I've participated as an expert witness in about two dozen lawsuits involving confined spaces. The cases have included fires, explosions, asphyxiations, chemical overexposures and, in one case, a worker who washed through a 48-inch concrete storm drain into the Missouri River during a thunderstorm.
All of these cases involved contractor's employees who were killed or seriously injured. The "host employer" was sued -- usually successfully -- under wrongful death or gross negligence claims. Most of the cases were resolved through multimillion-dollar, out-of-court settlements.
In many cases, a host's and a contractor's confined space programs were seriously flawed, inadequate or nothing more than regurgitations of the OSHA standard. In other cases, programs were flashy documents that had neither been discussed with employees nor implemented in the workplace.
Deposition testimony in some cases suggested that employees were lied to about risks to which they were exposed and laughed at when they expressed concern over hazardous working conditions. The evidence in a few cases suggested that some employers embarked on a systematic effort to deceive. Amazingly, in the end, justice always seemed to triumph.
In the first case I worked on as an expert, a contractor was hired to clean out an aboveground paint storage tank at an aluminum processing plant in Texas. The paint storage area consisted of four old railroad tank cars with all of their appurtenances, such as air brakes, couplers and wheels, removed. The tanks had been placed in a "paint bunker," which was a concrete structure that had been backfilled with sand and capped with a 10-inch concrete roof. The tanks were accessed through 17-inch diameter manholes on the roof.
The plant was having some problems with its paint application process. Before the supplier would buy back thousands of dollars of allegedly defective paint, he wanted to inspect the tank for possible contaminants. A contractor was hired to prepare the tank for the paint supplier's inspection. This task consisted of pumping out the tank and rinsing out the paint residue with the solvent cyclohexanone.
The contractor testified in his deposition that, after the tank was rinsed, the atmosphere was tested for oxygen and flammable vapors. Tests showed 20.1 percent oxygen and less that 10 percent lower flammable limit (LFL). He further testified he had attended many confined space entry courses where he had learned that those levels were "safe" for entry. Curiously, he never sampled for cyclohexanone, whose Threshold Limit Value (TLV) is 25 parts per million.
When I read his testimony, I was immediately concerned, because contrary to popular belief, 19.5 percent oxygen and 10 percent LFL are not safe for entry. In fact, the levels he measured showed that there was an oxygen deficiency and a "toxic" atmosphere present in the space. For a detailed explanation on the topics of flammable and oxygen-deficient atmospheres, see my articles in the June 1999 and May 2000 issues of OH.
When he peered into the tank through the manhole, he noticed that the tank had been coated with a material that was flaking off and contaminating the paint. He notified the plant chief engineer and the paint department superintendent, both of whom entered the tank to investigate. Although the plant had a written confined space program that identified the paint bunker as a permit space, both managers entered without taking any precautions other than donning full-face, air-purifying respirators with organic vapor cartridges.
Apparently concerned that they'd have to absorb the cost of the contaminated paint, they told the contractor to come back the next day to remove all the chip-containing residue so that the tank would be "clean" when the paint supplier's representative looked into it. The contractor also testified that he was told in no uncertain terms that he and his crew had to be off the property by lunchtime the following day.
The next day the contractor, who was pressed for time, returned to the site. Because he had tested the atmosphere in the space on the first day and found conditions to be "safe," he did not bother testing it again on the second day. That was his first mistake. His second mistake was not taking the time to set up his blower to ventilate the space and, instead, deciding to use the plant's compressed air system.
When a random employee of this more that 500-person plant walked by, the contractor asked him if an unmarked pipe connected to a 1.5-inch red rubber hose with a Chicago fitting on the end was an air line. The employee shrugged and said that it sure looked like an air line to him.
Based on this highly reliable source of information, the foreman cobbled together a 4-foot long chain of adapters that eventually allowed him to mate the Chicago fitting to the tank's 4-inch bottom outlet valve. Tragically, the line he attached wasn't air at all, but nitrogen. As this nitrogen flowed into the tank, it displaced the oxygen-containing air.
The first contractor who entered fell to the bottom of the tank. His co-worker jumped in after him and also collapsed. The plant safety director, who had taken a confined space refresher course just a few weeks before, arrived on the scene with an SCBA. He quickly realized that he couldn't fit through the 17-inch manhole with the SCBA cylinder on his back, so he entered with the understanding that another plant employee would pass the SCBA down to him after he entered the tank. He, too, was overcome.
At this point, someone ordered a mobile crane to be brought to the scene. A manila rope was looped around one of the employee's arms, and the crane operator, who was getting his directions via hand signals, began to hoist. Fortunately, the rope broke, for if it hadn't, the worker being hoisted would have been sliced to pieces by the sharp edge of the manhole as his body was pulled through it.
Eventually, the local fire department showed up and recovered all three bodies, memorializing their heroic efforts on a videotape that was later obtained as evidence. A $7 million settlement in this clear example of gross negligence kept the case from going to trial. Interestingly, this was the first of three cases I've worked on where one of the people who died was the safety director!
Spray Booth Case
In another case in Texas, a manufacturer who had a large down-draft spray booth hired a contractor to remove overspray that had accumulated in the booth's basement plenum chamber. The host's confined space entry program stipulated that the contractor had to abide by the plant's policies, which required, among other things, that the atmosphere in the space be monitored continuously and that attendants equipped with retrieval equipment be stationed outside the space while it was occupied.
Some of the contract workers who later claimed that they suffered neurological damage as a consequence of being exposed to lead and solvent vapors while removing paint sludge from the plenum chamber sued the host employer. They testified that although their employer neither performed continuous monitoring nor provided attendants as required by the host's program, the host's supervisors did nothing to enforce their company's policy even though they could clearly see that it was not being followed.
Some witnesses further testified that some plant officials responsible for overseeing their activities joked about the slippery, dark, wet, filthy environment that the contractors had to work in. These same plant officials also stood by laughing and hooting when one of the contractors lowered his son through a manhole into a pit 7 feet below the floor. The pit contained lead paint ash that had been burned off the spray booth gratings. Because no mechanical hoisting equipment was provided as required by the OSHA standard, the father lowered his son into the pit by his hands.
As a consequence of a complaint filed by one of the contractor's employees, OSHA cited the plant and the contractor for failing to communicate confined space hazards with each other as required by the standard. Yet, a year later, when I showed up by appointment at 6 a.m. to inspect the site with the plaintiff's lawyer, the plant safety officer was ready to violate the same standards for which he had previously been cited by OSHA.
It was my understanding that the space was to have been declassified for our entry. However, when I saw a cart pull up with harnesses, ropes and hard hats, it became clear that we were going to be allowed to enter a permit-required space.
The safety director, a CSP, made no attempt to determine if either I, or the lawyer who accompanied me, was trained in permit entry. He did not discuss the hazards associated with entry, nor inform us of what precautions he had taken to prepare the space for our entry. Yet, he was prepared to allow us to enter a permit space that may have contained toluene, acetone and other solvents after testing for only oxygen and combustible gases with an instrument that wasn't sensitive enough to measure "toxic" contaminants at concentrations at the TLV.
When, out of concern for our personal safety, I began questioning him on his obviously flawed sampling methodology, I was chastised by his attorney, who told me that our visit was supposed to be a site inspection, not an exercise in discovery. I pointed out that my questions had nothing to do with discovery and everything to do with our personal safety. We declined to enter the space, and the case settled without going to trial.
Distillation Column Case
In another case in Mississippi, a foreman employed by a hazardous waste remediation company was hydroblasting the inside of a distillation column that formerly contained toluene. It is noteworthy that this foreman was the most experienced person on the three-man crew he supervised and that he served as the contractor's on-site safety manager and the confined space entry supervisor.
He not only knew that there was an OSHA standard governing confined space entry, but also knew that his employer and the host had written confined space entry programs. In addition, he had served as the entry supervisor for more than 150 other permit-required entries on the host's premises.
When his hydroblasting nozzle worked loose and fell to the bottom of the space, he reported his problem to plant officials. They reminded him that the space was a permit space and that the plant's entry protocol required that its safety department be involved in the permitting process. It was late in the day, and the host's employees who normally addressed permit issues had gone home. The officials assured the contractor that they'd arrange for him to get a permit the next day so that he could enter the column and retrieve his nozzle.
A few hours later, a plant employee saw the foreman's feet sticking out of the process vessel's manhole. He was removed and transported to the hospital, where he died two days later. The medical examiner determined the cause of death to be acute toluene overexposure.
OSHA investigated and fined the host $11,175, for violations of:
- 29 CFR 1910.146 (c)(2) for failing to label the space that the contractor's foreman entered;
- 29 CFR 1910.146 (c)(5)(ii)(c) for failing to test the atmosphere before the contractor's foreman entered;
- 29 CFR 1910.146 (g)(1) for failing to train the contractor's employees, including the foreman, on confined space entry procedures; and
- 29 CFR 1910.146 (k)(1)(iii) for failing to provide a rescue team for the contractor employees.
Curiously, none of these citations was valid. Contrary to popular belief, OSHA standard 29 CFR 1910.146(c)(2) does not require confined spaces to be labeled. The standard requires employers to inform their exposed employees of the danger posed by entry and of the prohibition against entering "(by posting danger signs or by any other equally effective means" (emphasis added).
According to the standard's preamble, the purpose of labeling is to prevent inadvertent entry into confined spaces. The preamble also explains that spaces such as this distillation tower that require special tools or keys to enter do not need to be labeled at all, provided that they are only entered by selected employees such as maintenance workers whose access to the space could be controlled.
In this case, entry was not inadvertent, it was conscious and deliberate. The foreman chose to enter the permit space in spite of the fact that he possessed expert technical knowledge of confined space entry protocols. It is also unrealistic to believe that a sign -- no matter how big, bright and garish -- would have had any effect on preventing someone as intent as he was from entering the space.
Host employers also have no obligation to do the other things for which this employer was cited: conduct atmospheric testing for contractors, train contractor's employees on confined space entry procedures or provide rescue teams for contractor's employees who enter a permit space. Those duties clearly rest with the contractor, and citing the host for failing to perform them was specious.
For reasons that remain unclear, the host did not contest the citations and simply paid the $11,175 fine. The error of this management decision came back to haunt the plant a few years later when the foreman's wife and surviving children filed a multimillion-dollar wrongful death suit against the host. Because the host had essentially admitted guilt by accepting the OSHA citations and paying the fines, there was little room for an affirmative defense.
So Who's Responsible?
In all of the cases described above, host employers and contractors failed to comply with one or more provisions of OSHA's permit-required confined space standard. Hosts often failed to exercise their authority over contractors or, even worse, ignored situations where a contractor's demonstrated egregious at-risk behavior.
Many contractors lacked an understanding of the complex nature of confined space hazards or demonstrated a conscious indifference toward the safety of their employees. Few possessed sufficient experience, technical knowledge or skill necessary to manage a confined spaces program.
Hosts and contractors must provide for each other's safety. This duty is overlapping and interlocking, because the host and their contractors are not only obligated to share specific information about confined space issues, but also must coordinate entry operations so that they don't kill each other. The specific obligations of hosts and contractors are described respectively in 29 CFR 1910.146(c)(8) and (c)(9).
Host Employer Duties
Careful reading of 29 CFR 1910.146(c)(8) shows that host employers have six principal duties.
Advise of permit spaces. Hosts must advise contractors of any permit spaces on the host's premises that the contractor's employees may have reason to enter. If you get that deer-stuck-in-the-headlights look when you tell a contractor that a particular space is a permit space, you've got trouble with a capital T. In those situations, it's clear that there's been poor planning on both of your parts. You had better stop the job before someone gets killed or at least until you can sort things out with the contractor.
Compel compliance. Hosts must compel compliance by informing contractors that permit spaces can only be entered under the auspices of a written program that meets the requirements of 29 CFR 1910.146(d). As explained above, the host and contractor must also agree as to exactly what program will be followed.
Inform of hazards. The host is arguably the most knowledgeable person with respect to many aspects of the space. For example, it is reasonable to expect the host to know things like how the space is used, how often its used, what it last contained, its volume and its dimensions. The host would also be likely to have access to piping and instrumentation drawings, material safety data sheets for substances found in the space and other similar safety-related information. Consequently, hosts are obligated to inform contractors of their previous experience with the space and of any hazards that make the space a permit space.
Inform of precautions. Hosts must also inform contractors of any entry precautions that have been implemented such as draining, flushing and rinsing a space; isolating the space by disconnecting lines, blanking or providing a double block-and-bleed system; locking out mechanical equipment; flagging or barricading the work area; de-energizing electrical equipment; providing temporary lighting; purging and ventilating the space; and performing initial atmospheric testing.
Coordinate entry. Hosts must coordinate operations with the contractor when host and contractor employees will be working in or near permit spaces.
Conduct debriefing. At the conclusion of the entry, the contractor must debrief the host regarding the permit program and any hazards confronted in the space during entry operations.
In addition to complying with all of the other requirements governing confined space entry, contractors must:
- Obtain any available information regarding permit space hazards and entry operations from the host;
- Inform the host of the provisions of the contractor's written permit program if it is agreed that the contractor's program will be followed rather than the host's;
- Coordinate entry operations when the host's and the contractor's employees will be working in or near permit spaces; and
- Report hazards confronted or created during the entry to the host, either at the debriefing session or when they occur.
What Should You Do?
OSHA's goal, as explained in the standard's preamble, is to provide all employers with the flexibility they need to effectively manage their confined space entries. Hosts and contractors, however, must cooperate with each other to identify and implement a permit program that best suits their specific needs.
Although the final rule provides for this flexibility, hosts have ultimate control over their workplaces and should employ specific administrative procedures to ensure that contractors comply with the regulations. While there are many things a host can do to evaluate its contractor's performance, three of the more important considerations are explained below:
Program review. A host who decides to rely on a contractor's program should not assume that it is adequate or acceptable. Given the diversity of spaces, operating parameters, personalities, staff experience and corporate cultures, simply reading a written program won't tell you if it's suitable or effective.
You can review it to determine if it at least addresses the elements stipulated by 29 CFR 1910.146(d). In reviewing a program, the host should make it absolutely clear that it is not "approving" or "certifying" the contractor's program, nor is it providing an imprimatur.
The host's review is simply a determination of whether the contractor's written program addresses minimum requirements specified by the regulation. If it does not, the host should point out deficiencies to the contractor. Hosts that lack sufficient experience, knowledge or skill to make this determination can hire an expert to assist and advise them.
If the host and contractor mutually decide that the contractor will follow the host's program, the host better be certain that the contractor is following every element of the program, without exception. For example, if the host's program requires entrants to carry a particular make and model of emergency-escape, supplied-air respirators, the contractor better be carrying that exact same make and model, too.
If a contractor does not follow a host's program to the letter, then, in my opinion, they are in violation of OSHA regulations 29 CFR 1910.146(c)(4), (c)(9)(iii) and (d).
Verify training proficiency. Another often overlooked consideration is determining if a contractor's employees are proficient in confined space entry. As I explained in my August 1999 article "Is Your Safety Training Program Effective?" OSHA explains in no fewer than five letters of interpretation that watching videos or interacting with computer-based programs does not meet regulatory training requirements.
OSHA standard 29 CFR 1910.146(g) is excruciatingly clear on this matter and states that "[the employer shall provide training so that all employees whose work is regulated by this section acquire the understanding, knowledge and skills necessary for the safe performance of the duties assigned]" (emphasis added).
As part of the contract process, you may want to obtain a written representation from the contractor that his employees have demonstrated proficiency with respect to confined space entry and that they possess the requisite knowledge and skills necessary to allow them to function as entrants, attendants and entry supervisors as these positions are defined by 29 CFR 1910.146(b).
You might even want to give the contractor an annotated copy of the regulation so that its workers can read the specific requirements for themselves. This will allow them to ensure that they are absolutely clear as to their legal obligations so that they may truthfully represent to you that their employee training conforms to the specific requirements of the standard.
If you choose to further evaluate the contractor's training program, don't ask leading question like, "Have your employees been trained?" to which the obvious answer is, "Of course they have." Instead, ask contractors to describe how they trained their employees. Most importantly, ask how they evaluated their employees' proficiency in confined space entry.
Obtaining a perfect score on a written test or typing the correct answers on a computer keyboard doesn't cut it. The only way to determine if training has been effective is for participants to demonstrate that they can do the tasks they are expected to perform.
Monitor contractor activities. Hosts should periodically monitor the contractor's activities if for no other reason than to verify that the work is being performed as specified by the contract. Interestingly, many contracts also stipulate that "the work is to be performed in compliance with all federal, state and local codes, rules, regulations, ordinances and statutes."
That means, among other things, that the host better be checking to see if the contractor is complying with the provisions of the confined space program that was agreed to. While it is essential that compliance monitoring visits be made, the frequency of these visits is a judgment call based on the nature of the work, the confidence one has in the contractor and past experiences with similar projects.
Monitoring visits are not intended to identify every digression but, rather, to serve as a barometer of compliance. For example, if the contractor's program says that retrieval equipment, mechanical ventilation and continuous atmospheric monitoring will be employed and you look around and don't see hoists, blowers and instrumentation, you don't have to be a CIH or a CSP to know that something is terribly, terribly wrong with the contractor's management system.
In these cases, the work should be stopped in accordance with the stop-work provisions that you should have in your contract. The person stopping the work should also make it quite clear to the contractor that he is not directing the means and methods the contractor should use to comply with the program. Instead, he is pointing out a contract violation.
Let's also make it a point to call these nonconforming practices what they really are: They're not safety violations, they're contract violations. Except for the fact that these are things that could kill someone, they're no different than pouring substandard concrete, installing a 4-inch pipe when a 10-inch pipe is called for or painting a building red instead of blue. We wouldn't allow a contractor to do any of these things, so why should we allow them to violate provisions of the contract related to protecting workers' lives?
If the work isn't finished on time because of nonconformance with the contract, the contractor will most likely have to pay "liquidated damages," which is a monetary penalty. In some cases, this penalty may be tens of thousands of dollars for each day the project was delayed. This gives a whole new meaning to that old axiom "safety pays" and provides a wonderful opportunity for contractor monitoring programs to become substantial profit centers.
Host employers and contractors who work in or around confined spaces have overlapping and interlocking responsibilities toward each other. Each must communicate information concerning confined space entry operations to the other, each must consider and evaluate confined space hazards, and each must take an active role in controlling those hazards.
Failure to strictly abide by the contractor provisions outlined in the OSHA confined space standard may not only lead to employees being maimed, injured or killed, but also may result in a costly litigation that can affect the value of the company's stock and drain its employees physically, emotionally and psychologically.
John Rekus, PE, CIH, CSP, is an independent safety consultant and author of the National Safety Council's Complete Confined Spaces Handbook. With almost 30 years of OSHA regulatory experience, Rekus specializes in conducting OSHA compliance surveys and providing safety education seminars for workers and managers. He resides near Baltimore and may be reached at (410) 583-7954, or you can visit his Web site at www.jfrekus.com.