Confined spaces can be death traps for workers, isolating them in a space they cannot easily escape in the presence of invisible, subtly accumulating hazards like flammable or oxygen-deficient atmospheres.

But are all spaces that are difficult to enter and exit hazardous for workers? Is it possible to make a tight space safe for workers to enter without the precautions of a permit system, constant monitoring, and special rescue gear? In one recent case, Cal/OSHA said no; the employer said yes. What did the administrative law judge (ALJ) for the California Occupational Safety and Health Appeals Board conclude?

Confined spaces but no program

Davidson Enterprises, Inc., in Bakersfield builds and repairs mobile tanks, and in this case, its workers entered the tanks to do work. According to Davidson, none of the tanks workers entered were permit-required confined spaces (PRCS) because they contained no hazards.

When Cal/OSHA inspected Davidson’s facility on May 16, 2014, though, the agency decided the employer’s classification procedures for confined spaces were inadequate. It found the employer needed a full PRCS entry program, as required by General Industry Safety Orders (GISO) Section 5157.

Cal/OSHA issued serious citations against Davidson for:

• Not evaluating whether tank interiors were PRCS;
• The absence of a written PRCS program;
• Failing to have means, procedures, or practices necessary for safe access to PRCS;
• Lack of adequate entry permits for PRCS; and
• Lack of training for employees entering PRCS.

Davidson contested the citations, arguing that it did not permit workers to enter PRCS.

The parties’ positions

Davidson builds and repairs tanks that are used to haul a variety of liquids, including diesel fuel, liquefied petroleum gas, acids, and hazardous chemicals like chlorine. When tanks were brought in for repair, Davidson required them to be empty.

All of the tanks were classified as confined spaces by Davidson because they were large enough for workers to enter them and perform assigned work, had limited means for entry and exit, and weren’t designed for continuous human occupancy.

Before any employee entered a tank, the tank was tested to determine whether it contained a hazardous atmosphere. Workers checked the tank for oxygen levels, internal temperature, and flammable substances; they recorded their results on the back of the tank data sheet.

If a hazardous atmosphere was found, Davidson classified the space as a PRCS. Davidson did not permit employees to enter any PRCS. Instead, it cleansed the tanks without having workers enter them and then tested the tanks again. If the atmosphere was found to be nonhazardous, the tank was reclassified as non-PRCS, and only then were employees permitted to enter.

If an employee entered a tank again after the first entry, the tank was tested again to make sure it was a non-PRCS. Although GISO Section 5157 allows some level of flammable gases, Davidson insisted that the level of flammable gases inside the tank be reduced to zero before an employee entered the tank.

Cal/OSHA took issue with Davidson’s testing and classification procedures, insisting they were not adequate to protect workers. The agency argued that Davidson should have tested for carbon monoxide and hydrogen sulfide as well as for more toxins. Cal/OSHA also argued that Davidson should have continuously monitored the air while workers were in the tanks.

Davidson disagreed, noting that carbons were never burned inside the tanks, so there was no source of carbon monoxide. It further argued that the flammable gas check would pick up flammable hydrogen sulfide, making separate testing unnecessary. As for testing while workers were inside the tanks, Davidson argued it had no reason to believe the atmosphere could become hazardous once the tank was completely cleansed.

As part of its evidence, Davidson included the results of testing done by its insurer, the State Compensation Insurance Fund (SCIF), showing that carbon dioxide and hydrogen sulfide were not present in the tanks and that employee exposures were within acceptable limits at all times.

The decision

After weighing the evidence, the ALJ sided with the employer, stating, “it cannot be found that Employer’s methods of evaluating a confined space were inadequate.” Davidson, the ALJ found, had conducted appropriate workplace surveys to determine whether the space created an exposure hazard to employees and whether it fell within the PRCS standards.

The employer won this one. With its evaluation procedures vindicated, all of the citations for failing to create and implement a PRCS entry program were vacated. But unlike many employers that classify spaces as non-PRCS and let workers enter them without permits, Davidson understood that declaring a space a non-PRCS is more involved than simply insisting that the space contains no hazards.

Davidson went to considerable lengths to evaluate potentially hazardous spaces, eliminate any hazards, and document that the spaces were safe before workers ever entered them. Its efforts paid off in both worker safety and protection against Cal/OSHA fines.