SECRETARY OF
LABOR, |
|
Complainant, |
|
v. |
OSHRC
Docket No. 98-2105 |
NOBLE DRILLING,
INC., |
|
Respondent. |
|
Before: RAILTON, Chairman; ROGERS and STEPHENS,
Commissioners.
BY THE COMMISSION:
Noble Drilling, Inc., (“Noble”)
conducts offshore oil drilling from mobile offshore drilling units (“MODUs”) on
the Outer Continental Shelf. Until mid-1997, one such unit, the Paul Romano,
was in active service as a U.S. flagged, submersible vessel holding a requisite
certificate of inspection, issued by the Coast Guard under the statutory
authority of 46 U.S.C. § 3306 and 46 C.F.R. § 2.01-5. Having such a certificate
signifies that, as a condition of operating, the MODU must comply with a
comprehensive body of Federal law and regulations administered by the Coast
Guard (14 U.S.C. § 2) and designed to secure the safety of individuals and
property on board vessels. See generally 46 U.S.C. § 3301 et seq.
This regulatory scheme limits the reach of OSHA’s jurisdiction under the
preemption provision of section 4(b)(1) of the OSH Act, 29 U.S.C. § 653(b)(1),
which is intended to avoid the problems associated with overlapping regulation.
In order to effectuate its conversion to
a semi-submersible MODU, Noble Drilling took the vessel out of operation and as
of the summer of 1997 docked it at the Ham Marine Shipyard in Pascagoula,
Mississippi. Upon its entry to the shipyard, Noble surrendered the vessel’s
certificate of inspection to the Coast Guard, whereupon the Coast Guard treated
the vessel as “uninspected” for purposes of defining the scope of its
authority.
On August 25, 1998, in the midst of the
conversion process, an electronics technician employed by Noble sustained a
fatal fall while attempting to descend the shaft of a newly installed elevator,
which had become disabled well below the top deck due to mechanical
difficulties. The technician sought to reach the elevator by climbing down the
structural supports of the rails on which the elevator traveled.
Following an initial investigation of
the accident by the Coast Guard, which determined that it did not have
authority over the matter based on its treatment of the vessel as
“uninspected,” OSHA conducted an investigation and issued the citation under
review. OSHA alleged violations of Part 1915 governing shipyard repair (the
requirements for adequate illumination under section 1915.92(a) and for
ensuring personal protective equipment under section 1915.152(a)) and
violations of Part 1910 governing general industry standards (the requirements
for use of fixed ladders under section 1910.27(c)(1), (4), and (6)).
Noble contested the citation, arguing
that OSHA’s authority to cite it was preempted by the U.S. Coast Guard, and
that the five citation items had no merit. Administrative Law Judge Ken S.
Welsch issued a decision in which he found that Noble did not prove its
affirmative defense of preemption. However, he also concluded that the
Secretary failed to prove that the cited standards were violated and ordered
vacation of the citations.
The Secretary petitioned for review of
the vacation of the citations on the merits, and Noble filed a conditional
review petition on the judge’s determination that the Coast Guard had not
generally preempted OSHA’s jurisdiction. Review was directed on both petitions.
On the question of preemption, the briefing order to the parties cited the
intervening decision of the Supreme Court in Chao v. Mallard Bay Drilling,
Inc., 534 U.S. 235 (2002), which involved an appeal of a final decision of
a Commission ALJ rejecting a somewhat similar preemption challenge to OSHA’s
jurisdiction over a gas and oil exploration barge. The Commission also invited the
Coast Guard to file an amicus brief addressing its authority in the
context of this case.
Turning first to the Secretary’s
petition, we find that the ALJ correctly explained why the alleged violations
were without merit and affirm the vacation of the citations for the reasons set
forth in his decision. See attached decision. While this disposition
would normally permit us to conclude our review in light of the conditional
nature of Respondent’s petition on the preemption issue, we nevertheless find
it appropriate to consider the question.
Noble launches a broad attack on OSHA’s
authority over the Paul Romano. It claims that by the drilling rig
having previously attained “inspected” status, the preemptive effect of the
Coast Guard’s authority on OSHA jurisdiction continued unchanged during the
conversion work at the Ham Marine Shipyard. We find this argument unpersuasive.
As explained by the Supreme Court in Mallard Bay,
“OSHA’s regulations have been pre-empted with respect to inspected
vessels, because the Coast Guard has broad statutory authority to regulate the
occupational health and safety of workers aboard inspected vessels, 46
U.S.C. § 3306 (1994 ed. and Supp. V), and it has exercised that authority.” However, the Court also
confirmed that “uninspected” vessels “present an entirely different regulatory
situation”:
Nearly all of the Coast
Guard regulations responsible for displacing OSHA’s jurisdiction over inspected
vessels . . . do not apply to uninspected vessels. . . . Rather, in the context
of uninspected vessels, the Guard’s regulatory authority – and the exercise
thereof – is more limited. . . .[T]he Guard regulates matters related to marine
safety, such as fire extinguishers, life preservers, engine flame arrestors,
engine ventilation, and emergency locating equipment.
534
U.S. at 243-44, citing 46 U.S.C. § 4102.
Because the oil and gas exploration barge in Mallard
Bay had never been inspected by the Coast Guard nor was required to be so
inspected, the Court concluded that for purposes of section 4(b)(1), the Coast
Guard had not preemptively asserted comprehensive regulatory authority over the
barge. Similarly, it found that the uninspected barge’s inland drilling
operations that gave rise to OSHA’s investigation did not implicate the limited
range of marine safety subjects over which the Coast Guard concededly had
authority. Thus the Court affirmed the Commission judge’s finding that OSHA’s
jurisdiction was not preempted.
The instant case is factually distinguishable from Mallard
Bay, but we find that the distinction is not legally significant for
purposes of determining OSHA’s authority. Unlike the Mallard Bay barge,
the Paul Romano had previously received a certificate of inspection and
therefore was classified as an “inspected” vessel that was subject to the
panoply of regulations promulgated and administered by the Coast Guard. Under
section 4(b)(1), OSHA’s jurisdiction was undoubtedly preempted during this
phase of the vessel’s active service. Moreover, Noble points out that once the
modifications were concluded, as a condition for returning the vessel to
service, Noble would again have to obtain certification from the Coast Guard,
thus reestablishing the Paul Romano’s status as an “inspected” vessel. The gist of Noble’s argument to
us is that the Coast Guard’s preemptive authority does not cease during what
Noble concededly describes as “a window whereby [Coast Guard] standards are not
directly applicable.”
The fundamental problem with Noble’s position is that
it papers over the crucial fact that at the time of the circumstances giving
rise to the citation, the Paul Romano possessed neither a certificate of
inspection nor a letter of compliance issued by the Coast Guard. As succinctly
explained in the Coast Guard’s amicus submission:
Where, as in the case
of the Paul Romano at the time of the incident in question, the vessel
does not yet have a certificate of inspection issued by the flag state because
it is still undergoing shipyard conversion or repair, the Coast Guard does not
inspect it until after the flag state has issued its certificate of inspection.
It can not engage in commercial activity until after such certificate has been
obtained. Until that time, it is not subject to Coast Guard inspection.
Accordingly, the Coast Guard would treat it as an “uninspected vessel”.
This leads the Coast Guard to conclude that it did not
have exclusive, comprehensive authority over the Paul Romano during this
interim period.
Noble Drilling advances no
counterargument to demonstrate that the Coast Guard’s position is flawed, nor
is it self-evident to us that the Coast Guard’s interpretation of its authority
is in any way inconsistent with the language of either the statutory provisions
of 46 U.S.C. Chapter 41 or the implementing regulations. Nor has the Respondent
shown that the Coast Guard’s position is otherwise unreasonable such that it
should not be accorded “considerable weight.” Alaska Trawl Fisheries, Inc.,
15 BNA OSHC 1699, 1703, 1991-93 CCH OSHD ¶ 29,758, p.40,448 (No. 89-1192,
1992)(consolidated). Respondent does advance a policy argument, grounded in
longstanding Fifth Circuit precedents beginning with Donovan v. Texaco,
720 F.2d 825 (5th Cir. 1983), that it should not face the dilemma of
complying with conflicting regulatory authority as its rig “steam[s] in and out
of OSHA coverage” by simply entering or departing the ports of the United
States. 720 F.2d at 829. However, we think the Supreme Court in Mallard Bay
may have called into question the reach of the Donovan doctrine. This is
the logical implication of the Court’s reversal of the Fifth Circuit’s holding
below that the Coast Guard had exclusive jurisdiction over the “uninspected”
barge, for that holding (now overturned) had relied in part upon Donovan. Thus, we are reluctant to find
that the Donovan doctrine gives Respondent’s position compelling force,
especially since Respondent has made no effort to explain the contours of the Donovan’s
doctrine in the wake of Mallard Bay.
Finally, we note that the Respondent
does not urge preemption on the alternative basis described by the Mallard
Bay Court, namely that the working conditions under review fall within
those specific categories pertaining to marine safety set forth in 46 U.S.C.
that are applicable to “uninspected” vessels. But such an argument would be
unavailing, in any event. The hazardous conditions associated with the subject
of the citations here – the illumination of the working area, use of personal
protective equipment, and the purported ladder which the judge determined was
not a ladder – simply do not fall within any of the following preempted
categories – fire extinguishers, life preservers, engine flame arrestors,
engine ventilation, and emergency locating equipment.
In sum, we find that Noble failed to
prove entitlement to the exemption. Accordingly, OSHA retained authority to
investigate and issue citations against Noble Drilling under applicable
standards in connection with the conversion work on the Paul Romano during
its treatment by the Coast Guard as an “uninspected” vessel.
Chairman
/s/
Thomasina
V. Rogers
Commissioner
/s/
James
M. Stephens
Dated:
November 18, 2003 Commissioner
Secretary of Labor, |
|
Complainant, |
|
v. |
OSHRC Docket No. 98-2105 |
Noble Drilling (U.S), Inc., |
|
Respondent. |
|
APPEARANCES
Kathleen
G. Henderson,
Esq. Ken
B. Ryan, Esq.
Office
of the Solicitor Michael
A. McGlone, Esq.
U.
S. Department of
Labor Lemle
& Kelleher, L.L.P.
Birmingham,
Alabama New
Orleans, Louisiana
For
Complainant For
Respondent
Before: Administrative Law Judge Ken S. Welsch
DECISION AND
ORDER
Noble
Drilling (U. S.), Inc., contests a five-item citation issued by the Secretary
on November 30, 1998. The Secretary issued the citation following an inspection
conducted by Occupational Safety and Health Administration (OSHA) compliance
officer William Chandler on August 26, 27, and 28, 1998. OSHA’s inspection
resulted from an employee fatality on August 25, 1998, when Noble electronics
technician Robert Kitzinger fell to his death in an elevator shaft aboard a
mobile offshore drilling unit (MODU) located at Ham Marine Shipyard in
Pascagoula, Mississippi.
The
Secretary alleges that Noble was in serious violation of §§ 1910.27(c)(1), (4),
and (6), which address fixed ladders (items 1, 2, and 3, respectively); §
1915.92(a) for failure to provide adequate illumination for shipboard working
areas (item 4); and § 1915.152(a) for failure to ensure employees use
appropriate personal protective equipment (PPE) (item 5). The Secretary
proposed penalties of $5,000.00 for each alleged violation.
A
hearing was held in this matter on April, 22, 23, 27, and 28, 1999, in Mobile,
Alabama. Noble stipulates that it is an employer engaged in a business
affecting commerce (Tr. 5). Noble contests OSHA’s jurisdiction, arguing that
OSHA is preempted by the U. S. Coast Guard. Noble also argues that the cited
standards addressing fixed ladders are inapplicable to the cited conditions and
that any violations the court may find are the result of unpreventable employee
misconduct. The parties have filed post-hearing briefs.
For
the reasons discussed, the court finds that OSHA had jurisdiction over the
investigation, and that items 1 through 5 are vacated.
Background
Noble
engages in the business of offshore oil-drilling, which it typically performs
from MODUs (Tr. 21, 25). At the time of the hearing, Noble had 47 MODUs
worldwide (Tr. 731-732). In August, 1998, Noble was in the process of
converting five MODUs from submersible rigs to semi-submersible rigs, in what
was known as the “Eva Project.” To that end, the five MODUs were docked at the
Ham Marine Shipyard in Pascagoula, Mississippi (Tr. 22, 127-128).
The
MODU in question, the Paul Romano, was originally constructed in 1981 at
Ingalls Shipyard as a submersible rig, which means that it rested directly on
the sea bed when used for oil- drilling (Tr. 541, 754). At the time of the
accident, Noble was converting the Paul Romano to a semi-submersible
rig, which means that it would float in the water after being anchored to the
sea bed during oil-drilling (Tr. 22-23). The conversion process took
approximately 16 months (Tr. 65).
The
Paul Romano measures approximately 130 feet from the main deck to the
bottom of the rig (Tr. 23). When in operation, it weighs approximately 25,000
tons (Tr. 120). The platform of the Paul Romano is triangular. Each side
is approximately 235 feet long. The platform rests on three columns. As part of
the conversion process, an elevator was installed in a forward support column
of the rig. The 130-foot shaft of the new elevator ran from the main deck to
the pontoon deck, with no stops in between (Exhs. C-1, C-3; Tr. 34-35, 44).
On
the morning of August 25, the new elevator was malfunctioning. The elevator car
was stuck just above the pontoon level of the MODU. Noble electronics
technician Robert Kitzinger woke up Noble electrician Robert Wallis and
informed him of the malfunction. Wallis, who had been working until the early
hours of August 25 on another electrical malfunction, told Kitzinger to give
him a few minutes to wake up and he would look at it (Tr. 390).
For
some reason, Kitzinger decided to attempt to repair the elevator himself. He
asked fellow electronics technician Ed Seger to help him. Kitzinger and Seger
went to the elevator access door on the main deck, opened it, and looked down
the shaft (Tr. 479). A tower (elevator mechanism) ran down the length of the
elevator shaft. It was located across the circular shaft (which was
approximately 6½ feet in diameter) from the access door. The tower consists of
two vertical members that are supported by cross members. There is also a rack,
or linear gear, located between the vertical members and attached to the
elevator car (Exhs. C-4, C-5, C-6: Tr. 418).
Kitzinger
and Seger placed two 2 x 4s across the elevator shaft between the access door
and the cross members on the opposite side. Kitzinger walked across the boards
while Seger held them in place at the access door opening. Kitzinger began
descending the cross members. He was using no fall protection. During this
process, Seger repeatedly told Kitzinger that he did not think descending the
elevator shaft was a good idea and that they should wait for Wallis. Kitzinger
ignored Seger (Tr. 477-484).
When
Kitzinger was approximately halfway down the shaft, he stopped and called to
Seger that he was tired and wanted Seger to go get help. Seger told a Ham
construction employee standing nearby to keep talking to Kitzinger. Seger ran
to the office of Jack Frost, Noble’s safety training specialist, and told him
that there was an emergency situation (Tr. 488-489). When Frost got to the
access door, he looked in and saw Kitzinger approximately halfway down.
Kitzinger appeared extremely frightened and began to scream in panic. He
started descending the cross members. After two or three steps, he stopped. Kitzinger
screamed again and fell from the cross members to the top of the stuck elevator
car. Kitzinger sustained fatal injuries (Tr. 233-234).
Preemption
Issue
Noble
argues that the Paul Romano is exempt from the requirements of the
Occupational Safety and Health Act of 1970 (Act) because, under § 4(b)(1) of
the Act, the U. S. Coast Guard preempts OSHA’s jurisdiction. This is an
affirmative defense and Noble has the burden of proving such preemption.
Section
4(b)(1) of the Act provides:
Nothing in this Act shall apply to working conditions of employees with
respect to which other Federal Agencies, and State agencies acting under
section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021),
exercise statutory authority to prescribe or enforce standards or regulations
affecting occupational safety and health.
In
evaluating an employer’s § 4(b)(1) argument, the Commission considers “(1)
whether the other federal agency has the statutory authority to regulate the
cited working conditions, and (2) if that agency has that authority, whether
the agency has exercised it over the cited conditions by issuing regulations
having the force and effect of law.” MEI Holdings, Inc., d/b/a Martin
Electronics, Inc., 2000 OSHRC No. 1, pp. 2-3 (No. 96-740, 2000).
Noble
argues that the Coast Guard had the statutory authority to regulate Kitzinger’s
attempt to fix the malfunctioning elevator of the Paul Romano. Noble
finds this authority in 46 U.S.C. § 3301, which empowers the Coast Guard
“to administer laws and promulgate and enforce regulations for the protection
of safety of life and property on and under the high seas and water subject to
the jurisdiction of the United States[.]”
Noble
contends that the Coast Guard’s jurisdiction over the accident is supported by Donovan
v. Texaco, Inc., 720 F.2d 825 (5th Cir. 1983). In Texaco, a Coast
Guard-licensed engineering officer employed on Texaco’s deep sea fleet
complained of retaliation under § 11(c) of the Act. The Fifth Circuit Court of
Appeals (in whose circuit the instant case arises) states at the outset of its
opinion, “It is the law of this circuit that OSHA regulations do not apply to
working conditions of seamen on vessels in navigation[.]” Texaco, 720
F.2d at 826. The court goes on to discuss the unique circumstances of the
working and living conditions of seamen, which justify special restrictions on
their rights as employees. The court concludes that finding OSHA jurisdiction
over the working conditions of vessels in navigation would produce the
anomalous result of vessels “steaming in and out of OSHA coverage.” Id. at
829.
The
record establishes, however, that the Coast Guard itself concluded it did not
have jurisdiction over the Paul Romano at the time of the accident.
Following Kitzinger’s fall, the Coast Guard visited the Paul Romano.
OSHA compliance officer Chandler explained how it came about that OSHA, and not
the Coast Guard, assumed jurisdiction over the investigation (Tr. 542-543):
The Coast Guard indicated that the vessel did not have a certificate of
inspection and that therefore, they did not have jurisdiction; that they wanted
OSHA to conduct the investigation into this accident. They had conducted an
initial visit to the site and then found that the man had fallen and asked OSHA
for assistance.
On the way down to conduct the inspection, I received a page in
Hattiesburg from my office and was directed to go to the United States Coast
Guard office here in Mobile. When I arrived, I met with Commander Foster and
discussed the situation. We ended up calling my office, having a conference
call with my [OSHA] Area Director, Clyde Payne, [OSHA Assistant Area Director] Mr.
Stewart . . . and [Chief Coast Guard Investigations Officer Commander Robert]
Foster and I believe Lt. Johnson who had conducted the initial Coast Guard
investigation into this matter. It was discussed that the Coast Guard did not
have jurisdiction on vessels unless it was--unless it was a United States
vessel and had a certificate of inspection.
I have later learned that the Noble-Paul Romano surrendered its
certificate of inspection on May 27th of 1997. The next day they were
re-flagged under the flag of Panama on May 28, 1997. That in our minds--and
when I say “our,” mine and Clyde Payne’s and Eugene Stewart’s--satisfied that
we had jurisdiction.
James
Gormanson, compliance manager for Noble, explained that vessels that are U.
S.-owned and certificated by the Coast Guard as a U. S. vessel are required to
hold a certificate of inspection in order to work on the outer continental
shelf of the United States. A vessel operating under a foreign flag on the
outer continental shelf of the United States must hold either a certificate of
inspection or a letter of compliance issued by the Coast Guard (Tr. 732-733).
At the time of the inspection, the Paul Romano held neither.
When
the Paul Romano entered the Ham Marine Shipyard, Noble surrendered its
certificate of inspection to the Coast Guard and announced that it intended the
rig to “reflag to Panama” (Tr. 754). The Coast Guard issued the Paul
Romano a letter of compliance on December 2, 1998, four months after the
accident (Tr. 759). The rig was reflagged under Panama’s flag on May 27, 1998
(Tr. 755).
At
the time of OSHA’s inspection, the MODU did not hold a certificate of
inspection or a letter of compliance. The Coast Guard classified it as an
undocumented, uninspected vessel (Tr. 754-755, 761-762). It had been in
the Ham Marine Shipyard for over a year, undergoing extensive changes. The rig
was located in a stationary position within the territorial boundaries of
Mississippi, on the Singing River. The Paul Romano was not
self-propelled; it had to be towed out to sea (Tr. 25). The work Noble’s
employees were engaged in while the rig was in the shipyard was not related to
navigation. The rig was not operating upon the navigable waters of the United
States.
In
Tidewater Pacific, Inc., 17 BNA OSHC 1920, 1923 (No. 93-2529, 1997), the
Commission held “that OSHA has authority to enforce the OSH Act with respect to
vessels that are located in U.S. territorial waters.” Under Tidewater, the
Paul Romano was a workplace subject to OSHA jurisdiction at the time of
the accident.
Assuming
the Coast Guard had the statutory authority to regulate the Paul Romano, even
though it was an undocumented, uninspected rig located in a shipyard, Noble
has the burden of proving the Coast Guard has issued regulations covering the
cited conditions. In Tidewater, the Commission found that the Coast
Guard regulates uninspected vessels only to a minimal degree. Relying on the
Coast Guard’s amicus brief, the Commission found that with regard to
uninspected vessels, the Coast Guard’s (Id., 17 BNA at 1924):
[A]uthority to regulate these vessels is, in relevant part, limited
solely to those areas delineated in 46 U.S.C. Chapter 41, which provides for
regulation concerning (a) number, type, and size of fire extinguishers; (b)
type and number of life preservers; (c) flame arrestors, backfire traps, or
similar devices on vessels with gasoline engines; (d) ventilation of engine and
fuel tank compartments; and (e) number and type of alerting and locating
equipment for vessels on the high seas. The Coast Guard describes the purpose
of such regulations as “protect[ing], in the event of an emergency, individuals
on board and . . .ensur[ing] the safe operation of the vessel,” and contrasts
this limited authority with the comprehensive regulation of inspected vessels
authorized under 46 U.S.C. § 3306(a) (regulation of inspected vessels).
None
of the five regulated types of equipment is at issue here. Conversely, the
items that are at issue (ladders, lighting, and personal protective equipment
for fall protection) are omitted from the limited regulations for uninspected
vessels.
In
Tidewater, the Commission notes that the respondent (like Noble in the
instant case) could appeal the Commission’s decision to the Fifth Circuit,
where the Texaco decision is precedent. The Commission acknowledges
that, “Where it is highly probable that a case will be appealed to a particular
circuit, the Commission generally has applied the law of that circuit in
deciding the case, even though it may differ from the Commission’s law.” Id.,
17 BNA at 1926. The Commission proceeds to find that Texaco, as well
as Clary v. Ocean Drilling and Exploration Co., 609 F.2d 1120 (5th Cir.
1980) (OSH Act does not apply to working conditions of seamen on vessels
operating on the high seas), are distinguishable from Tidewater because
they “have left undecided the precise question of OSH Act applicability to
uninspected vessels.” (Id., 17 BNA at 1927, citations omitted):
In neither of the cases considered by the court did it differentiate
between the extensive degree to which the Coast Guard regulates inspected
vessels and the minimal degree to which it regulates those that are
uninspected. The vessel classifications in those cases were not identified,
although the court’s consideration in Donovan v. Texaco of the MOU
between the Coast Guard and OSHA suggests that the vessel there was inspected.
720 F.2d at 827 n. 3. Moreover, the court relied in both cases on Commission
precedent, subsequently overruled, suggesting that OSHA lacks jurisdiction over
the working conditions of seamen. Most significantly in Clary, the court
found that the cited OSHA construction and shipbuilding regulations did not, by
their own terms, pertain to the special purpose drilling vessel on which the
injured seaman worked. 609 F.2d at 1122. This fact alone would have been
sufficient to decide the case. . . . Similarly, the court’s finding in Donovan
v. Texaco, that the Coast Guard’s regulations included protections
“parallel” to those contained in section 11(c), would have been sufficient to
dismiss the Secretary’s case.
The
Commission also addresses the Fifth Circuit’s concern that finding jurisdiction
under the OSH Act would lead to the anomaly of vessels steaming in and out of
coverage. The Commission notes that OSHA regulations apply only to those
working conditions not regulated by the other agency. More pertinent to the
present case, the Commission states, “As to the uninspected fleet, OSHA
provides the only significant regulation of non-navigational working
conditions for seamen employed on these vessels. Absent OSH Act coverage, these
conditions would be completely unregulated.” Tidewater, 17 BNA at 1928.
The
Paul Romano surrendered its certificate of inspection on May 27, 1997.
It did not receive a letter of compliance until December 2, 1998. Thus, at the
time of the accident it did not have a certificate of inspection or its
equivalent; therefore, it was uninspected. As such, the Coast Guard had no
regulations covering the cited working conditions. Noble has failed to
establish that the Coast Guard preempted OSHA’s jurisdiction over the Paul
Romano.
The
court finds that OSHA properly exercised jurisdiction over the rig.
The Citation
The
Secretary has the burden of proving her case by a preponderance of the
evidence.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability of the
cited standard, (b) the employer’s noncompliance with the standard’s terms, (c)
employee access to the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation (i.e., the employer either knew
or, with the exercise of reasonable diligence could have known, of the
violative conditions).
Atlantic Battery Co., 16 BNA OSHC 2131,
2138 (No. 90-1747, 1994).
In
order to establish that a violation is “serious” under §17(k) of the Act, the
Secretary must establish that there is a substantial probability of death or
serious physical harm that could result from the cited condition. In
determining substantial probability, the Secretary must show that an accident
is possible and the result of the accident would likely be death or serious
physical harm. The likelihood of the accident is not an issue. Spancrete
Northeast, Inc., 15 BNA OSHC 1020, 1024 (No. 86-521, 1991).
Items 1, 2, and
3: Alleged Serious Violations of §§ 1910.27(c)(1), (4), and (6)
The
Secretary alleges that Noble committed serious violations of §§ 1910.27(c)(1),
(4), and (6), which provide:
(c) Clearance--(1) Climbing side. On fixed ladders, the
perpendicular distance from the centerline of the rungs to the nearest
permanent object on the climbing side of the ladder shall be 36 inches for a
pitch of 76 degrees, and 30 inches for a pitch of 90 degrees (fig. D-2 of this
section), with minimum clearances for intermediate pitches varying between
these two limits in proportion to the slope, except as provided in
subparagraphs (3) and (5) of this paragraph.
. . .
(4) Grab bars. Grab bars shall be spaced by a continuation of the
rung spacing when they are located in the horizontal position. Vertical grab
bars shall have the same spacing as the ladder side rails. Grab-bar diameters
shall be the equivalent of the round-rung diameter.
. .
.
(6) Step-across distance. The step-across distance from the
nearest edge of ladder to the nearest edge of equipment or structure shall not
be more than 12 inches, or less than 2½ inches (fig. D-4).
Noble
contends that the cited standards do not apply to the cited conditions because
the structure Kitzinger climbed down was not a ladder within the meaning of §
1910.27. Section 1910.21(e) provides:
As used in § 1910.27, unless the context requires otherwise, fixed ladder
terms shall have the meanings ascribed in this paragraph.
(1) Ladder. A ladder is an appliance usually consisting of two
side rails joined at regular intervals by cross-pieces called steps, rungs or
cleats, on which a person may step in ascending or descending.
(2) Fixed ladder. A fixed ladder is a ladder permanently attached
to a structure, building, or equipment.
As
the Secretary points out, OSHA’s definition of a ladder depends upon two
factors: (1) its appearance and (2) whether a person may step on its
cross-pieces in ascending and descending. Nowhere does the definition mention
the purpose or intention behind the design of the device as being relevant. The
Secretary argues that the structure inside the rig’s elevator shaft meets the
physical description of the ladder, and is thus covered under § 1910.27.
The
Secretary’s reasoning is sound in the abstract, but it does not accommodate the
concrete realities of the situation. The structure at issue is the track along
which the elevator car moves. It is part of the elevator’s mechanism. It was not
designed as a ladder and its use as a ladder was not anticipated (Tr. 348). No
ready access to the structure is available. In order to reach the structure,
Kitzinger had to lay two boards across the 6½ foot gap between the access door
and the structure. There is no evidence that other employees, including those
of the elevator company, had previously used the tower structure to access the
elevator.
The
Secretary cited Noble for violations of the ladder standard because the
dimensions of the structure did not meet the requirements for ladders. The
Secretary would have Noble ask the elevator company to modify its elevator
mechanism so that the tower structure on which the elevator runs (which is not
intended to be used as a ladder and which a person must go to a good deal of
trouble even to reach) complies with the ladder standard. This would require an
employer to anticipate the unexpected.
The Commission has a “responsibility to be ‘reasonable’ in interpreting
the standards cited in cases before it.” G. E. v. OSHRC, 583 F.2d [61,
67 (2d Cir. 1978)]. See Donovan v. Anheuser-Busch, Inc., 666 F.2d 315 at
327 [10 OSHC at 1201] (8th Cir. 1981), pet. for reh. den. (8th Cir.
January 20, 1982) (standards should be “given a reasonable and common sense interpretation”).
The court in G. E. v. OSHRC concluded that [application of the
“platform” standard to an oven top] . . . “would create considerable doubt that
the standard provides to employers fair warning of the conduct which it
prohibits or requires.” 583 F.2d at 67-68[.]
Globe Industries, Inc., 10 BNA OSHC 1596,
1598 (No. 77-4313, 1982).
In
the present case, nothing in the ladder standard gave Noble fair warning that
it was required to have the elevator company install its tower mechanism so
that it not only caused the elevator to work, but that it also complied with
the ladder standard in the unlikely event that an employee would decide to
place boards across the shaft and use the tower to descend into the
unilluminated shaft. It defies common sense to apply the ladder standard to the
elevator mechanism. The court declines to do so. Items 1, 2, and 3 are vacated.
Item 4: Alleged
Serious Violation of § 1915.92(a)
The
Secretary alleges that Noble committed a serious violation of § 1915.92(a),
which provides:
All means of access and walkways leading to working areas as well as the
working areas themselves shall be adequately illuminated.
Noble
argues (with regard to items 4 and 5) that § 1915.92(a) is inapplicable to any
work done on its rig because § 1915.2 states that Part 1915 does not apply to
matters “under the control of the United States Coast Guard[.]” As discussed, supra,
in the section on preemption, the Coast Guard did not have jurisdiction over
the Paul Romano at the time of the accident. Part 1915 sets out
“standards for shipyard employment” and it applies to “all ship repairing,
shipbuilding and shipbreaking employments.” Section 1915.2(a). Section
1915.4(j) provides that ship repair means “any repair of a vessel including . .
. conversions.” The Paul Romano, undergoing conversion from a
submersible to a semi-submersible rig, is covered under Part 1915.
The
Secretary specifically alleges in her citation that Noble violated § 1915.92(a)
because when Kitzinger “entered the elevator shaft to perform electronic
repairs on August 25, 1998, [he was] exposed to falling 104 feet due to
extremely low light conditions; in that there was only one dim light bulb
located atop the immobile elevator car inside the . . . elevator shaft.”
The
record establishes that Noble has portable lighting available for use. Rig
manager Randall Abshire testified that portable “droplights” were available,
and if an employee “needed a permanent light for, say, the shipyard, then Ham
Marine would get with their maintenance and they would set up lights for you.
If you needed lights, lights are available” (Tr. 180). Seger, who was with
Kitzinger, knew that portable lights were available, stating, “All we had to do
was ask for them” (Tr. 494).
The
elevator shaft was not a routine working area. Noble was not required to have
permanent lighting for an area that was not used as a working area. Adequate
illumination was available. Kitzinger and Seger chose not to use the portable
lighting. The Secretary has failed to establish Noble’s noncompliance with this
standard. Item 4 is vacated.
Item 5: Alleged
Serious Violation of § 1915.152(a)
The
Secretary alleges Noble committed a serious violation of § 1915.152(a) which
provides:
The employer shall provide and shall ensure that each affected employee
uses the appropriate personal protective equipment (PPE) for the eyes, face,
head, extremities, torso, and respiratory system, including protective
clothing, protective shields, protective barriers, personal fall protection
equipment, and life saving equipment, meeting the applicable provisions of this
subpart, wherever employees are exposed to work activity hazards that require
the use of PPE.
Kitzinger
was not wearing personal fall protective equipment when he entered the elevator
shaft. There is no evidence, however, that any supervisory personnel for Noble
knew or should have known that Kitzinger was attempting to climb down the
elevator shaft with or without fall protection.
Electrician Wallis had
told Kitzinger to wait until he got up to look at the elevator. Wallis did not
consider the malfunctioning of the elevator to be a pressing issue (Tr. 388,
390). Rig manager Abshire stated that it was of no particular concern to him
that the elevator was not functioning and that fixing it was not a priority
(Tr. 148). Barge engineer Michael Keller was aware that Kitzinger and Seger
were “fooling with the elevator, ” but he thought they were down at the pontoon
level (Tr. 91). Safety training specialist Jack Frost did not know that
Kitzinger was in the shaft until Seger ran into his office and told him there
was an emergency situation (Tr. 235).
The
record establishes that Noble had neither actual nor constructive knowledge
that Kitzinger was in the elevator shaft without fall protection. Fixing the
elevator was a low priority to management personnel. Wallis, the one person who
gave specific instructions to Kitzinger regarding the elevator, had told him to
wait until he could look at it. An employer cannot reasonably be expected to
anticipate that an employee would do something so idiosyncratic as to climb
down a poorly-lit elevator tower without using fall protection.
The
Secretary failed to establish the element of knowledge. Item 5 is vacated.
FINDINGS OF
FACT AND CONCLUSIONS OF LAW
The
foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based
upon the foregoing decision, it is hereby ORDERED that:
Items
1 through 5 of Citation No. 1 are vacated and no penalties are assessed.
/s/
KEN
S. WELSCH
Judge
Date: March 6, 2000