8-1901-12038-2 MN OSH Div. Docket No. 5720

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY

 

 

Gretchen B. Maglich, Commissioner, Department of Labor and Industry, State of Minnesota,                                      Complainant, v. CBI Na-Con, Inc.,                                      Respondent.

ORDER DENYING MOTION FOR SUMMARY DISPOSITION

           

 

            On January 11, 1999, Complainant filed a Motion for Summary Disposition.  Respondent filed its Memorandum in Opposition to the summary disposition motion on February 19, 1999.  Oral arguments on the motion were heard on April 7, 1999, at the Office of Administrative Hearings in Minneapolis, Minnesota.  The record closed when arguments were completed.

Curtis P. Zaun, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota  55103-2106, appeared on behalf of Complainant.  Carl B. Carruth, Attorney at Law, Nationsbank Tower, 1301 Gervais Street, P.O. Box 11390, Columbia, South Carolina  29211 and Mark R. Kaster, Attorney at Law, Dorsey & Whitney, LLP, Pillsbury Center South, 220 South Sixth Street, Minneapolis, Minnesota  55402, appeared on behalf of Respondent.

Based upon all of the files, records and proceedings herein, and for the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED:

1.                  Complainant’s Motion for Summary Disposition on Citation 1, Items 1 and 2 should be and hereby is DENIED.

2.                  Respondent has failed to show that it was prejudiced by the fact that none of its representatives were present when Montague first examined a portion of the water tower being constructed by the Respondent and it is not, therefore, entitled to any relief on that issue.

 

 

Dated this 14th day of May, 1999

 

                                                                             

JON L. LUNDE

Administrative Law Judge

 

 

MEMORANDUM

Factual Background

On Saturday, July 27, 1996, respondent had a worksite in Shorewood, Minnesota where it was constructing a 200-foot tower capable of holding 500,000 gallons of water.  A schematic of the water tower is appended hereto and incorporated herein by reference as “Attachment I.”.[1]  Five employees were working on the site on the 27th.  Three employees were working above the shaft platform.  The shaft of the tower is the stem: the long, narrow section of a water tower.  There is a platform separating the shaft from the upper “ball” of the tower. The ball is the round, ball-shaped section of the tower located on top of the shaft.  The crew’s pusher was at the very top of the ball of the tower.  A “knuckle” separates the ball and the shaft.  Ryan S. Jungles, who was killed at the work site that day, was last seen about closing time welding a ladder inside the bottom of the ball in the knuckle area.  The fifth worker was working outside the shaft platform on the outside of the knuckle. 

At quitting time, the pusher yelled for the other employees to stop for the day.  Jungles waved back in acknowledgement.  Four employees, including the pusher, descended the shaft to the ground level of the tower.  When they reached ground level, the foreman questioned Jungles’ whereabouts.  The pusher thought he had already descended.  At that point, five or ten minutes had elapsed since the pusher had last seen Mr. Jungles. 

The foreman and the pusher climbed back up the inside of the shaft to the ball area to look for Jungles.  He was discovered at the base of the knuckle.  It appeared that he had fallen, but the distance he fell is unknown.  When Jungles was discovered, he was unconscious and did not have a pulse.  The foreman and the pusher attempted CPR, but the limited area available made it difficult to do so.

The foreman yelled down to those at ground level to call 911.  CPR was resumed while the employees waited for a rescue team.  The Excelsior Fire Department and Ridgeview Ambulance Service of Waconia responded to the call.  The fire department attempted to reach the victim with its ladder truck, but the ladder was not long enough to reach the painters’ access or shaft door (also known as the woodpecker hole), and the fire department did not have a life safety line long enough to lower Jungles to the ground so a Stokes basket was sent up the side of the shaft and brought through the shaft door.  Jungles was secured to the basket and lowered through the middle of the shaft to the ground.  He was lowered with a ¾ -inch manila rope used to haul equipment to the ball of the tower.  When Jungles reached the ground, he was pronounced dead.

On Saturday, July 27, Jim Montague, a Senior Safety Investigator (OSHI) for the Minnesota Occupational Safety and Health Division (MOSHD) of the Minnesota Department of Labor and Industry (DOLI) was assigned to investigate the Shorewood worksite.

On Sunday Montague inspected respondent’s worksite.  Local police had already secured the worksite and had monitored it Saturday night.  During Montague’s initial visit to the site, he took some measurements and photographs to preserve as evidence, then instructed the police that they need not remain at the site.  At that time, only the police lieutenant and Montague had keys to the door providing access to the interior of the water tower. 

On Monday, July 29, Montague and Keith Miller, a corporate security manager for Respondent, met at the worksite.  Montague conducted an opening conference which was followed by a walkaround inspection.  During the walk around inspection, Montague discussed a lanyard and safety belt lying at the base of the bell.  It had some burn holes resulting from welding operations within the tower and Montague told Miller that the lanyard was defective and should be removed from service.

Montague did not examine the shaft, knuckle or ball of the tower because Respondent didn’t have a confined space entry program or any fall protection deemed adequate.[2]

As a result of Montague’s inspection, a Citation and Notification of Penalty were mailed to Respondent citing it with two violations.  The first item (Citation 1, Item 1)[3] alleges that respondent violated MOSH standards[4] relating to the inspection of personal fall arrest systems.  The second item (Citation 1, Item 2) alleges that Respondent violated MOSH standards relating to confined space entry programs for employees entering the shaft or ball of the water tower.

Summary Judgment Motion

Summary disposition is the administrative equivalent to summary judgment.[5]  Summary judgment is appropriate when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law.[6]  A genuine issue is one that is not a sham or frivolous, and a material fact is one which will affect the outcome of the case.[7]  The moving party must demonstrate that no genuine issues of material fact exist.[8]  If the moving party is successful, the nonmoving party then has the burden of proof to show specific facts are in dispute that can affect the outcome of the case.[9]  It is not sufficient for the non-moving party to rest on mere averments or denials; it must present specific facts demonstrating a genuine issue for trial.[10]

In order to establish a prima facie violation of OSH regulations, Complainant must establish, by a preponderance of the evidence, that the cited standard applies, that the employer failed to comply with the standard, that the employer knew or should have known of the violative condition with the exercise of reasonable diligence and that an employee was exposed to or had access to the hazard.[11]

ITEM 1

Item 1, which pertains to lanyards, among other things, states:

Personal fall arrest systems shall be inspected prior to each use for wear, damage and other deterioration, and defective components shall be removed from service.[12]

 

Complainant argues that the lanyard found at the base of the bell violated the standard requiring personal fall arrest systems because the lanyard had slag burns and a burn hole that exposed the internal, weight-bearing strands of the lanyard.[13]  Due to the burns on the lanyard, Complainant argues that it was defective and should have been removed from service.  In support of its argument, Complainant relies on the “non-mandatory” OSHA guidelines which state:[14]

Inspection considerations.  As required by § 1926.502(d)(21), personal fall arrest systems must be regularly inspected.  Any component with any significant defect, such as cuts, tears, abrasions, mold, or undue stretching; alterations or additions which might effect its efficiency; damage due to deterioration; contact with fire, acids, or other corrosives; distorted hooks or faulty hook springs; tongues unfitted to the shoulder of buckles; loose or damaged mountings; non-functioning parts; or wearing or internal deterioration in the ropes must be withdrawn from service immediately, and should be tagged or marked as unusable or destroyed.[15] 

Complainant’s basic position is that the burn hole in the lanyard rendered it defective and that it should have been removed from service.  Respondent argues, however, that no violation exists as long as a lanyard meets the strength requirements in the regulations[16] and that cosmetic defects are irrelevant.  In the Respondent’s view, Complainant’s interpretation of the standard would either require an employer to strength-test a lanyard before each use or replace it when any defect or blemish is found.  Both actions are too extreme, and the Administrative Law Judge is not persuaded that they are required.

Under the regulation, anyone can inspect a lanyard, but it is most likely done by the person intending to use it.  That person may have no expertise or instruction in identifying defects.  Hence, merely eyeballing a lanyard may not reveal whether or not it would pass a strength test or whether the defect is only cosmetic.

In determining what constitutes “wear, damage and other deterioration” requiring the removal of lanyards from service, it is appropriate to consider the meaning of the words used in OSHA inspection guidelines.  The word “defect” means, among other things, an “imperfection that causes inadequacies or failure; a shortcoming.” [17]   The word “significant” means likely to have influence or effect: important.”[18]

The legislature has declared that the purpose of the Occupational Safety and Health Act of 1973 (Act) is “to assure so far as possible every worker in the state of Minnesota safe and healthful working conditions and to preserve our human resources. . . .”  Given that purpose, the Act should be liberally construed to accomplish the legislature’s manifest intent.[19]  Due to the preference for construing OSH standards broadly, the Administrative Law Judge is persuaded that the test for determining whether a lanyard should be removed from service is not whether the lanyard would or would not meet a strength test.  Rather, it is whether the lanyard’s integrity or vulnerability is reasonably in doubt.  The same test would apply to any component of the lanyard such as the cover surrounding the strands of rope.  A hole may cause the lanyard to hang up on some protuberance or subject it to the risk of damage.  That issue, however, need not be further discussed because Respondent has shown that there are disputed fact issues relating to the lanyard.  The Complainant presented no evidence that the lanyard found within the water tower had not been inspected prior to its last use and there is no direct evidence that the burn holes existed before its last use or that the lanyard did not sustain burn holes while simply laying at the foot of the bell.  For these reasons and because of conflicting expert testimony regarding the existence of a defect, the Administrative Law Judge is persuaded that the Department is not entitled to summary disposition on Item 1.

ITEM 2

Respondent is also charged with failing to “implement an entry permit system, develop written operating and rescue procedures, and conduct worker training before any workers were allowed to enter a confined space.”[20]  Complainant argues that Minnesota OSH rules were violated because Respondent had no confined space entry program for employees who entered the shaft or ball of the water tower.

The rules apply to work in confined spaces on construction sites.[21]  A tank or other vessel is not considered a confined space until it is completely enclosed.[22]

Respondent does not dispute Complainant’s allegation that it had no confined space entry program for employees working in the shaft or ball of the water tower.  It argues, however, that there were no confined spaces in the water tower which were covered by the rule in Item 2.

A “confined space” is defined as “a special configuration that could result in any of the following:”

A.        Atmospheric condition – a condition which dangerous air contamination, oxygen deficiency, or oxygen enrichment may exist or develop;

B.                 Entry/exit access – a condition where the emergency removal of a suddenly disabled person is difficult due to the location or size of the access opening; or

C.                Engulfment condition – a condition where the risk of engulfment exists or could develop.[23]

For purposes of identifying confined spaces, the words “dangerous air contamination” are defined as follows:

“Dangerous air contamination” is an atmosphere presenting a threat of death, acute injury, illness, or disablement due to the presence of flammable, explosive, toxic, or otherwise injurious or incapacitating substances.

* * *

Dangerous air contamination due to a toxic, corrosive, or asphyxiant substance listed in the Code of Federal Regulations, title 29, pt. 1910, subpart Z, is defined as a concentration above the listed numerical value of the permissible exposure limit (PEL).  In addition, an atmospheric concentration above the numerical limit listed in the Material Safety Data Sheet prepared for a hazardous substance in conformance with the Code of Federal Regulations, title 29, section 2910.1200 (g)(2)(vi) or the Minnesota Employee Right-to-Know Standards, chapter 5206.[24]

Because a confined entry program is required when an oxygen deficiency or dangerous air contamination may exist or develop, Complainant argues that Item 2 must be affirmed as a matter of law.  Complainant argued that she is not required to prove an actual oxygen deficiency or dangerous air contamination but met her burden of proof by showing that the water tower might have a reduced level of oxygen due to welding and normal employee respiration.

Complainant’s senior industrial hygienist, Terry Osterbauer is an expert in the hazards caused by confined spaces.  Based on his training and experience he concluded that Respondent’s employees were exposed to a possibility of oxygen deficiency which triggered compliance with the Department’s confined space rule.

Respondent disagrees.  Its industrial hygienist, Jerome E. Spear, stated that there were enough openings in the ball to provide a sufficient amount of natural ventilation to prevent the accumulation of toxic fumes and oxygen deletion.  He went on to state that the oxygen level would not have dropped below 19.5 percent oxygen and that no air contamination existed.[25]  Spear’s testimony was based on air monitoring he conducted on August 5, 1996, in the ball of the tower.  At that time, the lowest oxygen level detected was 19.7 percent, and no air contamination existed at concentrations above the permissible exposure limits (PEL) set forth in 29 C.F.R., part. 1910, subpart Z.[26] 

The Administrative Law Judge is not persuaded that no genuine issues of material fact exist.  On the contrary, the parties’ experts disagree on several mixed questions of law and fact primarily relating to an oxygen deficiency or dangerous air contamination.  Those disagreements require that the Department’s motion be denied so that the critical factual issues can be developed.

Complainant also argued that the ball is a confined space because the emergency removal of a suddenly disabled person would be difficult due to the size or location of the access openings used to remove Jungles from the ball.  Jungles apparently was removed from the base of the ball through an 18-inch by 24-inch vent manhole (crab door located 113 feet from the ground) to the shaft platform 8 feet below.  From there, Jungles’ body was lowered to a 30-inch-diameter platform manhole and down the shaft to the ground.  Complainant argues that as a matter of law an opening located 113 feet above ground level and only 18 by 24 inches would, as a matter of law, make the removal of a suddenly disabled person difficult.  That argument is not persuasive.

The word “difficult” means “hard to do or accomplish; demanding considerable effort or skill; arduous.” [27]  Complainant argues that Jungles’ removal was difficult per se due to its size and location.  Her argument is not persuasive.  The foreman, Wandal Nugent, who helped remove Jungles from the tower, stated that the size and location of the access opening “presented no difficulty at all.” [28]   Harold Hart, another employee who helped remove Jungles’ body, also stated that the size and location of the access opening caused no problem whatsoever.[29] 

Complainant argues that Nugent’s affidavit does not raise a factual issue because he made inconsistent statements about the ease of removing Jungles’ body.  On July 28, 1996, Nugent made a recorded statement, since transcribed, wherein he stated that Jungles was “very instantly pushed through the tube hole and spread out on the platform.” [30]  

Nugent also stated:

At that time, after we got on the platform {inaudible] CPR [inaudible] they did not see ah, paramedics wouldn’t come up the tank, they just kind of stood outside and looked [paramedics, ambulance people, what are you saying?]  I, I  to tell the truth I don’t know, an ambulance was there, firemen were there and, and I hollered to Bobby which ugh, by then he had made it up and I said where they at?  And he said, they won’t come up.  So I grabbed Harold hard by the arm and ugh, pulled him down to Scott and told him continue 15 pumps and showed him and ran down the ladder to get their bags and, and get them up there, hollering at them, telling them what predicament we was in and that we didn’t have a pulse that we were doing CPR and that if they had to take this, if they didn’t have their shocking equipment, get it.  I was just yelling all this and I guess I appeared pretty, pretty shook up and this fire chief grabbed me by the arm and would not let me go back up.  Told me to stay right there.

* * *

            They brought in a rescue boom truck and they couldn’t get him out the ah they call it the pigeon hole, it’s the painter’s shaft door, to the painter’s ring [?].[31] 

Complainant argues that there can be no dispute that emergency removal of Jungles’ body was difficult due to the size and location of the access openings.  Given the statements of two employees denying that they had any difficulty removing Jungles’ body from the bell, the Administrative Law Judge is persuaded that a genuine fact issue does exist.  Further factual information, such as Jungles’ weight; an employees ability to pass through these openings during the regular course of their employment without difficulty; the amount of time it took to move Jungles’ body out of the ball and down to the ground; the size of the basket to which Jungles’ body was strapped; and other similar issues exist.  Although Complainant argued that Nugent’s statements regarding the difficulties, if any, encountered in removing Jungles’ body from the ball were inconsistent, they are not necessarily inconsistent with one another and should be developed further at a hearing.  Although some of the issues may be closely tied to the ultimate legal issues in this proceeding, the ALJ is not persuaded that the Complainant is entitled to judgment as a matter of law.

Denial of Walkaround

Respondent claims that it was prejudiced by Montague’s failure to bring one of its officers along on the initial inspection of the work site that Montague made.  It is not entitled to relief for procedural defects absent a showing of prejudice.[32]  That showing was not made.

J.L.L.