Docket No. 77-1334

SNYDER WELL SERVICING, INC.

OSHRC Docket No. 77-1334

Occupational Safety and Health Review Commission

February 26, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

George R. Carlton, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case arose when the Respondent, Snyder Well Servicing, Inc. ("Snyder"), contested two citations issued by the Secretary of Labor ("the Secretary"). The citations alleged that Snyder had violated the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"), by failing to comply with certain construction safety and health standards in 29 C.F.R. Part 1926. One citation alleged two serious violations of the Act; the other alleged three other than serious violations. Snyder contested all five items. In his complaint, the Secretary amended four of these items to allege, in the alternative, noncompliance with general industry standards in 29 C.F.R. Part 1910.

Administrative Law Judge Harold O. Bullis held a hearing and concluded that the construction standards do not apply to oil well servicing. He applied the alternatively pleaded general industry standards and vacated both serious items and two of the other items. The Secretary petitioned for review of that [*2] decision. Commissioner Cottine directed review under section 12(j) of the Act, 29 U.S.C. § 661(i), on the issues raised by the petition, including:

1. Whether the Judge erred in concluding that the construction standards published at 29 C.F.R. Part 1926 are inapplicable to the oil well servicing industry.

2. Whether the Judge erred in vacating Serious Citation No. 1, item 1, because "the Secretary failed to prove the existence of conditions requiring respiratory equipment."

3. Whether the Judge erred in vacating Serious Citation No. 1, item 2 alleging noncompliance with 29 C.F.R. § 1926.251(c)(5).

4. Whether the Judge erred in vacating Citation No. 2, item 1, as amended, alleging noncompliance with 29 C.F.R. § 1926.50(c) or 29 C.F.R. § 1910.151(b) in the alternative.

5. Whether Citation No. 2, item 2, should be amended under Fed. R. Civ. P. 15(b) to allege noncompliance with 29 C.F.R. § 1910.157(a)(1).

The first issue to be resolved is whether the construction standards in Part 1926 have been shown to apply. We conclude that they have not.

The facts are generally undisputed. Four employees of Snyder were working near Pleasanton, Texas at the site of a newly-drilled [*3] oil well owned by Mercury Production Company ("Mercury"). Snyder had been engaged to swab the well. At the time of the inspection the well was not in production and completion operations were being performed.

Swabbing is a process by which materials clogging a well are removed. To accomplish this, a swab on the end of a wire line is dropped into the well bore and then pulled out. The swab has valves which open when it is descending and close when it is pulled upward, catching the materials to be removed above the swab when it is pulled up.

Before Snyder arrived at the site, drilling had been completed and the drilling derrick had been removed from the site. Snyder erected its own "service rig," a telescoping derrick mounted on a mobile base. When the service rig was brought to the well, the base was blocked, guy wires were used to anchor the rig to the ground, and the derrick was telescoped upwards.

In his decision Judge Bullis relied on unreviewed decisions by other administrative law judges which held that the construction standards do not apply to the oil and gas drilling industry. The judge reasoned that if the construction standards do not apply to well drilling [*4] they are "clearly . . . not applicable to [the] well servicing industry." He therefore vacated the serious item for which there was no general industry standard alternatively pleaded and considered the remaining four items under the alternatively pleaded general industry standards.

The Secretary argues that the judge erred and that Snyder was engaged in "construction." The Secretary asserts that the drilling of an oil well is not a simple process but includes erecting a derrick, lining the hole with casing, excavating, welding, plumbing and other processes used in construction. The Secretary argues that these activities bring oil well drilling within the definition of construction work. The Secretary further argues that swabbing "is an integral part of the complicated process of onstructing an oil well" and is therefore covered by the construction standards, too.

Snyder asserts that whether drilling an oil well may be classified as construction is not the issue because swabbing is completely different from drilling. Snyder claims that swabbing is done whenever the well becomes clogged and that this may occur at any time in the life of an oil well. Snyder argues that, even if [*5] drilling is considered to be construction, swabbing is no more part of the construction process than is cleaning the boiler in a factory. The fact that well servicing includes the use of derricks and occurs on temporary worksites does not make it construction work, Snyder asserts, because there are general industry standards that cover derricks and many of the general industry standards in Part 1910 govern temporary work situations. Snyder also argues that the servicing derricks are not constructed at the well site but are telescoping, mobile units specially mounted on a truck-like chassis. No bolting, welding, or nailing is required to erect them, and they are simply lowered when the work is completed and driven away.

The burden of proving the applicability of the cited standards to worksite conditions is on the Secretary. United Geophysical Corp., 81 OSAHRC 77/D6, 9 BNA OSHC 2117, 2121, 1981 CCH OSHD P25,579, p. 31,906 (No. 78-6265, 1981); Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1235, 1979 CCH OSHD P24,412, p. 23,440 (No. 76-1480, 1979). We find here that the Secretary has failed to carry that burden. Under 29 C.F.R. § § 1910.12(a) and (b) [*6] the construction standards in Part 1926 apply to "work for construction, alteration, and/or repair, including painting and decorating." We have construed these provisions to mean that Part 1926 applies only to employers who are actually engaged in construction work or who are engaged in operations that are an integral and necessary part of construction work. United Geophysical Corp., 9 BNA OSHC at 2121, 1981 CCH OSHD p. 31,905. We agree with Snyder that swabbing was not shown to be either construction work by itself or to be integrally related to oil well drilling. We therefore need not reach the more general question of whether oil well drilling is construction work.

We are not persuaded by the Secretary's argument that the erection of a derrick brings Snyder's swabbing activities within the definition of construction work. We are unconvinced that Part 1926 was intended to regulate the erection of this derrick. Moreover, that some derricks are governed by standards in Part 1926, 29 C.F.R. § § 1926.550 and 1926.952(c), is of little weight, since, as Snyder points out, there are also standards in Part 1910 governing derricks. See 29 C.F.R. § 1910.181.

We are also unconvinced [*7] that swabbing is itself construction work or that it is integrally related to oil well drilling. None of the standards in Part 1926 mentions swabbing; and Snyder credibly represents that swabbing may be done years after a well is drilled and has begun production. In this case, well drilling had been completed. That swabbing is performed at a remote, temporary location is significant, but it is not controlling. As Snyder points out, many of the standards in Part 1910 also govern such situations. We therefore conclude that Part 1926 has not been shown to apply here.

The judge vacated item 2 of citation 1, which alleged noncompliance with 29 C.F.R. § 1926.251(c)(5). No alternative general industry standard from Part 1910 was pleaded, and Judge Bullis vacated that item. Because we have held that the construction standards do not apply to Snyder's operations, we affirm the judge's vacation of that item. We shall examine the remaining items under the alternatively pleaded standards in Part 1910.

Item 1 of the serious citation alleged that Snyder did not have appropriate respiratory protective equipment at the well site for use in emergency situations. The Secretary alleges [*8] that Snyder thereby violated 29 C.F.R. § § 1910.132(a) n2 and 1910.134(a)(2). n3 It is the Secretary's view that the well was located in a geological area known to produce hydrogen sulfide gas ("H[2]S"), which is toxic, and that the absence of respiratory equipment could be harmful to Snyder's employees if H[2]S were encountered during the swabbing.

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n2 Section 1910.132(a) provides:

General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

n3 Section 1910.134(a)(2) provides:

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.

[*9]

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The compliance officer who conducted the inspection had 33 years of experience in oil and gas production as an engineer for a major oil company. He had helped develop safety standards for oil well drilling operations, had worked in oil fields with H[2]S and had investigated accidents involving it. He testified that some wells in the geological formation where this well was located had been known to produce H[2]S and that there were numerous "Dangerous, Poisonous Gas" signs in the area. He testified that there was no H[2]S detector at the well site to warn the employees if H[2]S were encountered and that, in high concentrations, H[2]S can deaden the sense of smell.

The compliance officer predicated his opinion that respiratory protection was necessary on the danger that H[2]S would be released by the swabbing. Although he tested for H[2]S himself and found only trace amounts, he testified that his failure to find large concentrations of the gas did not mean that there was no H[2]S in the well. The compliance officer explained that the pressure caused by material in the bore would hold down H[2]S [*10] and that the removal of much of this material during swabbing could release H[2]S. He opined that, because the well was located in an area known to produce H[2]S, a prudent employer would have protective equipment available.

Mr. Melville, an employee of the Texas Railroad Commission, testified that Mercury had filed an application for a drilling permit with that Commission. In that application, Mercury indicated that it anticipated encountering H[2]S in quantities up to 25,000 parts per million. Mr. Melville testified that he personally knew that some wells in the area had produced H[2]S in excess of 25,000 parts per million and that such a concentration can be lethal. He expressed the opinion that respiratory protection should be at the site, based on the possibility that H[2]S could be encountered in such a concentration.

The safety director for Texas International Company, Snyder's parent company, Mr. Cullifer, testified that before one of his companies will work on a well it requires the owner of the well to determine from drilling records and tests whether protective equipment is necessary. Mr. Cullifer testified that Texas International received a report from Mercury [*11] that, in his words, stated that "the amount of hydrogen sulfide gas that they expected to be encountered at this location was nil."

The well had a casing head and a flow line to a holding pit to catch any oil or gas produced. On both there were valves that could be closed if any H[2]S were released. Mr. Cullifer testified that, in his opinion, these valves constituted adequate safety precautions, especially in view of the negative results of the earlier tests.

The compliance officer, on the other hand, testified that the valves were not adequate protection because the flow line could release H[2]S into the atmosphere. In order to shut the well down completely, he testified, the swab would have to be removed from the well or cut loose at the well head. He also stated that Snyder's employees could be exposed to the gas while they were putting on new swab rubbers. To perform that task they would have to open fittings at the top of the bore tubing; and gas in the bore could escape there. He also testified that back-up equipment should be available in case a valve was inadvertently opened or failed to shut, or a line failed.

A former employee of Mercury who had worked on the well [*12] testified that an H[2]S detection device was used during the drilling and never indicated the presence of any H[2]S. He stated that it was normal procedure to notify the well servicing company if H[2]S was detected. Ten days before the inspection, Mercury had circulated gas and oil off the bottom of the well and no H[2]S had been found.

Judge Bullis vacated this item. He found that the Secretary had not proved that conditions existed requiring respiratory equipment because the evidence did not establish a hazard. He found that if H[2]S were encountered the engineering controls provided adequate protection because the valves could be closed. The judge stated that, unlike many safety standards, neither section 1910.132(a) nor section 1910.134(a)(2) presumes a hazard, so the Secretary must prove the existence of a hazard necessitating protective equipment. He found that, although the evidence showed that a hazardous condition might develop during the swabbing, it did not prove that a hazard existed.

The Secretary argues that the judge's conclusion that an actual hazard must be shown is contrary to the intent of both the standards and the Act: to prevent harm from occurring. [*13] The Secretary contends that the realistic possibility that a dangerous situation might occur establishes the existence of a potential hazard, triggering the need for protective equipment to be provided. He argues that an employer cannot be allowed to wait until his employees are actually exposed to poisonous gas before he provides protective equipment.

The Secretary further argues that the judge erred in finding that the engineering controls were adequate, because hydrogen sulfide is not likely to be detected in time, and, if it were detected, the valves could probably not be shut in time to prevent harmful exposure to the gas.

Snyder, on the other hand, argues that the valves provided adequate protection because the well could not release the gas directly into the air and the fluid raised by the swab would go directly to the disposal pit 30 to 60 feet from the bore. Snyder argues that the evidence does not prove that it was realistically possible for a hazardous situation to occur, and asserts that it would place an impossible burden on industry to require that protective equipment be provided any time there is any possibility of a hazard occurring, no matter how remote that [*14] possibility is.

Snyder argues that section 1910.132(a) does not apply because it sets out general requirements for personal protection, and that respiratory protection is governed by the more specifically applicable section 1910.134. Snyder argues that section 1910.134 must be read as a whole and that such a reading shows that engineering controls are the preferred means of protection. Snyder contends:

Nowhere does the Standard mention emergency situations or situations in which the engineering controls might fail. This section was intended to cover operations in which employees were exposed to long-term, disease causing effects of air contaminates. By the language of this section, respirators are required only in situations where engineering control of the contaminates is not feasible or while these controls are being installed. Neither situation is presented in this case.

Snyder argues that it was not in violation because effective engineering controls were in place on the well and could be operated within a second or two. Snyder also argues that it has no duty to provide respirators unless the Secretary shows exposure to concentrations of air contaminants above the threshold [*15] limit value ("TLV") specified for the substance in question. Finally, Snyder argues that its employees were not shown to have been exposed to any hazard and that such a showing is necessary in order to prove a violation of section 1910.134.

At the outset, we find that section 1910.134 is more specifically applicable to the facts of this case than is section 1910.132(a). Under section 1910.5(c), therefore, we consider the alleged violation under the more specifically applicable standard. See Granite Groves, A Joint Venture, 77 OSAHRC 28/B12, 5 BNA OSHC 1100, 1977-78 CCH OSHD P21,594 (No. 10677, 1977). We do not agree with the judge that the item should be vacated in its entirety, however, We reverse the judge and find noncompliance with section 1910.134(a)(2).

We do not agree with Snyder's argument that the duty to provide respirators arises only when the TLV for a dangerous substance is exceeded. If a sudden excursion above the TLV occurs, employees cannot be left unprotected, for section 1910.134(a)(2) requires that respirators be provided "when such equipment is necessary to protect the health of the employee." Moreover, other provisions of section 1910.134 indicate [*16] that sudden excursions are to be anticipated and that the standard imposes a duty to take precautions against emergencies even before a TLV is exceeded. See section 1910.134(b)(7) (respirators to be available "for emergency use"); section 1910.134(e)(3) (procedures required for use of respirators in emergencies). To adopt Snyder's argument 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.

Under the circumstances of this case, we find that respirators were necessary in order to protect the health of the employees. Hydrogen sulfide gas may be present but not detected. A large concentration could kill very quickly, and such concentrations had been found in the area. Mercury expected to encounter high levels of H[2]S. The evidence shows that there was a risk that H[2]S would be released by or during the swabbing. If that occurred, it might be too late to send for respirators. The risk of encountering toxic gas at levels above the TLV makes respirators "necessary."

We disagree [*17] with the judge's finding that the engineering controls made respirators unnecessary. The H[2]S detector on the drilling rig had been removed when that rig was taken away. There was no means on the well site to detect H[2]S other than by smelling it. However H[2]S deadens the sense of smell, and the employees might therefore have insufficient warning of the presence of H[2]S. The record shows that the employees must open the well head to change the rubbers on the swab; if H[2]S were present, it could then be released. The valve at the bore head is one of the two places where the gas might escape, so an employee trying to close that valve or to cut loose the swab in order to close down the well would have to work very close to the escaping H[2]S.

We also reject the interpretation of section 1910.134 urged by Snyder, which would require protection only when employees are exposed to disease-causing air contaminants over an extended period of time. Section 1910.134(a)(1) refers to "air contaminated with harmful . . . gases." H[2]S is a harmful gas that can kill in a short time. Although section 1910.134 does state that engineering controls to prevent atmospheric contamination are [*18] preferred, it also requires that respirators be provided "when . . . necessary to protect the health of the employee." To the extent that engineering controls do not afford adequate protection or are not used, respirators must be used. See Todd Shipyards Corp., 81 OSAHRC , 9 BNA OSHC 2031, 1981 CCH OSHD P25,516 (No. 77-2545, 1981).

Accordingly, we find that Snyder's failure to provide protection to its employees constitutes a violation of section 5(a)(2) of the Act. We also find that the violation was serious within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(i), because death could result if employees who lacked respirators were exposed to H[2]S.

III

Item 1 of citation 2 alleged that Snyder had failed to comply with section 1926.50(c), n4 or, in the alternative, with section 1910.151(b). n5 The general industry standard requires that someone on the site be "adequately trained to render first aid" if there is no medical treatment facility "in near proximity to the workplace." The construction standard requires that a person at the site have a certificate in first aid training.

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n4 Section 1926.50(c) provides:

Medical services and first aid.

* * *

(c) In the absence of an infirmary, clinic, hospital, or physician, that is reasonably accessible in terms of time and distance to the worksite, which is available for the treatment of injured employees, a person who has a valid certificate in first-aid training from the U.S. Bureau of Mines, the American Red Cross, or equivalent training that can be verified by documentary evidence, shall be available at the worksite to render first aid.

n5 Section 1910.151(b) provides:

Medical services and first aid.

* * *

(b) In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available.

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The compliance officer inquired whether anvone on the site had a valid first aid training certificate. He determined that no Snyder employee had a certificate but that an employee of another company at [*20] the site had one. That individual left about four hours before Snyder finished work for the day, however. The compliance officer testified that he asked the rig operator, who was in charge of Snyder's crew at the time of the inspection, whether any Snyder employee was trained in first aid; the compliance officer testified that "I got no information that there was." The compliance officer later spoke with the tool pusher, who was the supervisor of Snyder's crew. He had not been present during the inspection. When the compliance officer described the conditions he had found, the tool pusher never indicated that any of Snyder's employees had had first aid training. Instead, he told the compliance officer that Snyder "would get one trained."

The judge vacated the citation. He found that the evidence showed that no Snyder employee had the certificate required by the standard in Part 1926, but that did not necessarily prove that no employee was "adequately trained to render first aid," which is all section 1910.151(b) requires.

Snyder argues that the judge was correct, that the compliance officer inquired only about a certificate, not first aid training, and that the Secretary [*21] failed to carry his burden of proving that there was no one on the site who had adequate training. The Secretary argues that the compliance officer's testimony is sufficient to establish a violation in the absence of any affirmative evidence that one of the employees had had first aid training. The Secretary would have us draw an adverse inference from Snyder's failure to state that someone at the site had first aid training.

We agree with Judge Bullis that the Secretary has failed to carry his burden of demonstrating that nobody on the well site had been adequately trained in first aid. We agree with the judge that a finding that no Snyder employee was trained in first aid would be conjectural. The compliance officer testified that he usually questioned whether a certificated person was at the site, not merely whether an adequately trained person was at the site. While the silence of Snyder's employees is suggestive, it does not sufficiently support the inference that the Secretary would have the Commission draw. Therefore we affirm the judge's disposition.

The final item on review is item 2 of citation 2. That item originally alleged noncompliance with 29 C.F.R. [*22] § 1926.150(c)(1)(viii). n6 The complaint amended the citation to add the alternative allegation of noncompliance with § § 1910.157(d)(2) and (3) (1976), n7 which require inspection of each extinguisher at least monthly and maintenance at least annually. In his petition for review, the Secretary abandoned the alternative section 1910.157(d)(2) and (3) allegations and moved to amend the pleadings under Federal Rule of Civil Procedure 15(b) n8 to allege noncompliance with section 1910.157(a)(1) (1976). n9 The issue directed for review was whether the citation should be so amended.

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n6 Section 1926.150(c)(1)(viii) provides:

Fire protection.

* * *

(1) Fire extinguishers and small hose lines.

* * *

(viii) Portable fire extinguishers shall be inspected periodically and maintained in accordance with Maintenance and Use of Portable Fire Extinguishers, NFPA No. 10A-1970.

n7 These provisions have subsequently been revised and recodified at 29 C.F.R. § § 1910.157(e) (1981). See 45 Fed. Reg. 60704 (1980).

n8 Rule 15(b) provides:

Amended and Supplemental Pleadings.

* * *

(b) AMENDMENTS TO CONFORM TO THE EVIDENCE. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

n9 This standard has subsequently been revised and recodified at 29 C.F.R. § § 1910.157(c)(4) (1981). See 45 Fed. Reg. 60704 (1980). The standard in effect when the citation was issued provided:

Portable fire extinguishers.

(a) General requirements -- (1) Operable condition. Portable extinguishers shall be maintained in a fully charged and operable condition, and kept in their designated places at all times when they are not being used.

[*23]

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The compliance officer testified that he observed a fire extinguisher whose safety pin had been pulled. When he investigated, he found that the gauge indicated that the extinguisher was not fully charged. He testified that Snyder's rig operator agreed to get a fully charged extinguisher on his next trip to the office. Mr. Cullifer testified on behalf of Snyder that the company's practice was to have one extinguisher ready for immediate use at all times and that pulling the pin is part of making the extinguisher "ready."

Judge Bullis vacated the citation. He found that the Secretary had not proved a violation of section 1910.157(d) because the Secretary had not established that Snyder did not inspect the extinguisher as required by that standard. From the evidence, the judge said, it was possible that the pin could have been removed and the extinguisher discharged after the extinguisher had had its monthly inspection.

The Secretary asserts that the evidence establishes that Snyder failed to maintain the extinguisher in a fully charged and operable condition as required by section 1910.157(a)(1). [*24] Snyder does not address the issue directed for review, whether the citation should be amended to allege noncompliance with section 1910.157(a)(1). Snyder instead argues that the judge correctly found that the Secretary had failed to prove a violation of section 1910.157(d).

Chairman Rowland votes to vacate this item. He would deny the motion to amend for the reasons stated in his separate opinion.

Commissioner Cleary also votes to vacate this item, but his reasons are different from Chairman Rowland's. In Mr. Cleary's view, even if the motion to amend is granted, a violation has not been proven. The standard requires that portable fire extinguishers be maintained in a fully charged condition. Under Schundler Co., 78 OSAHRC 9/E14, 6 BNA OSHC 1343, 1978 CCH OSHD P22,508 (No. 15548, 1978), our inquiry is whether the employer's maintenance of the extinguishers was adequate. Mr. Cleary finds insufficient evidence that Snyder's maintenance efforts were deficient. He therefore votes to vacate this item. Accordingly, item 2 of citation 2 is vacated.

Commissioner Cottine would permit the amendment and find a violation. Accordingly, he dissents from the disposition of [*25] this item. Commissioner Cottine notes that: (1) the parties have tried all material facts; (2) Snyder makes no claim of prejudice; and (3) Snyder has not objected to the amendment even though the issue was specifically directed for review. Accordingly, the amendment is proper. See Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979) and cases cited. Commissioner Cottine concludes that the Secretary has established a prima facie violation of section 1910.157(a)(1). The evidence establishes that the gauge showed less than a full charge. In the absence of evidence to the contrary, this is sufficient to establish that the extinguisher was not fully charged. Cf. Alpha Poster Service, Inc., 76 OSAHRC 141/B8, 4 BNA OSHC 1883, 1976-77 CCH OSHD P21,354 (No. 7869, 1976)(label on a container is presumed to identify contents accurately). Snyder has neither rebutted the Secretary's showing nor introduced any evidence to support its conjectural argument that the gauge might have been defective. Furthermore, the term "maintained" in section 1910.157(a)(1) requires that portable fire extinguishers be continuously kept [*26] or preserved in a fully charged and operable condition. The term does not refer to an affirmative act of maintenance. The duty to perform maintenance on fire extinguishers is imposed by section 1910.157(d)(3) (recodified at 29 C.F.R. § 1910.157(e)(3), see note 7 supra) and is separate and distinct from the duties imposed by section 1910.157(a)(1). Accordingly, Commissioner Cottine would overrule the erroneous interpretation of section 1910.157(a)(1) in Schundler Co., supra, and affirm the citation.

The Secretary proposed a penalty of $240 for the respirator violation. The compliance officer testified that Snyder employs about 150 people in all, that Snyder had an "average" safety program, that Snyder had no record of prior violations, and that Snyder officials were cooperative during the inspection. Snyder's safety program was described in detail by Mr. Cullifer and was evidenced by an exhibit Snyder introduced. We find the penalty proposed by the Secretary to be appropriate.

Accordingly, we affirm a serious violation of the Act for failure to comply with section 1910.134(a)(2) and assess a penalty of $240.

SO ORDERED.

CONCURBY: ROWLAND (In Part)

DISSENTBY: ROWLAND (In Part)

DISSENT:

ROWLAND, [*27] Chairman, concurring in part and dissenting in part:

I concur in the majority's determination in Part I of the lead opinion that swabbing has not been shown to be "construction work," and in its disposition of the first aid item in Part III. While I join in the finding in Part II of the lead opinion that section 1910.134(a)(2) is more specifically applicable to the respirator item than section 1910.132(a), I dissent from the affirmance of the item. Finally, I concur with Commissioner Cleary only in the disposition of the fire extinguisher item; I would not reach the question of whether Snyder complied with section 1910.157(a)(1) because I would deny the Secretary's motion to amend to that standard.

Section 1910.134(a)(2) states that respirators are to be provided "when such equipment is necessary to protect the health of the employee." The majority finds that the Secretary has shown that respirators were "necessary" within the meaning of this standard. I disagree for the reasons that follow.

Section 1910.134(a)(2) provides no guidance to employers as to when a respirator "is necessary." Because the phrase "when such equipment is necessary to protect the health of the employee" [*28] in section 1910.134(a)(2) is no more specific than the similar phrase "whenever it is necessary by reason of hazards" in section 1910.132(a), I would require the Secretary to make the same showing under section 1910.134(a)(2) of when protection is "necessary" that he must make under section 1910.132(a). Under section 1910.132(a), the Commission's test of whether protection is "necessary" is "whether a reasonable person familiar with the circumstances surrounding an allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of protective equipment." Owens-Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1295, 1979 CCH OSHD P23,509, p. 28,491 (No. 76-4990, 1979), aff'd on other grounds, 659 F.2d 1285 (5th Cir. 1981). This has not been shown here. n10

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n10 The court of appeals decision in Owens-Corning held that to show that a reasonable person would have recognized the presence of a hazard making the use of protection necessary, the Secretary must show either that it is the custom and practice in the industry to provide protective equipment or that the employer has actual knowledge that the condition was hazardous. 659 F.2d at 1288. Assuming I were to apply to court's test for determining whether a hazard exists in this case, there is no evidence here that it is the practice of the well servicing industry to provide respirators at wells during the swabbing process where no significant amount of H[2]S has been encountered during drilling, nor does the record show that Snyder had either actual knowledge or reason to believe that there was H[2]S in the well in sufficient quantity to be dangerous. Indeed, the compliance officer agreed that the valves on the well were the type customarily used. However, inasmuch as I find that the Secretary failed to make the showing required by the Commission's Owens-Corning test, it is not necessary to consider here whether the Commission's test is correct.

[*29]

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Section 1910.134(a)(2) states that a respirator be provided only when it "is necessary" to protect an employee. At the time the alleged violation occurred, there were not excessive levels of hydrogen sulfide gas. While I share the majority's concern that employees be protected in advance of actual exposure to a hazardous concentration of a toxic substance, more substantial proof than a vague "risk" of excessive exposure is required to impose this obligation on an employer. A violation of section 1910.134(a)(2) cannot be premised solely upon unsubstantiated speculation that exposure to excessive levels of toxic gas was possible.

The majority makes no finding that a reasonable person familiar with the circumstances would have recognized that Snyder's employees were exposed to a hazard warranting the provision of respirators. Indeed, the record would not support such a finding. Although both the compliance officer and Mr. Melville both gave their opinions that it would have been prudent under the circumstances to have respirators available, these merely personal views unsupported by the evidence. [*30]

Mr. Melville could testify only that the well owner filed a report for the field in which the well was located that showed that H[2]S may be encountered in concentrations of 25,300 parts per million in a cubic foot of gas, that this expectation was founded upon concentrations noted in two other producing wells in the field, and that the amount of H[2]S would normally be consistent throughout the field. Mr. Melville acknowledged, however, that some wells and some formations in the area do not emit H[2]S gas.

The Secretary's failure to establish the significance of the word "field" as used by Mr. Melville is crucial. For example, there is no evidence in the record to suggest that all wells drilled in this "field" were drilled into the same formation or to the same or similar depth, Yet, Mr. Melville acknowledged that whether respiratory protection was necessary depends on the depth of the drilling and varies with the formation the well is drilled into. Mr. Melville's testimony is further clouded by his frequent use of the inexact term "area," which he acknowledged to refer only to surface areas, rather than geological formations. In short, I cannot say from Mr. Melville's [*31] testimony that the actual conditions at this well were reliably correlated with those of other wells known to present H[2]S hazards.

The compliance officer conjectured that swabbing "could release any H[2]S in the well," but he merely assumed that there was a dangerous amount of H[2]S in the well. In fact, there is no evidence that there was ever more than a trace of H[2]S in the well. Thus, not only does the compliance officer's testimony fail to show that the well here could produce significant amount of H[2]S, Snyder also was specifically informed by the driller that no hazardous concentration of gas existed. There is no evidence that H[2]S had been encountered in the well during the drilling or during the circulation of oil and gas from the bottom of the well. Snyder came onto the site after drilling had been completed and the well had been tested by Mercury Production, and Mercury Production had informed Snyder that the amount of H[2]S encountered would be nil. This information was consistent with the compliance officer's own tests of the well, which revealed only a trace amount of H[2]S; indeed, he acknowledged that the well had shown unusually low amounts of the gas. [*32] His opinion that the well could nevertheless produce lethal amounts of H[2]S was based upon information that the well had been drilled into the buda geological formation, and that it was his "understanding" that the entire buda formation contained H[2]S; yet he acknowledged that he did not have enough information to say whether some wells in the buda formation were sour and some were not. The compliance officer speculated that H[2]S gas could migrate from other areas and formations containing the gas, but he did not establish that such migration occurred in the specific area of this well. In fact, the compliance officer's information on this matter came entirely from general information from the Texas Railroad Commission and literature on the matter. The compliance officer's mere opinion that a dangerous quantity of gas could be released, unsupported by any specific evidence, is not a sufficient basis on which to find a violation. Air-Kare, 81 OSAHRC 98/A2, 10 BNA OSHC 1146, 1150, 1981 CCH OSHD P25,758, p. 32,178 (No. 77-1133, 1981) (dissenting opinion).

Finally, there is no other evidence to indicate that a reasonable person familiar with the circumstances would not have [*33] considered the trace amounts detected here to be representative of conditions likely to be encountered during swabbing. While the compliance officer stated that Snyder through the swabbing operation would be gradually reducing the pressure on the well, he never specified what pressure would ultimately be achieved, nor did he correlate any particular well pressure with the potential amount of H[2]S rising to the surface. Although the drilling log showed various pressures in the well after the inspection, the compliance officer never testified that H[2]S gas would be likely to be released at any of these pressures.

I therefore cannot say, on this record, that a reasonable employer would have recognized a hazard warranting the use of respirators, particularly where, as here, Snyder had been informed by Mercury Production that H[2]S would not be encountered in dangerous quantities. In the absence of such evidence, this citation should be vacated.

With respect to the fire extinguisher item, I would deny the Secretary's motion to amend the pleadings under Federal Rule of Civil Procedure 15(b) to allege noncompliance with section 1910.157(a)(1). I do not believe the parties understood [*34] at the hearing that they were trying the issues raised by that standard. A litigant has the right to fair notice of the issues to be tried, so that he can adequately prepare and present his case. Pleadings may therefore be amended under Rule 15(b) only when the parties recognize that they are trying unpleaded issues. "[I]t cannot be fairly said that there is any implied consent to try an issue where the parties do not squarely recognize it as an issue in the trial." 3 Moore's Federal Practice P15.13[2] at 992 (2d ed. 1974), quoted in Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 907 (2d Cir. 1977). See Vicon Corp., 81 OSAHRC 98/C4, 10 BNA 1153, 1158, 1981 CCH OSHD P25,749, p. 32,160 (No. 78-2923, 1981) (concurring opinion), appeal filed, No. 81-2359 (8th Cir. December 10, 1981).

In my view, Snyder did not consent to trial of the issues raised by section 1910.157(a)(1). Both the citation and complaint alleged that Snyder had violated standards imposing requirements for the inspection and maintenance of fire extinguishers in that a particular extinguisher was not fully charged. While the parties clearly litigated the actual condition in terms [*35] of readiness for operation of the one extinguisher in question, they did so on the understanding that this evidence was relevant to Snyder's overall inspection and maintenance program. In my opinion, Snyder cannot be said to have squarely recognized that the condition of this extinguisher was in issue as a separate and distinct ground for finding a violation. Indeed, had Snyder been aware at the hearing that a violation could be found based on the condition of the extinguisher apart from the nature and adequacy of the overall inspection program, it might very well have sought to limit the parpose for which the evidence could be used.

However, in my view it is unrealistic and unfair to expect an employer to anticipate every unpleaded charge which the Secretary might subsequently attempt to inject into the case. It is equally unfair to require the employer to attempt to limit the purpose for which evidence is adduced in order to avoid the implication of consent to try issues raised after the close of the hearing. Since it is the Secretary's theory on review that Snyder is in violation of section 1910.157(a)(1) solely on the basis of the actual condition of one particular extinguisher, [*36] whereas Snyder could not have understood that it was litigating the issue of a violation on that ground, the requested amendment is improper. Since the Secretary has abandoned the original allegation appearing in the complaint, I agree with Commissioner Cleary that this item of the citation must be vacated.