Docket No. 81-1797

SECRETARY OF LABOR,
Complainant,

CITY OIL WELL SERVICE CO.,
Respondent.

OSHRC Docket No. 81-1797

DECISION

Before: BUCKLEY, Chairman; WALL, Commissioner.
BY THE COMMISSION:

The Secretary of Labor's serious citation 1, as amended to allege that City Oil Well Service Co. violated 29 C.F.R. її 1910.134(a)(1) and (2), is affirmed. The Commission assesses a total penalty of $800.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: September 30, 1986

SECRETARY OF LABOR,
Complainant,

v.

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. 77-1344, 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 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, 1975-76 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 wellsite 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. Eg., 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: April 10, 1985

SECRETARY OF LABOR,
Complainant,

CITY OIL WELL SERVICE CO.,
Respondent.

OSHRC DOCKET NO. 81-1797

DECISION AND ORDER

Appearances: U. Sidney Cornelius, Jr., Esq., of
Dallas, Texas, for the complainant.

George R. Carlton, Jr., Esq., of
Dallas, Texas, for the respondent.

PROCEDURAL HISTORY

BLYTHE, Judge:
Hydrogen sulfide gas (H2S) was blamed for the deaths of two employees of the respondent, City Oil Well Service Co. ("City"), June 4, 1981, at an oil well drilling location known as Nixon-Lease Smith No. 1, near Nixon, Texas. As the result of an investigation commencing June 5, 1981, and ending June 26, 1981, by a compliance officer of the Occupational Safety and Health Administration ("OSHA"), a single citation was issued to City July 1, 1981, charging it with violating ї5(a)1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-658 ("the Act"), in failing to protect its employees from the recognized hazard of well servicing operations in zones where H2S tray be encountered. City timely filed notice of contest July 16, 1981, initiating this proceeding before the Occupational Safety and Health Review Commission ("the Commission") under ї10(c) of the Act. A complaint and answer were filed with the Commission, and subsequently, by amended complaint, the Secretary of Labor ("the Secretary") eliminated the ї 5(a)(1) charge, and instead alleged violations of ї 5(a)(2) of the Act and standards at 29 CFR 1910.134(a)(1) and (a)(2). City filed an amended answer admitting the jurisdictional and coverage allegations of the complaint, denying violations of the cited standards, and asserting the affirmative defense of unpreventable employee misconduct.

The case came on regularly for hearing November 19, 1981, at Corpus Christi, Texas. No affected employee or authorized representative of affected employees took part in the proceeding. Both parties have submitted post-hearing briefs.

The issues to be determined are whether City violated the cited standards as alleged and, if so, the appropriate penalty therefor. This subsumes the issue of whether City has made out its affirmative defense of unpreventable employee misconduct.

DISCUSSION AND OPINION

The factual background.
The oil well where the fatal accident occurred had been drilled to a formation called the Austin Chalk, then a "Christmas tree", a valve system, was installed and the well was shut in to await swabbing operations by City preparatory to bringing the well into production.

Swabbing consists of lowering a plug, or swab, on a wire line to the bottom of the hole and pulling it to the top to remove accumulated fluids. In this case the fluids were run through a flow line first into an open pit and then into a tank called a "frac tank" so it could be measured to determine the flow rate of the well. Measuring the frac tank's contents entailed an employee's going to the top of the tank and taking the measurement through a vent. The tank was otherwise sealed, although there was a 2' x 2' manhole which could be opened. The swabbing operation had been completed, and City's two employees on the site, Marion Danny Mitchell and Davy Lynn Sparkman, had started "rigging down". There were no surviving witnesses to the accident, but for some unexplained reason Sparkman entered the tank through the manhole in its top. His body was found inside the tank, and Mitchell's body was found on top of the tank.[[1]]

Jerry Holt, assistant regional manager for FSSE International, a firm specializing in H2S safety, was called to the accident scene and arrived there two or three hours after its occurrence (Tr.69). The tank had already been "blown out" by emergency rescue personnel who removed the body from the tank. Holt opened a valve at the wellhead and tested the gas emitted therefrom at 225 ppm H2S (Tr.69), an amount which he said was deadly (Tr.76). Holt also opined that H2S in the amount of 20 ppm requires the use of respirators (Tr.76).

Bert Lindquist, the OSHA compliance officer, witnessed another H2S test at the wellhead which showed about 237 pp. H2S (Tr.12,85). The date of this test was not established.

The alleged violations of ї 1910.134(a)(1) and (a)(2).

City is alleged to have violated 29 CFR 1910.134(a)(1) and (a)(2), which provide :

1910.134--RESPIRATORY PROTECTION

(a) Permissible practice.

(1) In the control of 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.

Paragraph (b), incorporated by reference in ї 1910.134(a)(2), provides:

(b) Requirements for a minimal acceptable program.

(1) Written standard operating procedures governing the selection and use of respirators shall be established.

(2) Respirators shall be selected on the basis of hazards to which the worker is exposed.

(3) The user shall be instructed and trained in the proper use of respirators and their limitations.

(4) Where practicable, the respirators should be assigned to individual workers for their exclusive use.

(5) Respirators shall be regularly cleaned and disinfected. Those issued for the exclusive use of one worker should be cleaned after each day's use, or more often if necessary. Those used by more than one worker shall be thoroughly cleaned and disinfected after each use.

(6) Respirators shall be stored in a convenient, clean, and sanitary location.

(7) Respirators used routinely shall be inspected during cleaning. Worn or deteriorated parts shall be replaced. Respirators for emergency use such as self- contained devices shall be thoroughly inspected at least once a month and after each use.

(8) Appropriate surveillance of work area conditions and degree of employee exposure or stress shall be maintained.

(9) There shall be regular inspection and evaluation to determine the continued effectiveness of the program.

(10) Persons should not be assigned to tasks requiring use of respirators unless it has been determined that they are physically able to perform the work and use the equipment. The local physician shall determine what health and physical conditions are pertinent. The respirator user's medical status should be reviewed periodically (for instance, annually).

(11) Approved or accepted respirators shall be used when they are available. The respirator furnished shall provide adequate respiratory protection against the particular hazard for which it is designed in accordance with standards established by competent authorities. The U.S. Department of Interior, Bureau of Mines, and the U.S. Department of Agriculture are recognized as such authorities. Although respirators listed by the U.S. Department of Agriculture continue to be acceptable for protection against specified pesticides, the U.S. Department of the Interior, Bureau of Mines, is the agency now responsible for testing and approving pesticide respirators.

City contends that it was not in violation of ї1910.134(a)(1) because the Secretary failed to prove engineering controls were not feasible and because feasible and effective engineering controls were in use. It then contends that it was not in violation of ї 1910.134(a)(2) because this standard is not applicable unless ї 1910.134(a)(1) is applicable.

Amended item 1A alleges:

29 CFR 1910.134(a)(1): When effective engineering controls were not feasible or while such controls were being instituted, appropriate respirators were not used pursuant to the requirements of this section:

Well servicing employees, performing operations on sour well site, where hydrogen sulfide gas was present.

This language, as well as the standard itself, makes it clear that it was the Secretary's burden to prove that effective engineering controls were not feasible. This he has not done. The nearest he came to this was the introduction of the compliance officer's testimony that in a swabbing operation H2S could be encountered at the wellhead, along the flow line, in the open pit area, or at the frac tank (Tr.11). Feasible engineering controls were not mentioned.

On the other hand, the evidence is insufficient to support City's contention that the Christmas tree, flow line and frac tank constituted effective and feasible engineering controls during the swabbing operations. The record shows that H2S could escape at the wellhead, at the open pit, and from the vent atop the frac tank during such operations (Tr.11). Nevertheless, the Secretary's failure to prove that engineering controls were not feasible makes it necessary to vacate the ї 1910.134(a)(1) citation.

The next issue is whether ї 1910.134(a)(2) is applicable if ї 1910.134(a)(1) is not. City bases its position on the final sentence of ї 1910.134(a)(1):

When effective engineering controls are not feasible, or while they are being instituted, appropriate respirators shall be used pursuant to the following requirements.

However, ї 1910.134(a)(2), when read alone, does not appear to depend on the preceding subsection. It starts out with its own positive requirement:

Respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee.

Section 1910.134 was derived in pertinent part from American National Standards lnstitute ("ANSl") Standard Z 88.2-1969, Standard Practice for Respiratory Protection, ї 3.3 of which contains the provisions found in ї 1910.134 (a) (2) and is headed "Employer Responsibility." This heading, while not conclusive, buttresses the impression that ї 1910.134(a)(2) is independent and can form the basis for a citation without a violation being found under ї1910.134(a)(1).

The Commission majority apparently has not addressed this issue directly, although Commissioner Van Namee, concurring in North American Rockwell Corp., 75 OSAHRC 43/A6, 2 BNA OSHC 1710 1974-75 CCH OSHD І 19,464 (Nos. 2692 and 2875, 1975), aff'd., 540 F.2d 1283 (6th Cir., 1976), recognized the problem, saying:

In addition to being cited for violating the asbestos standard Rockwell was charged with a violation of 29 1910.134(a)(2), based on the fact that the operator of grinder #048 was not protected from overexposure to asbestos by a respirator. As noted above, however, the asbestos standard provides that respirators shall only be used while engineering controls are being implemented or when such controls are not feasible. To hold that a respirator should have been worn in this case would mean that respirators would always have to be worn, regardless of whether effective engineering controls have been implemented, for it is always possible that an unpredictable breakdown or malfunction in such controls will lead to a temporary condition of over-exposure. Such a holding would be inconsistent with the asbestos standard, which specifies the use of respirators only as an interim measure or as a last resort.

The situation here is the same as that stated by Commissioner Van Namee, for ї 1910.134(a)(1) is substantially equivalent to the asbestos standards then in effect, її 1910.93a(b)(1) and (3) and (c)(1).[[2]] The lead opinion by Chairman Moran in the Rockwell case went off on the issue of employer knowledge, as did Commissioner Cleary's dissent, so the applicability of ї 1910.134(a)(2) was discussed only by Commissioner Van Namee. However, I find that Commission Van Namee's logic persuasive, and I shall follow it.[[3]] But, to avoid remand in the event of reversal on this point, I shall proceed to make alternative findings and conclusions.

Item 1B of citation 1, as amended, alleges:

29 CFR 1910.134(a)(2): Appropriate respirators were not provided when such equipment was necessary to protect the health of employees, nor was a respiratory protection program established which included the requirements outlined in paragraph (b) of this section:

Well servicing employees, performing operations on sour well site, where hydrogen sulfide gas was present.

The uncontradicted evidence establishes that City provided no respirators on this well location and had no respiratory protection program, although it was not uncommon in that area for wells to be "sour," that is, to produce H2S.

Compliance Officer Lindquist testified that "there were wells in the general area of this one that were also sour" (Tr. 12, 52), that he was informed that there was a sour well about five miles from the one here involved (Tr.42), that he understood that there were other wells that produced H2S from the Austin Chalk formation (Tr.42), and that his investigation indicated that H2S had been present at this well for some time prior to the accident (Tr. 32).

Richard Allen Snow, a City swab operator, testified that some wells in that area are sweet and some are sour (Tr. 57).

Jerry Holt, the H2S safety expert, testified that his company had serviced wells in a five or six mile radius of this well and he assumed that the area where the accident occurred was known to have H2S (Tr.70).

With regard to a respiratory protective program, Lindquist, Snow and Steve Holly (another City swab operator) testified without contradiction that City had none, written or oral (Tr. 18, 19, 58, 59, 62-65). City's practice was to rely on the operator of a well to tell it if a well City was to service was sour (Tr. 19), but it apparently initiated no inquiries on this subject (Tr. 19). If a well was sour, the operator might or might not supply respirators (Tr. 29,57), but according to Snow and Holly respirators were never used even when H2S was encountered (Tr. 57,64).

H2S is a colorless, flammable, very poisonous, heavier-then-air gas with a rotten egg odor that is readily recognizable (Tr. 78). However, it rapidly anesthetizes the olfactory nerves so that one's sense of smell cannot be relied upon to detect its continued presence (Tr. 39, 40, 72). It is also dangerous and deadly (Tr. 12, 39, 40, 76).

According to Lindquist, an acceptable respiratory protection program for City would consist of inquiring of the operator in each instance whether the well to be serviced is sour or sweet; making sure that respirators are available where the well is known to be, or turns out to be, sour; monitoring the work environment during operations to ascertain that the concentration of H2S does not exceed the threshold limit value; written instructions to its employees on use of respirators if H2S is encountered; and a plan for evacuation of employees if H2S is encountered and respirators are not available (Tr. 17, 39).

It is clear that, if ї 1910.134(a)(2) is applicable, City was in violation, and in view of the nature of the hazard the violation was serious. I would assess a penalty of $400 as proposed, after considering the statutory criteria.

The employee misconduct defense.

City's amended answer raises the affirmative defense of unpreventable employee misconduct. It introduced no evidence on this point and did not discuss it in its brief, so the defense may be considered abandoned. Of course, it is moot if this decision is not reversed, but here again alternative findings will be made to obviate a possible remand.

Since City elected not to put on any witnesses of its own, it must rely on the testimony of two of its swab operators, Snow and Holly, who were called by the Secretary. Neither of these witnesses supported this affirmative defense, of which City has the burden of proof.

Snow said that City's employees had no business in the frac tank but that he had never been told not to go into them (Tr. 56, 58). He testified that City had no safety meetings at which respirators were discussed, and did not distribute written material about respirators, until after the fatal accident (Tr. 56, 57).

Holly testified he had been told not to go into a frac tank but that before the fatal accident he had received no instructions on the use of respirators or to stay off the tops of frac tanks (Tr. 62, 63). He said the only instruction he had received regarding H2S was from his brother and was to stay upwind of the gas (Tr. 65,66).

City was proved none of the elements of this affirmative defense, as outlined in Weatherhead Co., 76 OSAHRC 61/B7, 4 BNA OSHC 1296, 1976- 77 CCH OSHD І 20,784 (No. 8862, 1976), and many other cases. It has proved neither the existence of a work rule nor specific instructions to its employees adequate to prevent their exposure to H2S, much less that any such rules or instructions were effectively communicated or uniformly enforced. It has failed to prove this affirmative defense.

FINDINGS OF FACT

1. At all times material to the proceeding, City was engaged in the oil well servicing business, a business affecting commerce, and it had employees, all within the meaning of ї3(5) of the Act.

2. On June 4, 1981, two of City's employees, Marion Danny Mitchell and Davy Lynn Sparkman, were asphyxiated by H2S gas at an oil well known as Nixon-Lease Smith No. 1, near Nixon, Texas, during swabbing operations. This well was in an area known in the oil and gas producing industry to have some wells that were "sour", that is, that produced H2S gas.

3. City did not make a practice of inquiring of the operators of wells it was called to service whether or not they were sour, relying instead on the operator to volunteer such information if the wells were indeed sour.

4. The well here involved was reported to the OSHA compliance officer, Bert Lindquist, to have been known as a sour well in advance of the fatal accident. A few hours after the accident it was tested and found to produce 225 ppm of H2S whereas the amount of 20 ppm of H2S requires the use of respirators by persons exposed to it.

5. H2S is a colorless, very poisonous, flammable, heavier-than air gas characterized by an offensive "rotten egg" odor that is initially readily detectable. However, it anesthetizes one's olfactory nerves so that the sense of smell cannot be relied upon for a warning if exposure is long continued.

6. City's practice was to rely on the operator to provide respirators if a well was known to be sour. However, two of its swab operators who testified at the hearing said that although they had worked on sour wells before the fatal incident they had never used respirators on such jobs before or since that date.

7. City had no respiratory protection program.

8. There was a substantial probability that death or serious physical injury could result from the lack of respirators.

9. City, in the exercise of reasonable diligence, could have known of the need for respirators.

10. The Secretary failed to prove that engineering controls were not feasible to control H2S at the well site here involved.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2. On June 4, 1981, the respondent, City Oil Well Service Co., was not in violation of ї 5(a)(2) of the Act and the standards at 29

CFR 1910.134(a)(1) and (a) (2).

ORDER

It is ORDERED that items 1A and 1B of citation 1, as amended, alleging serious violations of ї5(a)(2) of the Act and 29 CFR 1910.134(a)(1) and (a) (2) , together with the proposed penalties, are VACATED.

DEE C. BLYTHE
Administrative Law Judge

Date: March 1, 1982

FOOTNOTES:

[[1]] ї 1910.134 Respiratory protection.
(a) Permissible practice. (1) In the control of 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.

[[1]] At p.2 of its brief, City speculates that one employee entered the tank and that the other "either tried to accompany him or attempted a rescue." There is no support in the record for either theory.

[[2]] The present comparable standards are її 1910.1001 (a) (1) and (d) (1) .

[[3]] It seems desirable that, where dangerous gases such as H2S are involved, an employer be required to have respirators available whether or not engineering controls are feasible, since there is always a possibility that engineering controls may fail. However, the cited standard does not so provide, and it is not this agency's function to stretch standards to fit situations not covered by their provisions. Burtex Constructors, Inc., 76 OSAHRC 149/A2, 4 BNA OSHC 1928, 1976-77 CCH OSHD І 21,394 (No. 11553, 1976).