NI Industries, Riverbank Army Ammunitions Plant

Plain-English summary

NI Industries employees cleaned sludge from a permit-required sump about 25 feet deep at an ammunition plant. The sump had limited natural ventilation, and employees used a gasoline chain saw that repeatedly caused the atmospheric monitor's alarm to sound. NI initially provided no forced ventilation, then placed a fan at the entrance, but the fan did not prevent exhaust gases from building up. Administrative Law Judge Benjamin R. Loye held that the ventilation rule was preventive and did not require proof that contaminants actually exceeded a permissible exposure limit. He affirmed that item as serious and assessed $3,500. The judge vacated the isolation, monitoring, permit-cancellation, training, entrant, and attendant items because the Secretary did not prove the specific hazards or prohibited conditions required by those provisions.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.146(d)(3)(ii), 1910.146(d)(3)(iii), 1910.146(d)(5)(ii), 1910.146(e)(5)(ii), 1910.146(g)(3), 1910.146(h)(5)(iii), and 1910.146(i)(6)(i).
• Outcome: Mixed. The ventilation item was affirmed as serious for $3,500, and the other six confined-space items were vacated.
• Key point: Forced ventilation must control contaminants generated by the work itself; repeated monitor alarms can prove inadequate control even without evidence that an exposure limit was exceeded.

Full text (OSHRC public release)

                              United States of America
     OCCUPATIONAL       SAFETY AND HEALTH REVIEW COMMISSION
                      1120 20th Street, N.W., Ninth Floor
                         Washington, DC 20036-34 19


                                                                              Phone: (202) 606-5400
                                                                               Fax: (202) 606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 9401767
NI INDUSTRIES-RIVERBANK ARMY AMMUNIT
Respondent.

                  NOTICE OF DOCKETING
           OF ADMINISTRATIVE LAW JUDGE’S DECISION

 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on June IS, 1995. The decision of the Judge
will become a final order of the Commissron on July 17, 1995 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.
Any such etition should be received by the Executive Secretary on or before
July 5 19&j m
’ order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
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 party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: June 15, 1995 Ray H. Darlinar.
Executive Secretary
DOCKET NO. 94-1767

NOTICE IS GIVEN TO THE FOLLOWIKG:

Daniel Teehan, Esq.
Re ‘onal Solicitor
O&e of the Solicitor, U.S. DOL
71 Stevenson St., 10th Floor
San Francisco, CA 94119

Robert D. Peterson, Esq.
3300 Sunset Blvd
Suite 110
Sunset Whitne Ranch
Rocklin, CA 95 677

Benjamin R. Lo e
Administrative la w Jud e
Occupational Safety an 6: Health
Review Commissron
Room 250
1244 North S eer Boulevard
Denver, CO t 0204 3582

00106356173:09
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. Spew Boulevard
Room 250
Denver, Colorado 802044582

                                                   I

SECRETARY OF LABOR, I
I
Complainant, I
I
v. I OStiC DOCKET
I NO. 944767
NI INDUSTRIES, RIVERBANK I
ARMY AMMUNITIONS PLANT, I
I
Respondent. I
I
APPEARANCES:

           For the Complainant:

                  Jeanne M. Colby, Esq., Office of the Solicitor,
                   U.S. Department of Labor, San Francisco, CA

           For the Respondent:

                  Robert D. Peterson, Esq., Rocklin, CA


                                 DECISION AND ORDER

Loye; Judge:
This proceeding arises under the Occupational Safety and Health Act of 1970 (29
U.S.C., Section 651, et. sea, hereafter referred to as the Act).
Respondent, ‘NI Industries, Riverbank Army Ammunitions Plant (NI), at all times
relevant to this action maintained a worksite at 5300 Claus Road, Riverbank, California,
where it was primarily engaged in manufacturing ammunitions. Respondent is an employer
engaged in a business affecting commerce and is subject to the requirements of the Act.
On May 26, 1994, pursuant to .an inspection of NI’s Riverbank worksite, the
Occupational Safety and Health Administration (OSHA) issued citations, together with
proposed penalties, alleging violations of the Act. By filing a timely notice of contest
Respondent brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
On January 12-13 and February 2, 19% a hearing was held in San Jose, California
on the contested matters. Following the hearing, Complainant withdrew %erious” citation
1, item 5 (Tr. 733). The parties have submitted briefs on the matters remaining at issue, and
this case is ready for disposition.
FACTS
In early 1994 NI employees were engaged in cleaning the influent sump at NPs waste
water treatment plant (Tr. 82). The influent sump is an underground storage chamber for
non- RCRA hazardous waste from NI’s plant (Exh. R-2). The sump is approximately 25
feet deep, 30 feet long and 12-15 feet wide (Tr. 56). The sump is accessed by means of a
ladder through a manhole on the surface (Tr. 56, 78; Exh. C-3a). Ventilation is limited to
the manhole opening and some small openings in the roof (Exh. C-3b through C-3e). A
catwalk runs through the sump approximately 10 feet above the floor (Tr. 57). At the time
of the alleged violations, between 5 and 10 feet of solid sludge was contained behind wood
cribbing (Tr. 57,582.85,617; Exh. R-8). A foot or two of sludge was loose in the open areas
(Exh. R-8). The sludge entered the sump through a 21” pipe in the area behind the cribbing
(Tr. 570). Liquid waste ran into the pit from two drains, 3” and a 6” respectively (Tr. 96;
Exh. R-8, R-9).
Prior to initiating the cleaning NI performed a confined space analysis on the sump
and its contents and established procedures for conducting the clean-up, based on the
sump’s potential hazards (Tr. 639-43; Exh. C-2, R-2). NI determined that the sump was a
permit only confmed space, with limited access and reduced visibility. NI found the sump
contained toxic materials, and that an oxygen deficient atmosphere, or an atmosphere
containing hydrogen sulfide or methane might be present. NI found that entrants could be
subject to engulfment, noise and mechanical hazards (Tr. 248-52; Exh. C-2). NI determined
that entry should be by permit only, after the sump’s atmosphere was purged and tested for

                                                   2

oxygen levels, flammable atmosphere and totics; all energy sources locked out; and all lines
blocked and/or bled and locked out (Exh. C-2).
The evidence establishes that two permits were issued for the influent sump; one
dated 2/28/94 - ,3/4/94, the other for the period from 3/8/94 - 3/10/94 (Tr. 58, 550, 607, 721;
Exh. R-5, R-13). Permit #301 reflects that the sump’s atmosphere was tested on 2/28/94
at 7:45, 9:25, l&30 a.m., and 1:10 p.m. (Tr. 549, 558). It was tested on 313194at 1:50 p.m.,
and on 3/4/M at 7~10, 9:40, 11:50 a.m. and 2:00 p.m. (Tr. 564-65; Exh. R-5). Permit #274
documents atmospheric testing at 1:50 and 2:45 p.m. on 318/94, and at 7:28,8:28, lo:20 a.m.
and at 12:OOnoon on 3/9/94 (Tr. 722-23; Exh. R-13).
Entrants were provided with Tyvek protective suits, rubber boots and gloves (Tr. 79).
The air in the sump was monitored with a Combo 434 gas detection instrument (Tr.
577; Exh. R-10). The instrument was at times hung from a strap five or six feet down from
the entrance to the hole. On February 28, Russ Hart moved it into the area of the sump
where the men were working (Tr. 118, 131). Testimony indicates that at various times the
monitor was suspended 5-6 feet, or 10-15 feet from overhead openings (Tr. 147, 162), and
Very close to where the work was going on” (Tr. 601).
\
An 18” industrial fan with a capacity to move air at 12,000 .cubic feet a minute was
placed at the entrance to the sump on the afternoon of 2/28/94 after an incident where
entrants were evacuated following the sounding of the alarm indicating excessive carbon
monoxide and/or low oxygen conditions in the sump (Tr. 106, 588-92,625; Exh R-5, R-10).
Neither the effluent pipe, nor the drains into the sump were isolated prior to cleaning
operations (Tr. 624, 634). Because NI was not in production, no new waste was being
pumped into the effluent line (Tr. 635). Water ran into the sump fkom NI’s environmental
services laboratory the entire time the cleaning project was going on (Tr. 62,133, 187, 594,
635-37).
Russell Brian Hart, a maintenance mechanic at NI, testified that on or around
February 28, 1994 he entered the influent sump to clean out the sludge that had
accumuIated (Tr. 51, 57, 63). Hart stated that at one point ‘a few hundred gallons” of
water that had built up behind the sludge broke loose and came rushing into the sump,
causing him and two other workers, Gus Rodriguez and Roy Fife, to run for the exit (Tr. 63,

                                            3 .
112). Hart also testified that on that day an alarm sounded while he was inside the sump,
after Fife started up a gas powered chain saw in the sump (Tr. 66-67,92).        He and the other
employees      evacuated     the sump following that incident   (Tr. 67).   Hart testified   that he
developed      a headache after working one day in the sump (Tr. 60).
       Roy Fife testified that he began working in the influent sump in the early part of
March (Tr. 128).           With the exception   of the exact dates and times, Fife’s testimony
corroborates     that of Hart.    Fife testified to using the gas powered chain saw to remove a
cross-beam on the crib (Tr. 132, 149), and setting off the gas detector’s sensor and alarm
(Tr. 135-36). Fife further stated that during the same time period, while he was acting as
a stand-by at the top of the sump, a maintenance       crew consisting of Gus Rodriguez and Ron
Perreira were operating        the chain saw inside the sump, and set off the alarm.         In that
instance, the crew did not evacuate the sump, they merely waited for the air to clear before
continuing work (Tr. 13637,152).        The alarm sounded for between five and fifteen seconds
(Tr. 153, 172).
       Joseph Valenzuela worked at the influent sump late in February and in early March
(Tr. 158-59, 184). Valenzuela recalled the sensor alarm sounding while he was standing by
at the top (Tr. 159). Valenzuela stated that Rodriguez and Perreira were working in the
sump, removing beams with a chain saw when the alarm went off (Tr. 160). Valenzuela
alerted Rodriguez and Perreira to the alarm, but they did not evacuate the hole (Tr. 161).

.
Both Fife and Valenzuela stated that their supervisor, Renaud For-tin, was told about
the alarm, but did not require Rodriguez and Perreira to evacuate (Tr. 150, 165, 174).
Rex Ille testified that he entered the influent sump sometime after March 7, 1994.
Upon his entry, Ille signed a permit dated with the previous day’s date (Tr. 190, 194). Ille
recalled incidents when he was working outside the sump where the sensor alarm went off
in the sump while the gas chain saw was in use (Tr. 193-95). Ille stated that on one occasion
where Valenzuela, Rodriguez and Perreira were working in the sump, they did not evacuate
when the alarm sounded. Rather the workers shut off the saw and waited for the fumes to
clear (Tr. 196).
Richard Carpenter, NI’s chief fire officer, stated that he was present on February
28 when the sensor alarm sounded in the sump. Carpenter stated that he mhkedy wrote
.
4
CO, 15.0 under the toxic heading on permit #301; Carpenter stated the totic alarm
indicated elevated levels of carbon monoxide, or CO (Tr. 559-61). Carpenter stated that all
the entrants were removed from the sump for the day, and that he wrote uout’@on the
permit at 13:10 p.m. (Tr. 562). Carpenter testified that he determined a gas chain saw used
to cut away cribbing holding up the sludge in the sump was the-source of the carbon
monoxide, and that an electric chain saw was purchased a week later, on March 4 (Tr. 586,
6047). Carpenter stated that he was unaware of any other alarms sounding in the sump (Tr.

566).
Fortin testified that he was not on the worksite on February 28, and that he had
never heard an alarm sound in the sump (Tr. 718,724). Fortin testified that he did see the
meter change color to register a toxic atmosphere while employees in the sump were using
the chain saw (724). Fortin told the men to shut off the chain saw and waited for the meter
to return to green (Tr. 725). After that Fortin told the employees to use the chain saw
sparingly (Tr. 730).
DUE PROCESS
NI argues that Complainant did not notify it of the exact dates on which the alleged
violations occurred. NI maintains that it was thereby deprived of due process in that it had
no notice of the charges it was to defend against. The undersigned finds that the citation
and complaint in this matter placed NI on full notice of the nature of the allegedly
hazardous conditions found at its workplace, and of the standards those conditions were
alleged to violate. It is clear from the evidence that NI was also informed at the time of the
OSHA inspection of the incidents leading to the citations and the time period during which
they allegedly occurred. OSHA Compliance Officers (CO) Overmyer and Thompson held
a conference with NI representatives on April 20, 1994, during which they discussed the
findings of their March 1994 inspection (Tr. 255). Any confusion regarding exact dates on
which specific events occurred result from the faulty and conflicting memories of the
witnesses and in no way hindered NI in mounting a complete defense to the allegations at
the hearing.
NI was not denied due process of law.
APPLICABILITY OF 51910.146 et sea
NI maintains that the confined space regulations are inapplicable to its influent sump.
Respondent argues that none of the hazards deemed possible by its own evaluators were
actually present at the time NI employees entered the sump, and that the sump, therefore,
was not a permit only confined space as defined by the standard. NI’s argument that its
sump, identified by NI as a permit only confined space, ceased to be one once NI
ascertained the absence of identified possible hazards, is contrary to the evidence, as well
as the provisions of the standard itself.
Section 1910.146 et seq. is a performance standard. A performance standard differs
from a specifications standard in that rather than directing specific measures to be taken
whenever a hazard identified by the Secretary is present, it allows the employer, within the
standard’s general guidelines, to identify the hazards peculiar to its own workplace and
determine the steps necessary to abate them.
Section 1910.146(c)(l) requires employers to evaluate its workplace to determine if
any spaces are permit required confined spaces. Subsection (c) (7) specifically provides for
the reclassification as a non-permit confined space of a confined space previously classified
by the employer as permit only. That subsection states:
(i) If the permit space poses no actual or potential atmospheric hazards and if all
hazards within the space are eliminated without entry into the space, the permit
space may be reclassified as a non-permit confined space for as long as the non-
atmospheric hazards remain eliminated. (ii) If it is necessary to enter the permit
space to eliminate hazards. .such entry shall be performed under paragraphs (d)
l

   through (k) of this section. If testing and inspection during that entry demonstrate
   that the hazards within the permit space have been eliminated, the permit space may
   be reclassified as a non-p&nit confined space for as long as the hazards remain
   eliminated.
                                         ***
   (iii) The employer shall document the basis for determining that all hazards in a
   permit space have been eliminated, through a certification that contains the date, the
   location of the space, and the signature of the person making the determination. . .


   The evidence clearly establishes that NI determined        the influent sump to be a permit

only confined space, subject to potential atmospheric, as well as other hazards. NI
introduced no evidence that it ever .reclassified the influent sump as a non-permit confined

                                             6

space, or that it made a determination that all hazards had been eliminated prior to allowing
employee access to the space. Rather the use of permits, the provision of protective suits,
ventilation and continuous atmospheric monitoring suggest that NI continued to consider the
sump a permit only confined space.
Moreover, the evidence clearly establishes that potential atmospheric hods
continued to exist in the sums due to its limited ventilation, as demonstrated bv the build-ut,
/ a

of toxic gases inside the sump with NI’s use of a gas chain saw, which set off NI’s gas
monitor.
This judge agrees with NI’s initial assessment, and finds that at the time of the
I l yw l

alleged violations, the influent sump remained a permit OIUYconnnea space subject to the
cited provisions.
Alleged Violation of 61910.146(d)(3Mii)
Serious citation 1, item 1 alleges:
29 CFR 1910.146(d)(3)(ii): Under the permit-required confined space program required by
29 CFR 1910,146(c)(4), the employer did not develop and implement the means, procedures,
and practices necessary for safe permit space entry operations, including isolating the permit
space:
a) Employees were required to work in permit required confined space without properly
isolating the space.

    CO Overmyer         testified that the failure to isolate the sump created a drowning

hazard.’ In addition, Overmyer stated that if the influent reacted chemically with the

1 Complainant, in its brief, for the 6rst time raises the allegation that the introduction of the gas powered
chain saw into the sump constitutes a violation of the cited standard. The undersigned finds that the issue
was not timely raised, but notes that, in any event, nothing in the standard supports such an interpretation.

    Section 1910.146(b) defines isolation as:

    ...the process by which a permit space is removed from service and completely protected
    against the release of energy and material into the space by such means as: blanking or
    blinding; misaligning or removing sections of lines, pipes, or ducts; a double block and bleed
    system; lockout or tagout of all sources of energy; or blocking or disconnecting all mechanical
    linkages.

   Nothing in the definition prohibits the use of motorized hand tools. Rather the standard specifically

contemplates atmospheric changesdue to work being performed, such as welding and coating, and anticipates

                                                   7

sludge, a hazardous substance or atmosphere could be created, which might cause chemical
bums, asphyxiation, or gas explosions (Tr. 25758).
The evidence establishes that NI originally developed procedures for entry into the
effluent sump that included locking out effluent pumps and stopping all liquid influent
sources (Exh. C-2). Fortin testified, however, that at the time of entry he was told by his
boss that the lab pipes did not need to be shut down (Tr. 731). The decision not to break
or blank the lines was recorded on permits 301 and 274 (Exh. R-5, R-13). The record
establishes that influent from the labs consisted mainly of tap water and dish detergent (Tr.
654659).. Michael Kummer, an NI chemical engineer, testified that water, and water soluble
components, mainly acids, including sulfuric, hydrochloric and nitric acids are sometimes
discharged into the system leading to the effluent sump in a highly diluted form (Exh. 655
56). Kummer stated that wastes containing cyanide, chromium and organic reagents are not
disposed of in the waste water system (Exh. 658-59).
Discussion
Subsection (d)(3)( ii ) re q uires the employer to develop and implement procedures
necessary for safe permit space entry, including isolation of the permit space me standard,
as noted above, is a performance standard and does not specify the exact conditions under
which isolation of a confined space is deemed necessary. The preamble to the cited
standard states only that ‘[t]he permit space must be isolated from serious hazards.” 58 FR
4497 (January 14, 1993).
NI argues that Complainant failed to show a drowning hazard, or to show that the
influent from the labs could have caused a hazardous chemical reaction with the sludge.
The undersigned agrees that Complainant failed to establish a drowning hazard. The
effluent pipe was effectively isolated in that it was out of service; any residual liquid in that
pipe was already in the sump prior to the start of cleaning operations. The flow from the
influent pipes was insufficient to fill a space the size in the sump without more than
adequate warning for employees in the sump to evacuate, or, as was done here, pump it out.
Prior to its employees entering the sump NI determined that isolation of the space

the control of fumes through the use of proper ventilation. See, example 3, following the cited standard.

                                                 8

to prevent chemical and/or atmospheric hazards was not necessary. Nothing in the record
would allow the undersigned to conclude otherwise, ie. that the influent from NI’s labs
might pose a serious hazard necessitating isolation. Complainant introduced no testimony
indicating that the chemicals NI might reasonably expect to be disposing of through its waste
water system might be hazardous in and of themselves, or that those chemicals might react
with the sludge in the sump to create a hazardous atmosphere. The Secretary’s speculation
that some unidentified chemical which NI might or might not use in its labs might react with
the contents of the sump, is insufficient to establish a prima facie case.
Citation 1, item 1 will be vacated.
Alleged Violation of 61910.146(d) (3) (iii)
Serious citation 1, item 2 alleges:
29 CFR 1910.146(d)(3)(iii): Purging, inserting, flushing or ventilation of space as necessary
to eliminate or control atmospheric hazards.
a) Employees worked in permit required confined spaces without forced air ventilation
provided to the confined space.

Facts
CO Overmyer testified that ventilation in a confined space is designed to move large
volumes of air through ductwork into the area of the confined space where employees are
working. Overmyer stated that the fan in use at NI was insufficient to ventilate the sump
(Tr. 260).
The evidence establishes that no ventilation was provided in the sump prior to
February 28, when the operation of a chain saw in the sump caused NI’s gas monitor’s
alarm to sound. Moreover, the undersigned finds that an atmospheric hazard developed at
least once after the February 28 incident, and after a fan was installed by NI. During the
second incident, which apparently took place on March 3, employees Rodriguez and Perreira
were told to shut off the chain saw they were using in the sump when the gas monitor’s
alarm warned of a toxic atmosphere. The gas powered chain saw remained in use, however,
until it was replaced with an electric chain saw on March 4.2
Discussion
Subsection 1910.146(d) requires the employer to develop a program which will allow
employees to perform their work in the permit space safely. The program must include
procedures to purge, flush or ventilate permit spaces ‘as necessary” to eliminate or control
atmospheric hazards. When the work required includes the use of equipment capable of
,producing atmospheric hazards, the’ventilation provided must be adequate to control any
hazards produced by that equipment. Here, no ventilation was initially provided; once
ventilation was provided it proved inadequate to eliminate the carbon monoxide fumes
created by the gas chain saw used by Respondent’s employees.
NI argues that its gas monitor was factory calibrated to sound its alarm at 35 ppm for
carbon monoxide, well below the 50 ppm which OSHA has established as the permissible
exposure limit (PEL) for carbon monoxide. See, ~1910.1000. The alarm is set to sound at
a low of 19.5 percent Oxygen (Tr. 580-82; Exh. R-10). Section 1910.146(b) defines an oxygen
deficient atmosphere as any atmosphere containing less than 19.5 percent oxygen by volume.
NI argues that the sounding of its alarm, therefore, fails to show that its ventilation failed
to control the atmospheric hazard created by the chain saw.
The evidence establishes that the use of a gas chain saw repeatedly caused a build-up
of carbon monoxide to 35 ppm or above, and/or a drop in the oxygen level to 19.5, and set
off NI’s gas monitor alarm (Exh. R-5). It is clear that NI’s fan failed to eliminate the
chain saw’s exhaust fumes from the permit space. That the ventilation allowed toxic gases
to build up in the sump is enough to establish the violation. To prove its prima facie case,
it is not necessary for the Complainant to show &at the atmosphere actually reached
dangerous levels, because the standard is preventative in nature. See; Dravo Corporation,
7 BNA OSHC 2095, 1980 CCH OSHD 724,158 (No. 16317, 1980) [Discussing

2 Based .d their non-antagonistic demeanor and on the cumulative nature of their testimony, this judge

credits the testimony of those employee witnesses who worked in the sump over that of NI foreman Fortin.
Fortin was the only management representative with first hand knowledge of the events at the sump, and as
the supervisor on duty at the sump bears the ultimate respons~%ilityfor the employees’ continued presence
in the sump following the development of alarm conditions.

                                               10

§1916.31@)( l), requiring ventilation in confined spaces when welding; the Commission noted
that allowing the employer to withhold ventilation until excessive fumes were actually
detected might result in injury in the event of untimely detection].
Respondent recorded a 15.0 reading for carbon monoxide and a reading of 19.5 for
oxygen on February 28, at which time employees were evacuated from the permit space.
On March 3, no evacuation took place, and no records were made of the monitor readings
which resulted in an alarm situation. Taking into account the error factor present in any
monitor, and the noise hazard present in the sump with ‘the chain saw running, the
undersigned finds a significant risk of an undetected dangerous atmosphere building up in
the sump. The evidence establishes that the ventilation provided was inadequate, in and of
itself, to eliminate that dangerous atmosphere.
The cited violation has been established.
Pen@
Complainant characterizes the cited violation as serious. CO Overmyer testified
without contradiction that the build-up of hazardous gasses could have resulted in
asphyxiation, unconsciousness, and death. A penalty of $3,500.00 was proposed.
l
NI
stipulates to OSHA’s computation of its size, history of previous violations, and good faith
(Tr. 48). Based on the high gravity of the violation, and the absence of any new mitigating
evidence, the penalty is deemed appropriate and will be assessed.
Alleged Violation of J11910.146(dMMii)

   Serious citation   1, item 3 alleges:

29 CFR 1910.146(d)(S)(ii): Under the permit-required confined space program required by
29 CFR 1910.146(c)(4), the employer did not evaluate permit space conditions when entry
operations were conducted by testing or monitoring the permit space as necessary to
determine if acceptable entry conditions were being maintained during the course of entry
operations:
(a) Employees entered confined spaces without the benefit of atmospheric testing being
accomplished daily prior to entry. Dates were changed on confined space entry permit from
previous day to current day without testing confined space.

   Complainant      maintains that the monitoring done was inadequate,        in that it failed to

take into account the layering of atmospheres in the pit (Tr. 261).

                                               11
     The permits indicate that the sump was purged or inerted prior to the employees

initial entry (Ekh. R-5). The evidence establishes that NI performed continuous monitoring
of atmospheric conditions in the sump, and that readings reflecting the monitoring were
recorded several times a day, though not always first thing in the morning. NI supervisor
Fortin testified that the sump was not continuously occupied, and that for half of a day the
sump might be unoccupied (Tr. 721). Fortin also testified that .there was never an occasion
during which employees entered the sump without monitoring being performed while he was
on duty (Tr. 727). The testimony places the gas monitor all over the sump during the work
shift. There is no testimony indicating where the recorded readings were obtained. Based
on the evidence, this judge cannot conclude that monitoring did not reflect the breathing
areas of NI employees.
The evidence fails to support Complainant’s assertion that NI’s atmospheric
monitoring was inadequate. Citation 1, item 3 will be vacated.
Alleged Violation of 81910.146(e)(5) (ii)
Serious citation 1, item 4 alleges:
29 CFR 1910.146(e)(5)@): Th e entry supervisor did not terminate the entry and cancel the
entry permit when a condition that was not allowed under the entry permit arose in or near
the permit:
(a) Employers worked in permit required confined space when conditions not allowed
occurred, O2sensor sounded alarm and employees were not evacuated from permit space
and no cancelled permit.

Dim&on
The cited standard requires the entry supervisor to terminate the entry and the
permit authorizing it whenever conditions not allowed under the permit arise in the permit
space. Unlike the ventilation, requirement discussed above, the standard cited here is
premised upon proof of a non-complying condition; in order to make out aprima facie case,
the Secretary must show that a condition that was not allowed under the entry permit arose
in the permit space.
The evidence establishes that an alarm condition arose in the sump as a result of the
use of a gas chain saw. None of the testimony, however, establishes that the alarm was due
to conditions disalIowed by NI’s entry permit. NI’s permit allows entry at oxygen levels of

                                               12

19.5% and above. There is no evidence that the oxygen levels in the sump ever fell below
that point. The only testimony on this issue was that of R. Carpenter, who stated that the
alarm was caused by a 15.0 carbon monoxide (CO) reading. NI’s permit allows entry where
toxic gases are below the established PEL Complainant introduced no evidence which
might tend to establish that a 15.0 reading represents a CO level in excess of the PEL.
No other measurements were recorded or testified to by the employees.
A violation has not been established, and citation 1, item 5 will be vacated.

Alleged Violations of 81910.146(h) (5) (iii) and (i)(6)(i)
Serious citation 1, item 6 alleges:
29 CFR 1910.146(h)(S)(iii): Th e employer did not ensure that all authorized entrants exited
fkom the permit space as quickly as possrible whenever the entrants detected a prohibited
condition:
(a) Authorized entrants failed to evacuate permit required confined space when prohibited
condition occurred.

    Serious citation 1, item 7 alleges:

29 CFR 1910.146(i)(6)(i): Th e employer did not ensure that each attendant monitored
activities inside and outside the space to determine if it was safe for entrants to remain in
the space and ordered the authorized entrants to evacuate the permit space immediately
when the attendant detected a prohiiited condition:
(a) Attendant did not require employees to evacuate confined space when prohibited
condition occurred.

Dimssion
For the reasons discussed above, the Complainant failed to establish a prima facie
case. Citation 1, items 6 and 7 will be vacated.

    All findings of fact and conclusions of law relevant and necessary to a determination

of the contested issues have been found specially and appear in the decision above. See
Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER

1. Serious citation 1, item 1, alleging violation of ~1910.146(d)(3)(ii) is VACATED.

                                            13
   

   2. Serious citation 1, item 2, alleging violation of §1910.146(d)(3)(iii) is AFFIRMED as
      a “serious” violation and a penalty of $3,500.00 is ASSESSED.
   3. Serious citation 1, item 3, alleging violation of ~1910.146(d)(5)(ii) is VACATED.
   4. Serious citation 1, item 4, alleging violation of ~1910.146(e)(5)(ii) is VACATED.
   5. Serious citation 1, item 5, alleging violation of 51910.146(g)(3) is VACATED.
   6. Serious citation 1, item 6 alleging violation of ~1910.146(h)(5)(iii) is VACATED.
   7. Serious citation 1, item 7 alleging violation of §19lO.M(i)(6)(i) is VACATED.

Date& June 9, 1995

                                                                   .
                                            14