Seventh Circuit Upholds Permit-Required Confined Space OSHA Violations
At an Illinois manufacturing plant, a worker fell into a large bin used for storing sand and became trapped. At first buried up to his neck, some of his co-workers were able to remove the sand above his waist but not get him out of the pit or remove any additional sand. The plant manager arrived on the scene about 10-15 minutes later and determined that no emergency existed and left the scene. The would-be rescuers were unable to get the worker out of the trapped sand. After about an hour and a half, the plant manager called 911. It eventually took the fire department several additional hours to rescue the worker and the worker had been in the pit for more than five hours by the time he emerged.
The pit qualified as a “permit-required confined space” under OSHA regulations, which require that a facility having such spaces “develop and implement procedures for summoning rescue and emergency services, for rescuing entrants from permit spaces, for providing necessary emergency services to rescued employees, and for preventing unauthorized personnel from attempting a rescue.” 29 C.F.R. 1910.146(d)(9). Following an OSHA investigation, OSHA issued the plant one willful and three serious violations. The plant challenged the willful violation alleging failure to appropriately summon emergency services immediately upon discovering the accident and preventing the co-workers from trying to rescue the worker, which could have exacerbated the situation.
The Seventh Circuit denied the plant’s petition for review. The plant argued that the regulations do not require that the employer actually call 911 immediately or prevent coworkers from attempting a rescue, but merely require the employer to have adopted such procedures. Writing for the court, Judge Posner explained, “That may be a permissible literal interpretation, but it is neither inevitable nor sensible, as it would allow the employer to do nothing at all to rescue a worker injured or endangered at work–not even call 911. Literalism frequently, and in this instance, leads to absurd results.” Proof of willfulness, in this case, required proof that the employer was aware of the risk, knew it was serious, knew that effective measures could be taken to avoid it, and in short, failed to act. In this case, the court concluded that there was no doubt that the plant manager acted recklessly (and therefore willfully under the statute) and that the reckless behavior should be imputed to the employer.
The plant also challenged a citation finding it was liable for the failure to have railing of at least 42 inches in height around the pit. The court explained, the plant’s “arguments that it didn’t violate these regulations are terrible.” The plant argued that the pit was not subject to the 42-inch guardrail requirement because the pit is not as dangerous as a galvanizing tank that contained toxic liquids, but the court explained that while not as dangerous, a fall into an 18-foot deep sand bin is significantly more dangerous than a short fall onto regular flooring, which is all that is required to trigger the requirement. See 29 C.F.R. 1910.23(c)(3) (“[R]egardless of height, open-sided floors, walkways, platforms, or run-ways above or adjacent to galvanizing tanks, degreasing units, and similar hazards shall be guarded with standard railing and toe board.”).
