This case involved an industrial laundry company which uses continuous batch washers (CBW) which were correctly defined as a Permit-Required Confined Space (PRCS). During an OSHA inspection, the Compliance Officer (CO) took issue with the facility’s rescue plan from a CBW. After reading this case, I too took issue with their rescue plan; however, since the secretary was unable to explain the rescue requirements effectively, the citation(s) regarding rescue (k) were vacated! The main point of this citation was that the local FD was the “rescuer”; however, they were NOT qualified for “entry rescue” and the facility claimed the FD would cut a hole in the side of the CBW and perform rescue!?!?!?!?! This is hogwash, and this “rescue technique” was never practiced, yet the OSHRC did not see it this way. The FD and facility both admitted that if “entry rescue” was needed that two (2) other FD’s about 30 minutes away would have to be called and neither of these FDs had visited the site or performed any evaluation of the site and the site had never evaluated them. Yet again, the OSHRC vacated the citation(s). Here is the discussion…
These items allege deficiencies in the company’s PRCS rescue and emergency services plan. The parties have stipulated that when a rescue is needed, the company’s contacts the XXXXXXXXX Fire Department (“BSFD”) by calling 911. The company relies on the BSFD for rescue services as none of its employees are expected to or trained to perform a confined space rescue. The BSFD is about 100 yards from the facility. The BSFD visited the company’s facility in 2001 (approximately) to evaluate confined space operations. At least once a year, the BSFD conducted drills at the company’s facility to ensure they were able to respond to an emergency.
Additionally, the parties stipulated that the BSFD did not have a qualified confined space rescue team and could not make a rescue to retrieve a downed entrant. Rather, the BSFD would call for assistance from either FD#2 or FD#, which did have confined space rescue teams. To support this stipulation, the parties refer to the CO’s testimony. I find this stipulation to be somewhat mischaracterized. The deposition shows that the CO testified that the BSFD would not enter a confined space for rescue, but would instead cut into the CBW to retrieve the downed entrant. She also testified that if entry rescue was needed, the BSFD would call in either FD#2 or FD#3. The following is from the CO’s deposition testimony.
Q. Is it your understanding that the [BSFD] is still — well, strike that. Is it your understanding that at the present time that the [BSFD] is intending to provide rescue services, that was the import of your conversation with Chief XXXXXXX?
A. The [BSFD] cannot make an entry rescue into the CBW because it does not have people that are qualified for confined space entry.
Q. That’s the not the question I asked. Let’s try it again. Do you have, based upon your communication with Chief XXXXXXX, it’s your understanding that the [BSFD] is going to respond — let’s try it that way — is going to respond in the event that they are told that it’s necessary for a rescue to occur from a confined space?
A. Yes.
Q. And is it your understanding that they are going to conduct that rescue by cutting through the side of the CBW and retrieving the employee that way?
A. That was my last discussion with him, yes.
Q. So there’s two ways that you can do the rescue. You can go into the CBW, the [BSFD] can go in and they can take the employee out, is that right? That’s one way to do it?
A. Or you could have a retrieval system to pull the person out, to make a non-entry rescue.
Q. And it’s your understanding that today, the [BSFD], if called at least as indicated to you, they will respond and they will do a retrieval from the outside, is that correct?
A. That’s the only way they can retrieve somebody.
Q. That’s your understanding about what they will do, is that correct?
A. Right. Can I answer that?
Q. If you’re done with your answer, no. If you’re not done with your answer, yes.
A. What I’d like to add to that is [BSFD] has indicated if they need additional support they would call Mutual Aid through XXXXXX County, that Mutual Aid can take as long as 30 minutes to come because they would pull it from either the Town of XXXXX or Town of XXXXXXX which has confined space rescue training teams.
The Secretary alleges that the company did not properly evaluate its designated rescue service’s proficiency or its ability to respond in a timely manner. She also alleges the company did not provide the BSFD access to its facility. Her allegations are addressed below.
Citation 1, Item 6(a)
Item 6(a) alleges a serious violation of 29 C.F.R. § 1910.146(k)(1)(i), which states:
(k) Rescue and emergency services. (1) An employer who designates rescue and emergency services, pursuant to paragraph (d)(9) of this section, shall: (i) Evaluate a prospective rescuer’s ability to respond to a rescue summons in a timely manner, considering the hazard(s) identified. [Emphasis added].
The Secretary alleges that the company did not evaluate the local fire department’s ability to timely respond to a rescue summons. She asserts that rescue must be available in a very short period of time based on the hazards at the company’s facility. Nonetheless, the Secretary did not cite the company for improper selection of a rescue team; instead, she alleges that the company did not conduct the required evaluation. The CO admitted that an the company management employee told her that the company had contacted the BSFD to provide rescue services. Because the BSFD was located within 100 yards of the company’s facility, I find that the company did not need to conduct a detailed study to determine that the BSFD’s response would be timely.
The Secretary further alleges that the company’s confined space program did not require contact with the BSFD to verify its availability before each confined space entry. This is an inaccurate assessment by the Secretary. The company’s plan required calling the fire department prior to each confined space entry, as illustrated by both its written procedure and the entry permit form. The company’s procedure states that “[t]he plant will utilize the local Fire Department as the confined space rescue team. The local Fire Department has been contacted and agrees to perform rescue in the event one is needed.” The permit form asks if the fire department has been made aware of the entry. If the answer is no, then entry is not allowed. I find that the company’s program does require contact with the BSFD prior to each entry.
The Secretary has not established that the company did not evaluate the designated rescue team’s timeliness. Item 6(a) is vacated.
Citation 1, Item 6(b)
This item alleges a serious violation of 29 C.F.R. § 1910.146(k)(1)(ii), which states:
(k) Rescue and emergency services. (1) An employer who designates rescue and emergency services, pursuant to paragraph (d)(9) of this section, shall:
(ii) Evaluate a prospective rescue service’s ability, in terms of proficiency with rescue-related tasks and equipment to function appropriately while rescuing entrants from the particular permit space or types of permit spaces identified; … . [Emphasis added].
The Secretary alleges that the company did not conduct a “meaningful evaluation” of the BSFD’s proficiency with rescue-related tasks and equipment before its designation as the company’s rescue and emergency service. She additionally alleges that because the BSFD would rescue an entrant by cutting into the CBW, instead of utilizing a retrieval system, the company did not conduct a proper evaluation. The Secretary is focused on what she believes is an inadequate method of rescue. She did not provide persuasive evidence that the BSFD’s method of rescue was inadequate. Further, as noted above, the company had contacted the BSFD about using its rescue services, the BSFD had visited the facility, and the BSFD conducted drills prior to the OSHA inspection. The Secretary has not shown by a preponderance of the evidence that the company did not evaluate the designated rescue team’s proficiency. Item 6(b) is vacated.
Citation 1, Item 6(c)
Item 6(c) alleges a serious violation of 29 C.F.R. § 1910.146(k)(1)(v), which states:
(k) Rescue and emergency services. (1) An employer who designates rescue and emergency services, pursuant to paragraph (d)(9) of this section, shall:
… .
(v) Provide the rescue team or service selected with access to all permit spaces from which rescue service may be necessary so that the rescue service can develop appropriate rescue plans and practice rescue operations. [Emphasis added].
The Secretary alleges that the company did not provide the BSFD access to its permit spaces. However, the parties stipulated that the BSFD visited the company’s facility in 2001 and conducted annual drills thereafter. Additionally, the CO admitted that she had no evidence that the company did not provide access to the BSFD. I find that the company did provide access to the BSFD. Item 6(c) is vacated.
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