SECRETARY OF LABOR,

Complainant,

v.

POWER FUELS, INC.,

Respondent.

OSHRC DOCKET NO. 85-0166

DECISION

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

BY THE COMMISSION:

This case comes before the Commission on review from a petition filed by Power Fuels, Inc., objecting to the Decision and Order of former Commission Administrative Law Judge Ramon Child.  This case arose from an OSHA investigation triggered by the death of a Power Fuels employee on an oil drilling site in North Dakota.  The judge held that Power Fuels had committed serious violations of the Occupational Safety and Health Administration's (OSHA's) general respirator standard at 29 C.F.R. 1910.134(a)(2)[[1]] and of the standard setting a ceiling exposure limit for hydrogen sulfide (H2S) gas at 29 C.F.R. 1910.1000(b)(2).[[2]]  We affirm a combined serious violation of these two standards, and we assess a penalty of $1000, as proposed by the Secretary.

Based on our review of the record, we conclude that the evidence overwhelmingly confirms what Power Fuels reported to OSHA before the citations were issued: namely, that its employee was fatally overcome by exposure to excessive levels of H2S gas.  We further conclude that Power Fuels should have been aware that H2S gas was a known risk on the oil drilling site and that its employee should have used a respirator while working there.[[3]]

I.  Whether Power Fuels' employee was exposed to H2S gas in excess of the "maximum peak concentration" permitted by 1910.1000(b)(2)

The first major issue presented in this case is whether the judge erred in finding that the deceased employee was exposed to levels of H2S gas that were greater than 50 p.p.m.  Power Fuels presents numerous challenges that are related to its overriding argument that the finding is in error.  We conclude, however, that none of these arguments are meritorious and that the judge's finding is fully supported by the record evidence.

The facts are as follows.  David Nelson, the employee whose death led to the OSHA investigation, was a truck driver based at Power Fuels' District Office in Watford City (McKenzie County), North Dakota.  He drove on the night shift.  Nelson, a new employee with less than two months on the job, arrived alone at a tank battery at the Gilbertson Lease in McKenzie County, as assigned, at about 11 p.m. on August 30, 1984.  Nelson was to drain the contents of a salt water storage tank into the truck's container and take the salt water to a waste site for disposal.[[4]]  The evidence indicates that at the time of the accident, Nelson was not wearing a respirator; nor was one provided for his use.

Nelson's body was discovered on top of the tank at about 8 a.m. the next morning by Power Fuels employee Walter Runion. McKenzie County Sheriff Paul Larsen, who was called to the scene that morning, testified that Runion told him that the body had not been moved from where he had found it.  Nelson's head was about 12 inches from the thief hatch cover, which was closed. (The thief hatch is the opening through which the fluids are gauged and removed.)  Sheriff Larsen further testified that a gauge lay next to Nelson and there was a strong odor, similar to the smell of rotten eggs, the odor that is customarily associated with H2S gas.

As required by law, Power Fuels reported the fatality to OSHA.  The report stated that the employee "was fatally overcome by hydrogen sulfide gas..." On the same day that Nelson's body was found, an autopsy was performed on it by a physician retained by McKenzie County Coroner Gerald M. Moredock, M.D.  In his autopsy report, the retained physician set forth his diagnoses of four significant conditions, including severe lung congestion.[[5]]  In the coroner's report, Dr. Moredock stated that the "[a]utopsy showed severe lung congestion that would be consistent with H2S gas suffocation.  No other cause or reason could be found for his death."

According to "Recommended Practices for Conducting Oil and Gas Production Operations Involving Hydrogen Sulfide" (1981), a publication of the American Petroleum Institute that was received into evidence, H2S does not cause immediate, serious effects until present in levels exceeding 50 p.p.m., the maximum peak concentration cited in 1910.1000 (b) (2).  Exposure of 100 p.p.m. or more is associated with increasing odor, as well as eye and throat irritation.  H2S gas does not cause unconsciousness or death until concentrations reach approximately 700 p.p.m.  Testimony to the same effect was given by OSHA Area Director David DiTomasso, an industrial hygienist who has a master's degree in environmental health.  This evidence was not contradicted.

Readings taken by David Tuhy, Power Fuels' safety representative, on the two days following the fatality, showed extremely high levels of H2S gas in the tank.  Tuhy twice tested the air inside the hatch of the tank on the afternoon of August 31. Both times, his instrument, a Bendix Gas Tech hand-held detector, registered 1600 p.p.m. of H2S gas (the maximum reading of which the device was capable).

The next day, Tuhy made two readings approximately one foot above the hatch cover with the thief hatch open.  According to Tuhy's recollection, one of those readings was taken on the downwind side and registered 100 p.p.m.  The other reading was taken on the upwind side and registered 55 to 60 p.p.m.  That same day, Tuhy also took two other samples:  one by the hatch with the cover closed, and one at the downwind side of the tank at ground level.  No H2S gas registered in either of those two tests.

At the hearing, Dr. Moredock testified that Nelson could have died of causes unrelated to H2S, but that normally the other conditions noted on the death certificate would not cause the severe lung congestion that he believed was the immediate cause of death.  He testified that heavy concentrations of H2S gas could cause such severe lung congestion.  Dr. Moredock had been a practicing physician for eight years and coroner of McKenzie County for about five years.

Power Fuels raises numerous challenges to the Secretary's evidence on this factual issue, that is, the level of H2S gas at the time of Nelson's death.  For example, Power Fuels argues that Dr. Moredock's conclusions as to the cause of death were insufficient because he did not perform the autopsy.  As mentioned above, the conclusions made by Dr. Moredock were based on his review of the autopsy performed by a physician that he had retained.  Power Fuels has not shown that such a procedure was improper or unreliable.  Also, Power Fuels relies on the fact that the laboratory test ordered by Dr. Moredock to determine the presence of H2S gas in Nelson's system did not reveal any.  However, Dr. Moredock testified that he was told by the laboratory's chemist that the laboratory was inexperienced in H2S gas analysis and that it was unable to get its test to work.  We therefore conclude that the laboratory test is not probative in deciding the H2S exposure issue.

Power Fuels questions Dr. Moredock's credibility, noting his testimony that, to the best of his recollection, he filed a revised death certificate stating that "the cause of [Nelson's] death is respiratory asphyxiation with the most likely cause [being] H2S gas exposure."   Power Fuels relies on the testimony of one of its employees that the original death certificate, prepared by Dr. Moredock on September 1, 1984, stated that the immediate cause of death was "unknown" and that its cause was "Pending Investigation" and was due to or was a consequence of "Extensive pulmonary granulomatous."  This witness further testified that, on the day after Dr. Moredock's testimony in this case, the original death certificate and not the revised death certificate was still on file at the McKenzie County Courthouse.  So far as the record shows, however, failure to file the revised death certificate was merely an inadvertent error.  Power Fuels does not suggest any alternative explanation.   We find no basis to disbelieve the testimony of Dr. Moredock.

In addition, Power Fuels points to testimony that some cause of death other than H2S suffocation was possible.  That testimony was given by Dr. Moredock, and by OSHA Area Director and Industrial Hygienist DiTomasso.  However, both of these witnesses testified that H2S suffocation was the most likely cause of death, and the only cause suggested by the known data.  The standard of proof on this issue is the preponderance of the evidence.   E.g., R.D. Anderson Construction Co., 12 BNA OSHC 1665, 1666, 1986-87 CCH OSHD 27,500, p. 35,638 (No. 81-1469, 1986).  Here, we find that a preponderance of the evidence establishes that Nelson's death was due to exposure to H2S gas.

Power Fuels argues that the measurements Tuhy made the day after Nelson died do not tend to prove the levels of H2S gas to which he was exposed.  We disagree.  Those levels are consistent with the H2S levels found in the gas stream of a well on the Gilbertson Lease in 1981.  The 1981 tests may be compared directly with Tuhy's tests, even though the 1981 tests were of the "gas stream" (measured at the wellhead), whereas Tuhy's tests were of the headspace above the saltwater in the waste tank.  Gas and salt water are separate products, but they reach the wellhead together in the gas stream from underground.

The 1981 tests showed 39,300 p.p.m. of H2S in the gas stream.  DiTomasso testified that he would expect that level of H2S in the gas stream to translate into about 1900 p.p.m. of H2S gas in the headspace of a salt water tank.  His estimate was based on his measurements in a previous case.  Douglas Lipetsky, an environmental engineer for the North Dakota Department of Health, testified that he would expect the H2S concentration in the gas stream at the time of Nelson's death to have been at least as high as in 1981.   That conclusion was based on his experience with other producing wells.  Thus, the evidence indicates that the H2S gas levels in 1981 were similar to those that Tuhy found on August 31, 1984 (at least 1600 p.p.m. in the headspace of the salt water tank).

Of course, as Power Fuels notes, H2S gas levels can rise or fall quickly.  DiTomasso testified that H2S gas levels can rise suddenly when the tank's contents are disturbed, by pumping, for example.   The evidence indicates that Nelson had pumped fluids out of the tank before he died.  Thus, Nelson was engaged in precisely the kind of activity calculated to raise H2S gas levels suddenly to high levels, such as those found in 1981 and on the day after the accident.  Clearly, the 1981 tests corroborate what is established independently by the other evidence:  that Nelson was exposed to an excessive level of H2S gas.

Power Fuels further argues that it had no notice that it was being charged with exceeding the "maximum peak" limitation.   However, the citation and complaint expressly charged that violation, and the Secretary reaffirmed the allegation in discovery. Clearly, there was no lack of notice to Power Fuels of this charge.  The evidence convincingly demonstrates that Nelson was exposed to levels of H2S gas exceeding the maximum peak concentration allowed under 1910.1000(b)(2)

II. Whether Power Fuels reasonably could have known of the H2S gas hazards

We agree with the judge that Power Fuels "had every reason to know" that the waste salt water at the Gilbertson Lease contained H2S.  Furthermore, we reject Power Fuels' arguments that it could not have known of the hazard created by H2S gas.  First, Kelly Gebhardt, Power Fuels' District Manager for Watford City, and Nelson's supervisor, testified that in a "large majority" of producing wells from which his district hauls, "there would be some type of [H2S] smell from the wells . . . . "

Second, Power Fuels also knew that H2S levels exceeded permissible levels at certain sites.  The results of tests at the Gilbertson Lease in 1981, as mentioned above, showing high levels of H2S present there, were on file with the North Dakota Department of Health.  Those tests had been conducted by the producer at the Gilbertson Lease, Energetics, Inc.   Furthermore, Power Fuels' safety representative, Tuhy, testified that it had been informed of high H2S concentrations by the producers at the Mullen and Rognes Leases (in the Watford City district), where an employee had complained of H2S problems.  Power Fuels required SCBA (self-contained breathing apparatus) respirators at those leases.

Third, OSHA had issued a citation to Power Fuels previously for violation of 1910.134(a)(2) and other respirator requirements. The citation related to drivers who were exposed to H2S gas while gauging tanks in the Watford City area.  In a letter accompanying the previous citation, the OSHA area director had stated that "[d]rivers untrained in respirator use and the dangers of H2S are hauling salt water that has been pumped from wells containing H2S.  H2S is dissolved in this water and will be released from it into the air . . . .

Furthermore, the H2S hazards in the area had been the subject of a prior Commission decision, Bomac Drilling Div., TRG Drilling Corp., 9 BNA OSHC 1681, 1683-85, 1981 CCH OSHD 25,363, pp. 31,540-41 (No. 76-450, 1981).  That decision discussed the sporadic H2S hazards throughout the Williston Basin, which includes the entire area at issue here.   Bomac noted that H2S is most likely to be encountered in fluids taken from the substrata in the Madison Zone.  The fluids at the Gilbertson Lease were taken from these same substrata.

Thus, the evidence shows overwhelmingly that Power Fuels was well aware of the potential for exposure to excessive H2S gas in the locale.  We also note that no objection has been raised to the evidence that Tuhy had attended OSHA seminars where the H2S risks in the area, and the need for respirators, were thoroughly explained.

To rebut this evidence of foreseeability, Power Fuels argues that the judge failed to consider the evidence that no employee had complained of H2S problems at the Gilbertson Lease.  However, its own safety materials emphasize that H2S is difficult to detect and evaluate, that a technical instrument is needed, and that the sense of smell is inadequate because H2S deadens that sense at about 200 p.p.m.[[6]]  Despite this known effect, Power Fuels did not provide H2S detection devices to its employees.  Also, as mentioned above, high levels of H2S gas may arise suddenly, without warning, in a tank when the fluids are disturbed, as they apparently were when the tank in question was being drained by Nelson.

Power Fuels argues that it was entitled to rely on an industry custom and practice that allegedly imposes an obligation on oil and gas producers to notify the transportation firms if H2S hazards are present.   The Fifth Circuit rejected a similar argument in Brock v. City Well Service Co., 795 F.2d 507, 512 (5th Cir. 1986) .  The court held that an oil well service company may not shift its responsibility for its employees' protection from H2S gas to well owners or operators, based on industry custom and practice.

Power Fuels' safety representative knew that there may have been H2S on oil and gas sites even though Power Fuels had not been notified about its presence.  In addition, Gebhardt acknowledged that "very few" oil and gas producers have notified him of H2S concentrations, even though H2S can be smelled at a large majority of wellsites in the area.   We cannot excuse Power Fuels' failure to protect its employee where, as here, it knew that H2S hazards existed in the area and that producers might fail to report those hazards to it.

In addition, Power Fuels failed to establish that the alleged custom or practice regarding notice of high H2S concentrations existed, or that Power Fuels reasonably relied upon it.  Its citations to the transcript in this regard do not support its position.  The only substantial testimony in the record on this issue goes contrary to Power Fuels' position.   Consulting geologist and drilling foreman Kane testified that it was customary for companies hauling water from his well drilling sites to a waste disposal site, to determine for themselves the water's H2S content.  Kane further testified that there were instances where Power Fuels had determined the H2S content of salt water it hauled to waste sites and drilling sites.

Power Fuels asserts that salt water containing H2S is "hazardous waste" under Federal and state regulations and that, therefore, the owner or operator of the tank battery was required to inform it if H2S was present in the salt water.  However, no specific statutory or regulatory provision is cited by Power Fuels to support this assertion.  To the contrary, water produced in drilling for gas and oil, like the salt water here, is excluded from the definition of "hazardous waste" under the Environmental Protection Agency ("EPA") regulations.  40 C.F.R. 261.3(a)(1),.4(b)(5).  Furthermore, the Department of Transportation ("DOT") motor carrier safety regulations that formed part of Power Fuels' safety program indicate that this employer had a duty to find out if it was carrying any hazardous materials.  49 C.F.R. 397.1,.21.  Under those regulations, Power Fuels could not have shifted to another company its responsibility to determine whether it was transporting hazardous materials.

III. Whether a violation of 1910.134(a)(2) was proven

Power Fuels argues that 1910.134(a)(2) is a broadly-worded standard that may be enforced only under a "reasonable person" test. Under that test, the Secretary would have to prove that a reasonable person familiar with the circumstances, including any facts peculiar to the industry, would recognize a hazard warranting the precautions urged by the Secretary.  The precautions at issue here are providing respirators on jobsites, such as the Gilbertson Lease, and requiring their use.

Under Commission precedent, the use of the reasonable person test is not required as an aid in interpreting and applying the cited standard.  Snyder Well Servicing, Inc., 10 BNA OSHC 1371, 1375-76, 1982 CCH OSHD 25,943, p. 32,511 (No. 77-1334, 1982).  In addition, the Fifth Circuit has essentially rejected such a requirement.  City Oil Well Service Co., supra, 795 F.2d at 511. Moreover, even assuming arguendo that Power Fuels is correct in its assertion that use of this test is required, we conclude that the Secretary has demonstrated that a reasonable person in Power Fuels' position would have required that Nelson use a respirator while working on the Gilbertson Lease.

Power Fuels' H2S safety booklet stated:  "When you are required to be present or work in an area where H2S is a potential hazard, you must wear breathing protection."  The company's district manager, Gebhardt, testified that he believed the only safe way to work around H2S is to wear a respirator.  Power Fuels' safety rules required the use of SCBA respirators where H2S was known to be present.  The testimony revealed that Power Fuels actually had respirators in its Watford City office.  Yet, the company failed to take steps to ensure that they were provided at its wellsites.  It is clear from this evidence that a reasonable person in Power Fuels' position would have recognized a hazard warranting (1) provision of an SCBA respirator at the well site on the Gilbertson Lease, and (2) a requirement that the employee use the respirator.

The Secretary has established that the H2S gas constituted a significant risk of harm, making a respirator necessary to protect the employee's health.  See Kastalon, Inc., 12 BNA OSHC 1928, 1937-38, 1986-87 CCH OSHD 27,643, p. 35,974 (No. 79-3561, 1986). An employee was exposed to the hazards, and Power Fuels and the requisite knowledge of the conditions.  See, e.g., Trumid Construction Co., 14 BNA OSHC 1784, 1788, 1990 CCH OSHD 29,078, p. 38,859 (No. 86-1139, 1990.)[[7]]  Thus, the Secretary has established a violation of both 1910.134(a)(2) and .1000(b)(2).

IV. Effect of discovery responses

Power Fuels asserts that the Commission must ignore much of the evidence introduced at the hearing because it goes beyond or is inconsistent with the Secretary's responses to certain prehearing discovery requests by Power Fuels.  This claim is without merit, for several reasons.  First, Power Fuels did not object to the introduction of the evidence it now claims is precluded by the prehearing documents.  Second, Power Fuels did not seek to have introduced into evidence any of the alleged answers to interrogatories on which it now relies, and did not even mention them at the hearing.  Third, when properly read, none of the alleged admissions would change the result in the case.  In fact, Power Fuels' representations as to what admissions were made are incorrect in numerous instances.

As to the first point, if the Secretary attempted to introduce evidence at the hearing that was subject to preclusion by her discovery responses, the proper time for Power Fuels to object was when the evidence was introduced.  By not objecting then, Power Fuels has failed to preserve its argument for use on review.  Rule 103(a)(1) of the Federal Rules of Evidence ("F.R.E.") provides that "[e]rror may not be predicated upon a ruling which admits . . . evidence [unless] a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context").  Former Commission Rule 72, which was in effect at the time of the hearing, incorporated F.R.E. Rule 103(a)(1) in Commission proceedings; "Hearings before the Commission insofar as practical shall be governed by the rules of evidence applicable in United States District Courts." Former 29 C.F.R. 2200.72.[[8]]

As to the second point, answers to interrogatories generally are not considered evidence unless they are introduced as such at the hearing.  E.g., Jones v. Diamond, 519 F.2d 1090, 1098 (5th Cir. 1975); Montgomery Ward & Co. v. Fotopoulos, 32 F.R.D. 333, 334 (D. Minn. 1963).  Even where answers to interrogatories are introduced in evidence, they generally have no binding effect if they are contradicted by evidence at the hearing.  E.g., Freed v. Erie Lackawanna Ry. Co., 445 F.2d 619, 621 (6th Cir. 1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 678 (1972), and cases cited therein.  See generally, 8 C. Wright & A. Miller, Federal Practice and Procedure, 2180, 2181; 4A Moore's Federal Practice, 33.29.

Power Fuels does not explain its failure to introduce the Secretary's discovery responses into evidence.  The alleged answers to Power Fuels' interrogatories are not in the official case record, even though the company was on notice that those answers might not have been filed with the Commission.[[9]]   Power Fuels cites certain court cases for the proposition that discovery admissions and interrogatory answers, like those allegedly made here, preclude the introduction of additional or contradictory evidence.  None of those cases dealt with discovery matters, however.

Power Fuels further relies on an unreviewed judge's decision, which it says supports the result it urges.  McWilliams Forge Co., 8 BNA OSHC 1792, 1794, 1980 CCH OSHD 24,578 (No. 79-228, 1980).   Unreviewed judges' decisions do not constitute Commission precedent.  E.g., Leone Construction Co., 3 BNA OSHC 1979, 1981, 1975-76 CCH OSHD 20,387, p. 24,322 (No. 4090, 1976).  The cited case is inapplicable.  In McWilliams Forge, the judge deemed matters admitted because the Secretary failed to timely respond to requests for admissions and did not explain that failure.

As to the third point, none of the alleged admissions would affect the result of the case, even if they were considered.  It bears noting that Power Fuel's representations as to what admissions were made in this case are incorrect in a number of instances.  For example, Power Fuels represents that the Secretary's discovery responses stated:  (1) The Secretary did not know which of the substances  listed in 1910.1000, Table Z-2, includes H2S gas, and (2) no notice has been given that any of these limitations apply to H2S gas.  However, Power Fuels' requests for admissions to that effect were ambiguously denied by the Secretary.  Power Fuels also makes other incorrect representations of purported admissions [[10]].  We note that the Commission's rules requires that counsel make a reasonable inquiry in advance to determine that arguments made in briefs are well grounded in fact and warranted by a good faith legal argument.  29 C.F.R. 2200.32.[[11]]

Respondent thus fails in its assertion that the Secretary's prehearing responses preclude the Commission from deciding this case based on the evidence presented at the hearing.

V. Alleged duplication of charge

Power Fuels argues that at most only one violation may be affirmed, because all of the items on review are based on the same hazard at the same place and time, and that hazard could have been abated by one step -- provision of an SCBA respirator to Nelson on the Gilbertson Lease.  The Secretary states:

The Secretary agrees that all three violations affirmed by the judge essentially concern one violative condition which should have been avoided by one method of abatement -- provision of appropriate respiratory equipment to David Nelson.  Therefore, the Commission should affirm a serious violation of 1910.134 (a)(2) and 1910.1000 (b) and assess a single penalty of $1000 for that violation, rather than the $1,500 penalty assessed by the judge.

(Emphasis in original.)  Based on this statement, we conclude that the Secretary has abandoned the third item on review, the alleged violation of 1910.134 (b) (9), even though the judge affirmed that item.   We see no compelling reason to question the Secretary's judgement on this issue.   The 1910.134(b)(9) item will therefore be vacated.  See Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7, 106 S. Ct. 286, 288 (1985) (Secretary's decision to withdraw a citation is not reviewable by the Commission). We will affirm a single citation item -- a combined violation of 1910.134(a)(2) and 1000(b)(2).

VI. Classification and penalty

The violation undeniably was serious under the Act.  See 29 U.S.C. 666(k).  We will impose the Secretary's proposed penalty, $1000, which was the maximum penalty for a serious violation.  Regarding the penalty factors, the extreme gravity of the known H2S hazards would warrant the maximum penalty, regardless of other factors.  Furthermore, we note that Power Fuels previously had admitted violations of H2S respirator requirements at a nearby oil well site; that it was a sizeable company, with eight district offices; and that its good faith is questionable, in light of its extensive knowledge of the hazards.[[12]]   See 29 U.S.C. 666 (j)

In conclusion, we affirm a combined serious violation of 1910.134(a)(2) and .1000(b)(2), and assess the $1000 penalty requested by the Secretary.  The 1910.134 (b) (9) item is vacated.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G.Wiseman
Commissioner

Dated: April 17, 1991


SECRETARY OF LABOR,

Complainant,

v.

POWER FUELS, INC.,

Respondent.

OSHRC DOCKET NO. 85-0166

APPEARANCES:
For the Complainant:
Jaylynn K. Fortney, Esq., Kansas City, Missouri

For the Respondent:
Robert D. Moran, Esq., Washington, D.C.

DECISION AND ORDER

Child, Judge:

Statement of the Case

This matter is before the Occupational Safety and Health Review Commission (the Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (the Act).   Complainant seeks affirmance of Citation No. 1, issued to respondent February 12, 1985, charging five items of willful violation of section 5(a)(2) of the Act and of proposed penalties totaling $21,000.00.  In the event said violations are found not to be willful, complainant alleges in the alternative that they are serious within the meaning of the Act.

The matter came on regularly for hearing at Minot, North Dakota, on August 20, 1985.  Notice of the hearing was duly given affected employees.  Except as employees may have been called as witnesses, there was no appearance by or on their behalf. (Tr. 8, 9).

The parties have submitted post hearing briefs in support of their positions.  Respondent has admitted that it is a corporation engaged in commerce and that it is subject to the Act and the jurisdiction of this Commission.  (Answer) Various affirmative defenses have been raised by the respondent in its Answer and will be treated in the Discussion portion of this Decision.

The Issues raised by the citation and the Complaint to be here determined are:

1.  Was the respondent in violation of the standard at 29 C.F.R. 1910.134(a)(2)?[[1/]

2A.  Was the respondent in violation of the standard at 29 C.F.R. 1910.134(b)(3)? [[2A/]]

2B.  Was the respondent in violation of the standard at 29 C.F.R. 1910.134(b)(8)? [[2B/]]

2C.  Was the respondent in violation of the standard at 29 C.F.R. 1910.134(b)(9)? [[2C/]]

3.  Was the respondent in violation of the standard at 29 C.F.R. 1910.1000 (b)(2)?[[3/]]

4.  If the respondent was in violation of the aforesaid standards, or any of them, was said violation willful or failing that, serious?

5.  What, if any, penalty would be appropriate?

Statement of Fact

Respondent is engaged in the business of transporting various commodities, including crude oil, water and other liquids in bulk, as a common carrier under a certificate granted by the North Dakota Public Service Commission.  (Tr. 900) Its business is operated from seven district offices, six in North Dakota and one in Montana.  (Tr. 577)  An inspection of respondent was initiated by the Occupational Safety and Health Administration (OSHA) to investigate a fatality which occurred at a tank battery located approximately four miles north of Keene, North Dakota. (Tr. 207)

Respondent's employee, David Nelson, died in the said fatality which occurred on August 30, 1984, at what is referred to  herein as the Gilbertson Tank Battery site.  (RFA 1 and 2(a))[[ 4/]]  He was employed by respondent as a truck driver.  (RFA 5) The said site was under the control and custody of Energetics, Inc., a company which is not a party to this proceeding.  (RFA 3, Tr. 217-218) There were three tanks located at the said site; two steel oil tanks and one fiberglass salt water storage tank which was approximately 15 feet high.  (RFA 2(b); Exhibits C-4, C-5, C-11, C-12, C-13).

On August 30, 1984, respondent had assigned Nelson to fill an order received from Energetics, Inc. to transport salt water from the Gilbertson site to a waste disposal location for disposal.  Nelson was working the night shift on said date and the said assignment was given to him sometime after he reported for work at 6:30 p.m. (RFA 8(a), 8(b); Tr. 873)  On the morning of August 31, 1984, Nelson's body was discovered by respondent on top of the salt water storage tank at the said site.  (Exhibits C-1, C-2, C-6) An autopsy performed on that date listed the final diagnoses as:

"I.  Bruise, recent, right anterolateral chest.
II.  Congestion, lungs, severe.
III. Granulomatous inflammation, lungs, lymph nodes and liver, etiology undetermined.
IV. Kyphoscoliosis, severe."

(RFA 9(a); Exhibit R-7

There were no known witnesses to Nelson's death, nor was any person other than Nelson known to be present at the said site on the night of August 30, 1984.  The truck which Nelson had been assigned to drive was parked at the said site at the time Nelson's body was discovered. Prior to his death, he had gone to the top of the tank, measured (gauged) the amount of water therein by lowering a measuring device to the bottom of the tank from a hatch opening at the top, entered the measurement upon a water invoice, and filled the truck with water from the tank.  (RFA 9(b), 9(c); Tr. 704-705, 879-881)  A tachograph device on Nelson's truck showed that he had stopped the truck at the site at around 11:00 to 11:10 p.m. on August 30. (Tr. 41, 862-863)  The time of his death was placed at between 11:00 p.m. and midnight on that day by McKenzie County Sheriff Paul Larson, the local government official who investigated the death.  (Tr. 42-43)  Nelson's death certificate completed by the coroner lists the "immediate cause" of death as "unknown."  It further states that the "underlying" cause of death was "extensive pulmonary granolamatous."  (Tr. 111-112; Exhibits C-9 and R-28) The coroner in his undated "Report" concluded that death occurred about 7:00 a.m. on August 31, 1984. He there noted that the decedent was found ". . . with his head near the tank opening", whereas the evidence was that the cover of the "thief hatch" near Mr. Nelson's head was closed.  The "Coroner's Report" stated:

"Autopsy showed severe lung congestion that would be consistent with H2S gas suffocation.  No other cause or reason could be found for his death."

(Exhibits C-1, C-2, C-6, C-8; Tr. 33, 34, 35)

Mr. Nelson was not wearing respiratory protection and no respiratory protection equipment was in the truck he had been driving.(Tr. 41)  There was no permanent air line and no warning sign concerning the presence of Hydrogen Sulphide gas (H2S) on the site, nor was there a windsock present. (Tr. 40, 42)

David Tuhy, safety representative for respondent, using a Bendix Gas Tech detector which measured only to a maximum of 1600 parts per million (ppm), determined that the detector measured 1600 ppm of H2S in the airspace at the top of the water tank in question on August 31, 1984.  (Tr. 651-652)  Measurements taken by Mr. Tuhy all the site on September 1, 1984, disclosed concentrations of H2S at a point one foot above the open thief hatch on the upwind side to be 55-60 ppm and on the downwind side to be 100 ppm.  No H2S was found to be present at ground level nor at the top of the tank with the "thief hatch" cover closed. (Tr. 653-656 )

Mr. Nelson had been employed by respondent since July 11, 1984.  (Tr. 835)  At the time he was hired he was provided a copy of the respondent's safety program, Exhibit C-23, and had on at least one occasion driven with a driver-trainer. (Tr. 849; Exhibit C-22)

Discussion

To prove a violation of section 5(a)(2) of the Act the complainant must prove by a preponderance of the evidence an employer's noncompliance with an applicable standard and employee exposure to the hazard created by the violative condition.  Otis Elevator Co., 78 OSAHRC 88/ E5, 6 BNA OSHC 2048, 1978 CCH OSHD 23,135 (No. 16057, 1978).  In addition to the foregoing, section 17(k) of the Act has been interpreted by the Commission as placing on the complainant the burden of proving that the employer knew, or in the exercise of reasonable diligence, could have known of the presence of the violative condition.  Pre-stressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD 25,358 (No. 16147, 1981).

Issue 1:

Was the respondent in violation of the standard at 29 C.F.R. 1910.134(a)(2)?[[5/]]

Although the death of an employee of the respondent on the job on August 30, 1984, gave rise to the inspection out of which the citation herein issued, the cause of that death is not here our concern.  Although the circumstances of an accident may provide relevant evidence, our inquiry is not necessarily to find the cause of death or determine whether a violation caused it.

See Ulysses Irrigation Pipe Company, OSAHRC Docket No. 78-799, 11 BNA OSHC 1273 (1983); Kansas City Power & Light Co., 82 OSAHRC 13/A2, 10 BNA OSHC 1417,1422, 1982 CCH OSHD 25,957 p. 32,539 (No. 76-5255, 1982); Boeing Co., 77 OSAHRC 188/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD 22,266 (No. 12879, 1977); Concrete Construction Co., 76 OSAHRC 47/A2, 4 BNA OSHC 1133, 1135 & N.3, 1975-76 CCH OSHD 20,610 p. 24,664 & n.3 (No. 2490, 1976)

Here the circumstances surrounding the death of Mr. Nelson on August 30, 1984, provide evidence that an employee of the respondent was exposed to the effects of H2S in the course of his employment and that exposure could have caused death or serious physical harm.

That the standard at 29 CFR 1910.134(a)(2) applies to the situation now before us was determined by the Commission in Snyder Well Servicing, Inc., OSAHRC Docket No. 77-1334 (1982), 10 BNA OSHC 1371, 1375-6, 1982 CCH OSHD 25,943 p. 32511. There as here the respondent urged the words in the standard ". . . . when such equipment is necessary to protect the employee," to be interpreted to be where the Secretary shows exposure to concentrations of air contaminants above the threshold limit value specified for the substance in question or to exceed the time allowance permitted up to certain levels.  The Commission expressly rejected such interpretations saying that to adopt such arguments " . . . would mean that no matter how great the likelihood of an emergency, an employer is not required to take even elementary precautions until it is too late.  That would be contrary to the purpose of section 1910.134 and to the preventive purpose of the Act."

Because of the widely recognized presence of H2S throughout the Williston Basin (Tr. 421, 432-433) and two deaths resulting from exposure thereto in late 1983 and early 1984, OSHA sponsored two H2S hazard recognition seminars to acquaint and remind those working in the oil and gas producing industry in the month of March 1984. (Tr. 716-718)  Respondent's safety representative attended each of these seminars where the standards were discussed and the need to provide employees engaged in the function of gauging tanks with self contained breathing apparatus or supplied air respirators was explained to be mandatory unless the employer had ruled out the presence of H2S in excessive amounts at the specific location by conducting adequate prior monitoring. (Tr. 719, 721, 722, 724, 725, 740)

Evidence disclosed that as of December 1, 1981, tests showed that production of this well measured at the wellhead contained 3.93% H2S by volume.  (Exhibit C-21; Tr. 533,537)  It is reasonable to assume that if further gas analysis were performed on August 30, 1984, at this wellhead the results would show H2S to again be present at least 3.93% by volume. (Tr. 542)

It is to be expected that 3.93% H2S by volume measured at the wellhead would produce H2S concentrations in the airspace above the saltwater in a tank battery at that site in excess of 1600 ppm. (Tr. 762, 763)

Tests conducted at the saltwater tank by respondent's safety representative on the afternoon of August 31, 1984, disclosed H2S in the airspace above the water to be at least 1600 ppm. (Tr. 649-652)  It may fairly be inferred, therefore, that at the time Mr. NeIson opened the cover of the thief hatch at the top of this saltwater tank at about 11:00 p.m. on August 30, 1984, he was in the proximity of air contaminated with a concentration of H2S in the neighborhood of 1600 ppm.

Tests conducted by respondent's safety representative at the saltwater tank in question on September 1, 1984, disclosed:

1.  55-60 ppm H2S measured one foot above the upwind side of the hatch opening -- immediately after opening the hatch cover.

2.  100 ppm H2S measured one foot above the downwind side of the hatch opening--immediately after opening the hatch cover. concentration of H2S measured at the hatch with the

3.  No concentration of H2S measured at the hatch with the cover closed.

4.  No concentration of H2S measured at ground level.

(Tr. 653-656)

It may fairly be inferred from the foregoing that at the time Mr. Nelson gauged the contents of this saltwater tank at about 11:00 p.m. on August 30, 1984, he was exposed to air contaminated with H2S in concentrations in excess of 50 ppm.

Respondent's noncompliance with an applicable standard and employee exposure to the hazard created by the violative condition having thus been established, we now consider whether the complainant here met the burden of proving that the respondent knew, or in the exercise of reasonable diligence, could have known of the presence of the violative condition.

Respondent's safety representative was informed of the two deaths which occurred in the Williston Basin late in 1983 and early in 1984 from exposure to H2S.  Respondent's safety representative was informed of OSHA's claim that any gauging performed at tank batteries in the Williston Basin must be accomplished while wearing appropriate respiratory equipment by reason of the risk of exposure to excessive levels of H2S.  Respondent's safety representative was informed as to the hazards attendant upon exposure to various levels of H2S in the workplace.  H2S was generally known to be present and pervasive throughout the oil and gas producing industry in the Willington Basin. (Tr. 432, 433)

Notwithstanding the foregoing, respondent claims to have been uniformed that its employees sent out to gauge and haul saltwater from tank batteries could be exposed to H2S in dangerous levels.  Of 100 tank batteries serviced in the Watford City area only two of the producers ever advised respondent that H2S was a hazard at their specific site.  Those two producers engaged the respondent to haul crude oil only.  Of some 45 well sites from which respondent hauled saltwater in this area, none of the producers advised respondent of the presence of H2S on their sites in hazardous concentrations. (Tr. 843)

Generally, well sites with tank batteries were equipped with windsocks to show the wind direction and if H2S was present in hazardous concentration, a sign was posted to that effect by the lease owner or producer and an air supply line was present.  No windsock, warning sign or air supply line was present at this site.

Respondent relied upon the customer requesting the haulage to inform of the presence of H2S if it constituted a hazard.   (Tr. 920, 921)  At least one drilling foreman customarily did so.  (Tr. 447,449)  When the dispatcher was informed of the presence of H2S at the site by the customer, he would in turn inform the driver who was expected to avail himself of appropriate respiratory equipment maintained at the district office for that purpose and from which office the truck and driver were dispatched.

North Dakota State Law and Federal Statutes and Regulations found at Title 49 CFR urged upon us by respondent do not appear to justify respondent's reliance upon the leaseholder or producer providing information as to the potential hazard or the risks attendant thereon to respondent's employees.  (Exhibit R-27; Respondent's Brief page 19)

Here respondent was not shipping H2S, but was rather hauling waste saltwater which the respondent had every reason to know would contain H2S in some albeit unknown percentage.  In the exercise of reasonable diligence respondent could have known that H2S would enter the breathing environment and could expose its employee to harm.  That diligence would have been exercised merely by heeding the information, advice and warnings given respondent's responsible personnel at training seminars in ample time to have anticipated and prepared for the violative condition here found and to which respondent's employee was exposed.

Self-contained breathing apparatus in the dispatcher's office could provide no respiratory protection to a driver confronted with H2S at a well site.  (Tr. 667)  Respondent thus failed to comply with the standard.

Issue 2A:

Was the respondent in violation of the standard at 29 CFR 1910.134(b)(3)?[[6/]]

In conducting its investigation herein complainant was confronted with an uncooperative employer.  The investigating officer recommended citing this violation based upon the fact although he requested the training records of the deceased employee, none were produced.  The evidence of violation of this standard was not particularly enhanced by the investigating officer's testimony that "individuals" he spoke with indicated Mr. Nelson had not been trained. (Tr. 298)

Without detailing the extent of training given, respondent offered some testimony to the effect that Mr. Nelson had received some training even though respondent's safety representative had not met him. (Tr. 612-618, 685, 839, 849; Exhibit C-22)

Complainant had the burden of proof to support a finding in relation to its allegation of violation of this standard and failed to meet that burden.

Issue 2B:

Was the respondent in violation of the standard at 29 CFR 1910.134(b)(8)?[[7/]]

Complainant based its claim of violation set forth in item 1 of the citation that unless monitoring had been done to rule out the presence of H2S in excessive concentrations, gauging must be accomplished while wearing appropriate respirators.

Complainant's witness who tests tank batteries for H2S concentrations did not customarily wear respirators while testing at the top of tanks.  (Tr. 161, 163,167,172)  In view of the evidence presented by complainant that monitoring at the tank batteries would be difficult and unreliable, it cannot be here said that it would be appropriate.  (Tr. 799)  Particularly is this so when under the complainant's interpretation of 29 CFR 1910.134(a)(2) appropriate respirators can be worn in lieu of monitoring.

Complainant failed to meet its burden of proving a violation of item 2B the Citation issued herein.

Issue 2C:

Was the respondent in violation of the standard at 29 CFR 1910.134(b)(9)? [[8/]]

Notwithstanding knowledge that OSHA had warned respondent of the incipient hazards associated with H2S and the need to provide employees with respiratory protection to be worn during gauging operations, respondent persisted in pursuing its respiratory safety program of relying upon customers to advise if hazardous levels of H2S might be present and then to so advise drivers assigned to that site so that the driver might take respiratory equipment with him when dispatched.

The evidence presented compels a finding that respondent did nothing by way of inspection and evaluation (regular or otherwise) to determine the effectiveness of its program.  (Tr. 646, 648, 673, 849, 865, 926, 927)

Complainant has met its burden of proving a violation of item 2C of the citation by a preponderance of the evidence.

The failure to inspect or evaluate prevented respondent from determining the need to provide respiratory equipment when or if needed, but did not directly result in probability of death or serious injury to respondent's employees and was therefore an other-than-serious violation.

Issue 3:

Was the respondent in violation of the standard at 29 CFR 1910.1000(b)(2)?[[9/]]

As discussed under Issue 1, there was here presented a preponderance of evidence to support a finding that an employee of respondent was exposed to concentrations of H2S in excess of those permitted under Table Z-2 on the 30th of August 1984.

Complainant met its burden of proof with respect to item 3 of the citation.

Issue 4:

Were the violations found herein willful, or, failing that, serious?

In its brief the complainant refers us to the comprehensive definition of "Willful" as it appears in the Act which definition has been offered by the Circuit Court of Appeals for the Tenth Circuit:

The failure to comply with a safety standard under the Occupational Safety and Health Act is willful if done knowingly and purposely by an employer, who having a free will or choice, either intentionally disregards the standard or is plainly indifferent to its requirement.  An omission or failure to act is willfully done if done voluntarily and intentionally.  Kent Nowlin Construction v. Occupational Safety and Health Review Commission and Secretary of Labor, 593 F.2d 368 (10th Cir. 1979)

Applying that definition the respondent could be construed to have acted willfully herein or to have willfully failed to act.   However, we are reminded that an intentional act or an intentional failure to act is one in which there is an intellectual apprehension of the end plus the desire for the end result.

In view of the apparently successful practice of standing upwind when opening a thief hatch cover (Tr. 867, 868) and the lack of evidence here as to the extent to which respondent's employees were so trained or not so trained, it is felt that the evidence does not support a finding that respondent's conduct rose to the level of willful.  Respondent's safety training program, enforcement thereof and placing of responsibility for concerns of safety in its organization certainly are not models to be emulated.  There would appear to be areas requiring attention and improvement.  In those items here found to be violations the respondent displayed too casual an approach to its responsibilities and its employees could thereby be exposed to the probability of suffering death or serious physical harm from conditions confronting them in their work environment.

Item 5:

What, if any, penalty would be appropriate?

Giving due consideration to the factors provided by the Act for determining penalties and for the integrated relationship of the violations here found, a total combined penalty in the sum of $1,500.00 is here found to be appropriate; said sum to be apportioned as in the Findings of Fact set forth.

Respondent faults the complainant for what respondent views as lack of evidence as to reasonableness of abatement dates. However, the evidence is to the effect that compliance on the part of respondent does not require time.   Respondent's employees are entitled to immediate protection under the Act.  No delay in abatement should here be countenanced and the abatement date of "immediately upon receipt" is found to be reasonable.

Respondent also argues in its brief that " . . . all citations in this case are statutorily invalid because they were not issued within the time period prescribed in the Act."  The time period relied upon by respondent is not the six months statute of limitations but the "reasonable promptness" requirement set forth in Section 9(a) of the Act.  Such an affirmative defense was not raised specifically in respondent's Answer.  See Secretary v. Hoffman Construction Co., 3 BNA OSHC 1064.

More importantly, however, it is clear from the record in this case that respondent was uncooperative in the investigation required by the Act.  Respondent obstructed the investigation by refusing permission to speak with employees and failing to supply requested records.  Respondent refused access to certain areas and refused to disclose the location of the site requiring investigation.

Perhaps respondent was within its rights to thus perceive its needs to protect its rights, but the result was to present the complainant with obstacles in the investigation and delay its exercise of discretion as to whether and what violations to cite.  Having thus contributed to the delay in issuing the citation and having shown no prejudice resulting to its interests as a result of that time delay, respondent may not defeat the purposes of the Act.  Under the circumstances the citation was issued with reasonable promptness. (Tr. 209-212, 216, 217, 251, 358, 359)

The affirmative defenses raised in respondent's Answer filed herein are not supported by the law or evidence in the record and are without merit

Now having observed the demeanor of the witnesses and having weighed the credibility thereof, there are here entered the following:

Findings of Fact

1.  The factual statements set forth hereinabove under Statement of Facts are not controverted and are incorporated herein by reference.

2.  Respirators were not provided by the respondent to its employee(s) when such equipment was necessary to protect the health of said employee(s).

3.  Respondent's employees are exposed to the risk of overexposure to H2S when engaged in gauging fluid levels at tank batteries generally throughout the Williston Basin of western North Dakota and eastern Montana.

4.  Respondent knew or in the exercise of reasonable diligence could have known of the presence of H2S and the risk of overexposure thereto of employees engaged in gauging fluid levels at tank batteries situated in the Williston Basin area on August 30,1984.

5.  There was a substantial probability that respondent's employees would suffer death or serious physical harm as a result of exposure to H2S should an overexposure occur unless respirators were provided at the point of exposure.

6.  An appropriate penalty to be awarded for the violation of item 1 of the citation is $700.00.

7.  Respondent made no regular inspections or evaluations to determine the effectiveness of its respiratory protection program.

8.  It is appropriate that a penalty in the sum of $100.00 should be assessed for the violation of item 2C of the citation which violation was other-than-serious.

9.  An employee of respondent was exposed to concentrations of H2S in excess of those permitted under table Z-2 of subpart Z of 29 CFR 1910 on the 30th of August 1984.

10.  An appropriate penalty to be awarded for the violation of item 3 of the citation is $700.00.

11.  It is reasonable that abatement of the violations here found should be immediately accomplished.

12.  The citation herein was issued with reasonable promptness.

Conclusions of Law

1.  Respondent is an employer engaged in a business affecting commerce within the meaning of the Act.

2.  Jurisdiction of the subject matter of this proceeding is conferred upon the Commission by section 10(c) of the Act and the Commission has jurisdiction of the parties hereto.

3.  The standard at 29 CFR 1910.134(a)(2) applies to the work activity for which respondent was cited in item 1 of the citation, subject of this action.

4.  Respondent was in violation of the standard at 29 CFR 1910.134(a)(2) and item 1 of Citation No. 1, issued to respondent February 12, 1985, should be affirmed as a serious violation of the Act and a penalty of $700.00 should be assessed.

5.  The evidence fails to support a finding of violation of the standard at 29 CFR 1910.134(b)(3) and item 2A of the citation in question should be vacated.

6.  The evidence fails to support a finding of violation of the standard at 29 CFR 1910.134(b)(8) and item 2B of the citation in question should be vacated.

7.  The standard at 29 CFR 1910.134(b)(9) applies to the work activity for which respondent was cited in item 2C of the citation, subject of this action.

8.  Respondent was in violation of the standard at 29 CFR 1910.134(b)(9) and item 2C of Citation No. 1, issued to respondent February 12, 1985, should be affirmed as an other-than-serious violation of the Act.   A penalty of $100.00 should be assessed.

9.  The standard at 29 CFR 1910.1000(b)(2) applies to the work activity for which respondent was cited in item 3 of the citation, subject of this action.

10.  Respondent was in violation of the standard at 29 CFR 1910.1000(b)(2) and item 3 of Citation No. 1, issued to respondent.

February 12, 1985, should be affirmed as a serious violation of the Act and a penalty of $700.00 should be assessed.

Order

1.  Item 1 of Citation No. 1, issued to respondent February 12, 1985, is AFFIRMED as a serious violation of the Act and a penalty of $700.00 is ASSESSED.

2.  Items 2A and 2B of said Citation No. 1 are VACATED.

3.  Item 2C of said Citation No. 1 is AFFIRMED as an other-than-serious violation of the Act and a penalty of $100.00 is ASSESSED.

4.  Item 3 of said Citation No. 1 is AFFIRMED as a serious violation of the Act and a penalty of $700.00 is ASSESSED.

R. M. Child
Judge, OSHRC

Dated: January 27, 1986

FOOTNOTES:

[[1]] The standard provides:

1910.134 Respiratory Protection.

(a) Permissible Practice.

(2) 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.

[[2]] That standard provides:

1910.1000 Air contaminants.

(b) Table Z-2:

(2) Acceptable ceiling concentrations.
An employee's exposure to a material listed in table Z-2 shall not exceed at any time during an 8-hour shift the acceptable ceiling concentration limit given for the material in the table, except for a time period, and up to a concentration not exceeding the maximum duration and concentration allowed in the column under "acceptable maximum peak above the acceptable ceiling concentration for an 8-hour shift."

The "acceptable maximum peak" column of Table Z-2 lists 50 p.p.m. for hydrogen sulfide. Thus, exposure may not exceed the 50 p.p.m. ceiling at any time. The term "p.p.m." is the same as "p/m" as defined in Table Z-1: the "[p]arts of vapor or gas per million parts of contaminated air by volume . . . . " Thus, Power Fuels' argument that H2S "gas" is not regulated by the standard is incorrect. See also, ANSI Z37.2-1966 (source standard for H2S exposure limits).

[[3]] Power Fuels argues that the citation should be dismissed because:  (1) it was not issued with reasonable promptness, and (2) the inspection was invalid under the Fourth Amendment.  However, those specific issues were not raised in Power Fuels' pleadings, and there is no indication that they were tried by consent, express or implied.  Therefore, we will not consider these defenses in these circumstances.  Commission Rule 36(b)(1) (all affirmative defenses, including reasonable promptness, must be pled); Gannett Corp., 4 BNA OSHC 1383, 1385, 1976-77 CCH OSHD 20,915, pp. 25,114-15 (No. 6352, 1976) (same).  See also, Fed. R. Civ. P. 15(b) (unpleaded issues may be considered where tried by express or implied consent). Cf., William B. Hopke Co., 12 BNA OSHC 2158, 2161, 1986-87 CCH OSHD 27,729, pp. 36,257-58 (No. 81-206, 1986) (no attorneys' fees would be awarded where defense on which employer relied was stated so generally that other party would not have been aware of weakness in its case).

[[4]] Salt water is found in the geological substrata in that area.  It is hauled from one wellsite to another and is used to push oil to the surface.  The used salt water is disposed of when the H2S content is considered too high for further use.

[[5]] The four conditions noted were:

I.    Bruise, recent, right anterolateral chest.
II.   Congestion, lungs, severe.
III.  Granulomatous inflammation, lungs, lymph nodes and liver, etiology undetermined.
IV.  Kyphoscoliosis, severe.

[[6]] The H2S booklet that was part of Power Fuels' safety program makes these points clearly.  For example, it states: "You cannot rely on your nose to tell you how much H2S gas is present. Wear Your Breathing Apparatus."  ESSE International, Inc., "H2S: The Killer!", p. 7.  The booklet also notes that H2S causes unconsciousness quickly at about 700 p.p.m. As noted above, tests made by Power Fuels the day after Nelson's death found H2S gas levels of at least 1600 p.p.m. in the tank.

The booklet also makes it clear that to determine whether H2S is present, a technical device should be used. Listed examples of detecting devices are: lead acetate, ampoules or coated strips, electronic detectors, air sampling gas detector tubes, and fixed systems.

[[7]] Power Fuels argues that the requirement of the citation that it abate the hazards immediately is unreasonable.  This assertion is untenable.  Power Fuels had the necessary means of compliance --SCBA respirators -- at the Watford City office even before the fatality.  It also was on notice of the requirement that it maintain a respirator program because of a previous citation, among other things.  Where the contest is initiated in good faith, abatement requirements under the Act do not take effect until entry of a final order by the Commission. 10(b) of the Act, 29 U.S.C. 659(b).

[[8]] The current Commission rules adopt the F.R.E. in full.  29 C.F.R. 2200.71.

[[9]] For example, Power Fuels was on notice from the Secretary's letter of June 10, 1985, that no signed answers were filed at that time. (June 10, 1985, is the filing date for those answers relied on by Power Fuels.) The judge even noted at the hearing that the significance of the interrogatories had not been brought to his attention. Power Fuels' claims that the judge disregarded discovery responses seems disingenuous in light of its failure to bring them up at the appropriate time.

[[10]] At various points Power Fuels argues that knowledge has not been established because the Secretary's discovery admissions and answers to its interrogatories limited the issues solely to "the facts and circumstances surrounding the fatality of . . . David Nelson . . . on August 30, 1984."  However, its request for an admission to that effect was denied by the Secretary.  Power Fuels further represents that the Secretary admitted in discovery that she did not know the concentration of H2S gas at the Gilbertson site on or before August 30, 1984.  However, Power Fuels' request for admission was inadequate to produce such an admission.  The request stated, "Complainant does now know what amount, level or concentration of H2S or hydrogen sulfide gas existed at the said site when David Nelson arrived there on August 30, 1984, or at any time prior thereto."  (Emphasis added.)  The Secretary's agreement with that statement does not help Power Fuels.

[[11]] The Commission's rule is comparable to the requirements of the Federal Rules of Civil Procedure.  See, e.g., Fed. R. Civ. P. 11.  See also, former Commission Rule 30(c), former 29 C.F.R. 2200.30(c) (similar requirement, in effect when this case began).  We also note that Commission Rule 104(a) states, "All representatives appearing before the Commission and its judges shall comply with the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association [ABA]."  The relevant ABA Model Rules prohibit attorneys from:  (1) asserting or controverting issues on merely frivolous grounds; (2) failing to make reasonable efforts to expedite litigation; and (3) making false statements of material fact or law to the tribunal.  ABA, Model Rules of Professional Conduct 3.1 to 3.3 (1983).

[[12]] The modest penalty required in this case may not be sufficient, in and of itself, to bring home to Power Fuels the importance of abating the kind of H2S safety program violation involved here and in its previous citation.  Thus, we note that its violation here arguably was willful, and was one of many apparent failures in Power Fuels' H2S safety program.

As noted above (n. 6 supra and accompanying text) , Power Fuels' H2S safety booklet stated that respirators are needed when any H2S is present, and that H2S levels should be detected with a scientific device, not the sense of smell. That booklet and certain other evidence suggests that Power Fuels was fully aware that its safety precautions at the time of the Nelson incident were inadequate.

Power Fuels did not implement an appropriate safety program for H2S, and there is no indication that its employees were properly trained to detect H2S.  Its supervisors testified that they relied on their sense of smell to avoid H2S.  In fact, Power Fuels' H2S safety program was amorphous.  It did not have a safety director with overall responsibility for developing and implementing the company's safety program.  Tuhy, its safety representative, testified that he did not formulate the company's safety policy, and was not sure who did.  He testified that he was not its safety director, and he did not consider himself responsible for employee training. The crucial importance of proper training is underscored by the fact that Nelson was a new employee, with less than two months on the job.

Furthermore, Power Fuels did not have an emergency response program or other method of aiding an employee on a site such as the Gilbertson Lease.  Rescue plans are crucial because H2S gas normally is not an immediate killer, even where an employee is overcome. See 29 C.F.R. 1910.134 (e)(3)(iii).  In addition, Power Fuels showed no evidence of having a disciplinary program for violations of its relevant safety rules.  The deficiencies in its safety program were widespread and unexplained on this record.

[[1/]] The citation reads:
1
29 CFR 1910.134(a)(2):  Respirators were not provided by the employer when such equipment was necessary to protect the health of the employee(s):

(a) On or about August 30, 1984, at the Gilbertson Tank Battery site, located approximately 4 miles north of Keene, North Dakota, respiratory equipment was not provided for an employee gauging oil tanks where hydrogen sulphide gas was present.

(b) On or about August 31, 1984, at the Gilbertson Tank Battery site, located approximately 4 miles north of Keene, North Dakota, respiratory equipment was not worn by an employee performing rescue operations in the presence of hydrogen sulphide gas.

[[2A/]] The citation reads:
2A
29 CFR 1910.134(b)(3):  The users of respirators were not instructed and trained in the proper use of respirators and their limitations:

(a) On or about August 30, 1984, where an employee was required to gauge tanks at the Gilbertson Tank Battery site, located approximately 4 miles north of Keene, North Dakota, where excessive amounts of hydrogen sulphide gas was present.

[[2B/]] The citation reads:

2B
29 CFR 1910.134(b)(8):  Appropriate surveillance of work area conditions and degree of employee exposure or stress was not maintained:

(a) On or about August 30, 1984, at the Gilbertson Tank Battery site, located approximately 4 miles north of Keene, North Dakota, to determine employee exposure to hydrogen sulphide gas.

[[2C/]] The citation reads

2C
29 CFR 1910.134(b)(9):  There were no regular inspections and evaluations to determine the continued effectiveness of the respirator program:

(a) On or about August 30, 1984, where an employee was required to work at oil tank battery sites where hydrogen sulphide gas was present.

[[3/]] The citation reads:

3
29 CFR 1910.1000(b)(2):  Employee(s) were exposed to material(s) in excess of the acceptable maximum peak concentration(s) allowed in the column in Table Z-2 of subpart Z of 29 CFR part 1910 under "Acceptable Maximum Peak Above the Acceptable Ceiling Concentration for an 8-hour Shift":

(a) On or about August 30, 1984, at the Gilbertson Tank Battery site, located approximately 4 miles north of Keene, North Dakota, an employee was overexposed to hydrogen sulphide gas while gauging oil storage tanks.

[[4/]] The designation "RFA" refers to Requests for Admission of record in this action.

[[5/]] The standard reads:

1910.134 Respiratory Protection.

(a) Permissible Practice.

(2) 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 . . . .

[[6/]] The standard reads:

1910.134 Respiratory Protection.

(b) Requirements for a minimally acceptable program.

3. The user shall be instructed and trained in the proper use of respirators and their limitations.

[[7/]] The standard reads:

1910.134 Respiratory Protection.

(b) Requirements for a minimally acceptable program.

(8) Appropriate surveillance of work area conditions and degree of employee exposure or stress shall be maintained.

[[8/]] The standard reads:

1910.134 Respiratory Protection.

(b) Requirements for a minimally acceptable program.

(9) There shall be regular inspection and evaluation to determine the continued effectiveness of the program.

[[9/]] The standard and the table in pertinent part read:

1910.1000 Air Contaminants.

(b) Table Z-2:

(2) Acceptable ceiling concentrations.  An employee's exposure to a material listed in table Z-2 shall not exceed at any time during an 8-hour shift the acceptable ceiling concentration limit given for the material in the table, except for a time period, and up to a concentration not exceeding the maximum duration and concentration allowed in the column under "acceptable maximum peak above the acceptable ceiling concentration for an 8-hour shift."

TABLE Z-2

Material 8-hour time weighted average Acceptable ceiling concentration Acceptable maximum peak above the acceptance ceiling concentration for an 8-hour shift
Hydrogen sulfide

(Z37.2-1966)

............................................................................ 20 p.p.m. 50 p.p.m.....10 minutes once only if no other measurable exposure occurs