BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD


In the Matter of the Appeal of:

GRANITE CONSTRUCTION COMPANY
P. O. Box 50085
Watsonville, CA 95077-5085

                              Employer

 

Docket Nos.

01-R2D4-3946
and 3947

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having taken the petition for reconsideration filed in the above entitled matter by Granite Construction Company (Employer) under submission, makes the following decision after reconsideration.

JURISDICTION

On February 26, 2001, a representative of the Division of Occupational Safety and Health (the Division) conducted a complaint inspection at a place of employment maintained by Employer at Holly and Beverly, Tracy, California (the site).
On July 31, 2001, the Division issued to Employer citations alleging a serious violation of section 5158(e)(1)(C) [method for retrieving employee from confined space] and a general violation of section 5158(d)(3) [maintaining written records of confined space air testing] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1
Civil penalties of $2,700 and $100, respectively, were proposed for the alleged violations.

Employer filed a timely appeal contesting the existence of the alleged violations and the reasonableness of the proposed penalties.

On July 11, 2002, a hearing was held before Dennis M. Sullivan, Administrative Law Judge (ALJ) for the Board, in Stockton, California. William Jackson, Director of Safety, represented Employer. Christopher Grossgart, Attorney, represented the Division. On July 30, 2002 the ALJ issued a decision denying Employer’s appeals. On August 29, 2002, Employer filed a timely petition for reconsideration. On September 30, 2002, the Division answered the petition. The Board took Employer’s petition under submission on October 18, 2002.

EVIDENCE

Employer is a contractor that engages in the construction of underground sewers. The citation was issued because an employee entered a sewer manhole to re-caulk joints although Employer did not have an approved method or means of retrieving him from the manhole.

On February 26, 2001, Division Associate Industrial Hygienist, Sigrid Wynne-Evans (Wynne-Evans), went to the site to inspect work being done in a manhole because the Division received a complaint that the work was not being done safely. Rene Martinez, a laborer employed by Employer was inside an open manhole in the street. The manhole was nine or ten feet deep and approximately three feet in diameter. To provide ventilation, Employer had removed the covers of the upstream and downstream manholes closest to Martinez. They were approximately 100 feet from him.

Martinez was not wearing a supplied-air respirator or any type of respiratory protection and no forced air ventilation had been installed in the manhole or sewer. Another employee was standing in the street beside the manhole watching Martinez work and a ladder was lying in the street about ten feet away, but Martinez had no ladder or other means of self-evacuation or retrieval in the manhole with him. Wynne-Evans understood that Martinez was performing construction work related to the upgrading, rerouting and enlarging of the sewer line.

The sewer line was in service. Wynn-Evans could see ankle-deep water, human waste and other effluent passing through the bottom of the manhole. Based upon her education, experience and practical training as an Industrial Hygienist she stated that hazardous concentrations of hydrogen sulfide, sulfur dioxide and methane could develop in an active sewer system. She also knew that the conditions present could make the breathing atmosphere in the manhole and sewer pipe oxygen deficient and that explosive concentrations of flammable gases could also be present.

Additionally, Wynne-Evans testified that overexposure to hydrogen sulfide, sulfur dioxide or methane, all of which are classified as hazardous substances, could cause death, acute illness or disablement, that lack of oxygen could cause death, brain damage or disablement, and that a gas explosion could cause death, injury and disablement.

Monitoring indicated that the manhole did not contain dangerous air contamination at the time of the inspection. However, sewer users could cause that to change rapidly at any time by introducing contaminants. In Wynne-Evans's opinion the natural ventilation created by removing the cover on the manhole in which Martinez was working and the "chimney-effect" created by removing the up and downstream manhole covers was insufficient to disperse hazardous concentrations that could develop.

The manhole was only three feet in diameter. It was so confining that in order to provide workroom, the ladder Martinez had used to access the bottom of the manhole had to be removed. It would have been difficult for another employee to rescue Martinez if he had suddenly become disabled. Given the narrowness of the hole and its nine foot depth, two workers could not maneuver safely and expeditiously.

Having determined that Martinez was engaged in construction work, that the existing ventilation was insufficient and that there were no readily available means of rescuing Martinez if he became disabled, Wynne-Evans concluded, and the ALJ agreed, that the manhole was a confined space subject to the employee-protective requirements of section 5158.

Given the hazardous gases commonly found in sewer systems and the changing and unknown content of the effluent, Wynne-Evans determined that, as implemented by Employer, the pre-entry provisions of section 5158(d), including testing the atmosphere, could not ensure that the manhole atmosphere was continuously free of dangerous air contamination.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

In its petition Employer contends, in essence, that insufficient evidence exists to support the ALJ’s decision since the ALJ should have given Employer’s witnesses more credence and that “the manhole under construction did not meet the definition of a confined space”2 and thus no violation of either cited standard could have occurred. The Division counters that, “the Division proved by greater than a preponderance of the evidence that the ‘chimney effect’ ventilation Employer used at the work site would have been insufficient to remove dangerous air contamination which could have developed in the sewer manhole. The Division also proved that the narrow size of the manhole opening would have made the ready rescue of a disabled employee difficult, if not impossible.”

Section 5158(b)(1) defines a confined space as follows:

A space defined by the concurrent existence of the following conditions:
(A) Existing ventilation is insufficient to remove dangerous air contamination, oxygen enrichment and/or oxygen deficiency which may exist or develop.
(B) Ready access or egress for the removal of a suddenly disabled employee is difficult due to the location and/or size of the opening(s).

Employer did not refute the testimony of the Division’s compliance officer, Ms. Wynne-Evans, that hydrogen sulfide and sulfur-dioxide gases are known to develop in sewers when human waste decomposes. There was ample evidence regarding the health risks associated with exposure to these gases. In addition, Ms. Wynne-Evans testified that methane gas, which is commonly present in sewers, can not only create an oxygen-deficient atmosphere, but can also accumulate in amounts exceeding the lower explosive level. In addition, there was ample evidence that sewer conditions can change suddenly and unpredictably as uncontrolled releases are made into the sewer from upstream users.

Employer also acknowledged that it was relying solely on a “chimney effect” to ventilate the manhole where its employee, Rene Martinez, was caulking pipes. Daryl Bitters, Employer’s supervisor for underground operations, testified that Employer was using no forced-air ventilation, and that the only measure it took to create a flow of fresh air into the manhole was to remove the covers on manholes adjacent to the manhole where Mr. Martinez was working. Mr. Bitters admitted on cross examination that the chimney effect might not be able to clear out all hazardous gases that could develop in the manhole. Dennis Barlow, Employer’s Safety Manager, similarly admitted that, depending on the conditions in a particular sewer, natural ventilation might not have a sufficient flow rate to provide safe conditions in a manhole.

All of this evidence establishes by a significant preponderance that the chimney effect is inadequate to remove dangerous air contamination or to correct an oxygen deficiency which may develop in a sewer manhole. Therefore, the manhole in which Mr. Martinez was working satisfies the first “prong” of the definition for “confined space” set forth in section 5158(b)(1).

The evidence to satisfy the second prong of section 5158(b)(1) is just as clear. The opening of the manhole was three feet in diameter. It was so narrow, in fact, that after Mr. Martinez climbed down into the manhole, his coworkers had to remove the ladder so that he could have room to work. Had the atmosphere in the manhole suddenly deteriorated, it would have been difficult to put the ladder back into the manhole (especially if Mr. Martinez had collapsed so that his body was covering the ground) and climb in to attempt a rescue.

Based on the evidence admitted at hearing, the ALJ had sufficient basis to find that the manhole was a confined space.

Employer’s contention that the ALJ should have given greater deference to the “expert” testimony of its four witnesses is rejected. The ALJ expressly credited the testimony of Mr. Wynne-Evans over that of Employer’s witnesses, at least with respect to the lack of continuous monitoring. The ALJ explained the reasoning for his findings in significant detail. The ALJ’s credibility finding is entitled to great weight, because the ALJ was present during the taking of testimony and was able to directly observe and gauge the demeanor of all the witnesses. (Garza v. Workmen’s Compensation Appeals Board (1970) 3 C.3d 312, at p. 318.)

Employer refers the Appeals Board to its Decision After Reconsideration in Genstar Construction, Cal/OSHA App. 81-893, Decision After Reconsideration (Mar. 14, 1985). In that case, the air in the manhole where the employer’s superintendent was working was continuously monitored for oxygen deficiency. The facts in that case are sufficiently different from the facts in the case at hand to render that case inapplicable here. In addition, the employer in that case provided blowers to remove dangerous contamination from the atmosphere in the manhole and the superintendent was wearing a harness. In this case, Employer provided none of these safeguards.

Having found that the manhole was a confined space and finding no basis for disturbing the ALJ’s analysis of the evidence we adopt the attached ALJ’s decision which is incorporated herein.

DECISION AFTER RECONSIDERATION

01-R2D4-3946

The Board affirms the ALJ’s decision finding a general violation of section 5158(d)(3) and assessing a $100 civil penalty.

01-R2D4-3947

The Board affirms the ALJ’s decision finding a serious violation of section 5158(e)(1)(C) and assessing a $2,700 civil penalty.



MARCY V. SAUNDERS, Member GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: February 28, 2003

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 See section 5158(b)(1).