One day in March 2000, Ricardo Garcia decided that to clean the inside of a long-haul, 7,000-gallon tanker trailer, he needed to go in it. He went in alone, but co-workers had to carry him out.
Garcia was found without a respirator, a safety harness and any protective clothing. He died soon after he was pulled from the tank, asphyxiated by the Alpha-Pinene 99.2 percent vapors inside the tanker truck, according to the OSHA investigation summary. Alpha-Pinene is a pine tree solvent used to give bathroom cleansers a fresh, "piney" smell.
The year 2000 was a particularly bad one for confined space fatalities (see chart on page 47). OSHA investigated 28 such cases that year, seven years after issuing its confined space regulation 29 CFR 1910.146.
In most respects, the Garcia case appears to be typical and, therefore, is valuable to anyone who wants to understand why so many workers are still dying in permit-required confined spaces nearly a decade after the release of OSHA's standard (see "Common Threads").
Training Is Crucial
There is dispute over some facts of the case. The heart of the matter appears to be whether the owner of the confined space, Reynolds Nationwide, had trained Garcia in permit-required confined space entry, as OSHA regulations require. Reynolds is a trucking company with operations in Laredo, Texas.
Experts and OSHA investigators say inadequate training in permit-required confined space programs is frequently a contributing factor in fatal incidents. Employers often counter it is worker misconduct, not poor training, that is at issue. Reynolds is no exception here.
Another common feature of this confined space fatality is the victim's family is suing the owner of the space.
If Reynolds' account of what happened is correct, the company may have some reason to believe it has been unfairly targeted.
The company's version of the facts comes from sources who asked not to be identified, but who are familiar with Reynolds' legal defense.
Reynolds argues that:
- Garcia had been properly trained in the company's permit-required confined space program, but on the day he died, Garcia acted on his own and ignored what he had been taught.
- OSHA cited Reynolds, even though Garcia was not a regular Reynolds employee; the company contracted him from Transportes Estrella del Sur, a Mexican firm operating in the United States. An interesting feature of the case is that Garcia was a Mexican national.
- Now Garcia's family is suing Reynolds, because his employer was a Mexican company with few assets.
Contract Workers
Training and disciplining contract workers in confined space programs can pose challenges for employers, but the Garcia case illustrates that, as far as OSHA is concerned, employers are just as responsible for the safety of contract workers as they are for their regular employees.
Reynolds owned the trailer and contracted with Estrella to clean it.
"The Mexican company billed Reynolds for Garcia's time; it's like he was leased to them," said OSHA's area director John Giefer, who participated in the informal conference with Reynolds after the citations were issued.
"Garcia was a truck washer who was supposed to clean just the outside of the vehicle," said a source familiar with Reynolds' defense. The worker was trained, but not authorized, to enter the space.
"He went in on his own," the source continued, "and that's part of the reason why he died - no one knew he was in there." Fifteen feet from the truck, in an unlocked shed, was a safety harness, a respirator and other personal protective equipment (PPE) that Garcia failed to use. He also had not ventilated the truck, as he was trained to do before entering, according to the company.
No one knows how long Garcia was inside the truck, but it was probably a matter of minutes before he was found. What happened next likely qualifies as a near-miss confined space fatality.
"A guy jumped in the truck without a respirator or a harness and pulled him out," a company source said. Fortunately, the pine solvent did not overcome the rescuer.
This part of the Garcia case illustrates one reason why multiple-fatality confined space incidents often occur. Even if they have been properly trained, workers may forget their training and the proper entry procedures, and jump into the confined space without PPE because they are overcome by the natural emotion to rescue a co-worker. All too often, the would-be rescuer is overcome by the same hazard that knocked out the person he was trying to rescue.
Garcia was still alive when he was pulled from the truck, but died shortly afterward in a hospital. The OSHA investigation summary lists asphyxiation as the cause of death.
Reynolds maintains it had a written permit-required confined space program, but OSHA cited the firm for failure to comply with this part of the rule. On the day OSHA arrived to investigate, the manager on duty "couldn't find the written program," according to a source familiar with Reynolds' defense.
Employee Misconduct?
Although the company claims Garcia entered the truck because of employee misconduct, OSHA cited Reynolds for failure to comply with the training (G01) component of 1910.146.
Giefer said the "employee misconduct defense" is frequently used by employers in confined space cases, but it is valid only if employers can prove:
- They provided the equipment;
- Established a work rule or policy;
- Communicated it effectively to employees;
- There is an enforcement procedure;
- The misconduct is an isolated incident; and
- The worker completed the training.
The training issue and the availability of PPE are likely to be at the heart of the lawsuit brought by Garcia's family.
In its original petition, the family seeks unspecified monetary damages and alleges three negligent acts or omissions by Reynolds: failure to provide plaintiff with a reasonably safe place to work, breathing safety gear and safety clothing. The petition also states that Garcia was the sole financial support of his parents.
"The fact that employees could go into a permit-required confined space was not recognized or addressed by the employer," according to Giefer. "If you've got a permit-required confined space, you must either look at the possibility an employee will enter or make sure they can't get in."
Giefer said that Garcia was supposed to clean the truck out by flushing it with water from on top of the tank. Because the truck had baffles, he could not remove the water and solvent without going inside to absorb it and carry it out.
Training failures, Giefer said, are often the cause of confined space fatalities. "They gave him a job to do, one that involved cleaning a confined space, but they did not make it clear he shouldn't go in," he concluded.
Although the OSHA investigation has been completed, disputes over what happened the day Garcia died are far from over. Even though Reynolds has paid its fine, the company must now pay for its legal defense and hope it prevails in court.
Armando Lopez, the family's attorney, said the case is in the discovery phase. If efforts to reach a mediated settlement fail, a jury trial is set for July.
Sidebar - Common Threads
The Garcia case appears to have a number of "common threads" with other confined space fatalities in general industry, according to Robert Spielvogel, CIH, CSP, REM, principal of Robert Spielvogel and Associates, an environmental, health and safety consulting company in Brookline, Mass. Spielvogel has been dealing with confined space hazards for 22 years, first as an OSHA compliance officer, later as a health and safety director for a nationwide company, and now as a consultant.
While some of the facts in the death of Garcia are in dispute, Spielvogel identified the following as typical causes and consequences of confined space fatalities in general industry:
The cause of death is oxygen deficiency or air contamination. Spielvogel cited a 1994 NIOSH publication that found 79 percent of confined space fatalities resulted from atmospheric hazards (oxygen deficient, toxic or flammable) and 21 percent from physical hazards. "So if you monitor and/or ventilate the space, you can eliminate close to 80 percent of the risks," Spielvogel concluded.
The victim may not have been properly trained or did not understand the hazards. Spielvogel pointed out that had Garcia truly understood the confined space hazard, he would not have entered the tank. OSHA cited the company for training failures. A language barrier may have exacerbated the problem. Like a growing number of U.S. workers, Garcia was a Mexican national who spoke little English. Moreover, the company may have had a hard time training, and disciplining, Garcia because he was a contract worker, not a regular employee of the company.
OSHA cites company for lack of an effective written program. Spielvogel noted that many companies have written programs, but that does not mean these programs are effectively implemented.
Thorough evaluation to identify all confined-space hazards. It is not clear whether the company performed a thorough hazard evaluation. Spielvogel said such an analysis, for example, would determine whether the baffles inside the tank would interfere with a harness' effectiveness, as this is needed for rescue operations.
Rescue procedures. It appears the company was lucky that the Garcia case did not lead to a multiple fatality incident, an all-too-common problem, according to Spielvogel.
Legal liability for contract workers. Garcia was a contract worker, but OSHA fined the company $13,860 for the case, and now the victim's family is suing the company.