
                 repairing, shipbuilding, and shipbreaking operations; except
                                                                                (continued...)
                                                  6

violation of section 1915.12(d)(2). Offshore’s argument relies on 29 C.F.R. § 1910.5(c)(1),
which states in pertinent part, “If a particular standard is specifically applicable to a
condition, practice, means, method, operation, or process, it shall prevail over any different
general standard which might otherwise be applicable to the same condition, practice,
means, method, operation, or process. . . .” We find, however, that section 1915.51(c) is
not more specifically applicable to the cited conditions than 1915.12(d), the section cited by
the Secretary. First, section 1915.51(c) governs welding and heating in confined spaces,
while we have found that the ballast tank was an enclosed space rather than a confined
space. Second, it governs the activity of welding, while section 1915.12(d) applies to the
entry into confined or enclosed spaces and requires that the employee be trained before




       2
           (...continued)
                  that paragraph (e) of this section shall apply only to ship
                  repairing and shipbuilding. Paragraph (g) of this section shall
                  apply only to ship repairing.
                   (b) Mechanical ventilation requirements.
                  ....
                  (c) Welding, cutting and heating in confined spaces. (1) Except
                  as provided in paragraphs (c)(3) and (d)(2) of this section either
                  general ventilation meeting the requirements of paragraph (b)
                  of this section shall be provided whenever welding, cutting or
                  heating is performed in a confined space.
                  (2) The means of access shall be provided to a confined space
                  and ventilation ducts to this space shall be arranged in
                  accordance with § 1915.76(b)(1) and (2).
                  (3) When sufficient ventilation cannot be obtained without
                  blocking the means of access, employees in the confined space
                  shall be protected by air line respirators in accordance with the
                  requirements of § 1915.152(a), and an employee on the outside
                  of such a confined space shall be assigned to maintain
                  communication with those working within it and to aid them in
                  an emergency.
                                              7

being allowed to enter a confined space or an enclosed space, or any other space that has a
dangerous atmosphere. Offshore’s failure to provide that training is the cited condition.
       We also find that section 1915.12 does not require the Secretary to prove that the
atmosphere in the ballast tank presented a hazard. Section 1915.11(b) provides: “Dangerous
atmosphere means an atmosphere that may expose employees to the risk of death,
incapacitation, impairment of ability to self-rescue (i.e., escape unaided from a confined or
enclosed space), injury, or acute illness.”(Boldface added). The standard “treats all confined
and enclosed spaces and other dangerous atmospheres that could present an atmospheric
hazard as having this potential, and requires protective measures before entry takes place.”
59 Fed.Reg. 37,816, 37,827 (1994). See also 59 Fed.Reg. at 37,825. We therefore reject
Offshore’s argument that the Secretary must prove that there was a dangerous atmosphere
in the ballast tank.
       In reaching this conclusion, we recognize that Offshore presented testimony from two
former OSHA officials that the requirements of the standard did not come into play until
there was a dangerous atmosphere and that, because of Offshore’s precautions, there was no
dangerous atmosphere. However, these witnesses had not been involved in the drafting or
promulgation of the standard but merely gave their own interpretations of what the standard
meant. The testimony of an expert witness is not necessarily controlling, even if it is
unrebutted. ConAgra Flour Milling Co., 16 BNA OSHC 1137, 1141, 1993-95 CCH OSHD
¶ 30,045, p. 41,234 (No. 88-1250, 1993) (citing United States Steel Corp. v. OSHRC, 537
F.2d 780 (3d Cir. 1976)), rev’d in part on unrelated grounds, 25 F.3d 653 (8th Cir. 1994).
As noted above, this standard does not require the Secretary to prove that there was a
dangerous atmosphere.
       The judge rejected the argument that the Secretary must prove that there was a
dangerous atmosphere, stating that confined and enclosed spaces are presumed to have
dangerous atmospheres. Offshore asserts that it has rebutted the presumption. The standard
does not, however, presume the existence of a dangerous atmosphere. The definition of a
                                               8

dangerous atmosphere states that it “may expose employees to” risk. The emphasis is on the
potential for a hazardous condition to occur, not on the existence of a hazardous condition.
We conclude that, under the definition of “dangerous atmosphere,” the Secretary need
establish only that there is the potential for a hazardous condition to occur in a location in
order to invoke the training requirements of the standard.3 The testimony of the compliance
officer has established that here. Consequently, we affirm the judge’s finding that Offshore
violated section 1915.12(d)(2).4




       3
       Because we reject Offshore’s underlying premise that there is a presumption, we
need not reach the derivative argument that it has rebutted the presumption because of the
evidence about the ventilation. We would note, however, that the ventilation that Offshore
provided was required by 29 C.F.R. § 1915.51(c)(1) where welding was being performed.
       4
         Commissioner Weisberg notes that the position advanced by Commissioner
Visscher in his dissent, namely that the ballast tank did not become an enclosed space until
after the employee had completed the process of “enclosing himself in,” was neither raised
nor argued by the company. Moreover, the company’s expert witnesses testified that it was
an enclosed space. They apparently did not qualify their testimony or add the caveat when
completed. The standard at issue, section 1915.12(d)(2), requires that employees receive
training in hazard recognition, use of protective equipment, and in self-rescue techniques
before entering a confined space, enclosed space, or other areas with dangerous
atmospheres. As the Commission noted above, the emphasis of this standard is on the
potential for a hazardous condition to occur, not on the existence of a hazardous condition.
Commissioner Weisberg believes that in circumstances where an employee’s work
assignment in the ballast tank is to enclose himself in by welding deck plates, it is reasonable
to interpret the standard to require the employer to provide the requisite training to the
employee before he enters the space. To hold otherwise would create the anomoly of
precluding any entry into an enclosed space that would trigger the training requirement
because the work location would not become enclosed until after the employee was already
in it for the express purpose of enclosing it. Thus, following Commissioner Visscher’s
reasoning, had the employee in the instant case completed the assigned task of welding all
the deck plates and transformed it into an enclosed space, the employee would be inside
the enclosed space, could exit from the enclosed space, but would have never entered the
enclosed space. This is the shipbuilding equivalent of “The Englishman Who Went Up a
Hill, but Came Down a Mountain.”
                                               9

                               Characterization and penalty
       In order to establish a repeated violation:
       [T]he Secretary has the burden of establishing that the violations were
       substantially similar. Where the citations involve the same standard, the
       Secretary makes a prima facie showing of “substantial similarity” by showing
       that the prior and present violations are for failure to comply with the same
       standard. The burden then shifts to the employer to rebut that showing.
GEM Industrial Inc., 17 BNA 1861, 1866, 1996 CCH OSHD ¶ 31,196, p. 43,689 (No. 93-
1122, 1996) (citations omitted). Here, the record establishes that Offshore had previously
been cited for a violation of the same standard and that the citation had become a final order,
and Offshore has not rebutted this prima facie showing. The Secretary has therefore
established that the violation was repeated.
       Section 17(j) of the Act, 29 U.S.C. § 666(j), provides that the Commission shall
assess an appropriate penalty for each violation, giving due consideration to the size of the
employer, the gravity of the violation, the good faith of the employer, and the employer’s
history of previous violations. The Secretary proposed a penalty of $7,500 for this violation,
and the judge assessed a penalty in that amount. Because neither party has argued that the
penalty assessed by the judge was not appropriate, we see no reason to disturb the penalty
assessment recommended by the judge.
                      FAILURE TO ABATE -- NO RESCUE TEAM
       The first item contained in the FTA notice alleged that Offshore had failed to abate
a previously-cited violation of the standard at 29 C.F.R. § 1915.12(e)5 because it had neither


       5
           29 C.F.R. § 1915.12(e) provides:

                § 1915.12 Precautions and the order of testing before
                entering confined and enclosed spaces and other dangerous
                atmospheres.
                ....
                (e) Rescue teams. The employer shall either establish a
                                                                                (continued...)
                                                10

organized a rescue team of its own nor arranged for an outside team to perform confined
space rescues at the shipyard. Offshore argues (1) that it did not need to have a rescue team
because it was not performing any work in confined spaces, (2) that it did have a rescue
team, and (3) that it had arranged for an outside rescue team. For the reasons below, we
reject each of these arguments and find that Offshore had failed to abate the previously-cited
violations.
                                               Facts
       Item 6 of the original citation, which had become a final order under the settlement
agreement, alleged a violation of section 1915.12(e) for failure to have established a
shipyard rescue team or to have arranged for an outside rescue team. During the follow-up


       5
           (...continued)
                  shipyard rescue team or arrange for an outside rescue team
                  which will respond promptly to a request for rescue service.
                  (1) Shipyard rescue teams shall meet the following criteria:
                  (i) Each employee assigned to the shipyard team shall be
                  provided with and trained to use the personal protective
                  equipment he or she will need, including respirators and any
                  rescue equipment necessary for making rescues from confined
                  and enclosed spaces and other dangerous atmospheres.
                  (ii) Each employee assigned to the shipyard rescue team shall be
                  trained to perform his or her rescue functions including
                  confined and enclosed and other dangerous atmosphere entry.
                  (iii) Shipyard rescue teams shall practice their skills at least
                  once every 12 months. Practice drills shall include the use of
                  mannequins and rescue equipment during simulated rescue
                  operations involving physical facilities that approximate closely
                  those facilities from which rescue may be needed.
                  Note to paragraph (e)(1)(iii): If the team performs an actual
                  rescue during the 12 month period, an additional practice drill
                  for that type of rescue is not required.
                  (iv) At least one person on each rescue team shall maintain
                  current certification in basic first aid which includes
                  maintenance of an airway, control of bleeding, maintenance of
                  circulation and cardiopulmonary resuscitation (CPR) skills.
                                            11

inspection, the CO determined that Offshore did not have a properly-equipped rescue team
and had not made arrangements for an outside rescue team to perform that function. She
based that conclusion on conversations with several Offshore employees, including its
superintendent, a foreman, and the professional firefighter Offshore had hired to act as its
part-time safety director. The foreman told her that he had frequently asked the company’s
general manager to establish and equip a rescue team, but that the general manager had told
him that Offshore did not need a team of their own and could contract that function out.
According to the foreman, the outside contract was never implemented. The superintendent
told the CO that he had asked the general manager for equipment for a company rescue team
but the requests were denied outright or were ignored.
        The compliance officer testified that Offshore was required to have a rescue team
because the company’s work logs showed that employees had entered confined spaces in the
months before her October inspection. She indicated that, although the only function of a
rescue team is to perform rescues from confined spaces, it must be properly trained and
equipped to perform that function. According to the CO, that means the team must be
trained and equipped for any confined space hazard it may reasonably be expected to
encounter.
       Offshore’s part-time safety director, Fowler, testified that, when he had been hired
in May, the company did not have a rescue team, but that, by October 1, he had established
one and there was a full complement of rescue equipment on the site. Fowler said that each
member had been issued personal protective equipment, including a full body harness, a
helmet, and gloves, which were stowed onsite in an equipment bag. At the time of the
inspection, the bags were stowed in a steel shed near the gangway to the Captain Rusty.
According to Fowler, the members of the team had been given all the requisite training, but,
because Offshore was not performing any painting, Fowler did not believe it was necessary
for the team to have respirators.
                                              12

       The chief of the Palatka Fire Department testified that his department is located about
7-8 minutes from the shipyard and that it would respond to an emergency there because,
although Offshore is outside the city of Palatka in the county, the area is covered by a mutual
aid agreement. His department had received a request from Offshore for a proposal to
furnish a rescue team to Offshore, but his reply to Offshore’s request indicated that, in order
to provide an outside rescue team, his department would have to obtain additional equipment
and to perform additional training. City policy required that the requesting organization help
defray the additional costs that would be incurred. The chief listed those costs in his
response to Offshore. The cost of the additional equipment would be $25,091, and Offshore
was asked to enter into a seven-year contract at a rate of $2,000 a year. The chief indicated
that Offshore had never entered into any agreement with the Fire Department.
                                         Discussion
       The judge found that Offshore had not abated this violation. On review, Offshore
makes four arguments, two of which are based on the assertion that it was not performing
any work in confined spaces during the period between the time the earlier citation became
a final order and the date of the reinspection on October 2. Relying on this premise,
Offshore asserts that it had abated the violation, because its employees were not exposed to
the hazardous condition that formed the basis of the citation. Thus, Offshore contends, it
cannot be penalized for a failure to abate. It also argues that, since no confined space work
was being performed, no rescue team was needed.
       We find that the underlying premise on which these claims are based is not supported
by the record. The company asserts that it was not performing any confined space work, not
that its employees did not enter confined spaces. Indeed, the company’s work logs indicated
that employees had entered confined spaces during the period in question. Employee
exposure to a violative condition is established if the record indicates that it is reasonably
predictable that, during assigned work activities, personal comfort activities, or normal
ingress-egress to and from their work stations, an employee may come into the zone of
                                             13

danger, either through operational necessity or otherwise, including through inadvertance.
Fabricated Metal Prod., Inc., 18 BNA OSHC 1072, 1073-74, 1998 CCH OSHD ¶ 31,463,
p. 44,506 (No. 93-1853, 1997). Since an employee who enters a confined space could be
overcome by noxious gases that had accumulated there, it is not necessary that the
employees perform work there in order for the requirements of the standard to apply. We
recognize that work such as painting or welding may increase the likelihood that a hazardous
condition will occur, but the standard is not limited to the rescue of employees who were
performing work when they became unable to rescue themselves. It applies as well to an
employee who may enter a previously-closed area and is overcome by the atmosphere that
has developed there. Accordingly, we find that Offshore had not abated the violation by
keeping its employees from entering any confined spaces, and that, because employees had
entered confined spaces, a rescue team was required.
       We also reject Offshore’s third argument, its claim that it had established a rescue
team. We find that, although a team may have been created and its training begun,
Offshore’s team was not equipped to perform confined space rescues because its members
did not have respirators. The feature that distinguishes rescue from confined spaces from
other first aid and rescue situations is that confined spaces may contain a hazardous
atmosphere. The confined space standard is primarily concerned with the rescue of an
employee or employees overcome by the atmosphere in the confined space. Section
1915.12(e)(1)(i) specifically requires that employees be provided with and trained in the use
of respirators.6 That requirement was -- by Fowler’s admission -- not satisfied. Without


       6
           That section provides:

                 § 1915.12 Precautions and the order of testing before
                 entering confined and enclosed spaces and other dangerous
                 atmospheres.
                 ....
                                                                               (continued...)
                                              14

respirators, the rescue team could not be expected to perform a rescue without endangering
its members. Consequently, we reject Offshore’s argument that it had established a shipyard
rescue team that met the criteria set out in section 1915.12(e)(1)(i).
       Offshore’s final argument on this item is that it had arranged for an outside rescue
team because the city fire department was required by the mutual aid agreement to respond
to a call for assistance at the shipyard. The judge rejected this argument by stating that the
standard requires more than simply dialing “911.” We agree with the judge’s conclusion but
would add that the record here clearly establishes that the fire department’s reply to
Offshore’s inquiry stated that the department did not have the proper equipment to allow
it to enter into an agreement and that it would need additional training if it were to undertake
to perform the role of outside confined space rescue team for the shipyard. In light of the
fire department’s assertion that it was not adequately trained or equipped to perform such
a function, we cannot accept Offshore’s claim that it had made adequate arrangements for
an outside rescue team.
       Consequently, we affirm the judge’s finding that Offshore had failed to abate the
previously-cited violation of 29 C.F.R. § 1915.12(e).
                                           Penalty
       The administrative law judge assessed a penalty of $14,000 for this failure to abate.
Offshore has not challenged the amount assessed by the judge, although the Secretary has
noted that the Commission has the discretion to assess the larger penalty originally proposed



       6
           (...continued)
                  (e) Rescue teams. . . .
                  (1) Shipyard rescue teams shall meet the following criteria:
                  (i) Each employee assigned to the shipyard team shall be
                  provided with and trained to use the personal protective
                  equipment he or she will need, including respirators and any
                  rescue equipment necessary for making rescues from confined
                  and enclosed spaces and other dangerous atmospheres.
                                              15

by the Secretary. Having considered the statutory penalty factors set out in section 17(j) of
the Act, we conclude that the penalty recommended by the judge is appropriate.
Accordingly, we affirm his assessment of a penalty in the amount of $14,000.
            FAILURE TO ABATE -- NO EXPOSURE CONTROL PLAN
       The second failure-to-abate item alleged that Offshore failed to abate a previously-
cited violation of 29 C.F.R. § 1915.1030(c)(1)(i) because, when the CO arrived to reinspect,
Offshore did not have a written exposure control plan for employees who might be exposed
to bloodborne pathogens.7 The judge affirmed this notification and assessed a penalty of


       7
       The entry at 29 C.F.R. § 1915.1030 contains a note that the provisions of that
standard are identical to those of 29 C.F.R. § 1910.1030, which provides in pertinent part:
              § 1910.1030 Bloodborne pathogens.
              ....
              (b) Definitions. For purposes of this section, the following shall
              apply:
              . . . .
              Occupational Exposure means reasonably anticipated skin, eye,
              mucous membrane, or parenteral contact with blood or other
              potentially infectious materials that may result from the
              performance of an employee’s duties.
              . . . .
              (c) Exposure control—(1) Exposure Control Plan. (i) Each
              employer having an employee(s) with occupational exposure as
              defined by paragraph (b) of this section shall establish a written
              Exposure Control Plan designed to eliminate or minimize
              employee exposure.
              (ii) The Exposure Control Plan shall contain at least the
              following elements:
              (A) The exposure determination required by paragraph(c)(2),
              (B) The schedule and method of implementation for paragraphs
              (d) Methods of Compliance, (e) HIV and HBV Research
              Laboratories and Production Facilities, (f) Hepatitis B
              Vaccination and Post-Exposure Evaluation and Follow-up, (g)
              Communication of Hazards to Employees, and (h)
              Recordkeeping, of this standard, and
                                                                                 (continued...)
                                             16

$75,000. Although we affirm the judge’s finding that Offshore had failed to abate the
previously-cited violation, we find a penalty of $7,500 to be appropriate.
                                           Facts
       Item 12 of the 1995 citation had alleged that Offshore had violated the standard at 29
C.F.R. § 1915.1030(c)(1)(i). Under the settlement agreement, that item had become a final
order. The compliance officer indicated that Offshore needed a bloodborne pathogens
exposure control plan because it had designated first-aid responders who could be exposed
to blood and other bodily fluids. At the time of the inspection that had led to the initial
citation, the compliance officer had given Offshore a “generic” fill-in-the-blanks exposure
control plan to be used as a guide. When the CO asked to see the company’s exposure
control plan during the follow-up inspection in August, she was given the generic plan that
had been left. Only a few of the blanks had been filled in. One of Offshore’s supervisory
employees told the CO that the plan was incomplete because, when he had begun to work
on it, the company’s general manager had told him that there was more important work to
be done.      By the time the compliance officer returned in October to complete the
reinspection, the plan had been completed.
       Offshore’s safety director testified that Offshore did not need a plan because there
had been no exposures to bloodborne pathogens during the period between the time the
citation had become a final order and the reinspection. He indicated that, because Offshore
had done no confined space work in that period, the rescue team could not have been
required to perform any rescues.
       The judge found that Offshore had failed to abate the violation because, when the CO
began the follow-up inspection, it had not completed the plan. On review, Offshore claims


       7
           (...continued)
                  (C) The procedure for the evaluation of circumstances
                  surrounding exposure incidents as required by paragraph
                  (f)(3)(i) of this standard.
                                             17

that it had abated the violation by not scheduling any confined space work during the
relevant period, making it unnecessary even to have a rescue team. Offshore also argues that
the Secretary has the burden of proving that its employees were exposed to bloodborne
pathogens.
                                        Discussion
       It is clear that Offshore did not have an exposure control plan when the compliance
officer asked to see it during the follow-up inspection. The question is whether any of the
company’s arguments excuses it from having one. We find that they do not. Offshore’s
arguments linking this violation to the rescue team are misplaced. As discussed above, we
have found that confined space entries were being made, so the rescue team was, in fact,
needed.
       A more fundamental difficulty with the company’s position is that the exposure
control plan is not limited to members of the confined space rescue team. It must cover
every employee who may reasonably be expected to come into contact with potentially
infectious materials during the performance of his or her duties. Such employees would
include the designated first aid providers, who might be exposed to bloodborne pathogens
in rendering assistance to a fellow employee who had been injured in any number of ways
not having anything to do with a confined or enclosed space. It is clear from the record that
Offshore had such employees and was, therefore, required to have an exposure control plan.
Given the nature of the work being done on the Captain Rusty -- cutting out and replacing
large, heavy steel plates that might have sharp edges -- an injury that would cause bleeding
was reasonably foreseeable. Because the record clearly establishes that Offshore had never
had a plan until after the August reinspection, we conclude that it had failed to abate the
previously-cited violation.
                                          Penalty
       The Secretary proposed a penalty of $75,000 for this failure to abate, and the judge
assessed that amount. Offshore argues on review that the amount assessed by the judge is
                                              18

excessive. Having considered the four factors set out in section 17(j) of the Act, we agree
with the company that that amount is not appropriate for the failure to abate here.
       We do not deem this to be a high gravity violation because the shipyard is not the
kind of employer, such as a hospital or a dentist’s office, where exposure to bloodborne
pathogens is considered to be very likely. We do not minimize the hazard here, but we find
a comparatively low likelihood of exposure. Similarly, we give Offshore more credit than
did the compliance officer for its size. Although it was a subsidiary of a large company,
Offshore itself was a fairly small operation, with a total of 25 employees on the site, only ten
of whom worked in the shipyard itself. It appears that the rest were administrative personnel
who worked in the company’s offices, which supports our finding of low likelihood of
exposure. In addition, Offshore had fired the general superintendent who deemed it
unimportant to complete the exposure control plan. Further, as the compliance officer
admitted, this was a “paper violation,” and there had been partial abatement before the
reinspection. By the time the compliance officer returned to complete her follow-up
inspection, the plan had been completed. We also note that Offshore had ceased operations
at this shipyard. While an employer cannot escape its responsibility for a violation by going
out of business, the fact that this shipyard is out of operation is a small factor in our
considerations.
       All factors considered, we deem a penalty of $7,500 to be appropriate for this failure
to abate.
                                      CONCLUSION
       For the reasons set out above, we find that Offshore did commit a repeated violation
of 29 C.F.R. § 1915.12(d)(2), which required it to perform confined space training, and that
it did fail to abate the previously-cited violations of 29 C.F.R. § 1915.12(e), which required
that it have a shipyard rescue team or arrange for an outside rescue team, and 29 C.F.R.
§ 1915.1030(c)(1)(i), which required it to have an exposure control plan. We assess a
                                            19

penalty of $7,500 for the repeated violation and $14,000 and $7,500 for its failure to abate
the two previously-cited violations.



                                                 /s/
                                                 Thomasina V. Rogers
                                                 Chairman


                                              /s/
                                              Stuart E. Weisberg
Dated: July 3, 2000                       Commissioner
VISSCHER, Commissioner, concurring in part, dissenting in part:
       I concur in finding failure to abate violations of 29 C.F.R. § 1915.12(e), for failure to
establish a rescue team, and 29 C.F.R. § 1910.1030(c)(1)(i), for failure to establish a control
plan for occupational exposure to bloodborne pathogens. I do not agree, however, that the
Secretary has proven a violation of 29 C.F.R. § 1915.12(d)(2), and therefore would vacate
the alleged repeat violation.
       Section 1915.12(d)(2) requires that maritime employers such as Offshore:
       ensure that each employee who enters a confined space, enclosed space or
       other areas with dangerous atmospheres is trained to:
       (i) Recognize the characteristics of the confined space;
       (ii) Anticipate and be aware of the hazards that may be faced during entry;
       (iii) Recognize the adverse health effects that may be caused by the exposure to a
       hazard;
       (iv) Understand the physical signs and reactions related to exposures to such hazards;
       (v) Know what personal protective equipment is needed for safe entry into and exit
       from the space;
       (vi) Use personal protective equipment; and
       (vii) Where necessary, be aware of the presence and proper use of barriers that may
       be needed to protect an entrant from hazards.
       As defined in section 1915.4(p), 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.” The term
“enclosed space” is defined in 1915.4(q) as “any space, other than a confined space, which
is enclosed by bulkheads and overhead. It includes cargo holds, tanks, quarters, and
machinery and boiler spaces.”
       When the compliance officer arrived at the worksite, she learned that an Offshore
employee, McConaughay, was welding deck plates to enclose the top of a large
(approximately 12 feet by 13 feet by 19 feet) ballast tank of a ferry that was undergoing
repairs. She also learned that McConaughay had not been given confined space training by
Offshore. At the compliance officer’s request, McConaughay was replaced by another
employee who had received confined space training. Thereafter, OSHA cited Offshore for
allowing McConaughay to work in a “confined space” without proper training.
                                             2

       The judge found that the ballast tank was “an enclosed space, rather than a confined
space” and the majority agrees with the judge. I agree that the ballast tank when completed
would meet the standard’s definition of an enclosed space.8
       The record does not show, however, that the ballast tank was enclosed when
McConaughay was welding deck plates on it before he was removed from this job. As the
compliance officer testified, the deck plates McConaughay was welding made up the top of
the tank, and he was in the process of “welding himself in; in other words, enclosing it as
he went.” Though the record is not entirely clear, the strongest inference to be made is that
McConaughay had not completed the process of “enclosing himself in” before he was
removed from the job. The compliance officer herself agreed that “a lot” of the top of the
tank had been open when McConaughay began welding that morning, and another employee
was assigned to complete this welding job after McConaughay was removed.9
       The standard is intended to protect employees from the hazards that may be
encountered upon entering a confined or enclosed space, the noxious or oxygen-deficient
atmosphere that may occur in an area that is closed in. Here, that situation never occurred.
I agree with the majority that, if the ballast tank had been enclosed, the standard would not
have required the Secretary also to prove that the ballast tank presented an actual hazard in
order for the training requirements of section 1915.12(d) to be triggered. But the clear
language of the standard requires training only if the space the employee enters is either
“confined” or “enclosed,” or is another “area[] with [a] dangerous atmosphere[].” Because




       8
        Similarly, it is clear that Offshore’s witnesses, who also expressed the opinion that
the ballast tank was an “enclosed space” rather than a “confined space” were referring to the
tank as completed.
       9
        In addition to the open top, the ballast tank had two substantial openings on the
sides, each approximately 10 feet by 2 feet when McConaughay was working on it.
                                            3

the evidence does not show that the ballast tank in question met any of these descriptions
during the time McConaughay was working on it, I would vacate the citation.10




                                                /s/
                                                Gary L. Visscher
Date: July 3, 2000                              Commissioner




      10
          Commissioner Weisberg argues that when McConaughay entered the ballast tank,
it was already an “enclosed space” within the meaning of the standard because the employer
was in the process of enclosing it. As I understand his argument, any space could become
a statutory enclosed space during its construction even before the top and sides have gone
on.