City Oil Well Service Co.

Plain-English summary

Two City Oil Well Service employees died during swabbing work at an oil well where later testing found hydrogen sulfide at 225 parts per million. City relied on well operators to identify hydrogen-sulfide hazards and provide respirators, and it had no respiratory-protection program of its own. The appended record shows disagreement over whether that industry practice excused City and whether the respirator requirements applied without proof that engineering controls were infeasible. The Commission's final 1986 order affirmed serious violations of 29 C.F.R. §§ 1910.134(a)(1) and 1910.134(a)(2) and assessed $800. The release states that result without explaining the procedural basis for replacing the earlier disposition included in the appended materials.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.134(a)(1) and 1910.134(a)(2)
• Outcome: Both serious respiratory-protection items affirmed; total penalty of $800 assessed.
• Key point: The final Commission order held City responsible for both cited respiratory-protection requirements at the hydrogen-sulfide worksite.

Full text (OSHRC public release)

Docket No. 81-1797

SECRETARY OF LABOR,

Complainant,

v.

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. �� 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. � 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29
U.S.C. �� 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. � 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. �� 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. � 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. � 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 �
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 � 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 � 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 �
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 � 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 � 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,

v.

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 �5(a)1 of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 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 �10(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 � 5(a)(1) charge, and instead alleged
violations of � 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.

T he alleged violations of � 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 � 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 �1910.134(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 � 1910.134(a)(2) because this standard is not applicable unless � 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 � 1910.134(a)(1) citation.

The next issue is whether � 1910.134(a)(2) is applicable if � 1910.134(a)(1) is
not. City bases its position on the final sentence of � 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, � 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, � 3.3 of which contains the provisions found in � 1910.134 (a) (2) and is
headed "Employer Responsibility." This heading, while not conclusive, buttresses
the impression that � 1910.134(a)(2) is independent and can form the basis for a citation
without a violation being found under �1910.134(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 � 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 �
1910.134(a)(1) is substantially equivalent to the asbestos standards then in effect, ��
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 � 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 � 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 � 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
   �3(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 � 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 �5(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]] � 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. � 661(a). Under section 12(f) of the Act, 29 U.S.C. � 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 �� 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 � 21,394 (No. 11553, 1976).