Suttles Truck Leasing, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Suttles washed tank trailers that had carried hazardous chemicals, and employees sometimes entered the washed tanks for inspection or residue removal. The Commission held that the tanks remained permit-required confined spaces after washing because the washing process was part of the company's permit-entry program, not a way to avoid it. The Commission also found that testing at another Suttles facility showed the wash process purged toxic atmospheres, but those results were not available when OSHA inspected the Creola facility. It affirmed five confined-space items as other-than-serious or repeat other-than-serious violations, vacated the mechanical-ventilation item, and affirmed violations involving missing eye protection and an unlabeled caustic tank. The Commission reduced the penalties for the reviewed items to a total of $4,750.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.132(d)(2)(i), 1910.1200(f)(5), 1910.146(j)(2), 1910.146(d)(2), 1910.146(d)(3), 1910.146(d)(4), 1910.146(d)(5)(i), and 1910.146(f)
• Outcome: Seven items were affirmed, mostly with reduced classifications and penalties, and one confined-space item was vacated; total penalties were $4,750.
• Key point: A hazardous tank does not cease being a permit-required confined space merely because the employer washes it before entry without completing the standard's reclassification process.

Full text (OSHRC public release)

Suttles Truck Leasing, Inc., Docket Nos. 97-0545 & 97-0546

Walter, J. David
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Walter, J. David
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2018-08-03T15:05:00Z
2018-08-03T15:05:00Z
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EN-US
X-NONE
X-NONE

SECRETARY OF LABOR,

Complainant,

v. 

OSHRC
Docket Nos. 97-0545

&
97-0546

SUTTLES TRUCK LEASING, INC.,

Respondent.

DECISION

Before:
RAILTON, Chairman; STEPHENS and ROGERS, Commissioners.

BY
THE COMMISSION:

This
case arises out of an inspection conducted by the Occupational Safety and
Health Administration (“OSHA”) at a tank truck washing facility owned by
Suttles Truck Leasing, Inc. (“Suttles”) in Creola, Alabama. As a result of that
inspection, the Secretary of Labor (“the Secretary”) issued citations alleging
that Suttles had violated various safety and health standards. Suttles
contested the citations, and a hearing was held before Commission
administrative law judge Nancy Spies. In her decision, the judge affirmed the
eight items on review in Docket Number 97-546 and vacated the rest. Suttles petitioned for review of the judge’s decision on the eight
items that she affirmed, and review of these items was directed pursuant to
section 12(j) of the Occupational Safety and Health Act of 1970 (“the Act”), 29
U.S.C. § 661(j). For the reasons that follow, we affirm the judge’s disposition
as to seven of the items and reverse her as to the remaining item, which we
vacate. We also change the characterization of five items and adjust the
penalties accordingly.

Suttles
owns approximately 425 tank trailers, which are used for transporting various
liquids, many of them hazardous chemicals. The trailers are leased to carriers
and returned to Suttles. Although a few of the tankers are “dedicated,” meaning
that they always carry the same chemical, most of them carry different liquids
each load and must be cleaned between loads to prevent interaction between
chemicals. Suttles operates five tank-washing stations around the country for
this purpose, including the one in Creola, Alabama, where it washes the
interiors of tank truck trailers that have carried various chemicals, so that
the tanks may then carry a different cargo without contaminating the new cargo
with residue from the previous one. It also washes the exteriors of the tanks.
Of the eight items on review, six of them involve allegations that Suttles
violated OSHA’s permit-required confined space (PRCS) standard, which governs
employee entry into confined spaces that have the potential to present certain
hazards. The other two items allege violations of the standard requiring the
use of personal protective equipment and of the hazard communication standard,
respectively. These two items do not implicate the trailers as PRCSs.

The
Commission affirms the personal protective equipment item and the hazard
communication item. Although the Commissioners differ in their reasoning, all
three Commissioners vote to affirm five of the PRCS items; at least a majority
votes to characterize each of them as other-than-serious violations; and all
vote to reduce the penalties assessed by the judge. The Commission vacates the
remaining PRCS item.

THE PERMIT-REQUIRED CONFINED SPACE ITEMS:

Citation 1, item 4; citation 2, items 1a, 1b, 1c, 2a,
and 3.

The
six PRCS items allege one serious and five repeated violations of provisions of
the permit-required confined space standard at 29 C.F.R. § 1910.146. The
Secretary has alleged that, because the tanks contain or have the potential to
contain a hazardous atmosphere, particularly before washing, the tanks must be
treated as permit-required confined spaces. Suttles takes the position that, because the washed tanks do not have
the potential to contain a hazardous atmosphere, they are not permit-required
confined spaces. These competing legal arguments reflect a different view of the
framework of the standard, specifically when the “snapshot” must be taken to
determine whether the tanks are PRCSs. The Secretary contends the snapshot must
be taken before the tanks are washed while Suttles argues it can also be taken
after washing. We agree with the Secretary, whose views are more consistent
with the language, structure and purpose of the standard. The two parties also
dispute various factual issues regarding the thoroughness of Suttles’ tank
washing process, where we agree with Suttles. We discuss the factual issues
surrounding the washing process first, then turn to the legal issues involving
the tanks’ status as PRCSs.

The
tanks and the washing process

Although
the tanks vary a bit in size and shape, a typical tank is approximately 35 feet
long and 6 feet 5 inches high, measuring to the lowest point in the floor. They
are not round, but are slightly higher than they are wide. The tanks have a
dome at the approximate center of the top, which has a lid that can be opened
to permit visual inspection and, if necessary, entry. To facilitate drainage,
the floor slopes about 8 inches from each end to a central drain.

When
a tank arrives at a Suttles facility, it is parked in a lot designated for
unwashed tanks, and employees are instructed not to enter a tank in this area.
Suttles treats an empty, unwashed tank that had previously carried hazardous
cargo as a PRCS. The driver of each tanker must complete a wash rack request,
naming the last cargo carried. He also must attach the bill of lading for the
cargo and a material data safety sheet (MSDS) for the chemical or chemicals
carried, or else Suttles will not wash the tank. Before the tank is washed, it
is drained and any residue returned to the customer. An employee would then
check the pressure gauge, and, if necessary, release the pressure valve, open
the dome lid, and look in to make sure that there is no excess liquid in the
tank. Usually, only about two cups of liquid remain.

The
employee next inserts three “spinners” into the tank through ports in the top
of the tank. One port is in the dome lid, which is closed, and the other two
are approximately 106 inches from each end. Some cargoes which may have dried
on the inside of the tank may need to be “presolved,” that is, treated with a
solvent which is sprayed in through the spinners and allowed to soak, before
they are washed. According to Suttles’ director of safety and environmental
compliance, John C. “Clarence” Bean, the solvent is “self-cleaning” and mixes
well with water.

If
the trailer has carried a chemical that has been designated as hazardous under
RCRA (the Resource Conservation and Recovery Act), it must be rinsed and
evacuated three times with approximately 150 gallons of water before the actual
wash is performed. That rinse water is drained into a special “haz tank,” and
the standard wash is performed. Although Suttles uses different washing
procedures for different chemicals, the record establishes that the normal tank
wash uses 300 gallons of wash water and detergent heated to 175̊. The tank then
undergoes a final rinse, which uses approximately 100-150 gallons of water. The
drain is left open during the washing and rinsing so that the water can drain
out. The Kelton machine used in the wash process includes a high-pressure pump
that sends 50 gallons of water per minute to all three rotating spinners, which
expel the water at 300 miles per hour. According to Bean, because of the
locations of the ports and the way the spinners operate, “every square inch” of
the tank is sprayed by jets of water under 625 pounds of pressure every ninety
seconds during the wash, and the detergent used gets out all caustics. Once the
wash and rinse are completed, the tank is “blow-dried,” using a 6-inch diameter
ventilation tube, which blows approximately 2700 cubic feet of air per minute
for 15 to 20 minutes. The drying process was described by one witness as a
“purging.” During the drying, approximately 57 air changes take place, removing
any steam and vapors that may be present. Only after this process has been
completed and the atmosphere in the tank has been tested for oxygen levels and
explosive atmospheres would an employee enter. It is the entry into the washed
and dried tanks by Suttles’ employees that are the subject of the six PRCS
items before us.

Employees
enter about 10% of the tanks that are washed. Normally, they enter only to
perform the annual inspection required by the Department of Transportation or to
remove debris or residue from the cargo. Of those trailers entered,
approximately 10% contain a thin residual film of the product that had been
carried that adheres to the inside of the tank. After the wash process, these
substances are chemically inert solids. Occasionally, debris such as rust or
dirt will get into a tank. Any debris or residue that remains after the wash
process has to be removed by hand.

If
an employee needs to enter a tank to inspect it or to remove foreign matter,
Suttles tests the blow-dried tank for the oxygen level and the lower explosive
level (LEL) of the chemicals most recently carried. Suttles does not test for
toxic atmospheres because it has determined that the wash has removed all toxic
hazards and the tanks have been thoroughly ventilated. An employee who enters a
tank is required to wear eye protection, chemical-resistant gloves, steel-toed
rubber boots, and a retrieval harness.

The evidence on the washing process

The
Secretary argues that the tanks are permit-required confined spaces because
they contain or have the potential to contain a hazardous atmosphere and that
the tanks could be reclassified as non-permit spaces after washing by following
the appropriate procedures in the standard. The Secretary also contends that
the tanks could pose hazards if an employee’s skin came into contact with any
chemical in the tank. Suttles claims that, as a result of the washing process,
the washed tanks contained no actual or potential hazards and thus the washed
tanks are not PRCSs. Suttles introduced evidence about the method used to clean
the tanks at both Creola and its Columbus, Ohio facility. It claims that
atmospheric testing that it conducted in tanks at its Columbus, Ohio facility
prove that the washing and blow-drying process eliminates the possibility that
there will be a toxic atmosphere in a washed tank, and that this evidence was
accepted by the Secretary in the Columbus, Ohio office.

The
Secretary presented two witnesses who testified about these six items, the industrial
hygienist (“the IH”) who conducted the inspection and recommended issuing the
citation, and a senior industrial hygienist from OSHA’s facility in Salt Lake
City, who was accepted as an expert in the field of industrial hygiene,
including sampling, but was not an expert in chemistry. The IH, who had
bachelors degrees in animal science and in geology, concluded that the washed
tanks (which she erroneously estimated to be eleven feet deep) could contain
pockets of gases that could be hazardous to anyone who entered them. She
believed that a stratified atmosphere could occur, and that testing of the
atmosphere should be performed at several locations throughout the tanks,
including at the bottom of the tanks, because the vapors from some chemicals are
heavier than air. She did not perform any testing herself, however, and could
not present any evidence to substantiate her opinion. Because the MSDSs of some
of the chemicals that had been carried in the tanks at Creola stated that
contact with the chemical could cause injury to the skin, she believed that
Suttles’ employees should wear chemical-impervious suits. She could not say,
however, whether there was any substance at the Creola facility present at
levels above OSHA’s permissible exposure limit (“PEL”), and did not know
whether, if there were, any engineering controls used by Suttles reduced them
below their PEL.

The
IH learned that Suttles had been cited for similar violations at its facility
in Columbus, Ohio, and that atmospheric testing had been performed subsequent
to the date of the alleged violations in Columbus as part of settlement
negotiations. Because some of the chemicals carried by the tanks washed at
Creola were different from the chemicals involved in the Columbus testing, the
IH discounted the impact of that testing on her inspection.

The
senior industrial hygienist who testified for the Secretary as an expert, Emil
Golias, held two masters degrees, one in environmental science and industrial
hygiene, and the other in occupational health. He testified that industrial
hygienists rely on a chemical’s MSDS to determine the hazards posed by that
chemical, and that he had reviewed the MSDSs for the chemicals transported in
the tanks that were washed at Creola. He noted that the chemicals were not the
same ones involved in the testing in Columbus and expressed his belief that
some of the Creola chemicals were more dangerous than the ones in Columbus and
had very low OSHA PELs. Consequently, a small amount of that chemical in a tank
could create a potentially hazardous atmosphere. He testified that, because the
Columbus testing was performed in only one location in the tank, it might not
have detected a pocket of chemical near one end of the tank. Consequently, he was
of the opinion that the testing performed in Columbus was inadequate to
determine whether any of those tanks contained a hazardous atmosphere, much
less to generalize the results to other tanks. He admitted, however, that he
did not know whether any chemical was left in the tanks after they had been
washed, and he agreed that, if there was no hazardous substance left in them,
there could be no stratified atmosphere. Golias conceded that he had never
performed any testing in a stratified atmosphere himself and conceded that he
was not an expert in chemistry or in the grouping of chemicals according to
their physical properties, and he could not fault the grouping method used by
the people who performed the testing in Columbus. When asked, Golias could not
say which of the groups various chemicals from Creola belonged in. Although
Golias adhered to his position that more than one sample should have been taken
in each tank, he agreed that he would defer to OSHA’s personnel in Columbus if
they had determined that the testing was adequate.

Suttles
presented three witnesses who had been involved in testing the atmospheres of
the washed tanks at its Columbus, Ohio tank washing facility. One was former OSHA
safety supervisor, now a safety and health consultant, Richard Hayes, president
of Hayes Environmental Services, an accredited training organization for the
Department of Energy, the Coast Guard, and the Ohio Board of Construction
Operations. Hayes had been hired to review the citations issued to Suttles at
its Columbus washing facility that alleged violations similar to those alleged
here. Hayes’ assignment was to establish a protocol for testing that would be
acceptable to OSHA, and to determine whether the washing process eliminated
potential dangers to Suttles’ employees from the chemicals in the tanks.

Hayes
worked with OSHA and with Dr. John Ball, who had served as a consultant to
Suttles for several years, to come up with a testing protocol. They examined
the MSDSs of every chemical washed during a two-month period and concluded that
the appropriate approach was to group all the chemicals by their physical
characteristics for testing purposes, because they believed that it was not
feasible to test every tank, since they believed the sampled tanks would have
to be taken out of service for several days after they had been tested, until
the lab results came back. Hayes stated that the OSHA industrial hygienist who
had conducted the Columbus inspection; his supervisor, who is also an industrial
hygienist; the OSHA Columbus area director; and an attorney from the Solicitor
of Labor’s office had all accepted the testing protocols before any testing was
done. Hayes added that Suttles would not have committed the money for the
testing without OSHA’s prior approval. The testing showed that, after the tanks
had been washed and blown dry, the levels of the chemical in the atmosphere had
been reduced by as much as 20,000 times. All levels were well below the OSHA
PELs. Hayes said that the washed tanks did not have the potential to contain a
hazardous atmosphere, so they were not permit-required confined spaces, and
that, on the basis of the test results, OSHA’s Columbus office agreed that
Suttles did not have to test the washed tanks for toxic atmospheres.

The
certified industrial hygienist whose company was asked to develop the sampling
protocol to determine the level of efficiency for Suttles’ tank-washing and
drying process, Edward Foley, has a bachelor’s degree in microbiology and a
master’s degree in industrial hygiene. Foley described the washing and drying
as engineering controls (as opposed to protective equipment or administrative
controls) to limit employee exposure. Foley concluded that, because of the
large number of different chemicals, the best approach was to group the
chemicals by their physical rather than chemical characteristics. He considered
characteristics such as specific gravity, solubility, percent volatiles,
boiling point, vapor density, and vapor pressure, and arrived at four
categories that he believed would permit effective representative sampling:
caustics and acids; alcohols; pesticides and herbicides; and organic chemicals.
Foley had not encountered any substances handled in Suttles’ system that could not
be placed in one of the four groups, and stated that, because the tank truck
industry transports only viscous liquids, it would not carry chemicals that
fell outside the four groups, and these groups were accepted by OSHA’s Columbus
office.

Along
with another certified hygienist from his company, Foley sampled thirteen
tanks, including at least two chemicals from each group, placing the sampling
device in the geometric center of the tank where it would measure a
representative concentration. He used different kinds of tests for each of the
groups and the tests were specific to the chemical last hauled in the tank. The
tests were sensitive to one part per million or better. Based on that testing,
Foley concluded that the washing-drying process significantly reduced the
levels of chemicals. All levels were below OSHA’s PELs, which Foley described
as the level to which an employee may be exposed without harm over his lifetime
on a time-weighted average over an 8-hour workday and a 40-hour week. Foley
disputed Golias’ view that several samples from different areas in a tank were
necessary, because he insisted that there could not be a stratified atmosphere
in a tank after the washing and blow-drying process. The temperature of the
wash water would cause anything that will evaporate to do so, and the cooling
during drying would then stop the evaporation process, so that there could be
no possibility of stratification after the drying, which purges the atmosphere
with fifty-seven air changes.

Suttles’
primary expert, Dr. John Ball, who was accepted as an expert in chemistry and
physics as they pertain to the tank industry, has a Ph.D. in civil engineering,
with emphasis in environmental engineering and a minor in chemical engineering.
While he was on the faculty at Texas A&M from 1972-75, one of his projects
was to design facilities to treat the wash- and rinse-water from petroleum
barge-cleaning operations very similar to the tank truck washing operations in
question. From 1975 to 1996; he taught graduate and doctorate level courses at
the University of Alabama. He now has his own company, Ball Engineering, Inc.,
specializing in environmental engineering, and environmental pollution control,
including water pollution, air pollution, solid waste, and hazardous waste,
drinking water, and underground water. Dr. Ball first consulted for Suttles
about 1983-85 and has regularly worked with them since on environmental
compliance, including designing treatment facilities, and designing and constructing
their terminals. He was involved in the design of both the Columbus and the
Creola facilities and had been to both a number of times. Dr. Ball was familiar
with Suttles’ washing protocols and had observed first-hand the tank washing at
both locations. In his opinion, there was no material difference between the
washing process at the two sites, because Columbus and Creola have the same
equipment: the same spinners, and the same Kelton machine, a high pressure pump
that pumps 50 gallons per minute to all three spinners, which rotate, shooting
the water out at 300 mph. Before the wash, Dr. Ball said, there is a very small
amount of the chemical in the tank, perhaps two cupfuls, and it is washed with
300 gallons of water, then rinsed. Suttles almost always uses hot water for the
wash, he noted, but even without hot water, the spray would reduce the
concentration of the chemical well below 1%.

Dr.
Ball said that it was not necessary to test for every chemical hauled by the
trucks washed at the Columbus facility because the chemicals all act according
to their physical properties, since there is no chemical change during the
wash, only, perhaps, a physical change. Therefore, Mr. Foley grouped the
chemicals according to their physical rather than chemical properties.
According to Dr. Ball, it was important to group acids/caustics separately from
inorganics because acids and caustics do not vaporize into the atmosphere but
may be present as droplets, so they cannot be tested the same way as gases. Dr.
Ball reviewed the MSDSs for the chemicals that had been hauled in the tanks
washed at Creola and placed each chemical in one of Mr. Foley’s four groups.
His expert opinion was that the testing in Columbus could be used to draw
reliable conclusions about the tanks washed in Creola, because the chemicals in
each group behave similarly if the same wash protocol is used, and he knows
that both locations use the same one.

Dr.
Ball stated that, before the testing was performed, he had not expected that
there would ever be a hazardous atmosphere in a washed tank, and the test
results confirmed his expectation. Noting that some of the test results were
below OSHA’s toxicity level before the tanks were washed, he gave his expert
opinion that the atmosphere in the tanks after they have been washed is safe.
Dr. Ball stated that there was no need to test multiple locations in each tank
as Mr. Golias had suggested, because the wash/blow-dry process eliminates any
possibility of stratification. Based on his knowledge of how chemicals behave,
he knew that it would take a high concentration of a volatile organic to cause
stratification. The chemical would have to saturate the atmosphere, and he
could not imagine a stratified atmosphere in a washed tank. He also stated
that, because the wash removes organics to a level of only a few parts per
million, his opinion was that the post-wash concentration of any chemical at
Creola would never even approach 10% of the LEL. He believes that the Columbus
testing was appropriate for the task and that it was perfectly adequate.

Dr.
Ball noted that any product residues found in the tanks would be from
substances that left a slight film, such as latex, or wood pulp from a load of
“black liquor,” which he identified as a caustic solution used by paper mills
to turn wood pulp into cellulose. Ball stated that the wood pulp is inert – it
is wood, and that the other residues are also inert solids, although the latex
and paint primer might have to be rubbed off the inside of the tank. The other
possible residue would be foreign matter such as rust or dirt that had gotten
into the tank, which he described as “trash,” but there should not be trash in
a tank because the chemicals are supposed to be pure. Dr. Ball testified that
he is very familiar with how soils and materials absorb and release
contaminants because he works in that field “all the time,” and that once the
washing has leeched out any chemical that might have been absorbed into the
trash, any chemical that might remain would be “tied up” in the solid and would
not vaporize into the air.

The
administrative law judge found that the tanks were permit-required confined
spaces. Although the judge noted that the washing process in Columbus left the
tanks “sterile,” she found that the Columbus testing was not applicable to the
Creola facility because different chemicals were involved and the wash process
at the two locations was different. The judge based her conclusion that the
washing was not the same at both terminals on two findings, that the tanks in
Columbus did not contain any residue while those at Creola did, and that the
length of time for the wash at Creola was not uniform but was left to the
washers.

Discussion on washing process

Having
carefully considered the evidence, we agree with the judge and the Secretary
that the tanks – both pre-wash and post-wash – were PRCSs, as we explain in a
later section of this decision. But we disagree with the judge’s conclusion and
the Secretary’s arguments with respect to the lack of similarity between the
washing process at Columbus and Creola. First, the judge erred in finding that
none of the tanks tested in Columbus had contained any residue. Mr. Foley, who
conducted the testing, testified that he had seen “a minor amount” of inert
residue in the tank that had carried latex. Even if the judge had been correct, however, we are not convinced that
fact would prove that the results of the washing process were different at
Columbus and Creola. The record establishes that only about 10% of the tanks
washed are entered, and that only about 10% of those are entered because they
contain residue that must be removed. That means that only about 1% of all
washed tanks contain residue. Because the Columbus testing involved a total of
thirteen tanks, including one top-emptying dedicated tank that would never be
entered by a Suttles employee, the absence of residue would not, by itself,
support a finding that the wash processes at the two locations produced
different results.

Similarly,
the judge’s finding that the wash process, including the length of time spent
washing, was left to the individual washer is not supported by the
preponderance of the credible evidence. The judge stated that Dr. Ball
“assumed” that the test results from Columbus would be valid for Creola “based
on his understanding” that the procedures were the same. This mischaracterizes
Dr. Ball’s testimony. He stated that he had been to both locations and had
observed the washing being performed. He had designed both locations, selected
the equipment to be used, and was familiar with the wash process as it was
performed at both locations. Bean, who had trained the wash rack employees at
both locations, testified that the training was the same, the procedures used
were the same, and that the actual washing was performed the same way in both
locations. The Secretary, by contrast, offered no witness who was familiar with
both locations, and her expert had not seen either one. Furthermore, the
evidence that was offered by the Secretary was apparently not credited by the
judge (the relevant portion of the testimony of its industrial hygienist) or
was incorrectly interpreted by the judge (the testimony of a leadman at
Creola). Thus, considered as a whole, the record does not bear out the
differences in the conditions of the tanks or in the washing and drying
procedures as described by the judge. Worcester Steel Erectors, Inc. , 16
BNA OSHC 1409, 1417-18, 1993-95 CCH OSHD ¶ 30,232, p. 41,634 (No.
89-1206, 1993); Accu-Namics, Inc. v. OSHRC , 515 F.2d 828, 834 (5th Cir.
1975)(“the Commission itself is charged with findings of fact”).

Although
the IH testified that some of the tank wash employees had told her that it was
left to their discretion how long to wash a tank, the judge did not mention that
testimony as support for her conclusion. The judge relied instead on testimony
of the leadman on the day shift at Creola that the amount of time that an
employee who enters a tank to clean it spends inside that tank is determined by
the employee. The testimony relied on by the judge does not address the wash
process, however, but the length of time an employee who entered the tank to
remove residue or debris would take to accomplish that task. It does not
support the conclusion that the interior washing process was not the same at
both locations. Nor does the leadman’s testimony regarding the book he
consulted to determine the kind of wash to use for each chemical suggest that
the book did not specify the length of that wash. It appears on this record that
the length of the wash would be determined by the amount of water used and by
the rate at which the spinners eject it. In light of the testimony that both
locations use the same amount of wash water – 300 gallons – and that the Kelton
machines and spinners used in Creola are identical to those used in Columbus,
the Commission finds that the length of the wash is approximately the same at
both locations and is not determined by the whim of the employee.

In
this regard, the Commission gives greater weight to the testimony of Dr. Ball
and Mr. Bean, which was based on their personal observations, that the wash
process in Creola was the same as that in Columbus, where - the judge found -
the washed tanks were “sterile.” We therefore find that there would be no
material difference in the effect of the wash on a chemical in Creola from the
effect of the wash in Columbus, which renders the tanks “sterile.”

The
judge also concluded that the testing in Columbus did not control the situation
in Creola because the tanks in Creola had carried chemicals that had not been
tested in Columbus. Even given that the specific chemicals were not exactly the
same, this conclusion does not follow from the evidence. Dr. Ball testified
without contradiction that, because they were grouped by physical properties,
the chemicals in each group would react to the wash process the same as the
other chemicals in their group, and that the testing of a few chemicals in each
group would give results that could be extrapolated to the other chemicals in
their group. The expert presented by the Secretary did not contradict, much
less rebut, this testimony. In light of Dr. Ball’s testimony placing every
chemical carried in Creola during the period relied on by the Secretary into
one of the four groups created by Mr. Foley, we find that the wash process in
Creola made each of the tanks involved as “sterile” as the process in Columbus,
and that the washed tanks, while still PRCSs, have been purged of their toxic
contents. We therefore find on the record compiled by the parties here, that
the results of the sampling done in Columbus would accurately predict the
results of testing for other chemicals in the same groups in Creola because the
Secretary has given us no basis for finding otherwise.

Given
the similarity of the chemical properties of the substances carried in the
tanks, the similarity of the hazardous conditions posed by the cargo tanks, the
similarity of the washing and cleaning processes, and the similarity of the
respondent’s permit entry program in Columbus and Creola, we find that the
results of the Columbus testing were plainly relevant and probative in
evaluating the hazards and procedures at the Creola facility. That finding does
not resolve this case, however. We find that Suttles did commit the violations
alleged in five of the PRCS items. We vacate the sixth.

A threshold legal issue – are the tanks PRCSs?

Before turning to the six specific PRCS items, we
address Suttles’ general arguments concerning the record evidence and the
interpretation of §1910.146. At trial, Suttles broadly insisted that the
Columbus testing confirmed that, as a result of the washing and drying process,
the tanks posed no actual or potential hazards, and that the Secretary had
therefore failed to meet her burden to establish that the washed-and-dried
tanks contained actual or potential atmospheric hazards. Without this element,
Suttles contended, the Secretary failed to establish that the tanks as confined
spaces were permit-required. There are several difficulties with
Suttles’ claim.

First, Suttles is wrong to take the snapshot after
washing and ignore the pre-washed condition of the tanks and to imply that the
acts of washing and drying the tanks entitled the company to bypass the
detailed procedures that an employer must follow under 29 C.F.R.
§§1910.146(d)-(k) to render what are clearly permit-required spaces safe for
employees to enter. Suttles’ witnesses plainly acknowledged that, after
delivery of a hazardous cargo load, the empty tanks were treated as
permit-required confined spaces and subject to the requirements of §1910.146.
As such, the tanks had to undergo a
washing and drying procedure that served two purposes – not just to
decontaminate and clean a tank in preparation for its next delivery assignment
but also to purge the hazards created by the prior cargo that might pose a risk
of harm to employees who occasionally must enter the tank to perform additional
cleaning, service, inspection, or repair work. Under Suttles’ entry permit
program, developed to comply with §1910.146, employees were not permitted to
enter a tank until the tank had been properly cleaned and tested and an entry
permit form had been completed. This conclusion was established by not only the
testimony of Suttles’ personnel but also the exhibits, among which were the
company’s employee handbook (Ex. C-5) and its training manual (Ex. C-4),
explaining the elements of the company’s tank entry permit program. A series of
entry permits that had been issued to authorize entry of washed-and-dried tanks
in particular instances is also in the record. As the testimony confirms,
these permits were obviously designed
with §1910.146 in mind, since they closely mirror the sample permit forms that
the Secretary has included in Appendix D to the regulation. A Suttles witness even acknowledged
that, if the alarm on the gas meter sounded during the oxygen/flammability test
of a washed-and-dried tank, the tank would be immediately rewashed. Thus, Suttles’ own confined space
practices totally belie the notion that it was not subject to the provisions of
§1910.146 for which it was cited. The washing and drying process was an
integral part of the permit-required confined space program, not a means to
shield against its application.

Second, the purpose of the Columbus testing was more
narrowly tailored than Suttles claims. The testing was designed solely to
obviate the need for Suttles to run a pre-entry test for toxic
atmospheres on each and every washed-and-dried tank, which it claimed was both
unnecessary and infeasible. Suttles was not relying upon the Columbus testing
to eliminate testing for any other type of atmospheric hazards, such as those
associated with oxygen deficiency and flammability. The company continued to conduct
atmospheric testing for oxygen deficiency and flammability hazards on the
washed-and-dried tanks, a step that would not have been necessary if such tanks
were indeed non-permit confined spaces. Likewise, even after it received the
report on the Columbus testing from its consultants, the company continued to
fill out entry permits as a prerequisite to employees entering a cleaned tank.

Third, Suttles relies upon
an unreviewed, judge’s decision in Superior Tank & Trailer Co. , 17
BNA OSHC 2116, 1995-97 CCH OSHD ¶ 31,127 (digest),1995-97 CCH OSHD ¶ 31,127
(digest), 1996 OSAHRC LEXIS 80 (No. 95-870, 1996), for the proposition that the
Secretary should have introduced expert opinion that the cleaned tanks were
permit-required. Although an unreviewed administrative law judge’s decision may
be considered for its persuasive value, it does not constitute precedent
binding on the Commission. Mosser Constr., Co. , 15 BNA OSHC 1408, 1411
n.3, 1991-93 CCH OSHD ¶ 29,546, p. 39,902 n.3 (No. 89-1027, 1991). In our view,
the reasoning of the judge in Superior is not persuasive in the context
of this case. It is true that the case involved a somewhat similar fact
pattern– an employer repaired commercial tanks and trailers owned by third
parties and used to carry milk, eggs, meat, gasoline, soap, acids and concrete
mix. Before employees undertook to service or repair the tanks and trailers
including, their interiors, the employer retained a contractor to wash and
clean them. Prior to its employees entering the cleaned tanks, the employer
tested the oxygen levels and ventilated each unit with a fan. While employees
were in a tank, there was continuous ventilation and repeated testing for
oxygen content and flammability. The Secretary cited the employer for not
properly evaluating whether the spaces in its workplace were permit-required
confined spaces in accordance with §1910.146(c)(1) and for not developing a
written permit space entry program in accordance with §1910.146(c)(4). The
judge vacated those items for several reasons.

First, the judge concluded
that §1910.146(c)(1) was not violated because the employer had adequately
evaluated the confined spaces and determined that they were not
permit-required. The judge faulted the Secretary for not countering the
employer’s evidence with any expert opinion evidence that actual or potential
hazardous atmospheres still remained following cleaning. Second, the judge
concluded that if the cleaned tanks were not permit-required spaces, then it
logically followed that §1910.146(c)(4), which required the establishment of a
written permit space program, was not applicable. Without passing on the
validity of the judge’s analysis, we distinguish Superior
Tank on several grounds.
First, Suttles is not being cited under the subsections of §1910.146 for which
the employer in Superior Tank was cited. Here, the focus went beyond the
preliminary step of evaluating whether the workplace contained permit-required
confined spaces and instead centered on whether the employer - having developed
a written permit space program - had undertaken the implementing steps required
by the various provisions of §1910.146, including (d)(2), (d)(4), (d)(5),
(j)(2), and (f). Second, unlike Superior , Suttles as much as conceded
that its unwashed tanks were permit-required spaces and continued to treat them
as such following washing and drying. Thus, considering the record as a whole,
the absence of expert testimony as to the presence of actual or potential
atmospheric hazards in the washed-and-dried tanks is not fatal to the
Secretary’s case with respect to the tanks’ status as PRCSs.

Finally, Suttles suggests for the first time on review
that the reclassification procedures outlined in 29 C.F.R. §1910.146(c)(7)
afford an independent basis for excusing its alleged failure to comply with the
various permit-required provisions. Respondent contends that under this
provision the tanks upon completion of the washing and drying process were
immediately eligible to be treated as reclassified, non-permit required
confined spaces. This argument is without merit. First, as noted above, even
after a tank had undergone washing and drying, Suttles followed its permit
entry program in testing for oxygen levels and explosive atmospheres. Second,
Suttles did not attempt to demonstrate before the judge by way of evidence or
argue in its post-hearing brief that it acted in accordance with the
reclassification procedures set forth in 1910.146 (c)(7). It did not introduce
the documentation that (c)(7)(iii) requires to prove that it had properly
reclassified the tanks, nor did it argue the applicability of subparagraph
1910.147(c)(7) (i) or subparagraph 1910.147(c)(7) (ii).

With
that preface, we address the six PRCS items before us on review. For the sake
of convenience, we address the six items in three parts: (I) items 1a and 2a of
citation 2, which we affirm respectively as an other than serious violation and
as a repeated other than serious violation, meriting a substantially reduced
penalty; (II) items 4 of citation 1 and items 1c and 3 of citation 2, which we
affirm as nonserious violations; and (III) item 1b of citation 2, which we
vacate.

Part I.

Citation 2, items 1a and 2a:

Failure to evaluate hazards
and failure to test for toxic atmosphere

Item
1a of citation 2 alleged a repeated violation of the requirement that employers
identify and evaluate the hazards of permit-required confined spaces before an
employee enters the space, as set out in 29 C.F.R. § 1910.146(d)(2).
As issued, the citation alleged that
Suttles had failed to evaluate the corrosive, contact, or skin absorption
hazards of the chemicals that had been hauled. During the hearing, the
Secretary moved to amend the citation to add the allegation that Suttles had
failed to evaluate the atmospheric hazards in the washed tanks. In her
decision, the judge granted the amendment and affirmed this item, because
Suttles had not performed any testing for toxic atmospheres. The judge reasoned
that Suttles’ reliance on existing testing records and on the expertise of Dr.
Ball was not specific enough to satisfy the requirements of the standard. The
judge also found that the results of the Columbus testing were inapplicable to
the Creola facility.

As
originally cited, item 2a alleged a repeated violation of the standard at 29
C.F.R. § 1910.146(d)(5)(iii). That allegation was later amended to allege
a violation of section 1910.146(d)(5)(i) for failure to test for toxic
atmospheres after it had tested for oxygen and combustible gases. The
administrative law judge affirmed the amended citation on the basis of Suttles’
stipulation that it did not test for toxic atmospheres in a tank after it was
cleaned.

At the outset, we find for the reasons given above
that the evidence does not support the judge’s finding that the results of the
Columbus testing were “inapplicable” to the Creola terminal, the judge’s
conclusion that, at Columbus, the cleaned tanks were left “sterile” whereas the
tanks at Creola left a visible residue, or the judge’s finding that the length
of time for the wash at Creola was not uniform but was left to the discretion
of the washers.

In explaining what was envisioned by the term
“testing” (§1910.146(b)), which was added in the final rule, the preamble to
the final rule stated, “OSHA intends the term to cover the evaluation of permit
space conditions both at the time an employer initially identifies the hazards
and devised control measures and at the time entry would actually take place.”
58 Fed. Reg. 4,462, at 4,480 (Jan. 14, 1993).
This two-phase evaluation corresponds to the obligations set forth in
§1910.146(d)(2) and (d)(5), respectively, which Suttles allegedly violated in
these items. The preamble’s explanation also referred to the non-mandatory
Appendix B, which was appended to the final rule for the purpose of providing
guidance for employers who perform atmospheric testing. Id. Paragraph
(1) of that Appendix describes the initial testing as “evaluation testing,” the
purpose of which is to identify the existence of any hazardous atmospheres “so
that appropriate permit entry procedures can be developed and acceptable entry
conditions stipulated for that space.” Significantly, at this initial phase, an
employer is encouraged to consult with qualified professionals, including
certified industrial hygienists and safety engineers, both to evaluate the
testing data and to develop entry procedures. Paragraph (2) of the appendix in
turn designates the testing that precedes a specific entry as “verification
testing,” which must be undertaken prior to any given entry by an employee into
permit-required confined space.

It is reasonable to conclude from these explanations
that the nature and scope of the verification testing undertaken pursuant to
(d)(5) will be governed by the results of the evaluation testing required by
(d)(2). Accordingly, if evaluation testing
demonstrates that certain hazards (such as toxic atmospheres) are eliminated by
a cleaning procedure, then the pre-entry verification testing need not include
a test for those hazards. This view of the relationship between (d)(2) and
(d)(5) is entirely consistent with the performance-oriented nature of the
§1910.146: “The basic performance-oriented nature of OSHA’s permit space
standard forces employers to develop whatever procedures are necessary to
eliminate or control hazards in permit-required confined spaces. Spaces posing
the least risk (above the threshold set by the definition of permit-required
confined space) will necessitate the fewest procedures to ensure safe entry.
Spaces containing severe or multiple hazards require more detailed and
comprehensive procedures.” Echoing this approach, on the question
of verification testing prior to entry of a permit-required space, the preamble
stressed that “[t]he type of testing that needs to be performed is dependent on
the hazards that are present within the space. . . . Paragraph (d)(5)(i)
requires the employer to conduct whatever tests are necessary to ensure that
acceptable entry conditions are present.” 58 Fed. Reg. at 4,498.

Suttles’ decision to retain consultants for the
purpose of evaluating the cleaned tanks was not self-initiated, but was
actually in response to an earlier citation for similar violations at the
Columbus facility. On February 28, 1996 – approximately 7
months before the inspection at Creola, OSHA issued this citation charging
Suttles with a repeat violation of §1910.146(d)(5)(iii) for failing to test for
toxic gases and vapors. It was in the course of attempting to negotiate a
settlement of the Columbus citation that Suttles retained the services of the
three experts to develop a testing protocol and to conduct the evaluation of
whether hazardous toxic atmospheres remained in the tanks after washing and
drying. As Mr. Hayes testified, the goal of the testing protocol was to
demonstrate to OSHA’s satisfaction that the washing procedure eliminated the
basis for the citation. This evidence was corroborated by the
deposition testimony of Mr. Anthony Lowe, an industrial hygienist in OSHA’s
Columbus area office who was involved in the inspection of Suttles’ Columbus
facility and familiar with the settlement negotiations. Following the submission of the
experts’ test results to the OSHA’s area office, a settlement of the Columbus
citation was finalized on November 26, 1996 – approximately 6 weeks after the
Creola inspection. While Suttles admitted to the violation of
§1910.146(d)(5)(iii) for purposes of the settlement, the characterization was
amended from “repeat” to “repeat other than serious” and the penalty was
reduced from a proposed amount of $10,000 to $1,500.

In the context of the instant case, we conclude that
the Columbus testing was undertaken by qualified professionals to evaluate the
presence of hazards – in particular hazardous toxic atmospheres –in the
clean-and-dried tanks, exactly as contemplated by paragraph (1) of Appendix B
of the regulation. The results of this evaluation confirmed that any toxic
atmosphere in the tanks was purged during the cleaning process. It was
therefore appropriate in designing the verification testing procedures for
purposes of fulfilling its obligations under (d)(5) for Suttles to eliminate
the atmospheric test for toxicity since it was found unnecessary, a conclusion
that accords with the explanation in paragraph (2) of Appendix B. Were it not
for a timing issue described below, we would find that the Columbus testing
constituted the kind of identification and evaluation of hazards contemplated
by subsection (d)(2). Based on the results of those tests, we further find
that, in fulfilling its obligations under subsection (d)(5) to test permit
space conditions prior to specific employee entries, Suttles was warranted in
dispensing with the testing for toxic atmospheres so long as the tanks
were washed, dried and ventilated in accordance with the operating procedures
developed in consultation with Dr. Ball.

However, the timing question precludes exonerating
Suttles on these two items. The record shows that Suttles’ evaluation of
hazards posed by the cleaned tanks was not concluded until after the OSHA
inspection that resulted in the citations here. OSHA initiated its inspection
of the Creola facility on October 2, 1996, and extended it through October 4,
but the consultants conducting the evaluation for Suttles had not finished
their work at the Columbus facility by those dates. Although the testing and
taking of samples was completed on September 26, test samples still had to
undergo laboratory analysis, which was scheduled to take ten business days,
and, based on the evidence of record, we find the results were not available to
Suttles before the inspection. Thus, Suttles was not justified in dispensing
with its obligation under §1910.146(d)(2) and (d)(5), to test for hazardous
toxic atmospheres in its cleaned tanks at any of its facilities until its
consultants had completed their evaluation and Suttles had their report in
hand. We therefore affirm items 1a and 2a of
citation 2.

The
Secretary alleged these items were repeated. A violation is a repeated
violation under section 17(a) of the Act, 29 U.S.C. § 666(a), if, when it
is committed, there was a Commission final order against the employer for a
substantially similar violation. Potlatch Corp. , 7 BNA OSHC 1061, 1063,
1979 CCH OSHD ¶ 23,294, p. 28,171 (No. 16183, 1979) (“ Potlatch ”). The
Secretary may establish a prima facie case of substantial similarity by showing
that the employer has received a prior citation for failing to comply with the
same standard and that the citation has become a final order of the Commission,
and the burden then shifts to the employer to rebut that showing. Monitor
Constr. Co. , 16 BNA OSHC 1589, 1594, 1993-95 CCH OSHD ¶ 30,338,
p. 41,825 (No. 91-1807, 1994). The Commission has held that similarity of
abatement is not the criterion, that the test is whether the two violations
resulted in substantially similar hazards. Stone Container Corp. , 14 BNA
OSHC 1757, 1762, 1987-90 CCH OSHD ¶ 29,064, p. 38,819 (No. 88-310,
1990).

Suttles had received two prior citations from OSHA,
both at its Columbus, Ohio facility. The first was issued in 1995. It was
settled and had become a final order before the inspection in this case. The
second citation, which was issued in 1996, led to the atmospheric testing by
Foley Environmental Services described above. That citation was the subject of
a settlement agreement approved on November 26, 1996, which became a final
order of the Commission on January 6, 1997. In that agreement, many of the
items were affirmed, but it did not become a final order until after the
October 2-4, 1996 inspection at the Creola facility took place, the time of the
violation alleged here. It therefore cannot form the basis for a repeated
characterization.

The 1995 citation alleged a violation of 29 C.F.R.
§ 1910.146(d) because Suttles’ permit-space program did not comply with
all the requirements of sections 1910.146(d)(1) through (14). Specifically, it
alleged that the confined spaces were not tested for oxygen, flammable gases,
and toxic air contaminants. The factual underpinnings of that citation, that
Suttles failed to test the tanks, are substantially similar to the facts
alleged in the two items before us, that Suttles failed to evaluate the hazards
in the washed tanks and that it failed to test for toxic atmospheres before
employees entered the tanks. The violations here are therefore substantially
similar to the existing final order, and the repeated characterization has been
established under the 1995 citation.

We conclude that the unusual circumstances here
warrant that the violations be affirmed but that their characterization and the
penalty be reduced. Based on the similarity of working conditions and practices
between the Columbus and the Creola facilities, the similarity of the citation
allegations, the overlap of the two proceedings, the successful efforts by the
employer to develop a testing protocol that persuaded OSHA’s Columbus area
office that its tank cleaning procedures resolved the disputed compliance
issues, and the reduction of the characterization of the citations in the
settlement with the Columbus area office, we find that the violations in Item
1a and Item 2a are of a repeat but other than serious nature.

Section 17(j) of the Act, 29 U.S.C. § 666(j), provides
that the Commission shall assess an appropriate penalty for each violation,
giving “due consideration” to the size of the employer, the gravity of the
violation, the employer’s good faith, and its history of previous violations.
Although the IH believed that Suttles had over 400 employees nationwide, the
company presented evidence that it had no more than 200, and the judge based
her assessment on that number. The judge also noted that Suttles had
demonstrated good faith during the inspection, although the IH had given no
credit for good faith. We have considered the two prior citations and the
gravity of the violations, as well as the penalty assessed in the Columbus
proceeding. We assess a total penalty of $500 for the two items.

Part II.

Citation 1, item 4, and
citation 2, items 1c and 3

Failure to verify entry
permit information, failure to have required equipment,

and failure to complete
entry permits.

A.

Item
4 of citation 1 alleged that Suttles had committed a serious violation of the
standard at 29 C.F.R. § 1910.146(j)(2) because a supervisor did not verify
that the entry permits had been completed, evaluate the confined spaces for
toxic atmospheres, assess the chemical and physical properties of the residues
in the tanks, correctly compute the LEL, ensure that operational retrieval
systems were available, or ensure that employees entering the confined spaces
used the correct personal protective equipment (PPE).

The
record establishes that Suttles did not consider the washed tanks to be
permit-required confined spaces and was, consequently, not observing the
requirements of the standard. The administrative law judge affirmed this item. She found that
Suttles had acknowledged that the unwashed tanks were permit-required confined
spaces, and she held that the washed tanks were permit-required spaces because
Suttles had not followed the procedures set out in the standard to reclassify
the washed tanks to non-permit spaces. The judge noted that Suttles’ Wash Rack
Employee Handbook stated that employees must have a permit to enter a confined
space, that a supervisor must test the atmosphere and sign the permit, and that
all signatures must be on the permit before entry is made. She based her
finding of a violation on the fact that some of the entry permits did not
contain the ventilation history of the tank, so that there was no record that
the necessary ventilation had been performed. The judge concluded that this was
a serious violation for which a $3,500 penalty should be assessed.

Section §1910.146(j)(2) requires, among other tasks,
that the entry supervisor verify, by checking the entries on the entry permit,
that all tests specified on the permit have been conducted. From several of the
entry permits introduced into evidence (Exs. C-34, C-36, C-38), the judge found
that the Suttles supervisor who had filled out such permits had failed to make
sure that the entry permits were complete. In particular, the line for ventilation
history was not checked off.

On
review, Suttles argues that it was not required to fill out the entry permits
because, after the tanks were washed, they were no longer permit-required
spaces. Contrary to Suttles’ contention, we find for the reasons set out above
that the washed-and-dried tanks remained permit-required spaces and that
Suttles must comply with the requirements of its entry program, including the
documentation of the steps taken to ready the tanks for entry. The second page
of the exhibits noted by the judge as well as the others permits introduced at
trial were modeled closely after one of the sample entry permits that are
included in Appendix D of §1901.146. The fact that Suttles utilized those
permits in connection with entries of cleaned tanks undeniably evidences its
own understanding that the written permit must be completed as a precondition
to entry. Thus, it was appropriate for the Secretary to cite Suttles for what,
at a minimum, were recordkeeping deficiencies.

In assessing the character and gravity of the
violation, however, we take into account other salient facts in the record:
First, an integral part of Suttles’ cleaning procedures was the ventilation
phase. After a tank was “spun” washed, the dome lid was opened, a plastic hose
was inserted, and air was forced through the tank at 2,700 cubic feet per
minute for a 15-to-20 minute period. Second, the three permits cited by the
judge as incomplete were filled out by the same entry supervisor, Richard “Lyn”
Boggs, who was the evening shift leadman. Yet, as evidenced by other permits
filled out during the same timeframe, which were introduced into evidence,
another supervisor of the cleaning operations, Wes Burton, the day shift
leadman, did check off the ventilation line in the permits. Third, it is noteworthy that each
permit introduced into evidence was accompanied by a separate report entitled,
“Tank Cleaning and Inspection Report,” which was signed by the same supervisor
verifying what material had been in the tank and that the tank had been
cleaned. Thus, this appears not to be a case of an employer completely
foregoing ventilation as a precondition to entry nor a case where a supervisor
of tank washing operations either failed to do the ventilation step or failed
to verify its completion by someone else, since Boggs himself had overseen the
cleaning and drying of the tank. Finally, several entry permits generated
following the OSHA inspection create an inference that Suttles took immediate
steps to correct the recordkeeping deficiencies. Taking these mitigating circumstances
into account, it appears that any derelictions here were limited and isolated
in nature, involving a single leadman who failed to adequately record events on
the company’s forms after overseeing the washing and drying of a tank. Because
the record establishes that the ventilation did occur, and the violation
consists simply of failing to record it on the entry permit form, we cannot
find that death or serious physical harm could result from this violation. We
therefore modify the judge’s disposition and hold that the violation alleged in
Item 4 was non-serious and that a penalty of $250 is appropriate.

B.

Item
1c of citation 2 alleged a repeated violation for three instances in which
Suttles violated the standard at 29 C.F.R. § 1910.146(d)(4). Two of those instances are before the Commission: one alleged that
Suttles failed to provide a calibration kit for the combustible gas meter used
to test the atmosphere in the tanks before employees entered, the other alleged
that Suttles did not ensure that employees inside the tanks wore impervious
suits to protect them against several enumerated chemicals. The record is clear
that Suttles did not have a calibration kit for its Safe T Mate 200 combustible
gas meter used to test the atmosphere in the tanks before employees entered.

The judge affirmed the
instance alleging failure to provide a calibration kit because she concluded
that the atmospheric testing required by the standard was inadequate unless the
meter was properly calibrated. She joined the instance involving
chemical-impervious suits with an item from citation 1 which had alleged a
failure to use supplied-air respirators. Citing section 1910.146(d)(4)(iv), she
stated that an employer is permitted to dispense with the use of protective
equipment to the extent that its engineering and work practice controls protect
employees from exposure to hazardous substances; but she found that Suttles had
not performed any testing on the washed tanks to verify that the suits and
respirators were not necessary. The judge found that the results of the
Columbus testing were “inconclusive” for the Creola tanks.

We find a violation, but only on the ground that
Suttles did not have calibration equipment for its gas meter. As noted before,
even after the tanks had been washed and blown dry, Suttles did test for oxygen
levels and explosive levels. Because it is clear from the standard that testing
equipment must be properly calibrated, we find that Suttles violated the
standard by not having the capability to calibrate its meter. We do not affirm
that instance alleging a failure to require employees to wear chemical suits
and respirators, however. Section 1910.146(d)(4)(iv) requires that the employer
provide personal protective equipment and ensure that its proper use “insofar
as feasible engineering and work practice controls do not adequately protect
employees.” The compliance officer conceded, however, that she did not do any
testing at Creola to determine whether personal protective equipment was needed
in light of the engineering controls utilized by Suttles. The judge noted that employees who
entered the cleaned tanks wore gloves and boots, which, according to the Wash
Rack Employee Handbook, must be worn at all times. The Secretary introduced no evidence,
expert or otherwise, to prove the inadequacy of such protective equipment in
light of the controls.

On the record before us, we find that the Secretary
has not established that this violation was serious. We therefore affirm it as
other-than-serious. The Secretary cited this item as a repeated violation. The judge found
it to be repeated based on a prior citation issued on February 28, 1996, for a
violation of the same regulation at the Columbus, Ohio facility. The judge noted that prior citation item had been affirmed in a
settlement agreement approved on November 26, 1996 and became a final
Commission order on January 6, 1997. In order to establish that a violation is
repeated, the Secretary must show that there was a final order for a substantially
similar violation. Potlatch . The Columbus citation on which the judge
relied did not become a final order until after the October 2-4, 1996
inspection at the Creola facility took place. Because it was not a final order
at the time of the violation, it cannot serve as a basis for finding a repeat
violation. The 1995 citation, which had become a final order at the time of
this inspection, alleged a violation of §1910.146(d). Because the facts alleged
in that citation were very different from the allegation here, we find that the
hazards posed by the violations were not substantially similar. We therefore
find that the Secretary has not proved that this violation was repeated.

The judge grouped this item for penalty purposes with
items 1a and 1b of citation 2. With only the failure to have the necessary
calibration equipment to support a violation under this citation item, we
assess a penalty of $250 for Item 1c.

C.

Item
3 of citation 2 alleged a repeated violation of section 1910.1910.146(f).
Specifically, it alleged three instances in which Suttles’ confined
space entry permit did not contain information required by the standard. The
judge affirmed this item because she found that the Secretary’s exhibits showed
that Suttles had not entered the required information onto the entry permits.
The judge noted that Suttles had added a paragraph on its form giving the
person who filled out the form the discretion to leave out certain information
under certain circumstances. In addition to finding that the permits were
incomplete, the judge faulted Suttles for including these instructions on the
form, which she interpreted as authorizing an entry supervisor to forego
completing the remaining portions of the permit form under certain conditions.

To support this item, the
Secretary introduced two allegedly incomplete entry permits, which leadmen Wes
Burton and Lyn Boggs respectively had filled out. The Secretary claimed that the leadmen had completed only the front
side of the permit form, while ignoring the reverse side of the form, thus
omitting critical information. For purposes of comparison, the Secretary’s
introduced a blank version of the permit form showing what information must be
filled in on the backside.

Section 1910.146(f) requires that the issued entry
permits specify certain information documenting compliance with the regulation.
The preamble to the standard explained that, with the inclusion of all of the
information required by paragraphs (1)-(15) of the regulation, “the permit
itself will provide a concise summary of the permit space program requirements
for a particular entry that will be useful to the personnel who are conducting
the entry operations and to any personnel who need to review the conduct of
entry operations after the operations have been terminated.” 58 Fed. Reg. at
4,506. If both sides of the entry permit form were to be filled out, as the
Secretary’s compliance officer asserted (Tr. 277-79) and as Suttles apparently
intended, then the partially completed permits placed in evidence establish a
prima facie violation of §1910.146(f). For example, the backside of the permit
form provided a space for identifying (by signature) the employee who was
authorized to enter the cleaned tank, as required not only by the Suttles but also
§1910.146(f)(4). Filling out only the front side, as was the case with
Exhibits. C-18 and C-21, would omit that important information.

We therefore find a violation. We do not, however,
find that the repeat characterization of the violation has been proved. The
chronology of events shows that the Columbus citation alleging a violation of
§1910.146(f) had not become a final order until after the October 2-4, 1996,
inspection took place at the Creola facility. It therefore cannot serve as a
basis for finding a repeat violation. We also find that the Secretary has not
proved that this paperwork violation was serious. We find no evidence in this
record that Suttles’ failure to record the information was likely to cause
serious physical harm.

Having rejected the repeat characterization, we must
reevaluate the judge’s assessment of a $9,000 penalty, which exceeds the
statutory maximum for a violation that is not repeated or willful. See
sections 17(a)-(c) of the Act, 29 U.S.C. §§ 666(a)-(c). In addition, we note
that immediately after the October 2-4 inspection at Creola, and before the
entry of the final Commission order in the Columbus case, Messrs. Boggs and
Burton as the leadmen responsible for filling out the permit forms were
completing both the front side and the backside of the permit forms. Taking into account this fact, together
with the fact that Suttles had been working with OSHA’s Columbus area office to
develop and utilize a permit form system that conforms to §1910.146(f), we
assess a penalty of $250 for Item 3.

Part III.

Citation 2, item 1b:

Failure to use mechanical
ventilation

Item
1b of citation 2 alleged a repeated violation of various requirements of the
permit-required confined space program standard at 29 C.F.R.
§ 1910.146(d)(3). The citation alleged five specific
instances in which “the employer did not develop and implement the means,
procedures, and practices necessary for safe permit space entry operations.”
The judge affirmed only one instance, however, instance e, which alleged,
“Mechanical ventilation was not used when necessary to remove potential
atmospheric hazards in tank trucks.” Only that instance is on review. The
Commissioners are unanimous in voting to vacate this item.

The
judge reasoned that §1910.146(c)(5)(ii)(E), which requires the use of
continuous forced air ventilation, was applicable under the circumstances,
although that section was not cited here. We vacate this item on narrow ground
that §1910.146(c)(5)(ii)(E) has no application here. As described in several
places in the preamble to the standard, subsection (c)(5) is an alternative
procedure governing the entry of permit-required confined spaces:

Paragraph (c)(5) of the final
rule sets provisions that employers can follow in lieu of complying with
paragraphs (d) through (f) and (h) through (k), if the employer can demonstrate
that the permit space contains only atmospheric hazards and that continuous
forced air ventilation will maintain those permit spaces safe for entry.

. . .

“. . .OSHA has determined that
there are circumstances in which employers can control atmospheric hazards
without following the full permit procedures outlined in paragraphs (d) through
(k) of the final rule.

. . .

Paragraph
(c)(5)(i) of the final rule sets forth the conditions that must be met before a
permit space may be entered under the alternative procedures , which are
specified in paragraph (c)(5)(ii).”

58
Fed. Reg. at 4,485, 4,487 (emphasis added). The evidence plainly shows that
respondent here was not attempting to utilize the (c)(5) procedures, including
continuous forced air ventilation, as an alternative to the full permit procedures
set forth in paragraphs (d) through (k). Nor do the briefs of either party in
anyway support the notion that any of the (c)(5) procedures had any bearing on
the citation items under review. Moreover, except for a passing reference to
section 1910.146(c)(5)(ii)(E) in a string citation, the Secretary’s brief is
utterly devoid of any discussion as to the relevance of (c)(5). We therefore
conclude that, on this record, Item 1b of Citation 1 should be vacated.

Commissioner
Rogers agrees that this item should be vacated, but for reasons different from
her colleagues. She notes that the cited standard requires employers to
“Develop and implement the means, procedures, and practices necessary for
safe permit space entry operations ,” (emphasis added) and finds the
Secretary has not met her burden to show that mechanical ventilation was not
used when it was necessary.

PERSONAL PROTECTIVE EQUIPMENT ITEM:

Citation 1, item 1a

Item
1a alleges a serious violation of the personal protective equipment (“PPE”)
requirements of section 29 C.F.R. § 1910.132(d)(2)(i) because employees working
outside the tanks were not wearing the PPE that Suttles had designated as
necessary for the tasks being performed.

The
Secretary’s representative, the IH, observed Suttles employees cleaning the
exteriors of the tanks without eye protection. Suttles uses a chemical
described as an “aluminum brightener” to clean the exteriors of the tanks. The
material safety data sheet (MSDS) for that substance states that it contains
ammonium bifluoride and sulfuric acid and that it is corrosive to skin and
eyes, and that it may cause corneal damage. The IH reviewed Suttles’ Wash Rack
Employee Handbook and concluded that it constituted a workplace assessment in
which the company identified hazards and designated the kind of PPE necessary
to protect against each. That handbook, which is in evidence, states, “Goggles
are to be worn when cleaning hoses, cleaning with caustic, brightener or
presolve or when mixing chemicals or replacing drums that contained chemicals.”

The
IH testified that she observed employees cleaning the exteriors of trucks
without eye protection, and that they had told her that it was optional for
them to wear goggles when they cleaned the exteriors of the truck. Suttles has
presented evidence that wearing eye protection was not optional and that a
number of employees, including a leadman, were disciplined for failing to wear
the necessary eye protection. The judge found a violation. She credited the
testimony of the IH over what she characterized as the “more general” testimony
from Suttles’ tank wash supervisor that he enforced the requirement to wear eye
protection. The IH’s personal observation of employees cleaning the exterior of
tanks without eye protection is sufficient to establish the violation. Her
testimony as to what she saw is not contradicted. Based on this testimony, we
find that Suttles did not “have each affected employee use” the necessary PPE
and that Suttles did not comply with the requirements of section
1910.132(d)(2)(i).

Suttles
argues that the Secretary did not prove that a reasonable employer would
recognize that there was a hazard requiring the use of eye protection, but the
company’s handbook and the testimony of its tank wash supervisor establish that
Suttles did, in fact, recognize such a hazard. See Florida Machine &
Foundry, Inc. v. OSHRC , 693 F.2d 119, 120 (11th Cir. 1982).

The
Secretary combined item 1a for penalty purposes with item 1b, which alleged a
violation of the standard requiring eye and face protection, and proposed a
penalty of $3,500. The judge vacated item 1b as duplicative and assessed a
penalty of $2,500 for item 1a. Having considered the four factors set out in
section 17(j) of the Act, we deem the penalty assessed by the judge to be
appropriate in the circumstances. Accordingly, we affirm her assessment of a
$2,500 penalty for this violation.

HAZARDOUS COMMUNICATION ITEM:

Citation 1, item 5a

Item
5a alleges a serious violation of the labeling requirements of the hazard
communication standard at 29 C.F.R. l910.1200(f)(5). The citation alleged four separate instances in which that standard
had been violated, but two of them were withdrawn by the Secretary, and one was
vacated by the judge. Only one of them remains, instance a, which alleged that
a caustic tank in the tank wash area was not labeled. Suttles asserts that the
violation did not occur. We disagree.

The
IH testified that the tank in question was in the Kelton room. During her
walkaround inspection, she was accompanied by Suttles’ tank wash supervisor and
one of its leadmen. When the IH observed that the tank had no label, she asked
what was in the tank and was told that it contained a caustic called “ALGO 2.”
In affirming this item, the judge noted that both Suttles employees who were
present in the Kelton room during the inspection testified at the hearing, and
that neither contradicted the IH’s statement as to the contents of the
unlabeled tank. In the absence of contradictory evidence, the IH’s testimony is
unrebutted. We therefore find that the tank did not have the required warning
label giving the identity of the chemical it contained.

A
violation of section 1910.1200(f)(5) has therefore been proven. Suttles’
arguments on review do not address instance a of this item. The arguments made
go to instance b, which was withdrawn by the Secretary while this case was on
review. Under these circumstances, we affirm the judge’s disposition of
instance a of this item.

The
Secretary proposed a penalty of $3,500 for this item, which originally alleged
four separate instances. The judge affirmed two instances and assessed a
penalty of $1,000. While this case was on review, the Secretary withdrew one of
the instances that had been affirmed by the judge. Having considered the four
factors specified by section 17(j) of the Act, we find a penalty of $1,000 to
be appropriate.

VACATING CITATIONS AS A SANCTION

Suttles
asserts that all the citation items should be vacated on the grounds that the
industrial hygienist (“the HI”) who conducted the inspection engaged in
overzealous conduct as also evidenced by allegations of prior misconduct that
had led to disciplinary action. Suttles additionally claims that the area
office in which she worked improperly evaluated inspector performance based on
the number of citations issued and on the amounts of the penalty totals
involved in citations. The judge addressed these arguments as a vindictive
prosecution defense and disposed of them in that context.

We
find no basis for overturning the judge’s ruling on this issue. The area
director for the Mobile area where the IH is based testified by deposition that
the issuance of multiple-item citations with large penalties was considered
only as evidence of the employee’s ability to handle complex inspections.
However, after the issuance of the citations in this case, Congress amended the
Act to add section 8(h), 29 U.S.C. § 657(h), which prohibits the Secretary from using the results of enforcement
activities to evaluate enforcement personnel. Nevertheless, even if we were to
apply the amendment retroactively, we find no basis for vacating all items
cited as Suttles asks. In view of the area director’s testimony, we find no
contravention of Congress’ mandate.

Suttles
further argues that the IH’s prior misconduct undermines her credibility as a
witness. We have reviewed the Federal Rules of Evidence, particularly Rule 608,
and do not find that a single instance of misconduct, for which discipline has
been administered, warrants the rejection of all her testimony. Suttles has raised
legitimate credibility issues, however, and we have weighed the evidence and
considered the credibility of all witnesses for those items where the IH’s
testimony is contradicted.

CONCLUSION

We
find that Suttles violated the personal protection requirements of 29 C.F.R.
§ 1910.132(d)(2)(i) and therefore affirm item 1a of citation 1. We assess
a penalty of $2,500 for that violation. We also find that Suttles violated the
standard at 29 C.F.R. § 1910.1200(f)(5). Consequently, we affirm item 5a
of citation 1 and assess a penalty of $1,000 for that item. We also affirm item
4 of citation 1 as nonserious and assess a penalty of $250. We affirm items 1a
and 2a of citation 2 as nonserious repeated and

items
1c and 3 of citation 2 as nonserious and non-repeated violations. We assess a
total penalty of $500 for items 1a and 2a, and penalties of $250 each for items
1c and 3. We vacate item 1b of citation 2.

SO
ORDERED.

/s/

James
M. Stephens

Commissioner

Dated: September 30,
2004                                             /s/

Thomasina
V. Rogers

Commissioner

Railton,
Chairman, concurring:

I
concur in the judgment in order to form a two-member majority for the purpose
of disposing of this matter. I also agree, however, with much of the rationale
for the decision on the assumption that the Permit Required Confined Space
Standard (PRCS) applied to the tanks after they were washed. My difficulty with
the lead opinion, however, lies in its conclusion that the tanks were permit
required confined spaces prior to being washed. They are not working spaces before they
are washed and therefore they are not subject to the regulation and perhaps the
Act.

As
the definitions to the PRCS make plain only spaces which are entered for the
purpose of performing work are classified as confined spaces. See 29
C.F.R. §1910.146(b)(1). Indeed, the preamble for the final standard makes this
point repeatedly. See , e.g. , 58 Fed. Reg. 4462, 4467 (January 14,
1993). This point was also made throughout the entirety of the rulemaking
proceedings. See , e.g. , Notice of Proposed Rulemaking, 54 Fed.
Reg. 24080 (June 5, 1989), and the advance notices of proposed rulemaking, 40
Fed. Reg. 30980 (July 24, 1975), and 44 Fed. Reg. 60334 (November 27, 1979).
The record in this case makes it clear that the pre-washed tanks were not
entered and no work was performed in them. Accordingly they are not subject to
regulation by the PRCS. The question then arises, are the washed tanks permit
required confined spaces?

It
seems clear that Suttles treated them as such but in the same fashion as the
employer treated tanks cleaned by contractors in Superior Tank & Trailer
Co., 17 BNA OSHC 2116 (digest), 1995-97 CCH OSHD ¶ 31,127 (digest) 1996
OSAHRC LEXIS 80 (No. 95-870, 1996). That
employer, like Suttles, tested the atmosphere of the tanks prior to entry and
it ventilated the tanks as well. The employer here has a point when it argues
that the Secretary should have provided objective or expert testimony
demonstrating that the washed tanks are subject to regulation under the PRCS.
The Secretary did not provide any evidence of either kind. On that basis I
could find that the Secretary failed to prove her case.

However,
as the lead opinion points out, the testing Suttles performed in Ohio was for a
limited purpose. That purpose was to prove that the wash process in fact makes
the tanks sterile with regard to the potential for a toxic atmosphere. It was
not performed for the purpose of proving the tanks were sterile for all
potential atmospheric hazards. Moreover, the results were not available at the
time OSHA commenced its inspection of the Creola facility. Suttles cannot rely
on them for the purpose of avoiding these citations. Suttles treated the washed
spaces as regulated spaces as stated in the lead opinion, and I concur with the
disposition of the confined space items essentially for the reasons given
insofar as they are consistent with this opinion.

Similarly,
Suttles is not entitled to relief under the reclassification provisions of
subsection (c) (7) of the PRCS. That provision was not seriously advanced
before the ALJ as an alternative to Suttles theory that the post-washed tanks
were not permit spaces and is referred to almost as an afterthought on review.
Importantly, Suttles failed to present any argument concerning its failure to
comply with the requirements of subparagraph (iii) of the reclassification
provisions. Accordingly, reclassification is a subject best left to some future
case.

Unfortunately my colleagues present dicta
in footnote 14 of the lead opinion which may be seen as an interpretation of
subsection (c) (7)(i) and (ii). I do not join in that dicta . Taken
literally, the dicta seems to require the conclusion that the tanks
involved in this case can never be reclassified under the subsection. The
Secretary did not go that far in her brief to the Commission; she held open the
possibility for reclassification and argues that Suttles is not so entitled on
the record in this case. I agree.

/s/

W.
Scott Railton

Chairman

Dated:
September 30,
2004           

Secretary of Labor,

Complainant,

v.

OSHRC Docket Nos.

Suttles Truck Leasing, Inc.,

97-0545 & 97-0546

Respondent.

Appearances:

Marsha
L. Semon,
Esq.                                                 John
J. Coleman, Esq.

Office
of the Solicitor                                     Marcel
L. DeBruge, Esq.

U.
S. Department of Labor                                           Balch
& Bingham

Birmingham,
Alabama                                                 Birmingham,
Alabama

For
Complainant                                                           For
Respondent

Before:          Administrative
Law Judge Nancy J. Spies

DECISION AND ORDER

Suttles
Truck Leasing, Inc., contests citations and penalties issued to it by the
Secretary on March 27, 1997. The citations resulted from two separate
Occupational Safety and Health Administration (OSHA) inspections, docketed as
cases under nos. 97-546 (the health inspection conducted by OSHA industrial
hygienist Leigh Jackson) and 97-545 (the safety inspection conducted by OSHA
compliance officer Johnny Burroughs). The inspections took place at Suttles’s
truck terminal located in Creola, Alabama. The cases were consolidated for
hearing.

Jackson’s
health inspection (no. 97-546) resulted in the following citations being
issued:

Citation No. 1(Alleged Serious Violations)

Item
1a: Section 1910.132(d)(1)(i)--use of personal protective equipment

Item
1b: Section 1910.133(a)(1)--use of eye and face protection

Item
3: Section 1910.146(c)(i) --confined space entry

Item
4: Section 1910.146(j)(2)--confined space entry

Item
5a: Section 1910.1200(f)(5) --hazard communication warnings

Item
5b: Section 1910.1200(g)(8)--maintenance of material safety data sheets

Item
5c: Section 1910.1200(h)(1)--training regarding new chemicals in work area

Citation No. 2 (Alleged Repeat Violations)

Item
1a: Section 1910.146(d)(2)--confined space entry program

Item
1b: Section 1910.146(d)(3)--confined space entry program

Item
1c: Section 1910.146(d)(4)--confined space entry equipment

Item
1d: Section 1910.146(d)(14)--review of confined space entry program

Item
2a: Section 1910.146(d)(5)(i) --confined space atmospheric testing

Item
2b: Section 1910.146(d)(5)(ii)--confined space evaluation

Item
3: Section 1910.146(f)--confined space entry permit requirements

Item
4: Section 1910.146(k)(3)(ii)--mechanical retrieval device for confined space
entries

Burroughs’s
safety inspection (no. 97-545) resulted in the following citation:

Citation No. 1(Alleged Serious Violations)

Item
2b: Section 1910.177(c)(2) --servicing of rim wheels

Item
2c: Section 1910.177(d)(4)--air line assembly for inflating tires on wheel rims

Item
2d: Section 1910.177(d)(5)--charts for rim wheels

Item
2e: Section 1910.177(g)--safe operating procedure for servicing rim wheels

Item
3: Section 1910.307(b) --electrical wiring in hazardous
locations

The
hearing of these consolidated cases was heard from November 3 through November
10, 1997. The parties have filed post-hearing briefs. Suttles argues that the
Secretary has failed to establish the alleged violations. Suttles also contends
that it was unfairly targeted by OSHA and that it was unfairly treated by OSHA,
its witnesses, and the undersigned. For the reasons stated below, the Secretary
prevails on twelve of the items and sub-items and Suttles prevails on seven.

Background

Suttles’s
primary business is the transportation of liquid chemicals via tank trailers.
Suttles owns and leases out approximately 425 stainless steel tanks used for this
purpose. The company employs truck drivers and other employees at its fourteen
truck terminals located throughout the United States. Five of these truck
terminals include tank wash facilities where, after hauling a load, the tanks
are washed inside and out before being dispatched to haul another load (Tr.
1104-1107, 1257).

The
tanks are 35 feet long and 6 feet, 5 inches deep (Tr. 242, 1110-1111). The top
of the tank has a walkway with a hatch in the middle and caps on both ends (Tr.
1125). The hatch is secured by “dog ears” and has a “Christmas tree” pressure
gauge (Tr. 1120).

The
tanks are single compartment tanks, without walls, baffles, or other interior
structures (Tr. 40-41, 43). Inside, the tank is smooth stainless steel with a
gradual 8-inch drop from the ends of the tank toward the middle, so that any
liquid or heavier-than-air gas inside the tank will drain toward the middle and
out through a bottom hatch located slightly off-center (Tr. 1029, 1113, 1122).

Suttles
washes out the empty tanks between each load. Suttles operates wastewater
treatment plants in Columbus, Ohio, and Demopolis, Alabama. Water used to clean
trucks and tank trailers at Suttles’s outlying truck terminals is brought to
one of these wastewater plants (Tr. 1106-1107). Suttles washes approximately
24,000 tanks each year (Tr. 1142).

Suttles’s
terminal in Creola, Alabama, consists of a yard where the tanks are parked; the
tank wash area, consisting of three large covered bays; a maintenance shop; and
offices. In the tank wash area, the first and second bays are used for washing
the tanks. The third bay is used for fueling the trucks. Tank wash employees
gain access to the top of the tanks from an elevated platform, known as a wash
rack, located between the first and middle bays. Tank wash employees are also
referred to as wash rack employees (Exh. C-5; Tr. 40, 298, 1312).

Henry
Hollinghead was the tank wash supervisor (Tr. 38, 1283). The wash rack
employees work on either the day shift (6:00 a.m. to 3:00 p.m.) or the evening
shift (3:00 p.m. to 11:00 or midnight). A lead man assigned to each shift is
responsible for directly supervising the “washers” (the wash rack employees who
are assigned to clean the interior and exterior of the tanks). Wes Burton was
the day shift lead man and Richard (Lynn) Boggs was the night shift lead man.
The tank washers were Jim Spence, Donald Williams, Chris Kiker, and brothers
Terrance and Zerrick Gaines. Kiker and the Gaines brothers primarily cleaned
the interior of the tanks while Spence and Williams primarily cleaned the
exterior (Tr. 57-58, 1256, 1323).

Each
truck driver who delivers a tank to the facility fills out a wash rack request
form identifying the last product hauled in the tank. The material safety data
sheet (MSDS) for the identified product is attached to the wash request slip,
and the bill of lading for the product is turned in to the office (Tr. 1114).

The
completed wash request form is given to the tank wash lead man who then
prepares form STL-14, the wash ticket (also referred to at the hearing as a
“wash rack slip,” “wash rack form,” and “tank wash slip”) which identifies the
last product hauled (Exh. C-6; Tr. 60-61, 73, 145, 1116). Form STL-14 is also
used to record the type of wash solution used to clean the tank, and whether or
not the tank was treated with Xylene prior to being washed, as well as the time
spent washing the tank (Tr. 61, 150-151, 1117).

Once
a tank is pulled into a wash bay, the tractor is removed and the tank is hooked
to a ground plant to prevent any sparking and ignition of flammable vapors (Tr.
1251-1252). Before the interior of the tank is washed, the dome lid, along with
certain other valves, is opened; and the lead man visually inspects the tank
for retained product, known as “heel” (Tr. 56, 63). In the event the tank
contains excessive heel (that is, 10 gallons or more), the heel is drained from
the tank prior to the washing process (Tr. 63).

Depending
on the product last hauled in the tank, the tank may be pre-rinsed with cold
water or it may be “presolved” with Xylene in order to loosen the product
residue and facilitate washing (Tr. 66, 71-72, 1225). The Xylene is pumped into
a hose via a pneumatic pump and delivered to the tanks through a wand inserted
in an opening in the dome lid (Tr. 66, 1206-1207).

The
lead man selects the wash medium for the interiors of the tanks. He may choose
cold water, hot water, steam, or a caustic solution. A presolved tank is first
rinsed with hot water and then washed with a caustic solution (Tr. 63, 66-67,
1078, 1338).

The
wash medium is applied to the interior of the tank using devices known as
“spinners.” A spinner is a wand-like device with rotating nozzles (spinners)
approximately 4 to 5 inches in length with openings on each end (Tr. 64). The
end of the wand outside the tank is attached to a hose which is attached to a
machine called the Kelton machine (Tr. 1258). The spinners are placed into the
tank openings on either end of the tank at the top, and into an opening in the
dome (Tr. 64). The Kelton machine delivers the wash medium under pressure to
the spinners, via overhead hoses in the wash bays (Tr. 1087-1089, 1258). During
the spinning process, wash water from the spinners continuously flows out of
the tank through the bottom of the tank, and is directed through a hose either
to a sump pit between the first and middle bays, or to a hazardous waste tank.
Wash water from tanks which have been pre-solved with Xylene and from tanks
washed with a caustic wash solution flow into the sump pit (Tr. 129, 131-132,
137, 1101, 1245).

Once
the interior of the tank has been washed, the dome lid and the previously capped
openings are opened and a corrugated ventilation tube, approximately 6 to 9
inches in diameter, is inserted into the tank. The tank is ventilated for 15 to
20 minutes (Tr. 80-81). After the tank is ventilated, the lead man visually
inspects the interior from the top of the tank in order to determine whether
the automated wash process has adequately cleaned the tank (Tr. 56).

Vindictive Prosecution

Unfairness
towards Suttles is the leitmotif that runs through the company’s post-hearing
brief. Suttles believes it was unfairly targeted by OSHA’s area director and
compliance officers, and that its persecution continued at the hands of the
Secretary and her expert witness, Emil Golias. At the hearing, Suttles made
various offers of proof aimed at denigrating OSHA’s compliance officers.
Portions of the record were placed under seal. In its brief, Suttles continues its
sweeping ad hominem attacks upon the compliance officers, Golias, and the
employee whose complaint gave rise to the initial inspection. Its brief
contains headings stating that the Secretary’s three witnesses are “not Worthy
of Belief” (pp. 34, 36, 38) and that “OSHA Had Ulterior Motives” (p. 38).
Suttles also takes the undersigned to task for imposing “tight evidentiary
reins uncharacteristic of administrative litigation” (p. 38) and raises the
specter of reversible error (pp. 36, 38-39).

On
the subject of the witnesses’ credibility, the undersigned declines Suttles’s
suggestion to dismiss wholesale the testimony of compliance officers Jackson
and Burroughs and of Golias. As will be seen, the Secretary has problems of
proof on a number of issues, but the proof will be examined on an item-by-item
basis. The witnesses’ testimony will not be disregarded based on Suttles’s
ill-advised sensationalistic personal attacks.

In
its section of the brief dealing with OSHA’s purported ulterior motives,
Suttles argues that the evidence (pp. 38-39):

establishes prosecutorial misconduct by
the Mobile Area Office, and confining the scope of this evidence would
constitute reversible error. Put differently, contrary to the ALJ’s observation
(T 818), the OSHRC DOES care what OSHA did; what OSHA did compels vacating the
citations.

Suttles
cites a 25 year old Review Commission decision, which the company argues,
incorrectly, holds that evidence of a compliance officer’s motives is relevant
to his or her credibility. In the cited case, Fort Hill Lumber Co., 2
BNA OSHC 1013 (No. 509, 1974), the Review Commission’s decision takes up less
than a page. It states that three issues were raised by the direction for
review (none of which relate to the issue of the compliance officer’s
credibility) and that, due to the Secretary’s withdrawal of the relevant items,
the Review Commission “need not reach any of the issues raised by the direction
for review.” Id. at 1014.

The
administrative law judge’s decision below (which has no precedential value)
also fails to provide bedrock support for the proposition asserted by Suttles.
Out of a 21-page decision, Judge Kennedy devotes one sentence, obiter dictum ,
to the compliance officer’s motives in investigating the respondent ( Fort
Hill Lumber Co., 1974 OSAHRC LEXIS 436, *19):

There is also very strong evidence,
likewise not contradicted, that this was initiated by a state inspector, whose
motives in this instance are subject to question as a result of a dispute with
the Respondent which grew out of that gentleman’s practice of soliciting
employment on the weekends from employers whom he inspected during the week.

Judge
Kennedy does not mention this subject again and bases no conclusions upon it. Fort
Hill is hardly the keystone that Suttles purports.

More
recent, and more apposite to Suttles’s argument, is National Engineering
& Contracting Co., 18 BNA OSHC 1075 (No. 94-2787, 1997). In this case
the Review Commission addresses the issue of vindictive prosecution ( Id. at
1077-78):

Vindictive prosecution is a prosecution
to deter or punish the exercise of a protected statutory or constitutional right.
United States v. Goodwin, 457 U.S. 368, 372 (1982). Although there is no
uniform test for proving that a prosecution was vindictive, a threshold showing
common to all tests is evidence that the government action was taken in
response to an exercise of a protected right. If governmental misconduct is
found, the court can dismiss the vindictively motivated charge or the entire
action. United States v. Meyer, 810 F.2d 1242, 1249 (D.C. Cir. 1987), cert.
denied, 485 U.S. 940 (1988).

National
Engineering claimed that it was subjected to vindictive prosecution based on a
number of factors, including its discovery “through the compliance officer’s
deposition that the agency allegedly had an improper motivation for pursuing
the inspection.” Id. at 1078. The Review Commission concluded that
National Engineering failed to establish the threshold showing required to make
a case for vindictive prosecution. The Commission noted that while the company

appears to receive a good deal of
attention from OSHA, it has not identified any protected right it exercised
that caused the Secretary to initiate this inspection or prosecution . . . In
addition to evidence of animus or retaliatory motive, National must produce
evidence tending to show that it would not have been cited absent that motive.

Id.

In the present case, Suttles has failed to identify,
during the hearing, in its various offers of proof, or in its post-hearing
brief, any protected right it exercised that caused the Secretary to initiate
the inspection or prosection. Instead, it claims that the Secretary’s
“inexplicable and unwarranted hostility toward Suttles” (Suttles’s brief, p.
20) drove this prosecution. Such allegations are insufficient to support a
finding of vindictive prosecution. Suttles’s argument to the contrary is
without merit.

Docket No. 97-546

The
Secretary has the burden of proving her case by a preponderance of the
evidence.

In order to establish a violation of an
occupational safety or health standard, the Secretary has the burden of
proving: (a) the applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to the violative
conditions, and (d) the employer’s actual or constructive knowledge of the
violation ( i.e., the employer either knew or, with the exercise of
reasonable diligence could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA
OSHC 2131, 2138 (No. 90-1747, 1994).

In
order to establish that a violation is “serious” under §17(k) of the Act, the
Secretary must establish that there is a substantial probability of death or
serious physical harm that could result from the cited condition. In
determining substantial probability, the Secretary must show that an accident is
possible and the result of the accident would likely be death or serious
physical harm. The likelihood of the accident is not an issue. Spancrete
Northeast, Inc., 15 BNA OSHC 1020, 1024 (No. 86-521, 1991).

Citation No. 1

Item 1a: Alleged Serious Violation of
§1910.132(d)(1)(i)

The
Secretary alleges that Suttles committed a serious violation of
§1910.132(d)(1)(i), which provides:

The employer shall assess the workplace
to determine if hazards are present, or are likely to be present, which necessitate
the use of personal protective equipment (PPE). If such hazards are present, or
likely to be present, the employer shall:

(i) Select, and have each affected
employee use, the types of PPE that will protect the affected employee from the
hazards identified in the hazard assessment[.]

The
citation states that employees working in the wash tank area “were not required
to wear the PPE designated by the employer.” The citation does not specify what
PPE is appropriate. The Secretary alleges that the wash rack employees were
exposed to chemical hazards while accessing the top of the tanks, cleaning
truck hoses, cleaning the exterior of the tanks, and cleaning sump pits. The
hazards were caused both by the residue of the chemicals which were hauled as
product in the tanks and by the chemicals used in the tank washing process.

Suttles’s
Wash Rack Employee Handbook states, “Goggles are to be worn when cleaning
hoses, cleaning with caustic, brightener or presolve or when mixing chemicals
or replacing drums that contained chemicals;” and “A face shield must be worn
over goggles, when cleaning hoses, mixing chemicals or the replacement of
chemical drums” (Exh. C-5, p. 11). Compliance officer Jackson testified that
the hazards created by exposure to the chemicals were “skin corrosion, skin
absorption, contact type hazards” (Tr. 92). She based this assessment on a
review of the MSDSs for the chemicals hauled in, or used to clean, the tanks
(See Exhs. C-31 [isopropyl amine]; C-35 [monochloroacetic acid]; C-39
[acetone]; C-43 [aniline]; C-47 [toluidine]; C-59 [sulfonate]; C-67 [sodium
hydroxide]; Tr. 92-93, 97).

Compliance
officer Jackson testified that she was told by wash rack employees Chris Kiker,
Terence Gaines, and Zerrick Gaines that “they normally did not wear the safety
glasses that were available” while working in the tank wash area (Tr. 101).
Kelly Brown, who cleaned the truck hoses, told Jackson that he did not wear eye
and face protection while performing that task (Tr. 99). Jackson observed
employees cleaning the exteriors of several tanks during her inspection who
were not wearing goggles or face shields (Tr. 102-103).

Suttles
argues that because Jackson did not conduct tests to determine whether
hazardous concentrations of any of the substances listed in item 1a existed at
the time of her inspection, the Secretary failed to establish a violation of
cited standard (Tr. 464-465). Such testing is not required to prove a violation
of §1910.132(d)(1)(i). The standard requires that an employer assess whether
hazards are present, “or are likely to be present.” Concentrations of the
various chemicals hauled and used by Suttles could be expected to vary. The
MSDSs establish that, while the presence of a hazard may not exist at a given
time, the likelihood of the presence of a hazard remains. For example, Suttles
uses a product called Aluminum Brightener, which contains ammonium bifluoride
and sulfuric acid, to clean the exterior of the tanks. The MSDS for Aluminum
Bright warns that it “CAUSES BURNS TO SKIN & EYES,” and is “CORROSIVE TO
SKIN & EYES. MAY CAUSE CORNEAL DAMAGE” (Exh. C-12). A reasonable employer
aware of this MSDS would make the assessment that the use of Aluminum
Brightener constitutes, at a minimum, the likelihood of a hazard to the skin
and eyes of employees required to use it. Having made this assessment, the
employer is required to select face and eye protection for its affected
employees and ensure that they use the designated PPE. In fact, Suttles did
determine that a hazard existed and designated appropriate eye and face PPE to
be worn while working with chemicals in the tank wash area, including while
washing the hoses and the outside of the tank cars. Suttles failed, however, to
“have each affected employee use” the appropriate PPE.

Tank
wash supervisor Henry Hollinghead generally disputed Jackson’s conclusion that
the tank wash employees failed to wear the required PPE, stating that tank wash
employees were required to wear face and eye protection and that employees who
did not do so were disciplined (Exhs. R-17, R-19; Tr. 1284-1285). Suttles
argues that Jackson’s testimony that several employees told her they did not
wear face and eye protection while exposed to hazardous chemicals was disputed
by “the testimony of every witness on whom Jackson relied” (Suttles’s brief, p.
48). None of the employees identified by Jackson testified at the hearing; her
testimony regarding what they told her is uncontradicted and is credited above
Hollinghead’s more general testimony.

The
record establishes that Suttles was in violation of §1910.132(d)(1)(i). Suttles
had made the required hazard assessment and had required the appropriate PPE.
Suttles failed to ensure that each of the affected employees used the PPE.
There is evidence that Suttles disciplined employees on occasion for failing to
wear the PPE, but enforcement of the rule requiring the PPE became lax to the
point where at least four employees thought that the use of face and eye
protection was discretionary (Tr. 117). The failure to wear the face and eye
protection was not isolated. Jackson observed for herself on the first day of
her inspection that the tank wash employees were not wearing face and eye
protection (Tr. 98, 102-103).

The
Secretary has established a violation of §1910.132(d)(1)(i). The hazard created
by not enforcing the requirement of the use of face and eye protection when
working with hazardous chemicals is corrosive burns to the skin and eyes. The
violation is serious.

Penalty Determination

The
Commission is the final arbiter of penalties in all contested cases. Under §
17(j) of the Act, in determining the appropriate penalty, the Commission is
required to find and give “due consideration” to (1) the size of the employer’s
business, (2) the gravity of the violation, (3) the good faith of the employer,
and (4) the history of previous violations. The gravity of the violation is the
principal factor to be considered.

Suttles
employed approximately 200 employees at the time of the inspection (Tr.1105).
Suttles demonstrated good faith during the inspection (Tr. 730-731). Suttles
has a history of prior violations (Tr. 244).

The
gravity of the violation is high. Employees routinely ignored the requirement
for face and eye protection while working with caustic and corrosive substances
on a daily basis. A penalty of $2,500.00 is appropriate.

Item 1b: Alleged Serious Violation of §1910.133(a)(1)

The
Secretary charges Suttles with a violation of §1910.133(a)(1), which provides:

The employer shall ensure that each
affected employee uses appropriate eye or face protection when exposed to eye
or face hazards from flying particles, molten metal, liquid chemicals, acids or
caustic liquids, chemical gases or vapors, or potentially injurious light
radiation.

The
citation alleges that employees working in the tank wash area “were not
required to wear safety glasses and/or face shields to protect their eyes or
face when working with chemicals. . .” Items 1a and 1b involve the same hazard
to the same affected employees, and require the same abatement. The identical
violative conduct brought Suttles into noncompliance with both standards. It is
determined that items 1a and 1b are duplicative, and that it is appropriate to
find only one violation. Cleveland Consolidated Inc., 13 BNA OSHC 1114
(No. 84-696, 1987), Capform Inc., 13 BNA OSHC 2219 (No. 84-556, 1989).
Therefore, item 1b is vacated.

Item 3: Alleged Serious Violation of §1910.146(c)(i)

The
Secretary alleges a violation of §1910.146(c)(i), which provides:

The employer shall evaluate the
workplace to determine if any spaces are permit-required confined spaces.

The
Secretary charges that Suttles failed to evaluate the sump pit located outside
the lead man’s office. The sump pit is approximately 10 feet long, 5 feet wide,
and 9 feet deep (Tr. 128-129). The sump pit at issue is one of three located at
the Creola terminal (Tr. 129, 353). One sump pit is located in the grease pit
in the maintenance area, one is located in the tank wash area between the first
and middle wash bays, and the sump pit in question is outside the lead man’s
office. The three sump pits connect to one another by underground pipes.
Wastewater and residue from interior and exterior tank washing from the sump
pit between the bays flows into the cited sump pit, where the solids settle out
from the liquids (Exh. C-72; Tr. 302, 352-353).

Employees
were required to enter the cited sump pit periodically to remove accumulated
solids, or “sludge,” by scooping it with buckets (Tr. 130, 133, 136). Before the
employees enter it, the pit is drained of excess liquid by using an electric
pump connected to a hose. The pit is cleaned approximately every 6 weeks (Tr.
478).

Suttles
did not consider the sump pit outside the lead man’s office to be a permit-required
confined space (PRCS), but did consider the grease sump pit to be a PRCS (Tr.
352-353). Jackson testified that Suttles’s safety and environmental manager
John (Clarence) Bean told her that Suttles had not evaluated the sump pit as
required by §1910.146(c)(1) (Tr. 141). However, since Suttles classified one of
the sump pits as a PRCS, it must have made some evaluation on which to base its
differentiation between the two pits.

Section
1910.146(b) defines “permit-required confined space” as

a confined space that has one or more
of the following characteristics:

(1)      Contains
or has a potential to contain a hazardous atmosphere;

.
. .

(4)      Contains
any other recognized serious safety or health hazard.

The
cited standard does not require that the employer determine that a PRCS exists,
only that it make an evaluation. Drexel Chemical Co., 17 BNA OSHC 1908,
1910 (No. 94-1460, 1997). Bean testified that Suttles periodically uses a “T
clip” test to test the contents of the cited sump pump. The T clip has
approximately “40 different chemicals that it tests for. It even tests for
metals and those types of things. And, in fact, it tested below detectable
limits on all of those” (Tr. 1260).

The
Secretary has failed to establish a violation of §1910.146(c)(1). She faults
Suttles for failing to classify the cited sump pit as a PRCS, but the focus of
the cited standard is evaluation, not classification. The fact that the
Secretary disagrees with Suttles’s evaluation, or that Suttles may have drawn
the incorrect conclusion from its evaluation, is not proof of noncompliance
with §1910.146(c)(1). Item 3 is vacated.

Item 4: Alleged Serious Violation of §1910.146(j)(2)

Section
1910.146(j)(2) provides:

The employer shall ensure that each
entry supervisor:

.
. .

(2)Verifies, by checking that the
appropriate entries have been made on the permit that all tests have been conducted
and that all procedures and equipment specified by the permit are in place
before endorsing the permit and allowing entry to begin.

Suttles
had a written procedure for verification of the entry permit. Its “Wash Rack
Employee Handbook” states in pertinent part (Exh. C-5, pp. 18-19):

CONFINED
SPACE ENTRY PROCEDURE

.
. .

DEFINITION
OF A CONFINED SPACE:

A
“confined space” is any space open or closed where poisonous gases for flammable
vapors have been present or might accumulate or where a deficiency of oxygen
might occur. These spaces include, but are not limited to, Tanks, Vats, Hoppers
or Bins, that are 5 feet or more in depth from which egress is or may become
restricted.

.
. .

PERMIT

1.No employee can enter any confined
space without a confined space entry permit having been properly executed by
the Supervisor responsible for the area.

2.The permit must be signed by the
Supervisor in charge of mechanics or wash men entering the confined space. The
supervisor will conduct the atmosphere test per prescribed instructions.

.
. .

4.All required signatures must be on
the permit. No initials. The employee(s) entering the confined space are the
last to sign the permit, after completion of all rules have been met.

Exhibits
C-34 and C-35 show that the entry permit for a tank that had previously hauled
“Acid MCAA,” a highly corrosive substance, does not indicate the tank’s
ventilation history. The ventilation history should include the procedures used
to ventilate the tank. The same defect appears on the entry permit for a tank
that had hauled “petroleum distillates,” a substance whose vapors can attack
the respiratory tract and central nervous system if inhaled (Exhs. C-36,
C-37). An entry permit for a tank that had hauled acetone, whose vapors can
cause eye and skin irritation, also showed no ventilation history (Exhs. C-38,
C-39). All three entry permits were signed by supervisor Richard (Lynn) Boggs.

Suttles
argues that the tanks were not PRCSs and therefore it was unnecessary to
complete the entry permit. If the tanks were PRCSs, Suttles argues that any
violations of the cited standard were the result of unpreventable employee
misconduct. Both of these arguments are without merit.

Section
1910.146(b) defines a “confined space” as 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 designed for continuous
employee occupancy.

Suttles’s
tanks meet all of these criteria, and the company does not dispute that the
tanks are confined spaces. Suttles argues, however, that after its tanks are
washed, they are not PRCSs. Section 1910.146(b) defines “permit-required
confined space” as a 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.

The
only one of these characteristics that is applicable to Suttles’s tanks is the
containment or the potential to contain a hazardous atmosphere. Section
1910.146(b) defines “hazardous atmosphere” as “an atmosphere that may expose
employees to the risk of death, incapacitation, impairment of ability to
self-rescue (that is, escape unaided from a permit space), injury, or acute
illness. . .”

Suttles
acknowledges that, pre-wash, its tanks are PRCSs (Tr. 1211-1213). It
established at the hearing that its employees do not enter the tanks in their
pre-washed state. Once the tanks are washed, Suttles contends, the tanks no
longer have the potential to contain a hazardous atmosphere. It is only in the
tanks’ post-wash state that employees are allowed to enter them.

The
purpose of entry permits is to prevent employees from inadvertently entering
confined spaces which may be hazardous. Although employees were not required to
enter pre-wash tanks, they have access to them.

In
Mobile Premix Concrete, 18 BNA OSHC 1010, 1012, footnote 4 (No. 95-1192,
1997), respondent’s employees were required to enter hoppers when they were
empty or when the hopper gates were closed. They were generally not required to
enter full hoppers with open gates, which created a restricted means of exit.
Respondent conceded that the full hoppers were PRCSs, but argued that the empty
hoppers were not. The Review Commission declined to differentiate between full
and empty hoppers, citing employee access to the space as the key to its
classification as a PRCS.

Had
Suttles wished to reclassify Creola’s PRCSs into non-permit spaces, there were
procedures it could have, but did not, follow. Section 1910.146(c)(7) sets
forth the requirements for reclassifying a PRCS to a non-PRCS, including the
documentation and certification process. In the present case, the wash rack
employees had access to the tanks both before and after they were washed. The
tanks must be considered PRCSs in both states. The supervisor was required to
verify the completed entry permit.

Suttles
argues that any failure to comply with §1910.146(j)(2) resulted from
unpreventable employee misconduct. To establish the affirmative defense of
unpreventable employee misconduct, the employer must show that “it had
established a work rule designed to prevent the violation, adequately
communicated those work rules, and effectively enforced those work rules when
they were violated.” Pride Oil Well Service, 15 BNA OSHC 1809, 1816 (No.
87-692, 1992).

Suttles
had a written work rule requiring the supervisor to verify that the entry
permit was completed before he signed it, authorizing entry into a tank.
Suttles contends that Boggs’s failure to make sure that the entry permits were
complete before he signed them constituted unpreventable employee misconduct on
his part. The record makes clear, however, that Suttles did not consider the
tanks to be PRCSs after they were washed. Boggs was following company policy
when he ignored the requirements for PRCSs with regard to the entry permits.
Suttles did not enforce its entry permit work rule with regard to post-wash
tanks. The violation did not result from unpreventable employee misconduct.

The
Secretary has established a violation of the cited standard. Failure to verify
that the appropriate ventilation had been done before an employee entered a
tank could result in serious physical harm. The violation was serious.

Penalty Determination

The
gravity of the violation was moderate. Employees were not required to enter the
tanks prior to their being washed, when the potential for a hazardous
atmosphere was strongest. A penalty of $3,500.00 is assessed.

Item 5(a): Alleged Serious Violation of
§1910.1200(f)(5)

The
Secretary alleges that Suttles committed a serious violation of
§1910.1200(f)(5), which provides:

Except as provided in paragraphs (f)(6)
and (f)(7) of this section, the employer shall ensure that each container of
hazardous chemicals in the workplace is labeled, tagged or marked with the
following information:

(i)Identity of the hazardous
chemical(s) contained therein; and

(ii)Appropriate hazard warnings[.]

The
citation alleges three instances of violation:

(a)Tank Wash Area-- The caustic tank
was not labeled.

(b)Tank Wash Area-- The hose wash tank
did not have a label identifying the chemical inside as caustic.

.
. .

(c)Tank Wash Area-- The 55 gallon drums
containing sludge from the sump pit were not labeled with the chemical identity
and did not have hazard warning labels.

Instance (a)

Jackson
testified that she observed a tank in the tank wash area, which Hollinghead and
Suttles’s lead man Wes Burton told her contained ALGO 2, a caustic substance.
There was no hazardous warning label on the tank (Exh. C-7; Tr. 226-227).
Suttles contends that the tank did not contain a caustic substance, based on
Bean’s testimony that it was a washwater tank (Tr. 1134-1135). However, both Hollinghead and Burton
appeared as witnesses for Suttles and neither one disputed Jackson’s statement
that they had informed her that the tank contained AGOL 2 (Tr. 1283-1342).
Their statements made at the time of the event are credited over Bean’s general
recollection of what he believed the substances should have been.

Instance (b)

Jackson
observed the hose washing tank and was told by Burton that it also contained
AGOL 2. The tank was labeled with a placard indicating that it contained a
corrosive, but did not indicate the specific chemical that was used in the tank
(Tr. 227, 323, 1125-1126).

Instance (d)

Jackson
noted several 55-gallon drums near the fueling bay. Burton told Jackson that
the drums contained the residue (sludge) from the sump pit. The drums were
unlabeled (Tr. 227-228). Suttles contends the sump pit from which the sludge is
taken contains no hazardous substances. The sump pit is used for non-hazardous
materials, while hazardous materials are transferred directly into a “haz/tank”
(Tr. 1072-1073, 1133-1134).

The
Secretary has established a violation with regard to instances (a) and (b). It
is undisputed that Hollinghead and Burton told Jackson that the unlabeled tank
in instance (a) contained ALGO 2, a hazardous substance. The placard
warning of a corrosive substance that labeled the hose wash tank that is the
subject of instance (b) does not meet the requirements of the cited standard.
Section 1910.1200(f)(5)(i) requires that the label on a container specify
the “[i]dentity of the hazardous chemical(s) contained therein.”

The
Secretary failed to establish a violation of the standard with regard to
instance (d). She did not prove that the sludge contained in the drums was
hazardous.

The
violation is serious. Failure to properly label containers of hazardous
substances exposes employees to the possibility of injurious contact with the
substances.

Items 5b and 5c: Alleged Serious Violations of
§§1910.1200(g)(8) and (h)(1)

Section
1910.1200(g)(8) provides:

The employer shall maintain in the
workplace copies of the required material safety data sheets for each hazardous
chemical, and shall ensure that they are readily accessible during each work
shift to employees when they are in their work area(s). (Electronic access,
microfiche, and other alternatives to maintaining paper copies of the material
safety data sheets are permitted as long as no barriers to immediate employee
access in each workplace are created by such options.)

Section
1910.1200(h)(1) provides:

Employers shall provide employee with
effective information and training on hazardous chemicals in their work area at
the time of their initial assignment, and whenever a new physical or health
hazard the employees have not previously been trained about is introduced into
their work area. Information and training may be designed to cover categories
of hazards (e.g., flammability, carcinogenity) or specific chemicals. Chemical
specific information must always be available through labels and material
safety data sheets.

The
first day of Jackson’s inspection at the Creola terminal, October 2, she
learned that an employee had entered a tank at approximately 10:15 that
morning. The tank had previously hauled primer. Jackson asked Hollinghead for
the MSDS for the primer. Hollinghead could not provide the MSDS at that time.
Hollinghead and Bean provided her with the MSDS either the second or third day
of her inspection, although they had it in their possession earlier. Jackson
stated that employee Chris Kiker, who entered the tank, told her that the MSDS
was not available at that time (Exhs. C-18, C-19; Tr. 229-232).

Hollinghead
testified Suttles will not wash a tank before it has possession of the
appropriate MSDS for the last hauled product. He stated that when the driver
dropped off the tank in question, the driver did not have the MSDS for the
primer. Hollinghead called Matlack, the carrier, and requested the MSDS.
Hollinghead stated that after three or four days Matlack provided the MSDS and
Suttles washed the tank. Hollinghead testified that the MSDS for the primer was
located at the tank wash facility immediately before and during the time that
the tank was entered on October 2. He acknowledged that he could not locate the
MSDS when Jackson requested it. Suttles implies that the MSDS was taken as part
of an attempt by certain employees to sabotage Suttles during the OSHA
inspection. After Jackson’s request, Hollinghead again contacted Matlack, who
faxed a copy of the MSDS to Suttles at 4:24 p.m. on October 2 (Exh. C-19; Tr.
488-490, 1295-1296, 1309-1310).

The
Secretary uses the missing MSDS as the basis for both items 5b and 5c. She has
failed to prove these violations by a preponderance of the evidence. Hollinghead
testified credibly that the MSDS was on hand at the time Kiker entered the
tank. Jackson stated that Kiker told her it was not available, but she gave no
details regarding any attempt Kiker made to locate the MSDS. The Secretary has
failed to show that Suttles knew or, with reasonable diligence, could have
known that the MSDS was missing following the tank entry.

Also
of significance is the fact that a replacement MSDS was available at the
worksite the day of the tank entry. Jackson does not state at what time she
asked about the MSDS, but it was after 10:15 a.m. Matlack faxed the MSDS to
Suttles at 4:25 that afternoon. Section 1910.1200(g)(8) specifically provides
for electronic access to the MSDSs “as long as no barriers to immediate employee
access in each workplace are created by such options.” Presumably, had Kiker
wanted to consult the MSDS prior to entering the tank, he could have requested
a copy via fax. The Secretary has not shown that Kiker or any other affected
employee would encounter any barriers to accessing the appropriate MSDS in this
way. Items 5b and 5c are vacated.

Penalty Determination

The
gravity of the violation cited in item 5a is high. Failure to properly label
the containers deprived exposed employees of crucial information. Knowledge of
the specific contents of a container enables employees to seek appropriate
treatment should they become overexposed to the contents. A penalty of $1000.00
is assessed.

Citation No. 2

The Columbus Settlement

Previously,
OSHA compliance officer Tony Lowe had inspected Suttles’s Columbus, Ohio,
terminal and the Secretary subsequently issued two citations to Suttles on
February 28, 1996. The Secretary and Suttles entered into a settlement
agreement on November 14, 1996, which was approved by Judge Paul Brady on
November 26, 1996 (Exh. C-71). The Secretary uses the Columbus citations as the
basis for alleging the repeat violations found in citation No. 2 of Docket No.
97-546.

Upon
receipt of the February 1996 citations, Suttles hired Richard Hayes, a former
OSHA safety supervisor who now operates a consulting firm, Hayes Environmental
Services, Inc. Suttles asked Hayes to accomplish three objectives with regard
to its Columbus terminal: (1) determine whether employees were put at risk by
entering the tanks after completion of the wash process, (2) determine
whether the wash process eliminated any potential danger to these employees,
and (3) establish a working protocol that would be acceptable to OSHA’s
Columbus area office (Exh. R-2, p. 9; Tr. 830).

Hayes
selected Ed Foley, a certified industrial hygienist, to conduct the required
testing (Tr. 834). Hayes and Foley worked with chemist Dr. John Ball to
group the chemicals most commonly hauled in tanks washed at the Columbus
terminal. They examined MSDSs for products that had been hauled in tanks washed
at the Columbus facility during March and June 1996 (Exh. R-2, p. 10; Tr.
852, 878-879).

Hayes,
Foley, and Dr. Ball grouped the selected chemicals according to their physical
properties so that testing for representative chemicals in each group would
produce results representative of the presence of each substance in the group.
The chemicals were grouped into four categories: (1) miscellaneous organics,
(2) alcohols, (3) acids/caustics/inorganics, and (4) herbicides. The Columbus
testing protocol called for pre- and post-wash and ventilation atmospheric
testing of at least two tanks for each of the four categories of chemicals
(Exh. R-2; Tr. 1047).

Foley
tested each selected tank with the dome lid opened for atmospheric oxygen,
carbon monoxide, and flammable vapors and gases. The atmosphere was tested at a
point approximately 3 feet vertical from the dome lid in the approximate
horizontal center of each tank (Exh. R-2). After the initial testing for
oxygen, the dome lid was closed and all openings on the tank were completely
sealed (Tr. 889). Then all the tanks were tested to detect the atmospheric
concentrations of specific chemicals comprising the particular product that had
last been hauled in the tank and the levels of volatile organic compounds
(Exhs. R-2; Tr. 889, 1003).

Foley
and his assistant took approximately 40 samples of the tanks (one per tank) for
the levels of toxicities according to the groups. The samples were submitted to
an accredited lab. The post-wash results were all below OSHA’s permissible
exposure limit (PEL), with the exception of a result for tank ST86. Foley
concluded that this exception was the result of a lab error, because the
post-wash reading was higher than the pre-wash reading. When resampled, tank
ST86 yielded a result below the PEL. Hayes concluded from these tests that the
post-wash tanks at the Columbus terminal were not PRCSs (Exh. R-2; Tr. 888-901,
842-843, 867-868).

OSHA’s
Columbus area office approved Suttles’s testing protocol and accepted the
results of the testing. At the time of the hearing, OSHA no longer required
toxicity testing or additional PPE at Suttles’s Columbus terminal (Tr. 988-989,
1008, 1351-1356).

The
Secretary notes that the Creola tanks were used to haul some chemicals that
were not tested for in Columbus (Tr. 600, 604). Suttles concedes this point but
contends that any chemical hauled in a tank to the Creola terminal will fall
into one of the four groupings created by Hayes, Foley, and Dr. Ball, and that
the washing procedures in both terminals are essentially the same. Suttles
argues that the testing performed in Columbus establishes that its post-wash
tanks company-wide are not PRCSs and, therefore, there is no need to comply
with §1910.146 regarding testing in Creola.

The
Secretary maintains that, in order for the test results obtained in Columbus to
be relevant to the Creola terminal, the engineering controls used to minimize
or eliminate the atmospheric hazards must be the same at both terminals.
“Otherwise,” OSHA industrial hygienist Emil Golias testified, “the tests are
invalid” (Tr. 603).

Dr.
Ball was a witness at the hearing. He assumed that the test results obtained in
Columbus were valid for the Creola plant based on his understanding that
Suttles used a specific procedure for both terminals regarding how long the
tanks were spun, how much wash solution was used, and how long the tanks were
ventilated (Tr. 851, 1086-1088). The record establishes, however, that the
washing procedures varied between the two terminals.

The
tanks in Columbus were spun with 300 gallons of water and then ventilated prior
to testing. The estimates for the amount of ventilation time ranged from 5 to
25 minutes (Exh. R-2, p. 26; Tr. 851). At the Creola plant, the decision
regarding how long to spin the tanks was left to the individual tank washers
(Tr. 1338, 1341). The Creola tanks were ventilated for 15 to 20 minutes
(Tr. 64). The washing process used at the Columbus terminal left the tanks
“sterile,” with no visible residue on the tank walls (Tr. 948-951, 965). Many
of the tanks at the Creola terminal contained residue which required scouring
and scrubbing to remove (Exhs. C-18, -21, -32, -40, -48, -50; Tr. 1317).
The fact that the Columbus washing process left the tanks “sterile,” while the
Creola washing process left many tanks with visible residue that required entry
for scrubbing indicates that the washing processes for the two terminals
differed substantially.

The
record does not support Suttles’s assertion that the tanks at the Creola
terminal were not PRCSs. The test results that established the Columbus tanks
were not PRCSs have no direct applicability to the Creola terminal.

Suttles
makes a number of arguments as to why the Secretary cannot cite it for repeat
violations of §1910.146, all of which are based on the presumption that the
Columbus testing applied to the Creola tanks. Suttles contends OSHA cannot cite
as a repeat violation the employer’s adherence to an OSHA approved abatement
method; that Suttles lacked knowledge of the alleged violations; that
equitable, judicial, and collateral estoppel preclude the repeat citation; that
classifying the tanks as PRCSs violates Suttles’s due process rights; and that
compliance with the cited standards is infeasible. All of these arguments are
without merit and are rejected.

Suttles’s
arguments are valid only if OSHA represented to the company that the Columbus
testing applied to the Creola terminal or if it were reasonable for Suttles to
assume that the Columbus testing applied. The record is clear, however, that
neither of these conditions obtained.

OSHA
compliance officer Tony Lowe explained the terms of the Columbus settlement
agreement between the Secretary and Suttles (Tr. 1354-1355)(emphasis added):

My understanding of it was that the
trailers that were involved in the sampling to show that the company did have
to show there was no potential for exposures to certain chemicals that they
deal with regularly on the trailers. My understanding was that OSHA here in
Columbus was not going to require initial monitoring for entry into those
trailers for those specific toxins that the company sampled for.

Now, for any new trailer or new
chemical that may be involved, then there was going to have to be some
additional monitoring done either to know there was no potential exposure or to
do initial monitoring every time they entered the trailer.

. . .

[Additional testing would be
appropriate] if conditions would have changed in any way where the trailers
were not being cleaned as efficiently or the same format, that there was a
probability of exposure to injury to the employee.

Lowe
states manifestly that the waiving of the monitoring requirement applies only
in the Columbus terminal and only to those chemicals that were actually tested.
Hayes, who was hired by Suttles, was asked at the hearing whether he believed
the test results for the Columbus terminal were applicable to the Creola
terminal. Hayes responded, “I can’t comment because, again, I don’t know
anything about Suttles Creola. I only know about the Columbus process” (Tr.
864).

OSHA
did not represent to Suttles that the monitoring requirement could be waived in
any terminal other than the Columbus terminal. Suttles received no written or
verbal indication that the testing done in Columbus applied to any of the
company’s other terminals. The executed settlement agreement between the
parties makes no mention of a company-wide waiver (Exh. C-71).

It
was not reasonable for Suttles to assume that compliance with §1910.146 was not
required in the Creola plant. Suttles’s citation to Miami Industries, 15
BNA OSHC 1258 (No. 88-671, 1991), is inapposite here. In Miami , OSHA
compliance officer Barrett inspected the company’s steel tubing manufacturing
plant. The Secretary subsequently cited Miami for failing to adequately guard a
tube mill machine, thus exposing employees to hand injuries. Miami devised its
own guard, to which Barrett gave his express approval. Ten years and eight OSHA
inspections later, the Secretary again cited Miami for failing to adequately
guard the tube mill machine after another compliance officer found that the
guard Miami had devised did not meet the requirements of the machine-guarding
standard. Miami cried foul and the Review Commission agreed, vacating the citation
based on its finding “that OSHA’s enforcement actions deprived Miami of fair
notice that OSHA considered its existing guarding device to be inadequate and
further find[ing] that, under the circumstances in this case, the Secretary is
estopped from enforcing the citation to the extent the citation alleges that”
the guard designed by Miami did not protect the affected employees. Id. at 1261.

The
Review Commission in Miami emphasized that the company was entitled to
rely upon OSHA’s “regular and consistent pattern of conduct over a 10-year
period” in which OSHA first approved and then never cited the guard designed in
response to OSHA’s initial inspection. Id. at 1264. The abatement at
issue consisted of one guarding mechanism on one machine in one facility. Once
the guard was installed, the working conditions stayed constant for a decade.
The guard that Barrett approved in 1978 was the same guard that the Secretary
cited in 1988.

The
situation in the present case is distinguishable from that in Miami. The
present case involves two separate facilities in which the chemicals handled
and the washing procedures used differ in significant ways. OSHA’s approval of
the testing protocol devised by Hayes and Foley was specific to the Columbus
terminal. Compliance officer Lowe stated that if any changes were made in the
chemicals hauled or the washing procedure used within the Columbus facility,
Suttles would have to start monitoring again. There was no “pattern of conduct”
by OSHA that would give rise to a reasonable belief on Suttles’s part that
OSHA’s narrow approval of the Columbus testing translated into a company-wide
release from compliance with the confined space standard for its post-wash tank
cars.

The
Columbus testing did not eliminate the possibility that the Creola tanks were
PRCSs. The citations issued to Suttles for violations of §1910.146 at its
Columbus terminal may be used as a basis for a repeat classification for the
items contained in citation No. 2.

Item 1a: Alleged Repeat Violation of §1910.146(d)(2)

The
Secretary alleges that Suttles committed a repeat violation of §1910.146(d)(2),
which provides:

Under the permit space program required
by paragraph (c)(4) of this section, the employer shall:

.
. .

(2)      Identify
and evaluate the hazards of permit spaces before employees enter them[.]

The
citation alleges:

For employees entering truck tanks, the
employer did not evaluate the corrosive contact, or skin absorption hazards of
chemicals such as, but not limited to: stoddard solvent, sodium hydroxide,
sulfuric acid, calcium carbonate, ethylene glycol, Atrazine, Metolachlor,
xylene, acrylic latex, formaldehyde, isopropylamine, phenol, sodium bisulfite,
nitrobenzene, methanol, and resin before employees entered confined spaces.

At
the hearing, the Secretary moved to amend this item to allege that Suttles had
also failed to evaluate the atmospheric hazards of the tanks entered (Tr.
1363). The undersigned held the Secretary’s motion in abeyance and asked that
the parties address this issue in their post-hearing briefs, which they have
done (Tr. 1364).

The
Secretary argues that amending the citation will not prejudice Suttles. She
claims that the parties fully litigated the two factual contentions that are
the basis for the proposed amendment: (1) that the only pre-entry evaluation of
hazards that Suttles conducted for toxic vapors and gases was the Columbus testing,
and (2) the Secretary believes that the pre-testing for flammable vapors and
gases and for oxygen at Creola was not adequate to evaluate the hazards inside
the tanks prior to entry.

Suttles
argues that it would be unduly prejudiced by amending item 1a. The company
cites many cases holding that amendments which would unduly prejudice the
respondent should be denied, but offers no specific reason why Suttles would be
prejudiced by the amendment. Suttles does not argue that the issue of atmospheric
testing was not litigated, only that the Secretary should not have waited until
the hearing to move to amend the citation.

Under
Federal Rule of Civil Procedure 15, amendments are to “freely” given in
circumstances such as these. The Secretary’s motion to amend the citation to
allege that Suttles failed to evaluate the atmospheric hazards of the tanks is
granted.

Jackson
testified that she reviewed Suttles’s tank entry permits and determined that
they did not show the appropriate pre-entry identification and evaluation of
the skin contact and absorption hazards that potentially existed in the tanks
(Tr. 232-240). No testing for toxic vapors was done on any of the Creola tanks
(Tr. 213). The Secretary alleges that the testing Suttles conducted for oxygen
content and flammable vapors was not properly done, but that allegation, as
determined in the next section, was not proven.

Suttles
argues that it identified and evaluated the hazards of the tanks prior to
employee entry using “existing records, knowledge of the process, Dr. Ball’s
expertise, and testing in Columbus” (brief, p. 40). This decision has already
addressed the nonapplicability of the Columbus testing to the Creola terminal.
Suttles’s reliance on existing records, knowledge of the process and Dr. Ball’s
expertise is too general to constitute the identification and evaluation
contemplated by §1910.146(d)(2).

The
Secretary identified a number of instances where Suttles’s employees entered
tanks that had last hauled hazardous substances but for which the tank entry
permits indicate that adequate evaluations of the hazards were not done. In
each instance, the employees were not required to wear PPE appropriate to the
hazards listed in the MSDSs for the hazardous substances. Summarized, the
instances were as follows:

Tank Entry Permit

Date of Entry

Tank Entered

Last Product Hauled

MSDS

Hazard(s)

1.

C-18

10/2/96

Matlack #1769

ArmorChem 2000 Gray Primer

C-19

inhalation injuries

2.

C-21

10/1/96

Suttles #ST108

Plastic Liquid

C-28

inhalation injuries

3.

C-30

10/1/96

McKenzie #5073040

Isopropylamine

C-31

inhalation injuries - corrosive to skin
& eyes

4.

C-32

10/2/96

Superior #1534

Methyl Isobutyl Ketone

C-33

inhalation injuries

5.

C-34

10/2/96

Suttles #ST440

Acid MCAA

C-35

inhalation injuries - chemical burns to
eyes

6.

C-36

10/3/96

Suttles #ST313

Petroleum Distallates

C-37

inhalation injuries

7.

C-38

10/4/96

Suttles #ST465

Acetone

C-39

inhalation injuries - chemical burns to
eyes

8.

C-40

10/14/96

Suttles #ST115

Bicep II Lite

C-41

skin & eye irritation

9.

C-42

11/8/96

First Chem

543001-0

Mixture of Toluene, Aniline, and
Nitrobenzene

C-43 (Aniline)

C-44 (Toluene)

inhalation injuries

inhalation injuries

10.

C-46

1/23/97

Suttles #ST429

PTOL Paratoluidine

C047

inhalation injuries - toxic if absorbed
through skin

11.

C-48

2/14/97

Suttles #ST117

Toluene Diisocyanate

C-49

inhalation injuries - skin contact injuries

12.

C-50

3/7/97

Suttles #ST76

Acetonitrile

C-51

inhalation injuries - skin absorption
injuries

13.

C-52

10/1/96

Suttles #ST395

Heptane

C-53

skin absorption injuries

14.

C-54

C-55

C-56

C-57

C-58

10/3/96

10/3/96

10/3/96

10/4/96

10/6/96

Suttles #ST217

Suttles #ST86

Suttles #ST458

Suttles #ST69

Suttles #ST52

Black Liquor

C-59

can cause burning to skin and eyes

15.

C-60

C-61

C-62

C-63

C-64

C-65

C-66

9/27/96

10/1/96

10/1/96

10/1/96

10/2/96

10/2/96

10/3/96

Slay #1279

TRI #48-1462

MTL #67159

ST #25

ST #243

Slay #1639

Suttles #ST341

Caustic

C-67

inhalation injuries - skin & eye
injuries

16.

C-68

10/1/96

McKenzie S073313

Isophorone

C-69

inhalation injuries -

skin & eye injuries

The
Secretary has established a violation of §1910.146(d)(2) with regard to testing
for skin contact and absorption and for toxic vapors. Suttles did not identify
and evaluate the hazards presented by the products last hauled in the tanks its
employees were required to enter.

The
Secretary alleges that the violation was a repeat. The Secretary issued a
citation to Suttles on October 12, 1995, for violating §1910.146(d) at its
Columbus terminal (Exh. C-70, item 2 of citation No. 1). Suttles did not
contest the citation and entered into an informal settlement agreement on
October 27, 1995, in which it agreed to pay a reduced penalty for the violation
(Exh. C-70, p. 1).

Under
§10(a) of the Occupational Safety and Health Act of 1970 (Act), an uncontested
citation becomes a final order of the Commission within 15 days of its receipt
by the employer. A violation is considered a repeat violation “if, at the time
of the alleged repeat violation, there was a Commission final order against the
employer for a substantially similar violation.” Potlatch Corp., 7 BNA
OSHC 1061, 1063 (no. 16183, 1979). “A prima facie case of substantial
similarity is established by a showing that the prior and present violations
were for failure to comply with the same standard.” Superior Electric
Company, 17 BNA OSHC 1635, 1638 (No. 91-1597, 1996).

The
Secretary has established that Suttles committed a repeat violation of
§1910.147(d)(2).

Item 1b: Alleged repeat violation of §1910.146(d)(3)

Section
1910.146(d)(3) provides:

Under the permit space program required
by paragraph (c)(4) of this section, the employer shall:

(3)Develop and implement the means,
procedures, and practices necessary for safe permit safe 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;

(iv)Providing pedestrian, vehicle, or
other barriers as necessary to protect entrants from external hazards; and

(v)Verifying that conditions in the
permit space are acceptable for entry throughout the duration of an authorized
entry.

Instance
(a) of the citation alleges that Suttles violated the cited standard by
allowing employees to enter tanks in which “[o]nly pre-entry testing (using an
uncalibrated combustible gas meter) was conducted to verify conditions were
acceptable throughout the duration of authorized entry.”

Suttles
used a Safe T Mate 200 gas meter to test for oxygen and flammable vapors. The
company had been using the Safe T Mate meter for approximately one year prior
to Jackson’s inspection. The Safe T Mate meter had not been calibrated in that
time and Suttles did not have a calibration kit on site (Tr. 245-246). The Safe
T Mate 200 owner’s manual provides that the meter should be calibrated once
every three months (Exh. C-20, p. 6-3).

Jackson
assumed from these facts that the Safe T Mate meter was not calibrated. Her
position was, “If there was no calibration kit on site, it would not be
properly calibrated” (Tr. 400).

The
cited standard refers to paragraph (c)(4) of §1910.146. That paragraph provides
that the PRCS program that the employer develops and implements shall comply
with “this section.” Section 1910.146(c)(5)(ii)(C) provides:

Before an employee enters the space,
the internal atmosphere shall be tested, with a calibrated direct-reading
instrument . . .

Approximately
one week after Jackson’s inspection, a representative from Safe T Mate came to
the Creola terminal and checked the calibration of the Safe T Mate 200 meter.
He found the calibration to be accurate (Tr. 1198, 1247-1248, 1262).

Based
on the fact that Suttles had failed to recalibrate the gas meter in accordance
with its owner’s manual there is a presumption the the gas meter was not
properly calibrated at the time of the inspection. However, Suttles rebutted
that presumption with the results of the Safe T Mate representative’s test of
the gas meter following the OSHA inspection. The record does not establish that
Suttles violated the cited standard in instance (a).

Instance
(b) of the citation alleges that Suttles violated §1910.146(d)(3) by allowing
employees to enter tanks in which:

Testing for oxygen and the LEL was only
conducted at one location (the dome lid) in the tank trucks prior to entry. The
employer did not have a probe or other suitable device to measure the
atmospheric environment of other locations within the tank trucks to ensure
employees were not entering into a stratified atmosphere.

Suttles
tested the atmosphere of a tank by lowering the gas detector through the dome
lid. Suttles did not use a probe (Tr. 247). Jackson was concerned that the
atmosphere in the tank could become stratified, with pockets of
heavier-than-air gas going undetected because the atmosphere was tested only at
the dome lid (Tr. 248-249). Industrial hygienist Golias recommended testing at
several locations within a single tank (Tr. 596).

APPENDIX
B TO §1910.146--PROCEDURES FOR ATMOSPHERIC TESTING provides:

(4) Testing stratified atmospheres. When
monitoring for entries involving a descent into atmospheres that may be
stratified, the atmospheric envelope should be tested a distance of
approximately 4 feet (1.22 m) in the direction of travel and to each side. If a
sampling probe is used, the entrant’s rate of progress should by slowed to
accommodate the sampling speed and detector response.

Testing
with a probe in more than one location is not required for every PRCS, only
those with “atmospheres that may be stratified.” Suttles’s experts Foley and
Dr. Ball testified that the atmospheres in the tanks were not stratified due to
Suttles’s ventilation procedure (Tr. 985-986, 994-996, 1036-1038, 1058). While Golias
stated that he believed the tanks’ atmospheres could be stratified, he conceded
that he did not know whether or not “there is any stratified atmosphere in any
tank at Suttles” (Tr. 676).

The
Secretary has failed to establish that the atmospheres of the tanks at the
Creola terminal might have been stratified. Without such proof, the Secretary
cannot impose an additional requirement to test with a probe in several
locations within the tanks. Suttles did not violate the standard as described in
instance (b).

Instance
(c) alleges that “[t]esting for the LEL was not correctly performed. Employees
were allowed to enter the confined spaces if the combustible gas meter gave a
reading of less than or equal to 10% of the LEL of the chemical being
evaluated.”

Jackson
testified that Hollinghead and the leadman responsible for using the Safe T
Mate gas meter were unable to determine what the acceptable LEL should be when
referring to an MSDS. She believed that to determine whether the level of
flammable vapors that exist inside a tank are in excess of the LEL of a
product, the employee should refer to the MSDS for that product, determine the
LEL, and then determine whether one-tenth or less of that concentration of
flammable vapor exists in the tank. According to Jackson, Suttles allowed
employees to enter PRCSs when the gas meter indicated a reading of 10% or less,
regardless of the product (Tr. 250-251). Suttles established at the hearing that
Jackson’s procedure for ascertaining the LEL applies when using the older model
of gas meters. The Safe T Mate meter does not need to be recalibrated for each
new substance tested. The Safe T Mate 200 gas meter is designed to test for the
LEL of the atmosphere regardless of the substance (Tr. 1062-1066).

The
Secretary has failed to establish that its testing in the tanks for the LEL was
incorrectly performed as alleged in instance (c). Suttles demonstrated that the
Safe T Mate gas meter tested correctly for the LEL.

Instance
(d) alleges that Suttles “did not ensure/enforce that the attendant and the
entrant wore the personal protective equipment designated in the company’s
confined space program during permit required confined space entry.”

Jackson
testified that Suttles did not require employees entering the tanks to wear
chemically impervious suits. Suttles had rain suits and Tyvek suits available
at the site, but did not require employees to wear them (Tr. 252-253).

Neither
§1910.146(d)(3) nor the section it references, §1910.146(c)(4), directly
addresses PPE. That issue is explicitly addressed in §1910.146(d)(4), which the
Secretary also charges Suttles with violating under item 1c of citation no. 2.
The issue of PPE will be discussed in the next section under the more specific
standard. The Secretary established no violation under instance (d) of
item 1b.

Instance
(e) alleges that “[m]echanical ventilation was not used when necessary to
remove potential atmospheric hazards in tank trucks.”

Suttles
ventilated the tanks for 15 to 20 minutes after the spinning process by opening
the dome lids and the capped openings and inserting a corrugated ventilation
tube. No mechanical means of ventilation was used (Tr. 80-81, 254).

Section
1910.146(c)(5)(ii)(E) requires “continuous forced air ventilation.” Suttles
relies upon its testing in Columbus to establish that mechanical ventilation
was not required in its Creola tanks. As previously noted, the Columbus test
results are inapplicable to the Creola tanks. The Secretary has established a
repeat violation with respect to instance (e) of item 1b (Exh. C-70).

Item 1c: Alleged Repeat Violation of §1910.146(d)(4)

The
Secretary alleges that Suttles committed a repeat violation of §1910.146(d)(4),
which provides:

Under the permit space program required
by paragraph (c)(4) of this section, the employer shall:

.
. .

(4)Provide the following equipment
(specified in paragraphs (d)(4)(i) through (d)(4)(ix) of this section) at no
cost to employees, maintain that equipment properly, and ensure that employees
use that equipment properly:

(i)Testing and monitoring equipment
needed to comply with paragraph (d)(5) of this section;

(ii)Ventilating equipment needed to
obtain acceptable entry conditions;

(iii)Communications equipment
necessary for compliance with paragraphs (h)(3) and (i)(5) of this section;

(iv)Personal protective equipment
insofar as feasible engineering and work practice controls do not adequately
protect employees;

(v)Lighting equipment needed to enable
employees to see well enough to work safely and to exit the space quickly in an
emergency;

(vi)Barriers and shields as required
by paragraph (d)(3)(iv) of this section;

(vii)Equipment, such as ladders,
needed for safe ingress and egress by authorized entrants;

(viii)Rescue and emergency equipment
needed to comply with paragraphs (d)(9) of this section, except to the extent
that the equipment is provided by rescue services; and

(ix)Any other equipment necessary for
safe entry into and rescue from permit spaces.

The
Secretary charges Suttles with failing to provide its tank wash employees with four
types of equipment: a gas meter calibration kit (instance (a)), air horns
(instance (b)), impervious suits (instance (d)), and respirators (alternative
instances from items 2a and 2b of citation no 1).

The
facts relevant to instance (a), regarding the calibration kit for the Safe T
Mate 200 gas meter, are set out in the previous section. It is undisputed that
Suttles did not have a calibration kit for its gas meter on site and that it
had not calibrated the meter within the year prior to Jackson’s inspection.

Section
1910.146(d)(4)(i) requires the employer to provide its employees with
“[t]esting and monitoring equipment needed to comply with paragraph (d)(5) of
this section.” Paragraph (d)(5)(i) requires employers to “[t]est conditions in
the permit space to determine if acceptable entry conditions exist before entry
is authorized to begin. . .” To perform the required testing, the employees
must have equipment that will give accurate readings. Equipment must be
maintained according to the manufacturer’s specifications in order to ensure
accurate results.

The
owner’s manual for the Safe T Mate 200 gas meter states (Exh. C-20, p. 7-1):

▲
WARNING

ACCURATE CALIBRATION OF THE SAFE T MATE
IS ESSENTIAL TO ENSURE CORRECT READINGS OF GAS CONCENTRATION. INCORRECT
CALIBRATION CAN IMPAIR THE SAFE T MATES PERFORMANCE AND PLACE YOU IN
UNNECESSARY DANGER IF HAZARDOUS CONDITIONS EXIST.

The
manual also states (Exh. C-20, p. 6-3) (emphasis in original): Calibrate the
Safe T Mate at least once every three months. Some applications may require a
more frequent calibration schedule.

Compliance
with §1910.146(d)(4) requires that the employer’s testing equipment be
reliable. Although the Safe T Mate representative who tested the gas meter
after Jackson’s inspection determined that the meter was correctly calibrated,
Suttles is not excused from complying with the cited standard. A year’s lapse
between calibrations could result in inaccurate readings that could lead
unsuspecting employees into tanks with oxygen-deficient or flammable
atmospheres. The Secretary has established a violation with regard to instance
(a).

Instance
(b) alleges that employees were not provided with air horns to communicate with
each other during tank entries. Leadman Burton told Jackson that the tank wash
employees who entered tanks used air horns to summon help in the event of an
emergency. When Jackson asked to see the air horns, Burton was unable to locate
them (Tr. 256-257).

Suttles
suggests that the missing air horns were taken during Jackson’s inspection as
an act of sabotage by disgruntled employees. Hollinghead testified that the air
horns disappeared during Jackson’s inspection, that he replaced them, and the
next day they had disappeared again. Several employees, whom Suttles
characterizes as disgruntled, had access to the area where the air horns were
kept (Tr. 1298-1299). Bean corroborated Hollinghead’s testimony (Tr.
1262-1263).

The
Secretary has failed to establish that Suttles knew, or with the exercise of
reasonable diligence, could have known, that the air horns were not available
for use.

Instance
(c) and the alternative instances from item 2a and 2b of citation no. 1 allege
that Suttles did not ensure that employees entering tanks wore the impervious
suits or the supplied air respirators that the company provided. Employees were
permitted to enter the tanks wearing only boots and gloves as PPE (Tr. 238-239,
258-259). Section 1910.146(d)(4)(iv) requires PPE “insofar as feasible
engineering and work practice controls do not adequately protect employees.”
Employees were entering PRCSs that had been used to haul toxic, corrosive
substances. The employer is allowed to dispense with PPE to the extent that its
engineering and work practice controls protect employees from exposure to the
hazardous substances. Suttles claims that its washing and ventilating
procedures eliminate the need for employees to wear PPE. Suttles, however,
performed no post-wash testing that would demonstrate the elimination of the
toxic and corrosive hazards. The Columbus testing is not conclusive for the
Creola tanks. The Secretary has established violations of §1910.146(d)(4) with
regard to Suttles’s failure to require its employees to wear impervious suits
and supplied air respirators (Exh. C-70).

Item 1d: Alleged Repeat Violation of §1910.146(d)(14)

Section
1910.146(d)(14) provides in pertinent part:

[T]he
employer shall:

.
. .

(14)Review the permit space program,
using the canceled permits retained under paragraph (e)(6) of this section
within 1 year after each entry and revise the program as necessary, to ensure
that employees participating in entry operations are protected from permit
space hazards.

Jackson
testified that Bean told her that the canceled permits were not reviewed
annually (Tr. 260). Bean testified that he had reviewed and updated the
permit space program in March 1996, approximately seven months prior to
Jackson’s inspection (Tr. 1201). Pages 20-A and 20-B of Suttles’s “Wash Rack
Employee Handbook” is a sample tank entry permit. The bottom right hand corner
of the sample states “Revised 3/8/96” (Exh. 5).

The
standard specifically requires the employer to review the permit space program
“using the canceled permits.” Bean’s testimony regarding his review is somewhat
ambiguous as to whether he used the canceled permits (Tr. 1201):

Q.:Now, Citation 2, Item 1(d), this has
to do with not comparing your program to the permits within the preceding year,
that’s 1910.146(d)(14). Had you updated your program recently prior to Ms.
Jackson’s inspection?

Bean:Yes, we had. We had updated the
entry procedure.

Q.:And how recently prior to Ms.
Jackson’s inspection had you done that?

Bean:I believe it was the Month of
March of ‘96.

Q.:And, whatever the date is, it would
be reflected on 28, Page 20-A and B of CX-5?

Bean: Yes.

Q.:      And,
in doing that, did you review the program at that time?

Bean: Yes,
to make those changes.

Bean
never specifically stated that he used the canceled permits in his review of
the permit program, but it could be argued that when he answered affirmatively
to the first question quoted, which mentions the canceled permits, he implied
that he used the permits in his review. The Secretary did not cross-examine
Bean on this point.

It
is the Secretary’s burden to prove her case by a preponderance of the evidence.
She has failed to establish that it was more likely than not that Suttles did
not take the canceled permits into consideration in reviewing its permit space
program.

Penalty Determination

The
gravity of item 1a is high. Without an identification and evaluation of the
hazards inside the tanks, Suttles exposed its employees to potentially toxic or
corrosive chemicals. The gravity of instance (e) of item 1b is moderate. While
Suttles failed to use continuous forced air ventilation, it did routinely provide
some ventilation for the tanks. The gravity of the violations under item 1c
involving the calibration kit, the impervious suits and the respirators is also
moderate. Employees were allowed to enter the tanks only after the tanks had
been washed.

In
arriving at a grouped penalty for the repeat violation, it is also considered
that only one of the instances of alleged violation for item 1b and two for
item 1c were valid. It is determined that a total penalty of $7,630.00 is
appropriate for items 1a, 1b, and 1c.

Item 2a: Alleged Repeat Violation of
§1910.146(d)(5)(i)

Section
1910.146(d)(5)(i) provides in pertinent part:

[T]he employer shall:

. . .

(5)Evaluate permit space conditions as
follows when entry operations are conducted:

(i)       Test
conditions in the permit space to determine if acceptable entry conditions
exist before entry is authorized to begin[.]

Appendix
B to §1910.146 refers to this testing as “verification” testing, done to verify
that the hazards previously identified and evaluated in accordance with
§1910.146(d)(2) have actually been eliminated or controlled. Suttles stipulated
that it did not test for toxicity at its Creola terminal, either to evaluate or
to verify the hazardous atmospheres inside its tanks (Tr. 213). Suttles relies,
once again, on the Columbus testing as evidence it complied with the cited
standard. That argument is, once again, rejected.

The
Secretary has established that Suttles committed a repeat violation of
§1910.146(d)(5)(i) (Exh. C-70).

Item 2b: Alleged Repeat Violation of
§1910.146(d)(5)(ii)

Section
1910.146(d)(5)(ii) provides:

[T]he employer shall:

.
. .

(5)Evaluate permit space conditions as
follows when entry operations are conducted:

.
. .

(ii)Test or monitor the permit space as
necessary to determine if acceptable entry conditions are being maintained
during the course of entry operations[.]

The
Secretary contends that monitoring during the employee entry was necessary
because of the possibility of a tank having a stratified atmosphere. As
discussed under instance (b) of item 1b of this citation, the Secretary failed
to prove that a stratified atmosphere was possible.

Item
2b is vacated.

Penalty Determination

The
gravity of item 2a is moderate. Although Suttles conducted no verification
testing, employee entry into the tanks was only allowed post-wash. A penalty of
$12,000.00 is assessed.

Item 3: Alleged Repeat Violation of §1910.146(f)

The
Secretary alleges Suttles committed three instances of repeat violations of
§1910.146(f), which provides:

The entry permit that documents
compliance with this section and authorizes entry to a permit space shall
identify:

(1)      The
permit space to be entered;

(2)      The
purpose of the entry;

(3)      The
date and the authorized duration of the entry permit;

(4)The authorized entrants within the
permit space, by name or by such other means (for example, through the use of
rosters or tracking systems) as will enable the attendant to determine quickly
and accurately, for the duration of the permit, which authorized entrants are
inside the permit space;

NOTE: This requirement may be met by
inserting a reference on the entry permit as to the means used, such as a
roster or tracking system, to keep track of the authorized entrants within the
permit space.

(5)      The
personnel, by name, currently serving as attendants;

(6)The
individual, by name, currently serving as entry supervisor, with a space for
the signature, or initials of the entry supervisor who originally authorized
entry;

(7)      The
hazards of the permit space to be entered;

(8)The measures used to isolate the
permit space and to eliminate or control permit space hazards before entry;

NOTE: Those measures can include the
lockout or tagging of equipment and procedures for purging, inerting,
ventilating, and flushing permits.

(9)      The
acceptable entry conditions;

(10)The results of initial and
periodic tests performed under paragraph (d)(5) of this section, accompanied by
the names or initials of the testers and by an indication of when the tests
were performed;

(11)The rescue and emergency services
that can be summoned and the means (such as the equipment to use and the
numbers to call) for summoning those services;

(12)The communication procedures used
by authorized entrants and attendants to maintain contact during the entry;

(13)Equipment, such as personal
protective equipment, testing equipment, communications equipment, alarms
systems, and rescue equipment, to be provided for compliance with this section;

(14)Any other information whose
inclusion is necessary, given the circumstances of the particular confined
space, in order to ensure employee safety; and

(15)any
additional permits, such as for hot work, that have been issued to authorize
work in the permit space.

Suttles’s
entry permit form has two sides (Exhs. C-5, pp. 20-A and 20-B; C-11). The
citation alleges three instances in which only the front side of the form was
filled out for a tank entry, resulting in the omission of the following
information:

[T]he name of the authorized entrant;
the current attendant; the hazards of the permit space to be entered; the
measures to eliminate or control hazards before entry; the results of periodic
testing; rescue and emergency services that can be summoned and the means for
summoning those services; communication procedures between entrants and
attendants; equipment to be provided for compliance with this section such as
respiratory protection, protective clothing; and other relative information
necessary to ensure employee safety during entry.

The
citation alleges the entry permits were not completely filled out for entries
into tank #825 on October 1, 1996 (instance (a)), tank #1769 on October 2, 1996
(instance (b)), and tank #ST108 on October 2, 1996 (instance (c)). The
Secretary adduced entry permits for the tank entries referred to in instances
(b) and (c) (Exhs. C-18 and C-21, respectively). No documentary evidence was
presented for instance (a).

Suttles
concedes that it did not fill out the back side of the form for several of its
tank entries. Its form is based on Appendix D to §1910.146. Suttles added a
paragraph to the front of its form not found in Appendix D (Exh. C-11):

If conditions are in compliance with
the above requirements and there is no reason to believe conditions may change
adversely, then proceed to the Permit Space Pre-Entry Check List. Complete and
post with permit. If conditions are not in compliance with the above
requirements or there is reason to believe that conditions may change
adversely, proceed to the Entry-Check-List portion of this permit.

Section
1910.146(f) is clear in its requirements for the entry permits. Suttle’s permit
directed employees not to bother to provide information which the standard
required to be included. No provision is made for the exemptions created by the
added paragraph. Suttles is not at liberty to alter the requirements of the
standard to suit its purposes.

The
Secretary has established a violation of the cited standard. The Secretary
issued a citation to Suttles on February 28, 1996, citing the company for,
among other things, a violation of §1910.146(f). Suttles and the Secretary
entered into a settlement agreement in which the item at issue was affirmed.
Judge Paul Brady approved the settlement agreement on November 26, 1996. The
citation became a final order of the Commission on January 6, 1997 (Exh. C-71,
item 1 of citation No. 3). The violation is repeat.

Penalty Determination

The
gravity of the violation is moderately high. The entry permits are used in the
annual review performed by the company. Without complete information on all of
the permits, the company cannot make an accurate appraisal of its program. A
penalty of $9,000.00 is assessed.

Item 4: Alleged Repeat Violation of
§1910.146(k)(3)(ii)

Section
1910.146(k)(3)(ii) provides:

To facilitate non-entry rescue,
retrieval systems or methods shall be used whenever an authorized entrant
enters a permit space, unless the retrieval equipment would increase the
overall risk of entry or would not contribute to the rescue of the entrant.
Retrieval systems shall meet the following requirements:

.
. .

(ii) The other end of the retrieval
line shall be attached to a mechanical device or fixed point outside the permit
space in such a manner that rescue can begin as soon as the rescuer becomes
aware that rescue is necessary. A mechanical device shall be available to retrieve
personnel from vertical type permit spaces more than 5 feet (1.52 m) deep.

Jackson
asked Suttles to demonstrate the use of the winch and lifelines in the wash
bay. During the demonstration the winch in the middle wash bay failed to
function properly. The lifeline could not be lowered to a level where employees
who had to enter a tank would be able to secure their safety harnesses. Jackson
testified that Chris Kiker told her that the winch had not been functioning
properly for several months and that he had told lead man Wes Burton about the
malfunction (Exh. C-72; Tr. 282, 330).

Burton
denied that Kiker had ever told him about the winch’s failure to function or
that he was aware of any problem with the winch (Tr. 1332-1333). Suttles tested
the winch on the same day after Jackson’s inspection and found it to be
functioning properly (Tr. 1205, 1264, 1297-1298).

The
Secretary has failed to prove that Suttles had either actual or constructive
knowledge of the winch’s malfunction. While it is undisputed that the winch
malfunctioned during the demonstration, it functioned properly when Suttles
took it out for repair. The Secretary bases her claim that Suttles had prior
knowledge of the winch’s malfunction on the statement made to Jackson by Kiker.
Kiker did not testify at the hearing, and Burton denied that Kiker had ever
spoken to him regarding the winch’s functioning. Suttles presented evidence
that Kiker may have held a grudge against the company (Tr. 1299-1301). Kiker’s
attitude toward the company could have colored his statements to Jackson.
Burton’s live testimony at the hearing is credited over Kiker’s out-of-court
statement reported second hand by Jackson. Item 4 is vacated.

Docket No. 97-545

Citation No. 1

Items 2b, 2c, 2d, and 2e:

Alleged Serious Violations of §1910.177(c)(2), (d)(4),
(d)(5), and (g)

The
Secretary alleges that Suttles committed serious violations of the §1910.177
standard (“Servicing multi-piece and single piece rim wheels”), which provides
in pertinent part:

Item
2b         (c)(2) The
employer shall assure that each employee demonstrates and maintains the ability
to service rim wheels safely, including performances of the following tasks:

(i)       Demounting
of tires (including deflation);

(ii)      Inspection
and identification of the rim wheel components;

(iii)Mounting of tires (including
inflation with a restraining device or other safeguard required by this
section);

(iv)Use of the restraining device or
barrier, and other equipment required by this section;

(v)      Handling
of rim wheels;

(vi)Inflation of the tire when a
single piece rim wheel is mounted on a vehicle;

(vii)An understanding of the necessity
of standing outside the trajectory both during inflation of the tire and during
inspection of the rim wheel following inflation; and

(viii)   Installation
and removal of rim wheels.

.
. .

Item
2c          (d)(4) The employer
shall furnish and assure that an air line assembly consisting of the following
components be used for inflating tires:

(i)       A
clip-on chuck;

(ii)      An
in-line valve with a pressure gauge or a presettable regulator;

(iii)A sufficient length of hose
between the clip-on chuck and the in-line valve (if one is used) to allow the
employee to stand outside the trajectory.

Item
2d         (d)(5) Current charts
or rim manuals containing instructions for the type of wheels being serviced
shall be available in the service area.

Item
2e          (g) The employer
shall establish a safe operating procedure for servicing single piece rim
wheels and shall assure that employees are instructed in and follow that procedure.

Compliance
officer Johnny Burroughs inspected Suttles’s tank wash area and maintenance
shop area on November 14, 1996. While in the maintenance shop area Burroughs
observed a tire rack (changing rack). The tire rack is a metal cage used to
change single piece rim wheels. Maintenance shop supervisor Joel Sticher told
Burroughs he used the tire rack daily. Sticher admitted to Burroughs that the
maintenance shop did not have, and he was not using, rim manuals or an in-line
presettable pressure gauge with a preset regulator and a clip-on chuck to
pressurize tires (Tr. 715-718). The Secretary alleges that because Suttles did
not have the equipment required by §§1910.177(d)(4) and (5), it violated those
sections as well as §§1910.177(c)(2) and (g), which require the employer to
ensure its employees know how to service the single piece rim wheels safely.

Although
the Secretary’s evidence adduced for items 2b through 2e is slight (based on
the out-of-court statement of one employee), Suttles did nothing to rebut it.
The Secretary has established violations of the §1910.177 standard with regard
to items 2b, 2c, 2d, and 2e.

The
hazard to which the affected employees were exposed was that the tire could
separate from the rim, causing a violent explosion of air from the tire,
resulting possibly in decapitation (Tr. 720, 722). The violations were
serious.

Penalty Determination

The
gravity of the violations is high. A total penalty of $5,000.00 is assessed.

Item 3: Alleged Serious Violation of §1910.307(b)

The
Secretary charges that Suttles committed a serious violation of §1910.307(b),
which provides:

Equipment, wiring methods, and
installations of equipment in hazardous (classified) locations shall be
intrinsically safe, approved for the hazardous (classified) location, or safe
or for the hazardous (classified) location.

The
citation alleges two instances of violation. Instance (a) cites duplex
receptacles that were allegedly located inside Class I, Division 1 and 2,
locations. Instance (b) cites a waste water pump using PVC conduit whose
disconnect box was not vapor tight.

Instance (a)

The
duplex receptacles were located on the wash rack, one located on a pole
approximately two to three feet from the top of the dome lid of a tank, and one
within two to three feet from the bottom drain of the tank (Tr. 705, 707, 708).

It
has been established that Suttles cleans tanks used to haul flammable liquids,
including primer, liquid plastic material, isopropyl amine, MIBK, petroleum
distillates, acetone, toluene, toluene diisocyanate, acetonitrile, and heptane.
Suttles uses Xylene, a flammable liquid, to presolve the tanks. The Xylene is
pumped from a 55-gallon drum near the wash rack (TR. 1206-1207). Burroughs
determined that the proximity of the duplex receptacles to the tanks and the
drums of Xylene created a hazard of fire or explosion (Tr. 708-714).

A
Class I, Division 1, location is one in which “hazardous concentrations of
flammable vapors and gases may exist under normal operating conditions.”
§1910.399(a). A Class I, Division 2, location is one:

( a ) in which volatile flammable
liquids or flammable gases are handled, processed, or used, but in which the
hazardous liquids, vapors, or gases will normally be confined within closed
containers or closed systems from which they can escape only in case of
accidental rupture or breakdown of such containers or systems, or in case of
abnormal operation of equipment; or . . . (c) that is adjacent to a
Class I, Division 1 location, and to which hazardous concentrations of
gases or vapors might occasionally be communicated unless such communication is
prevented by adequate positive-pressure ventilation from a source of clean air,
and effective safeguards against ventilation failure are provided.

Suttles
contends that the Secretary failed to prove that the duplex receptacles were in
an area that had an actual or potential explosive atmosphere. Burroughs never
tested the atmosphere surrounding the duplex receptacles (Tr. 773-776).
Burroughs did not know the concentration of any substance in the air
surrounding the duplex receptacles (Tr. 775-776).

The
pre-washed interiors of the tanks are Class I, Division 1, locations. It is not
self-evident, however, that the area outside the tanks’ interiors contain or
potentially contain hazardous concentrations of flammable vapors and gases. The
MSDSs alone are insufficient to establish the concentrations of the products
hauled in the tanks. The Secretary has failed to establish that instance (a)
constituted a violation of §1910.307(b).

Instance (b)

Burroughs
observed a pump located at the sump pit outside of the lead man’s office, used
to pump wastewater into holding tanks. Burroughs believed that the wastewater
contained flammable liquids (Tr. Tr. 711-713, 780). Suttles established at the
hearing that the wastewater did not contain flammable liquids. Flammable
liquids are not drained into the sump pit. Suttles had the results of the T
clip testing to prove that the wastewater had no flammable content (Tr.
1067-1068, 1134, 1173-1174, 1176-1177, 1205).

The
Secretary has failed to establish that the sump pit pump was in a hazardous
location. Item 3 is vacated.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The
foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

ORDER

Based
upon the foregoing decision, it is hereby ORDERED that the items of the
citations be disposed of as follows:

Docket No. 97-0546

Citation No. 1

Item
No.

Disposition

Penalty

Item
1a

Affirmed

$2,500.00

Item
1b

Vacated

$0.00

Item
3

Vacated

$0.00

Item
4

Affirmed

$3,500.00

Item
5a

Affirmed

$1,000.00

Item
5b

Vacated

$0.00

Citation
No. 2

Item
No.

Disposition

Penalty

Item
1a

Affirmed

Items
1a, 1b & 1c

grouped
together

Item
1b

Affirmed

Item
1c

Affirmed

$7,630.00

Item
1d

Vacated

$0.00

Item
2a

Affirmed

$12,000.00

Item
2b

Vacated

$0.00

Item
3

Affirmed

$9,000.00

Item
4

Vacated

$0.00

Docket No. 97-0545

Item
No.

Disposition

Penalty

Item
2b

Affirmed

Item
2b, 2c, 2d & 2e

grouped
together

Item
2c

Affirmed

Item
2d

Affirmed

Item
2e

Affirmed

$5,000.00

Item
3

Vacated

$0.00

/s/

NANCY
J. SPIES

Judge

Date:
April 22, 1999