Drexel Chemical Co.

Plain-English summary

OSHA cited Drexel Chemical's manufacturing plant for permit-space, lockout, and material-storage violations. The Commission vacated the workplace-evaluation item because a qualified manager familiar with the plant had evaluated its spaces, and it vacated the warning-sign item because access was restricted and employees received permit-space training. It affirmed the written permit-space program item because Drexel's generic materials did not identify plant-specific spaces, hazards, entry conditions, protective equipment, or rescue procedures. It also affirmed the lockout item because the procedure did not identify machine-specific energy sources and controls, and affirmed the storage item because unstable 20-foot tiers of boxes in a staging area exposed nearby employees. The total penalty was $2,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.146(c)(1); 29 C.F.R. § 1910.146(c)(2); 29 C.F.R. § 1910.146(c)(4); 29 C.F.R. § 1910.147(c)(4)(ii); 29 C.F.R. § 1910.176(b)
• Outcome: Two permit-space items were vacated; the written-program, lockout, and storage items were affirmed for $2,500 total.
• Key point: Generic written procedures do not satisfy standards that require instructions tailored to the workplace's specific spaces, hazards, machines, and energy sources.

Full text (OSHRC public release)

SECRETARY OF LABOR,
              Complainant,
                   v.                         OSHRC Docket No. 94-1460
DREXEL CHEMICAL CO.,
              Respondent.



                                   DECISION

Before: WEISBERG, Chairman; MONTOYA and GUTTMAN, Commissioners.
BY THE COMMISSION:
The issue in this case is whether Administrative Law Judge Ken S. Welsch erred by
affirming various violations of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§§ 651 - 678 (“the Act”), involving permit-required confined spaces, lockout/tagout
provisions, and the storage of material. Having reviewed the record, we vacate the citations
for violations of 29 C.F.R. §§ 1910.146(c)(1) and (c)(2), and we affirm the citations for
violations of 29 C.F.R. §§ 1910.146(c)(4), 147(c)(4)(ii), and 176(b).1

                        I. Permit-Required Confined Spaces
               A. Alleged Violation of 29 C.F.R. § 1910.146(c)(1)
 During a routine inspection of Drexel Chemical Company’s manufacturing plant in

Cordele, Georgia, Occupational Safety and Health Administration (“OSHA”) Compliance
Officer David Baker noticed that the plant contained several permit-required confined spaces

1
Because we have resolved these issues on the basis of the record before us, we deny
Respondent’s motion for oral argument.
 2

(“permit spaces”).2 Baker concluded from his inspection that Drexel did not conduct a
satisfactory evaluation of its workplace pursuant to 29 C.F.R. § 1910.146(c)(1), which states
that “[t]he employer shall evaluate the workplace to determine if any spaces are permit-
required confined spaces.” The Secretary subsequently cited Drexel for a violation of 29
C.F.R. § 1910.146(c)(1).
Michael Shankle, Drexel’s corporate regulatory manager, testified at the hearing that
he had made the determination prior to the effective date of the standard that Drexel’s plant
contained permit spaces that were covered by the standard. Shankle stated that he had been
to the Cordele plant many times and was familiar with its physical layout, equipment, and
chemical processes and that he made this evaluation based on his knowledge of the plant.
Shankle stated that “the only way you could write this program is by evaluating the site,
because you first have to determine do you fall under the regulation.” This testimony was
supported by a memorandum dated March 16, 1993, from Shankle to Drexel’s plant

2
§ 1910.146 Permit-required confined spaces.
(b) Definitions.
....
Confined space means a space that:
(1) Is large enough and so configured that an employee can bodily enter and perform
assigned work; and
(2) Has limited or restricted means for entry or exit (for example, tanks, vessels, silos,
storage bins, hoppers, vaults, and pits are spaces that may have limited means of
entry); and
(3) Is not designated for continuous employee occupancy.
....
Permit-required confined space (permit space) means a confined space that has one
or more of the following characteristics:
(1) Contains or has a potential to contain a hazardous atmosphere;
(2) Contains a material that has the potential for engulfing an entrant;
(3) Has an internal configuration such that an entrant could be trapped or asphyxiated
by inwardly converging walls or by a floor which slopes downward and tapers to a
smaller cross-section; or
(4) Contains any other recognized serious safety or health hazard.
 3

managers and safety officers stating that “[o]n April 15, 1993, OSHA’s final rule on
regulating confined space entry takes effect. This ruling will effect [sic] Drexel’s operations
since our employees routinely enter confined spaces (eg: tanks, vessels, reactors, bins,
blenders, dust collectors, etc.).”
As an initial matter, we agree with the Secretary that the evaluation under paragraph
(c)(1) requires the identification of all permit spaces in a workplace. In reaching this
conclusion, we look to the language in the preamble, which we have held is “the best and
most authoritative statement of the Secretary’s legislative intent.” American Sterilizer Co.,
15 BNA OSHC 1476, 1478, 1991-93 CCH OSHD ¶ 29,575 at p. 40,016 (No. 86-1179,
1992); Phelps Dodge Corp. 11 BNA OSHC 1441, 1444, 1983-84 CCH OSHD ¶ 26,552, pp.
33,920-21 (No. 80-3203, 1983), aff’d, 725 F.2d 1237, 1240 (9th Cir. 1984). The language
in the preamble relating to § 1910.146(c)(1) states that “workspaces that meet the definition
of permit space need to be identified at the time the final rule goes into effect.” 58 Fed. Reg.
4481 (1993). OSHA reasoned that the “initial survey will facilitate employers’ efforts to
develop and implement appropriate measures so that a protective permit space program is in
place when entry operations are initiated.” Id.
In addition to the language in the preamble, the structure of the standard logically
requires that the initial evaluation identify each permit space in a workplace. Such
identification would facilitate compliance with the subsequent provisions of the regulation,
including paragraph (c)(2), which requires the employer to warn employees of the existence
and danger of the permit spaces, and paragraph (c)(4), which requires a written entry
procedure for permit spaces.
Although we conclude that 29 C.F.R. § 1910.146(c)(1) does require the identification
of all permit spaces in a workplace, we find that the Secretary has not established a violation
in this case. The Secretary alleges that Drexel did not conduct the type of specific evaluation
required by the standard because it did not physically inspect the plant for permit spaces and
because it failed to include batch hoppers and mixing vats in the list of permit spaces in its
 4

written program. However, Drexel’s regulatory manager based his evaluation of the plant
upon his knowledge of the equipment and machines, and the record indicates that he had the
information necessary to determine which spaces in the plant were permit spaces and was
qualified to make such determinations. Drexel’s failure to specify the vats and hoppers in its
written program may result in an incomplete written program, but it does not follow that an
initial evaluation was not conducted. We do not find the evaluation by a qualified person
who was familiar with the plant to have been so deficient as to constitute a failure to
evaluate.
Our conclusion is in accordance with an instruction published after the inspection in
this case which suggests that an employer may satisfy the requirements of paragraph (c)(1)
without documenting the evaluation or conducting a physical inspection of the workplace.
OSHA Instruction CPL 2.100, Application of the Permit-Required Confined Spaces
Standards (“CPL”), dated May 5, 1995, states that the evaluation under § 1910.146(c)(1)
does not need to be documented as long as the employer can explain how the evaluation was
conducted and describe the results.3 The CPL also states that the initial evaluation does not
necessarily require a specific physical survey of each space if the determination can be made
through existing records and knowledge of the spaces in the workplace, provided that this
information is adequate. Accordingly, we vacate the item alleging a violation of 29 C.F.R.
§ 1910.146(c)(1).
B. Alleged Violation of 29 C.F.R. § 1910.146(c)(2)

3
We note that the CPL is not binding on the Secretary; however, we have relied on CPLs to
support an interpretation of a standard in the past. See, e.g.,EBBA Iron, Inc., 17 BNA OSHC
1051, 1052, 1993-95 CCH OSHD ¶ 30,685, p.42,585 (No. 92-3189, 1995); Price Chopper
Supermarkets, 15 BNA OSHC 1518, 1520 n.3, 1991-93 CCH OSHD ¶ 29,608, p. 40,083 n.3
(No. 90-0552, 1992).
 5

   The Secretary cited Drexel for violating 29 C.F.R. § 1910.146(c)(2)4 because it did

not have posted danger signs identifying the permit-required confined spaces at the plant.
The record indicates that the majority of permit spaces at the plant are tanks and that an
employee must remove approximately thirty bolts and a manhole cover in order to enter any
one of them. Shankle testified that “it takes maintenance to even open [the dust collectors]
up to get in,” and that all of the permit spaces in the plant are difficult to access because they
have small openings and require a ladder to enter. Emory Tucker, the present plant manager
at Drexel’s Cordele plant, testified that an employee could not inadvertently enter a permit-
required confined space. For example, he testified that the dust collectors are situated on
raised platforms and storage tanks are suspended “above the platform about almost head-
high.” In addition, Tucker testified that the plant maintains a list of qualified employees who
are the only ones authorized to enter permit spaces, and that permit spaces were discussed
with employees at safety meetings.
Section 1910.146(c)(2) requires employers to inform their employees of the existence
and location of, and the dangers posed by, permit-required confined spaces. The preamble
to the standard states that employers could achieve this goal by using the most cost-effective
method available, including training and restricting access to permit spaces with tools and

4
The standard provides:

   § 1910.146 Permit-required confined spaces.
   (c) General Requirements. . . .
   ....
   (2) If the workplace contains permit spaces, the employer shall inform exposed
   employees, by posting danger signs or by any other equally effective means, of the
   existence and location of and the danger posed by the permit spaces.

6

keys. 58 Fed. Reg. 4481 (1993). Mandatory posting of signs was explicitly rejected in the
final rule.5 The preamble states, however, that “general training in the OSHA standard cannot
be expected to adequately inform employees of the location of permit spaces in the
workplace” and it emphasizes that the standard places the burden of identifying permit
spaces on the employer, not the employee. 58 Fed. Reg. 4483.
We find that the Secretary failed to establish a violation. The record indicates that
access to permit spaces in Drexel’s plant is restricted and that Drexel’s employees received
permit space training. Although Tucker did not provide details of the training in his
testimony, the provision of adequate training was not rebutted and we are therefore unable
to conclude, as the Secretary argues, that the training was too generalized and insufficient
to supplant danger signs. This unrebutted testimony, in conjunction with the workers’ very
limited access to the permit spaces, supports a finding that the Secretary failed to establish
that Drexel’s employees were not adequately informed of the existence of permit spaces at
the plant. Accordingly, we vacate this item.
C. Alleged Violation of 29 C.F.R. § 1910.146(c)(4)
Drexel was also issued a citation alleging a violation of 29 C.F.R. § 1910.146(c)(4),6
based on the compliance officer’s examination of its written permit space program. At issue
is whether the Secretary proved that Drexel’s program did not comply with the standard’s

5
Proposed paragraph (c)(4) would have required all permit spaces to be posted with signs
indicating what hazards were present and that only authorized entrants could enter. This
language was not incorporated into the final rule.
6
The standard provides:
§ 1910.146 Permit-required confined spaces.
(c) General Requirements. . . .
....
(4) If the employer decides that its employees will enter permit spaces, the employer
shall develop and implement a written permit space program that complies with this
section. The written program shall be available for inspection by employees and their
authorized representatives.
 7

requirements. The required elements of the written permit-required confined space program
are detailed in section 1910.146(d), which provides, in part:
(d) Permit-required confined space program (permit space program). Under the
permit space program required by paragraph (c)(4) of this section, the employer shall:
(1) Implement the measures necessary to prevent unauthorized entry;
....
(3) Develop and implement the means, procedures, and practices necessary for safe
permit space entry operations, including, but not limited to the following:
(I) Specifying acceptable entry conditions;
(ii) Isolating the permit space;
(iii) Purging, inerting, flushing, or ventilating the permit space as necessary to
eliminate or control atmospheric hazards;
....
(v) Verifying that conditions in the permit space are acceptable for entry throughout
the duration of the authorized entry.
....
(8) Designate the persons who are to have active roles (as, for example, authorized
entrants, attendants, entry supervisors, or persons who test or monitor the atmosphere
in a permit space) in entry operations, identify the duties of each such employee, and
provide each such employee with the training required by paragraph (g) of this
section;
(9) Develop and implement procedures for summoning rescue and emergency
services, for rescuing entrants from permit spaces, for providing necessary emergency
services to rescued employees, and for preventing unauthorized personnel from
attempting a rescue;
(10) Develop and implement a system for the preparation, issuance, use, and
cancellation of entry permits as required by this section;
....

   Drexel’s program consisted only of a two-page memorandum dated March 16, 1993

from Shankle to plant managers and safety officers informing them of the new OSHA
regulation regarding permit spaces, a summary of its requirements, a sample entry permit,
and a copy of Keller’s Industrial Safety Report entitled “Confined Spaces Final Rule: Your
New Requirements Under OSHA Section 1910.146.” Drexel did not develop a permit space
entry program specific to the permit spaces at its Cordele plant.
 8

   We find that the Secretary has established that Drexel’s written permit space program

is inadequate. Not only does it not identify the particular permit spaces at the plant or set
forth specific procedures for entry into those spaces, it also does not differentiate between
the different types of permit spaces found within its plant. For example, Drexel’s written
program fails to identify: the potential hazard posed by each type of space;7 acceptable entry
conditions for each type of permit space; appropriate protective equipment necessary to enter
a space;8 which retrieval method is appropriate for the different permit spaces; which rescue
technique would be most effective for each type of space;9 and which lockout procedure, if
applicable, should be used for each type of permit space.10
In the preamble to the standard, OSHA described the written plan as “a reference for
guidance and direction to supervisors and employees alike.” 58 Fed. Reg. 4484 (1993).
Drexel’s permit program is not sufficient to serve this purpose. We recognize that an
employer may have the same permit space procedure for spaces with similar characteristics,
however, the permit program must also include those spaces that are not similar in terms of
configuration, access, and hazards. The permit spaces at Drexel’s plant are not sufficiently
similar to justify the same procedure, as evidenced by Shankle’s testimony that some spaces
at the plant have mechanical hazards and others do not, and the plant manager’s testimony

7
Drexel’s program merely states that “Confined spaces must be tested for any hazards prior
to entry, (oxygen level, flammable gasses, L.E.L., toxic air contaminants). Detection meter
is necessary.” (emphasis in original).
8
Drexel’s program states that “The attendant or supervisor in charge is responsible for
assuring that proper personnel protective equipment is worn and properly used by the
entrants (eg: tyvek suits, rubber gloves, rubber boot, safety goggles, respirators, forced air
respirators, etc.).”
9
Drexel’s program states generally that “Retrieval systems or methods (eg: harness, wristlets,
etc.) are to be used in areas that rescue efforts would be hampered without these aids.”
10
Drexel’s program states that “All mechanical devices are to be properly locked out, blanked
or disconnected to assure that all hazards are isolated. (eg: pumps, agitators, valves, lines,
etc.).”
 9

that the mixing vessels contain different materials. Moreover, even if, as Drexel contends,
all the permit spaces were similar for purposes of a written program, its program would still
be deficient due to its generic nature.
Under section 17(j) of the Act, 29 U.S.C. § 666(j), we determine an appropriate
penalty by considering the size of employer’s business, the gravity of the violation, the good
faith of the employer, and its history of violations. In his decision, the judge grouped the
penalties for 29 C.F.R. §§ 1910.146 (c)(1), (c)(2), and (c)(4),and assessed a $1000 penalty.
Because we have vacated the citations for §§ 1910.146 (c)(1) and (c)(2), but find the gravity
of the § 1910.146(c)(4) violation to be high, we find that a penalty of $750 is appropriate.
Accordingly, we affirm the item alleging a violation of 29 C.F.R. § 1910.146(c)(4) and
assess a penalty of $750.
II. LOCKOUT/TAGOUT PROCEDURES
Alleged Violation of 29 C.F.R. § 1910.147(c)(4)(ii)
At issue here is whether Drexel had an energy control procedure in place as required
by section 1910.147(c)(4)(ii). The standard provides that:
The procedures shall clearly and specifically outline the scope, purpose,
authorization, rules, and techniques to be utilized for the control of hazardous energy,
and the means to enforce compliance, including, but not limited to, the following:

   (A) A specific statement of the intended use of the procedure;
   (B) Specific procedural steps for shutting down, isolating, blocking and securing
   machines or equipment to control hazardous energy;
   (C) Specific procedural steps for the placement, removal and transfer of lockout
   devices or tagout devices and the responsibility for them; and
   (D) Specific requirements for testing a machine or equipment to determine and verify
   the effectiveness of lockout devices, tagout devices, and other energy control
   measures.
   Drexel’s procedure appears to derive from Appendix A to §1910.147, an illustration

of a typical minimal lockout procedure. For this form procedure to be effective, the employer
must fill in a number of blanks, including the names of affected employees, the types and
magnitudes of energy, the hazards, the methods to control the energy, the types and locations
 10

of machine or equipment operating controls, the types and locations of energy isolating
devices, the types of stored energy and methods to dissipate or restrain energy, and the
method of verifying the isolation of the equipment. Drexel failed to fill in any of this
information. For example, Drexel’s program states generically that:
....
3. If the machine or equipment is operating, SHUT IT DOWN by the normal stopping
procedure (depress stop button, open switch, close valve, etc.)

  4. Deactivate the energy isolating device(s) so that the equipment is isolated from the

energy source(s).

   5. Lock out the energy isolating device with assigned individual locks. Also remove

any fuses if an electrical disconnect is involved.

   6. Stored or residual energy (such as that in capacitors, springs, elevated machine

members, rotating flywheels, hydraulic systems, and air, gas, steam, or water pressure, etc.)
must be dissipated or restrained by methods such as grounding, repositioning, blocking,
bleeding down, etc.
....
The procedures submitted by Drexel fall far short of the standard’s requirements.
They provide no information about Drexel’s machines that would enable an employee to lock
out a machine safely. For example, Appendix A clearly indicates that in order for element
4 to be effective, the types and locations of machine or equipment operating controls must
be identified. Drexel did not provide this information, or any of the other required
information. Under Drexel’s lockout procedure, the employee is not informed of the type and
magnitude of the energy, the method to control the energy, the shut down procedure, the
energy isolating device and method, and the method to dissipate stored or residual energy.
Because the purpose of the lockout procedure is to guide an employee through the lockout
process, these general procedures are not acceptable.
Even if the program were otherwise adequate we would reject Drexel’s contention
that its program covers all the machines and equipment in its plant. In proposing the rule,
OSHA noted that machines that are similar, using the same type and magnitude of energy
 11

and the same types of controls, can be covered with a single procedure. 53 Fed. Reg. 15,509
(1988). That is not the case here. In addition to electrically driven machines, Tucker testified
that the plant has an airmill, driven by an air compressor, and that its lockout procedure
involves fitting a device over the air valve to prevent air from going into the mill. That
procedure differs from the single switch lockout of the electrically driven machines. Because
the standard requires the lockout procedures for each type of machine to be specifically
defined, and because there are different types of machines at the plant, Drexel must have
more than one lockout procedure.
We also reject Drexel’s broad contention that all the machines in the plant come
within the exception to the cited regulation in section 1910.147(c)(4).11 Compliance Officer
Baker testified that some of the machines at Drexel’s plant did not meet the requirements of
the exception. He testified that there is a potential for stored or residual energy after

11
The exception is as follows:

   § 1910.147 The control of hazardous energy (lockout/tagout).
   (c) General -
   ....
   (4) Energy control procedure.
   ....
   NOTE: Exception: An employer need not document the required procedure for a
   particular machine or equipment, when all of the following elements exist: (1) The
   machine or equipment has no potential for stored or residual energy or
   reaccumulation of stored energy after shut down which could endanger employees;
   (2) the machine or equipment has a single energy source which can be readily
   identified and isolated; (3)the isolation and locking out of that energy source will
   completely deenergize and deactivate the machine or equipment; (4) the machine or
   equipment is isolated from that energy source and locked out during servicing or
   maintenance; (5) a single lockout device will achieve a locked-out condition; (6) the
   lockout device is under the exclusive control of the authorized employee performing
   the servicing or maintenance; (7) the servicing or maintenance does not create hazards
   for other employees; and (8) the employer, in utilizing this exception, has had no
   accidents involving the unexpected activation or reenergization of the machine or
   equipment during servicing or maintenance.

12

shutdown in the hoppers and mills, that not all equipment had a single energy source, and
that some of the mills and hoppers were too large for one person to control all energy sources
during servicing or maintenance. Drexel did not introduce evidence to support its claim that
all of its machines and equipment met the elements of the exception.
Accordingly, we affirm the item alleging a violation of 29 C.F.R. § 1910.147(c)(4)(ii).
Since neither party disputes the $700 penalty assessed by the judge, we see no reason to
disturb it.
III. STORAGE OF BOXES
Alleged Violation of 29 C.F.R. § 1910.176(b)
The Secretary also alleged that Drexel violated 29 C.F.R. § 1910.176(b)12 by storing
boxes in a hazardous manner. At issue here is whether the boxes were in storage within the
meaning of section 1910.176(b), and if they were, whether the Secretary proved employee
exposure. The record indicates that tiers of boxes, approximately 20 feet high, located near
a loading dock, were not properly stacked and were bulging and leaning. Compliance Officer
Baker testified that he was told that the boxes were placed there because there was no other
room in the warehouse and that Drexel was in the process of building a new warehouse.
Baker saw an employee sweeping the area around the boxes and other employees walking
within 10 feet of the boxes. Tucker, the plant manager, testified that the boxes were
temporarily held in a “staging area” after being unloaded from a truck. Zebulon Scott, a
forklift operator, testified that the boxes are stacked in the staging area until they are
transported to the back of the warehouse for storage when all the trucks are unloaded.

12
The standard provides that:

   § 1910.176 Handling materials -- general.
   ....
   (b) Secure storage. Storage of material shall not create a hazard. Bags,
   containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked
   and limited in height so that they are stable and secure against sliding or
   collapse.

13

   We find that the standard is applicable in this situation because the boxes were in fact

stored in the “staging area” while awaiting further transport. The record does not establish
how long the boxes were in this location, but it does indicate that the employee who
unloaded the trucks and stacked the boxes had finished those jobs and was sweeping the
floor when Baker noticed the boxes stacked in an unsafe manner. While there may be an
amount of time so short that materials would not be considered stored, the length of time at
issue here exceeds any de minimis period that may exist under the standard. We further find
that Drexel’s employees were exposed to the hazard. The evidence is undisputed that
employees, including the one who swept the floor, were in the area of the boxes. Therefore,
we affirm the item alleging a violation of 29 C.F.R. § 1910.176(b). Since Drexel does not
dispute the penalty, we affirm the $1,050 penalty assessed by the judge.

                                       Order
   Accordingly, the citation items alleging violations of 29 C.F.R. §§ 1910.146 (c)(1)

and (c)(2) are vacated. The citation items alleging violations of 29 C.F.R. §§ 1910.146(c)(4),
147(c)(4)(ii), and 176(b) are affirmed, and a total penalty of $2,500 is assessed.

                                                      /s/
                                                      Stuart E. Weisberg
                                                      Chairman


                                                      /s/

14

                        Daniel Guttman
                        Commissioner


                        /s/
                        Velma Montoya
                        Commissioner

Dated: March 3, 1997