D.A. & S. Oil Well Servicing, Inc.

Plain-English summary

D.A. & S. serviced an oil and gas well in an area where highly toxic hydrogen sulfide could be encountered, but it had no emergency respirators at the site. The judge found that engineering controls could fail and affirmed a serious respiratory-protection violation with a $280 penalty. He vacated separate platform-guarding and first-aid items, and another respirator-training item had been withdrawn at the hearing. D.A. & S. petitioned for Commission review but did not timely file its review brief. The Commission therefore vacated the direction for review, leaving the judge's mixed disposition as the final order.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.134(a)(2); 29 C.F.R. § 1910.134(b)(3); 29 C.F.R. § 1910.23(c)(3); 29 C.F.R. § 1910.151(b)
• Outcome: Serious respirator item affirmed with $280 penalty; platform and first-aid items vacated; training item withdrawn.
• Key point: Failure to file the required Commission brief ended review and left the judge's decision in place.

Full text (OSHRC public release)

Docket No. 85-0604

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 (H 2 S), 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 H 2 S 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 H 2 S 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).

H 2 S 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 H 2 S 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 H 2 S as
high as 147,000 ppm have been encountered in that area.  The Texas Railroad
Commission required a sign warning of the danger of H 2 S 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 H 2 S
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 H 2 S 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 H 2 S, 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 H 2 S
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 H 2 S 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 H 2 S area, and H 2 S in
concentrations of up to 1100 ppm had been encountered when the well was drilled. Such a
concentration of H 2 S, 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 H 2 S was present in the atmosphere.   However,
there was no possibility that H 2 S 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.