Docket No. 2391

PETROLANE OFFSHORE CONSTRUCTION SERVICES, INC.

OSHRC Docket No. 2391

Occupational Safety and Health Review Commission

May 1, 1975

[*1]

Before VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge William J. Risteau in an action brought under the Occupational Safety and Health Act of 1970 n1 is before this Commission for review by order of the Chairman pursuant to 29 U.S.C. § 661(i). The issues raised sua sponte by his order are whether the working conditions of respondent's employees are subject to this proceeding in view of the provisions of 29 U.S.C. § 653(b)(1), and whether the citation was issued with reasonable promptness as required by 29 U.S.C. § 658(a).

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n1 29 U.S.C. § 651 et seq.

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Petrolane Offshore Construction Services Inc., respondent, is engaged in offshore construction and ship repair. On December 5, 1972, pursuant to section 8(a) of the Act, an authorized representative of the Secretary of Labor inspected respondent's workplace near Morgan City, Louisiana, at Highway 90 East and Bayou Boeuf. Respondent's employees were engaged in two activities: converting a barge, previously part [*2] of a drilling rig, into a pipe-laying vessel; and sandblasting a structure which was intended for use as the superstructure of an offshore drilling platform. The barge was moved to respondent's property but separated from land by eight feet of water about eighteen inches deep. The superstructure was located on land, with all work in relation to it being performed on land. Respondent's employees engaged in these activities were merchant seamen who returned to their crews when the work was finished.

As result of the inspection a citation alleging seventeen non-serious violations of the Act was issued to respondent together with a notificaton of proposed penalty. Respondent timely contested the citation and notification.

A hearing was held before Judge William J. Risteau on June 28, 1973. On September 25, 1973, the Judge rendered his decision holding that respondent was subject to the jurisdiction of the Commission and that its activities were properly encompassed within the regulations set forth at 29 CFR 1918. The Judge affirmed the citation and proposed penalty.

29 U.S.C. § 653(b)(1) exempts from the Act's coverage working conditions over which other federal agencies [*3] exercise statutory authority affecting occupational safety or health.

The Commission held in Secretary v. Southern Pacific Transportation Co., 653(b)(1) does not provide any industry exemption. Rather, exemptions may exist for specific working conditions. In the circumstances of this case no federal agency other than OSHA is shown to have exercised authority concerning the safety or health of respondent's employees.

We also hold that respondent waived consideration of whether the citation was duly issued by not raising that defense in the proceedings below. Secretary v. Chicago Bridge & Iron Co., Commissioner Cleary would affirm the Judge for the reasons stated in his dissenting opinion in Chicago Bridge. The Judge's decision is therefore affirmed.

[The Judge's decision referred to herein follows]

RISTEAU, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 [29 USC 651 et seq., hereafter called the Act], contesting a Citation issued by the Complainant against the Respondent under the authority vested [*4] in Complainant by Section 9(a) of that Act. The Citation alleges that as the result of an inspection on December 5, 1972, of a workplace under the ownership, operation or control of the Respondent, located at Morgan City, Louisiana at Highway 90 East and Bayou Boeuf, and described as "offshore construction and ship repair," Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on February 14, 1973, alleges that the violations result from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register, and codified in 29 CFR 1903, 1904, 1910, and 1915. The description of the alleged violations contained in said Citation states:

Item Number -- Standard or regulation allegedly violated -- Description of alleged violation

1 -- 29 CFR Section 1903.2(a) -- Employer failed to post notice informing employees of the protection and obligations provided for in the Act.

2 -- 29 CFR Section 1904.2 -- Employer subject to the Act did not maintain a log of occupational [*5] injuries or illnesses.

3 -- 29 CFR Section 1904.5(b) -- The employer failed to maintain the annual summary on OSHA Form 102 at this establishment.

4 -- 29 CFR Section 1910.180(d)(6) -- Employer failed to make available, written, dated and signed inspection reports on the Link-belt crawler type crane and a Bantam truck crane.

5 -- 29 CFR Section 1910.180(c)(2) -- No load rating charts were provided for the crawler type crane and a truck crane.

6 -- 29 CFR Section 1915.23(c)(1)(iv) (Formerly 29 CFR Section 1501.23(c)(1)(iv)) as adopted by 29 CFR Section 1910.13 -- Failure to provide a dead man control at the nozzle end of the blasting hose, while being used to sandblast a superstructure of drill rig.

7 -- 29 CFR Section 1915.23(c)(3)(ii) (Formerly 29 CFR Section 1501.23(c)(3)(ii)) as adopted by 29 CFR Section 1910.13 -- No filter was provided on the air fed hood used by the employee while sandblasting a superstructure of a drill rig.

8 -- 29 CFR Section 1915.35(a)(1) (Formerly 29 CFR Section 1501.35(a)(1), as adopted by 29 CFR Section 1910.13. -- Valve protection caps were not in place on compressed gas cylinders located on the barge and other places in the yard.

9 -- 29 CFR [*6] Section 1915.35(a)(9) (Formerly 29 CFR Section 1501.35(a)(9)), as adopted by 29 CFR Section 1910.13. -- Failure to secure acetylene cylinders in upright position.

10 -- 29 CFR Section 1915.41(h)(2) (Formerly 29 CFR Section 1501.41(h)(2)), as adopted by 29 CFR Section 1910.13. -- Platform planking of scaffold used by employees while sandblasting a rig superstructure, was only 1 2" X 10" plank wide.

11 -- 29 CFR Section 1915.41(i)(1) (Formerly 29 CFR Section 1501.41(i)(1)), as adopted by 29 CFR Section 1910.13. -- Scaffolding, supported approximately 9 feet above a solid surface, was not provided with back rails.

12 -- 29 CFR Section 1915.43(a) (Formerly 29 CFR Section 1501.43(a)), as adopted by 29 CFR Section 1910.13. -- Failure to guard flush manholes aboard a barge moored to the company dock.

13 -- 29 CFR Section 1915.43(d) (Formerly 29 CFR Section 1501.43(d)), as adopted by 29 CFR Section 1910.13 -- The employer failed to provide bouyant work vests for employees working near the unguarded edges of the decks of a barge, moored to the company dock.

14 -- 29 CFR Section 1915.44(c)(2) (Formerly 29 CFR Section 1501.44(c)(2)), as adopted by 29 CFR Section 1910.13. -- Failure [*7] to provide a safe access for employees working aboard a barge moored to company dock.

15 -- 29 CFR Section 1915.51(a) (Formerly 29 CFR Section 1501.51(a)), as adopted by 29 CFR Section 1910.13. -- Failure to maintain good housekeeping in the work area throughout the yard. Materials, scrap and other debris were strewn around

16 -- 29 CFR Section 1915.57(c) (Formerly 29 CFR Section 1501.57(c)), as adopted by 29 CFR Section 1910.13. -- Failure to make available U.S. Dept. of Labor forms LSB 00S-4, Material Safety Data sheet or similar form.

17 -- 29 CFR Section 1915.84(c)(1) (Formerly 29 CFR Section 1501.84(c)(1)), as adopted by 29 CFR Section 1910.13. -- The employer failed to provide a lifering with 90 feet of line attached on each vessel.

The Standards promulgated by the Secretary provide as follows:

Item Number -- Standard

1 -- 29 CFR Section 1903.2 -- (a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific [*8] safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

2 -- 29 CFR Section 1904.2 -- Each employer subject to the act shall maintain in each establishment, a log of occupational injuries and illnesses. Each employer shall record on the log each recordable occupational injury and illness within 2 working days after receiving information that a recordable case has occurred. Occupational Safety and Health Administration Form OSHA No. 100 n1 shall be used for this purpose and shall be completed in the form and detail provided for in the form and the instructions contained therein. The log may be maintained in another manner if approved in accordance with the provisions of Section 1904.13.

3 -- 29 CFR Section 1904.5 -- (b) The summary shall be maintained at each establishment. Each employer shall post a copy of the summary at each establishment [*9] in a conspicuous place where notices to its employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

4 -- 29 CFR Section 1910.180 -- (d) Inspection classification -- (6) Inspection records. Written, dated, and signed inspection reports and records shall be made monthly on critical items in use such as brakes, crane hooks and ropes. Records shall be kept readily available.

5 -- 28 CFR Section 1910.180 -- (c) Load ratings -- (2) Load rating chart. A substantial and durable rating chart with clearly legible letters and figures shall be provided with each crane and securely fixed to the crane cab in location easily visible to the operator while seated at his control station.

6 -- 29 CFR Section 1915.23 -- (c) Abrasive blasting -- (a) Equipment. Hose and fittings used for abrasive blasting shall meet the following requirements: (iv) Dead man control. A dead man control device shall be provided at the nozzle end of the blasting hose either to provide direct cutoff or to signal the pot tender by means of a visual and audible signal to cut off the flow, in the event the [*10] blaster loses control of the hose. The pot tender shall be available at all times to respond immediately to the signal.

7 -- 29 CFR Section 1915.23 -- (c) Abrasive blasting -- (3)(ii) Abrasive blasters working in the open shall be protected as indicated in subdivision (i) of this subparagraph except that when synthetic abrasives containing less than one percent free silica are used filter type respirators approved by the Bureau of Mines for exposure to lead dusts may be used in accordance with Section 1915.82 (a) and (d).

8 -- 29 CFR Section 1915.35 -- (a) Transporting, moving and storing compressed gas cylinders. (1) Valve protection caps shall be in place and secure. Oil shall not be used to lubricate protection caps.

9 -- 29 CFR Section 1915.35 -- (a) Transporting, moving and storing compressed gas cylinders. (9) Acetylene cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

10 -- 29 CFR Section 1915.41 -- (h) Scaffold or platform planking. (2) Platforms of staging shall be not less than two 10 inch planks in width except in such cases [*11] as the structure of the vessel or the width of the trestle ladders make it impossible to provide such a width.

11 -- 29 CFR Section 1915.41 -- (i) Backrails and toeboards. (1) Scaffolding, staging, runways, or working platforms which are supported or suspended more than 5 feet above a solid surface, or at any distance above the water, shall be provided with a railing which has a top rail whose upper surface is from 42 to 45 inches above the upper surface of the staging, platform, or runnway and a midrail located halfway between the upper rail and the staging, platform, or runway.

12 -- 29 CFR Section 1915.43 -- (a) When employees are working in the vicinity of flush manholes and other small openings of comparable size in the deck and other working surfaces, such openings shall be suitably covered or guarded to a height of not less than 30 inches, except where the use of such guards is made impracticable by the work actually in progress.

13 -- 29 CFR Section 1915.43 -- (d) When employees are working near the unguarded edges of decks of vessels afloat, they shall be protected by buoyant work vests, meeting the requirements of Section 1915.84(a).

14 -- 29 CFR Section 1915.44 [*12] -- (c) Access to barges and river towboats. (2) Unless employees can step safely to or from the wharf, float, barge, or river towboat, either a ramp in accordance with the requirements of subparagraph (1) of this paragraph or a safe walkway in accordance with the requirements of paragraph (a)(7) of this section shall be provided. When a walkway is impractical, a substantial straight ladder, extending at least 36 inches above the upper landing surface and adequately secured against shifting or slipping shall be provided. When conditions are such that neither a walkway nor a straight ladder can be used, a Jacob's ladder in accordance with the requirements of paragraph (d) of this section may be used.

15 -- 29 CFR Section 1915.51 -- (a) Good housekeeping conditions shall be maintained at all times. Adequate aisles and passageways shall be maintained in all work areas. All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or dry docks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod tips, bolts, nuts, and similar material. Hose and electric conductors shall be elevated over [*13] or placed under the walkway or working surfaces or covered by adequate crossover planks.

16 -- 29 CFR Section 1915.57 -- (c) The pertinent information required by paragraph (b) of this section shall be recorded either on U.S. Department of Labor Form LSB 00S-4, Material Safety Data Sheet, or on an essentially similar form which has been approved by the Bureau of Labor Standards.

17 -- 29 CFR Section 1915.84 -- (c) Life rings and ladders. (1) At least three 30 inch Coast Guard approved life rings with lines attached shall be kept in easily visible and readily accessible places aboard each vessel afloat on which work is being performed. Life rings shall be located, one forward, one aft, and one on the gangway, except on vessels under 200 feet in length, in which case one at the gangway will be sufficient.

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n1 Filed as part of the original document.

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Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, Respondent was notified by letter dated February 14, 1973, from John K. Parsons, [*14] Director of Area 1690, Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess penalties for the violations alleged in the following amounts:

Item Number	Proposed Penalty
1	50.00
2	100.00
3	100.00
4
5
6	60.00
7	25.00
8	30.00
9	30.00
10	60.00
11	60.00
12	40.00
13	60.00
14	60.00
15	40.00
16
17	45.00

After Respondent contested this enforcement action and a Complaint had been filed, the case came on for hearing at Baton Rouge, Louisiana, on June 28, 1973. No question concerning the Respondent's status as an employer as defined in the Act or the jurisdiction of this Commission is involved.

DISCUSSION

The alleged violations center around two work projects being carried out at the Morgan City location. The first of these was the remodeling of a barge moored to Respondent's property but separated from land by eight feet of water about eighteen inches deep. The second was the refurbishing of a structure located on land at the time but intended for use as the superstructure of an offshore drilling platform. Also at the workplace were an office and other buildings.

Of the legal defenses raised by [*15] Respondent or open to it, none appear to have such weight as to defeat the charges. The employees in Respondent's workplace were merchant seamen and as such might be considered exempt from the requirements of the Act. However, when a similar question was raised in a previous case before this Commission, it was held that the employer was subject to the provisions of the Occupational Safety and Health Act of 1970. Secretary v. Elevating Boats, Inc., There is no reason here apparent to upset this precedent in the present use.

Second, this Judge considers that work on the superstructure was "ship repair" or "related activity" as defined in 29 CFR 1910.13(b). These terms as used in the Regulation, relate to work on a "vessel" which is in turn defined to include "special purpose floating structures not primarily designed for, or used as a means of, transportation on water." Such a definition includes drilling rigs. Since the superstructure was intended to be part of a rig, work on it was subject to the provisions of 29 CFR 1915, as alleged in the Citation.

Other matters raised by Respondent [*16] consist largely of explanations of the reasons underlying admitted violations or to circumstances claimed to be mitigating. These will be treated in the following Findings of Fact.

FINDINGS OF FACT

1. By Stipulation, Respondent has admitted that it was, on December 5, 1972, in violation of Items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 16, and 17 of the Citation dated February 14, 1973.

2. The evidence is uncontradicted that Respondent failed to guard certain open manholes on the deck of the barge upon which its employees were working on December 5, 1972. (Citation, Item 12).

3. Access to the barge at Respondent's workplace on December 5, 1972, was not safe in that it consisted only of a single plank, 12 inches wide with no ladder up the side of the vessel. This is not an accepted safe means of access under applicable Regulations promulgated pursuant to the Occupational Safety and Health Act of 1970. Although the water beneath the plant served as a means of access to the barge may have been only eighteen inches deep, such means of access was nevertheless not safe as defined in the Regulation (Item 14).

4. As shown by photographs of the workplace (Secretary's Exhibits [*17] 4-5) Respondent failed to provide on December 5, 1972) adequate housekeeping in the work area (Item 15).

5. With respect to penalties, Items 1, 2, and 3 of the Citation cover Respondent's failure to post and maintain at the Morgan City workplace certain Notices and records required by the Act. Respondent's failure to post and maintain the above documents was due, as testified to by its Vice-President, to the fact that records are maintained in its central office in Metairie (New Orleans), Louisiana, where its clerical staff is located. Respondent does, however, maintain a full time workplace at Morgan City, manned by its employees. On the facts, the recommended penalties of $50.00, $100.00, and $100.00 for Items 1-3 of the Citation, respectively, are appropriate, considering the gravity of the violations, and Respondent's size, good faith, and history under the Act.

6. Also with respect to penalties and with particular regard to Items 6-15 and 17 of the Citation, the gravity of these violations is reduced by the fact that work on the barge and the superstructure was not the type regularly performed by Respondent at the Morgan City location and was, in fact, an isolated instance [*18] of relatively brief (7-10 days) duration. Considering this factor, a total penalty of $255.00 for these Items (compared with the recommended penalties of $510.00) is appropriate.

7. A zero penalty for each Items 4, 5, and 16 is appropriate.

CONCLUSIONS OF LAW

1. On December 5, 1972, Respondent was in violation of the following Regulations promulgated pursuant to the Occupational Safety and Health Act of 1970: 29 CFR 1903.2; 29 CFR 1904.2; 29 CFR 1904.5; 29 CFR 1910.180(d); 29 CFR 1910.180(c); 29 CFR 1915.23(c)(1)(iv); 29 CFR 1915.23(c)(3)(ii); 29 CFR 1915.35(a)(i); 29 CFR 1915.35(a)(9); 29 CFR 1915.41(h)(2); 29 CFR 1915.41(i)(1); 29 CFR 1915.43(a); 29 CFR 1915.43(d); 29 CFR 1915.44(c)(2); 29 CFR 1915.51(a); 29 CFR 1915.57(c); 29 CFR 1915.84(c)(1).

2. Penalties in the total amount of $505.00 should be assessed for the above violations.

ORDER

For the foregoing reasons and on the entire record it is hereby ORDERED that:

1. Items 1-17 of the Citation dated February 14, 1973, be affirmed.

2. Total penalties of $505.00 be assessed against Respondent.