Pettey Oil Fields Services, Inc.

Plain-English summary

Pettey employees pushed down and cut trees while clearing a route for a gas line in West Virginia. OSHA issued multiple logging-standard and hazard-communication citation items, and the judge granted summary judgment to OSHA on the logging standard's applicability and fair-notice issues. The Commission held that the order was not a complete reviewable decision because it left the hazard-communication items unresolved and did not determine characterization or penalties for the logging items. The order also did not address noncompliance, employee exposure, or employer knowledge. The Commission directed review and remanded the case for resolution of every outstanding issue.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.266(f)(3)(viii)(D), 1910.266(i)(1), 1910.266(i)(10)(i), 1910.266(i)(7)(i), 1910.266(d)(2)(ii), 1910.266(d)(1)(vi), 1910.266(d)(1)(vii)(B), 1910.266(d)(1)(v), 1910.266(d)(1)(iv), 1910.266(d)(3)(i), 1910.266(d)(4), 1910.266(f)(1)(iii), 1910.1200(e)(1), 1910.1200(g)(1), 1910.1200(h)(1), and 1910.266(d)(1)(vii)(A)
• Outcome: The Commission remanded the case because the judge's order did not resolve all citation items, elements, characterizations, and penalties.
• Key point: A judge's decision is not ready for Commission review until it disposes of every contested citation item, proposed penalty, and material issue.

Full text (OSHRC public release)

Pettey Oil Fields Services, Inc., Docket No. 05-1039

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 05-1039

PETTEY OIL FIELDS SERVICES, INC.

Respondent.

DIRECTION FOR REVIEW AND REMAND ORDER

Before: RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.

BY THE COMMISSION:

In an order dated June 22, 2006, Administrative Law Judge John H. Schumacher
issued a ruling on cross-motions for summary judgment in the above-captioned
case. The judge filed his order with the Commission’s Executive Secretary, who
docketed the matter pursuant to Commission Rule of Procedure 90(b)(2), 29
C.F.R. § 2200.90(b)(2) (procedure for docketing of judge’s report with Executive
Secretary) . On June 26, 2006, Pettey Oil Fields Services, Inc. (Pettey) filed a
petition seeking review of the judge’s order. For the following reasons, we direct
this case for review and remand to the judge.

Background

On May 9, 2006, OSHA inspected a worksite in Logan, West Virginia, where
Pettey was excavating ground to run a gas line. Following the inspection, OSHA
issued Pettey three citations alleging three violations under OSHA’s hazard
communications standard and numerous violations under OSHA’s logging
standard. During discovery, Pettey filed a motion for summary judgment, arguing
that the citation items issued under the logging standard should be dismissed
because the standard does not apply, or alternatively, because Pettey did not have
fair notice of its application. The Secretary filed a cross-motion for summary
judgment, arguing that the citation items issued under the logging standard should
be affirmed because the standard does apply and Pettey had fair notice of its
application. In his June 22, 2006 order, the judge found that the logging standard
applies to the work performed by Pettey and that Pettey had adequate notice of its
application. He therefore denied Pettey’s summary judgment motion, granted the
Secretary’s summary judgment motion, and “affirmed” the citation items issued
under the logging standards.

Discussion

Upon consideration of the judge’s June 22, 2006 order, we find that this
matter is not ripe for review by the Commission. Regarding a judge’s decision
filed with the Executive Secretary for docketing, Commission Rule 90(a) states in
relevant part:

The decision shall … include findings of fact, conclusions of law,
and the reasons or bases for them, on all material issues of fact, law
or discretion presented on the record. The decision shall include an
order affirming, modifying or vacating each contested citation item
and each proposed penalty, or directing other appropriate relief.

29 C.F.R. § 2200.90(a) (emphasis added). Here, the judge’s June 22, 2006 order
fails to dispose of all material issues of fact, law or discretion presented on the
record, and does not affirm, modify or vacate each contested citation item and each
proposed penalty.

First, the judge’s order does not address the three citation items issued
under OSHA’s hazard communication standard. Neither party asked the judge to
rule on these items in their respective summary judgment motions. While the
judge’s order does state that the Secretary represented in her motion that she
intends to dismiss two of the three items, the official file does not contain an
executed stipulation or other signed document withdrawing any of these items, or
otherwise indicate that the parties have settled the items.

Second, the judge’s order does not determine the characterization of, or
assess a penalty for, the citation items alleged under the logging standard. Indeed,
the judge acknowledged in his order that, “[t]he classification of the [logging]
items, and the penalties therefore, will be resolved by the parties’ settlement in this
matter.” (Order 8 n.9.) Again, however, the official file contains no proof that
these issues have been resolved. Moreover, while the judge’s order does address
the applicability of the logging standard to the cited conditions, it does not resolve
the other elements of the Secretary’s burden of proving a violation, namely
whether: (1) Pettey violated the terms of the standard; (2) its employees had access
to the violative conditions; and (3) Pettey had actual or constructive knowledge of
the violative conditions. See Gary Concrete Prods. Inc. , 15 BNA OSHC 1051,
1052, 1991 CCH OSHD ¶39,448, p. 39449 (No. 86-1087, 1991), citing Trumid
Constr. Co. Inc. , 14 BNA OSHC 1784, 1788, 1990 CCH OSHD ¶29,079, p.
38,859 (No. 86-1139, 1990) (elements of Secretary’s burden of proving a violation
of specific standard promulgated pursuant to section 5(a)(2), 29 U.S.C.
§ 654(a)(2), of the Occupational Safety and Health Act).

Under these circumstances, we find that the judge’s June 22, 2006 order
does not satisfy the requirements for a decision as set forth in Commission Rule
90(a). Therefore, the order should not have been filed for docketing with the
Executive Secretary. Accordingly, we direct review of this case and remand the
matter to the judge for the resolution of all outstanding issues.

SO ORDERED.

_/s/________

W. Scott Railton

Chairman

_/s/________

Thomasina V. Rogers

Commissioner

_/s/________

Horace A. Thompson, III

Commissioner

Dated: _July 12, 2006

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 05-1039

PETTEY OIL FIELDS SERVICES, INC.,

Respondent.

ORDER

On May 9, 2005, the Occupational Safety and Health Administration
(“OSHA”) conducted an inspection of a work site of Pettey Oil Fields Services,
Inc. (“Pettey” or “Respondent”). As a result, on May 20, 2005, OSHA issued to
Pettey a six-item serious citation, a one-item “other” citation, and a four-item
“repeat” citation. Pettey filed a timely notice of contest with respect to all of the
citation items and proposed penalties, bringing this matter before the Commission.

To avoid the expense of an evidentiary hearing in this matter, each party has
submitted its Motion for Summary Judgment (“Motion”); in addition, Pettey has
filed a reply to the Secretary’s Motion.

The undersigned judge has considered all
of the parties’ filings in issuing this Order.

Background

Respondent Pettey is in the oil and gas business, and its operations include
monitoring, repairing and installing gas lines. On May 9, 2005, employees of
Pettey were pushing down trees with machinery at the Nickel Branch Tract in
Logan, West Virginia, to clear the area so that employees could dig a ditch and
install a gas line. See Affidavit of Ronald Pettey (“Pettey Affidavit”) ¶ 3;
Affidavit of Chuck Green (“Green Affidavit”) pp. 1-2).

Chuck Green, the OSHA
compliance officer (“CO”) who conducted the inspection, observed Pettey
employees, who “used bulldozers and endloaders to push down trees, and then
used chainsaws to cut the felled trees into smaller sections.” (Green Affidavit p.1).
Pettey employees apparently were not observed hauling or moving the logs to any
other locations but, rather, were seen pushing aside trees to clear a path for
installation of a gas line. (Pettey Affidavit ¶¶ 4, 5). Respondent contends that
employees were not cutting the trees from the stump. (Pettey Affidavit ¶ 3). This is
borne out by CO Green, whose affidavit states that “these employees were not
cutting down trees with chainsaws, saws, or axes...” (Green Affidavit p. 2).

Respondent’s employees were not wearing any hard hats, goggles, or
protective leg coverings, although these personal protective items were provided
by Respondent and were available on site. (Pettey Affidavit ¶ 2; Green Affidavit
pp. 1-2). This observation prompted a more thorough inspection by CO Green.
After the CO’s inspection, OSHA issued citations alleging a number of violations
under the logging operations standard as well as violations under the hazard
communication (“HAZCOM”) standard. Specifically, the citations allege as
follows:

Citation 1, Item 1a, alleges a serious violation of 29 C.F.R.
1910.266(f)(3)(viii)(D), in that the sides were not guarded on the 1978 CAT D5C
Dozer, that was available for use.

Citation 1, Item 2a, alleges a serious violation of 29 C.F.R. 1910.266(i)(1),
in that the employer did not ensure that all employees had been successfully
trained on the requirements of the 1910.266 logging operations standard.

Citation 1, Item 2b, alleges a serious violation of 29 C.F.R.
1910.266(i)(10)(i), in that the employer did not prepare a written certification of
training record for each employee.

Citation 1, Item 3a, alleges a serious violation of 29 C.F.R.
1910.266(i)(7)(i), in that the employer did not ensure that the cutter/supervisor and
another cutter had been trained in first aid and CPR.

Citation 1, Item 3b, alleges a serious violation of 29 C.F.R.
1910.266(d)(2)(ii), in that the first aid kit did not contain minimum items, such as
4 x 4 gauze pads, triangular bandages, a blanket, and resuscitation equipment.

Citation 1, Item 4a, alleges a serious violation of 29 C.F.R.
1910.266(d)(1)(vi), in that the cutter/supervisor and another cutter were not
wearing head protection while using chain saws to cut and trim trees that had been
pushed over.

Citation 1, Item 4b, alleges a serious violation of 29 C.F.R.
1910.266(d)(1)(vii)(B), in that the cutter/supervisor and another cutter were using
chain saws without wearing face protection.

Citation 1, Item 4c, alleges a serious violation of 29 C.F.R.
1910.266(d)(1)(v), in that the cutter/supervisor and another cutter were not
wearing cut resistant boots while operating chain saws.

Citation 1, Item 4d, alleges a serious violation of 29 C.F.R.
1910.266(d)(1)(iv), in that the cutter/supervisor and another cutter were not
wearing leg protection while operating chain saws.

Citation 1, Item 5, alleges a serious violation of 29 C.F.R. 1910.266
(d)(3)(i), in that no seat belt was located on the 1978 CAT D5C Dozer that was
available for use.

Citation 1, Item 6, alleges a serious violation of 29 C.F.R. 1910.266(d)(4),
in that the employer did not provide and maintain a portable fire extinguisher on
either the 1978 CAT D5C Dozer or the 2004 CAT 315 Excavator.

Citation 2, Item 1, alleges an other-than-serious violation of 29 C.F.R.
1910.266 (f)(1)(iii), in that no operating and maintenance instructions were located
on the 1978 CAT D5C Dozer.

Citation 3, Item 1, alleges a repeat violation of 29 C.F.R. 1910.1200 (e)(1),
in that the employer did not maintain a written HAZCOM program on the site for
chemicals employees might have been exposed to, such as gasoline, oil, and diesel
fuel.

Citation 3, Item 2, alleges a repeat violation of 29 C.F.R. 1910.1200 (g)(1),
in that the employer did not maintain a Material Safety Data Sheet on the site for
chemicals employees might have been exposed to, such as gasoline, oil, and diesel
fuel.

Citation 3, Item 3, alleges a repeat violation of 29 C.F.R. 1910.1200 (h)(1),
in that each employee had not been trained regarding the hazards associated with
the chemicals they were exposed to, such as gasoline, oil, and diesel fuel.

Citation 3, Item 4, alleges a repeat violation of 29 C.F.R. 1910.266
(d)(1)(vii)(A), in that a dozer operator and an excavator operator were not wearing
eye protection.

Discussion

Respondent contends that its Motion should be granted and the citation
items vacated because the Secretary has not shown that the logging standard
applies to Pettey’s activities at the work site. The Secretary, on the other hand,
contends that her Motion should be granted and the citations items affirmed
because she has shown that the standard applies to the activities at the site.

The parties’ motions for summary judgment were made pursuant to
Commission Rule 61, 29 C.F.R. 2200.61, and to Federal Rule of Civil Procedure
56(a), which states that:

A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the
expiration of 20 days from the commencement of the action or after
service of a motion for summary judgment by the adverse party,
move with or without supporting affidavits for a summary judgment
in the party’s favor upon all or any part thereof.

Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to a judgment as a matter of law.
Poller v. Columbia Broad. Sys. , 368 U.S. 464, 467 (1962).

As Respondent points out, in determining whether to affirm a citation, the
administrative law judge must first address the applicability of the cited standard,
which involves a consideration of the text and structure of the standard at issue.
Superior Masonry Builders , 20 BNA OSHC 1182, 1184 (No. 96-1043, 2003). “If
the meaning of the language is not ambiguous, the inquiry ends there.” Id . It is
only when the meaning of the standard is ambiguous that consideration should be
given to “contemporaneous legislative history, and then to the Secretary’s
interpretation so long as it is reasonable.” Id .

Respondent contends that the meaning of the logging standard set out at 29
C.F.R. 1910.266 is not ambiguous. The standard “establishes safety practices,
means, methods and operations for all types of logging, regardless of the end use
of the wood,” and includes, but is not limited to, “pulpwood and timber harvesting
and the logging of sawlogs, veneer bolts, poles, pilings and other forest products.”
29 C.F.R. 1910.266(b)(1). Further, the standard applies to logging operations “ as
defined by this section .” 29 C.F.R. 1910.266(b)(2) (emphasis added). For those
hazards and working conditions not specifically addressed by this section, or when
the regulation does not apply to the employer’s operations, other applicable
sections of Part 1910 govern the employer’s conduct. 29 C.F.R. 1910.266(b)(3).

The term “[l]ogging operations” is defined as “[o]perations associated with
felling and moving trees and logs

from the stump to the point of delivery, such as,
but not limited to, marking danger trees and trees/logs to be cut to length, felling,
limbing, bucking, debarking, chipping, yarding, loading, unloading, storing, and
transporting machines, equipment and personnel to, from and between logging
sites.” 29 C.F.R. 1910.266(c). The word “fell” is expressly defined in the standard
as “[t]o cut down trees.” Id . (Emphasis added). Respondent asserts that pushing
trees over with machinery does not meet the definition of “fell” set out in the
standard. Respondent also asserts that the standard applies only where the
employer is engaged in the “felling and moving” of trees and logs and that the use
of the conjunctive word “and” rather than “or” indicates that both activities must
be present for the standard to apply. Respondent concludes that because it was not
“felling and moving” trees at the site, and because the meaning of “logging
operations” set out at 29 C.F.R. 1910.266(c) is unambiguous, the logging standard
is not applicable in this matter.

I do not agree with Respondent’s position that the standard is unambiguous,
and I find that the language of Sections1910.266(b)(1) and 1910.266(c) requires
interpretation. In this regard, I note that the Commission has stated that “in
interpreting a disputed term in a standard, we look to the provisions of the whole
law, and to its object and policy.” Phoenix Roofing, Inc. , 17 BNA OSHC 1076,
1077 (No. 90-2148, 1995), citing to Aulston v. U.S. , 915 F.2d 584, 589 (10th
Cir.1990); Smith v. U.S. , 113 S.Ct. 2050, 2054 (1993) (definition of disputed
phrase not limited to meaning “that most immediately comes to mind”).

I address first Respondent’s argument that it was not “felling and moving”
trees at the site. The record shows that Pettey’s employees were pushing down
trees with machinery and then using the machinery to move the trees out of the
way; they also cut the trees into 4 to 5-foot sections to comply with West
Virginia’s oil and gas regulations, which require that trees be cut into such sections
and left to decompose naturally. (Pettey Affidavit ¶¶ 3-4). The Secretary contends
that Pettey’s interpreting the definition of “fell” to exclude the activities at the site
ignores common sense and is too narrow. She notes that the definition of “fell”
includes “to cause to fall by striking; cut or knock down,” citing to the American
Heritage Dictionary of the English Language (4 th ed. 2000). She further notes that
“cut down” is also defined as “to strike down.” Id . Finally, she notes that “cut” is
defined as “to penetrate with or as if with an edged instrument” and “to strike
sharply with a cutting effect,” citing to Webster’s New Int’l Dictionary (3 rd ed.
2002). She concludes that downing trees with machines results in the trees being
“cut down” just as surely as they would be by the use of a saw or an axe. I agree,
and I find that Pettey’s activities at the site involved “felling and moving trees and
logs” as set out in the standard.

I next address Section 1910.266(b)(1), which establishes the scope and
application of the logging regulations, as follows:

b) Scope and application.

1) This standard establishes safety practices, means, methods and
operations for all types of logging, regardless of the end use of the
wood. These types of logging include, but are not limited to ,
pulpwood and timber harvesting and the logging of sawlogs, veneer
bolts, poles, pilings and other forest products. This standard does not
cover the construction or use of cable yarding systems.

29 C.F.R. 1910.266(b)(1) (emphasis added).

The foregoing language shows that the end use of the wood, whether it is
used to make paper or is left in the woods to decompose after felling, is not
relevant to whether an activity is considered logging. Moreover, while a number of
types of logging operations are explicitly set out, Section 1910.266(b)(1) makes it
clear that the application of the regulation is not limited to the enumerated types of
operations; stated another way, the phrase “but are not limited to” anticipates that
there will be logging activities that are not specifically listed in Section
1910.266(b)(1). Section 1910.266(b)(2) goes on to state that “this standard applies
to all logging operations as defined by this section,” and Section 1910.266(c)
further defines “logging operations,” as follows:

Logging operations. Operations associated with felling and moving
trees and logs from the stump to the point of delivery, such as, but
not limited to , marking danger trees and trees/logs to be cut to length,
felling, limbing, bucking, debarking, chipping, yarding, loading,
unloading, storing, and transporting machines, equipment and
personnel to, from and between logging sites.

29 C.F.R. 1910.266(c) (emphasis added).

Again, the use of the phrase “but not limited to” plainly demonstrates that
the listed activities are not meant to be the exclusive list of what constitutes
logging under the standard. I find, accordingly, that the activities set out in
Sections 1910.266(b)(1) and 1910.266(c), are examples only and are not the sole
kinds of logging operations contemplated by the standard.

I further find that the Secretary has interpreted her definitions and
regulations to provide the most protection possible to workers exposed to the
hazards specific to logging operations. This goal is consistent with the purposes of
the Act. Furthermore, the Secretary’s interpretation of a regulatory provision is
owed deference and is entitled to affirmance as long as it is reasonable. N & N
Contractors, Inc., v. OSHRC , 255 F.3d 122,125 (4 th Cir. 2001). I conclude that the
Secretary’s interpretation of her regulations in this case is reasonable.

Respondent’s final argument is that it did not have adequate notice that its
activities would be subject to the OSHA logging standard. The record shows that
Pettey’s employees were pushing down trees in order to prepare for a construction
activity, the laying of a gas line. (Green Affidavit; Pettey Affidavit). As the
Secretary points out, the removal of trees in preparation for a construction activity
is clearly covered by the logging standards, as explained in the OSHA Logging
Preamble:

[T]he felling of trees in preparation for the construction activities ...
is considered to be a logging operation. To the extent that any
employee is performing a logging operation in preparation for
construction activities, the employee is performing general industry
work, and the requirements of this standard as well as other
applicable sections of part 1910, apply in order to safely fell those
trees.

In addition, an OSHA “e-Tool” for Oil and Gas Well Drilling and Servicing
states that “[s]ite preparation for an oil and gas well, in most instances, looks like
any other construction site.”

Finally, the OSHA web site also describes the
activities of “limbing and bucking” in logging and the hazards of those two
activities.

“Bucking” is one of the logging operations specifically listed in Section
1910.266(c), and the standard defines the activity as “cut[ting] a felled tree into
logs.” See 29 C.F.R. 1910.266(c). The record shows that Pettey’s employees were
“bucking” at the site, that is, they were cutting the felled trees into smaller
sections. (Green Affidavit; Pettey Affidavit). Based on the record, Respondent
clearly had adequate notice that operations such as those performed at the subject
site were covered by the logging operations standard.

In view of the foregoing, Respondent’s Motion is DENIED, the Secretary’s
Motion is GRANTED, and the citation items alleging violations of the logging
operations standard are AFFIRMED.

So ORDERED.

/s/

JOHN H. SCHUMACHER

Judge, OSHRC

Dated: June 22, 2006

Washington, D.C.