Archived - Decision: 95-014 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code, Part II, of a

direction issued by a safety officer

Decision No. 95-014

Applicant: R. J. Corfe

Assistant Vice-President

The St. Lawrence Seaway Authority, Niagara Region

St. Catharines, Ontario

Mis en cause: Peggy A. Wright

Safety Officer #1707

Human Resources Development Canada

Respondent: Gary Wilson

Co-chairman safety committee

Canadian Auto Workers

Local 4212

Before: Bertrand Southière

Regional Safety Officer

Human Resources Development Canada

A hearing was held in St Catharines on July 20, 1995. In attendance

were:

-Lou Spagnol, Mechanical Maintenance/Diver

-Joel Fournier, Service person 9 President, local 4212

-John Thomas Wickabrod Jr. , Union Operations Safety rep

-Gary Wilson, Co-chairman, occupational health & safety committee, local 4212

-Vince Hearn, Union member

-Julie Bottoni, Safety Officer, HRDC, Labour Program

-Wayne Page, Technical adviser/OSH, HRDC, Labour Program

-R. Noel, Safety Officer, HRDC, Labour Program

-Peggy Wright, Safety Officer, HRDC, Labour Program

-W. Bruce Tkachuk, Safety Officer, St Lawrence Seaway

-Shahin Najak, Occupational health & safety consultant Najak & Associates

-R. J. Corfe, Co-chairman, occupational health & safety committee, Niagara region, St Lawrence Seaway Authority

Background

Further to an inquiry conducted on October 18, 1994 and April 25, 1995,

Safety Officer Peggy Wright, Human Resources Development Canada, issued

a direction, dated April 25, 1995, to the St Lawrence Seaway Authority

(SLSA) at St Catharines (appendix 1). On May 5, 1995, the St Lawrence

Seaway Authority sent a FAX to the office of the Regional Safety

Officer requesting a review of this direction.

This direction pertains to the valve wells located in the centre wall

of locks 4, 5 and 6 of the Welland canal. Each of these wells is

roughly 80 feet deep; in cross section, they measure about 21 feet by

14½ feet at the top and 179½ feet by 14½ feet at their narrowest point,

at the middle landing. At the bottom of the well are located two

valves (Taintor valves) which control the flow of water from one lock

to another. A steel lever is connected to the top of the gate to

actuate it either up or down. This lever is in turn connected to an

endless steel cable which goes around a windlass located at the top of

the well and a return pulley located about 35 feet below the surface.

The top of the well is covered with steel grating; the intermediate

landing located some 30 feet down is also constructed of steel grating.

Appendix 2 is an illustration of one of the valve wells. A valve house

constructed above the well protects the machinery from the weather.

This valve house is open to the atmosphere.

Access to the intermediate landing is gained through a caged vertical

ladder that extends from ground level down to the landing. Because

these ladders are over 9m long, employees use a fall arresting system

when going up or down these ladders. The bottom of the well where the

valves are located is accessed when the locks are empty of water,

generally at the end of the navigation season; under these

circumstances, it can be accessed either from the top of the well or

from the bottom of the lock through the valve culvert. The valve

culvert is a tunnel, about 15 feet by 15 feet across, that runs along

the bottom of the lock; a number of openings, about 9 feet wide by 15

feet high, situated along the bottom of the lock wall allow the water

to flow to and from the lock through the culvert during normal lock

operation. When the locks are empty of water, they allow easy access

to the valve culvert and to the valves.

During lock operation, the water level in the valve wells varies

according to the water level in the lock: it will vary from a depth of

20 feet at low pool to about 37 feet at high pool. Because the top of

the well is covered with grating and the intermediate landing is also

constructed of grating, that is, mostly open area, fresh air is pumped

in throughout the well whenever the locks are in operation. As a

result, for each cycle of lock operation (water level going up and then

down), one third of the air in the well is exhausted and an equal

volume of fresh air is brought in when the water goes down.

The Welland Canal was built in the early 1930's and the valve wells

have been in existence for about 63 years. It is estimated that over

this period, there have been about 50,000 entries in these wells. It

is my understanding that during all these years, there has never been a

problem with the air in these wells; there have been injuries, but

these had nothing to do with contamination of the air, either by toxic

or flammable substances. Neither were there problems associated with a

lack or a surplus of oxygen. When work that produces pollutants, such

as welding and painting, is carried out inside the well, then air

testing is carried out and forced ventilation is also employed.

The employer's detailed submission is on record. Among the various

documents, I have noted the test results obtained by hygienist Shahin

Najak. There was also, in the documentation attached to the safety

officer narrative form, a report on gas level readings obtained by B.

Tkachuk (SLSA) in October 1994 in some valve wells. Both these reports

indicate that air in the valve wells is safe.

Discussion

The definition of "Confined Space" given in Part XI of the Canada

Occupational Safety and Health Regulations is:

11.1 In this Part,

...

"confined space" means an enclosed or partially enclosed space that

(a) is not designed or intended for human occupancy except for

the purpose of performing work,

(b) has restricted means of access and egress, and,

(c) may become hazardous to an employee entering it due to

(i) its design, construction, location or atmosphere,

(ii) the materials or substances in it, or

(iii) any other condition relating to it;

In the case at hand, I believe there are a number of different

situations that can exist, each of them requiring individual

consideration.

1. Work at the intermediate landing: this workplace meets

subsections (a) and (b) of the definition; as for subsection (c),

the safety officer, in the LAO Assignment Narrative Form, says, in

the last line of the 4th paragraph on page 6: "Therefore, in my

opinion the valve well is a confined space by virtue of its design

alone." She does not explain what it is in the design that may

cause the valve well to become hazardous to an employee entering it.

My examination of the drawing (appendix 3) as well as the

explanations given to me at the hearing do not disclose any design

characteristic that might cause this workplace to become hazardous

to an employee. The air pumping action provided by the changes in

the water level as the locks are operated ensures air renewal; there

are no sources of polluting or flammable gases in the wells or in

their vicinity. Accordingly, atmospheric conditions inside are

acceptable. At page 5 of her narrative form, the safety officer

says (3rd par.): "This confined space ... is potentially exposed to

the entrance of an infinite number of hazards which could be

released by ships passing through the locks." This statement is

broad and, I believe, very hypothetical. A specific case should be

identified as well as a reasonably possible scenario. I am aware

that many ships carrying for instance cereals or minerals go

through the locks; I fail to see what hazardous product they could

release; furthermore, if they did release a hazardous substance, the

lock personnel handling the lines would be more at risk than an

employee in the valve well.

There is some mechanical apparatus located on the intermediate

landing which, if it were to move, would be dangerous to an employee

working there. However, all mechanical apparatus must be

immobilized and locked out before an employee goes down in the valve

well, as is good industrial practice and as mandated by section

13.16 of the Regulations. Electrical equipment, if needed, is

connected through a ground fault circuit interrupter (GFCI) which

will protect an employee from receiving an electrical discharge.

There is some risk due to a possibility of slips or falls due to the

metal walking surfaces and to the high ambient relative humidity.

But I do no think that this risk is typical of a confined space nor

will classifying the space as a confined space alleviate this

particular risk. Under these circumstances, I do not consider that

an employee working at the intermediate level is working in a

confined space unless there is a source of atmospheric

contamination in or near the space. This could be due to an

activity such as welding, using chemicals that can contaminate the

air, such as solvent-based paints, etc. In this case, the valve

well would be considered a confined space.

2. Work at the bottom of the valve well: work at the bottom of the

valve well, essentially valve maintenance and repair, is performed

when the locks are empty of water, generally during the winter

maintenance period. Under those conditions, the valve can be

reached either from the top, first by going down to the intermediate

landing, and then going down a further 35 feet to the top of the

valve or, alternately, by walking into the valve culvert from the

bottom of the lock. I understand that due to the chimney effect of

the valve well, there is good natural ventilation in the valve well

under these circumstances. If the work activities do not produce

contaminants, I fail to see what else could cause air contamination.

It is not apparent from the drawings if an employee working on top

of the valve could easily go down from there to exit through the

culvert. If he can, then the location would not be considered a

confined space because there are no longer "restricted means of

access and egress": he can exit either through the top of the well

or through the culvert. The culvert itself, 15 feet wide by 15 feet

high would not be considered a restricted mean of access. If the

work carried out at some point has the potential to spread

contaminants in the air (such as welding or the use of epoxy

sealants), then, depending on the ease of egress, the site could be

considered a confined space. In any event, the employer has an

obligation to ensure a safe workplace and even if the valve well is

not a confined space, the requirements of Part X, Hazardous

Substances and of Part XVI, First Aid, still apply.

When reading Part XI of the Regulations, it is apparent that these

regulations are primarily concerned with the protection of employees

from atmospheric dangers: lack or excess of oxygen, toxic contaminants,

flammable gases or vapours. Other concerns are: protection from

materials, liquid or solid, which could be introduced inadvertently in

the confined space while persons are present; protection of persons

from mechanical and electrical hazards which are enhanced because of

the exiguity of most confined spaces. The regulations also lay down

requirements regarding: emergency measures and rescue from confined

spaces; detailed entry procedures; education and training of

employees. But the central concern of the regulations is atmospheric

quality: air analysis must be performed before each entry. In the

instant case, air quality is not a problem unless certain work

activities involving air contaminants are being carried out; in these

situations, the employer has been following the measures required by

Part XI.

Decision

The valve wells are not confined spaces unless either contaminant

producing work is being carried out therein or there is a nearby source

of contaminant which could conceivably contaminate the valve well. If

contaminant producing work is being carried out therein, or if there is

a nearby source of contaminant which could conceivably contaminate the

valve well, the valve well could or could not be a confined space,

depending on whether egress can be made through the valve culvert or

not. If egress can be made easily through the valve culvert, it is not

a confined space; if egress must be made by using ladders, it is a

confined space.

In conclusion, I hereby vary the direction by restricting its

application to those situations where contaminant producing work is

carried out in the valve well or where there is a nearby source of

contaminant which could conceivably contaminate the valve well, and

egress must be made by using a ladder or ladders, fixed or portable.

The direction issued by the safety officer on the 25th of April, 1995

is valid under these circumstances. This does include the entry

permit requirement, unless the employer can demonstrate that it is not

reasonably practicable. I would add, in answer to a question from Mr.

R. J. Corfe in his letter of June 15, 1995, that section 11.5 of the

Canada Occupational Safety and Health Regulations is applicable only if

the requirements of section 11.4 cannot be complied with.

However, when performing contaminant producing work in the valve well

and when egress can be made directly by the valve culvert, the valve

well is not a confined space; the requirements of Part X, Hazardous

Substances, do apply and the employer must ensure that employees are

not exposed to levels of contaminants exceeding the regulatory

requirements. Finally, even when the valve well is not considered a

confined space, it becomes a workplace as soon as an employee goes in

and consequently, all the requirements of Part XVI, First Aid, also

apply. Among other things, these provide for the prompt rendering of

first aid to an employee for an injury, an occupational disease or an

illness.

Decision given on October 3, 1995.

Bertrand Southière

Regional Safety Officer

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision No.: 95-014

Applicant: The St Lawrence Seaway Authority, Niagara Region

R. J. Corfe, Assistant Vice President

KEYWORDS:

Confined spaces; valve wells; restricted access; canal lock; St

Lawrence Seaway Authority.

PROVISIONS:

Code: 125(p), 125(q)

Regulations: 11.3(a) & (d), 11.4(1) & (2), 11.5(1), 11.7(1)(b),

11.7(2), 11.11(1), 11.11(2)

SUMMARY:

Further to an inquiry in the workplace operated by the St Lawrence

Seaway Authority, namely, the Welland Canal, the safety officer made a

determination that the discharge valve wells which are 80 feet deep

wells, about 15 feet by 20 feet in cross section, were confined spaces.

Accordingly, the employer was directed to comply with the requirements

of Part XI, Confined Spaces. The wells have a middle landing where

some maintenance and lubrification work is conducted. During the

navigation season, the bottom of the well contains water, the level of

which varies according to the level in the lock. The cover of the well

as well as the middle landing are made of steel grating.

The RSO confirmed the safety officer's direction only in so far as

there was a source of air contamination (due to work activities for

instance) in or near the well and egress was restricted. In the

absence of either of these factors, the valve wells are not confined

spaces and the requirements of Part X, Hazardous substances, and of

Part XVI, First Aid, apply.