The company is a fuel filtration and tank cleaning company. In December 2014, an employee was found unresponsive and later died from gasoline inhalation while cleaning tanks at a construction site in Daytona Beach, Florida. Following the incident, OSHA conducted an inspection and issued an 11- item serious citation for violations of 29 C.F.R. § 1910.23(a)(6) for failure to guard an open manhole; various subparts of § 1910.134 for deficiencies in its respirator program; and various subparts of § 1910.146 for failure to protect its employees from hazards associated with confined spaces. The Secretary proposed a total penalty of $13,600.00 for the Citation. All of the violations are at issue. The only issue before us is whether Administrative Law Judge Heather A. Joys erred in finding that the cited general industry standards in four of these citation items—Item 1 (failure to guard an open manhole) and Items 3a-3c (permit-required confined spaces)—apply to work at the “construction site”. Specifically, the judge rejected the company’s argument that it was engaged in “construction work” and affirmed all but one of these items as violations of the cited general industry standards with a penalty of $6,600. For the following reasons, we reverse the judgment and vacate all four citation items.
NOTE: PLEASE recognize this is a LEGAL DECISION and has NOTHING to do with actual safety. This incident occurred BEFORE OSHA had their Confined Spaces in Construction standards, 1926.1201-.1213, in place and today these standards would be used in a situation like this. A man died inside a PRCS from gasoline vapors – as a safety professional, whether this was a construction site or a general industry worksite does matter whatsoever to me.
