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By Todd J. Wagnon
Occupational
Safety and Health Administration regulations provide detailed
safety procedures for workers that enter confined or enclosed
spaces. Employers must ensure that those safety procedures
are followed and that the workers receive the necessary
training before entering such spaces. While OSHA regulations
define a "confined space," the practical application
of that definition to situations in the workplace is not
always evident. As demonstrated by Montgomery KONE, Inc.
v. Secretary of Labor, 234 F.3d 720 (D.C. Cir. 2000),
employers must take steps to ensure that conditions to which
confined space regulations apply are identified before workers
begin work.
OSHA
regulations define a confined space as "any space having
limited means of egress, which is subject to the accumulation
of toxic or flammable contaminants or has an oxygen deficient
atmosphere." 29 CFR §1926.21 (b) (6) (i).
In Montgomery KONE, the court upheld a decision by
the Occupational Safety and Health Review Commission that
OSHA confined space regulations applied to an elevator pit
that was about 5 feet deep and from which the only means
of egress was by ladders placed in the pit.
There,
two workers were injured by an explosion in the elevator
pit when a welding torch ignited flammable vapors from a
PVC cement that had been used a week earlier. The project
involved modernizing elevators in a Post Office terminal.
To accommodate the piston for one elevator, a 72-foot deep
shaft was drilled into the pit's base. To protect the piston
from corrosion, the shaft was lined with PVC pipe. It was
installed in sections, and the sections were glued together
with PVC primer and liquid cement. Both contained flammable
solvents that were 2.5 times heavier than air. Shortly after
installation, a worker smelled fumes in the pit. A supervisor
directed workers to insert a compressed air hose into the
shaft to expel the fumes.
A
week later, a welding torch set off an explosion that blew
the PVC pipe out of the shaft, causing multiple leg injuries
to one worker and a loss of hearing in one ear to another
worker. The workers escaped by climbing an extension ladder,
the only remaining way out of the pit. A wood ladder was
destroyed in the blast, and the pit's iron permanent access
ladder was blocked.
After
the accident, the Labor Secretary fined Montgomery KONE
$3,500 for failing to provide confined space training to
the workers before beginning work in the elevator pit. An
administrative law judge overturned the fine because a ladder
was present. The fine was reinstated by the Occupational
Safety and Health Review Commission because escape required
climbing a ladder and because "[w]hen the explosion
occurred and the lights went out, the two employees had
to feel their way around in the dark until they found each
other, then found the ladder and helped each other get out
of the pit."
Montgomery
KONE appealed the commission's decision and argued that
the pit did not satisfy either prong of the standard for
a confined space. It argued that egress from the pit was
not limited because ladders were present and that the pit
was not subject to the accumulation of flammable contaminants.
The Court of Appeals rejected Montgomery KONE's position
and upheld the fine.
Regarding
the limited egress prong, the court found that the ladders
in the pit provided the only means of egress and that workers
testified to the commission that they had trouble getting
out of the pit after the explosion because of obstacles
and the dark. The Labor Secretary asserted that egress is
"limited" unless there is an unimpeded means of
egress even under emergency conditions. The court agreed.
That the workers had trouble getting out in an emergency
confirmed that egress was limited, satisfying the first
prong of the confined space definition.
Regarding
the second prong, accumulation of flammable vapors, the
court rejected Montgomery KONE's argument that tests performed
before and after the explosion did not show the presence
of dangerous vapors, so the pit was not subject to the accumulation
of flammable vapors. That flammable vapors did accumulate
and explode demonstrated the pit was subject to the accumulation
of flammable vapors, the court held. Accordingly, the court
determined that the second prong had been satisfied.
Thus,
Montgomery KONE had an obligation to provide confined space
training to the workers before they began work in the pit.
The commission held that when an employer introduces chemicals
into the workplace, it has a duty to learn about their characteristics,
to determine any dangerous conditions to which its workers
may be exposed and to warn them.
The
court also rejected Montgomery KONE's argument that the
fine was inappropriate because it had taken precautions
to prevent the accumulation of vapors. The court agreed
with the Labor Secretary that precautionary measures are
an entirely separate issue from the employer's obligation
to provide confined space training when applicable. Although
not explicitly stated by the court, this means that the
employer could have been fined for violating the regulations
even if the explosion had not occurred.
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