Well-Tech, Inc.

Plain-English summary

Well-Tech, Inc. was a well-servicing contractor replugging and sampling wells at a chemical plant in Barberton, Ohio. Employees removed an eight-foot section of guardrail from a 16-foot-high drilling platform and placed caution tape across the opening; within about 15 minutes, an employee fell roughly 12 feet onto a pipe rack. Administrative Law Judge Ken S. Welsch affirmed the serious open-sided-platform citation because temporary removal was still prohibited and Well-Tech did not prove infeasibility or provide adequate alternative protection such as available safety belts. He vacated citations concerning an interior floor opening and a stairway because the Secretary did not prove that the opening was unattended or that employees were exposed to the stairway condition. The judge also affirmed other-than-serious violations because the OSHA poster and a current injury log were not available at the year-long worksite. The final penalties were $2,000 for the guardrail violation, $750 for the posting violation, and $100 for the recordkeeping violation, totaling $2,850.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.23(a)(7), 1910.23(c)(1), 1910.23(d)(1)(iii), 1903.2(a)(1), and 1904.7.
• Outcome: Mixed. The platform guardrail, OSHA poster, and injury-log items were affirmed for $2,850 total; the floor-opening and stairway items were vacated.
• Key point: Briefly removing a platform guardrail for an operation does not excuse noncompliance when the employer fails to prove infeasibility and does not require available alternative fall protection.

Full text (OSHRC public release)

                                 United States of America
      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1120 20th Street, N.W., Ninth Floor
                              Washington, DC 20036-3419



                                                                         Phone: (202) 606-5400
                                                                          Fax: (202) 606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-2921
WELL-TECH, INC.
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINISTRATIVE IAW JUDGE’S DECISION
 The Administrative Law Judge’sReport in the above referenced case was

docketed with the Commission on August 23, 1995. The decision of the Judge
will become a final order of the Commission on September 22, 1995 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
September 12, 1995 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 shah 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 Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission. then the Counsel for
Regional Trial Litigation will represent the Department of Labor. bY Party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: August 23, 1995
DOCKET NO. 94-2921
NOTICE IS GIVEN TO THE FOLLOWING:

Benjamin T. Chinni
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199



George R. Carlton, Jr., Esq.
Godwin & Carlton
NationsBank Plaza
901 Main Street, Suite 3300
Dabs,, TX 75202



Ken S. Welsch
Administrative Law Jud e
Occupational Safety an f Health
 Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

. 00103539680:05
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 Peachtree Street, N.E., Suite 240
Atlanta, Georgia 30309-3 119

Phone: (404) 347-4197 Fax: (404) 347-0113

SECRETARY OF LABOR,
Complainant,

                v.                                                OSHRC Docket No. 94-2921

WELL-TEcq INC.,
Respondent.

Appearances:

      Kenneth Walton, Esquire                                     George R. Carlton, Jr., Esquire
              Office of the Solicitor                                     Godwin & Carlton
              U. S. Department of Labor                                   Dallas, Texas
              Cleveland, Ohio                                                      For Respondent
                        For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                          DECISIONAND ORDER



      This proceeding is before the Occupational Safety and Health Review Commission pursuant to

section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 5 65 1, ef seq.), heretier
referred to as the “Act.”
Well-Tech Inc., a well servicing contractor, at all times relevant to this action was an employer
engaged in a business affecting commerce within the meaning of the Act.
On August 4,1994, Compliance Officer Thomas M. Henry of the Occupational Safety and Health
Administration (OSHA) conducted an inspection of a worksite in Barberton, Ohio, where an employee had
ftien from a well platform on July 27, 1994. As a result of the inspection, Well-Tech was issued a serious
citation alleging violations of 29 C.F.R. $5 1910.23(a)(7), 1910.23(c)(l), and 1910.23(d)(l)(iii) and an
“other” than serious citation alleging violations of 29 C.F.R. §§ 1903.2(a)(l) and 1904.7. The total
proposed penalties were $10,125. Well-Tech timely contested the citations and the hearing was held in
Akron, Ohio, on April l&1995.

                                           Backmound

   Well-Tech contracted to replug leaking wells at the Pittsburgh Paint and Glass (PPG) chemical plant

in Barberton, Ohio (Tr. 78-79). Also, it was to assist other contractors at the site in sampling fluids f?om
the wells to determine if they were hazardous (Tr. 81). The replugging and sampling operation took
approximately a year and Well-Tech maintained two crews, each consisting of four rig hands and a
supervisor working 12-hour shifts (Tr. 138, 141). Well-Tech did not keep a copy of its OSHA 200 logs
or the OSHA poster at the PPG worksite (Tr. 47, 64). According to the safety manager, they were
maintained at its corporate offices in Mt. Pleasant, Michigan (Tr. 126-127).
To replug a leaking well, Well-Tech f!irst drilled a hole to open the well (Tr. 79). The drilling

operation was done from Well-Tech’s drilling platform which stood approximately 16 feet high. The
platform floor measured16 feet by 16 feet with standard railing around the perimeter (Exhs. C-4, C-5; Tr.
25, 70). Near the center of the platform floor, there was a 3-foot square opening referred to as the “rat
hole” (Exh. C-7; Tr. 40-41, 67). The rat hole was open during the drilling operation to allow for the
movementof pipe in and out of the hole (Tr. 61-62). When there was no drilling, the rat hole was covered

by replacing the floor boards (Exh. C-7; Tr. 61).
After opening the well but before replugging, ICF Kaiser, a consulting firm, and Eastern Well
Service, the wire line contractor, were contracted to collect samples of fluid from the open well (Tr. 77,
79,81-82). To collect the samples, Eastern Well Service designed a monitoring cone which was attached
to a wire line and controlled by a computer system on a truck (Tr. 83). The wire line, originating from the
truck, ran to Well-Tech’s drilling platform and through a system of two sheaves down into the opened well
(Exh. C-4; Tr. 121-122).
On July27,1994, Well-Tech finished drilling the hole, opening well No. 10 at the south plant. This
took approximately two weeks (Tr. 78-79). Because of a building which prevented the truck from locating
in front of the drilling platform, the wire line was run to the side of the platform (Tr. 106, 122). To
accommodate the wire line, Well-Tech’s employees removed an S-foot section of the platform’s guardrail

                                                 2

and placed yellow caution tape across the opening (Exh. C-l 1; Tr. 104, 123-124). A safety meeting was
held with Well-Tech employees to explain the removal of the guardrail (Tr. 104, 124). Well-Tech had four
employees on the platform (Tr. 104). Within fif?een minutes of removing the guardrail, a Well-Tech
employee fell fkom the platform approximately 12 feet onto the pipe rack, injuring himself&h. C-10; Tr.
95.96,99). The accident occurred around 9:00 p.m. (Tr. 87). The nature and extent of the employee’s
injuries was not brought out at the hearing.
Based on a referral from another OSHA office, Compliance Officer Henry was assigned the
inspection He arrived at the PPG plant on August 4,1994 (Exh. C-2; Tr. 14). Although he testified that
the drilling platform was operating during his inspection, he could not recall what work was being done or
if employees were on the platform floor at that time (Tr. 54).

                                           CITATION NO. 1

                     Item 1 - Alleged Serious Violation of 6 1910.23(a)c7)

   The Secretary alleges that Well-Tech violated 5 1910.23(a)(7) which provides that “PIvery

temporary floor opening shall have standard railings, or shall be constantly attended by someone.” The
OSHA citation describes the violation as “a temporary floor opening (approximately 3’ x 37, on the well
rig platform, did not have standard railings.”
There is no dispute that in the platform floor, there was a 3-foot square floor opening referred to
as the “rat hole.” It was used to move drilling pipe in and out ofthe well (Exh. C-7; Tr. 40, 125, 133). The
opening was approximately 8 feet from the platform’s edge and, when open, was not guarded by a railing
(Exh. C-7; Tr. 41). According to Henry, the opening was large enough for an employee to easily fall
through (Tr. 40). The rat hole was only open when employees were drilling. Otherwise, it was covered
with floor boards (Tr. 125). Henry testified that he has never heard of a person falling through a rat hole,
and he did not know ifit could be guarded by standard railing because of the movement of the pipe (Tr. 62).
The record establishes that the drilling platform constituted a “platform” within the meaning of
0 1910.21(a)(4) and that the rat hole was a “floor opening” as defined at 5 191021(a)(2). There is no
dispute that during the drillingoperation,the floor opening was not covered or guarded by standard railings.
3
However, the Secretary failed to establish that Well-Tech violated 6 1910.23(a)(7) and that Well- -
Tech’s employees were exposed to a violative condition. Section 1910.23(a)(7)
- allows an employer two
options to comply: either the employer must provide standard railings, or the employer must require
someone to constantly attend to the opening, presumably to warn and protect employees Corn a fall hazard.
The Secretary’sevidence failed to show that Well-Tech did not provide “someone to constantly attend the
opening.” Compliance Officer Henry did not recall seeing employees on the platform during his inspection
nor did he identify employee exposure prior to his inspection. Although it is presumed that employees were
on the platform during the drilling operation and the rat hole was uncovered, the Secretary failed to
establish that Well-Tech did not have someone on the platform to constantly attend the opening as
permitted by the standard. Thus, a violative condition and employee exposure have not been shown.
Accordingly, the alleged violation of 0 1910.23(a)(7) is vacated.

                      Item 2 - Alleged Serious Violation of 5 1910.23(c)(l)

   Well-Tech was cited for failing to have all open sides of the drilling platform guarded by a standard

railing or its equivalent on July 27, 1994, the date of the accident. Section 1910.23(c)( 1) provides:
[E]very open sided floor or platform 4 feet or more above adjacent floor or ground level
shall be guarded by a standard railing (or the equivalent . . .) on all open sides except where
there is entrance to a ramp, stairway, or fixed ladder.

   Well-Tech acknowledges that immediately prior to the accident, a portion of the railing on the

drilling platform was removed and yellow caution tape was placed across the opening (Exh. C-l 1; Tr. 121,
124). Well-Tech argues that it removed the railing temporarily in order for the wire line contractor to rig
the monitoring tool and take samples from the well (Resp’s. Brief, pg. 5). A building near well No. 10
prevented the truck with the computer system used to control the wire line from moving into a position
where the wire line could be run to the front of the platform (Tr. 106). Thus, it was decided to remove the
railing and run the wire line to the side of the platform (Exh. C-l 1; Tr. 90-91).
Well-Tech’s argument that the removal of the railing was temporary and was needed to
accommodate the wire line operation is rejected based on the record. Although there was no evidence that
the guardrail had ever been removed other than the fBeen minutes prior to the accident, the court finds that
the brevity of exposure does not negate a finding of a violation. Even for a short period of time, such as
fifteen minutes, the regulation does not allow for the removal of the guardrail. However, the brevity of

                                                  4

exposure my be relevant for the purpose of penalty assessment. &e ,!&z?v& Gregory &a@zg Co., ‘7BNA
OSHC 1010,1979 CCH OSHD 7 23,261 (No. 76-88,1979).
The Commission has petitted noncomplinance with the specific requirements of a regulation ifan
employer can establish an infeasibility defense. In this case, Well-Tech argues that the railing was removed
to rig the sampling tool (Resp’s. Briec pg. 5). Thus, in essence, arguing infeasibility. However, Well-Tech
fded to properly plead the afErmative defense of infeasibility, and there is no evidence that it was tried by
the consent ofthe parties. Therefore, a claim of infeasibility, if now being asserted by Well-Tech, must be
rejected. Se Northeast, Inc., 15 BNA OSHC 1020,1023, 1991 CCH OSHD 7 23,313, p. 39,357 (No.
86-521, .l991); NzrionalEhgineering & Contracting Co., 16 BNA OSHC 1778, 1779, 1994 CCH OSHD

7 30,030 (No. 92-73, 1994).

   Furthermore, the evidence of record does not support an infiisibility defense. Constance Livchak,

a senior hydrologist with an environmental consulting firm, and Michael HWtinger, We&Tech’s safety
manager, testified that the railing had to be removed for the rigging operation. However, there was no
evidence offered showing the basis or reason for their opinion. Therefore, the court gives little weight to
their conclusion. Further, the record reflects that after the rigging, the sampling operation was
accomplished with the guardrail in place (Tr. 109). Livchak testified that the railing was “back up because
of the accident,” and the lower sheave was moved up higher from the floor to allow for the railing (Tr.
106). There was no evidence that the reinstalled guardrail caused any problem during the four days of

sampling or exposed employees to any hazard. Ifthe sampling operation could be done with the railing in
place, the court finds that Well-Tech failed to show that the rigging operation could not likewise have been
done with the railing in place. Thus, Well-Tech failed to prove that compliance with the requirements of
the standard precluded performance of its required work.
Also, Well-Tech failed to provide adequate alternative employee protection as required by the
infeasibility defense. The safety meeting held with employees and the placement of yellow caution tape
were not sufEcient in this situation andwas not what Well-Tech required in similar situations. Well-Tech’s
safety manual provides that handrails can be removed during material handling (Exh. R-2(9)). Well-Tech’s
safety manager, Michael Hottinger, testified that when the railing is removed for material handling, safety
belts were required to be worn by employees (Tr. 142-143). There is no evidence that safety belts could
not have been utilized in the wire line operation, including rigging the monitoring tool. Hottinger testified

                                                  5

that the safety belts were available for use but that employees were not required to wear them (Tr. 143.
144). Well-Tech has an obligation to provide reasonable alternative safety protection to its employees. In
this case, alternative safety protection included more than holding a safety meeting and using yellow caution
tape. Consideration should have included more active measures, such as requiring the use of safety belts.
Finally, it is noted that Well-Tech employees removed the guardrail at the request and under the
supervision of Kaiser’s project engineer (Tr. 102, 110, 131). Well-Tech has not asserted a multi-employer
defense, and the record does not support such a defense. As previously discussed, Well-Tech has not
shown that the removal of the guardrail was necessary or that it provided adequate alternative methods of
abatement to its employees. Further, there was no evidence that Well-Tech did not retain control of the
well platform and the supervision of its employees.
Therefore, a violation of 5 1910.23(c)(l) is afiirmed.
The violation was correctly classified as serious. A violation is serious under section 17(k) of the
Act (29 U.S.C. 0 666(k)), ifit creates a substantial probability of death or serious physical harm and the
employer knew or should have known of the violative condition. Based on the area where the railing was
removed and the location of the pipe rack where the employee was found, the record establishes that the
Well-Tech employee fell from the area of the platform where the railing was removed and suffered injuries.
The employee fell approximately 12 feet. Although the nature and extent of employees* injuries is not in
the record, it is reasonable to assume that a fall of 12 feet onto pipes could have resulted in serious injury
or death within the meaning of section 17(k). Also, Well-Tech was aware of the condition since its crew
supervisor was at the site and should have been aware of the removal of the railing. Thus, Well-Tech’s
violation of 6 1910.23(c)( 1) is serious.

                     Item 3 - Alleged Serious Violation of 6 1910.23(d)(l)(iii)

    The Secretary’s citation alleges that “on the west side of the well rig, a stairway having 5 risers, did

not have a handrail on both open sides” in violation of 3 1910.23(d)(l)@) which provides:

    (d)     S’ainvayraihngs andgumh. (1) Every flight of stairs having four or more risers
            shall be equipped with standard stair railings or standard handrails as specified in
            paragraphs (d)(l)(I) through (v) of this section, the width of the stair to be measured
            clear of all obstructions except handrails:



                                                   6
           (ii) On stairways less than 44 inches wide having both sides open, one stair
           railing on each side.

   The record establishes that there was a stairway with five risers and no handrail on one side (Exh.

C-8; Tr. 41-42). Compliance Officer Henry described the stairway as being less than 44 inches wide and

leadingto a small platform which stood about 3 to 4 feet above ground level on the west side of the drilling

rig (Tr. 46). Lying on the small platform, he observed a number of hand tools (Tr. 42,63). Henry noted
that there were holders along the side of the stairway which could be used to place a hand railing (Exh. C-8;
Tr. 69). Duringthe inspection, Henry did not observe any employees using the stairway or standing on the
small platform (Tr. 63). Also, he testified that he did not know the purpose of the stairway and platform
or why employees would go onto the platform (Tr. 63,72). He conceded that someone on the ground
could have placed the tools on the platform (Tr. 69).
Based on this record, there has been no showing that Well-Tech’s employees used the stairway, or

ifthey did, that a standard railing was not placed on the open side in the holders observed by Henry. Thus,
employee exposure was not established.
Accordingly, the alleged violation of (i 1910.23(d)( l)(iii) is vacated.

                            “OTHER” THAN SERIOUS CITATION

               Item 1 - Alleged “Other” Than Serious Violation of 6 1903.2(a)(l)

   Well-Tech was cited for violating 6 1903.2(a)( 1) by failing to post at the PPG worksite the OSHA

poster informing employees of the protection and obligations provided for in the Act.
Compliance Of&r Henry testified he asked Well-Tech’s crew supervisor about the OSHA poster
and was told there was no poster at the worksite (Tr. 47). According to safety manager Hottinger, it was
posted at Well-Tech’s main office in Mt. Pleasant, Michigan (Tr. 129). Well-Tech argues that the
regulation does not require posting at a temporary worksite (Resp’s. Brief, pg. 6).
Section 1903.2(b) defines an “establishment” as “a single physical location where business is
conducted or where services or industrial operations are performed.” This section also provides, in part:
Where employers are engaged in activities which are physically dispersed such as
agriculture, construction, transportation . . ., the notice or notices required by this section
shall be posted at the location to which employees report each day. Where employees do
not usually work at, or report to, a single establishment, such as longshoremen, traveling

                                                  7
      salesmen, technicians, engineers, etc., such notice or notices shall be posted at the location
      from which the employees operate to carry out their activities.

      “Thus, the definition of establishment distinguishes between situations where employers maintain

multiple worksites and each employee reports to a particular location each day, and those where each
employee frequently changes the physical location at which he works. In the former situation, the notice
must be posted at each location; in the latter, it need only be posted at the location from which the
employees operate to carry out their activities.” Western Wateiproofing Inc., 7 BNA OSHC 1499,1500,
1979 CCH OSHD fi 23,692 (No. 14523, 1979).
The record in this case shows the PPG worksite was an “establishment” within the meaning of the
standard. The work being done at the PPG site was analogous to a construction project where employees
are on site for a long period of time. Well-Tech’s employees were working at the PPG plant for a year (Tr.
137). Well-Tech maintained ten employees: two crews of employees. consisting of four rig hands and one
supervisor per crew, each working 12.hour shifts (Tr. 141). The PPG worksite was the place where
employees reported each day. The record reflects that it was a six-hour drive from the Mt. Pleasant,
Michigan corporate office to the worksite (Tr. 127). There was no evidence that employees reported to
the Mt. Pleasant office or that they frequently changed their work location. Also, there was no showing
Michigan was the location where the “employees operate to carrying out their activities.”
Therefore, the court finds the PPG worksite was where Well-Tech employees reported each day and
where the OSHA poster was required to be posted.
An “other” than serious violation of 5 1903(a)( 1) is afEirmed.

                     Item 2 - Alleged “Other” Than Serious Violation of 6 1904.7

      For the most part, there is no factual dispute between the parties. Well-Tech was cited for failing

to make available to Compliance Officer Henry the OSHA 200 log. Henry testified that when he asked
about the OSHA 200 log, he was told that the log was maintained at the Mt. Pleasant, Michigan corporate
offrce. Henry telephoned Well-Tech’s safety manager Hottinger and requested the log. Hottinger
confirmed the log was at his office and requested Henry to submit a written request. Hottinger agreed to
mail the 200 log. On August 8,1994, Henry mailed the written request to Hottinger (Exh. C-12; Tr. 145).
Hottinger confirmed the telephone conversation but testified he never received the written request (Tr.
136). Neither Hottinger nor Henry followed up on the written request and, tier OSHA did not receive the
200 log, the violation was cited (Tr. 147). Henry testified that maintaining the OSHA 200 logs at the
corporate offices satisfied the standard (I$. 64). There was no evidence that Well-Tech refused to provide
the log.
Section 1904.7 requires the OSHA 200 logs be provided to OSHA for inspection and copying.

Section 1904.2 requires that an employer maintain the log at each establishment. As discussed previously,
the court has found the PPG worksite was an establishment under 6 1904.12(g)(2) as the “place to which
employees report each day.” However, under 0 1904.2(b), an employer may maintain the log at a place
other than an establishment if “[tlhere is available at the place where the log is maintained sticient
information to complete the log to a date within 6 working days tier receiving information . . .” and “at
each of the employer’s establishments, there is available a copy of the log . . . current to a date within 45
calendar days.”
Because Well-Tech was at this site for a year and maintained ten employees, including two
supervisors, the court tids that at least a copy of the log under 0 1904.2(b)(2) should have been at the PPG
worksite and available to OSHA. Respondent’s argument that Henry should have come to Mt. Pleasant to
inspect the logs was not required in this case. Well-Tech was on notice that OSHA wanted to inspect the
log, and it failed to follow up when it did not receive the written request from Henry. The standard does
not requireOSHA to make a written request, but the record establishes that one was mailed. It was Well-
Tech’s obligation under the standard to make the logs available. By failing to provide the log to Henry,
Well-Tech was not in compliance with the standard.
Accordingly, an “others’ than serious violation of 0 1904.7 is af’&med.

                                   PENALTY DETERMINATION

       Section 17(j) of the Act, 29 U.S.C. 6 666(j), requires that when assessing penalties, the
       Commission must give “due consideration” to four criteria: the size of the employer%
       business; gravity of the violation; good faith; and prior history of violations. J. A. Jones
       Constr. Co., 15 BNA OSHC 2201,2213-14,1993 CCH OSHD 129,964, p. 41,032 (No.
       87-2059, 1993). These factors are not necessarily accorded equal weight. Generally
       speaking, the gravity of the violation is the primary element in the penalty assessment.
       Triniv Indus., 15 BNA OSHC 1481, 1483, 1992 CCH OSHD 7 29,582, p. 40,033
       (No. 88-2691, 1992). The gravity of a particular violation depends upon such matters as
       the number of employees exposed, the.duration of the exposure, the precautions taken


                                                    9
   against injury, and the likelihood that any injury would result. J. A. Jones, 15 BNA OSHC
   at 2214, 1993 CCH OSHD at p. 41,032.

Hem Iron Works, Inc., 16 BNA OSHC 1247,1994 CCH OSHD 130,155 (No. 8%1962,1994).

   Well-Tech is a large employer with approximately 1,280 employees corporate wide. At the PPG

worksite, Well-Tech had ten employees, including two crew supervisors, working 12-hour shifts. There
was no evidence that Well-Tech had been cited for any OSHA violations within the prior three years and,
thus, is entitled to credit. However, Well-Tech’s lack of history for penalty purposes does not mean that
it has not received prior citations or was unfamiEar with the Act’s requirements and OSHA procedures. See
WebTech, Docket Nos. SO-2974(1981); 81-2740 (1982); 83-843 (1984); 84-919 (1985); 83-1118 (1985);
88-1404 (1990); and 89-2864 (1991). Also, Well-Tech is entitled to some credit for good faith because
of its attempts to comply with the standards and its cooperation during the inspection.
After considering the above factors and the gravity of the violation, a penalty of $2,000 is deemed
appropriate for Well-Tech’s violation of 0 1910.23(c)(l). By removing the railing and exposing employees
to a fall hazard of 12 to 16 feet, the gravity is considered as moderate. Consideration is given to the
evidence which shows there were four Well-Tech employees on the platform and that the railing was down
only f&en minutes prior to the accident. Also, there was no evidence the railing was removed at any other
time during the drilling operation. Although not found adequate in this situation, yellow caution tape was
placed at the opening and a safety meeting was held with employees prior to the removal.
The “other” than serious violation of 6 1903.2(a)( 1) is a posting violation intended to keep
employees informed of their protections and obligations provided by the Act. There was no poster at the
PPG worksite despite the fact that Well-Tech had been working at the site for a year. Well-Tech
ma&a&d ten employees at the site. Therefore, a penalty of $750 is assessed.
The “other’ than serious violation of 0 1904.7 is a record-keeping violation designed to require
employers to record all occupational safety or health injuries and to make such reports available to OSHA
as part ofits inspection. This enables OSHA to identify what, if any, hazards may be present at a worksite.
Based on the evidence, Well-Tech maintained OSHA 200 logs at its corporate offices. There is no evidence
that the logs were not being maintained or that the logs were deficient. The violation involves Well-Tech’s
not making the logs available to OSHA upon request. Failure to obtain a copy of the log was due mainly
to a misunderstanding between the parties. Therefore, a penalty of $100 is assessed.

                                                10
                                   FINDINGS OF FACT AND
                                   CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance with

Federal Rule of Civil Procedure 52(a).

                                             ORDER

   Based upon the foregoing decision, it is ORDERED:
   1.      Citation No. 1, item 1, alleging a violation of 0 1910.23(a)(7), is vacated;
   2.      Citation No. 1, item 2, alleging a violation of $ 1910.23(c)(l), is affirmed and a penalty of

$2,000 is assessed;
3. Citation No. 1, item 3, alleging a violation of 8 1910.23(d)(l)(iii), is vacated;
4. Citation No. 2, item 1, alleging a violation of 5’1903.2(a)(l), is afkmed and a penalty of
$750 is assessed; and
5. Citation No. 2, item 2, alleging a violation of 0 1904.7, is af&med and a penalty of $100 is
assessed.

                                                   Judge

Date: August 16, 1995

                                                 11