Docket No. 81-1797

SECRETARY OF LABOR,
Complainant,

CITY OIL WELL SERVICE CO.,
Respondent.

OSHRC Docket No. 81-1797

DECISION

Before: BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. ї 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

At issue is whether the administrative law judge erred in vacating a citation alleging that City Oil Well Service Company ("City") violated the respirator standards at 29 C.F.R. її 1910.134(a)(1) and (a)(2). [[1]] The citation followed an OSHA inspection after the deaths of two employees at a "frac tank" while they were engaged in swabbing (draining fluids from an oil well after drilling and before oil production). Though there was no need for the employees to go inside the tank during their well servicing work, the body of one of them was found inside it and the body of the other was found at the top. Subsequent testing revealed hydrogen sulfide (H2S) gas at the wellhead, after the valves had been bled for several minutes, in a concentration of 225 parts per million (ppm). That level exceeds the permissible employee exposure limits in Table Z-2 of 29 C.F.R. ї 1910.1000.[[2]] City relied on the well operator to inform it if there were H2S hazards at the wellsite and made no inquiries of its own. The evidence indicates that the custom and practice of the industry is for the well servicer to rely on the well operator or owner to advise it if H2S hazards are present and to provide respirators if necessary.

The two Commissioners are divided on whether the judge's decision should be affirmed or reversed.[[3]] Chairman Buckley would affirm the judge's decision. Under the cited standards, respirators are to be provided "when such equipment is necessary to protect the health of the employee." This is a broadly-worded requirement similar to 29 C.F.R. ї 1910.132(a) requiring personal protective equipment "wherever it is necessary by reason of hazards . . . . " Thus, in Chairman Buckley's view, whether City violated the cited standards depends on whether a reasonable person familiar with the circumstances, including any facts unique to the industry, would recognize a hazard warranting provision of respirators or establishment of a respirator program by City. See Owens-Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1295, 1979 CCH OSHD І 23,509, p. 28,491 (No. 76-4990, 1979), aff'd on other grounds, 659 F.2d 1285 (5th Cir. 1981).

One of the undisputed facts, unique to City's industry, is that well servicers rely on well operators to advise them if H2S hazards are present and to provide respirators if necessary. It is the custom and practice in this industry for the well operator to determine and warn of the presence of H2S gas. The well owner or operator is in a unique position to know whether H2S hazards exist and to have the appropriate respirators on hand in the event they are necessary. The owner or operator is in overall charge of well operations and makes repeated tests during drilling and production for the presence of hazardous substances like H2S gas. Well servicing companies send employees to the wellsite only to perform certain specific jobs such as the swabbing here. Absent some indication from the operator of the need for respirators because of the presence of H2S, a reasonable person in the well servicing industry would not recognize a need "to protect the health of the employee."

If the well servicer has reason to foresee that the owner or operator may not properly protect the employees, the normal reliance is not justified. Cf. Sasser Electric and Mfg. Co., 11 BNA OSHC 2133, 2135-36, 1984 CCH OSHD І 26,982, pp. 34,684-85 (No. 82-178, 1984), appeal filed, No. 84-1961 (4th Cir. Sept. 25, 1984); Cities Service Oil Co., 76 OSAHRC 105/A2, 4 BNA OSHC 1515, 1518, 1976-77 CCH OSHD І 20,999, pp. 25,237-38 (No. 4648, 1976), aff'd, 577 F.2d 126 (10th Cir. 1978) (employer who hires an outside specialist for particular work may reasonably rely on the specialist not to endanger the hiring employer's employees in the course of that work, unless there is reason to foresee that the specialist will not work safely). However, City had no reason to believe that the well owner or operator on the worksite here would not properly warn of possible excessive concentrations of H2S or provide respirators if needed. Indeed, the compliance officer's own investigation also showed that the well was not known or expected to be a sour gas well. Chairman Buckley, therefore, concludes that City's reliance on the well owner and operator here was reasonable and that it could not reasonably have anticipated H2S hazards at the wellsite where the accident occurred.

The Secretary also argues that City should have established a respirator program because it was on notice that employees previously had been exposed to H2S gas at other worksites in the same six-mile area. However, an employer's duty to protect its employees under the standard does not arise from the mere presence of an air contaminant. Rather, it arises from a risk of a concentration of that contaminant exceeding permissible levels. Snyder Well Servicing, Inc., 82 OSAHRC 10/C3, 10 BNA OSHC 1371, 1375-76, 1982 CCH OSHD І 25,943, p. 32,511 (No. 77-1334, 1982). The permissible exposure limits to H2S are contained in section 1910.1000, Table Z-2. An employer who was not on notice that the employees' exposure on the wellsite might exceed those limits could not be required to establish a respiratory protection program under section 1910.134(a)(2).

The evidence does not establish that excessive levels of H2S gas had been encountered on any worksites where City's employees had worked. There is no evidence that City ever had been informed by any well owner or operator of H2S hazards or of a need for respirators on any of its worksites in the area. It had a right to rely on their judgment because the owners and operators were in the best position to know. Although two City employees testified that they previously had worked on what they called "sour" gas wells, both testified that they never had had a reason to use a respirator. The evidence did not indicate what levels of gas were actually or potentially present on any worksite.[[4]] Therefore, it was not shown that City knew or should have known that its employees previously had been actually or potentially exposed to levels of H2S gas exceeding permissible levels. In the circumstances, Chairman Buckley would not find a violation.

Commissioner Cleary would affirm both citation items. In his view, City's passive reliance on the well operator is indefensible because section 1910.134(a)(2) makes clear that "the employer" shall provide the necessary respiratory protection and "the employer" shall be responsible for establishing a respiratory protective program when such equipment is necessary. Any traditional custom and practice of the industry to the contrary clearly has been superceded by OSHA's more protective requirements. City's statutory responsibility for its employees cannot be shifted to independent companies who contract with City for specific jobs. E.g., Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1198 n. 13, 1975-1976 CCH OSHD І 20,690, p. 24,783 n. 13 (Nos. 3694 & 4409, 1976); Central of Georgia R.Co. v. OSAHRC, 576 F.2d 620 (5th Cir. 1978). City did not even inquire of the well operator whether hazardous air contaminants might be present or whether respirators might be needed. Thus, it was in no position to protect employees from the kind of deadly overexposure that occurred.

Commissioner Cleary concludes that with any reasonable amount of inquiry, City would have known that H2S was a problem in the area where the fatalities occurred. For example, one City employee, Holly, testified that he had encountered "sour" gas on numerous previous jobs with City at levels where he needed instruction in how to avoid it. Yet the only protection provided was his brother's informal advice to stay upwind of the gas. City itself gave no instructions to employees on the subject and apparently afforded them no protection. Relying on an employee's sense of smell to avoid H2S hazards is inadequate because a high concentration of H2S gas deadens the sense of smell and a sufficiently high concentration is lethal. A manager for an H2S safety company testified to that effect, and section 1910.1000, Table Z-2, containing the H2S permissible exposure limits, also references this information (ANSI Z37.2-1966). The same manager also testified that his company had provided services within a six-mile radius of the website where the accident occurred. City should have had a respiratory protection program available well before the day of the fatalities.

Commissioner Cleary also notes that the judge's rationale for vacating the citation items, which was that both standards require a showing that engineering controls are not feasible, or if feasible have not been instituted, is inconsistent with Commission precedent. E.g., Snyder Well Servicing. Commissioner Cleary adopts the judge's alternative finding that section 1910.134(a)(2) was violated. Thus, Commissioner Cleary would find violations of both cited standards.

To resolve their impasse on the merits of the citation and to permit the parties to conclude this litigation, Chairman Buckley and Commissioner Cleary have agreed to vacate the direction for review. E.g., Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD І 24,634 (Nos. 77-3040 & 77-3542, 1980). The judge's decision in this case therefore becomes the appealable final order of the Commission, but is accorded the precedential value of an unreviewed judge's decision.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: APR 10 1985

FOOTNOTES:

[[1]] ї 1910.134 Respiratory protection.

(a) Permissible practice. (1) In the control if those occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, the primary objective shall be to prevent atmospheric contamination. This shall be accomplished as far as feasible by accepted engineering control measures (for example, enclosure or confinement of the operation, general and local ventilation, and substitution of less toxic materials). When effective engineering controls are not feasible, or while they are being instituted, appropriate respirators shall be used pursuant to the following requirements.

(2) Respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee. The employer shall provide the respirators which are applicable and suitable for the purpose intended. The employer shall be responsible for the establishment and maintenance of a respiratory protective program which shall include the requirements outlined in paragraph (b) of this section.

[[2]] H2S gas is sometimes encountered during oil drilling in certain areas of the country, and sufficiently high exposure can result in death by suffocation.

[[3]] As established by the Act, the Commission is composed of three members. Section 12(a), 29 U.S.C. ї 661(a). Under section 12(f) of the Act, 29 U.S.C. ї 661(e), official action can be taken by the Commission with the affirmative vote of at least two members. Because there is a vacancy, the Commission currently has only two members.

[[4]] One of City's employees, Holly, testified that he had had to stand upwind from the gas on a number of jobs with City. However, that action by Holly was based on advice by his brother. The fact that an employee felt the need to stand upwind from H2S gas on certain worksites does not by itself establish actual or potential exposure above permissible levels.