BOMAC DRILLING, a DIVISION of TRG DRILLING CORPORATION; and R.B. MONTGOMERY DRILLING, INC., and K/S SCANPET SCANDINAVIAN PETROLEUM A/S & CO., partners, d/b/a SCANDINAVIAN MONTGOMERY DRILLING

OSHRC Docket Nos. 76-450; 76-2131

Occupational Safety and Health Review Commission

April 27, 1981

[*1]

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Henry C. Mahlman, Association Regional Solicitor, U.S. Department of Labor

Charles L. Casteel and Robert L. Morris, for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner:

Two decisions of Administrative Law Judge John J. Morris are before the Commission for review under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). These decisions are consolidated for review. n1 In both decisions, Judge Morris affirmed modified citations alleging that the Respondents violated section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), n2 in that they failed to make self-contained breathing apparatus available for emergency use to protect against the possibility of hydrogen sulfide gas being encountered during the drilling of "wildcat" wells. n3

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n1 The Respondent in Docket No. 76-450 is Bomac Drilling, a Division of TRG Drilling Corporation ("Bomac"). The Respondent in Docket No. 76-2131 is R.B. Montgomery Drilling, Inc., and K/S Scanpet Scandinavian Petroleum A/S & Co., partners, d/b/a Scandinavian Montgomery Drilling ("Montgomery"). The parties in No. 76-2131 stipulated that the material facts found by Judge Morris in No. 76-450 would be the material facts in No. 76-2131. Moreover, the petitions for review in both cases assert the same errors and request the same relief and the same briefs were filed in both cases. In addition, Judge Morris' decision in No. 76-450 was specifically incorporated into his decision in No. 76-2131 and no independent record was created in No. 76-2131.

There are only two significant differences between the two cases. There is an amendment issue in No. 76-450 that is not present in No. 76-2131 and there is a disparity in the penalties assessed although the violations found by the judge in both cases are the same.

Accordingly, these cases are consolidated under Rule 9 of the Commission's Rules of Procedure, 29 C.F.R. 2200.9, which provides in pertinent part that "[c]ases may be consolidated . . . on the Commission's own motion, where there exist . . . common questions of law or fact . . . ."

n2 Section 5(a)(1) provides:

SEC. 5(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[*2]

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n3 A wildcat well was generally described as any exploratory well drilled outside of fields known to produce oil or natural gas ("known producing fields").

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The principal issue to be resolved in both cases is whether the judge erred in ruling that the Respondents' failure to provide self-contained breathing apparatus at their worksites violated their duty under section 5(a)(1). Specifically, the issues before the Commission are the following:

(1) Whether the Secretary sustained his burden of proving that the employees of the Respondents were exposed to a "recognized" hazard that was "likely to cause" death or serious physical harm;

(2) Whether the judge erred in failing to find that certain procedures followed by the Respondents and certain mechanical devices installed at their workplaces rendered these workplaces "free" from the hazard, if any;

(3) Whether the Secretary failed to prove the likely utility of self-contained breathing [*3] apparatus as a means of eliminating or substantially reducing the hazard, if any; and

(4) Whether certain findings of fact entered by the judge and excepted to by the Respondents are supported by a preponderance of the evidence.

In addition, in Docket No. 76-450, we must determine whether the judge erred in granting a pre-hearing motion to amend the citation. This citation alleged a violation of section 5(a)(2) of the Act in that Bomac failed to comply with a standard promulgated under the Act and the amendment added an alternative allegation that the cited conditions violated section 5(a)(1) of the Act. Finally, in both cases we must determine whether the judge erred in concluding that he had no authority to rule upon certain constitutional issues raised as affirmative defenses by the Respondents.

I

The citation at issue in Docket No. 76-450 resulted from an inspection of a drilling rig (Rig No. 36) in McKenzie County, North Dakota, where Bomac was engaged in drilling operations. n4 Bomac was operating under a contract with True Oil Company, the well operator, to drill an exploratory hole in an attempt to discover oil or natural gas. It is undisputed that the well was not [*4] located within a known producing field. For this reason, some of the witnesses characterized it as a "wildcat" well, although others disagreed with this terminology.

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n4 The citation at issue in Docket No. 76-2131 resulted from an independent inspection approximately four months later of a drilling rig (Rig No. 46) near Watford City, North Dakota, where Montgomery was engaged in drilling for oil and/or natural gas. With the exception of these facts, which are established by the pleadings in No. 76-2131, the facts of the two cases are deemed identical. See note 1 supra.

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On the day of the inspection, the depth of the hole was 13,236 feet, as recorded in a daily progress report submitted by Bomac to True Oil. The projected total depth under the contract was 14,200 feet. The record establishes that drilling was discontinued at a depth of 14,125 feet and that neither oil nor natural gas was discovered. There is no record evidence that hydrogen sulfide gas (hereafter referred to by its chemical formula, "H[2]S") [*5] was encountered during the drilling. In addition, it is undisputed that no gas masks or self-contained breathing apparatus were available for use at Rig No. 36.

A. Presence of H[2]S in the Williston Basin

At the hearing, the Secretary sought to establish that Bomac's employees on Rig No. 36 were exposed to a hazard of potential contact with H[2]S. He introduced extensive evidence concerning the presence of H[2]S in the Williston Basin, the geological formation where Bomac's drilling operation was located, and the possibility that Bomac might have encountered H[2]S during its drilling operation. Bomac also introduced extensive evidence on these matters. Although the parties differ as to the legal significance of the evidence concerning the possibility of encountering H[2]S, the evidence introduced by both parties is essentially consistent and undisputed.

The Williston Basin is a subsurface geological formation underlying parts of Montana, North Dakota, South Dakota, and two Canadian provinces. This formation is generally shaped like a broad bowl. Numerous wells producing oil and natural gas are located within the Basin. In approximately one third of the known producing fields [*6] in the North Dakota portion of the Williston Basin, H[2]S in varying amounts is mixed with the oil and natural gas. However, there is no pattern to the occurrence of H[2]S. Thus, an oil and gas producing field containing no H[2]S may be adjacent to a producing field containing significant quantities of H[2]S. In addition, the concentration of H[2]S in fields containing the H[2]S contaminant varies significantly, ranging generally from less than 1% up to 8%. n5 One field in the Basin contains H[2]S at a concentration of 40%. Because H[2]S in the Williston Basin originated from the same geophysical processes that produced oil and natural gas, the H[2]S is usually found in conjunction with oil and natural gas. Moreover, it is not customarily present in the Basin apart from those substances.

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n5 The concentration of H[2]S is determined by calculating the percentage of H[2]S contained in a sample volume of gas or porous matter. The term "concentration of H[2]S" is used in three different contexts throughout the record and this decision -- (1) when present underground, as a percentage by volume of a mixture with natural gas, (2) when present in drilling mud, as a percentage by volume of mud, or (3) when present in the atmosphere, as a percentage by volume of air. When H[2]S is present in the atmosphere, the number of parts of H[2]S per million parts of air (ppm) can be determined easily if the concentration of the H[2]S is known (see chart on pages 12 and 13, infra).

[*7]

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From the surface of the earth downward, the Williston Basin consists of numerous layers or strata of rock and soil. These strata are classified by geologists in a system corresponding to periods of geological time, e.g., the Mississippian Age. In turn, each age of rock is subclassified in terms of formations and groups of formations, e.g., the Tyler formation and the Madison Group, subclassifications of the Mississipian Age rocks. At least four ages of rock produce oil, gas and H[2]S in the Williston Basin. The largest formation in terms of known reserves is the Madison Group. Accordingly, the Madison Group or Madison formation is the optimum drilling target for wells drilled into the Williston Basin. n6 Because of the correlation between the presence of H[2]S and the presence of oil and natural gas, the Madison formation is also the level where a driller is most likely to encounter H[2]S. n7

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n6 Exhibit R-W, the prognosis prepared by True Oil Company for the project in question, classified all formations from the Kibbey Lime (immediately above the Madison Group) downward as "prospective [producing] zones." Drilling reached these "prospective zones" at an approximate depth of 8,800 feet. As indicated, the depth of the hole on the day of the inspection was 13,236 feet. Accordingly, it is clear that by that time Bomac had drilled several thousand feet into rock it believed might contain oil and natural gas.

In addition, Bomac was nearing the formation it considered most likely to contain oil and natural gas. Blmer Parson, chief geologist for True Oil Company, testified that the primary objective of the drilling project was to reach the Red River formation, which was penetrated at a depth of 13,810 feet.

n7 Dr. Cooper Land, a petroleum geologist who testified for Bomac, listed two of the formations within the Madison Group and also the Red River formation, see note 6 supra, as being among those most likely to contain H[2]S. The testimony of Chief Geologist Parson and Exhibit R-Y, a geologic report on the well prepared by the "well-side geologist", establish that the well had already been drilled through the Madison Group formations by the time of the inspection.

[*8]

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Edward Gribi, a petroleum geologist who testified on behalf of the Secretary, set forth his background and experience as a consultant to oil well operators and drillers engaged in exploratory projects. He testified that he would inform a client considering an exploratory drilling project in the Williston Basin that the client might encounter concentrations of H[2]S in excess of 2% during the drilling operation. In his opinion, a client should be informed about a possibility of encountering any "significant" concentration of H[2]S, which he defined as a concentration of H[2]S in excess of 0.1-0.2%. On cross-examination, he elaborated on this testimony and stated that "I would tell them [the client] that they were in a region of occurrence of hydrogen sulfide and that their drilling practices should include various precautionary measures in the event that hydrogen sulfide were encountered in significant quantities." He also testified that he could predict with reasonable accuracy the depth at which the client might encounter H[2]S (by predicting the depth of the top of the Madison formation) but that [*9] he would not be able to predict the concentration of the H[2]S that might be encountered.

Dr. Cooper Land, one of the geologists who testified on behalf of Bomac, similarly stated that a geologist familiar with the Williston Basin can accurately predict the depths and the pressures at which H[2]S, if any, will be encountered in the course of drilling a hole at any given location in the Williston Basin. On cross-examination, he testified that there is a "reasonable chance" that a driller at any given point in the Williston Basin might encounter H[2]S when the driller reaches the Madison formation. He further testified that "there is no way I can tell you that you will not encounter hydrogen sulfide in the Madison at that point." In addition, he conceded that at any given location there is a possibility that a concentration of H[2]S in excess of 1% will be encountered and that he could not state with reasonable scientific certainty that a concentration of H[2]S in excess of 1% will not be encountered if a well is drilled at that point. He corroborated Gribi's statement that the concentration of H[2]S that might be encountered cannot be predicted.

B. Atmospheric Release of H[2]S [*10]

The Secretary also sought to prove that, if Bomac had encountered H[2]S during its drilling operation, a portion of that H[2]S could have been released into the atmosphere surrounding the drilling rig, thereby endangering Bomac's employees. Thus, the Secretary offered into evidence as Exhibit C-10 an article written by a research scientist for Continental Oil Company and published in World Oil magazine. Due to the scientific and technical nature of the subject discussed, the Secretary also elicited the testimony of David Di Tommasso, an OSHA industrial hygienist and compliance officer, who identified and interpreted the article. According to Di Tommasso, "[t]he article shows that hydrogen sulfide can be liberated from drilling mud during drilling operations." n8 It discusses a method for preventing the release into the atmosphere of H[2]S carried to the surface in the drilling mud by maintaining the pH level of the mud. If the drilling mud is maintained through chemical additives in an alkaline state with a pH level of 9 or higher, any H[2]S encountered will be chemically neutralized through a change in its chemical structure and the H[2]S will be "bound in the mud." However, [*11] if the drilling mud becomes less alkaline and the pH level drops below 9, the chemical reaction can reverse and H[2]S can be released into the atmosphere. During examination by Judge Morris, Edward Gribi also testified that H[2]S could come to the surface in the drilling mud.

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n8 Bomac introduced the testimony of Kent McDaniel, a drilling superintendent for Continental Oil Company, that drilling mud is a fluid containing several components. When not in use, it is stored in a large open reserve pit. It is pumped into square tanks termed "suction pits" after being treated in a "mixing hopper" with chemicals, fresh or salt water, and other materials. It is pumped out of the "suction pits" into a standpipe. From there it is transported into the drill pipe and down the drill pipe into the hole. It comes back up the hole to the surface and travels through a mud return or flow line across a shaker and a settling pit back into the reserve pit. It is then recirculated. During this process, the drilling mud lubricates the drill bit, carries the cuttings (the earth material displaced by the drilling) to the surface and performs other functions discussed in greater detail infra.

[*12]

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In response to this evidence, Bomac sought to prove that the drilling mud would prevent the atmospheric release of any H[2]S encountered during the drilling operation. Donovan Woessner, district manager for IMCO Services, a division of the Halliburton Company, testified that his employer was the drilling mud service company for the drilling project at Rig No. 36. n9 He testified that a mud technologist or "mud man" was sent to the worksite on a daily basis and stayed at the site approximately two hours each day conducting a series of tests on the drilling mud and preparing a daily report. This report was then submitted to the well operator (True Oil Company), the driller (Bomac) and the mud company (IMCO Services). The mud technologist also recommended to Bomac changes in the mud program that were necessary as a result of changes in the conditions encountered, e.g., changes in the density or the pH level of the mud. These recommendations were carried out by Bomac personnel at the drilling rig.

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n9 Drilling Superintendent McDaniel testified that it is customary in the industry for the well operator to prepare a prognosis or drilling program before soliciting bids from drilling contractors. The prognosis is supplied to the prospective bidders before bids are made and the contract is based on the prognosis. Included in the prognosis is a "mud program" fashioned to meet the conditions that the well operator anticipates will be encountered during the drilling operation. It is also customary in the industry for the well operator to enter into a separate contract with a "mud company", which supplies and monitors the drilling mud.

[*13]

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Woessner further testified that a test to determine the presence of H[2]S was routinely conducted during the visits and that the mud technologist's records contain no indication that H[2]S was encountered during the drilling operation in question. He stated that, if H[2]S had been encountered and if treatment had been necessary, the mud technologist would have recommended that chemical additives be introduced into the mud to treat the H[2]S. However, in his opinion, the weight of the drilling mud is normally sufficient to contain the H[2]S, along with any other fluid or gas, within the boring hole.

On cross-examination, Woessner conceded that the tests conducted could only determine the presence of H[2]S in the drilling mud and that the concentration and amount of the H[2]S encountered could only be crudely estimated. He also admitted that the proper amount of chemical additive necessary to contain the H[2]S could only be determined if the concentration of H[2]S in the drilling mud were known.

Harley E. Bush, laboratory section leader for Baroid Division of N.L. Industries, which also performs drilling [*14] mud services, testified that drilling mud performs two principal functions in controlling H[2]S. First, the weight of the drilling mud keeps H[2]S within the formation. Second, the drilling mud serves as a medium in which H[2]S can be neutralized, oxidized or precipitated depending upon what chemical additives are introduced into the drilling mud. In testimony essentially corroborating Industrial Hygienist Di Tommasso's testimony, Bush indicated that neutralization occurs when alkaline substances are added to the drilling mud to increase the pH level. He also described the alternative methods of treatment that would result in oxidizing or precipitating the H[2]S. However, on the basis of his examination of the daily mud reports and the mud log, Bush testified that the drilling mud used during the project was treated only with alkaline materials and not the alternative chemicals. Bush concluded his direct examination by stating his opinion that drilling mud is a practical and effective means to control H[2]S.

On further examination, Bush testified that controlling H[2]S was not the primary reason the alkaline chemicals were added to the drilling mud at Rig 36. Although these [*15] alkaline chemicals would have this secondary effect, the amounts of the chemicals used at the site would control only a small amount of H[2]S. Upon examining the logs for Rig 36 and the charts contained in the article discussed by Industrial Hygienist Di Tommasso (Exhibit C-10), Bush conceded that the alkaline substance added to the drilling mud at Rig 36 would control only about 40% of any H[2]S encountered. He also conceded that the alkaline neutralization method of treatment was less effective than the oxidation process because H[2]S could reverse out of the solution if the pH level of the drilling mud dropped. n10

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n10 Bush testified that the alkaline neutralization process is also more easily reversible than the precipitation process. Nevertheless, he viewed the alkaline neutralization process as preferable to precipitation because the chemicals required for neutralization are customarily maintained at drilling rigs and are therefore available if needed. On cross-examination, Bush read into the record the following statement from a document that he had written:

A reserve of hydroxyl alkalinity over that required for uncontaminated drilling fluid is often the only precaution taken. A soluble sulfide product remains in the fluid from this method and it can become a problem due to its strong dependence on pH control.

Bush explained this last sentence, "If there is a radical reduction in pH, then the sulfides that are in solution will go back into the vapor phase [H[2]S]."

[*16]

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Bomac further sought to prove that any possibility of employee exposure to H[2]S was precluded by the drilling procedures it followed and certain precautionary measures it had taken. Extensive evidence was introduced by Bomac relating to the drilling memorandum or prognosis. See note 9 supra. This evidence indicated that (1) a comprehensive drilling program based upon information gathered from geologists and others is customarily developed by the well operator prior to the commencement of drilling operations; (2) the drilling program customarily includes responses to problems that are anticipated in the operation, such as encountering H[2]S; (3) with the aid of this prognosis and periodic examinations by the well-side geologist of cuttings brought to the surface by the drilling mud, the driller knows with reasonable certainty at any given time the depth of the hole and the particular formation that the drilling has progressed to; and (4) the prognosis for the operation in question was highly accurate. n11

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n11 Bomac offered into evidence as Exhibit R-W the prognosis prepared for the operation in question. See note 6 supra.

[*17]

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Precautions described by Bomac's witnesses were a blowout preventer, periodic drill stem tests, and a Bullard continuous monitor. Fred Brandt, a Bomac Vice-President whose responsibilities included the operation of Bomac's safety program, testified on behalf of Bomac that Rig No. 36 was equipped with a double gate blowout preventer like that previously described in the testimony of an earlier witness, Kent McDaniel, a drilling superindendent for Continental Oil Company. The device described by McDaniel is located at the floor of the drilling rig and can be operated manually or from various remote control stations. Its purpose is to "shut in" a well in whole or in part by mechanically closing various openings, thereby containing within the well any materials that might otherwise be released. Laboratory Section Leader Bush testified that, if a massive concentration of H[2]S were encountered, the driller would "shut the well in" by closing the blowout preventer, thereby containing H[2]S within the hole. However, on cross-examination, he conceded that activation of the blow-out preventer would have [*18] no effect on the H[2]S that escaped from the hole prior to the activation. He also conceded that the driller could not determine that the "kick" resulting from the encounter with a gas deposit was caused by H[2]S until the H[2]S reached the surface in the drilling mud.

Chief Geologist Parson testified that eight drill stem tests were performed at various intervals during the drilling operation. The purpose of these tests is to determine whether oil or natural gas is present at the depth to which the drilling has proceeded. This is done by bringing a sample of any fluid or gas present at that level to the surface and determining its composition and pressure. None of the tests taken indicated the presence of H[2]S in any significant quantities -- a concentration in excess of 0.1%.

Bomac Vice-President Brandt testified that Rig No. 36 was also equipped with a Bullard continuous monitor, which was purchased following correspondence with OSHA. The purpose of this device was to detect the presence of H[2]S in the atmosphere near the rig. The monitor was located near the driller's station so that the driller (an employee) would be able to shut in the well if necessary. The monitor [*19] was calibrated to indicate concentrations of H[2]S up to 200 parts per million (ppm) (0.02%). It was equipped with an alarm that would go off if a concentration of 20 ppm (0.002) were detected. According to Brandt, the tool pusher (also an employee) was instructed to have the well shut in and the drilling rig area evacuated if the concentration reached 50 ppm (0.005%).

Ronald Stokes, the OSHA compliance officer who conducted the inspection of Rig No. 36, was called as a rebuttal witness by the Secretary. He testified that he asked the driller during the inspection if the rig was equipped with an H[2]S detector and that the driller responded that he did not know. Stokes further testified that he later asked the tool pusher the same question. The tool pusher responded that only part of the H[2]S detection equipment was installed and that the other part was not at the site because "[i]t was either being repaired or they were waiting for it to arrive." Stokes also testified that he determined that the monitor was not operating.

In addition, Bomac elicited opinion testimony to the effect that employees on Rig No. 36 were not exposed to the hazard of potential contact with H[2]S [*20] because the procedures followed by Bomac in its drilling operation and the precautions taken by it precluded the possibility of H[2]S escaping to the surface.

C. Consequences of Human Exposure to H[2]S

The Secretary also sought to prove that, if Bomac's employees had come into contact with H[2]S, the probable result would have been death or serious physical harm. Thus, the Secretary offered into evidence as Exhibit C-8 a publication issued by the American Petroleum Institute entitled "API Recommended Practices for Safe Drilling of Wells Containing Hydrogen Sulfide." Included in this publication is a table setting forth the physical effects of exposure to hydrogen sulfide as follows:

Concentration

Physical Effects

Percent (%)

Parts per

Million (ppm)

0.001

10

Obvious and unpleasant odor.

0.002

20

Safe for 8 hours exposure.

0.01

100

Kills smell in 3 to 15

minutes; may sting eyes and

throat.

0.02

200

Kills smell shortly; stings

eyes and throat.

0.05

500

Dizziness; breathing ceases in

a few minutes; needs prompt

artificial respiration.

0.07

700

Unconscious quickly; death

will result if not rescued

promptly.

0.10

1000

Unconscious at once; followed

by death within minutes.

[*21]

In addition, Industrial Hygienist Di Tommasso testified that, at a concentration of 0.5% (5000 ppm), a single breath of H[2]S will probably cause respiratory paralysis immediately and death within 45 seconds.

In particular, the Secretary sought to prove that employees attempting to rescue a co-worker overcome by H[2]S would be exposed to potential death or serious physical harm. Milan Kittleson and Harold Oeshalager, former drilling contractor employees, testified concerning an incident that occurred eight or nine years prior to the hearing when they both were employed by Cardinal Petroleum Company. Kittleson and Oeshalager were participating in a drill stem test in conjunction with a drilling operation at a rig in Ward County, North Dakota, when Kittleson was overcome by exposure to H[2]S. Kittleson testified that two other employees were also overcome while attempting to rescue him. He further testified that his lungs had been in good condition prior to the accident and that he has suffered from chronic respiratory impairment since the accident. Gary Uran, a former Bomac employee who was the driller at the time of the inspection, testified concerning an incident that occurred [*22] when he was "gauging tanks" (measuring the depth of oil in the tanks) for a previous employer at a rig in McKenzie County, North Dakota. Uran testified that he was overcome due to exposure to H[2]S while attempting to rescue a fellow employee who had passed out. The incident occurred shortly after completion of the drilling operation. n12

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n12 Industrial Hygienist Di Tommasso testified that incidents where an employee is overcome while attempting to rescue a co-worker are "quite common." He identified a publication of the American Petroleum Institute entitled "Review of Fatal Injuries in the Petroleum Industry for 1974" (Exhibit C-5). The publication describes an incident where two employees died as a result of exposure to H[2]S. One employee had been attempting to rescue the other. On voir dire examination, Di Tommasso conceded this specific incident was not related to a drilling operation.

The Secretary also offered the testimony of Delmar Krehbiel, an industrial hygienist employed in OSHA's Lubbock, Texas, office. Krehbiel testified that his office had investigated nine incidents involving employee exposure to H[2]S in a period of 1-1/2 years. These accidents resulted in 24 deaths and 5 hospitalizations. The employers in each case were oil companies. On cross-examination, Krehbiel conceded that none of the incidents were related to drilling operations.

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Bomac did not dispute the contention that H[2]S can cause death or serious physical harm. However, it sought to establish that the incidents involving Kittleson, Oeshalager and Uran were isolated events that resulted from improper actions on the part of the employees or failure of their employers to take proper precautions. It also sought to distinguish the operations being performed by those witnesses from its drilling operations. In support of its position that incidents of H[2]S exposure are uncommon in the drilling industry, it introduced the testimony of several witnesses that they were personally unaware of any incidents of this nature. n13

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n13 For example, Dr. Land testified that approximately 5800 wells had been drilled in North Dakota and that, with the exception of the testimony given by Kittleson and Oeshalager, he had never heard of any incident where a drilling contractor's employees were injured by exposure to H[2]S.

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D. Industry Recognition

The Secretary further sought to prove that the hazard of exposure to H[2]S is a hazard recognized by the oil and gas industry, including the drillers within the industry. In addition, the Secretary sought to prove industry recognition of a hazard to employees attempting to rescue co-workers overcome by H[2]S and the need to provide personal respiratory protective equipment to protect the rescuers. In support of these contentions, the Secretary offered into evidence several publications prepared by and for the oil and gas industry. Exhibits C-1, C-3, C-4, C-7, C-8, and C-17. Each of these publications contains recommendations that respirators be made available for employees in areas where the presence of H[2]S is "suspected", including "[d]rilling operations where hydrogen sulfide may be encountered." (Exh C-8). The Secretary also offered as Exhibit C-2 a provision of the North Dakota Industry Safety Code stating:

When drilling in areas that may be contaminated with hydrogen sulphide gas, a U.S. Bureau of Mines approved breathing apparatus shall be available on the rig at all times. . .

In response, Bomac sought to prove that respirators are not commonly [*25] provided at drilling rigs during drilling operations. Thus, Bill M. Goolsby, safety director of Delta Drilling Company in Tyler, Texas, testified that advances in the control of H[2]S through administrative and engineering controls had made reliance on personal protective equipment unnecessary. He also testified that he had never seen respirators used at a drilling rig. n14

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n14 Former driller Oeshalager testified that one of his former employers, a Canadian company, maintained respirators at a drilling rig in North Dakota during drilling operations. However, his testimony also indicates that this was not the customary practice in the industry.

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E. Feasibility and Likely Utility of Respirators

Finally, the Secretary sought to prove that having self-contained breathing apparatus available for use at Rig No. 36 would have been a feasible precaution that would have substantially reduced the hazard to Bomac's employees. Industrial Hygienist Di Tommasso offered his detailed opinion on the type and number of devices [*26] that should have been provided to protect employees in the event it was necessary for them to attempt to rescue a co-worker overcome by H[2]S. He also testified concerning the availability of these devices in other work environments where the possibility of exposure to H[2]S is present. Specifically, Di Tommasso testified that self-contained breathing apparatus (positive pressure, supplied air system) would provide effective protection against H[2]S in the atmosphere and that he would recommend the use of these devices for persons engaged in emergency rescue attempts. n15

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n15 Di Tommasso's opinions are supported by statements in the Secretary's exhibits, e.g., Exh. C-1 at pp. 3 and 5 and Exh. C-17 at pp. 104-105.

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In response, Bomac offered the testimony of Safety Director Goolsby. Goolsby suggested various problems, including the possibility that respirators would be stolen or damaged. He further suggested that respirators would be an impractical and unreliable means of protecting employees against H[2]S at [*27] a drilling rig. His conclusion was that respirators primarily provided "a kind of a false security."

II

In his decision in Docket No. 76-450, Judge Morris found that the well at Rig No. 36 had been excavated to a depth of 13,236 feet by the date of the inspection and that it was eventually drilled to a total depth of 14,125 feet. Neither H[2]S nor oil was encountered during the drilling project. He further found that the workers at Rig. No. 36 were not provided with self-contained breathing apparatus.

In addition, the judge entered findings that "[a]n exploratory oil well driller in the Williston Basin is likely to encounter H[2]S in association with natural gas and oil when drilling into one of the producing formations such as the Madison "(Finding of Fact 4) and that this driller "may also encounter H[2]S" in the Tyler formation (Finding of Fact 5). He also found that H[2]S may be transported to the surface in the drilling mud and that it can only be detected after it reaches the surface. Nevertheless, the drilling mud at Rig No. 36 was not sufficiently alkaline to completely neutralize H[2]S; instead, the drilling mud would only have controlled approximately half of the [*28] H[2]S if H[2]S had been encountered (Findings of Fact 8 and 9). The judge further found that the H[2]S detector at Rig No. 36 was being repaired and was not operable on the date of the inspection. Based on these findings, Judge Morris concluded that the workers on the drilling rig could have been "exposed to an amount of H[2]S equivalent to 2 percent by volume or 20,000 ppm" (Conclusion of Law 5).

In reaching this conclusion, the judge rejected Bomac's contentions that the Secretary's case was "pure speculation" and that no harmful concentration of H[2]S could have escaped without advance warning. He responded that the record establishes a "likelihood" that a driller in the area "will contact H[2]S" and "indicates the manner of the H[2]S escaping in close proximity to the rig." He further responded that H[2]S could have escaped without advance waring because the H[2]S detector was inoperable. He concluded as follows:

The law does not require an initial fatality or accident before precautions are taken. The keystone of the Act is preventability [citation omitted]. Drilling in these circumstances requires the operator to anticipate what may occur.

Based on a review of Exhibits [*29] C-1,2,3,4,7,8, and 16, Judge Morris found and concluded that exposure to H[2]S in a concentration of 2% constitutes a hazard recognized in the oil and gas drilling industry that is likely to cause death or serious injury (Finding of Fact 16, Conclusion of Law 6). He therefore affirmed the modified citation alleging a violation of section 5(a)(1) of the Act.

In his decision in Docket No. 76-450, Judge Morris also reaffirmed two earlier rulings with respect to the amendment of the pleadings. The citation issued to Bomac alleged an other than serious violation of the Act based on noncompliance with 29 C.F.R. 1926.103(a)(1) in that there were no gas masks available for use in the event H[2]S was encountered. n16 A penalty of $35 was proposed. In his complaint, the Secretary sought to amend this charge by alleging that Bomac's failure to comply with section 1926.103(a)(1) was a "serious" violation as defined in section 17(k) of the Act and by proposing a penalty of $600. Bomac objected to both parts of this amendment in its answer to the complaint. Twenty-five days after the filing of the answer, the Secretary filed a motion to amend the complaint to allege in the alternative that [*30] the conditions described in the citation constituted a violation of section 5(a)(1) of the Act. Bomac also objected to this amendment. In an order issued less than three months after the citation was issued and more than three months prior to the commencement of the hearing, Judge Morris granted the Secretary's motions to amend the citation to change the classification of the violation from other than serious to serious and to allege a violation of section 5(a)(1) in the alternative. He denied the Secretary's motion to amend the proposed penalty. At the hearing, the judge granted, over Bomac's objection, a further motion by the Secretary to amend the description of the violation to include an allegation that Bomac failed to make self-contained breathing apparatus available at the worksite in the event H[2]S was encountered.

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n16 The cited standard is published in Part 1926 - Safety and Health Regulations for Construction. It provides:

1926.103 Respiratory Protection.

(a) General (1) In emergencies, or when controls required by Subpart D of this part either fail or are inadequate to prevent harmful expoure to employees, appropriate respiratory protective devices shall be provided by the employer and shall be used.

[*31]

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In his decision, Judge Morris reaffirmed his denial of the Secretary's motion to increase the proposed penalty, stating that to permit this amendment would result in a "chilling effect" on the rights of employers to contest a citation. However, he further noted that the Commission may increase a penalty proposed by the Secretary because the "statutory authority [to assess penalties] rests solely in the Commission." Nevertheless, he "perceive[d] no reason to increase the civil penalty herein" and accordingly assessed the proposed penalty of $35.

Judge Morris also reaffirmed his granting of the motion to amend the citation to allege in the alternative a violation of section 5(a)(1), relying upon "the liberal amendment philosophy embodied in Federal Rule 15" and Commission decisions applying that rule. He found no indication that Bomac was prejudiced by allowing the amendment. He also rejected Bomac's contention that the amendment was inappropriate because the Secretary was relying upon section 5(a)(1) to fill the gap created by the Secretary's failure to draft specific standards for the oil and gas [*32] industry. The judge concluded that "[n]o statutory mandate requires a set of particular regulations for the oil and gas production industry." Moreover, While Judge Morris sustained the alternative allegation that Bomac violated section 5(a)(1), he vacated the original allegation that Bomac failed to comply with section 1926.103(a)(1). He concluded that the cited standard and the other standards published in Part 1926 do not apply to the oil and gas production industry because it "is not the construction industry."

In addition, Judge Morris noted the affirmative defenses raised by Bomac in its answer to the amended complaint. Bomac asserted that it was being deprived of its right to trial by jury of the penalty issue in violation of the Seventh Amendment to the United States Constitution because the proposed penalty exceeded $20; or that alternatively it was being deprived of its right to trial by jury in violation of the Sixth Amendment to the Constitution because the penalty sought "is in the nature of a criminal fine". Moreover, Bomac claimed that the inspection conducted violated its rights under the Fourth Amendment to the Constitution because it was conducted without first [*33] obtaining Bomac's informed consent or a search warrant. Finally, Bomac contended that the Secretary's failure to promulgate occupational safety or health standards for the oil and gas industry deprived Bomac of its right to due process of law under the Fourteenth Amendment to the Constitution. Bomac later revised this fourth affirmative defense to assert that the due process rights violated were those guaranteed by the Fifth Amendment rather than by the Fourteenth Amendment.

In his decision in Docket No. 76-450, Judge Morris concluded that the Commission lacks authority to rule on Bomac's assertions under the Fourth, Sixth and Seventh Amendments. However, he "noted that the facts in the case do not support the 4th Amendment argument." The judge did not expressly discuss Bomac's assertion under the Fifth Amendment. In another context, he rejected Bomac's underlying contention that the Secretary is obligated to promulgate specific standards for the oil and gas industry.

In Docket No. 76-2131, Judge Morris affirmed a modified citation which alleged that Montgomery violated section 5(a)(1) of the Act in that "there was no self-contained breathing apparatus available at this wildcat [*34] drilling site for use in emergencies and/or to prevent employees from exposure to hydrogen sulfide." He noted the stipulation between the Secretary and Montgomery that the material facts as found by him in No. 76-450 would be deemed the material facts in No. 76-2131. Accordingly, he attached a copy of his decision and order in No. 76-450 to his decision and order in No. 76-2131 and concluded that the findings established a violation of section 5(a)(1) for the reasons stated in that decision. He noted that the penalty issue discussed in No. 76-450 was not present in No. 76-2131 because the penalty proposed in the notification of proposed penalty issued to Montgomery was $550. The complaint amended this proposal and sought a penalty of $500. Considering the criteria set forth in section 17(j) of the Act, 29 U.S.C. 666(i), and emphasizing the gravity of the violation, Judge Morris assessed the $500 penalty proposed in the complaint.

Following the issuance of Judge Morris's decisions, both Bomac and Montgomery filed petitions for discretionary review and supporting memoranda. Both Respondents took exception to Findings of Fact 4, 5, 8, 9 and 16, supra, and Conclusions of Law [*35] 5 and 6, supra. The Respondents contend that the Secretary failed to prove that their employees were exposed to a hazard causing or likely to cause death or serious physical harm. They argue that their industry would not have recognized the existence of a hazard at their workplaces and that any hazard to their employees from H[2]S was eliminated by the procedures they followed and the precautions they had taken. Furthermore, Bomac and Montgomery argue that the Secretary failed to prove the feasibility and likely utility of making self-contained breathing apparatus available as a precaution against exposure to H[2]S. In addition, the Respondents incorporated by reference portions of Bomac's trial brief where Bomac argued that amendment of the citation to allege a violation of section 5(a)(1) of the Act was improper and that its defenses under the Constitution should be sustained.

III

In order to establish a section 5(a)(1) violation, the Secretary must show that an employer failed to render its workplace free from a hazard that is recognized, the occurrence of an incident was reasonably foreseeable, and the likely consequence in the event of an incident was death r serious [*36] physical harm to its employees. Pratt & Whitney Aircraft, Division of United Technologies Corp., 80 OSAHRC 38/A2, 8 BNA OSHC 1329, 1980 CCH OSHD P24,447 (No. 13591, 1980), aff'd in pertinent part, No. 80-4102 (2d Cir. April 20, 1981). The Secretary must also demonstrate that there were feasible means available to abate the hazard. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). The Respondents contend in effect that the Secretary has not established any of these elements.

The Respondents contend that the hazard at issue was not "recognized" within the meaning of section 5(a)(1). They concede that their industry "recognizes that if an employee is exposed to a sufficient quantity of H[2]S in concentrations of 20,000 ppm (2% by volume), there is a hazard likely to cause death or serious injury." However, they take exception to Finding of Fact 16 "to the extent that it constitutes a finding that the industry recognizes a hazard that workers on BOMAC's Rig No. 36 could be exposed to an amount of H[2]S equivalent to 2 percent by volume or 20,000 ppm." They also take exception to the related Conclusion of Law 6, supra. Citing "the fact [*37] that it was not industry practice to provide gas masks during drilling operations in North Dakota," they argue that the record "strongly supports the conclusion that the industry did not recognize the hazard found by the Law Judge."

The alleged hazard in the cases before us is employee exposure to H[2]S. The Respondents correctly concede that their industry recognizes a hazard if employees are exposed to H[2]S in a 2% concentration. In fact, the record establishes industry recognition of a hazard when employees are exposed to a concentration far less than 2%. n17 We therefore conclude that the Secretary established the first element of his case, that is, that the hazard at issue is "recognized" within the meaning of section 5(a)(1).

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n17 Industrial Hygienist DiTommasso testified without contradiction that H[2]S in a concentration of 0.5% (1/4 of 2%) is almost instantaneously lethal. Exhibit C-8, a publication of the American Petroleum Institute, establishes that H[2]S in a concentration of 0.05% (1/40 of 2%) causes breathing to cease in a few minutes and creates a need for prompt artificial respiration. Moreover, Bomac employee Brandt testified that instructions were issued to evacuate the drilling rig if H[2]S in a concentration of 0.005% (1/400 of 2%) escaped into the atmosphere surrounding the drilling rig. It is therefore clear that exposure to H[2]S in a concentration far less than 2% creates a danger of death or serious physical harm. Accordingly, to the extent the arguments of the Respondents are focused solely on the possibility of exposure to H[2]S in a concentration of 2%, those arguments are misdirected.

[*38]

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The Respondents' contention that their industry would not have recognized that the hazard of employee exposure to H[2]S was present at their worksites at the time of the alleged violations is misdirected. Under section 5(a)(1) case law, the "hazard" that must be "recognized" is not a particular set of circumstances at a specific location and specific point in time but rather the broader, more generic or general hazard. See, e. g., Continental Oil Co. v. OSHRC and Secretary, 630 F.2d 446, 448 (6th Cir. 1980) (Continental ". . . contends that to establish a 'recognized hazard' the Secretary must demonstrate that some action that Continental did or did not take is recognized as hazardous in the industry. However, Continental's admitted knowledge of the dangerous potential of spilled petroleum products is sufficient to establish a 'recognized hazard.'"); General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453, 459 (1st Cir. 1979) ("Even though an accident may occur because of unforeseeable events, a violation of the general duty clause may exist if the [*39] employer failed to take precautionary steps to protect its employees from the occurrence of the general hazard -- here the hazard of an unsupported web frame."); Beaird-Poulan, a Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1229, 1979 CCH OSHD P23,493 at p. 28,459 (No. 12600, 1979) ("A recognized hazard is not defined in terms of the absence of appropriate abatement measures. A recognized hazard is a condition or practice. . . known. . . to be hazardous. . ."). n18

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n18 An examination of Commission precedent under section 5(a)(1) in terms of the manner in which the "recognized hazard" at issue has been described is illustrative of the general nature of the hazard. E.g., Brown & Root, Inc., Power Plant Div., 80 OSAHRC    , 8 BNA OSHC 2140, 2143, 1980 CCH OSHD P24,853 at p. 30,655 (No. 76-1296, 1980) ("the possibility of being struck by falling objects"); Pratt & Whitney Aircraft, Div. of United Technologies Corp., supra, 8 BNA OSHC at 1335, 1980 CCH OSHD at p. 29,825 ("the formation of significant quantities of hydrogen cyanide gas"); Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1750, 1979 CCH OSHD P23,914 at p. 28,997 (No. 15169, 1979), petitions for review filed, Nos. 79-7622 & 79-7628 (9th Cir. Nov. 26 & 27, 1979) ("[equipment] rollover"); Noble Drilling Corp., 78 OSAHRC 96/C12, 6 BNA OSHC 2108, 2110, 1978 CCH OSHD P23,157 at p. 28,012 (No. 15405, 1978) ("blowouts [during drilling operations]").

Also illustrative and particularly relevant to the cases on review is the Commission's decision in Baroid Div., NL Indust., Inc., 79 OSAHRC 45/A9, 7 BNA OSHC 1466, 1979 CCH OSHD P23,661 (No. 16096, 1979), pet. for review filed, No. 79-1775 (10th Cir. Aug. 16, 1979). In that case, we concluded that the Secretary established his burden of proving the "recognized hazard" element of an alleged section 5(a)(1) violation because "[t]he petroleum industry generally, and respondent specifically, recognize that the accumulation of natural gas near a drilling rig creates fire and explosion hazards." 7 BNA OSHC at 1469, 1979 CCH OSHD at p. 28,688. We rejected the employer's implied contention that the Secretary had the burden of proving "that the petroleum industry recognizes the failure to use a [gas] separator as hazardous," stating that "the alleged hazards are fire and explosion, both of which were created by the accumulation of gas near the drilling rig" and further that "[u]se of a gas separator was merely one method of avoiding or minimizing the allegedly hazardous conditions." 7 BNA OSHC at 1468, 1979 CCH OSHD at p. 28,688.

[*40]

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In any event, the industry publications offered into evidence by the Secretary establish that the industry recognizes that employees are exposed to a hazard when the presence of H[2]S is merely suspected. Specifically, the industry recognizes a hazard in drilling operations "where hydrogen sulfide may be encountered" (Exhibit C-8, emphasis added). Based on our finding, infra, that H[2]S could have been encountered during the cited drilling operations, we conclude that the Respondents' industry would have recognized that the Respondents' employees were exposed to a hazard from H[2]S at their places of employment. We therefore reject the Respondents' exceptions to Finding of Fact 16 and Conclusion of Law 6. The judge correctly found and concluded that the Respondents' employees were exposed to a hazard recognized by the oil and gas industry, including drilling contractors within the industry.

We further conclude that the Respondents' argument based on alleged industry practice is without merit. In Beaird-Poulan, a Division of Emerson Electric Co., supra, we stated:

A recognized [*41] hazard is not defined in terms of the absence of appropriate abatement measures. A recognized hazard is a condition or practice in the workplace that is known by the industry in general or by the employer in particular to be hazardous, see Empire Detroit Steel Div., Detroit Steel Corp. v. OSHRC,, 579 F.2d 378, 383 (6th Cir. 1978); National Realty & Construction Co., Inc. v. OSHRC, supra at 1265 n. 32, that gives rise to an employer's abatement responsibilities under the Act.

7 BNA OSHC at 1229; 1979 CCH OSHD at p.28,459. We further stated:

Compliance with the Act may require methods of protection of a higher standard than industry practice. Continental Oil Company, 78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1978 CCH OSHD P22,903 (No. 1829, 1978); Southern Railway Co., 75 OSAHRC 88/C2, 3 BNA OSHC 1657, 1975-76 CCH OSHD P20,091 (No. 5960, 1975), appeal withdrawn, No. 75-2493 (6th Cir. June 4, 1976). As the court in National Realty & Construction Co., Inc. v. OSHRC, supra, recognized, "[t]he question is whether a precaution is recognized by safety experts as feasible, not whether the precaution's use has become customary." 489 F.2d [*42] at 1266 n. 37.

Id. We therefore reject the Respondents' contention that their industry did not recognize the hazard at issue because the industry practice was not to provide respiratory protective devices during drilling operations.

IV

The Respondents also contend in essence that the Secretary did not meet his burden of proving that they failed to render their workplaces "free" from the recognized hazard of exposure to H[2]S. Initially, the Respondents take exception to the judge's findings to the effect that H[2]S could have been encountered during their drilling operations, i.e., Findings of Fact 4 and 5, supra, and that a portion of any H[2]S encountered could have been transported to the surface in the drilling mud circulated through the drill holes, i.e., Findings of Fact 8 and 9, supra. In addition, relying heavily on the drilling procedures that they followed and the precautions they assertedly took to protect employees from H[2]S, the Respondents essentially argue that these "engineering and administrative controls" eliminated the hazard, if any, created by the presence of H[2]S in the Williston Basin. Finally, the Respondents also take exception to [*43] Conclusion of Law 5, which states that workers on their drilling rigs could have been "exposed to an amount of H[2]S equivalent to 2 percent by volume or 20,00 ppm."

The evidence offered by both parties establishes that H[2]S is present throughout the Williston Basin in scattered locations and varying concentrations. It further establishes that, if a drilling contractor in the Williston Basin is successful in locating oil and natural gas, H[2]S may be mixed in with those substances. Indeed, H[2]S is found in approximately 1 out of 3 of the known producing fields. In addition, the record establishes that a drilling contractor can only predict with reasonable certainty the depths where H[2]S may be encountered. It cannot predict the concentration of that H[2]S or the absence of H[2]S during a specific drilling operation.

The record also demonstrates that the general data regarding drilling and geological conditions in the Williston Basin is applicable to the particular drilling operations involved here. The Respondents commenced their drilling operations after receiving a prognosis that indicated that there was a reasonable possibility that they would find oil and natural gas [*44] -- a possibility that was considered sufficient to warrant the financial investment in the operations. The record establishes that their assessments as to the possibility of encountering oil and natural gas were based upon known facts and reasonable predictions concerning the presence of oil and natural gas in the area. There is no indication that the possibility of encountering H[2]S in conjunction with oil and natural gas was any less at the locations involved here than at other locations in the Williston Basin.

We therefore independently enter a finding that the Respondents could have encountered H[2]S during their drilling operations. n19 See Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. den., 425 U.S. 903 (1976); Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951 at 1954, 1978 CCH OSHD P23,033 at p. 27,841 (No. 16162, 1978) (Commission can enter findings of fact). There is nothing unique to the location of the Respondents' worksite that rendered it free of the hazard of employee exposure to H[2]S.

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n19 The Respondents take exception to the judge's findings concerning the possibility that H[2]S could have been encountered during their drilling operations, i.e., Findings of Fact 4 and 5, supra. Because we do not rely on Findings of Fact 4 and 5, but instead enter our own finding, it is not necessary to rule on these exceptions. We note, however, that our finding is not based on the Madison and Tyler formations because drilling had proceeded well below those formations by the time of the inspections and the Tyler formation was not considered to be a prospective producing formation in the areas in question. The important fact is that, by the time of the inspections, the Respondents had already drilled through several formations that were characterized in the prognosis as potential producing formations. These formations were also characterized by the geologists who testified as being among the most likely producers of oil, natural gas, and H[2]S. See notes 6 and 7 supra. We further note that it was unnecessary to state Finding of Fact 4 in terms of a "likelihood" of encountering H[2]S. As discussed in part V, infra, the relevant inquiry is whether encountering H[2]S was "reasonably foreseeable."

[*45]

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We agree with Judge Morris that it is irrelevant that the Respondents did not in fact encounter oil, natural gas, or H[2]S. As stated by the U.S. Court of Appeals for the Eighth Circuit:

Neither the general duty clause nor section 17(k) requires any actual death or physical injury for a violation to occur. A violation occurs whenever an employer fails to take reasonable precautionary steps to protect his employees from reasonably foreseeable "recognized hazards" that are causing or are likely to cause death or serious physical injury. (emphasis supplied by the court)

Brennan v. OSHRC and Vy Lactos Laboratories, Inc; 494 F.2d 460, 463 (8th Cir. 1974). n20

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n20 We note that the citation in Vy Lactos alleged a violation of section 5(a)(1) and resulted from an incident involving employee exposure to H[2]S. That incident was described in the Commission's decision as follows:

The employees descended the basement steps and almost immediately experienced extreme difficulty in breathing. Two employees succumbed and rescue efforts were immediately attempted by other employees. None of the employees were equipped with personal protective equipment, i.e., self-contained oxygen systems. Ultimately, firemen equipped with such systems removed five employees from the basement. Three of the employees were dead and two were unable to testify at this hearing due to the protracted effects of the incident.

Vy Lactos Laboratories, Inc; 73 OSAHRC 6/A2, 1 BNA OSHC 1141, 1142, 1971-73 CCH OSHD P15,488 at p. 20,773 (No. 31, 1973).

The Commission majority noted in its decision that "[t]here is no question that hydrogen sulfide gas can be and is dangerous to life." 1 BNA OSHC 1143 n. 2, 1971-73 CCH OSHD at p. 20,774 n.2. However, it vacated the citation on the ground that the Secretary had failed to prove industry recognition of the hazard. In a vigorous dissent, former Commissioner Burch discussed in detail the known effects on humans of exposure to H[2]S and concluded that "[t]he dangers in exposure to concentrations of hydrogen sulfide gas are too serious and too well known not to provide some means of protecting employees who might be exposed." 1 BNA OSHC 1144, 1971-73 CCH OSHD at p. 20,775.

The appellate court reversed the Commission's decision and remanded for a determination of whether the employer had actual knowledge of the hazard. After stating that employers have a duty under section 5(a)(1) to protect their employees against "reasonably foreseeable" hazards, supra, it concluded: "Thus, even if the three deaths and two serious injuries involved here were actually the result of an unforeseeable chemical reaction [as asserted by the employer], Vy Lactos may still have been in violation of the general duty clause because of its self-admitted failure to take any precautionary steps whatsoever to protect its employees from the hazard of hydrogen sulfide accumulations that is now apparent." 494 f.2d at 463.

It is clear that Vy Lactos strongly supports the Secretary's theory and allegations in the cases before us.

[*46]

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The Respondents rely upon the following "engineering and administrative controls" as the basis of their implied contention that the hazard, if any, had been eliminated: the drilling prognosis, the drilling mud, the tests conducted by the mud technologist, the blowout preventer, the drill stem testing, and the mechanical H[2]S detector. However, the record establishes that none of these procedures or precautions eliminated the hazard at the worksites. Furthermore, the combination of these procedures and precautions did not eliminate the hazard.

The record establishes that a prognosis can be an effective predrilling device to predict the depths and formations where H[2]S may be encounted and to plan precautions to be taken when those levels are reached. However, there is no indication in the record that the Respondents used the prognosis as a device to plan precautions for implementation if H[2]S were encountered during the drilling operations at issue. Moreover, while the Respondents took some actions after reaching the prospective producing zones to determine whether oil, natural gas, or H[2]S was [*47] present in the zones, there is no indication that they took any special precautions when they reached these zones to prevent H[2]S from escaping to the surface in the drilling mud. In addition, the prognosis cannot be used as a device to predict the H[2]S concentrations that may be encountered or to predict that H[2]S will not be encountered. We therefore conclude that the prognosis had no effect on the hazard at issue in these cases.

The Secretary established the general proposition that H[2]S encountered during a drilling operation can be transported to the surface in the drilling mud circulated through the hole. He further established that the H[2]S can then escape into the atmosphere surrounding the drilling rig, thereby exposing the employees to hazardous concentrations of H[2]S. The Respondents attempted to rebut this evidence by proving that any H[2]S encountered would have been contained in the hole because of the weight and chemical composition of the drilling mud. Nevertheless, the testimony of the Respondents' own witness, Harley Bush, establishes that the drilling mud at the worksites in question would have contained only part of any H[2]S encountered and that the [*48] Respondents did not have available at the worksites the chemical additives necessary to effectively control any H[2]S encountered.

The record evidence concerning drilling mud establishes that a drilling mud program can be developed that will effectively control most amounts and concentrations of H[2]S encountered -- the major exception being an oil or gas deposit that causes a blowout. However, there is no indication in the record that the Respondents developed this type of mud program for these drilling projects. Although the Respondents added alkaline substances to the drilling mud, these were not added for the purpose of controlling any H[2]S encountered. Moreover, these chemicals were not added in sufficient quantities to neutralize any H[2]S that might have been encountered. Furthermore, the Respondents did not even have available at the drilling sites those chemicals recognized as the most effective components of drilling mud to control H[2]S. The Respondents' reliance on the weight of the drilling mud is misplaced. The testimony of their own witnesses supports the Secretary's evidence that H[2]S can percolate through the drilling mud into the atmosphere.

Judge Morris [*49] found that the drilling mud used by the Respondents would have controlled only approximately 1/2 of the H[2]S if any had been encountered because the drilling mud used by the Respondents was not sufficiently alkaline to neutralize the H[2]S. These findings, Findings of Fact 8 and 9, are supported by the unrebutted testimony of Laboratory Section Leader Bush. We therefore reject the Respondents' exceptions to those findings. The record establishes that, if the Respondents had encountered H[2]S during their drilling operations, some portion of that H[2]S could and probably would have been transported to the surface in the drilling mud. The Respondents failed to develop or implement a drilling mud program sufficient to prevent the transporting of H[2]S to the surface.

The Respondents argue that, if any H[2]S had been encountered, it would have been detected by the mud technologist, who would then have altered the drilling mud to prevent the escape of H[2]S into the atmosphere. It is clear that this chain of events might have occurred. However, it is also clear that reliance on the mud technologist was far from an effective precaution. The Respondents overlook the facts that the [*50] mud technologist was only present at the drilling sites for a period of two hours per day and that the H[2]S could only have been detected after it had already reached the surface in the drilling mud. Moreover, the mud technologist could not have determined from his routine tests the quantity of chemical additives necessary to control the H[2]S encountered. Furthermore, even if the mud technologist had discovered the presence of H[2]S, it is questionable whether he would have been able to treat the drilling mud in time to eliminate the hazard, particularly if oxidizing chemicals had been needed.

The defects in the blowout preventer, the periodic drill stem tests, and the mechanical H[2]S detector as precautions against exposure to H[2]S are obvious. The blowout preventer is designed and used as a response to blowouts. It presumably would not be used if the H[2]S were merely brought to the surface gradually in the drilling mud. In this situation there would be no "kick" alerting employees to the necessity of activating the preventer. Even if it were activated, it would have no effect on H[2]S already in the atmosphere. Drill stem tests only reveal the presence of H[2]S in the [*51] formation that is being tested. They have no effect on the hazard of exposure to H[2]S during the lengthy intervals between tests. Regarding the mechanical H[2]S detector, the record establishes that this probably was the most effective precaution relied upon by the Respondents. However, the Respondents did not refute the Secretary's evidence that the monitor was not operative at the time of the inspections. In fact, there is no evidence that the device was ever in place and fully operative at any time during the operations. The record establishes only that it was ordered and partially installed prior to the inspections. At the time of the inspections, the driller was not even aware that the rig was equipped with the detector even though he assertedly had the responsibility for shutting in the well if a specified concentration of H[2]S were indicated on the detector.

Judge Morris found that any H[2]S that passed through the drilling mud could not have been detected until it reached the surface and that advance warning that a hazardous concentration of H[2]S was accumulating around the drilling rigs would not have been provided because the H[2]S detector was inoperable. The [*52] Respondents have not taken exception to these findings and they are supported by the record. Accordingly, we reject the Respondents' contention that the "engineering and administrative controls" rendered their workplaces "free" from the hazard created by their drilling operations. n21

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n21 The Respondents take exception to Conclusion of Law 5 stating that workers on the drilling rigs could have been "exposed to an amount of H[2]S equivalent to 2 percent by volume or 20,000 ppm." The record establishes that concentrations of H[2]S far in excess of 2% are present at scattered locations throughout the Williston Basin. Given Findings of Fact 8 and 9 that approximately half of any H[2]S encountered would have escaped into the atmosphere and the additional fact that the volume and concentration of H[2]S could not have been predicted before the encounter, we conclude that a concentration of H[2]S as great as 2% or even greater could have resulted from the escape of H[2]S into the atmosphere surrounding the drilling rigs. In any event, the record clearly supports the conclusion that a volume and concentration of H[2]S that would have caused death or serious physical harm could have resulted from the escape of H[2]S into the work environments. See note 17 supra.

[*53]

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We further reject the Respondents' contention that the Secretary failed to prove that their employees were exposed to the recognized hazard at issue. We conclude that the Secretary sustained his burden of proving the second element of the alleged violation, that is, that the Respondents did not provide their employees workplaces that were "free" from the recognized hazard of exposure to H[2]S.

V

The Respondents' next contention is that the Secretary has failed to prove that their employees were exposed to a hazard that was "causing or likely to cause death or serious physical harm." They concede that, "if an employee is exposed to a sufficient quantity of H[2]S in concentrations of 20,000 ppm (2% by volume), there is a hazard likely to cause death or serious injury." However, they contend "that the evidence . . . does not support the finding of a potential of such an exposure to [their employees]." They describe the Secretary's case as "pure speculation" establishing only "a remote hypothetical possibility" that their employees would be exposed to H[2]S if the following unlikely chain of events should [*54] occur: if H[2]S had been encountered, and if the concentration, quantity and pressure of such H[2]S at Point of encounter had been such that it might have constituted a serious threat to BOMAC employees at the surface, and if BOMAC'S administrative and engineering controls had failed, thereby allowing H[2]S to surface and reach BOMAC employees in harmful concentrations and quantities and without advance warning, then, and only then, could there have been a hazard to BOMAC employees on Rig No. 36 on [the date of the inspection] (emphasis supplied by the Respondents).

They contend that this possibility "is beneath the application and without the reach of the general duty clause [section 5(a)(1)]," implicitly arguing that the Secretary has the burden under section 5(a)(1) of proving a probability or likelihood that conditions leading to serious or fatal injury or illness will arise if exposure to the hazard continues.

We rejected a similar contention in Pratt & Whitney Aircraft, Division of United Technologies, Inc., supra. n22 In that case, we held that an employer violates section 5(a)(1) of the Act when it fails to provide a workplace free from a [*55] recognized hazard that is causing or is likely to cause death or serious physical harm in the event of a hazardous incident. We indicated that the Secretary sustains his burden if he establishes that an incident is "reasonably foreseeable" and the likely consequence in the event of an incident would be death or serious physical harm to employees. We expressly stated that the occurrence of an incident need not be likely. We therefore reject the Respondents' contention in the instant cases that the Secretary has the burden of proving a probability that exposure to a recognized hazard will result in a hazardous incident. Cf. Noble Drilling Corporation, 78 OSAHRC 96/C12, 6 BNA OSHC 2108, 1978 CCH OSHD P23,157 (No. 15405, 1978) (section 5(a)(1) requires employer to take precautions against a blowout "[e]ven though the chance of a blowout was small").

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n22 Acting Chairman Barnako dissented from the majority's conclusion in Pratt & Whitney that the employer had violated section 5(a)(1) of the Act. The basis of this dissent was Acting Chairman Barnako's conclusion that the occurrence of a hazardous incident was not reasonably foreseeable in the circumstances presented by that case. Nevertheless, he expressly agreed in Pratt & Whitney with the interpretation of section 5(a)(1) that was set forth in the lead decision in that case and that is now applied in the cases on review.

[*56]

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The hazard confronting the employees in the cases under review is exposure to hydrogen sulfide gas. The hazardous incident that could result in this exposure is the release into the atmosphere surrounding the drilling rigs of H[2]S in a hazardous volume and concentration and the subsequent attempt by employees to rescue co-workers overcome by H[2]S. The Respondents correctly concede that the likely consequence of this type of incident, if it occurred, would be death or serious physical harm. Therefore, the Respondents' employees were exposed to a hazard "likely to cause death or serious physical harm" within the meaning of aection 5(a)(1) if, at the time of the inspections, the occurrence of this incident was reasonably foreseeable.

In part IV of this opinion, supra, we determined that: (1) the Respondents could have encountered H[2]S during their drilling operations, (2) H[2]S could have been transported to the surface in the drilling mud, (3) H[2]S could have escaped without advanced warning into the atmospheres surrounding the drilling rigs despite the administrative and engineering controls [*57] relied upon by the Respondents, and (4) the escaping H[2]S could have created harmful concentrations of the gas that would have endangered employees working around the drilling rigs. The issue now before us is whether that incident was reasonably foreseeable at the time of the alleged violations. We conclude that it was.

Initially, we conclude that it was reasonably foreseeable that H[2]S could be encountered while drilling a "wildcat well," see note 3 supra, in the Williston Basin. The foreseeability of encountering oil or natural gas is self-evident inasmuch as that is the objective of the drilling operation. Given the frequency and the sporadic nature of the occurrence of H[2]S in the Williston Basin, it is also clearly foreseeable that H[2]S might be encountered in conjunction with the oil or natural gas.

We further conclude that it is reasonably foreseeable that H[2]S, if encountered, could be transported to the surface in drilling mud like that used at the drilling rigs in question. The chemicals added by the Respondents to the drilling mud were not added for the purpose of controlling H[2]S. As for the precautions assertedly taken by the Respondents to protect their [*58] employees from exposure to H[2]S, we note again the defects in those precautions as set forth in part IV of this opinion, supra. Having concluded that reliance upon the "administrative and engineering controls" at issue in these cases might not prevent H[2]S from escaping into the atmosphere surrounding the drilling rigs without advanced warning, we conclude that release of H[2]S was reasonably foreseeable. n23

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n23 Indeed, we further conclude that the Respondents actually foresaw that their employees could be exposed to H[2]S during the drilling operations in question. We base this conclusion on the Respondents' own evidence that they took daily tests to determine whether H[2]S was present in the drilling mud, installed (at least partially) a mechanical H[2]S detector to indicate whether any H[2]S was escaping into the atmosphere, and issued instructions to have the drilling rigs evacuated if H[2]S in a concentration of 0.005% was detected.

We note the inherent contradiction in the Respondents' assertions, on the one hand, that they implemented "administrative and engineering controls" to protect their employees from exposure to H[2]S and, on the other hand, that the possibility of this exposure was so remote and hypothetical as to be beyond the scope of section 5(a)(1).

[*59]

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Finally, we conclude that the escape of H[2]S into the atmosphere surrounding a drilling rig in a concentration that would endanger employees in the area, including employees attempting to rescue co-workers overcome by H[2]S is reasonably foreseeable. n24 The Secretary presented evidence of several incidents in which employees died, suffered serious physical harm or were endangered while attempting to rescue co-workers overcome by H[2]S. Although none of these incidents occurred during a drilling operation, all of them occurred within the oil and gas industry and some of them occurred at drilling rigs. In addition, Industrial Hygienist DiTommasso testified that incidents where an employee is overcome by H[2]S while attempting to rescue a coworker are "quite common." Finally, the Secretary introduced into evidence industry publications that discuss the necessity of providing protection for employees who attempt to rescue co-workers overcome by H[2]S. These publications further indicate industry awareness of the possibility of such occurrences. Given the facts that concentrations of H[2]S far in excess [*60] of 2% are present at scattered locations throughout the Williston Basin, that the volume and concentration of any H[2]S encountered cannot he predicted before the encounter, and that a concentration of only .5% is instantaneously lethal, it is foreseeable that, if H[2]S escapes into the atmosphere, a concentration of the gas could be created that would endanger employees working near the drilling rig. Moreover, in view of the industry's awareness of incidents involving rescue attempts, it is reasonably foreseeable that employees might be endangered while attempting to rescue co-workers overcome by H[2]S.

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n24 Resolution of this issue is necessary because our view of the record leads us to conclude that this was the particular aspect of the overall hazard that primarily concerned the Secretary. Thus, the precautionary measure recommended by the Secretary was self-contained breathing apparatus for use by employees attempting to rescue co-workers overcome by H[2]S. We discuss in part VI, infra, the issue of whether the Secretary met his burden of proving the feasibility and likely utility of this suggested means of abatement.

[*61]

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In sum, we reject the Respondents' contention that the Secretary failed to prove their employees were exposed to a hazard "likely to cause death or serious physical harm." We conclude that the employees could have come into contact with H[2]S in a volume and concentration that would have caused death or serious physical harm. We further conclude that the occurrence of an incident that would have resulted in employee exposure to H[2]S was reasonably foreseeable at the time of the inspections.

VI

The Respondents' final contention relating to the merits of the alleged violation is that the Secretary failed to establish the feasibility and likely utility of making self-contained breathing apparatus available at their drilling rigs as a means of eliminating the hazard created by their drilling operations. Judge Morris made no finding on this issue. Having reviewed the record, we find that the Respondents could have substantially reduced the hazard to their employees by making this equipment available at their worksites. See Accu-Namics, Inc. v. OSHRC, supra; Asplundh Tree Expert [*62] Co., supra. This finding is supported by the testimony of Industrial Hygientist Di Tommasso and the industry publications offered into evidence by the Secretary. This evidence establishes that the possibility of death or serious injury while attempting to rescue a co-worker overcome by H[2]S is substantially reduced if the rescuer is protected by self-contained breathing apparatus. The record also establishes the feasibility of making these respiratory protective devices available for emergency use at a drilling rig. n25

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n25 The industry publications offered into evidence by the Secretary compel the conclusion that the Respondents' industry recognizes the necessity of making respiratory protective devices available for use in emergency situations at drilling rigs where it is reasonably foreseeable that H[2]S may be encountered. The publications also indicate that the precaution recommended by the Secretary is recognized by safety experts in the Respondents' industry as feasible. See National Realty & Constr. Co., supra, 489 F.2d at 1266 n.37.

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In our view, the rebuttal testimony of Safety Director Goolsby establishes only that self-contained breathing apparatus may not be totally effective and that there are difficulties in maintaining this equipment at a drilling site. "However once he [the Secretary] establishes [that] a means of abatement can be implemented, it is sufficient if that method materially reduces, even though it may not eliminate, the hazard." Whirlpool Corporation, 79 OSAHRC 32/A14, 7 BNA OSHC 1356, 1360, 1979 CCH OSHD P23,552 at p.28,535 (No. 9224, 1979), remanded, No. 79-1692 (D.C. Cir. June 25, 1980). The respondents have not established any persuasive reason why self-contained breathing apparatus cannot or should not be made available at their worksites. Accordingly, we conclude that the Secretary sustained his burden of proving the feasibility and likely utility of the recommended means of abatement.

In sum, we reject the Respondents' contention that the Secretary failed to establish that they violated section 5(a)(1). The Secretary established that the Respondents failed to render their workplaces free from a hazard -- exposure to H[2]S [*64] -- that was recognized both by the Respondents, see note 23 supra, and their industry. The record further establishes that the occurrence of an incident that would have resulted in this exposure -- the release into the atmosphere surrounding the drilling rigs of H[2]S in a hazardous volume and concentration and the subsequent attempt by employees to rescue co-workers overcome by H[2]S -- was reasonably foreseeable. In addition, the Secretary proved that the likely consequence in the event of this incident was death or serious physical harm to employees of the Respondents. Furthermore, the Secretary identified the precaution that the employers should have taken -- the provision of self-contained breathing apparatus for use by employees attempting to rescue co-workers overcome by H[2]S. Finally, the record demonstrates the feasibility and likely utility of this precaution.

Accordingly, we affirm Judge Morris's conclusion that the Respondents violated section 5(a)(1) of the Act.

VII

Bomac contends that Judge Morris erred in granting the Secretary's motion to amend the citation alleging noncompliance with 29 C.F.R. 1926.103(a)(1) by permitting an alternative allegation that [*65] the conditions described in the citation constituted a violation of section 5(a)(1) of the Act. Bomac argues that, "[o]nce the Secretary has issued a citation for violation of a specific standard, he may not thereafter add the general duty clause of the Act as additional, alternative authority for the citation." If further argues that the Secretary should not be allowed to rely upon the general duty clause in the situation before us because the Secretary should not be permitted to thereby evade the consequences of his failure to promulgate a specific standard covering the cited conditions. n26

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n26 It is well settled that it is improper for the Secretary to cite an employer for an alleged violation of section 5(a)(1) when a specific occupational safety or health standard is directed to the hazard at issue. E.g., Brisk Waterproofing Co., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD P16,345 (No. 1046, 1973). We note that 29 C.F.R. 1910.134(a)(2) appears to be applicable to the facts found in the cases before us. That standard states:

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.

However, the Respondents have not contended that they were improperly cited under section 5(a)(1) because a specific standard applies to the cited conditions. In fact, they make the contrary assertion that the Secretary should have but has not promulgated a standard applicable to the cited conditions. Moreover, neither party has had an opportunity to address the question of whether section 1910.134(a)(2) should have been cited. Under these circumstances, we do not conclude that section 5(a)(1) was improperly cited because a specific standard applies to the cited hazard.

[*66]

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These same arguments were presented before Judge Morris and rejected by him. The judge concluded that the amendment was permissible because it was consistent with Commission decisions following "the liberal amendment philosophy embodied in Federal Rule 15." The judge found that there was no indication that Bomac was prejudiced by allowing the amendment, noting that prejudice to the opposing party is "[t]he keystone to the exercise of discretion in determining the propriety of [the] amendment." With respect to the contention that a specific standard should be drafted, the judge concluded that "[n]o statutory mandate requires a set of particular regulations for the oil and gas production industry." Inasmuch as the judge correctly decided these issues, we adopt the judge's conclusions. See Adrian Construction Co., 79 OSAHRC 16/A2, 7 BNA OSHC 1172, 1979 CCH OSHD P23,389 (No. 15414, 1979); Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977). We note that the judge's interpretation and application of Fed. R. Civ. P. 15(a) is consistent with the principles [*67] we have set forth. E.g., P.A.E. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979), aff'd, 637 F.2d 741 (10th Cir. 1980). We also note that alternative pleadings are expressly permitted under Fed. R. Civ. P. 8, which is applicable to Commission proceedings under Commission Rule 2(b), 29 C.F.R. 2200.2(b).

In addition, Judge Morris rejected Bomac's affirmative defenses under the United States Constitution on the ground that the Commission has no authority to rule upon them. We also reject these defenses. In Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442 (1977), the United States Supreme Court held that the provisions of the Act permitting the Commission to assess civil penalties without the aid of a jury trial are not inconsistent with the Seventh Amendment to the United States Constitution. In footnote 15 of its decision, the Court noted that, even if the penalties at issue had been "criminal fines instead of civil fines", "[t]he Sixth Amendment would then govern the employer's right to a jury and under our prior cases no jury trial would be required. Muniz v. Hoffman, 422 U.S. 454, 95 S. Ct. 2178, 45 L. Ed. [*68] 2d 319 (1975)." 430 U.S. at 460. Accordingly the Respondents' contentions have no merit.

In Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), the United States Supreme Court held that section 8(a) of the Act violates the Fourth Amendment to the Constitution "insofar as it purports to authorize inspections without warrant or its equivalent." 436 U.S. at 325. However, in Meadows Industries, Inc., 79 OSAHRC 74/F2, 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, 1979), we held that we will not apply the Court's decision in Barlow's retroactively to cases arising from inspections conducted prior to that decision. For this reason, we reject the Respondents' contention under the Fourth Amendment.

The Respondents finally contend that they have been deprived of due process of law guaranteed by the Fifth Amendment to the Constitution by the Secretary's failure to promulgate specific occupational safety or health standards applicable to the oil and gas industry. We have previously adopted Judge Morris's conclusion that "[n]o statutory mandate requires a set of particular regulations for the oil and gas production industry." For this reason, we reject the Respondents' [*69] contention under the Fifth Amendment.

VIII

It is well-settled that the Commission has the authority and responsibility under the Act to assess an appropriate penalty in light of the criteria specified in section 17(j) of the Act, 29 U.S.C. 666(i). The Commission is not bound by the proposal of the Secretary and may assess a penalty higher than that proposed by the Secretary. See generally, P.A.F. Equipment Company, supra, and the cases cited in part III of that decision. Judge Morris correctly recognized this authority in his decision in Docket No. 76-450. Nevertheless, he assessed a penalty of $35, concluding that there was no reason to increase the Secretary's proposal. We disagree. In Docket No. 76-2131, Judge Morris assessed a penalty of $500 for a violation which by stipulation of the parties is identical to the violation found in No. 76-450. He based this penalty on his evaluation of the record -- the record created in No. 76-450. In light of the criteria specified in section 17(j), we agree with the judge's evaluation in Docket No. 76-2131. We conclude that the same penalty should be assessed against both Montgomery and Bomac.

Accordingly, we modify [*70] the judge's order in Docket No. 76-450 to assess a penalty of $500 for Bomac's violation of section 5(a)(1). As modified, the judge's orders in Docket Nos. 76-450 and 76-2131 are affirmed. n27 IT IS SO ORDERED.

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n27 Former Commissioner Moran directed review of all of the judge's findings of fact and conclusions of law in both of these cases. We have considered in this decision the issues raised by the Respondents in their petitions for discretionary review and supporting briefs. No party has indicated any interest in Commission review of any other aspect of the judge's decisions and there is no compelling public interest warranting further review. Accordingly, we have not considered any aspects of the judge's decisions that have not been excepted to by the Respondents. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976). Those portions of the decisions and orders that we have not reviewed are accorded the precedential value of an unreviewed judge's decision. See Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2nd Cir. May 17, 1976).

[*71]

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CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, concurring:

I agree that Bomac and Montgomery violated section 5(a)(1) of the Act, n1 the "general duty clause," and that a penalty of $500 should be assessed against each employer. The judge properly decided the essential issues presented by the case, and I would simply affirm his decision insofar as he found the Respondents in violation of section 5(a)(1). Because my colleagues have chosen to engage in an extensive and unnecessarily complicated discussion of the case, however, it is appropriate to explain why I do not join in their analysis.

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n1 Section 5(a)(1), 29 U.S.C. 654(a)(1), is quoted at note 2 of the lead opinion.

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Central to my colleagues' analysis is the concept of "reasonable foreseeability." For some time "reasonable foreseeability" has been creeping into the Commission's discussions of section 5(a)(1) cases. This trend started in Armstrong Cork Co., 80 OSAHRC 16/D4, 8 BNA OSHC 1070, [*72] 1980 CCH OSHD P24,273 (No. 76-2777, 1980), aff'd, No. 80-1580 (3d Cir. Nov. 4, 1980). In that case, after concluding that the record established all essential elements of a section 5(a)(1) violation, my colleagues stated that "a section 5(a)(1) violation must be predicated on the reasonably foreseeable occurrence of an accident, the probable result of which is death or serious physical injury." 8 BNA OSHC at 1074, 1980 CCH OSHD at p. 29,561. Similarly, in Pratt & Whitney Aircraft, 80 OSAHRC 38/A2, 8 BNA OSHC 1329, 1980 CCH OSHD P24,447 (No. 13591, 1980), aff'd in pertinent part, No. 80-4102 (2d Cir. April 20, 1981), the lead opinion by Commissioner Cottine addressed the meaning of the word "likely" as it appears in section 5(a)(1) and concluded that "[t]he occurrence of an incident need not be likely. It is enough if an incident is reasonably foreseeable." 8 BNA OSHC at 1334, 1980 CCH OSHD at p. 29,824 (citations omitted). Subsequently, in Brown & Root, Inc., 80 OSAHRC    , 8 BNA OSHC 2140, 1980 CCH OSHD P 24,853 (No. 76-1296, 1980), my colleagues held that, in the context of a section 5(a)(1) proceeding, "[i]n order to establish a recognized hazard, [*73] the Secretary must also prove that the occurrence of an incident is reasonably foreseeable." 8 BNA OSHC at 2143, 1980 CCH OSHD at p. 30,655. Most recently, in United States Steel Corp., 81 OSAHRC    , 9 BNA OSHC    , 1981 CCH OSHD P25,282 at p. 31,250 n. 3 (No. 76-5007, 1981), my colleagues listed the reasonable foreseeability of an incident as a separate element of the Secretary's proof under section 5(a)(1). Thus, reasonable foreseeability has been mentioned in three separate contexts: as part of the analysis to establish a recognized hazard, as part of the discussion to explain that a hazard is "likely" to cause death or serious harm, and as a separate element divorced entirely from the explicit language of section 5(a)(1).

Although reasonable foreseeability was mentioned in the above cases, it did not play a central role in the analysis. Accordingly, I simply disavowed any reliance on the discussion of reasonable foreseeability while not commenting further on its use. In this case, however, the reasonable foreseeability of an incident is listed as a central element of a section 5(a)(1) violation, and it plays a more visible role in the analysis leading to the finding [*74] of a violation. At the same time, its significance becomes clear: it unnecessarily complicates the analysis of section 5(a)(1) violations while serving no useful purpose in that analysis.

The ultimate question in section 5(a)(1) cases is whether an employer failed to take feasible precautions to protect its employees against a recognized hazard that is causing or is likely to cause death or serious physical harm. See National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). A recognized hazard is a condition or practice in an employer's workplace that is known either by the employer or by the employer's industry in general to be hazardous. Beaird-Poulan, a Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1229, 1979 CCH OSHD P23,493 at p. 28,459 (No. 12600, 1979). Given the nature of the "general duty clause," therefore, it is imperative that the analysis of an alleged section 5(a)(1) violation be as straightforward and simple as possible.

Our analysis must begin by determining whether there exists n2 a condition or practice in the respondent's workplace that either the cited respondent or the respondent's industry recognizes [*75] as or knows to be hazardous and, if so, whether the precautions the respondent has taken to protect its employees against this "recognized hazard" are adequate. If the precautions already taken by the respondent do not "free" the workplace of the hazard, we must then determine whether additional precautions are feasible. Finally, we must determine whether the hazard is causing or is likely to cause death or serious physical harm to the respondent's employees. This approach has been applied in the past without the Commission finding it necessary to add additional abstract concepts. See, e.g., Williams Enterprises, Inc., 79 OSAHRC 24/A2, 7 BNA OSHC 1247, 1979 CCH OSHD P23,478 (No. 4533, 1979), aff'd, No. 79-1559 (D.C. Cir. June 9, 1980); United States Pipe & Foundry Co., 78 OSAHRC 8/D6, 6 BNA OSHC 1332, 1978 CCH OSHD P22,514 (No. 11739, 1978).

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N2 Knowledge of the violative condition is an essential element of all violations of the Act. This discussion presumes that the employer knew or could have known of the existence of the condition or practice constituting the hazard. The difference between the knowledge element in general and the concept of "recognized hazard" is the difference between knowledge of the situation or circumstances and knowledge that the situation or circumstances present a hazard.

[*76]

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For this straightforward analysis, my colleagues substitute a system of tortured, roundabout reasoning that can only serve to confuse employers, employees, the Secretary, and the Commission's administrative law judges. To start with, although they acknowledge that Beaird-Poulan defined a recognized hazard as a condition or practice in the workplace that is known by the industry in general or by the employer in particular to be hazardous, my colleagues initially repudiate this definition in favor of a more abstract concept. They state: "Under section 5(a)(1) case law, the 'hazard' that must be 'recognized' is not a particular set of circumstances at a specific location and specific point in time but rather the broader, more generic or general hazard." Slip opinion at 22. Thus, in this case, the recognized hazard that they find existed is not a condition or practice in the Respondents' workplaces but is "employee exposure to H[2]S." n3 Since it is well known that H[2]S is highly toxic in sufficient concentration, my colleagues have no difficulty in finding that this "generic" hazard [*77] is "recognized." Under such an analysis, however, there will never be a serious question as to whether a recognized hazard exists, for such "generic" hazards are recognized by people everywhere. Indeed, under that analysis, the recognized hazard of employee exposure to H[2]S exists in all workplaces regardless of whether there is any possibility that H[2]S actually will be present in the workplace.

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n3 My colleagues cite numerous cases for the proposition that Commission case law requires hazards to be defined in "generic" terms. They overlook that it is the Secretary, not the Commission, who issues citations and that the Commission's decision must be based on the issues pleaded and tried by the parties. See National Realty and Constr. Co. v. OSHRC, supra, 489 F.2d at 1267-68 & n. 40. Undoubtedly, it is possible to play semantic games and define hazards in different ways. However, it is the substance of what has occurred in an employer's workplace, not the Commission's lexicographical abilities, that determines whether the employer violated 5(a)(1). Thus, it cannot be said that Commission case law requires hazards to be defined in a certain way. If the parties tried the case under a particular understanding of the nature of the hazard and the Commission thinks the hazard should have been defined differently, the Commission cannot in fairness to the parties impose its own theory of the case on the parties. Id.

[*78]

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At this point, another inconsistency creeps into my colleagues' opinion. Having insisted that the hazard is the "generic" hazard of employee exposure to H[2]S, my colleagues observe that a tangible hazard actually existed at the Respondents' workplaces. Thus, they return to the real world (and to the Beaird-Poulan definition of "recognized hazard") and conclude that the oil drilling industry recognizes the following tangible hazard: the potential for H[2]S to be released with drilling for oil and gas in a location where H[2]S is known to be mixed with the oil and gas. The finding of a recognized hazard as defined in this manner is predicated on a condition or practice in the Respondents' workplaces. Accordingly, my colleagues ultimately adopt the judge's finding that Respondents' employees were exposed to this tangible recognized hazard. I too would adopt the judge's finding on that point. Indeed, it is not clear what my colleagues' discussion adds to the judge's finding except to confuse the issue and lay the groundwork for a more abstract and pliable definition of "recognized hazard." [*79]

My colleagues next address whether the workplace was "free" of the recognized hazard. They open this discussion by retracing ground that has already been covered and concluding that H[2]S could have been encountered in the Respondents' drilling operations. My colleagues then turn to the crux of the case: whether the precautions taken by the Respondents freed the workplaces of the hazard. They conclude, and I agree, that the drilling prognosis, the drilling mud, the tests conducted by the mud technologist, the blowout preventer, the drill stem testing, and the mechanical H[2]S detector did not, either alone or in combination, effectively eliminate the possibility that H[2]S would be released during the drilling operations.

My colleagues next turn to whether the hazard was likely to cause death or serious physical harm. They address Respondents' argument that the likelihood of an accident was small and the hazard was therefore not likely to cause death or serious harm. The Commission previously has addressed this argument and held that "the proper question is not whether an accident is likely to occur but whether, if an accident does occur, the result is likely to be death or [*80] serious physical harm." R.L. Sanders Roofing Co., 79 OSAHRC 61/D7, 7 BNA OSHC 1566, 1569, 1979 CCH OSHD P23,756 at p. 28,805 (No. 76-2690, 1979), rev'd on other grounds, 620 F.2d 97 (5th Cir. 1980). In this case, however, my colleagues only look to the likely result of an incident n4 after inquiring whether the occurrence of that incident is reasonably foreseeable. They conclude that an incident was reasonably foreseeable because the Respondents could have encountered H[2]S in their drilling operations, the H[2]S could have been transported to the surface in the drilling mud, the H[2]S could have escaped without warning into the atmosphere surrounding the drilling rig because the Respondents failed to take adequate precautions against this eventuality, and the H[2]S could have been generated in concentrations harmful to employees.

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n4 My colleagues use the word "incident" to "avoid the connotation of chance frequently associated with the term 'accident' in common usage." Pratt & Whitney Aircraft, supra, 8 BNA OSHC at 1334 n. 13, 1980 CCH OSHD at p. 29,824 n. 13. I believe that the readers of our opinions would not be confused by the use of the word "accident" and that substituting "incident" is simply a useless exercise in erudition. However, because my colleagues use the term, I must also use it to avoid any possibility of confusion.

[*81]

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It is noteworthy, I believe, that all of my colleagues' reasons for concluding that an incident was reasonably foreseeable involve a rehash of issues resolved earlier in their opinion to determine that a recognized hazard existed and that the Respondents failed to render their workplaces free of the hazard. At first blush, therefore, it appears that asking whether an incident is reasonably foreseeable is simply asking in different words whether a workplace is free of a recognized hazard. If this is indeed the case, one wonders what role reasonable forseeability serves except to make our opinions longer and more difficult to understand. n5 If reasonable foreseeability has some other significance, I fail to discern it. I find it difficult to envision a situation in which a worksite is free of a recognized hazard but the occurrence of an incident likely to cause death or serious harm to employees is reasonably foreseeable, or to conceive of a worksite which is not free of a recognized hazard but where the occurrence of an incident associated with that hazard is not reasonably foreseeable. n6

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n5 My colleagues' unnecessarily complicated analysis brings to mind the plight of Mr. Justice Jackson when he observed, "[n]ow I realize fully what Mark Twain meant when he said, 'The more you explain it, the more I don't understand it.'" SEC v. Chenery Corp., 332 U.S. 194, 214 (1947) (dissenting opinion).

n6 By making the reasonable foreseeability of an incident an element of a 5(a)(1) violation, my colleagues also overlook that certain recognized hazards, such as those involving long-term exposure to toxic air contaminants, may not manifest their harmful effects on employees through identifiable "incidents" but through gradual deterioration of an employee's health. See American Smelting and Refining Co., 73 OSAHRC 37/A2, 1 BNA OSHC 1256, 1973-74 CCH OSHD P16,456 (No. 10, 1973), aff'd, 501 F.2d 504 (8th Cir. 1974).

I also note that many 5(a)(1) cases arise out of accident investigations, and the employer often argues that it could not have foreseen that the accident would happen. E.g., Armstrong Cork Co., supra. The Commission and the courts have consistently held that the foreseeability of an accident as it actually occurred is irrelevant to the finding of a violation. E.g., Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460 (8th Cir. 1974); General Dynamics Corp., Quincy Shipbuilding Div., 78 OSAHRC 53/A2, 6 BNA OSHC 1753, 1978 CCH OSHD P22,873 (No. 12212, 1978), aff'd, 599 F.2d 453 (1st Cir. 1979). I find it difficult to envision how my colleagues will determine, in future cases, whether an incident was foreseeable while ignoring whether the incident that actually occurred was foreseeable. There will, I believe, be a strong tendency to use 20-20 hindsight and determine that the employer could have foreseen the incident that actually occurred while disclaiming that such an inquiry is relevant.

[*83]

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If reasonable foreseeability is indeed a separate element of a section 5(a)(1) violation, then it represents a significant change in our interpretation of section 5(a)(1). Our consistent practice when there is a change in our case law has been to afford the parties an opportunity to present further evidence and argument under the new interpretation. See Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD P24,555 (No. 76-222, 1980); Truland-Elliot, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976). Because the parties in this case have never had the opportunity to present evidence or argument on whether an incident was reasonably foreseeable, fundamental fairness (the essence of due process) would dictate that they be afforded such an opportunity if reasonable foreseeability in fact adds anything substantive to the analysis of a section 5(a)(1) case. The fact that my colleagues do not afford the parties such an opportunity supports my earlier conclusion that speaking of reasonable foreseeability in the context of whether a recognized hazard [*84] is likely to cause death or serious harm is simply another way of asking whether a worksite is free of such a hazard. In short, if the concept of reasonable foreseeability represents a real change in the law of section 5(a)(1) cases, then my colleagues' action in this case is unfair; if reasonable foreseeability does not represent a change in the law, then it is simply useless and confusing.