Pride Petroleum Services
Review defaulted, $2,000 monitoring item became final
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This is citable Commission precedent from 1994, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Pride Petroleum filed for Commission review after a judge decided respiratory-protection items arising from work at a Texas oil well. Commission rules required Pride to file a brief or a written notice relying on its petition within 40 days, but it did neither, did not answer the Secretary's default motion, and responded late to a show-cause order. The Commission rejected counsel's claim that the briefing notice was misunderstood, granted default, vacated the direction for review, and made the judge's decision final. In that underlying decision, the judge found insufficient proof that respirators were necessary because OSHA had not established actual or potential hydrogen-sulfide exposure at the specific well. He nevertheless affirmed a serious failure-to-monitor item because a posted poison-gas warning should have prompted testing for a hazardous atmosphere, and assessed $2,000.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1910.134(a)(2), 1910.134(b)(2), and 1910.134(b)(8).
- Outcome: Procedural. Commission review was vacated by default, leaving one serious monitoring item affirmed for $2,000 and the respirator-selection item vacated.
- Key point: A party seeking Commission review must timely file a brief or written reliance notice; silence can make the judge's decision final regardless of the petition's merits.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE: .
COM (202) 60&5100 zi (202) 6o&6050
Fl=s (202) 606400 Frs (202)606-5050
0
.
SECRETARY OF LABOR, ..
.0
Complainant, .0
l
.
v.
l
. Docket No. 92-3382
PRIDE PETROLEUM SERVICES,
Respondent.
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
Commission Rule 93(b), 29 C.F.R. 2200.93(b), requires that a party which has filed
a petition for discretionary review file a brief within 40 days after the date of the briefing
notice. Pride Petroleum Services (Pride) did not file its brief within this period, and the
Secretary moved for a default judgment. The Secretary’s motion is granted.
On August 31, 1994, the Commission issued a briefing notice. Commission Rule
93(a), 29 C.F.R. 3 2200.93(a), provides that instead of filing a brief a party may file:
a letter setting forth its arguments, a letter stating that it will rely on its
petition for discretionary review or previous brief, or a letter stating that it
wishes the case decided without its brief.
The briefing notice issued to Pride also states:
A party who does not intend to file a brief must notify the Commission in
. writing setting forth the reason therefor within the applicable time for filing
briefs, and shall serve a copy on all other parties.
In spite of the rule and the language in the briefing notice, Pride did not reply. On October
19, 1994, the Secretary moved for default judgment. Pride again did not reply.
2
On October 25, 1994, the Commission issued an order to show cause to Pride
requesting an explanation within twenty days of the date of the order. Pride’s attorney
responded by letter dated November 23, 1994, requesting that Pride’s petition for
discretionary review be considered as its brief, and stated:
I did not understand the Briefing Notice to require us to notify the
Commission if we were not going to file a brief if we intended to rely on our
motion (sic) as our brief. . . . If the briefing notice had required us to notify
the Commission that we did intend on relying on our Motion (sic) as our brief,
we have certainly done s0.l
He also admitted that Pride did not timely respond to the order to show cause.
1
Pride’s attorney also represents Well Solutions, Inc., Rig 30 (WSI) in Docket No. 91-
340 in which he was also informed of the Commission’s rules. WSI failed to respond to a
briefing notice and the Secretary filed a motion for default judgment on September 27,1994,
which was during the period when Pride’s brief was due. The Secretary’s attorney stated in
his motion:
On September 14,1994, the undersigned contacted [WSI’s] counsel, to inquire
as to respondent’s intentions regarding the filing of a brief. The undersigned
was orally informed that respondent did not intend to file a brief. Pursuant
to Commission Rule 93, the undersigned advised that respondent should
inform the Commission of its intentions.
In spite of this admonition, WSI did not respond although it did respond to a subsequent
Commission order.
3
Pride’s inaction does not comply with Commission Rule 93(b). Accordingly, the
direction for review is vacated due to Pride’s failure to respond to the briefing notice.
Commission Rule 93(d), 29 C.F.R. 8 2200.93(d); D. A. & S. Oil WeZZServicing, Inc.,
1986-87 CCH OSHD ll 27,795 (NO. 85-604, 1987). See also A. B. Chance Co., 13 BNA
OSHC 1172,1173 n.l,1986-87 CCH OSHD 727,863, p. 36,492 n.1 (No. 84-519 1987). The
judge’s decision is affirmed as a final order.
Stuart E. Weisberg
Chairman
Edwin G. Foulke, Jr. u
Commissioner
-,
Dated December 14, 1994 &
Velma Montoya
Commissioner
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE
COM (202) 6064100
Frs(202)6064100
.
.
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 92-3382
.
.
PRIDE PETROLEUM ..
SERVICES, ..
..
Respondent. ..
.
The attached order by the Occupational Safety and Health Review Commission was issued on
December 14.1994. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS ORDER MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DAm OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 8 660.
FOR THE COMMISSION
December 14. 1994
Date
4k%
Oh!
Darling, Jr.
Executive Secretary
Docket No. 92-3382
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
James E. White, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 501
525 S. GrBin Street
Dallas, TX 75202
George R. Carlton, Jr.
Godwin & Carlton
NationsBank Plaza
901 Main Street
Suite 3300
Dallas, TX 75202-3714
Richard DeBenedetto
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE FAX
COM (202) 6064100 COM (202) 6065050
Frs (202) 6064100 f=rs (202) 606-5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-3382
PRIDE PETROLEUM SERVICES
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE MW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on December 2, 1993. The decision of the Judge
will become a final order of the Commission on January 3, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on ‘or before
December 22, 1993 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued bv the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rrghts may contact the Co mmission’s Executive
Secretary or call (202) 606-5400.
/EQR THE COMMISSION
Date: December 2, 1993
DOCKET NO. 92-3382
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
James E. White, Esq.
Re ional Solicitor
O&ce of the Solicitor U S DOL
525 Griffin Square Blhg.,‘Suite 501
Griffin & Youn Streets
Dallas, TX 752 l 2
Geor e R. Carlton, Jr., Esq.
Goo Bwin & Carlton
910 Main Street, Suite 3300
Dallas, TX 75202 3714
Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an B Health
Review Commissron
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501
00107407769 : 06
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501
(617) 223-9746
..
SECRETARY OF LABOR, ..
..
.
Complainant, .
: OSHRC Docket No. 92-3382
.
K .
..
PRIDE PETROLEUM SERVICES, ..
Respondent.
Appearances:
Michael H. Olvera, Esq. George R. Carlton, Jr., Esq.
Office of the Solicitor Goodwin & Carlton
U.S. Department of Labor Dallas, Texas
For Complainant For Respondent
Before Administrative Law Judge Richard DeBenedetto:
DECISION AND ORDER
On October 15, 1992, Pride Petroleum Services (“Pride”), an oil well servicing
company, was issued a serious citation alleging the violation of two standards relating to the
use of respiratory protective equipment. Item la of the citation alleges that Pride’s failure
to provide respirators for its workers at a Post, Texas, well site violated 29 C.F.R.
5 1910.134(b)(2) which requires that respirators be selected on the basis of the hazards to
which a worker is exposed. Item lb alleges that Pride’s additional failure to monitor the
level of hydrogen sulfide (“H,S”) in and around this well site violated 8 1910.134(b)(8) which
requires an employer to conduct appropriate surveillance of both work area conditions and
the degree of employee exposure. A total penalty of $4500 is proposed for these grouped
violations.
The citation stems from an inspection conducted by OSHA industrial hygienist Jack
M. Haning on July 29, 1992, in connection with a complaint arising under 8 11(c) of the
Occupational Safety and Health Act (“Act”), 29 U.S.C. 9 660(c) (Tr. 6, 9). After meeting
with two representatives from Pride and interviewing three Pride employees, Haning was
taken to a well site located in an area known as the “PLK 32” lease approximately ten miles
south of Pride’s field office in Post, Texas (Tr. 11-13, 15-17, 48-49, 118-19; Exhibits C-1 &
C-2). The owner of the well, Brothers Production Company, Inc. (“Brothers”), had hired
Pride to replace a defective rod inside the well and, later, had asked Pride to lay down some
additional rods and tubing (Tr. 15, 18,36037, 86, 94-98, 114-15; Exhibit C-5). The work was
performed by a crew of four employees over a three-day period from July 27 to July 29,
1992 (Tr. 86-88, 113-14, 118-20; Exhibit C-5).
According to Haning, the well had the potential to release H,S, a gas which is
sometimes encountered during oil production and can be extremely toxic if released in high
levels (Tr. 17-22, 34-35, 37-40). Although Pride did have an adequate written respiratory
protective program in place and had respirators available at its field office in Post,
respirators were not provided at the well site (Tr. 22-23, 43, 47-48,73-75, 105). In addition,
electronic devices which monitor the level of H,S within their immediate area were
apparently not utilized by Pride on this project (Tr. 21-23, 41, 51-56, 64-65, 104-05).
At the hearing, the Secretary moved to amend Item la of the citation so as to allege
a violation of 8 1910.134(a)(2) in the alternative; a ruling on the amendment was reserved
until the issuance of a decision in this matter (Tr. 41-47). A review of the complete record,
however, indicates that a ruling on this motion is not necessary because the Secretary has
failed to satisfy his burden of proving a violation under either standard.
Section 1910.134(b)(2), the originally cited standard, sets forth one of the many
requirements that must be satisfied by employers before their respiratory protective program
can be considered minimally acceptable: “Respirators shall be selected on the basis of
hazards to which the worker is exposed.” Typically, an employer cited under this standard
has provided some type of respirator to its employees, but has selected one that is
inappropriate in terms of the type of hazard involved. See e.g. Seaboard Foundry, Inc., 11
BNA OSHC 1398, 1983-84 CCH OSHD 7 26,522 (No. 77-3964, 1983) (alleged violation of
5 1910.134(b)(2) affirmed where employees were provided with type of respirator incapable
of protecting them from exposure to silica dust). Here, however, it has already been
established that no respirators of any kind were made available to the Pride employees
working at the well site. Although there is nothing in the record to indicate exactly what
2
type of respirator Pride kept at its field office in Post, Haning conceded that these
respirators, while not provided at the well site, were “proper” ones (Tr. 47-48, 75). The
Secretary, therefore, has failed to demonstrate that this standard is truly applicable to the
conditions cited and that Pride actually violated its terms.’
Section ~910.134(a)(2), the standard the Secretary seeks to allege in alternative to
0 1910.134(b)(2), essentially consists of three requirements:
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.
Of the three, the first requirement appears to be the most applicable here in terms of the
conditions described in Item la of the citation (“...there were not any [self contained
breathing apparatus] available at the site for exposure to unknown concentrations of H2S.“).
Thus, in order to establish a violation of this standard, the Secretary would have to prove
that respirators were “necessary” to protect the health of Pride’s employees at the Brothers
well site. See pride Oil Well Service, 15 BNA OSHC 1809, 1812,1992 CCH OSHD ll 29,807
(NO. 87-692, 1992) (“&Ye Oil”).
In previous cases dealing with this issue, the amount of evidence presented by the
Secretary to demonstrate the potential for exposure to toxic levels of H2S has been
significant. For instance, the results of tests performed by the inspecting officer, the
servicing company,- and/or the well operator to determine the level of H2S in and around a
particular site have been submitted to document the presence of gas in the area. Brock V.
City Oil Well Service Co., 795 F.2d 507, 508 n.2 (5th Cir. 1986); Power Fuels Inc., 14 BNA
OSHC 2209,221~~12,199l CCH OSHD T 29,304 (No. 85.166,199l) (“PowerFuelk”); Snyder
WeZZServicing Inc., 10 BNA OSHC 1371, 1374, 1982 CCH OSHD ll 25,943 (No. 77-1334,
1982) (“Snyder”), Prior history, in terms of past citations or previous experience with a cited
‘The Secretary acknowledged in his post-hearing brief that of the two standards he claims were violated under
this item, 8 1910.134(a)(2) is the more applicable. Secretary’s Post-Hearing Brief at 3.
3
well, has also been cited where relevant to establishing the well’s potential for releasing H$.
Power Fuels at 2212; Snyder at 1374. Even strong testimony from an experienced compliance
officer or industrial hygienist has played an important role in the Secretary’s ability to prove
that respirators were “necessary” under certain conditions. See Ride Oil at 1812; Snyder
WelZat 1374.
None of these factors, though, are present here. Haning’s oil well inspection
experience, for instance, is limited to ten to fifteen inspections out of a total 1,000 he has.
performed for OSHA; only six of these cases involved H$ (Tr. 7-8, 50-51, 60, 62-63).
Except for a brief stint in high school when he was employed with an oil servicing company,
Haning also lacks any significant experience working in the oil industry and has gained his
knowledge of oil well production and H,S exposure solely from the few OSHA training
classes he has attended
. . on these subjects (Tr. 6-9, 34-35, 61-62). Cf, e.g., Snyder at 1374
(compliance officer had 33 years of experience in oil and gas production, had helped to
develop safety standards for drilling operations, and had worked in oil fields).
Furthermore, the evidence generated by the actual inspection was considerably
lacking. The primary basis for Haning’s conclusion that there was a potential for exposure
to H2S at the Brothers well was the unremarkable fact that a “Caution: Poison Gas” sign
had been posted at the site (Tr. 17-18, 20; Exhibit C-l). Clearly, H,S is not the only
potentially toxic gas that may be released at a well site and Haning admitted that he had no.
idea who posted the sign or why (Tr. 38, 64). Haning also failed to perform any tests or
take any readings at the time of his inspection to determine whether H,S, in any amount,
existed in the area around the well (Tr. 28, 64-65, 82). In fact, he never even got out of his
truck to walk around the well site or examine the well (Tr. 64).
Although Haning did testify that the well was located in a geographical area he
understood to be %our”, i.e. known to produce H,S, his assertion reveals nothing about this
particular well’s capacity for producing and releasing H,S (Tr. 32-33, 83). Moreover,
Haning’s testimony was based primarily on a map of Texas which purports to depict the
areas of major sour gas production in the state and appears in a document which Ha&g
did not have available to him until after the citation was issued (Tr. 32-33, 65-66, 68-69;
Exhibit C-3). In. addition, the map, which itself is not very clear, is part of a regulation
4
known as “Rule 36” that was promulgated by the Texas Railroad Commission to protect the
general public, not industry, from H2S exposure and as such, it has little to offer to the
resolution of this dispute (Tr. 23-25, 66; Exhibit C-3).2 Without the map, Haning’s
knowledge of the area’s potential for H,S production was based solely upon his limited oil
well inspection experience noted supra (Tr. 33).
Not even the testimony of three Pride employees who worked on the Brothers well
could salvage the Secretary’s already weak case. Only one of the employees testified that
he smelled H2S at the well and Haning’s testimony that one’s sense of smell cannot serve
as a true indication of the presence of H2S raises serious questions about the reliability of
this lone observation (Tr. 21, 104, 115-16, 122.23)? Moreover, Kenneth Price’s
identification of the well as “sour” was directly contradicted by his testimony that he had
never known the well to produce H,S on the numerous occasions over the past five years
when he had performed work on it (Tr. 72-73, 105-06, 109). In sum, there is simply
insufficient evidence to prove that H2S gas actually or even potentially existed at the
Brothers well. Because the record as a whole does not substantiate the Secretary’s
allegation of potential exposure, it cannot support a finding that respirators were truly
“necessary” under these conditions. Item la, therefore, must be vacated, regardless of which
of the two standards the Secretary alleges was violated.
Although far too speculative to establish that respirators were necessary, the evidence
submitted by the Secretary is sufficient enough to prove that Pride, in accordance with
5 1910.134(b)(8), should have performed an appropriate test to determine whether a
hazardous substance was present at this worksite and if so, in what level. Haning himself
recognized that the failure to utilize respirators while performing well servicing work does
2 Likewise, the form filled out by Brothers in order to comply with Rule 36 and which, according to the
Secretary, demonstrates the potential for H2S exposure at the cited well, cannot be attributed any significant
weight here (Tr. 2531,77-79; Exhibit C-4). The level of H2S documented there evidently refers to the lease
as a whole and not to the specific well in question (Tr. 26.31,77-79,80-83). Finally, the fact that some of the
figures on the form were altered further limits the usefulness of this document to the Secretary’s case (Tr. 27.
28, 80-N; Exhibit C-4).
31t is worth noting that Haning failed to indicate whether he himself smelled H2S when he conducted his
inspection of the well site.
5
not always constitute a violation since their use depends on whether atmospheric testing has
been done and what the results of such testing has revealed about the level of the substance
in the area; he even identified the levels of H2S at which he would agree that the use of
respirators would not be necessary (Tr. 75-78). Haning also implied at one point that the
citation as a whole was issued mainly because Pride had done nothing to determine the level
of H2S in the vicinity of the well (Tr. 21-22).
Clearly, the “Caution” sign alone should have alerted Pride to the fact that the
presence of some type of toxic gas, not necessarily H2S, was possible and as part of its effort
to maintain an adequate respiratory protective program, Pride should have conducted
preliminary tests to learn definitively whether respirators were indeed necessary. Pride’s
failure to comply with this requirement for a minimally acceptable respiratory protective
program in the face of evidence, however speculative, that a hazard might exist, violates the
mandate of 8 1910.134(b)(8).
As its defense, Pride apparently elected to rely upon its counsel’s cross-examination
of the Secretary% witnesses since it did not present any witnesses or evidence of its own at
the hearing and also, did not submit a post-hearing brief. An affirmative defense of
employee misconduct was alleged by Pride in its answer, but no evidence supporting this
allegation was ever introduced at the hearing. Accordingly, Item lb is affirmed. Because
the failure to comply with this standard could have ultimately resulted in exposing employees
to a highly toxic substance which could cause serious physical injury or even death, the
violation was properly characterized as serious. Upon consideration of the criteria set forth
in 8 17(j) of the Act, a penalty of $2,000 is appropriate.
Based upon the foregoing findings and conclusions, it is
ORDERED that item la of the citation is vacated, item lb is affirmed, and a penalty of
$2,000 is assessed.
RICHARD DeBENEDETTO
Judge, OSHRC
November 26, 1993
Dated:
Boston, Massachusetts
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