UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MONTGOMERY KONE INC

v.

SECY LABOR


00-1029a

D.C. Cir. 2000


*	*	*


Tatel, Circuit Judge: Following an explosion in an eleva- tor pit, the
Secretary of Labor fined petitioner for failing to  provide special
training required by OSHA regulations for  workers who must enter
"confined spaces." Finding the  agency's interpretation of its own
regulations reasonable and  its decision supported by substantial
evidence, we affirm.


I


Occupational Safety and Health Administration regulations  governing
safety training in the construction industry provide  that workers
required to enter "confined or enclosed spaces"  must receive special
training "as to the nature of the hazards  involved, the necessary
precautions to be taken, and in the  use of protective and emergency
equipment." 29 C.F.R.  s 1926.21(b)(6)(i). In language central to this
case, the regu- lations define a confined space as "any space having
limited  means of egress, which is subject to the accumulation of
toxic  or flammable contaminants or has an oxygen deficient atmo-
sphere." 29 C.F.R. s 1926.21(b)(6)(ii).


The space involved in this case is a pit at the base of an  elevator in
a United States Post Office truck terminal in  Philadelphia. Located
beneath the elevator's floor line, the  pit is about four feet, ten
inches deep and measures twelve  feet by sixteen to eighteen feet
across. During the period of  time involved in this case, the floor of
the pit could only be  reached with ladders: a permanent metal ladder
was at- tached to one wall; an orange extension ladder and a six-foot 
fiberglass ladder leaned against two other walls; and a  wooden
A-frame ladder stood in the center. Sec'y of Labor v.  Montgomery
KONE, Inc., 1999 OSHRC No. 37 at 3.


Petitioner Montgomery KONE had a contract to modernize  the terminal's
elevators. To accommodate the piston that  powered the hydraulic
mechanism of one of the elevators, a  seventy-two foot shaft was
drilled into the pit's base. To 


protect the piston from corrosion, the shaft had to be lined  with
polyvinyl chloride ("PVC") plastic pipe, which came in  several
sections. Using PVC primer and liquid cement, both  of which contain
flammable solvents that produce vapors 2.5  times heavier than air,
Montgomery KONE employees work- ing in the pit glued the sections
together and then lowered  the assembled pipe into the shaft. Not long
thereafter, when a  worker in the pit smelled fumes, a supervisor
directed the  workers to insert a compressed air hose into the shaft


Approximately a week to ten days after the PVC liner was  installed,
while a Montgomery KONE worker assembling the  hydraulic mechanism was
using a welding torch, an explosion  blew the PVC pipe out of the
shaft. The force of the  explosion threw the worker against the pit's
wall, causing  multiple leg injuries. Another worker, also thrown
against  the wall, temporarily lost hearing in his left ear. The two 
workers escaped by climbing the extension ladder, the only  remaining
way out--the explosion had cut the wooden ladder  at the back of the
shaft in two, access to the iron ladder was  blocked, and the
fiberglass ladder was not in the pit.


Following an inspection by OSHA Compliance Officers the  next day, the
Secretary of Labor cited Montgomery KONE  for violating the confined
space training regulations and  proposed a $3500 fine. Montgomery KONE
contested the  citation, triggering an evidentiary hearing before an
Adminis- trative Law Judge. The ALJ vacated the citation, finding 
that even though the pit satisfied one of section  1926.21(b)(6)(ii)'s
requirements--it was subject to the accu- mulation of flammable
contaminants--it did not qualify as a  confined space because it
failed the other requirement: due  to the presence of ladders, the
means of egress was not  "limited." See Sec'y of Labor v. Parsons
Brinckerhoff  Constr. Services, Inc., ALJ Decision and Order at 6-7.
Re- versing the ALJ, the Occupational Safety and Health Review 
Commission found that "conditions encountered in the eleva- tor pit
constituted a limited means of egress" both because  escape required
climbing a ladder and because "[w]hen the  explosion occurred and the
lights went out, the two employees 


had to feel their way around in the dark until they found each  other,
then found the ladder and helped each other get out of  the pit." 1999
OSHRC No. 37 at 9. Finding that Montgom- ery KONE failed to provide
confined space training, the  Commission imposed the $3500 fine. See
id. at 11. Mont- gomery KONE appeals, arguing (1) that because of the 
presence of ladders, egress from the pit was not limited, and  (2)
that evidence demonstrates that the pit was not subject to  the
accumulation of flammable contaminants.


II


As usual in cases of this kind, the outcome turns largely on  the
standard of review. Unlike in most administrative cases,  however,
here we review the actions of two different entities,  each of which
has a different function in the statute's enforce- ment scheme. See
Occupational Safety and Health Act of  1970, 29 U.S.C. ss 651-78. The
Secretary promulgates and  enforces regulations; the Commission has
fact-finding and  adjudicatory powers. See S.G. Loewendick & Sons,
Inc. v.  Reich, 70 F.3d 1291, 1294 (D.C. Cir. 1995). As a result, we 
defer to the Secretary's interpretation of OSHA regulations  and to
the Commission's fact-finding. See id. at 1294.


In this case, the bifurcated standard of review has no  practical
consequence. Not only does Montgomery KONE  make nothing of it, but in
her brief, the Secretary expressly  adopts the Commission's
interpretation of section  1926.21(b)(6)(ii) as well as its factual
conclusions. Notwith- standing the involvement of two agencies,
moreover, our  review is guided by traditional principles of
administrative  law. Of particular importance to this case, an
agency's  interpretation of its own regulations "merits even greater 
deference than its interpretation of the statute that it admin-
isters." Buffalo Crushed Stone, Inc. v. Surface Transp. Bd.,  194 F.3d
125, 128 (D.C. Cir. 1999). We will defer to the  Secretary's
interpretation so long as it "sensibly conforms to  the purpose and
wording of the regulations." Id. at 128. We  will accept the


supported by "substantial evidence" and the Commission's  other
findings and conclusions "if they are not arbitrary,  capricious, an
abuse of discretion, or contrary to law." Loew- endick, 70 F.3d at


With this highly deferential standard in mind, we turn to  Montgomery
KONE's arguments that the Commission's in- terpretation of the two
elements of the confined space regula- tion--"limited ... egress" and
"subject to the accumulation of  ... flammable contaminants"--is
unreasonable, and that its  findings with respect to each are
unsupported by substantial  evidence.


Limited Egress


To elucidate the meaning of "limited," the Commission  looked to
Webster's New Collegiate Dictionary, which defines  the word to mean
"restricted." See 1999 OSHRC No. 37 at 8.  The Commission then found
that both physical and testimoni- al evidence demonstrated that egress
from the pit was re- stricted. Not only did photographic and video
evidence show  that the only way out of the pit was through the use of
 ladders, but both workers testified that in order to escape  from the
pit after the explosion, they had to maneuver around  obstacles and
then find and climb a ladder. One of the  workers testified that
confused and disoriented he felt his  way in the dark until he found
his co-worker, who in turn  testified that he could neither hear nor
see. Both testified  that they helped each other escape from the pit.
Based on  such testimony, the Commission concluded that "[t]he em-
ployees may have been able to climb out of the elevator pit  without
further problems, but the fact that they had to assist  one another
supports our conclusion that their means of  egress was limited." Id.
at 9. The Secretary agrees, explain- ing in her brief that "any means
of egress is 'limited' for the  purposes of this standard unless it
allows unimpeded egress  even under emergency conditions."


On appeal, Montgomery KONE points out--as it did before  the
Commission--that a different OSHA regulation, one that  regulates the
safety of trench excavations, expressly provides  that ladders are a
"safe means of egress." 29 C.F.R. 


s 1926.651(c)(2). The Commission rejected this argument:  "The fact
that ladders are a 'safe' means of egress from a  trench for purposes
of compliance with the excavation stan- dard does not mean that they
are not a 'limited' means of  egress for purposes of defining a
confined space." See 1999  OSHRC No. 37 at 8. Indeed, in a previous
decision involving  the excavation regulations, the Commission found
that egress  that may not be "entirely free of difficulty" may still
be  "safe." Sec'y of Labor v. C.J. Hughes Constr., Inc., 17 O.S.H. 
Cas. (BNA) 1753, 1754-56 (1996). In view of this, and  because the
excavation and confined space regulations deal  with different
situations, the Commission's position in this  case seems eminently


Equally without merit is Montgomery KONE's argument  that "egress" was
not limited because the workers in fact had  no difficulty escaping
from the pit. To be sure, one worker  did so testify. But the question
we face is not whether  Montgomery KONE can unearth evidence to
support its view  of what happened, but whether substantial evidence
in the  record supports the Commission's version of events. See 
Harter Tomato Prods. Co. v. NLRB, 133 F.3d 934, 938 (D.C.  Cir. 1998).
Here, the question is not even close. Not only do  photographic and
video evidence demonstrate that ladders  provided the only means of
egress from the pit, but workers  testified that after the explosion,
they had trouble getting out.  One worker testified:


I fell down into that area and I just sat there stunned  and I heard
Lou who was on the ladder on his way out.  There was maybe two more
rungs that he had to climb to  get out so he had maybe a foot to a
foot and a half. He's  still on the ladder and he says I.... I can't
see. I can't  hear.... So we held each other, went up the other two 
rungs, got to the front of the pit and we let go of each  other.


According to the other worker:


I was just pushed against the wall from the blast....  The lights went
out. I lost the hearing in my left  ear.... I couldn't hear.... As I
said the lights did go 


out and I started calling for Dan and I couldn't see Dan  because of
the darkness. Seconds later I felt Dan's hand  on my shoulder saying
let's get out and we both got up  the ladder and climbed out of the


Given this evidence and our deferential standard of review,  we cannot
imagine a basis for setting aside the Commission's  determination that
in precisely the kind of circumstances  contemplated by these
regulations--an explosion resulting  from the use of flammable
materials--an almost five-foot  deep pit from which workers escaped
only with the aid of a  single ladder satisfied the "limited egress"
prong of the  confined space regulation.


Subject to the Accumulation of Toxic  or Flammable Contaminants


The Commission concluded that "[t]he record clearly shows  that the
elevator pit became subject to the accumulation of  heavier-than-air
flammable vapors once Montgomery KONE  introduced the PVC primer and
cement into the pit." 1999  OSHRC No. 37 at 6. In reaching this
conclusion, the Com- mission rejected Montgomery KONE's argument that
the  confined space regulations did not apply because the compa- ny,
having attempted to purge the vapors from the shaft,  could not have
known they might remain over a week later.  According to the
Commission, "[w]here, as here ... an em- ployer is responsible for
introducing chemicals into the work- place, it also has a duty to
learn about the characteristics of  those chemicals and to determine
any dangerous conditions to  which the employees may be exposed as a
result." Id. at 6.  The Commission explained:


The material safety data sheets for both the PVC primer  and the PVC
cement indicate that the vapor density is  2.49 times that of air.
That information should have  informed Montgomery KONE's employees
that they  were dealing with vapors that would not all be blown out 


of the seventy-foot-deep PVC liner with the compressed  air they were
using.


Id. at 7. And in response to Montgomery KONE's evidence  that air
samples taken from the pit both before and after the  explosion
revealed no abnormalities, the Commission ex- plained that whether the
pit's atmosphere was actually con- taminated at the time of the
explosion had nothing to do with  whether the pit qualified as a
confined space. Rather, "the  presence of the flammable vapors in the
PVC cylinder demon- strates that the elevator pit was subject to the
accumulation  of flammable contaminants." 1999 OSHRC No. 37 at 8.


Montgomery KONE now reiterates its argument that tests  conducted
before and after the explosion detected no vapors  in the pit. It also
points out that for three days prior to the  explosion, workers
operated welding equipment in the pit  without incident. Finally, the
company claims that the explo- sion occurred in the shaft, not the
pit, and that because the  shaft and the pit were separate spaces, the
pit was not  subject to the accumulation of flammable contaminants.


All these arguments rest on a misunderstanding of the  Commission's
reason for finding that the elevator pit was  subject to the
accumulation of flammable contaminants. To  the Commission, it made no
difference that vapors had not  been detected either before or after
the explosion, that no  explosion occurred during previous welding
activity, or that  the explosion may have occurred in the shaft, not
the pit.  Instead, the Commission found--and the Secretary agrees--
that the presence in the shaft of flammable contaminants 2.5  times
heavier than air effectively made the pit "subject to the 
accumulation of ... flammable contaminants." The Secre- tary cites the


"The statement that there is no relationship between the  explosion and
the elevator pit blinks at reality....  [T]he effects of the explosion
were felt in the pit.... To  hold that this pit does not fall within
the definition set  out in s 1926.21(b)(6)(ii) because a flammable gas
accu- mulated and exploded in a cylinder placed in a hole in the 


pit's floor, rather than in the pit itself, elevates technical 
distinctions to an unwarranted level of importance."


ALJ Decision and Order at 5-6. Given the deference we owe  an agency
regarding the interpretation of its own regulations,  and given the
evidence in the record of heavier-than-air  vapors in the shaft, we
see no basis for overturning the  Commission's conclusion that the pit
met the second prong of  the confined space standard.


III


In light of the fact that the pit qualified as a confined space  within
the meaning of section 1926.21(b)(6)(ii), Montgomery  KONE had an
obligation to provide confined space training  pursuant to 29 C.F.R. s
1926.21(b)(6)(i): "[a]ll employees  required to enter into confined or
enclosed spaces shall be  instructed as to the nature of the hazards
involved, the  necessary precautions to be taken, and in the use of
protec- tive and emergency equipment required." Reviewing the  record,
the Commission concluded that Montgomery KONE  failed to provide
confined space training to workers required  to enter the elevator
pit. See 1999 OSHRC No. 37 at 6.  Indeed, according to the Commission,
the workers' immediate  supervisor expressly testified that "the
company did not  provide confined space training because it did not
work in any  confined spaces." Id. at 6 n.3.


Montgomery KONE argues that it had no reason to believe  that the
precautions it took to guard against the accumulation  of flammable
vapors were insufficient to prevent the explo- sion. As the Secretary
points out, however, this has nothing  to do with Montgomery KONE's
obligations under the con- fined space training regulation. Given the
supervisor's con- cession that the company provided no confined space
training,  we affirm the Commission's order and citation.


So ordered.