U.S. Bureaucracy Blamed in Confined-Space Deaths

Times Labor Writer

Just before dawn on Dec. 5, a fellow worker found Dennis Claypool and Mark DeMoss lying dead on their backs in a large tanker-trailer they had been directed to clean at a trucking company 60 miles south of Chicago.

The two young men had died in the same way as about 3,000 other workers in the last decade: by breathing unsafe air in enclosed work spaces. In this case, federal Occupational Safety and Health Administration officials have concluded that DeMoss, 18, and Claypool, 21, died because all the oxygen had been sucked out of the tanker during a chemical operation two days earlier.

Claypool’s father, Philip, a Morris, Ill., carpenter, and occupational safety experts said the deaths of his son and DeMoss are symbolic of a striking failure by regulators.


Every year, about 300 workers die in such incidents nationwide, and all of them die needlessly, according to John Moran, former director of safety research for the National Institute of Occupational Safety and Health (NIOSH).

Unlike many health and safety issues affecting the workplace, there is little disagreement over the need for federal standards to regulate work in what are referred to as “confined spaces.” Some employer groups, as well as numerous unions, have been among those urging the government to adopt such standards.

In fact, OSHA itself first acknowledged in 1975 the need to set safety standards for workers entering and working in confined spaces.

That was 14 years ago, but standards still have not been issued. In the meantime, according to Moran’s figures, more than 4,000 people have been asphyxiated, poisoned or died in explosions in boilers, sewers, refinery tanks, silos, airplane wings and other confined spaces. Many of those died trying to rescue their co-workers.

“This is a clear example of the failure of OSHA to act in an area where people are getting killed,” said Margaret Seminario, associate director of safety and health for the AFL-CIO. “It’s such a clear hazard and there’s no question that it’s feasible to do something.”

Outline Exists for 10 Years

The formal outline of how federal OSHA could regulate “confined space” entries has existed since 1979, when NIOSH presented OSHA with a 68-page document describing the criteria for a standard. Since then, OSHA personnel have written several drafts but never took any action.


Only a few days before Claypool and DeMoss died, OSHA finally finished its confined-space proposal and sent it to the Office of Management and Budget. The budget agency must approve the proposal before OSHA can formally present it for public hearings.

A knowledgeable source in federal OSHA said the standard differs “very little” from the last major draft, completed in June, 1985. The source said that for the last three years Labor Department lawyers have been tinkering with the proposal and writing a lengthy preamble to the standard.

Tom Seymour, OSHA’s deputy for safety standards programs, acknowledged that confined-space deaths are a “serious problem” and that federal regulations are “long overdue.”

It should not have taken so long to get a standard written, Seymour said in a telephone interview. “Part of the problem (for the delay) has been priorities,” he said, indicating that the agency considered other issues more pressing.

Administration Opposition

But union representatives and other safety and health officials asserted that much of the delay was due to the stated philosophical opposition of the Reagan Administration to adopting more regulations. “This reflects the Reagan Administration’s knee-jerk, anti-regulation outlook which has obstructed all OSHA rule-making,” said Frank Mirer, the United Auto Workers’ health and safety director.

Confined-space deaths are hardly a matter of concern only to union officials and safety engineers. At least some elements of corporate America say they have urged OSHA to act.


“People are dying every year; industries recognize that,” said Jo Anne Linhardt, a safety expert for Organization Resources Counselors Inc., a Washington-based consulting firm that gives professional assistance to numerous Fortune 500 companies.

She said her organization had sent suggestions to federal OSHA on what should be in a confined space standard, as have several unions and professional safety groups, including the Water Pollution Control Federation.

Characteristics Listed

A “confined space” is described by occupational safety experts as a space with any of the following characteristics:

- Small openings for entry and exit.

- Unfavorable natural ventilation.

- An area not designed for continuous worker occupancy.

The two most commonly occurring hazards in confined spaces, according to Moran, are oxygen deficiency and potentially explosive conditions created by the presence of methane gas. The deaths generally occur when a worker enters a confined space not knowing that there is a lack of oxygen or that the air is pervaded by toxic chemicals that can swiftly be fatal. The recent Illinois case appears to be a classic example, as was an incident in Burbank in 1981 when two city workers were overcome by hydrogen sulfide gas when they entered a manhole, unaware of the hazard.

In the Illinois case, there was insufficient oxygen in the tanker that Claypool and DeMoss entered because, two days earlier, a chemical company had used nitrogen to remove a shipment of dodane, a liquid used in making detergent, from the tanker, according to state and federal officials. Nitrogen, an odorless, colorless gas, sucks oxygen out of the air. There was no sign on the tanker warning that breathing could be difficult, according to a wrongful death suit filed by Claypool’s parents.

Perhaps the most tragic aspect of the confined-space problem is that the vast majority of the calamities involve multiple fatalities. Generally at least one would-be rescuer perishes, as well as the original victim, according to government studies.


Five Men Die

For example, last June five young men died in a confined-space incident at Bastian Plating, a small company in Auburn, Ind. They were asphyxiated by hydrogen cyanide gas, which was created when Jeff Link was cleaning a 5-foot-deep tank. Four of Link’s colleagues died from the same fumes while trying to rescue him. Craig Fogle, 19, was the last.

Fogle’s mother, Brenda, a waitress, is now campaigning to get a federal law passed in hope that such tragedies will not recur. “The four boys tried to save the first one,” she said. “It was such a waste.”

Ted Tomczak, a federal OSHA official who has been working on the confined-space issue for almost five years, goes further. “The core of the problem is rescues,” he said. “To lose additional people trying to make an impossible rescue--that borders on criminal.”

Moran agreed. He said that NIOSH’s division of safety research did detailed investigation of 39 confined-space incidents from 1984 to 1987. The investigations took place in 17 states, ranging from California to Vermont, and covered a wide range of industries, including tanker trucks, aerospace and waste water treatment.

The research revealed that 31% of the companies at which incidents occurred had written confined-space entry procedures but that none of the companies had used them. Only 15% of the companies had trained their workers on confined-space hazards; none of the companies had a rescue plan; 43% of the victims were would-be rescuers; 95% of the entries had been authorized by supervisors and 29% of those who died were supervisors. None of the spaces were evaluated or tested (for oxygen or chemical content) before entry and none of the spaces were ventilated.

Deaths Were Avoidable

“None of these fatalities would have occurred if the NIOSH confined-spaces recommendations in the 1979 criteria document had been followed,” Moran said.


And reports of individual NIOSH investigations describe a series of grim incidents: “Three sanitation workers and one policeman die in an an underground sewage pumping station in Kentucky”; “Truck driver suffocates in sawdust bin in Pennsylvania”; “Two workers die in underground valve pit in Oklahoma”; “Insufficient oxygen level in sewer claims the life of plumbing contractor in Georgia,” and on and on.

In their defense, federal OSHA officials said that they have not been powerless to respond to these tragic incidents. In numerous instances, they have cited employers responsible for confined-space deaths by using the “general duty clause,” a catchall provision of the federal Occupational Safety and Health Act designed to plug holes in instances where there has been a fatality or a serious life-threatening hazard.

For example, federal OSHA’s Long Beach office cited Continental Truck Wash on South Central Avenue and fined the company after a worker was killed there in an explosion on Nov. 10, 1987, while cleaning a truck tank that had recently contained aviation fuel. The fine was $1,400.

Michael Wright, health and safety director of the United Steelworkers of America, one of the unions most actively advocating enactment of a confined-space standard, said that general duty clause citations were better than no action at all. However, he said that such citations are tougher to sustain, if challenged in court, than citations based on a specific standard, such as one regulating the amount of airborne asbestos that can be present in a workplace.

Primarily Punitive

More importantly, Wright said, general duty clause citations are primarily a punitive tool rather than a preventive tool. He said that inspectors “rarely” are able to issue such citations on a routine inspection before an accident occurs. “They’re generally used after serious accidents,” which is important, he said. “But the whole purpose of OSHA is to prevent the accident, not just to penalize someone afterward. . . . I can’t understand why it’s taken them so long to write a standard.”

OSHA’s Tomczak said the process of drawing up the proposed confined-space standard had been long and “very frustrating.” He said he could not provide a copy of the proposed standard until it had been cleared by the Office of Management and Budget. However, he was willing to describe some of its components.


“We are demanding that the employer have a program to identify the (confined) spaces, identify hazards, evaluate their severity, determine proper controls for all the hazards, entry procedures, training and permits,” Tomczak said.

The reason for having a written permit, he said, is to make sure that the entry has been authorized and that all the proper procedures have been followed. Tomczak said such a system was designed to ensure that “in case something goes wrong, everyone knows what to do, where to go for help and how to get the people out of the space.”

Charles Conner, director of safety for the Los Angeles County Sanitation District, also said it would be useful to have a federal standard that provided clear criteria on how confined-space entries should be handled. Conner said the use of proper safety procedures and good training of employees could vastly cut down these deaths. He said there were no confined-space deaths among county sanitation district workers in the last decade, even though waste water treatment work is quite hazardous.

Discussion Set Monday

Officials of OSHA and the Office of Management and Budget will meet in Washington on Monday to have their first formal discussion of the proposal. OSHA’s Seymour said there already are indications that OMB will oppose a major component of OSHA’s proposal--the requirement of a written permit system--creating the clear possibility of further delay. Still, he said, he is hopeful that the proposal will be cleared by OMB “before summer” and that it can go into effect later in the year.

Meanwhile, Claypool continues to grieve and has formed an organization called You’re Not Forgotten, designed to provide moral support to the family members of victims of industrial accidents. “No one should have to go through what we’re going through,” said Claypool, referring both to his family’s mourning and OSHA’s failure to act.

Claypool has been given moral support by Joseph Kinney, president of the Chicago-based National Safe Workplace Institute, an organization Kinney formed in 1987 after his brother died in a scaffolding accident. Kinney asserted that the long delay in enacting a confined space standard showed how the goal of improving workplace safety and health in this country had been perverted into an “abstract exercise in law and economics” by some government officials who set certain litmus tests that had to be met for regulations to go into effect.


“Let’s bias things in favor of safety and work backwards, rather than the opposite, which is what is done now,” Kinney said. “If George Bush wants to make this a ‘kinder and gentler nation,’ one thing he could do is to get confined-space regulations enacted as soon as possible.”