SECRETARY OF LABOR,

Complainant,

v.

POWER FUELS, INC.,

Respondent.

OSHRC DOCKET NO. 85-0166

_DECISION_

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

BY THE COMMISSION:

This case comes before the Commission on review from a petition filed by
Power Fuels, Inc., objecting to the Decision and Order of former
Commission Administrative Law Judge Ramon Child.  This case arose from
an OSHA investigation triggered by the death of a Power Fuels employee
on an oil drilling site in North Dakota.  The judge held that Power
Fuels had committed serious violations of the Occupational Safety and
Health Administration's (OSHA's) general respirator standard at 29
C.F.R. § 1910.134(a)(2)[[1]] and of the standard setting a ceiling
exposure limit for hydrogen sulfide (H_2 S) gas at 29 C.F.R. §
1910.1000(b)(2).[[2]]  We affirm a combined serious violation of these
two standards, and we assess a penalty of $1000, as proposed by the
Secretary.

Based on our review of the record, we conclude that the evidence
overwhelmingly confirms what Power Fuels reported to OSHA before the
citations were issued: namely, that its employee was fatally overcome by
exposure to excessive levels of H_2 S gas.  We further conclude that
Power Fuels should have been aware that H_2 S gas was a known risk on
the oil drilling site and that its employee should have used a
respirator while working there.[[3]]

I.  _Whether Power Fuels' employee was exposed to H_2 S gas in excess of
the "maximum peak concentration" permitted by §1910.1000(b)(2)_

The first major issue presented in this case is whether the judge erred
in finding that the deceased employee was exposed to levels of H_2 S gas
that were greater than 50 p.p.m.  Power Fuels presents numerous
challenges that are related to its overriding argument that the finding
is in error.  We conclude, however, that none of these arguments are
meritorious and that the judge's finding is fully supported by the
record evidence.

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

Nelson's body was discovered on top of the tank at about 8 a.m. the next
morning by Power Fuels employee Walter Runion. McKenzie County Sheriff
Paul Larsen, who was called to the scene that morning, testified that
Runion told him that the body had not been moved from where he had found
it.  Nelson's head was about 12 inches from the thief hatch cover, which
was closed. (The thief hatch is the opening through which the fluids are
gauged and removed.)  Sheriff Larsen further testified that a gauge lay
next to Nelson and there was a strong odor, similar to the smell of
rotten eggs, the odor that is customarily associated with H_2 S gas.

As required by law, Power Fuels reported the fatality to OSHA.  The
report stated that the employee "was fatally overcome by hydrogen
sulfide gas..." On the same day that Nelson's body was found, an autopsy
was performed on it by a physician retained by McKenzie County Coroner
Gerald M. Moredock, M.D.  In his autopsy report, the retained physician
set forth his diagnoses of four significant conditions, including severe
lung congestion.[[5]]  In the coroner's report, Dr. Moredock stated that
the "[a]utopsy showed severe lung congestion that would be consistent
with H_2 S gas suffocation.  No other cause or reason could be found for
his death."

According to "Recommended Practices for Conducting Oil and Gas
Production Operations Involving Hydrogen Sulfide" (1981), a publication
of the American Petroleum Institute that was received into evidence, H_2
S does not cause immediate, serious effects until present in levels
exceeding 50 p.p.m., the maximum peak concentration cited in § 1910.1000
(b) (2).  Exposure of 100 p.p.m. or more is associated with increasing
odor, as well as eye and throat irritation.  H_2 S gas does not cause
unconsciousness or death until concentrations reach approximately 700
p.p.m.  Testimony to the same effect was given by OSHA Area Director
David DiTomasso, an industrial hygienist who has a master's degree in
environmental health.  This evidence was not contradicted.

Readings taken by David Tuhy, Power Fuels' safety representative, on the
two days following the fatality, showed extremely high levels of H_2 S
gas in the tank.  Tuhy twice tested the air inside the hatch of the tank
on the afternoon of August 31. Both times, his instrument, a Bendix Gas
Tech hand-held detector, registered 1600 p.p.m. of H_2 S gas (the
maximum reading of which the device was capable).

The next day, Tuhy made two readings approximately one foot above the
hatch cover with the thief hatch open.  According to Tuhy's
recollection, one of those readings was taken on the downwind side and
registered 100 p.p.m.  The other reading was taken on the upwind side
and registered 55 to 60 p.p.m.  That same day, Tuhy also took two other
samples:  one by the hatch with the cover closed, and one at the
downwind side of the tank at ground level.  No H_2 S gas registered in
either of those two tests.

At the hearing, Dr. Moredock testified that Nelson could have died of
causes unrelated to H_2 S, but that normally the other conditions noted
on the death certificate would not cause the severe lung congestion that
he believed was the immediate cause of death.  He testified that heavy
concentrations of H_2 S gas could cause such severe lung congestion. 
Dr. Moredock had been a practicing physician for eight years and coroner
of McKenzie County for about five years.

Power Fuels raises numerous challenges to the Secretary's evidence on
this factual issue, that is, the level of H_2 S gas at the time of
Nelson's death.  For example, Power Fuels argues that Dr. Moredock's
conclusions as to the cause of death were insufficient because he did
not perform the autopsy.  As mentioned above, the conclusions made by
Dr. Moredock were based on his review of the autopsy performed by a
physician that he had retained.  Power Fuels has not shown that such a
procedure was improper or unreliable.  Also, Power Fuels relies on the
fact that the laboratory test ordered by Dr. Moredock to determine the
presence of H_2 S gas in Nelson's system did not reveal any.  However,
Dr. Moredock testified that he was told by the laboratory's chemist that
the laboratory was inexperienced in H_2 S gas analysis and that it was
unable to get its test to work.  We therefore conclude that the
laboratory test is not probative in deciding the H_2 S exposure issue.

Power Fuels questions Dr. Moredock's credibility, noting his testimony
that, to the best of his recollection, he filed a revised death
certificate stating that "the cause of [Nelson's] death is respiratory
asphyxiation with the most likely cause [being] H_2 S gas exposure."  
Power Fuels relies on the testimony of one of its employees that the
original death certificate, prepared by Dr. Moredock on September 1,
1984, stated that the immediate cause of death was "unknown" and that
its cause was "Pending Investigation" and was due to or was a
consequence of "Extensive pulmonary granulomatous."  This witness
further testified that, on the day after Dr. Moredock's testimony in
this case, the original death certificate and not the revised death
certificate was still on file at the McKenzie County Courthouse.  So far
as the record shows, however, failure to file the revised death
certificate was merely an inadvertent error.  Power Fuels does not
suggest any alternative explanation.   We find no basis to disbelieve
the testimony of Dr. Moredock.

In addition, Power Fuels points to testimony that some cause of death
other than H_2 S suffocation was possible.  That testimony was given by
Dr. Moredock, and by OSHA Area Director and Industrial Hygienist
DiTomasso.  However, both of these witnesses testified that H_2 S
suffocation was the most likely cause of death, and the only cause
suggested by the known data.  The standard of proof on this issue is the
preponderance of the evidence.   _E.g_., _R.D. Anderson Construction
Co._, 12 BNA OSHC 1665, 1666, 1986-87 CCH OSHD ¶ 27,500, p. 35,638 (No.
81-1469, 1986).  Here, we find that a preponderance of the evidence
establishes that Nelson's death was due to exposure to H_2 S gas.

Power Fuels argues that the measurements Tuhy made the day after Nelson
died do not tend to prove the levels of H_2 S gas to which he was
exposed.  We disagree.  Those levels are consistent with the H_2 S
levels found in the gas stream of a well on the Gilbertson Lease in
1981.  The 1981 tests may be compared directly with Tuhy's tests, even
though the 1981 tests were of the "gas stream" (measured at the
wellhead), whereas Tuhy's tests were of the headspace above the
saltwater in the waste tank.  Gas and salt water are separate products,
but they reach the wellhead together in the gas stream from underground.

The 1981 tests showed 39,300 p.p.m. of H_2 S in the gas stream. 
DiTomasso testified that he would expect that level of H_2 S in the gas
stream to translate into about 1900 p.p.m. of H_2 S gas in the headspace
of a salt water tank.  His estimate was based on his measurements in a
previous case.  Douglas Lipetsky, an environmental engineer for the
North Dakota Department of Health, testified that he would expect the
H_2 S concentration in the gas stream at the time of Nelson's death to
have been at least as high as in 1981.   That conclusion was based on
his experience with other producing wells.  Thus, the evidence indicates
that the H_2 S gas levels in 1981 were similar to those that Tuhy found
on August 31, 1984 (at least 1600 p.p.m. in the headspace of the salt
water tank).

Of course, as Power Fuels notes, H_2 S gas levels can rise or fall
quickly.  DiTomasso testified that H_2 S gas levels can rise suddenly
when the tank's contents are disturbed, by pumping, for example.   The
evidence indicates that Nelson had pumped fluids out of the tank before
he died.  Thus, Nelson was engaged in precisely the kind of activity
calculated to raise H_2 S gas levels suddenly to high levels, such as
those found in 1981 and on the day after the accident.  Clearly, the
1981 tests corroborate what is established independently by the other
evidence:  that Nelson was exposed to an excessive level of H_2 S gas.

Power Fuels further argues that it had no notice that it was being
charged with exceeding the "maximum peak" limitation.   However, the
citation and complaint expressly charged that violation, and the
Secretary reaffirmed the allegation in discovery. Clearly, there was no
lack of notice to Power Fuels of this charge.  The evidence convincingly
demonstrates that Nelson was exposed to levels of H_2 S gas exceeding
the maximum peak concentration allowed under § 1910.1000(b)(2)

II. _Whether Power Fuels reasonably could have known of the H_2 S gas
hazards_

We agree with the judge that Power Fuels "had every reason to know" that
the waste salt water at the Gilbertson Lease contained H_2 S. 
Furthermore, we reject Power Fuels' arguments that it could not have
known of the hazard created by H_2 S gas.  First, Kelly Gebhardt, Power
Fuels' District Manager for Watford City, and Nelson's supervisor,
testified that in a "large majority" of producing wells from which his
district hauls, "there would be some type of [H_2 S] smell from the
wells . . . . "

Second, Power Fuels also knew that H_2 S levels exceeded permissible
levels at certain sites.  The results of tests at the Gilbertson Lease
in 1981, as mentioned above, showing high levels of H_2 S present there,
were on file with the North Dakota Department of Health.  Those tests
had been conducted by the producer at the Gilbertson Lease, Energetics,
Inc.   Furthermore, Power Fuels' safety representative, Tuhy, testified
that it had been informed of high H_2 S concentrations by the producers
at the Mullen and Rognes Leases (in the Watford City district), where an
employee had complained of H_2 S problems.  Power Fuels required SCBA
(self-contained breathing apparatus) respirators at those leases.

Third, OSHA had issued a citation to Power Fuels previously for
violation of § 1910.134(a)(2) and other respirator requirements. The
citation related to drivers who were exposed to H_2 S gas while gauging
tanks in the Watford City area.  In a letter accompanying the previous
citation, the OSHA area director had stated that "[d]rivers untrained in
respirator use and the dangers of H_2 S are hauling salt water that has
been pumped from wells containing H_2 S.  H_2 S is dissolved in this
water and will be released from it into the air . . . .

Furthermore, the H_2 S hazards in the area had been the subject of a
prior Commission decision, _Bomac Drilling Div., TRG Drilling_ _Corp._,
9 BNA OSHC 1681, 1683-85, 1981 CCH OSHD ¶ 25,363, pp. 31,540-41 (No.
76-450, 1981).  That decision discussed the sporadic H_2 S hazards
throughout the Williston Basin, which includes the entire area at issue
here.   _Bomac_ noted that H_2 S is most likely to be encountered in
fluids taken from the substrata in the Madison Zone.  The fluids at the
Gilbertson Lease were taken from these same substrata.

Thus, the evidence shows overwhelmingly that Power Fuels was well aware
of the potential for exposure to excessive H_2 S gas in the locale.  We
also note that no objection has been raised to the evidence that Tuhy
had attended OSHA seminars where the H_2 S risks in the area, and the
need for respirators, were thoroughly explained.

To rebut this evidence of foreseeability, Power Fuels argues that the
judge failed to consider the evidence that no employee had complained of
H_2 S problems at the Gilbertson Lease.  However, its own safety
materials emphasize that H_2 S is difficult to detect and evaluate, that
a technical instrument is needed, and that the sense of smell is
inadequate because H_2 S deadens that sense at about 200 p.p.m.[[6]] 
Despite this known effect, Power Fuels did not provide H_2 S detection
devices to its employees.  Also, as mentioned above, high levels of H_2
S gas may arise suddenly, without warning, in a tank when the fluids are
disturbed, as they apparently were when the tank in question was being
drained by Nelson.

Power Fuels argues that it was entitled to rely on an industry custom
and practice that allegedly imposes an obligation on oil and gas
producers to notify the transportation firms if H_2 S hazards are
present.   The Fifth Circuit rejected a similar argument in _Brock v_.
_City Well Service Co_., 795 F.2d 507, 512 (5th Cir. 1986) .  The court
held that an oil well service company may not shift its responsibility
for its employees' protection from H_2 S gas to well owners or
operators, based on industry custom and practice.

Power Fuels' safety representative knew that there may have been H_2 S
on oil and gas sites even though Power Fuels had not been notified about
its presence.  In addition, Gebhardt acknowledged that "very few" oil
and gas producers have notified him of H_2 S concentrations, even though
H_2 S can be smelled at a large majority of wellsites in the area.   We
cannot excuse Power Fuels' failure to protect its employee where, as
here, it knew that H_2 S hazards existed in the area and that producers
might fail to report those hazards to it.

In addition, Power Fuels failed to establish that the alleged custom or
practice regarding notice of high H_2 S concentrations existed, or that
Power Fuels reasonably relied upon it.  Its citations to the transcript
in this regard do not support its position.  The only substantial
testimony in the record on this issue goes contrary to Power Fuels'
position.   Consulting geologist and drilling foreman Kane testified
that it was customary for companies hauling water from his well drilling
sites to a waste disposal site, to determine for themselves the water's
H_2 S content.  Kane further testified that there were instances where
Power Fuels had determined the H_2 S content of salt water it hauled to
waste sites and drilling sites.

Power Fuels asserts that salt water containing H_2 S is "hazardous
waste" under Federal and state regulations and that, therefore, the
owner or operator of the tank battery was required to inform it if H_2 S
was present in the salt water.  However, no specific statutory or
regulatory provision is cited by Power Fuels to support this assertion. 
To the contrary, water produced in drilling for gas and oil, like the
salt water here, is excluded from the definition of "hazardous waste"
under the Environmental Protection Agency ("EPA") regulations.  40
C.F.R. § 261.3(a)(1),.4(b)(5).  Furthermore, the Department of
Transportation ("DOT") motor carrier safety regulations that formed part
of Power Fuels' safety program indicate that this employer had a duty to
find out if it was carrying any hazardous materials.  49 C.F.R. §§
397.1,.21.  Under those regulations, Power Fuels could not have shifted
to another company its responsibility to determine whether it was
transporting hazardous materials.

III. _Whether a violation of § 1910.134(a)(2) was proven_

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

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

Power Fuels' H_2 S safety booklet stated:  "When you are required to be
present or work in an area where H_2 S is a potential hazard, you must
wear breathing protection."  The company's district manager, Gebhardt,
testified that he believed the only safe way to work around H_2 S is to
wear a respirator.  Power Fuels' safety rules required the use of SCBA
respirators where H_2 S was known to be present.  The testimony revealed
that Power Fuels actually had respirators in its Watford City office. 
Yet, the company failed to take steps to ensure that they were provided
at its wellsites.  It is clear from this evidence that a reasonable
person in Power Fuels' position would have recognized a hazard
warranting (1) provision of an SCBA respirator at the well site on the
Gilbertson Lease, and (2) a requirement that the employee use the
respirator.

The Secretary has established that the H_2 S gas constituted a
significant risk of harm, making a respirator necessary to protect the
employee's health.  _See Kastalon, Inc_., 12 BNA OSHC 1928, 1937-38,
1986-87 CCH OSHD ¶ 27,643, p. 35,974 (No. 79-3561, 1986). An employee
was exposed to the hazards, and Power Fuels and the requisite knowledge
of the conditions.  _See_, _e.g_., _Trumid_ _Construction Co._, 14 BNA
OSHC 1784, 1788, 1990 CCH OSHD ¶ 29,078, p. 38,859 (No. 86-1139,
1990.)[[7]]  Thus, the Secretary has established a violation of both §§
1910.134(a)(2) and .1000(b)(2).

IV. _Effect of discovery responses_

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

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

As to the second point, answers to interrogatories generally are not
considered evidence unless they are introduced as such at the hearing. 
_E.g., Jones v. Diamond_, 519 F.2d 1090, 1098 (5th Cir. 1975);
_Montgomery Ward & Co. v. Fotopoulos_, 32 F.R.D. 333, 334 (D. Minn.
1963).  Even where answers to interrogatories are introduced in
evidence, they generally have no binding effect if they are contradicted
by evidence at the hearing.  _E.g., Freed v. Erie Lackawanna Ry. Co._,
445 F.2d 619, 621 (6th Cir. 1971), _cert_. _denied_, 404 U.S. 1017, 92
S.Ct. 678 (1972), and cases cited therein.  _See generally_, 8 C. Wright
& A. Miller, _Federal Practice and_ _Procedure_, §§ 2180, 2181; 4A
_Moore's Federal Practice_, ¶ 33.29.

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

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

As to the third point, none of the alleged admissions would affect the
result of the case, even if they were considered.  It bears noting that
Power Fuel's representations as to what admissions were made in this
case are incorrect in a number of instances.  For example, Power Fuels
represents that the Secretary's discovery responses stated:  (1) The
Secretary did not know which of the substances  listed in § 1910.1000,
Table Z-2, includes H_2 S gas, and (2) no notice has been given that any
of these limitations apply to H_2 S gas.  However, Power Fuels' requests
for admissions to that effect were ambiguously _denied_ by the
Secretary.  Power Fuels also makes other incorrect representations of
purported admissions [[10]].  We note that the Commission's rules
requires that counsel make a reasonable inquiry in advance to determine
that arguments made in briefs are well grounded in fact and warranted by
a good faith legal argument.  29 C.F.R. § 2200.32.[[11]]

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

V. _Alleged duplication of charge_

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

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

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

VI. _Classification and penalty_

The violation undeniably was serious under the Act.  _See_ 29 U.S.C. §
666(k).  We will impose the Secretary's proposed penalty, $1000, which
was the maximum penalty for a serious violation.  Regarding the penalty
factors, the extreme gravity of the known H_2 S hazards would warrant
the maximum penalty, regardless of other factors.  Furthermore, we note
that Power Fuels previously had admitted violations of H_2 S respirator
requirements at a nearby oil well site; that it was a sizeable company,
with eight district offices; and that its good faith is questionable, in
light of its extensive knowledge of the hazards.[[12]]   _See_ 29 U.S.C.
§ 666 (j)

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

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G.Wiseman
Commissioner

Dated: April 17, 1991

------------------------------------------------------------------------

SECRETARY OF LABOR,

Complainant,

v.

POWER FUELS, INC.,

Respondent.

OSHRC DOCKET NO. 85-0166

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

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

_DECISION AND ORDER_

Child, Judge:

_Statement of the Case_

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

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

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

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

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

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

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

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

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

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

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

_Statement of Fact_

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

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

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

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

(RFA 9(a); Exhibit R-7

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

"Autopsy showed severe lung congestion that would be consistent with H_2
S gas suffocation.  No other cause or reason could be found for his death."

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

Mr. Nelson was not wearing respiratory protection and no respiratory
protection equipment was in the truck he had been driving.(Tr. 41) 
There was no permanent air line and no warning sign concerning the
presence of Hydrogen Sulphide gas (H_2 S) on the site, nor was there a
windsock present. (Tr. 40, 42)

David Tuhy, safety representative for respondent, using a Bendix Gas
Tech detector which measured only to a maximum of 1600 parts per million
(ppm), determined that the detector measured 1600 ppm of H_2 S in the
airspace at the top of the water tank in question on August 31, 1984. 
(Tr. 651-652)  Measurements taken by Mr. Tuhy all the site on September
1, 1984, disclosed concentrations of H_2 S at a point one foot above the
open thief hatch on the upwind side to be 55-60 ppm and on the downwind
side to be 100 ppm.  No H_2 S was found to be present at ground level
nor at the top of the tank with the "thief hatch" cover closed. (Tr.
653-656 )

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

_Discussion _

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

_Issue 1_:

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

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

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

Here the circumstances surrounding the death of Mr. Nelson on August 30,
1984, provide evidence that an employee of the respondent was exposed to
the effects of H_2 S in the course of his employment and that exposure
could have caused death or serious physical harm.

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

Because of the widely recognized presence of H_2 S throughout the
Williston Basin (Tr. 421, 432-433) and two deaths resulting from
exposure thereto in late 1983 and early 1984, OSHA sponsored two H_2 S
hazard recognition seminars to acquaint and remind those working in the
oil and gas producing industry in the month of March 1984. (Tr.
716-718)  Respondent's safety representative attended each of these
seminars where the standards were discussed and the need to provide
employees engaged in the function of gauging tanks with self contained
breathing apparatus or supplied air respirators was explained to be
mandatory unless the employer had ruled out the presence of H_2 S in
excessive amounts at the specific location by conducting adequate prior
monitoring. (Tr. 719, 721, 722, 724, 725, 740)

Evidence disclosed that as of December 1, 1981, tests showed that
production of this well measured at the wellhead contained 3.93% H_2 S
by volume.  (Exhibit C-21; Tr. 533,537)  It is reasonable to assume that
if further gas analysis were performed on August 30, 1984, at this
wellhead the results would show H_2 S to again be present at least 3.93%
by volume. (Tr. 542)

It is to be expected that 3.93% H_2 S by volume measured at the wellhead
would produce H_2 S concentrations in the airspace above the saltwater
in a tank battery at that site in excess of 1600 ppm. (Tr. 762, 763)

Tests conducted at the saltwater tank by respondent's safety
representative on the afternoon of August 31, 1984, disclosed H_2 S in
the airspace above the water to be at least 1600 ppm. (Tr. 649-652)  It
may fairly be inferred, therefore, that at the time Mr. NeIson opened
the cover of the thief hatch at the top of this saltwater tank at about
11:00 p.m. on August 30, 1984, he was in the proximity of air
contaminated with a concentration of H_2 S in the neighborhood of 1600 ppm.

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

1.  55-60 ppm H_2 S measured one foot above the upwind side of the hatch
opening -- immediately after opening the hatch cover.

2.  100 ppm H_2 S measured one foot above the downwind side of the hatch
opening--immediately after opening the hatch cover. concentration of H_2
S measured at the hatch with the

3.  No concentration of H_2 S measured at the hatch with the cover closed.

4.  No concentration of H_2 S measured at ground level.

(Tr. 653-656)

It may fairly be inferred from the foregoing that at the time Mr. Nelson
gauged the contents of this saltwater tank at about 11:00 p.m. on August
30, 1984, he was exposed to air contaminated with H_2 S in
concentrations in excess of 50 ppm.

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

Respondent's safety representative was informed of the two deaths which
occurred in the Williston Basin late in 1983 and early in 1984 from
exposure to H_2 S.  Respondent's safety representative was informed of
OSHA's claim that any gauging performed at tank batteries in the
Williston Basin must be accomplished while wearing appropriate
respiratory equipment by reason of the risk of exposure to excessive
levels of H_2 S.  Respondent's safety representative was informed as to
the hazards attendant upon exposure to various levels of H_2 S in the
workplace.  H_2 S was generally known to be present and pervasive
throughout the oil and gas producing industry in the Willington Basin.
(Tr. 432, 433)

Notwithstanding the foregoing, respondent claims to have been uniformed
that its employees sent out to gauge and haul saltwater from tank
batteries could be exposed to H_2 S in dangerous levels.  Of 100 tank
batteries serviced in the Watford City area only two of the producers
ever advised respondent that H_2 S was a hazard at their specific site. 
Those two producers engaged the respondent to haul crude oil only.  Of
some 45 well sites from which respondent hauled saltwater in this area,
none of the producers advised respondent of the presence of H_2 S on
their sites in hazardous concentrations. (Tr. 843)

Generally, well sites with tank batteries were equipped with windsocks
to show the wind direction and if H_2 S was present in hazardous
concentration, a sign was posted to that effect by the lease owner or
producer and an air supply line was present.  No windsock, warning sign
or air supply line was present at this site.

Respondent relied upon the customer requesting the haulage to inform of
the presence of H_2 S if it constituted a hazard.   (Tr. 920, 921)  At
least one drilling foreman customarily did so.  (Tr. 447,449)  When the
dispatcher was informed of the presence of H_2 S at the site by the
customer, he would in turn inform the driver who was expected to avail
himself of appropriate respiratory equipment maintained at the district
office for that purpose and from which office the truck and driver were
dispatched.

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

Here respondent was not shipping H_2 S, but was rather hauling waste
saltwater which the respondent had every reason to know would contain
H_2 S in some albeit unknown percentage.  In the exercise of reasonable
diligence respondent could have known that H_2 S would enter the
breathing environment and could expose its employee to harm.  That
diligence would have been exercised merely by heeding the information,
advice and warnings given respondent's responsible personnel at training
seminars in ample time to have anticipated and prepared for the
violative condition here found and to which respondent's employee was
exposed.

Self-contained breathing apparatus in the dispatcher's office could
provide no respiratory protection to a driver confronted with H_2 S at a
well site.  (Tr. 667)  Respondent thus failed to comply with the standard.

_Issue 2A_:

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

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

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

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

_Issue 2B_:

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

Complainant based its claim of violation set forth in item 1 of the
citation that unless monitoring had been done to rule out the presence
of H_2 S in excessive concentrations, gauging must be accomplished while
wearing appropriate respirators.

Complainant's witness who tests tank batteries for H_2 S concentrations
did not customarily wear respirators while testing at the top of tanks. 
(Tr. 161, 163,167,172)  In view of the evidence presented by complainant
that monitoring at the tank batteries would be difficult and unreliable,
it cannot be here said that it would be appropriate.  (Tr. 799) 
Particularly is this so when under the complainant's interpretation of
29 CFR 1910.134(a)(2) appropriate respirators can be worn in lieu of
monitoring.

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

_Issue 2C_:

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

Notwithstanding knowledge that OSHA had warned respondent of the
incipient hazards associated with H_2 S and the need to provide
employees with respiratory protection to be worn during gauging
operations, respondent persisted in pursuing its respiratory safety
program of relying upon customers to advise if hazardous levels of H_2 S
might be present and then to so advise drivers assigned to that site so
that the driver might take respiratory equipment with him when dispatched.

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

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

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

_Issue 3_:

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

As discussed under Issue 1, there was here presented a preponderance of
evidence to support a finding that an employee of respondent was exposed
to concentrations of H_2 S in excess of those permitted under Table Z-2
on the 30th of August 1984.

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

_Issue 4_:

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

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

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

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

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

_Item 5_:

What, if any, penalty would be appropriate?

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

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

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

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

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

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

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

_Findings of Fact_

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

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

3.  Respondent's employees are exposed to the risk of overexposure to
H_2 S when engaged in gauging fluid levels at tank batteries generally
throughout the Williston Basin of western North Dakota and eastern Montana.

4.  Respondent knew or in the exercise of reasonable diligence could
have known of the presence of H_2 S and the risk of overexposure thereto
of employees engaged in gauging fluid levels at tank batteries situated
in the Williston Basin area on August 30,1984.

5.  There was a substantial probability that respondent's employees
would suffer death or serious physical harm as a result of exposure to
H_2 S should an overexposure occur unless respirators were provided at
the point of exposure.

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

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

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

9.  An employee of respondent was exposed to concentrations of H_2 S in
excess of those permitted under table Z-2 of subpart Z of 29 CFR 1910 on
the 30th of August 1984.

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

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

12.  The citation herein was issued with reasonable promptness.

_Conclusions of Law_

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

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

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

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

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

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

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

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

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

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

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

_Order_

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

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

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

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

R. M. Child
Judge, OSHRC

Dated: January 27, 1986

FOOTNOTES:

[[1]] The standard provides:

§ 1910.134 _Respiratory Protection_.

(a) Permissible Practice.

(2) Respirators shall be provided by the employer when such equipment is
necessary to protect the health of the employee. The employer shall
provide the respirators which are applicable and suitable for the
purpose intended. The employer shall be responsible for the
establishment and maintenance of a respiratory protective program which
shall include the requirements outlined in paragraph (b) of this section.

[[2]] That standard provides:

§ 1910.1000 _Air contaminants_.

(b) Table Z-2:

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

The "acceptable maximum peak" column of Table Z-2 lists 50 p.p.m. for
hydrogen sulfide. Thus, exposure may not exceed the 50 p.p.m. ceiling at
any time. The term "p.p.m." is the same as "p/m" as defined in Table
Z-1: the "[p]arts of vapor or gas per million parts of contaminated air
by volume . . . . " Thus, Power Fuels' argument that H_2 S "gas" is not
regulated by the standard is incorrect. See also, ANSI Z37.2-1966
(source standard for H_2 S exposure limits).

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

[[4]] Salt water is found in the geological substrata in that area.  It
is hauled from one wellsite to another and is used to push oil to the
surface.  The used salt water is disposed of when the H_2 S content is
considered too high for further use.

[[5]] The four conditions noted were:

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

[[6]] The H_2 S booklet that was part of Power Fuels' safety program
makes these points clearly.  For example, it states: "You cannot rely on
your nose to tell you how much H_2 S gas is present. *Wear Your
Breathing Apparatus*."  ESSE International, Inc., "H_2 S: The Killer!",
p. 7.  The booklet also notes that H_2 S causes unconsciousness quickly
at about 700 p.p.m. As noted above, tests made by Power Fuels the day
after Nelson's death found H_2 S gas levels of at least 1600 p.p.m. in
the tank.

The booklet also makes it clear that to determine whether H_2 S is
present, a technical device should be used. Listed examples of detecting
devices are: lead acetate, ampoules or coated strips, electronic
detectors, air sampling gas detector tubes, and fixed systems.

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

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

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

[[10]] At various points Power Fuels argues that knowledge has not been
established because the Secretary's discovery admissions and answers to
its interrogatories limited the issues solely to "the facts and
circumstances surrounding the fatality of . . . David Nelson . . . on
August 30, 1984."  However, its request for an admission to that effect
was denied by the Secretary.  Power Fuels further represents that the
Secretary admitted in discovery that she did _not_ know the
concentration of H_2 S gas at the Gilbertson site on or before August
30, 1984.  However, Power Fuels' request for admission was inadequate to
produce such an admission.  The request stated, "Complainant does _now_
know what amount, level or concentration of H_2 S or hydrogen sulfide
gas existed at the said site when David Nelson arrived there on August
30, 1984, or at any time prior thereto."  (Emphasis added.)  The
Secretary's agreement with that statement does not help Power Fuels.

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

[[12]] The modest penalty required in this case may not be sufficient,
in and of itself, to bring home to Power Fuels the importance of abating
the kind of H_2 S safety program violation involved here and in its
previous citation.  Thus, we note that its violation here arguably was
willful, and was one of many apparent failures in Power Fuels' H_2 S
safety program.

As noted above (n. 6 _supra_ and accompanying text) , Power Fuels' H_2 S
safety booklet stated that respirators are needed when any H_2 S is
present, and that H_2 S levels should be detected with a scientific
device, not the sense of smell. That booklet and certain other evidence
suggests that Power Fuels was fully aware that its safety precautions at
the time of the Nelson incident were inadequate.

Power Fuels did not implement an appropriate safety program for H_2 S,
and there is no indication that its employees were properly trained to
detect H_2 S.  Its supervisors testified that they relied on their sense
of smell to avoid H_2 S.  In fact, Power Fuels' H_2 S safety program was
amorphous.  It did not have a safety director with overall
responsibility for developing and implementing the company's safety
program.  Tuhy, its safety representative, testified that he did not
formulate the company's safety policy, and was not sure who did.  He
testified that he was not its safety director, and he did not consider
himself responsible for employee training. The crucial importance of
proper training is underscored by the fact that Nelson was a new
employee, with less than two months on the job.

Furthermore, Power Fuels did not have an emergency response program or
other method of aiding an employee on a site such as the Gilbertson
Lease.  Rescue plans are crucial because H_2 S gas normally is not an
immediate killer, even where an employee is overcome. _See_ 29 C.F.R. §
1910.134 (e)(3)(iii).  In addition, Power Fuels showed no evidence of
having a disciplinary program for violations of its relevant safety
rules.  The deficiencies in its safety program were widespread and
unexplained on this record.

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

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

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

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

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

[[2B/]] The citation reads:

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

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

[[2C/]] The citation reads

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

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

[[3/]] The citation reads:

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

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

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

[[5/]] The standard reads:

§1910.134 Respiratory Protection.

(a) Permissible Practice.

(2) Respirators shall be provided by the employer when such equipment is
necessary to protect the health of the employee.  The employer shall
provide the respirators which are applicable and suitable for the
purpose intended . . . .

[[6/]] The standard reads:

§1910.134 Respiratory Protection.

(b) Requirements for a minimally acceptable program.

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

[[7/]] The standard reads:

§ 1910.134 Respiratory Protection.

(b) Requirements for a minimally acceptable program.

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

[[8/]] The standard reads:

§1910.134 Respiratory Protection.

(b) Requirements for a minimally acceptable program.

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

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

§1910.1000 Air Contaminants.

(b) Table Z-2:

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

TABLE Z-2

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

(Z37.2-1966)

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