Docket No. 13636

B.W. DRILLING, INCORPORATED

OSHRC Docket No. 13636

Occupational Safety and Health Review Commission

April 19, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, USDOL

Darrel J. Huenergardt, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's [*2] decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation should be vacated because American National Institute Standard A14.3-1956 is invalidly incorporated by reference into the cited standard, 29 C.F.R. § 1926.450(a)(5). Any standard that requires employers to ascertain its substantive requirements from sources other than the Federal Register is not, in my opinion, reasonably available within the context of the Act. To find respondent in violation of that standard is inconsistent with the requirements of the Administrative Procedure Act and respondent's rifht to fair treatment. Secretary v. Northern Metal Company, 20 OSAHRC 869 (1975) (concurring and dissenting opinion).

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any [*3] of the matters covered in Judge Carlson's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Donald R. McCoy, for the Complainant

Darrel J. Huenergardt, for the Respondent

Carlson, Judge, OSAHRC:

This is a proceeding brought under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq.), hereafter referred to as "the Act". By citation issued May 23, 1975 the complainant Secretary of Labor alleges that as a result of an inspection made May 19, 1975, respondent, in an oil well drilling operation, was determined to have violated the construction industry standard published at 29 CFR 1926.450(a)(5). Complainant further charged that the violation was of a serious character and proposed a civil penalty of $650. The citation was duly contested by respondent. Further pleadings were filed pursuant to Commission Rules and the matter was heard at Scottsbluff, Nebraska on September 23, 1975. No employees or their representatives sought party status. The parties submitted post-hearing briefs.

Complainant's citation, which grouped three alleged infractions into a single [*4] violation of 29 CFR 1926.450(a)(5), set forth such violation in these terms:

Item Number	Standard Allegedly Violated	Description of Alleged
		Violation
1a	29 CFR 1926.450(a)(5) as refers	(Derrick tower) Distance
	to Section 4.1.2, ANSI Standard	between the rungs of the
	A14.3, 1956, Safety Code for	steel fixed derrick tower
	Fixed Ladders	ladder exceeds 12 inches.
1b	29 CFR 1926.450(a)(5) as refers	(Derrick tower) The
	to Section 5.4, ANSI Standard	distance from the center
	A14.3, 1956, Safety Code for	line of rungs of the steel
	Fixed Ladders	fixed derrick tower ladder
		to the nearest permanent
		object in back of the
		ladder is less than seven
		inches.
1c	29 CFR 1926.450(a)(5) as refers	(Derrick tower) A cage
	to Section 6.1.2 ANSI Standard	or ladder safety device
	A14.3-1956, Safety Code for	is not provided on the
	Fixed Ladders	approximately ninety (90)
		foot high steel fixed
		ladder attached to the
		drilling rig derrick
		tower.

The cited portions of the ANSI Code for Fixed Ladders respectively provide:

4.1.2 The distance between rungs, cleats, and steps shall not exceed 12 inches and shall be uniform throughout the length of the ladder. [*5]

5.4 The distance from the center line of rungs, cleats, or steps to the nearest permanent object in back of the ladder shall be not less than 7 inches (Fig. 5), except that when unavoidable obstructions are encountered, minimum clearances as shown in Fig. 6 shall be provided.

6.1.2 Dimensions and Maximum Length. Cages or wells (except as provided under 6.5) conforming to the dimensions shown in Figs. 1, 10, and 11 shall be provided on ladders of more than 20 feet to a maximum unbroken length of 30 feet.

By the complaint, sub-item 1-c was amended to further allege violation of section 6.5 of the ladder code which refers specifically to the originally mentioned "ladder safety device," a protection which may be utilized in lieu of cages. That section reads:

6.5 Ladder Safety Devices. Ladder safety devices may be used on tower, water tank, and chimney ladders over 20 feet in unbroken length in lieu of cage protection. No landing platform shall be required in these cases. All ladder safety devices such as those that incorporate life belts, friction brakes, and sliding attachments shall meet the design requirements of the ladders which they serve. . . ." n1

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n1 No issue was raised herein as to the applicability of the construction standards as against the general industry standards. The ultimate result would not differ, however, since the above cited sections of the ANSI Code, incorporated by reference in the construction standards, have their essentially verbatim counterparts in the general industry standards at 29 CFR 1910.27(b)(1)(ii), 1910.27(c)(4), 1910.27(d)(i)(ii), and 1910.27(d)(5).

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FACTS AND OPINION

The undisputed facts herein show that respondent is a corporation with some 20 employees, headquartered in Kimball, Nebraska. It engages in the drilling of oil and gas wells, a business which affects commerce. On May 19, 1975 its drilling site near Kimball was inspected by one of complainant's compliance officers. The parties expressly stipulate that the fixed ladder extending from the base to the crown of the drilling tower failed to conform to the standards for ladders earlier herein referred to. Specifically, the rungs were uniformly spaced 14 and 5/8 inches apart rather [*7] than the prescribed 12 inches; the ladder was not caged; and the rungs lacked by 1 and 1/2 inches the required 7 inch rear "stand-off" clearance from the nearest permanent object. The last mentioned defect occurred at those points where the ladder interesected with the tower bracing and also at a place near the upper work platform or "board" where the tower had a solid covering. The derrick tower rose approximately 90 feet above the drill platform. The "board" was about 60 feet above the drilling platform. In normal drilling operations some six trips per day to the board would be required - each made by a single employee. Less frequent maintenance trips were sometimes necessary to the derrick crown.

Respondent is a member of a drillers' group which had been granted, effective October 17, 1973, a temporary variance from certain fixed ladder requirements on drilling towers. n2 Specifically, the Secretary of Labor's interim order granting the variance excused compliance with portions of the General Industry Standards relating to vertical rung spacing and the 7 inch horizontal clearance. The variance referred specifically to the General Industry Standards but complainant concedes [*8] that the variance would apply equally to those here alleged under the Construction Standards. A proviso of the variance, however, called for the use of "ladder safety devices" as a condition for noncompliance with the above mentioned spacing requirements. Such devices employ lanyards attached to the climber and also to a vertical rail. The latter attachment is made by a sliding inertial clamp or "friction brake" which engages to restrain the climber in the event of a fall.

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n2 See 38 Fed. Reg. 28987 (1973).

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Respondent's rig, however, was not provided with a climbing device. Consequently, the temporary variance is inapplicable and the violation must be in all respects affirmed.

Whereas respondent contested the violation, its defenses were directed wholly to the matter of penalty. Respondent challenges complainant's classification of the violation as "serious", and suggests, in any event, that the $650 proposed penalty is excessive.

Upon the evidence I must conclude that the ladder deficiencies were properly [*9] ranked as "serious" under section 17(k) of the Act. n3 There can be no question that respondent had knowledge of the ladder's condition. Neither can there be any real question that a fall from any point above the 20 foot level would likely result in serious injury or death. The Commission has frequently pointed out that a finding of serious violation must rest not on the probability that an accident will occur but upon the probability that, should one occur, the consequence to the victim would be grave. The probability of an accident is a proper factor to be weighed in penalty assessment. n4

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n3 That section reads:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

n4 Secretary v. Standard Glass and Supply Company, 2 OSAHRC 1488 (1973).

[*10]

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Turning, then, to the question of the appropriateness of the penalty I must conclude that respondent is correct in asserting that the proposed $650 is excessive. Section 17(j) of the Act requires that respondent's size, good faith and prior history, together with the gravity of the violation, be considered in arriving at a proper penalty.

Respondent, with 20 employees, is not a large employing entity. The compliance officer testified that he was quite fevorably impressed with the general manner in which the drilling site and rig had been maintained from a safety standpoint (Tr. 19). Following the inspection respondent promptly ordered a ladder safety device which, when received and installed, would achieve compliance with the existing variance order.

Respecting the gravity of the violation, complainant does not truly assert that the 2 and 5/8 inch excess in rung spacing or the 1 and 1/2 inch deficiency in horizontal clearance were large enough departures from the required distances to significantly enhance the danger of a fall-provoking misstep. At one point the compliance officer specifically [*11] characterized the "stand-off" deficiency as "primarily a technical violation" (Tr. 47). He also agreed that the vertical spacing on the rungs of respondent's ladder tended to be standard on drilling rigs - a fact also recognized by the Secretary's temporary variance order.

In my view, the lack of a cage behind the climber (to restrict the chance of a long fall in the event of a mishap on the ladder) was the most significant of the infractions charged. Nevertheless, respondent's history of engaging in the drilling business since 1967 without ladder injuries shows that the likelihood of an accident was relatively remote. Having weighed these factors in the light of the statutory criteria, I conclude that a penalty of $175 is appropriate.

FINDINGS OF FACT

Upon the entire record, and pursuant to the foregoing discussion, the following findings of fact are entered:

1. At the times material hereto respondent corporation had employees and was engaged in the drilling of an oil and gas well near Kimball, Nebraska. Its business affected commerce.

2. A fixed ladder extended up the side of the drilling rig tower some 90 feet from the drill platform to the crown thereof.

3. The [*12] vertical spacing of the rungs on such ladder exceeded 12 inches; the horizontal clearance between the rungs and permanent objects behind the ladder was less than 7 inches; and the ladder was not equipped with a cage. Alternatively, it was not provided with a ladder safety device.

4. A fall by a worker from a height above the 20 foot level on the ladder would likely result in serious injury or death.

5. The probability of such a fall was quite low.

CONCLUSIONS OF LAW

It is concluded:

1. That the Commission has jurisdiction to decide this cause.

2. That at the times material hereto respondent was in violation of section 5(a)(2) of the Act in that its employees used a ladder which did not comply with the requirements of section 4.1.2, section 4.4, and with section 6.1.2 or section 6.5 of American National Standards Institute Standard A14.3-1956 as adopted by reference at 29 CFR 1926.450(a)(5).

3. That the violation was serious within the meaning of section 17(k) of the Act.

4. That $175 is an appropriate penalty for such violation.

ORDER

In accordance with the foregoing the citation herein is ORDERED affirmed and a civil penalty of $175 is assessed in connection [*13] therewith.

John A. Carlson, Judge, OSAHRC

Dated: February 24, 1976

Denver, Colorado