SECRETARY OF LABOR,
Complainant,

v.

D.A. & S. OIL WELL SERVICING, INC.,
Respondent.

OSHRC DOCKET NO. 85-0604

ORDER

The Commission vacates the direction for review in this case under Commission Rule 93(d), 29 C.F.R. § 2200.93(d), in light of the petitioning party's failure to timely file a brief.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

Dated:  JAN 9 1987

SECRETARY OF LABOR,
Complainant,

v.

D A & S OIL WELL SERVICING, INC.,[[1]]
Respondent.

OSHRC DOCKET NO. 85-0604

DECISION AND ORDER

Appearances:

Richard L. Collier, of Dallas, Texas, for the complainant.
George R. Carlton, of Dallas, Texas, for the respondent.

PROCEDURAL HISTORY

As part of a local emphasis program, a compliance officer of the Occupational Safety and Health Administration ("OSHA") on April 14, 1985, conducted an inspection of a portable, truck-mounted oil well servicing rig, owned and operated by the respondent, D A & S Oil Well Servicing, Inc., at the site of an oil well owned by AMOCO on the Midland Farms Unit, 13 miles south of Andrews, Texas.  This inspection resulted in the issuance on May 23, 1985, of two citations charging D A & S with one serious and three nonserious violations of § 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"), and safety standards promulgated thereunder.  D A & S timely filed notice of contest on June 3, 1985, thus initiating this proceeding before the Occupational Safety and Health Review Commission ("the Commission").  Thereafter a formal complaint and an answer were filed with the Commission.  The case came on regularly for hearing October 11, 1985, in Lubbock, Texas.  No affected employee or representative of affected employees participated in this proceeding.  Neither party filed a posthearing brief.

THE ISSUES

The allegations of the complaint regarding jurisdiction and coverage were admitted by the answer.  The ultimate issues to be determined are:

1.  Whether D A & S was in serious violation of 29 C.F.R. 1910.134(a)(2) and, if so, the appropriate penalty therefor.

2.  Whether D A & S was in nonserious violation of 29 C.F.R. 1910.23(c)(3).

3.  Whether D A & S was in nonserious violation of 29 C.F.R. 1910.151(b).[[2]]


DISCUSSION AND OPINION

I.  The alleged serious violation of 29 C.F.R. 1910.134(a)(2).

Item 1 of citation 1, as amended,[[3]] alleges a serious violation of 29 C.F.R. 1910.134 (a) (2) [[4]] in that

No emergency escape or emergency rescue respirators were available on April 18, 1985 for employees of D A & S Oil Well Servicing, Inc., (located at Midland Farm Unit, Well No. 605, located approximately 13 miles south of Andrews, TX) when performing oil and gas well work-over operations.

The citation does not specify the hazard necessitating the provision of respirators, but testimony adduced at the hearing by the Secretary, without objection from D A & S, made it clear that the hazard was hydrogen sulfide gas (H2S), a highly toxic gas.  This gas was not present in the atmosphere at the time of the inspection, and several engineering controls were in place to prevent such an occurrence:  the well was cased and the casing was cemented at the bottom; packets had been inserted into the casing to isolate production zones; the well bore had been filled with water to "kill" the well with hydrostatic pressure; and there was a blowout preventer ("BOP") atop the wellhead.

Respondent's safety director, Richard McFadden, conceded on cross-examination that these engineering controls could fail (Tr. 45), resulting in a release of H2S which might come either slowly or suddenly.  Neither McFadden nor the OSHA compliance officer (the only witnesses who testified) knew precisely what kind of operation was being performed by the D A & S servicing rig. McFadden said it was a producing well and that he thought D A & S was changing the pump (Tr. 48).  Compliance Officer Placido E. Vigil testified that D A & S was completing the well; that it had completed the packing; and that it was getting ready to run the tubing (Tr. 9).  On cross-examination, however, Vigil admitted he did not know whether the well was producing, what depth had been reached, or what formations had been penetrated (Tr. 29).  Vigil testified, without contradiction, however, that he had been informed by AMOCO's representative that 1100 ppm of H2S had been encountered in the drilling operation (Tr. 11, 33) and that this was enough to kill a person instantly (Tr. 53).   D A & S had no respirators on the jobsite (Tr. 22).

H2S is a colorless, heavier-than-air gas that is encountered in oil and gas wells in some areas but not in others.  The Secretary established that the Midland Farms area was one in which H2S could be expected to be encountered in an oil and gas well.  The Texas Railroad Commission (which regulates oil and gas wells in Texas) so classified the Midland Farms area, and a tabulation from that source (Exhibit C-1) shows that concentrations of H2S as high as 147,000 ppm have been encountered in that area.  The Texas Railroad Commission required a sign warning of the danger of H2S gas to be posted on the well here involved (Exhibit C-4).  A nearby well, shown in two photographs (Exhibits C-5 and C-6) had experienced a gas blowout at the time of the inspection.

The central question is whether D A & S was required by § 1910.134(a)(2) to provide respirators when there was no H2S actually leaking from the well and where the well had been shut in with engineering controls but where there was a possibility of a release of H2S despite these controls.

It is noted that the proposed vertical OSHA standards for the oil and gas well drilling and servicing industry would provide:

All Employees working in an area of potential exposure to hydrogen sulfide shall wear or carry on their person an approved escape-type self-contained breathing apparatus, or they shall wear or carry on their person a respirator which provides equal or better protection.  Those employees who must remain in or reenter the danger area in accordance with the emergency action plan shall have available, in addition to the escape units, an approved positive pressure respirator to be worn while they remain in or return to the danger area.

48 PR 57202, December 28, 1983. Of course, this standard is not in effect and may never be and a proposed standard has no effect on enforcement of the present standard.  United Technologies, Power Systems Div., 81 OSAHRC 40/C13, 9 BNA OSHC 1813, 1981 CCH OSHD ¶ 25,350 (No. 79-1552, 1981).  However, it shows OSHA's view of the problem.

The National Institute for Occupational Safety and Health (NIOSH) on September 1, 1976, issued work protective recommendations similar to the proposed OSHA standard, CCH OSHD ¶ 10,509, pointing out that "[o]ver the past two years, in the State of Texas alone, there have been 24 deaths reported from acute exposure to hydrogen sulfide".

Given the extreme toxicity of H2S, it does not seem unreasonable to require that an employer be required to make appropriate respirators available in areas where there is a reasonable possibility that H2S may be released.  Reliance on engineering controls alone is not enough, in view of the possibility that they may fail.

Since no respirators were available on this worksite, a violation is found, and it must be characterized as serious.

Both parties introduced testimony with regard to respondent's respiratory protection program, and, as quoted above, § 1910.134(a)(2) incorporates by reference paragraph (b) thereof, which sets forth in 11 subparagraphs the "Requirements for a minimal acceptable program."  However, it is unnecessary to discuss this matter because the citation does not allege a violation of any of these provisions, which include written procedures for the selection and use of respirators, training of employees in the use of respirators, and the cleaning, maintenance and storage of respirators.

It is true that item 2 of citation 2, which was withdrawn at the hearing as "duplicitous", alleged a nonserious violation of § 1910.134(b)(3) for failure to train employees "in the proper use of respirators when working in a H2S identified area."  However, the withdrawal of this item was not combined with a corresponding amendment to item 1 of citation 1, so the matter of training in the use of respirators was effectively removed from this proceeding.   In any event, a violation of § 1910.134(a)(2) has been found already, and another violation would be superfluous.

II.  The alleged nonserious violation of 29 C.F.R. 1910.23(c)(3)[[5]]

Item 1 of citation 2 alleges a nonserious violation of 29 C.F.R. 1910.23(c)(3) in that the operator's platform was not guarded by a standard railing.

The unrefuted testimony of the compliance officer established that the operator's station was on a platform about four feet above ground; that it had no guardrails; that if the operator fell off the platform on one side he might strike a pipe rack which was about three feet away; and that the operator was observed standing within a few inches of this open side  (Tr. 22, 23, 59).

The question is whether the pipe rack was "dangerous equipment" within the meaning of § 1910.23(c)(3).  By its own terms, this standard applies to platforms "above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards. . ." Identical language is used in 29 C.F.R. 1926.500 (d)(5), the construction industry counterpart of § 1910.23(c)(3).  The Commission has never had occasion to define "dangerous equipment" as used in these standards, so the usual rules of construction must be applied.

"[A] standard should be construed in light of its purposes as well as its plain meaning . . . " Duncanson-Harrelson Co., 81 OSAHRC 28/A2, 9 BNA OSHC 1539, 1981 CCH OSHD ¶ 25,296 (No. 76-1567, 1981).  Here, however, it is not clear whether "dangerous equipment" is something different from "pickling or galvanizing tanks, degreasing units, and similar hazards."   It appears that these specific items are intended to be illustrative, so that the standard should be interpreted to read, "dangerous equipment, [such as] pickling or galvanizing tanks, degreasing units, and similar hazards."  Then the doctrine of ejusdem generis would apply, "[t]hat is, when specific words . . . follow more general words, . . . the application of the general term should be restricted to things that are similar to those specifically enumerated."  Dayton Tire and Rubber Co., 80 OSAHRC 95/D4, 8 BNA OSHC 2086, 1980 CCH OSHD ¶ 24,842 (No. 16188, 1980).  The use of the ejusdem generis doctrine is further indicated here by the use of the phrase "and similar hazards" after the specific illustrations.  It can hardly be said that a pipe rack is a "similar hazard" to "pickling or galvanizing tanks" or "degreasing units."   I hold that it is not.

Incidentally, it is odd that these specific items are listed in the construction standard, § 1926.500(d)(5), since they are unlikely to be found in such a workplace.  Perhaps the reason is a desire for uniformity in comparable standards.  However, it is the general industry standard, § 1910.23(c)(3), that is here involved.

There is another reason for not characterizing the pipe rack as "dangerous equipment":  It was not described in enough detail to make such a determination.  The compliance officer said it was a "sharp metal object" holding the tubing for the well (Tr. 22), but he said it was about three feet from the operator's platform (Tr. 59).  Thus the platform was not, in the language of § 1910.23 (c)(3), "above or adjacent to" the pipe rack.

III.  The alleged nonserious violation of 29 C.F.R. 1910.151(b)[[6]]

Item 3 of citation 2 alleges a nonserious violation of 29 C.F.R. 1910.151(b) in that no medical facility for treatment of injured employees was in near proximity to the workplace and in that none of its employees was adequately trained to render first aid.

Compliance Officer Vigil testified that the nearest hospital was 15 miles from the workplace and that he was informed by respondent's employees that none of them had been trained in first aid (Tr. 24).

On the other hand, D A & S safety director McFadden testified that a number of D A & S employees, including Jaime Renteria, crew chief on the rig here involved, had been given "multi-media" first aid training entitling them to be certified by the American Red Cross; that Renteria was so trained in an 8-hour course between August 31 and September 8, 1982; that Renteria was issued a Red Cross certificate that was valid for three years; and that the certificate was still good on the date of the inspection, April 14, 1985.  As evidence of this training, McFadden produced a Red Cross course record (Exhibit R-1) containing Renteria's name and the course dates.  I find this evidence much more convincing than the hearsay evidence secured from unnamed employees, especially since there is nothing to indicate that Crew Chief Renteria was interrogated about this.

I find no violation of § 1910.151(b).

IV.  The appropriate penalty for the serious violation

The Secretary proposes a civil penalty of $280 for the serious violation of 29 C.F.R. 1910.134(a)(2).

Section 17(j) of the Act requires the Commission, in assessing penalties, to consider the gravity of the violation and the employer's size, good faith and history of previous violations.  These factors need not be accorded equal weight, but the gravity is usually of greater significance than the others.  Colonial Craft Reproductions, 72 OSAHRC 11/B10, 1 BNA OSHC 1063, 1971-73 CCH OSHD ¶ 15,277 (No. 881, 973).  Elements to be considered in determining gravity include the number of employees exposed to the risk of injury, duration of the exposure, precautions taken against injury, and the degree of probability of occurrence of an injury.  National Realty & Construction Co., Inc., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ¶ 15,188 (No. 85, 1972) rev'd on other grounds, 489 F.2d 1257 (D.C. Cir., 1973).  After applying these statutory criteria, I find, on balance, that the proposed penalty of $280 is appropriate in this case.

FINDINGS OF FACT

1.  D A & S, an oil well servicing company based in Hobbs, New Mexico, was servicing an oil and gas well at Midland Farms Unit 13 miles south of Andrews, Texas, when its workplace was inspected April 14, 1985, by an OSHA compliance officer.

2.  The location of this well was designated by the Texas Railroad Commission as an H2S area, and H2S in concentrations of up to 1100 ppm had been encountered when the well was drilled. Such a concentration of H2S, a highly toxic gas, could be almost instantly fatal to employees unprotected by respirators.

3.  At the time of the inspection the well had been shut in by engineering controls (casing, cement, packers, hydrostatic pressure, and a blowout preventer), and no H2S was present in the atmosphere.   However, there was no possibility that H2S could be released despite these engineering controls.

4.  D A & S did not have any respirators at this workplace.  Respirators were necessary under the circumstances to protect the health of the employees.  There was a substantial probability that death or serious physical injury could result from the lack of respirators.  D A & S, in the exercise of reasonable diligence, could have known it was in violation of § 1910.134 (a)(2).

5.  A penalty of $280 is appropriate for the violation of 29 C.F.R. 1910.134(a)(2).

6.  The operator's platform was about four feet above ground level and had no guardrail on an open side which was about three feet from a pipe rack.  The operator was observed standing a few inches from the unguarded edge of the platform.  If he had fallen, he might have fallen against the pipe rack.   This pipe rack was not "dangerous equipment" within the meaning of 29 C.F.R. 1910.23 (c)(3).

7.  The crew chief on the rig had been trained to render first aid and had a valid American Red Cross certificate to that effect.

CONCLUSIONS OF LAW

1.  D A & S is an employer engaged in a business affecting commerce within the meaning of § 3(5) of the Act.  The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2.  On April 14, 1985, D A & S was in serious violation of 29 C.F.R. 1910.134(a)(2).

3.  On said date D A & S was not in violation of 29 C.F.R. §§ 1910.23(c)(3) and 1910.151(b).

ORDER

On the basis of the foregoing findings of fact, conclusions of law, and discussion and opinion, it is ORDERED that:

1.  Item 1 of citation 1, for serious violation of 29 C.F.R. 1910.134 (a)(2), is AFFIRMED and a penalty of $280 is ASSESSED.

2.  Items 1 and 3 of citation 2, for nonserious violations of 29 C.F.R. §§ 1910.23(c)(3) and 1910.151(b), are VACATED.

DEE C. BLYTHE
Administrative Law Judge
Date:  December 27, 1985


FOOTNOTES:

[[1]] The caption was corrected at the hearing (Tr. 36) to insert the word "Oil" in respondent's name.

[[2]] Item 2 of citation 2 alleged a nonserious violation of 29 C.F.R. 1910.134(b)(3), but this item was withdrawn at the hearing (Tr. 23) as "duplicitous."

[[3]] The citation originally alleged a violation of 29 C.F.R. 1910.134(b)(3), but at the opening of the hearing the Secretary of Labor ("the Secretary") moved to amend the citation and complaint to allege a violation of 29 C.F.R. 1910.134(a)(2).  This motion was granted (Tr. 6), but D A & S was allowed until 10 days after receipt of the transcript to request a supplemental hearing.  No such request was made, so the record is now closed.

[[4]] 29 C.F.R. 1910.134(a)(2) provides:

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.

[[5]] 29 C.F.R. 1910.23(c)(3) provides:

Regardless of height, open-sided floors, walkways, platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, decreasing units, and similar hazards shall be guarded with a standard railing and toe board.

[[6]] 29 C.F.R. 1910.151(b) provides:

In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid.   First aid supplies approved by the consulting physician shall be readily available.