Mobile Premix Concrete, Inc.

Plain-English summary

Mobile Premix Concrete operated below-ground sand and gravel hoppers that fed material onto a conveyor. An employee was buried in a sand hopper and died, and OSHA cited the company for failing to treat the hoppers as permit-required confined spaces. The Commission found that a live hopper limited an employee's ability to exit and that its flowable material could engulf an entrant, bringing it within 29 C.F.R. § 1910.146. It agreed that the violations were serious but not willful because the safety director and an outside consultant had evaluated the nearly empty hoppers and concluded they were not confined spaces. Each violation required separate abatement, so the Commission declined to group them and affirmed three $7,000 penalties totaling $21,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.146(b); 29 C.F.R. § 1910.146(c)(2); 29 C.F.R. § 1910.146(c)(3); 29 C.F.R. § 1910.146(c)(4)
• Outcome: Three serious permit-space violations were affirmed, with penalties totaling $21,000.
• Key point: A material hopper is a permit-required confined space when a live pile restricts exit and creates an engulfment hazard, even if an empty hopper appears easy to leave.

Full text (OSHRC public release)

SECRETARY OF LABOR,
              Complainant,
                   v.                          OSHRC Docket No. 95-1192
MOBILE PREMIX CONCRETE, INC.,
              Respondent.



                                   DECISION

Before: WEISBERG, Chairman; GUTTMAN, Commissioner.
BY THE COMMISSION:
On December 12, 1994, a Mobile Premix Concrete, Inc. (“Mobile Premix”) employee
died when he was buried in a sand hopper at the company’s Quivas concrete batch facility
in Denver, Colorado. The following day, OSHA initiated an inspection that resulted in the
issuance of three citations to Mobile Premix. Two of the three citations were settled by the
parties. The remaining citation alleged violations of the confined space standard, including
29 C.F.R. §§ 1910.146(c)(2), (c)(3), and (c)(4).1 Administrative Law Judge Sidney J.

1
That 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.

    NOTE: A sign reading DANGER -- PERMIT-REQUIRED CONFINED
    SPACE, DO NOT ENTER or using other similar language would satisfy the
    requirement for a sign.
                                                                  (continued...)

2

Goldstein affirmed all three items as serious, and assessed a penalty of $7,000 for each item.
For the reasons that follow, we affirm the judge and his penalty assessment.

I. Facts
The confined space citation was based on several sand and gravel hoppers at Mobile
Premix’s concrete batch facility. The bodies of the hoppers are below ground level, with
three vertical walls and one sloped wall. The tops of the hoppers are at ground level, and are
partially covered by steel “grizzly bars,” designed to prevent equipment from slipping into
the hoppers. Each hopper is 6 feet 8 inches deep. Material (sand or gravel) is dispensed
through a flat gate at the bottom. The gates operate automatically to feed the material onto
an underground conveyor belt.
Workers operating loaders push material into the hoppers, creating mounds of material
that pile up above the tops of the hoppers. When the gate at the bottom of a hopper is closed,
the pile is stable. However, when a gate is opened, the material begins flowing, creating a
“live” pile. A live pile presents an engulfment hazard, as an employee standing on a live pile
may be sucked into the hopper and engulfed by sand. During cold weather, an additional
hazard is present. When moisture in the sand freezes, a crust on the surface of the sand is
created. As material drops into the hopper and through the hopper’s gate, the top surface of
the sand remains frozen in place, creating the appearance that the sand pile is stable and
solid. This phenomenon is referred to as “bridging.” In 1973, Mobile Premix employee Ed

1
(...continued)
(3) If the employer decides that its employees will not enter permit spaces, the
employer shall take effective measures to prevent its employees from entering the
permit spaces and shall comply with paragraphs (c)(1), (c)(2), (c)(6), and (c)(8) of
this section.

   (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.

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Duran was partially engulfed when he stepped onto a bridged sand pile and fell through.
Another employee was similarly engulfed in 1974. Safety Director Paul Kirk, who had
worked for Mobile Premix for 10 years, testified that he was not aware of these accidents
until after the December 1994 fatal engulfment.
Employees occasionally ascend the piles to paint or hang signs on the walls that
separate the mounds of sand or to adjust sprinkler heads used to moisten the piles.
Employees may also approach the grizzly bars to dislodge trapped material. Mobile Premix
had an unwritten safety policy that required employees to “lock out” piles before stepping
onto them. The control room was to be notified through an intercom, located near the
hoppers. The control room operator would then close the gate and tag the control to prevent
inadvertent operation. Employees could also stop the conveyor belt by pulling the electrical
interruption line, a safety device running the length of the belt. Employees were warned to
stay off live piles by senior employees, although not by management. For example, when
training employees, Ed Duran discussed his 1973 partial engulfment to illustrate the dangers
of bridging.
Employees also enter the hoppers to perform maintenance after the hoppers have been
drained of material. A small quantity of material always adheres to the sides of the hoppers.
Employees use this material to climb up the sloped side of the hopper. When the material has
been scraped from the walls of the hopper, some employees use a ladder to exit the hopper.
There were no witnesses to the engulfment that killed employee Tony Ehret. Mobile
Premix employee Chad Hill testified that on the day of the accident, he was sent to check on
a hopper gate that would not close. From the tunnel under the hopper, he saw a grizzly bar
sticking through the gate. He went outside to see if he could remove the bar from the top of
the pile. There Hill observed foot prints going up to the sand pile, but no returning footprints.
He concluded that employee Ehret was in the sand pile. The initial report of the accident
taken by OSHA records Mobile Premix’s description of the accident as follows:
It is believed that employee Tony Ehret hooked a “grizzly” (steel bars above
underground sand conveyor system) with the loader he was running, tried to
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   straighten [sic] steel bars and was sucked through the bars and buried under
   the sand. He was dug out by the Denver fire Department at approximately 4:17
   p.m.2

II. Whether the Judge Erred in Classifying the Sand and Gravel Hoppers as Permit-
required Confined Spaces?
The standard applies if the space at issue can be considered a confined space under
the standard. 29 C.F.R. § 1910.146(b) defines a confined space as one 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 designed for continuous employee occupancy.
A confined space is considered a “permit-required” confined space if it 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.
29 C.F.R. § 1910.146(b).
A. Are the Hoppers Confined Spaces?
The judge found that the hoppers clearly were “confined spaces.” Both parties agree
that the sand and gravel hoppers are large enough that an employee can enter and perform
assigned work, and that they are not designed for continuous employee occupancy. However,
the parties dispute whether the hoppers have limited or restricted means for exit within the

2
Compliance Officer Stephen Yellstrom testified that this report was taken from Mobile
Premix Safety Director Kirk. Kirk testified that he was unsure if he made the call. The record
indicates that Safety Director Kirk either made the call himself, or directed an employee to
make the call.
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meaning of section 1910.146(b). Although both parties present compelling arguments
concerning an employee’s ability to exit a hopper when it is empty, on the record here, we
need not resolve this issue.3
We hold that when the hoppers contain material and the gates are open (the piles are
“live”) the hoppers do have a limited or restricted means of exit. If an employee was inside
a hopper when the pile was live, that person would be unable to gain footing, creating a
limited or restricted means of exit. Although there were no witnesses to the fatal engulfment
of Tony Ehret, the record shows that the gate of the hopper was open when employee Chad
Hill deduced that Ehret was engulfed by the sand in the hopper. Safety Director Kirk
confirmed that an employee would have difficulty exiting the hopper if a pile were live.
Accordingly, we hold that the hopper is a confined space within the meaning of the standard.
B. Are the Hoppers Permit-Required Confined Spaces?
We have held that the sand and gravel hoppers here are confined spaces. The hoppers
can be considered “permit-required” confined spaces if they “contain[] a material that has
the potential for engulfing an entrant.” 29 C.F.R. § 1910.146(b). The standard defines
engulfment as “the surrounding and effective capture of a person by a liquid or finely divided
(flowable) solid substance that can be aspirated to cause death by filling or plugging the

3
The Secretary notes that in the definition of a confined space, the standard lists hoppers as
an example of an area that may have a limited means of entry or exit (“tanks, vessels, silos,
storage bins, hoppers, vaults, and pits are spaces that may have limited means of entry”). The
Secretary also argues that the types of equipment used by Mobile Premix employees when
entering or exiting the hoppers provide further evidence that the hoppers are confined spaces.
The Secretary points to Mobile Premix’s confined space program, which identifies as
confined spaces “[a]ny work area that exhibits a slow exit or slow egress due to planned
delay such as automatic closure doors or restricted space or ladder ways or restricted space
within a travel way.”
Mobile Premix Safety Director Paul Kirk examined the nearly empty hoppers, and
concluded that they were not confined spaces because the hoppers were open at the top, were
approximately six feet deep, and had a compacted material slope that provided a ramp that
employees could use to exit the hopper. As a result, Kirk concluded that the relatively
shallow hoppers could be easily exited.
 6

respiratory system or that can exert enough force on the body to cause death by
strangulation, constriction, or crushing.” 29 C.F.R. § 1910.146(b). As demonstrated by the
fatal engulfment of Tony Ehret, the sand contained within the hoppers can unquestionably
be aspirated to cause death.4 Therefore, the sand and gravel hoppers are permit-required
confined spaces within the meaning of the standard.
Having found that the sand and gravel hoppers at Mobile Premix’s Quivas concrete
batch facility are confined spaces and permit-required confined spaces as defined in 29
C.F.R. § 1910.146(b), we conclude that the judge did not err in holding that 29 C.F.R. §§
1910.146(c)(2), (c)(3), and (c)(4) were applicable to the cited conditions.

III. Whether the Judge Erred in Failing to Classify the Violations as Willful.
A willful violation of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§§ 651-678 (“the Act”), is one committed with an “intentional, knowing or voluntary
disregard for the requirements of the Act or with plain indifference to employee safety.” L.E.
Myers, 16 BNA OSHC 1037, 1046, 1993-95 CCH OSHD ¶ 30,016, pp. 41,123, 41,132
(quoting Williams Enterp., 13 BNA OSHC 1249, 1256, 1986-87 CCH OSHD ¶ 27,893,
p. 36,589 (No. 85-355, 1987)). “It is differentiated from other types of violations by a
‘heightened awareness -- of the illegality of the conduct or conditions -- and by a state of
mind -- conscious disregard or plain indifference.’” General Motors Corp., Electro-Motive
Div., 14 BNA OSHC 2064, 2068, 1991-93 CCH OSHD ¶ 29,240, p. 39,168 (No. 82-630,
1991) (consolidated). A violation is not willful if an employer had a good faith belief that
the violative condition conformed to the requirements of the Act. The test of good faith is

4
Mobile Premix argues that there is no potential for engulfment, as employees only enter the
hoppers when they are empty. However, the record establishes that employees perform
assigned duties on the piles when the hopper gates are closed, and that employees perform
assigned duties near live piles. As Mobile Premix reported to OSHA, the company believed
that Tony Ehret attempted to straighten a grizzly bar and was sucked through the bars and
buried under the sand. Therefore, we find that employees have access to the hazardous
condition that exists when a hopper contains material and the gate is open.
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an objective one, that is, “whether the employer’s belief concerning the factual matters in
question was reasonable under all of the circumstances.” Morrison-Knudsen Co./Yonkers
Contracting Co., 16 BNA OSHC 1105, 1124, 1993-95 CCH OSHD ¶ 30,048, pp. 41,261,
41,281 (No. 88-572, 1993).
The judge found that “[f]rom the facts in this case, I cannot conclude that the
Respondent intended to violate the three items as alleged in the citation. Nor did it know that
it was in violation of the regulations. Its safety director did not believe that the hoppers fell
within the intention of the regulation. Thus, the Respondent did not willfully disregard or
exhibit plain indifference to the regulations. Its employees felt secure with respect to its
safety program, and the union representative was pleased with the company’s safety policy.”
We agree with the judge, and hold that the violations were not willful.
Mobile Premix Safety Director Kirk examined the hoppers as required by the standard
and concluded that they were not confined spaces. In addition, Jeffery Stienert, a loss control
consultant from Business Insurance Company, agreed during a safety inspection that the
hoppers were not confined spaces. Although Safety Director Kirk was aware of the hazards
presented by live piles, both the Secretary and Mobile Premix evaluated the hoppers to
determine if they were confined spaces when the hoppers were nearly empty. When the
hoppers are evaluated only in this condition it is difficult to determine if the hoppers are
confined spaces and thus could be permit-required confined spaces. Although Safety Director
Kirk’s judgment may have been misplaced, the record does not suggest that Mobile Premix
intentionally circumvented the standard or acted with plain indifference to employee safety.
The Secretary argues that a Mine Safety and Health Act (“MSHA”) citation received
by Mobile Premix three months before the fatal accident put Mobile Premix on notice that
the hoppers were in fact confined spaces. The MSHA citation relied on by the Secretary
concerned a screen deck separator, and was not a confined space citation.5 Mobile Premix

5
The cited provision provides:
(continued...)
 8

Safety Director Kirk testified that crushed rock is fed into the screen deck separator from a
belt that enters into the top of the screen deck. He explained that “[a]t various stages in the
screen deck there are screens that are horizontal . . . and off each of these screens you screen
off a certain size product, and that product, then, is conveyed onto an omni crusher.” The
screen deck separator is basically enclosed, with a large discharge point at the base. The
chute of the screen deck is 16 feet long and 6 feet wide. Although the MSHA citation does
address the possibility of engulfment, the cited condition involves planned entry into the
screen deck separator to clean material from the sides. The screen deck separator is not
similar to the hoppers at issue here. Therefore, the MSHA citation would not necessarily
put Mobile Premix on notice that the sand and gravel hoppers were permit-required confined
spaces.

IV. Penalty
A. Whether the Judge Erred by Failing to Group the Violations for Penalty
Purposes?
Mobile Premix argues that because all of the alleged violations stemmed from the
company’s decision not to classify the hoppers as permit-required confined spaces, the judge
erred in failing to group the violations of 29 C.F.R. §§ 1910.146(c)(2), (c)(3), and (c)(4).
We find this argument unpersuasive. To accept this argument would suggest that whenever
an employer makes one decision that results in noncompliance with more than one standard
the resulting citations must be grouped for penalty purposes. The Commission does have
wide discretion in the assessment of penalties for overlapping violations, but “there is no

5
(...continued)
30 C.F.R. §56.16002 Bins, hoppers, silos, tanks, and surge piles.
(a)Bins, hoppers, silos, tanks and surge piles, where loose unconsolidated materials
are stored, handled or transferred shall be -
(1) Equipped with mechanical devices or other effective means of handling materials
so that during normal operations persons are not required to enter or work where they
are exposed to entrapment by the caving or sliding of materials.
 9

unfair burden imposed on an employer when the same or closely related conditions are the
subject of more than one citation item.” H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1046,
1981 CCH OSHD ¶ 25,712, p. 32,056 (No. 76-4765, 1981). This is particularly true where,
as here, each of the cited violations requires a separate abatement by Mobile Premix. We
therefore find that the judge did not err in failing to group the violations of 29 C.F.R.
§§ 1910.146(c)(2), (c)(3), and (c)(4).
B. Penalty Assessment
Section 17(j) of the Act 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 judge found that while Mobile Premix’s conduct was not willful, the
violations were serious. The judge then assessed a penalty of $7,000 for each violation, for
a total of $21,000.
Mobile Premix employs approximately 180 employees, 50 of whom worked at the
Quivas facility. Mobile Premix Safety Director Paul Kirk testified that Mobile Premix had
not received any citations in at least ten years. Mobile Premix cooperated with the
Secretary’s inspection, and abated the condition following the inspection. Although
testimony by Mobile Premix employees indicated that the company had a positive attitude
toward safety, the Secretary elicited testimony that Mobile Premix’s existing confined space
program was not adequately enforced. Only one of the Mobile Premix employees who
testified remembered obtaining a permit before entering a confined space. The gravity of the
violation was high, as evidenced by the death of Mobile Premix employee Ehret. See A.P.
O’Horo Company, Inc., 14 BNA OSHC 2004, 2013, 1991-93 CCH OSHD ¶ 29,223, p.
39,134 (No. 85-369, 1991). After considering all these factors, and giving substantial weight
to the gravity of the violation, we affirm the judge’s assessment of $7,000 for each violation.
Accordingly, we:
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  1) Affirm the violation of 29 C.F.R. § 1910.146(c)(2) as serious, and assess a penalty

of $7,000.
2) Affirm the violation of 29 C.F.R. § 1910.146(c)(3) as serious, and assess a penalty
of $7,000.
3) Affirm the violation of 29 C.F.R. § 1910.146(c)(4) as serious, and assess a penalty
of $7,000.

                                             /s/
                                             Stuart E. Weisberg
                                             Chairman


                                             /s/
                                             Daniel Guttman
                                             Commissioner

Dated: September 19, 1997