Clean Harbors of Kingston, Inc.
Confined-space communication case settled
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
OSHA cited Clean Harbors under the general duty clause after employees entered a pump room to remove a diesel-fuel, Biosolve, and water mixture. The alleged hazard was delayed rescue because half-face respirators impaired voice communication between an entrant and standby personnel. An administrative law judge affirmed the citation and assessed $480, and the case was directed for Commission review. The parties then settled, amending the citation text to focus on ineffective communication and identifying an alarm-activated, explosion-proof communication system as one acceptable corrective method. The $480 penalty remained unchanged, and Clean Harbors agreed to evaluate communication before confined-space entry at all workplaces and ensure entrants and standby personnel could understand one another. The Commission incorporated the settlement, set aside inconsistent portions of the judge's decision, and made the agreement its final order.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1).
- Outcome: Settled. The citation was amended, the $480 penalty remained, and company-wide confined-space communication measures were included.
- Key point: Confined-space entry planning must provide a communication method that entrants and standby personnel can reliably hear and understand when visual contact is unavailable.
Full text (OSHRC public release)
-. . .
A’-.. (. _
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC. 20006-Y 246
.
.
SECRETARY OF LABOR, ..
.
Complainant, .
.
.
v. .. Docket No. 91-0952
.
CLEAN HARBORS OF KINGSTON, INC., ;
..
Respondent. ..
This matter is before the Commission on a Direction for Review entered by
Commissioner Donald G. Wiseman on February 24, 1992. The parties have now filed a
Settlement agreement.
Having reviewed the record, and based upon the representations appearing in the
Settlement Agreement, we conclude that this case raises no matters warranting further
review by the Commission. The terms of the Settlement Agreement do not appear to be
contrary to the Occupational Safety and Health Act and are in compliance with the
Commission’s Rules of Procedure.
Accordingly, we incorporate the terms of the Settlement Agreement into this order,
and we set aside the Administrative Law Judge’s Decision and Order to the extent that it
is inconsistent with the Settlement Agreement. This is the final order of the Commission
in this case. See 29 U.S.C. 00 659(c), 660(a), and (b).
r - -
Edwin G. Foulke, Jr.
Chairman
Commissioner
Dated January 14, 1993 A
Velma Montoya
Commissioner
Docket No. 91-0952
NOTICE OF ORDER
The attached Order by the Occupational Safety and Health Review Commission
was issued and served on the following on January 14, 1993. *
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210
Albert H. Ross, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
11thFloor
One Congress Street
Boston, MA 02114
W. Anthony Stevens, Jr., Esq.
Clean Harbors, Inc.
1200 Crown Colony Drive
Quincy, h4A 02269
Richard Gordon
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501
FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary
=TBD STATES OPAKERICA
OCCUPATIONS SAFETY AND HEALTH REVIBW COXHISSION
Complainant and respondent hereby stipulate and agree that:
(1) On March 8, 1991, the Secretary issued a citation for alleged
violations of the Occupational Safety and Health Act of 1970, 29 U.&C.
s 651 et w., (hereafter referred to as the uAct”) and issued a
notification of proposed penalty in the amount of $480.
(2) Respondent, an employer within the meaning of s&ion (3)(5) of
the Act, duly filed .with a representative of the Secretary of Labor a
Notice of Intent to Contest the Citation. This Notice war,duly
transmitted to the Review Commission and it is agreed that jurisdiction
over this proceeding is conferred upon said Commissionby sectio'n10(C)
of the Act.
(3) A hearing was held in Boston, MA on September 17, 1991 before
Administrative Law Judge Richard W. Gordon.
(4) Subsequently, Judge Gordon issued an Opinion and Order which
Affirmed Serious Citation 1, Item 1, alleging a violation of Section
5(a)(l) of the Act, and assessing a penalty of $480.
(5) On January 28, Respondent duly filed with the Commissiona
Petition for Discretionary Review, and on February 24, 1992, the
Commission issued a Direction for Review.
(6) On October 6, 1992, the Commission issued a briefing notice to
the Parties.
(7) The Complainant and Respondent have agreed to resolve this
matter without the necessity of further pleadings as follows:
The Citation is amended from Serious to Section 17
The Citation is hereby amended to read
. as follaws:
1. Section 5(a)(1) of the Occupational Safety and Health Act
of 1970: mployees vere exposed to the hazard of delayed
rescue while vorking in a confined space.
(a) Pollen Street Pump Roam, Decmber 12 a& 13, 1990,
employees entered this confined space to skir #2 diesel fuel,
Biosolve and water and pump this mixture into a tank truck.
Effective rescue from the pump room would be delayed due to:
1. Ineffective voice communication through half-face
respirators by employees in the pump mum.
Amongothermethods, the feasible andacceptablemethodto
correct this hazard is to:
1. Provide and use an alarm-activated and explosion-proof
type of communication system.
The Penalty remains $480.
(8) In view of the aforesaid,Respondenthereby withdraws itrr
Notice of Contest and Petition for DiscretionaryReview and the parties
agree that the Citation and Proposed Penalty,as amended by this
Agreement, become a final order pursuant to Section 10(a) of the Act.
(9) Respondent stipulatesthat the violationsalleged have been
abated and that the penalty will be paid within 30 days from the date
of this Agreement. Respondent agrees to comply with thr Act in all
respects in the future.
(10) The Respondent awees to undertakethe following abatement
activity at all of ita workplaces:
Priortoanyentry intoa confinedspace, thevork@acm shall
be evaluated to determine an adequate system of communication
betweenentrants andstandbypersonnel. !Chirmustbeamsured
by the foreman. An adequate system of communication may be
in the form of visual contact, verbal communication, either
unassisted or electronically assisted, or sound (i.e.,
periodic taps on a vessel.) Whenever standby personnel
cannot see the entrant, an adequate system of communication
. .
that they
mea]118 -hear and understand each other% voices
or signals.
(11) Respondent further certifies that the original Notice of
Contest and a copy of this Agreement have been posted and that all
. pleadings and documents in this matter have been served in accordance
with Commission Rules 7 and 100.
(12) Each party hereby agrees to bear its own fees and expenses
incurred by such party in connection with any stage of this proceeding.
(13) Respondent hereby certifies that a copy of this Settlement
Agreement was posted at its workplace on December 31, 1992.
(14) Respondent's consent to the citation becoming a Final Order
pursuant to this Settlement Agreement shall not constitute an admission
by Respondent of violation of the Act in any proceeding other than one
brought directly under the provisions of the Occupational Safety and
Health Act of 1970, including but not limited to any citations issued
or penalties proposed by the Secretary under the provisions of sections
10(A) and 10(B) of the Act.
Dated, this 30fb day of December, 1992e
Clean Harbors of Kingston, Inc. Marshall J. Breger
Solicitor of Labor
Joseph M. Woodward
Associate Solicitor for
Attorney &or Clean -Harbors Occupational Safety and Health
of Kingston, Inc.
Daniel J. Mick
Counsel for Regional
Trial Litigation
Attorney
U.S. Department of Labor
UWEO STATESOf AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW.
4TH FLOOR
WASHINGTON DC. 20006~? 246
FAX:
Cc&w?&4- 4008
-
. SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-0952
CLEAN HARBORS
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGES DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on January 23, 1992. The decision of the Judge
will become a final order of the Commission on February 24, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE.
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
An such etition should be received by the Executive Secretary on or before
Fe Bruary P2, 1992 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C.F.EQ . 2200.91.
All further pleadings or communications regarding this case shall be .
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti atioa
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any pq
havrng questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COMMISSION
Date: January 23, 1992 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 91-0952 -t
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., NW.
. Washington, D.C. 20210
Albert H. Ross, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
One Con ress Street, 11th ‘Floor
Boston, PiA 02114
Jonathan Black, Esq.
Clean Harbors, Inc.
1200 Crown Colony Drive
Quincy, MA 02269
Richard W. Gordon
Administrative Law Jud e
Occupational Safe9 an d Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501
00107437691:Ol
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JoFiN w. McCORMACK f0S-T OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSErrS 02109~4501
PHONE. FAX.
.
COM (617) 223-9746 COM ,6tr) 223-4004
FlS 223-9746 m 223-4004
UNITED STATES OF AMERICA ’
-c1 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
l
l
SECRETARY OF LABOR, l
l
l
l
Complainant, l
b
0
l OSHRC
V.
l
0 DOCKET NO. 91-0952
0
CLEAN HARBORS OF KINGSTON, INC. I
l
l
Respondent. l
l
l
Appearances:
Robert A Yetman, Esq. Jonathan R Bl& Esq.
office of the solicitor clean Harbors Envifonmtntal
U.S. Department of Labor sewica Companies
For Complainant Quinq, Mmchusctts
For Respondent
Before: Administrative Law Judge Richard We Gordon
DECISION AND ORDER
1
This is a proceeding brought under 0 10(c) of the Occupational Safety and Health Act
of 1970, 29 USeCe0 651, et seq.9 (“Act”) to review citations issued by Secretary pursuant to
5 9(a) and a proposed assessment of penalty thereon issued pursuant to Q lo(a) of the Acte
On March 41991, the Secretary issued a citation to Respondent following an inspection
of Respondent’s work site at Back Bay Station, Boston, Massachusetts, during the period
2
December 13 to 14, 1990. me citation charged Respondent with a serious violation of the
gend duty clause of the Act, 29 U.S.C. 8 654(a)(l), Section S(a)(l), for which the
Secretary proposed a penalty of $480.00. .
By filing a timely notice of contest, Respondent brought this proceeding before the
Occupational Safety and Health Review Commission (Commission). A hearing was held in
Boston, Massachusetts on September 17, 1991. The parties have submitted their briefs and
this matter is now ready for decision.
ALLEGED VIOLATION
Serious citation 1, item 1, as amended, states:
_ Section 5(a)(l) of the Occupational Safety and Health Act of 1970= The employer did not
furnish employment and a place of employment which was free from recognized hazards that
were causing or likely to cause death or serious physical harm to employees in that
employees were exposed to the hazard of working within a confined space without an
adequate rescue procedure and an effective communication system.
(a) Follen Street pump room, December 12 and 13, 1990, employees entered this
confined space to skim #2 diesel fuel, Biosolve and water and pump this mixture into a tank
.
truck.
Effective rescue from the pump room would be delayed due to:
1. Employees not wearing safety belts with D rings, or harnesses.
- Ineffective voice communication through half mask respirators, by employees in the
pump room.
Among other methods, one feasible and acceptable method to correct this hazard is to:
1. Ensure employees who enter confined spaces wear safety belts or harnesses at all times
and
- Provide and use an alarm-activated explosion proof type of communication system.
Section S(a)(l) reads in pertinent part:
3
(a) Each employer - (1) shall fumish to each of his employees employment and a place
of employment which are free from recognized herds that are causing or are likely to
cause death or serious physical harm to his employees.
SUMMARYAND EVALUATION OF THE EVIDENCF,
Respondent is engaged in the business of hazardous waste removal, emergency
response, remediation, maintenance and operation aspects dealing with hazardous materials.
(Tr. 29). The firm is a medium size company in the industry and employs approximately
1,100 employees. (Tr. 6). Respondent stipulated that it is engaged in .a business affecting
interstate commerce. (Tr. 6). Accordingly, I find that Respondent is an employer within the
meaning of Section 3(5) of the Act.
The work site was an underground pump room located near the Massachusetts Bay
Transportation Authority (MBTA) Back Bay Station in Boston (“Follen Street pump
room”). The pump room is a confined space consisting of three chambers accessed through
bulkhead type doors at. the street level and descending three levels below the sidewalk level
with the floor of the lowest chamber being forty feet below the sidewalk.
(Ex. C-l, Tr. 27-30).
Respondent was hired for a variety of tasks following a major accident involving a
December 12, 1990, collision of an AMTRAK train and a MBTA commuter train in the
Back Bay underground train station. (Tr. 16). Respondent performed its work on
December 12 and 13, 1990, by using vacuum trucks and vacuum hoses to pump off diesel
fuel. Respondent also used absorbent pads that absorbed oil and not water. (Tr. 83).
On December 13, 1991, Carol Shum, an OSHA Compliance Officer inspected the
work site. (Tr. 1546). Ms. Shum contacted Respondent’s foreman, Mr. Robert Paul, and
conducted an opening conference. Both Ms. Shum and Mr. Paul then proceeded to the
4
“pump room” where Respondent’s employees were removing “mnoff”. (Tr. 17). Ms. Shum
obser\;redMr. Michael Carvolho, an employee of Respondent, exiting the pump room at the
sidewalk level. He was wearing a half mask respirator. (EC. C-3, Tr. 23). Mr. Carvolho was
required to frequently enter and leave the pump room to remove saturated pads and place
new pa& in the chamber. He was the only person in the confined space. A standby man,
Mr. Phillon, remained at street level. Ms. Shum observed that Mr. Carvolho was not
wearing a safety belt nor was he equipped with a non-explosive communications system such
as a wake talkie. (Tr. 24-25).
It is well established that four requirements must be met in order to establish a
violation of the general duty clause. First, the Secretary must establish a hazard at the work
site; second, the hazard must be recognized either by the employer or be a recognized
hazard within the employer’s industry. The hazard must also constitute a serious violation
within the meaning of the Act; that is, that the hazard may result in serious injury or death.
Lastly, the Secretary must establish that the abatement of the hazard is feasibig. See
National Realtyand Construction Company v. OS’RC (1973-74 OSHD (17,018).
As the Secretary correctly states, the issue in this case is whether the procedures
followed by Respondent were sufficient to provide protection to employees in the confined
space while engaged in a hazardous activity. The Secretary takes the position that Mr.
Can~olho should have been wearing a safety belt to facilitate a rescue in the event that he
became incapacitated and required to be removed from the confined space. The Secretary
also asserts that in view of the distance from the bottom of the confined space and the
standby man at street level as well as the configuration of the space which necessitated that
5
the employee be out of visual contact with the person at street level, a walkie talkie system
should have been used to facilitate communication between the employee and his rescuer.
I find, and Respondent agrees, that entering confined spaces is hazardous. Ms. Shum
has testified that this activity is hazardous because of possible oxygen deficiency or the
presence of explosive gases or other gases such as methane, carbon monoxide, natural gas
and unknown gases. (Tr. 95, 126). Another reason is that an employee could suffer a
physical injury, heart attack or the like while working at the lowest level of a confined space.
(Tr. 40). Appropriate testing should always be conducted to determine the presence of toxic
gases. (Tr. 182483). In fact, Respondent tested the confined space for oxygen deficiency
and explosive gases prior to employee entry and at periodic times while Mr. Ca~olho was
at the bottom of the confined space.
Respondent argues that the atmosphere in the pump room was monitored by Clean
Harbors personnel throughout the two day work assignment. Mr. Paul, Clean Harbors
foreman, and Mr. Spielvogel, Clean Harbors manager of occupational safety and health,
testified that oxygen levels in the pump room were acceptable throughout the two day
period. Oxygen and LEL readings were recorded in writing every 30 minutes during the job.
(Ex. R-3). Mr. Paul testified that he entered the pump room and observed the
configuration of the work space. He opined that the pump room contained no noticeable
vents or other avenues for toxic fumes to enter into the work space. No other hazard
increasing activities, such as cleaning or welding, were being performed by Clean Harbors
personnel at the pump room. Moreover, the oxygen and combustible gas meters that were
used by Clean Harbors to monitor the work site atmosphere would automatically sound an
6
alarm in the event that the atmospheric condition in the work area changed. No such
warnings occurred. The record supportsa conclusion that Respondent took appropriate
steps, given the facts of this case, to address the potential hazard of oxygen deficiency and
the presence of combustl’ble gases. Respondent monitored the atmosphere in the pump
room and utilized personnel trained in confined space entry procedures. Respondent’s air
monitoring showed the atmosphere in the work place to be safe. The Secretary’s assertion
that the atmospheric monitoring was insufficient is not supported by substantial evidence.
The other recognized hazard that was controlled by the work practices of respondent
was the need to provide for the removal of an injured employee in the work space. The
Secretary asserts that Respondent’s training manual requires that employees entering
confined spaces must wear a safety belt and therefore Respondent recognizes the hazardous
nature of working in confined spaces. While I agree with the Secretary on this point, I don’t
belieire that a violation of one’s own safety rules, in and of itse& constitutes a violation of
the Act. Ms. Shum testified that the failure to wear a safety belt could delay a rescue
procedure. While this statement is true in a general sense, the failure to wear a safety belt
in the case at bar would not delay a rescue. The evidence shows that since there was no risk
posed to employees by atmospheric conditions at the pump room, there was no need to
provide for rapid removal of employees from the work space.
Mr. Spiebogel testified that respondent had developed a rescue plan that focused on
physical injuries to employees in the work space. In the event of a physical injury,
Respondent would summon emergency medical assistance to evaluate and treat the
employee in the work space before devising a method to remove the employee. Respondent
7
asserts that h these circumstances “effective rescue” would not require rapid removal from
the work space. Mr. Spielvogel, who had personalljr observed the pump room, also testified
that the use of a harness and lifeline in this work space, given the physical configuration of
the ladders and platforms, was inappropriate because the type of injury which would be
anticipated would require a Stokes basket or other type of stretcher arrangement for
effective removal. Ms. Shum allowed on cross-examination that an injured employee could
become “tangled” in the ladder and platform during extrication with a harness. Also, Mr.
Spielvogel testified that it would have been inappropriate to use safety belts in this instance
as they are designed for use where horizontal pulls are required. Accordingly, I find that
the failure of Respondent to use safety belts or harnesses at the pump room in no way
diminished the opportunity for effective rescue of an injured employee given the consistent
atmospheric conditions in the work space and the absence of engulfinent hazards.
Lastly, the Secretary states the need for a voice assisted communication system
e
between an employee in a confined space and a standby man outside of the space is an
industry recognized prudent safety procedure to protect employees in confined spaces
particularly, as in this case, where the employee is often out of sight of the standby man.
The need for a two way communication system in this case is explained in excerpts from the
National Institute for Occupational Safety and Health (NIOSH). (Ex C-S at p. 29).
Respondent acknowledges the NIOSH criteria document as a recognized authority in its
industry. (Tr. 57, Ex. R-2). The Secretary argues that the need for a voice assisted
communication system in this case is compelled by the fact that Mr. Carvolho was required
to wear a half face respirator at all times. (Tr. 23, 24). While an in court demonstration
8
of voice communication through a half face respirator revealed that some communication
could be heard through the respirator, the quality of the voice communication was poor,
me evidence presented by the Secretary is persuasive that, in view of the distance from the
bottom of the confined space and the standby man at street level as well as the configuration
of the pump room which necessitated that the employee be out of visual contact with the
person at street level, a walkie talkie system should have been utilized to facilitate
communication between employer and his rescuer. Also, the Secretary established the
feasibility of abating the violation with the use of wake talkies. Respondent owns an
unknown number of wallcie talkies which it considers to be safety equipment and which
could have been used in the pump room.
After a careful review of the credible evidence now of record, I find that the
Secretary has met her burden of proof in establishing that a violation of Section S(a)(l) of
the Act existed at Respondent’s work place.
Section 17(j) of the Act requires the Commission 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 an
appropriate penalty. Upon consideration of these factors, I have determined that a penalty
of $480.00 is appropriate. I will not decrease’the proposed penalty merely because one of
the possr%lebases of affirmance is unsupported by substantial evidence.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
9
Findings of fact and conclusions of law relevant and necessary to a determination of
the contested issues have been made above. Fed. R. Ck P. 52(a). All proposed findings
of fact and conclusions of law inconsistent with this decision are hereby denied.
ORDER
1. Serious citation 1, item 1 alleging a violation of Section 5(a)(l) of the Act is
AFFIRMED and a penalty of $480.00 is ASSESSED.
. m
RICHARb W. GORDON
Judge, OSHRC
Dated:
Boston, Massachusetts
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