I wrote a few weeks ago about the death of three workers in a confined space incident where the initial worker passed out and two would-be rescuers died attempting to rescue the original victim. Last week, OSHA cited Douglas N. Higgins, Inc. and its related contracting company, McKenna Contracting with 10 “serious” violations totaling $119,507 in penalties for the deaths of three workers, Robert Wilson, 24, Elway Gray, 34, and Louis O’Keefe, 49, who died in similar circumstances last January 2017 while working in a Key Largo manhole from lethal levels of hydrogen sulfide and carbon monoxide.
OSHA cited the company for violations of its Confined Spaces standard for construction which requires employers to test the air in a confined space, identify and evaluate the hazards, ventilating the space, providing safety equipment for entry and exit and procedures for summoning rescue and emergency services. The confined space construction standard was issued by OSHA just last year. McKenna also received several citation for failing to train workers about the chemical hazards they encountered.
OSHA issued a press release covering this citation (a rare occurrence in this administration.) “The hazards of working in manholes are well established, but there are ways to make it safe,” said Condell Eastmond, the OSHA area director in Fort Lauderdale. “Three employees needlessly lost their lives and others were injured due to their employer’s failure to follow safe work practices.”
I have no additional knowledge of the legal issues involved in this case, but my first question would be why there are no willful citation. According to OSHA, Higgins “specializes in underground installations of mechanical systems, pump stations, storm water drainage systems and municipal infrastructure.” How can a company that specializes in work in areas where confined spaces are common can profess to have no knowledge of the hazards of confined spaces? And the problem with not issuing a willful violation is that, under OSHA’s law, the criminal charges cannot be pursued against the company.
Close Calls
The death toll from the Key Largo tragedy almost reached four. Firefighter Leonardo Moreno was also overcome by the fumes while trying to rescue the original victims, but survived after being placed in an induced coma for several days.
Meanwhile, up the road in Holidaysburg, Pennsylvania, three workers narrowly escaped death when they were found unconscious inside a tank car at GBW Railcar Services. Workers at the facility repair and clean tank cars used to carry liquids and chemicals. Like the cases mentioned above, a worker inside a tank car passed out from toxic fumes, and two of his co-workers went in to help him, passing out themselves. Investigators suspect low oxygen levels, which along with toxic gases like hydrogen sulfide, can kill people in confined spaces.
Like the case above, I find it hard to believe that a company like GBH which specializes in rail car service, has no knowledge of confined spaces. GBH owns and operates the The Greenbrier Companies and Watco Companies, railcar repair, refurbishment and maintenance businesses. Watco has received numerous OSHA citations in 2015, 2012 and 2011 for confined space violations, although none at this specific location.
No One Should Die in Confined Spaces
OSHA has had a general industry Confined Space standard since 1992 and the agency issued a Confined Space standard for the construction industry last year. The hazards are well known and the solutions are well recognized and proven to save lives. There is no excuse for workers to continue dying in Confined Spaces, and no excuse for their employers to claim ignorance. There is plenty of information out there, but the only way employers will get the message, and workers will stop dying is for OSHA to increase penalties, and for Congress to make it easier for OSHA to pursue criminal citations.
And knowing that workers are dying where companies should know better, I’m not really sure how Republicans in the House of Representatives can in good conscience vote to cut OSHA’s enforcement budget when workers lives depend on it being increased.
It is tragic that workers continue to die in confined spaces. Using the principles of inherent safety can be helpful in stopping the carnage. Eliminating confined spaces is the best option. Altering confined spaces thru redesign to be safer or to not require entry is the second best option. Using permits, training and procedures, monitoring and PPE are important and often necessary, but these measures are the least effective approaches to addressing the hazards of confined spaces.
NFPA 350 has a chapter on prevention through design for confined spaces.
Also see:
Prevention through Design: Eliminating Confined Spaces and Minimizing Hazards- AIHA
www.aiha.org/government-affairs/PositionStatements/PtD%20Conf%20Space%20AIHA%20-%20BOD%20Approved.pdf
and
Engineering Design: The Key to Safety in Confined Spaces
www.nwohs.com/Engineering%20Design%20–%20The%20Key%20to%20Safety%20in%20Confined%20Spaces.pdf
I kept up with this incident since it happened and was interested in the outcome of the investigation, very sad. Even worse, it is unfortunate that these incidents continue to occur over and over again needlessly. A similar incident would happen again on June 14 of this year just an hour and a half south of where I live in Petal, MS. Two men who were employed with a contractor from Brandon, Ms (Where I live) died while in a confined space inside an underground sanitary sewer lift station. The report indicated that the first worker entered the underground facility and within minutes fell unconscious. A second employee entered the lift station to aid the first worker and was overcome within minutes. A third worker called for help. First responders at this point could only recover the bodies of the two workers in the lift station. The preliminary report indicated the presence of lethal levels of methane gas within the enclosure. The two deceased workers were father and son. Another needless tragedy… I enclosed a link to the news story of the incident below.
wjtv.com/2017/06/14/brandon-father-son-killed-by-methane-gas-while-working-in-petal/
If companies fail to design-out the hazards, as Bill Hoyle wisely recommends, how prepared are employers (even large multinational companies) for a confined space emergency. See our paper here:
coeh.berkeley.edu/people/apers_educ/docs/Wilson%20PDF7.pdf. And the UC Berkeley press release here: news.berkeley.edu/2012/02/13/confined-spaces/. We surveyed 21 large companies and found that 57% relied on the fire department as their primary confined space emergency response. So we obtained response times and then rescue estimates from technical rescue companies. Median fire department arrival times were about 5 min for engines and 7 min for technical rescue units; however, actual fire department confined space rescue time estimates ranged from 48 to 123 min and increased to 70 and 173 min when hazardous materials were present. This paper illustrates that a sizable portion of employers are probably relying on public fire departments for permit-required confined space emergency response; and that in the event of a life-threatening emergency, fire departments are just not able to effect a confined space rescue
in a timely manner. The appropriate role for the fire department is to support a properly trained and equipped on-site rescue team and to provide advanced life support intervention following extrication and during ambulance transportation.
What is REALLY unfortunate here is that the Agency accepts almost 5,000 worker deaths per year. Sure, the causalities have come down historically – but annually, it has leveled off to around 5,000 for many years in a row now. It’s pretty hard to conduct 35,000 nation-wide inspections a year with 1,000 field people. And that has nothing to do with who won the last election. The Agency is consistently among the worst to work for in the government and has long had a “OSHA can do anything” mentality. The Agency essentially does NOTHING proactive these days. A large majority of the inspections conducted in the past couple years are unprogrammed. With the exception of complaints, that usually means: after an incident or injury. That being said, how can “The Mission” of ensuring each worker to a workplace that is free of safety and health hazards be achieved? The answer is this: It will never happen. OSHA has no business sticking their nose into most workplace violence issues when, in fact they are police matters. The Agency has never been prepared for large-scale events (explosions, multiple fatality cases, etc.). People that haven’t been in the field for 25 years that occupy the various command centers for OSHA in Washington need to come to the realization that an under-funded (historically underfunded regardless of political affiliation) Agency that cannot retain good people, chooses to hire less qualified people, continuously apologizes for managers who fail, etc. – is not a recipe for success. The federal government should be ashamed of a manager that has as few as one or two people reporting to them (for long periods of time). Add to that, the complete failure of a computer system that virtually NO ONE in OSHA will admit could have been better written by a first year software major only fortifies the belief that the government and OSHA do not want the Agency and its people to be productive. They say the republicans will want more of a compliance assistance approach in near future. Sounds great, right ? Problem is, many leaders in D.C. think that Compliance Assistance Specialists (CAS) actually go out into factories and to construction sites proactively to help reduce hazards, etc. CAS personnel have historically gone to seminars and given speeches about OSHA. That’s it. I’d rather have nobody at the helm of OSHA when compared to the one that just left. BTW – I am a registered Independent. I could care less for the left or the right.
I generally don’t respond to comments on the blog, but this one deserves some response. First, I heartily agree that the root of many of OSHA’s problems is chronic underfunding – in both Democratic and Republican administrations. That leads not only to an inability to inspect any more than a handful of workplaces each year, but also to some of the other problems you mention, like Information Technology issues. In general, the IT situation is pathetic throughout the federal government, with antiquated equipment and applications. But at least the feds have recognized the problem, which is the first step to fixing it. (more funding would obviously help.) The OSHA enforcement database has a long and sordid history, and had numerous problems when first rolled out, but it is functioning adequately now.
I couldn’t disagree more with your statement that OSHA has no role in workplace violence. That may be true in some situations, but certainly not in health care and social services which has a high number of preventable incidents which can be predicted and prevented using traditional safety and health principles. Staffing issues, locks on doors, panic alarms, etc., etc. are things that OSHA has authority over and expertise in. Even retail store robberies, while also being police matters, have a role for OSHA. When an employee is killed at a retail store, working alone, with not camera’s locking cash boxes, etc., there is a clear role for OSHA intervention.
Thanks for reading and thanks for your comments.
I appreciate your response. I think what I may have been trying to say was, if OSHA wants to take all these odds and ends so seriously (WPV for example), knowing that personnel levels (on an area office level) are at an all-time low, then they should work towards passing legislation on those type of WVP you reference. Doing inspections and citing things that OSHA does not have laws for (5a1) – gets old quickly. In fact, it’s a little embarrassing. Again, the original point was that OSHA has this “we can do anything and everything” mentality. D.C. people should visit an area office once in a blue moon and see what its like nowadays. Its very different now. A good organization would be able to successfully adjust to almost any change outside of their control.
You’re right about 5(a)(1). We actually added a workplace violence standard to the regulatory agenda last year and issued a Request for Information to launch the process. Don’t know what will happen to it under this administration though.