Pride Oil Well Service

Plain-English summary

Pride Oil Well Service employees monitored fluids entering a mobile storage tank while nitrogen used in the well displaced oxygen in the tank. One employee lost consciousness and fell into the tank, and another entered in an attempted rescue; both died from asphyxia due to drowning in the tank contents. Pride had not provided respirators, oxygen testing, oxygen-deficiency training, or a caution sign at the tank. The Commission held that respiratory protection was necessary, the standard was not vague, and the supervisor's knowledge was attributable to Pride. Pride could not rely on industry practice, the well operator, or its confined-space rule to shift its responsibility because it had not adequately trained or supervised its employees for the hazard and foreseeable rescue attempts. The Commission affirmed both violations as serious and assessed penalties of $1,000 for respiratory protection and $200 for the missing warning sign.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.23(a)(6), 1910.134(a)(2), and 1910.145(c)(2)(i)
• Outcome: Two serious violations affirmed with $1,200 in total penalties; the separate manhole-opening item remained vacated.
• Key point: An employer must protect its own employees from an oxygen-deficient tank atmosphere and cannot transfer that duty to the well owner or rely on an unenforced general rule.

Full text (OSHRC public release)

Docket No. 87-0692

SECRETARY OF LABOR.

Complainant.

v.

PRIDE OIL WELL SERVICE,

Respondent.

OSHRC Docket No. 87-0692

DECISION

Before:FOULKE, Chairman: WISEMAN and MONTOYA,
Commissioners.

BY THE COMMISSION:

As a result of an accident investigation and inspection by
the Occupational Safety and Health Administration ("OSHA"), Pride Oil Well
Service ("Pride") was charged with serious violations of standards promulgated
under the Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-678 ("the
Act"), because it failed to provide: (1) respiratory protection to employees involved
in monitoring the contents of a mobile storage tank from an opening in its top; or (2) a
sign warning of potential hazards or unsafe practices involving the tank.  At issue
is whether Review Commission Administrative Law Judge E. Carter Botkin erred in concluding
that Pride committed these alleged violations.

I. Background

Pride is an oil well service company with its principal
office located in Houston, Texas. Pride and several other subcontractors had crews working
to restore a well in Angleton, Texas, to be operational again.  Tommy Mostyn, a
drilling consultant, had been hired by the owner of the well to oversee the entire
project. Mostyn, in turn, gave directions to George Cantu, Pride's rig supervisor, or
"tool pusher," who was responsible for supervising Pride's crew.

As part of the process to "recomplete" the well,
another subcontractor used tubing to insert liquid nitrogen, under pressure, into the well
to force diesel oil, water, and other materials from the well bore and into a 500-gallon
"frac tank," or mobile storage tank ("the tank"). During this process,
liquid nitrogen changed into nitrogen vapor or gas, an odorless asphyxiant, that combines
with the vapors or gases from the diesel oil and other hydrocarbons present in the tank to
form a gaseous mixture that is heavier than air. This mixture then displaces the oxygen in
the tank, forcing it out through the tank's vent holes.

In order to determine how deeply to drill, Mostyn needed
to know the level of the "returns," or the fluid that was coming out of the well
and into the tank. He ordered Cantu to have an employee go up onto the top of the tank to
monitor the flow of the "returns" from an opening there, but Cantu protested.
Cantu testified that he told Mostyn that it was unnecessary to have employees on top of
the tank because he "had already rigged up a way to get a sample off the needle
valve" which was observable from the ground. When Mostyn persisted, Cantu relented
and assigned Mario Perez, a Pride floor hand, to go up on the tank to observe the level of
the "returns."

The opening in the top of the tank through which the level
of the "returns" could be observed measured 18-1/2 inches square, with a
hatchway cover that had been left open for monitoring purposes. Nearby, there was a small,
circular hole that measured three inches in diameter. There was a ladder on the exterior
of the Tank leading to its top, but no ladder leading down into the interior of the tank.
Perez testified that he had to kneel and look down into the hatchway opening, sometimes
sticking his head through the opening, in order to perform his assignment to check the
flow of the liquid. [[1]]

To relieve Perez for lunch, Cantu assigned Rodrigo Reyes,
another Pride floor hand, to go up on the tank. When Perez came down, Cantu was talking
with another Pride employee, Arnoldo Zamora. Cantu testified that Perez asked him what was
coming out of the well because it was "making [him] real dizzy" and "making
[his] head hurt." Cantu responded that, as far as he knew, diesel, nitrogen, and some
gas were coming out of the well. When Perez told Cantu that he was not going back up,
Cantu said that was "[f]ine" and went for a coffee break. Cantu testified that
when he left for that break, he saw Reyes sitting within one to two feet of the hatchway
opening. [[2]]

About five minutes after Cantu had gone on his break,
Mostyn went into the trailer house and told Cantu that one of his men had fallen into the
tank. Cantu climbed on top of the tank, after having learned that one of the older Pride
employees had already responded to the accident by closing the wing valve at the well
head. When he called for Zamora, whom he had spoken to before taking the break, another
employee told Cantu that Zamora also had gone into the tank, apparently for a rescue
attempt. When Cantu observed through the opening a body floating that still had hand
movement, he took a deep breath and entered the tank. However, this rescue attempt was
unsuccessful. Cantu himself became dizzy and weak in his knees and then collapsed. Not
until an air hose was thrown down to him was Cantu able to breathe sufficiently to climb
out of the tank.

The autopsy reports stated that both Reyes and Zamora had
died as a result of: "Asphyxia due to drowning (diesel and H2O)." Also noted in
Reyes' autopsy report was the presence of "[m]ultiple abrasions and contusions"
on the upper front of the head. The judge found that these "abrasions and
contusions" were consistent with Reyes having lost consciousness and then falling
into the tank. The opinion of the forensic pathologist, who performed the autopsies, was
that each employee died "as a result of asphyxia due to drowning, accidental, while
at work."

It is undisputed that Pride did not provide any
respiratory protection to these employees, nor was there any sign posted to caution
employees regarding potential hazards or unsafe practices involving the contents of the
tank. When asked if the employees had been "trained in any way about oxygen-deficient
atmospheres," Pride's supervisor Cantu testified that he personally had not been. He
further testified that there was no equipment at the worksite for testing the oxygen level
in the tank. Moreover, the OSHA compliance officer who conducted the investigation and the
inspection testified that she concluded that Pride employees had not been given any
training in oxygen deficiency, and that "[s]ome of them didn't even know what it
was."

Following the OSHA investigation and inspection, Pride was
issued a citation alleging, as amended in the complaint, serious violations of the
respiratory protection standard at 29 C.F.R. � 1910.134(a)(2) and the caution sign
standard at 29 C.F.R. � 1910.145(c)(2)(i). [[3]] On April 2, 1990, this case was directed
for review on issues relating to the judge's affirmance of these two citation items.

II. Respiratory Protection

Citation no. 1, item 2, as amended, alleges that Pride
committed a serious violation of 29 C.F.R. � 1910.134(a)(2) [[4]] by failing to provide
respiratory protection to employees involved in monitoring the "returns," as
well as those employees who had attempted rescue. In order to establish a violation of a
specific standard, the Secretary must prove by a preponderance of the evidence that: the
standard applies to the cited condition; the employer failed to meet the terms of the
standard; its employees had access to the violative condition; and the employer either
knew or could have known of the condition with the exercise of reasonable diligence. E.g.,
Astra Pharmaceutical Prods., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD 25,578,
pp.31,899-900(No. 78-6247, 1981), aff'd in pertinent part, 681 F.2d 69 (1st Cir.1982).

Pride does not dispute that it failed to provide
respirators to its employees, and that its employees had access to the cited condition.
However, Pride contends that (1) to prove that respiratory protection was "necessary
to protect the health of the employee," as the cited standard requires, the Secretary
must show that the cited condition involved "contaminated" air causing
"occupational diseases," as the preceding subsection of the respiratory
protection standard requires; (2) the standard is unenforceably vague in light of industry
practice; (3) it had no knowledge of the violative condition; and (4) the violation was
the result of unpreventable employee misconduct.

A. Whether the secretary Proved the Requisite Health
Hazard

1.What Health Hazard Must Be Established

Section 1910.134(a)(2) requires the provision of
respirators "when such equipment is necessary to protect the health of the
employee." Pride argues that, in order to prove a violation of section
1910.134(a)(2), the Secretary must show, as the preceding subsection at 29 C.F.R. �
1910.134(a)(1) [[5 ]] requires, that the cited condition involved "occupational
diseases" caused by breathing "contaminated" air. According to Pride, she
has not met that burden in this case. Pride argues that, because subsection (a)(1) ends by
referring to "the following requirements," it is necessary to read it together
with subsection (a)(2) to learn what those requirements are. Pride contends that the
Secretary failed to prove that Pride's employees were exposed to an "occupational
disease" caused by "air contaminated with harmful,dusts, fogs, fumes, mists,
gases, smokes, sprays, or vapors."

The judge correctly ruled below that the requirements of
subsection (a)(2) are to be read independently of subsection (a)(1).In Brock v City Oil
Well Service Co. ("City"), 795 F.2d 507 (5th Cir. 1986), the employer had been
cited for violating both sections 1910.134(a)(1) and (2) for failing to provide
respirators to protect the health of employees on top of a "frac tank" against
exposure to hydrogen sulfide gas ("H2S"), "a deadly byproduct of oil and
gas production." 795 F.2d at 508 & n.1. The Fifth Circuit, to which this case can
be appealed, [[6]] rejected City's argument that subsection (a)(1) required the Secretary
to prove that engineering controls were not feasible before a requirement for respiratory
protection arose under subsection (a)(2). More specifically, the court also rejected the
argument that the language in subsection (a)(1) concerning the feasibility of engineering
controls must be read into (a)(2), declaring that "the requirements of (a)(2) ... are
independent of and can form the basis of a violation distinct from (a)(1)." 795 F.2d
at 510 n. 5. Cf.Snyder Well Servicing, Inc., 10 BNA OSHC 1371, 1375-76, 1982 CCH OSHD �
25,943, pp. 32,510-11 (No. 77-1334, 1982) (implicit rejection of employer's argument based
on similar facts).

Therefore,based on the decisions noted above, we reject
Pride's argument that, before she can establish a violation of subsection (a)(2), the
Secretary must show that Pride's employees were exposed to an "occupational
disease" caused by "contaminated" air, as discussed in subsection (a)(1).

2. Whether the Secretary Has proven that Respirators Were
   "Necessary to protect the Health of the Employee"

The next issue for consideration is whether the judge
erred in finding that the Secretary established that respirators were "necessary to
protect the health of the employee." In addressing the question of the need for
respirators, the judge particularly relied on the testimony of the Secretary's Regional
Industrial Hygienist Richard Wingo. Wingo testified that nitrogen displaces oxygen in a
confined space and that when the oxygen falls below 19.5% of the air's content, the
results can be: impairment of vision and mental capabilities; dizziness and fainting;
unconsciousness; and even death. The judge found Wingo to he a "well-qualified
individual" and an "impressive and highly credible witness." The judge
stated that, when he viewed Wingo's testimony as a whole, "it is obvious that he
considered the nitrogen, diesel and other elements to be a contaminant of the air in this
confined space, causing an oxygen deficient atmosphere. Without question, I hold that
view." (emphasis added; transcript reference deleted). The judge's finding that the
atmosphere in the tank was oxygen-defficient is supported by his determination, which is
not challenged by Pride, that "the credible evidence establishes that he [Reyes] fell
and did not voluntarily enter the tank". The judge concluded that the employees
assigned to monitor the returns from atop the tank, as well as those attempting to rescue,
were exposed to "a hazard to the health (asphyxiation or drowning)."

Pride has not introduced any evidence to dispute Wingo's
testimony concerning the likelihood that the tank had an oxygen-deficient atmosphere on
the day in question.[[7]] Based on that testimony by Wingo and the weight of the evidence
establishing that Reyes did not voluntarily go into the tank, we conclude that Pride's
employees were exposed to the hazard of asphyxiation, which resulted in their drowning. We
therefore conclude that the judge did not err in finding that, in this case, respirators
were "necessary to protect the health of the employee."

B.Whether the standard is Unenforceably Vague

Pride argues, as it did below, that section 1910.134(a)(2)
is unenforceably vague because the standard's requirement for respiratory protective
equipment is so broadly worded that it fails to provide notice sufficiently specific to
satisfy due process concerns.

When faced with such claims in relation to broadly-worded
standards, the courts and the Commission have considered whether a reasonably prudent
employer, familiar with the circumstances,would recognize a hazard warranting the same
protection in the cited standard. See Bratton Corp., 14 BNA OSHC 1893, 1898-98,1990 CCH
OSHD 29,152, p. 38,993 (No. 83-132, 1990) and cases cited therein. As Pride notes, for the
generally- worded, personal protection standards at 29 C.F.R. �� 1910.132(a) and
1926.28(a), the Fifth Circuit has determined that "industry custom and practice will
generally establish the conduct of the reasonably prudent employer ......" Cotter
& Co. v. OSHRC, 598 F.2d 911, 913 (5th Cir. 1979). Accord S & H Riggers &
Erectors, Inc. v OSHRC, 659 F.2d 1273, 1285 (5th Cir. 198 1); Power Plant Div., Brown
& Root, Inc. v. OSHRC, 590 F.2d 1363, 1365 (5th Cir. 1979); B & B Insulation, Inc.
v. OSHRC, 583 F.2d 1364, 1370-71 (5th Cir. 1978).

Pride notes that its supervisor Cantu and safety
coordinator Jimmy Harville both testified that the common practice in the well-servicing
industry is not to provide respirators, but rather to depend on the well operator or offer
to provide respirators, as well as information about any dangerous condition concerning
the well. This is because the well owners and operators have records on the well that are
not available to well- servicing companies. Pride contends that, as it was not industry
custom to provide respirators, section 1910.134(a)(2) is unenforceably vague.

In his decision, the judge rejected Pride's argument,
relying on the Fifth Circuit's decision in City, supra, where the court squarely rejected
City's argument that the industry practice test that the Fifth Circuit itself had applied
with regard to other standards (such as sections 1910.132(a) and 1926.28(a)) is
appropriate for section 1910.134(a). The court stated that the employer's reliance on the
same line of cases that Pride cites was "misplaced" because:

The regulation here [section 1910.134(a)] is precise. In
City's case, it concerns only one hazard and two remedies. The hazard is hydrogen sulfide
. . . ; the two remedies are effective engineering controls and respirators, the
requirements for the selection, use, and maintenance of which are set out in detail. See
generaIly 29 C.F.R. � 1910.134.

795 F.2d at 511.

The court noted that City's emphasis on the well-servicing
industry's reliance on the well operator or owner to provide respirators was not only
inappropriate under the cited standard, but also an improper attempt to "use industry
custom to shift its statutory responsibility for the health and safety of its employees to
third parties." Id.

Based on the Fifth Circuit's decision in City, we find
that the judge did not err in his ruling on this issue. Furthermore, we note that the
Commission has issued a decision that relies on City and holds that section 1910.134(a)(2)
is not vague, and therefore the reasonable employer test is not needed to interpret and
apply the standard. Power Fuels, Inc., 14 BNA OSHC 2209, 2213, 1991 CCH OSHD � 29,304, p.
39,346 (No. 85-166, 1991).

We reject Pride's argument that the Fifth Circuit and
Commission decisions are factually distinguishable from this case because those decisions
involve the "well-known" hazard of H2S, instead of nitrogen. Section
1910.134(a)(2) does not make any reference to how well-known any specific substance or
condition must be in order to require respirators. It states only that respirators must be
provided where they are "necessary to protect the health of the employee."
Nevertheless, we note that, as shown by Table 1 in the American National Standard, ANSI
Z88.2-1969, Practices for Respiratory Protection, section 4 (1969),[[8]] oxygen deficiency
in tanks or other confined spaces resulting from nitrogen or another simple asphyxiant
diluting the oxygen in the air is a well-recognized respiratory hazard.

Therefore, based on our own precedent and the decision in
City by the Fifth Circuit, to which this case can be appealed, we reject Pride's arguments
here and find, as the judge did, that section 1910.134(a)(2) is not unenforceably vague.

C. Whether Pride Had Knowledge of the Violative Condition

1. Whether the Secretary Proved Knowledge

As noted above, to prove a violation the Secretary must
show that the cited employer had knowledge of the violative condition. She can satisfy
this burden by establishing that the employer either knew, or, with the exercise of
reasonable diligence, could have known of the presence of the violative condition. E.g.,
Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537, 1992 CCH OSHD � 29,617, p. 40,100 (No.
86-360. 1992); Gary Concrete Prods., Inc., 15 BNA OSHC 1051, 1052, 1991 CCH OSHD �
29,344, p. 39,449 (No. 86-1087, 1991). The actual or constructive knowledge of the
employer's foreman or supervisor can be imputed to the employer. Id.

The judge concluded that the Secretary made a pirma facie
showing Pride's supervisor Cantu actually knew, or could have known, with the exercise of
reasonable diligence, of the cited condition. He further found that Cantu's actual or
constructive knowledge that respiratory equipment was necessary to protect the health of
the employee was imputable to Pride.

We find no error in the judge's ruling that a prima facie
showing of Pride's knowledge has been established based on the record. As the judge noted,
Cantu's actual knowledge of the conditions at the worksite that led to the violations
cited here was established by Cantu's testimony that Perez complained to him that what was
coming out of the tank was making [him] real dizzy" and "making [his] head
hurt," and that he would not go back up on the tank. Cantu was given further notice
of the hazard when he learned that Reyes and Zamora were in peril. Nevertheless, Cantu
attempted to rescue them before almost being overcome himself.

The Secretary also proved that Pride had constructive
knowledge because its supervisor Cantu could have discovered and eliminated the hazard
with the exercise of reasonable diligence. Reasonable diligence involves several factors,
including an employer's "obligation to inspect the work area, to anticipate hazards
to which employees may be exposed, and to take measures to prevent the occurrence."
Frank Swidzinski Co., 9 BNA OSHC 1230, 1233, 1981 CCH OSHD 25,129, p. 31,032 (No. 76-4627,
1981). Although Cantu personally objected to Mostyn's instructions to put an employee on
the tank, in light of the on-ground sampling method that Cantu had put in place, Cantu did
not raise the matter at that time with his supervisors at Pride. However, he testified
that he had previously raised with them other orders from Mostyn. Moreover, Cantu admitted
that, even though he could not have done anything that Mostyn had not approved, the safety
of Pride's crew was his own responsibility.

As a crew supervisor, Cantu had a general responsibility
to acquaint himself with the contents of the tank and the hazards that they might pose to
Pride employees. This obligation was heightened when Perez complained to him that what was
coming out of the well was "making [him] real dizzy" and "making [his] head
hurt." In light of Perez's complaint and the considerable likelihood of serious
injury, Cantu could have at least told Mostyn or his supervisor at Pride about Perez's
complaint and made inquiries. See Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1146 (5th Cir.
1976) (reasonable diligence includes "simple expediency of ... making inquiry").

Evidence in the record indicates that Cantu knew that
nitrogen was being used to force the material out of the well, and that nitrogen and
diesel were present in the tank. He said as much to Perez in response to Perez's question
following his complaint of dizziness and a headache. Furthermore, Cantu had some
understanding that the operations on the day of the accident were not typical. He
testified that, based on his fifteen years of experience in the oil well business, the
contents of the well were not ordinarily put into an enclosed "frac tank" when
nitrogen was being used. Cantu stated that when the operation involves jetting nitrogen,
the returns from the well are usually directed into an "open earth pit" or an
"open 200 barrel, tank." Arguably, a reasonably diligent employer who was aware
of this departure from normal procedures would have questioned Mostyn or the well operator
after Perez complained, if not before.

Other factors indicative of reasonable diligence include
adequate supervision of employees, and the formulation and implementation of adequate
training programs and work rules to ensure that work is safe. Gary Concrete, 15 BNA OSHC
at 1054-55, 1991 CCH OSHD at p. 39,451-52; see Towne Constr Co., 12 BNA OSHC 2185, 2190-
91, 1986-87 CCH OSHD � 27,760. pp. 36,312-13 (No. 83-1262, 1986), aff'd, 847 F.2d 1187
(6th Cir. 1988). Although the record here shows instances where Cantu's supervision of his
crew was arguably not adequate, the real problem was that Pride had failed to formulate
and implement adequate work rules and training programs to ensure that Cantu had been
informed of the appropriate safety considerations. Cantu testified that he had not been
trained in what do in oxygen-deficient atmospheres, and, based on the evidence concerning
the accident day, apparently neither had any of his crew. However, he and his crew had
been made aware of the dangers of H2S and trained in how to respond to it, including how
to use masks and oxygen tanks. Cantu's lack of understanding of the oxygen deficiency in
the tank was most dramatically demonstrated when he went in the tank himself in the rescue
attempt.

Based on the considerations above, we conclude, as the
judge did, that the Secretary has made her prima facie showing that Pride had knowledge of
the violative condition.

2.  Whether Pride Rebutted the Showing of Knowledge

To rebut prima facie proof that the knowledge of a
supervisor should be imputed to it, the cited employer must offer evidence that it had:
established work rules designed to prevent the violation; adequately communicated those
work rules to its employees (including supervisors); taken reasonable steps to discover
violations of those work rules; and effectively enforced those work rules when they were
violated. E.g., Tampa Shipyards, Inc., 15 BNA OSHC at 1538,1992 CCH OSHD at p. 40,100;
A.P. O'Horo Co., 14 BNA OSHC 2004, 2007-08, 1991 CCH OSHD � 29,223, p. 39,129 (No.
85-369, 1991).

There is no evidence that Pride had a work rule
specifically addressing the hazards of oxygen-deficient atmospheres. Rather, Pride relies
on its work rule for confined space entry under the theory that an employee sticking his
head through the opening in the top of the tank to observe the level of the
"returns" would be violating that rule, as would an employee who entered the
tank for rescue purposes. Pride contends that whatever knowledge Cantu might have had of
the violative condition cannot be imputed to it because it had implemented, communicated,
and enforced the following "basic safety rule" set forth in its "Employee
Benefit Summary and Safety Guide:"

Confined Spaces -- Employees are not authorized to enter
any confined spaces for any reason. Confined spaces are defined as frac tanks, storage
tanks, tank hatches or any other spaces not fully ventilated to fresh air.

We note that supervisor Cantu's voluntary entry into the
tank in his attempt to rescue his crew members was in clear violation of this work rule.
Where a supervisor engages in misconduct and is exposed to the hazardous condition, that
is strong evidence of lax enforcement of the employer's safety program. E.g., Brock v.
L.E. Myers Co., 818 F.2d 1270, 1277 (6th Cir. 1987), cert. denied, 484 U.S. 989 (1987);
Baytown Constr. Co., 15 BNA OSHC 1705, 1710, 1992 CCH OSHD � 29,741, p. 40,414 (No.
88-2912-S, 1992).

Pride could have prevented this conduct by sufficiently
training Cantu in the hazards of, and procedures necessary for, oxygen-deficient
atmospheres. However, Cantu testified that Pride failed to provide this type of training,
and Pride presented no evidence that it had given such training. See Daniel Constr Co., 10
BNA OSHC 1549,1552, 1982 CCH OSHD � 26,027, p. 32,672 (No. 16265, 1982). As Cantu's
testimony indicated, nitrogen is not uncommonly used in the well-servicing industry, and
its diluting effect on oxygen should have been made known to all employees, especially
supervisors.

The Act places final responsibility for compliance with
its requirements on the employer. E.g., City, 795 F.2d at 511, quoting section 5(a)(2) of
the Act, 29 U.S.C. � 654(a)(2) ("[e]ach employer ...shall comply" with OSHA
standards) (court's emphasis). An employer who has failed to address a hazard by
implementing and enforcing an effective work rule cannot shift to its employees the
responsibility for assuring safe working procedures. See, e.g., Stuttgart Machine Works,
Inc., 9 BNA OSHC 1366, 1369, 1981 CCH OSHD � 25,216, p. 31,142 (No. 77-3021, 1981). An
employer "cannot fail to properly train and supervise its employees and then hide
behind its lack of knowledge of their dangerous working practices." Danco Constr. Co.
v. OSHRC, 586 F.2d 1243, 1247 (8th Cir. 1978). Here, Pride failed to adequately train its
supervisor in the respiratory hazard of, and the safety procedures for, oxygen deficiency,
to which he and some of his crew were exposed. We therefore conclude that Pride has failed
to rebut the Secretary's showing, and we impute Cantu's knowledge to Pride.

D. Whether the Conduct of Pride's Employees Was
Unpreventable

Pride further asserts that it was not in violation of the
standard because it did all that it could reasonably have done to prevent the violation.
To prove the affirmative defense of unpreventable employee misconduct, the employer must
show that it had established a work rule designed to prevent the violation, adequately
communicated those work rules to its employees (including supervisors); taken reasonable
steps to discover violations of those work rules; and effectively enforced those work
rules when they were violated. See, e.g., Marson Corp., 10 BNA OSHC 1660, 1662, 1982 CCH
OSHD � 26,075, p. 32,804 (No. 78-3491, 1982).

In the preceding section, we discussed whether Pride
established that the conduct of its supervisory employee Cantu was unpreventable, which is
necessary to rebut the Secretary's showing of knowledge imputed to from Cantu. We
concluded that Pride did not prove that Cantu's conduct was unpreventable and therefore
did not rebut the Secretary's proof of knowledge.

With regard to whether the conduct of its non-supervisory
employees Reyes and Zamora was unpreventable, Pride introduced into evidence the pages
that these two employees had signed acknowledging receipt of the safety guide in August
1986, and "agree[ing] to read all safety instructions pertinent to [their]
jobs." With regard to Reyes, the work rule upon which Pride relies did not address
the hazardous condition to which he was exposed when he was working atop the tank. As the
judge found, based on the autopsy report and testimony, the multiple abrasions and
contusions on the upper front of Reyes' head showed that he had not entered the tank
voluntarily. The judge noted that under the work rule, employees "could very well
conclude" that they did not violate the work rule by merely sticking their heads in
the hole at the top of the tank to see the level of the returns inside the tank. Moreover,
when specifically directed by a supervisor, as Reyes was by Cantu here, to perform work
that could possibly cause the employee to break a safety rule, the employee could
reasonably consider the supervisor's instructions as overriding the safety rule. Cf.
Regina Constr. Co., 15 BNA OSHC 1044, 1048, 1991 CCH OSHD 29,354, p. 39,468 (No. 87-1309,
1991) (employee could not be in a hazardous location but for supervisor's orders).

With regard to Zamora, Cantu's testimony as to what
another employee told him demonstrates that Zamora attempted to rescue Reyes and therefore
could also have entered the tank voluntarily. If this had been the case, Zamora also would
have been in violation of the work rule. Nevertheless, the evidence also shows that Cantu,
Zamora's supervisor, was not only failing to enforce the rule, but he was breaking it
himself. Furthermore, it is arguable that the work rule does not really address the
condition that Cantu and Zamora faced--the necessity for an emergency rescue. As the
Secretary notes, rescue attempts are readily foreseeable in the oil well servicing
industry, yet Pride had no work rule addressing them.[[9]]

Just as Pride failed to adequately train its supervisor
Cantu and now seeks to hide behind his lack of knowledge of the hazard, so does it also
attempt to hide behind Reyes and Zamora's lack of training and supervision. As discussed
above, this is not permission. See Danco, 586 F.2d at 1247. Therefore, we reject Pride's
contentions that the conduct of Reyes and Zamora was unpreventable.

E. Summary and Penalty

Based on our findings above, we conclude that the judge
did not err in determining that Pride committed a violation of section 1910.134(a)(2). The
judge found that the violation was serious under section 17(k) of the Act, 29 U.S.C. �
666(k), as alleged. Pride does not challenge that characterization on review. We therefore
conclude that the violation was serious.

The judge assessed the proposed penalty of $560 for this
violation. In light of the penalty factors in section 17(j) of the Act, 29 U.S.C. �
666(j), especially the gravity of the violation, and the immediate, direct relief from the
hazardous atmosphere that respirators could have provided, we assess a penalty of $1,000.

Ill. Caution Sign

The judge affirmed citation no. 1, item 3, as amended,
which alleges a serious violation of 29 C.F.R. � 1910.145(c)(2)(i). [[10]] It was
undisputed that there was no caution sign warning employees against the potential hazards
involved in monitoring the returns from the opening in the top of the tank or entering the
tank for emergency rescue. The compliance officer testified that such signs could have
caused employees to exercise the necessary caution in light of the potential hazard.
Pride's supervisor Cantu testified that over the years he had seen "frac tanks"
with signs on them saying things like: ."poisonous gas, do not enter."

Pride contends that, because it did not own the tank, but
rather only leased it, it was not responsible for providing a caution sign. As noted
above, the Fifth Circuit stated in City that an employer "cannot shift its statutory
responsibility for the health and safety of its employees to third parties." 795 F.2d
at 511. Moreover, from a practical standpoint, there is no requirement that the sign be
permanent. Nor does the sign need to be attached to the tank itself, but rather can be, as
Cantu testified he had seen, "'anywhere around it" that would be visible to
employees.

Pride also contends that it had taken sufficient measures
to warn employees by its safety manual. However, as discussed above, the work rule against
entering confined spaces, even assuming it implements the requirements of the cited
standard, was not enforced. Pride also argues that it did not know the contents of the
atmosphere within the tank and therefore would have had no way of knowing whether warning
signs were needed. We reject that contention. As the discussions in the sections above
show, Pride did not take sufficient measures to either warn or train its employees, and it
is now trying to hide behind the resultant lack of knowledge on its employees' part
regarding the possibility of oxygen deficiency.

Based on the considerations above, including the
well-documented hazards in the record, [[11]] and Pride's knowledge of them, we conclude
that the judge did not err in finding that Pride violated section 1910.145(c)(2)(i). Pride
does not challenge on review the serious characterization of this violation. Accordingly,
we affirm the violation as serious.

The judge assessed the proposed penalty of $560. Based on
the penalty factors in section 17(j) of the Act, 29 U.S.C. � 666(j), we assess a more
appropriate penalty of $200.

IV. Order

For the reasons stated above. we affirm the decision of
Judge Botkin and find no error in his conclusions that Pride committed serious violations
of sections 1910.134(a)(2) and 1910. 145(c)(2)(l). We assess respective penalties of $
1,000 and $200 for these violations.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: August 17, 1992

FOOTNOTES:

[[1]] The judge characterized this testimony by Perez as
"direct and persuasive." (Throughout his decision, he referred to this employee
as "Mario" because he mistakenly stated that, instead of Perez (as the employee
spelled his own name at the hearing), his last name was Reyes, the last name of another
Pride employee.) The judge specifically credited Perez's testimony over Cantu's testimony
that he saw Perez walk over and lean down near the opening, as if to listen. We defer to
the judge's credibility determination. See, eg., C. Kaufman, Inc., 6 BNA OSHC 1295,1297,
1977- 78 CCH OSHD 22,481, p.27,099 (No.14249,1978).

[[2]] Cantu testified that he told his crew to "stand
up" while monitoring the returns. The judge specifically discredited that statement
due to its inconsistency with Cantu's earlier testimony that he did not know what
instructions Reyes had received,even though Cantu was the one who had given him the order
to relieve Perez. Based on our review of the record, we see no need to disturb the judge's
evaluation of these parts of Cantu's testimony. Moreover, even if Cantu had given
instructions to stand up, he was put on notice that they were not being followed when, as
he testified, he observed Reyes sitting near the opening.

[[3]] The Secretary also alleged a serious violation of 29
C.F.R. 1910.23(a)(6). which requires that a "manhole floor opening" shall be
constantly attended when the cover is not in place.The judge vacated this item. The
Secretary does not challenge that ruling on review, and we do not consider it here.

[[4]] The standard Provides:

� 1910-134 Respiratory protection.

(a)Permissable practice.

. . . .

(2) Respirators shall he 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 requirement outlined in paragraph (b) of this
section.

[[5]] Section1910.134(a)(1)provides

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 .... When
effective engineering controls are not feasible,or while they are being
instituted,appropriate respirators shall be used pursuant to the following requirements.

(Emphases added.)

[[6]] This case can be appealed to the Fifth Circuit based
on the locations of the alleged violation and the principal office of the employer. See
sections 11(a) and (b) of the Act, 29 U.S.C. � 660(a) and (b).

[[7]] Pride has not acknowledged that the atmosphere in
the tank was oxygen- deficient. It suggests that the Secretary must show the percentage
oxygen in the atmosphere, which Pride notes she has failed to do. However,as the judge
stated in his decision, it was not necessary for the Secretary to establish the percentage
of oxygen in order to prove the hazard of oxygen deficiency existed. He additionally noted
that, despite Pride's successful objection to the Secretary's introduction of atmospheric
testing results into the record. Pride itself introduced a statement as to the results
into evidence in one of its own exhibits. We further note that the conditions at the well
on the day before the accident, when nitrogen was not being inserted into the tank, are
not relevant to the citation items before us.

[[8]] This ANSI standard was the source of OSHA's
respiratory protection standard at section 1910.134. See 29 C.F.R. � 1910.139.

[[9]] Pride does not have any general safety rules on
rescues from tanks or wells. Included in its work rules concerning H2S is only the
admonition: Rescuers must exercise due caution."

[[10]] "The standard provides:

� 1910.145 Specifications for accident prevention signs and tags.

(a) Scope. (1) These specifications apply to the ...use of signs...intended to
indicate...specific hazards of a nature such that failure to designate them may lead to
accidental injury to workers....

(c) Classification of signs according to use--

. . . .

(2) Caution signs. (i) Caution signs shall be used only to
warn against potential hazards or to caution against unsafe practices.

(Emphases added.)

[[11]] In light of the oxygen-deficient atmosphere in the
tank, which we found above, a "danger sign" (as discussed in 29 C.F.R {sym}
1910.145(c)(l)) may have been appropriate to warn of the specific danger of asphyxiation
to which employees were exposed while observing the level of the returns through the
opening in the tank's top.