SECRETARY OF LABOR,

Complainant,

v.

ALLEN'S CASING CREWS, INC.,

Respondent.

OSHRC Docket No. 89-3423

_ORDER_

This case was directed for review on the issue of whether Administrative
Law Judge Louis G. LaVecchia erred in vacating citation 1, item 1, which
alleged that Allen's Casing Crews, Inc. ("Allen's") committed a serious
violation of 29 C.F.R. § 1910.132(a) by failing to maintain a safety
belt lanyard in reliable condition because the latch on the lanyard
would not properly lock. The Secretary of Labor argues that the judge
relied on the wrong evidence in deciding to vacate the item. Having
reviewed the record, we conclude that the judge apparently did err in
his consideration of the evidence concerning this item. We remand this
case to him to resolve this matter.

A representative of the U.S. Department of Labor's Occupational Safety
and Health Administration conducted an inspection of an oil drilling rig
that was the site of a fatal accident near Crane, Texas, resulting in
the issuance of a citation to Allen's alleging two serious violations.
Item 1 of the citation alleged that the inoperable safety catch on a
lanyard was in violation of section 1910.132 (a), which provides that
"[p]rotective equipment... shall be provided, used, and maintained in
a... reliable condition . . . ." As the judge acknowledged at one point
in his statement of the facts, "[t]his [lanyard] was not the same
equipment that had been used by the deceased employee." Rather, it was
used by a member of the replacement crew following the accident.

Item 2 of the citation alleged a serious violation of 29 C.F.R. §
1910.132(c), based on the excessive length of another lanyard, the one
worn by the deceased employee at the time of his accident. Section
1910.132(c) requires that "[a] 11 personal protective equipment shall be
of safe design and construction for the work to be performed."

In the portion of his decision entitled "Relevant Facts," the judge
included the following evidence concerning item 1:

The witness [Barney Marquez] identified exhibits C-7 and C-8 as
photographs of the lanyard and belt that he used when he finished the
stabbing job. . . . He further testified that the lanyard he used
([exhibits] C-7 and C-8) had a defective snap-hook (missing spring).

During his cross-examination of this witness, the owner of Allen's,
appearing pro se, explained that there was no spring in the lanyard
latch because "with the spring in it, it would not go over the rope."

The evidence noted immediately above was not mentioned by the judge in
the "Discussion" portion of his decision, where he set forth his reason
for vacating item 1. Instead, he discussed evidence as to how the
lanyard of the deceased employee had broken. Then, he stated that "[i]n
its _damaged_ condition no conclusion can be reached to support a
finding that the equipment was not properly provided, used, and
maintained." (emphasis added). Because the only damaged lanyard was the
one involved in item 2, it appears that, the judge relied on evidence
that was introduced for that item in vacating item 1, while not
considering the evidence in the record addressing item 1, some of which
he had previously noted in his statement of the facts.

In light of the discussion above, we set aside the judge's disposition
of item 1 and remand this case to the judge to review the record and to
consider the evidence presented by both parties concerning item 1. Any
amended decision entered by the judge should clearly state what evidence
he is relying upon for his disposition of item 1.

Edwin G.Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: October 8, 1991

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

SECRETARY OF LABOR,

Complainant,

v.

ALLEN'S CASING CREWS, INC.,

Respondent.

OSHRC

_Docket No. 89-3423_

APPEARANCES:

For the Complainant:     _Sara D. Smith_, Esq.,
For the Respondent:     _Larry Allen,_ _Pro Se _

_DECISION AND ORDER_

L. LaVecchia, Judge
This proceeding arises under Section 10 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. § 651 et seq.), referred to as the "Act."
The respondent was cited by the Occupational Safety and Health
Administration, also known as "OSHA," for alleged violations of the
safety and health standards promulgated under the Act.

As a result of a fatality investigation made by an OSHA compliance
officer on October 18-19, 1989, two citations were issued against the
respondent. The first citation, characterized as "serious," alleges that
the respondent violated the safety standard set forth at 29 CFR
1910-132(a) for not maintaining protective equipment in a sanitary and
reliable condition. Specifically, it is charged that:

The Casing Crew for Unit #7 was operating south of Crane, Texas on Hondo
Drilling Rig #9 on or about October 18, 1989. The Rose safety belt Model
502503 and lanyard used by an employee was not maintained in reliable
condition. The buckles on the lanyard would not stay closed and the
belt's grommets were damaged by storing tools on top of safety
equipment. Equipment must be clean, inspected and stored in a safe
place. The Casing Stabber (employee) was exposed to a fall from
elevation hazard of approximately 40 feet.

It is further charged in the first citation that the respondent violated
the safety standard set forth at 29 CFR 1910.132(c) because all personal
protective equipment was not of safe design and construction for the
work to be performed.

Specifically, it is charged that:

The Casing Stabber was exposed to a fall from elevation hazard of
approximately 40 feet while running 5 1/2 inch casing. The lanyard did
not limit the fall to less than 6 feet when employee mover, above
stabbing board. Protective equipment must be safe while in use from all
work positions.

A second citation, issued at the same time, alleged a violation
characterized as "other," but this charge was withdrawn by the
complainant after the hearing. Citation No. 2 will therefore be vacated.

A hearing was held in this matter on July 20, 1990 in Midland, Texas at
which time both parties presented evidence in support of their
respective positions. Post-hearing briefs were not filed.

_RELEVANT FACTS_

The respondent employs about 20 employees and is engaged in performing
oil and gas well servicing for the producers of those products (Tr.
14-15). Its annual gross income approximates 1.2 million dollars (Tr. 13).

On or about October 18, 1989 the respondent was engaged in well
servicing operations on Hondo Drilling Rig #9 near Crane, Texas when a
fatal accident occurred, resulting in the death of one of its employees.
The deceased man had been working at the 41-foot level of the oil well
rig being serviced on the above date (Exs. C-1, 2, 3). While so engaged
he fell to his death. (Ex. C-5)

Don Mills, formerly employed by the respondent, worked for a short time
during the period leading up to the fatal accident. He had worked on oil
rigs most of his working career, but had never performed any "stabbing"
operations which require working at higher levels of the rigs for the
installation of casing in wells. However, on the date of the accident he
had been scheduled to mount the derrick toward the end of the operations
in order to try his hand at "stabbing." This work was being performed by
the deceased at the time of his fatal fall from the derrick (Tr. 24-25).
The witness recalled having been provided with a safety belt and
lanyard, but stated that he had not been given any instructions on how
to use them; nor was he given any instructions on how and where to tie
off the lanyard (Tr. 28-29). He previously had worked for ten or eleven
drilling contractors before the respondent. Since he was a floor hand he
was not required to mount the derricks and was given no safety belt
training. He mounted a derrick on one occasion only, but other than
being told that it had to be worn he received no other training or
instructions. (Tr. 30-31).

Larry Steel testified that he was presently employed by a drilling
company as a "derrick man." He has had more than 10 years' experience in
the field of gas and oil drilling, and was employed in the past by the
respondent. He was part of the work force at the time of the fatal
accident, working as a "caser." This involves rigging up and running
pipe. He had earlier that day worked as a "stabber," which entails
mounting the derrick and guiding the pipe down into the well. He
"stabbed" about 20 such joints into the well. (Tr. 34-35). He identified
in exhibit C-2 a lanyard which had been broken (pulled in two), and from
which the safety belt had fallen. (Tr. 37). He identified the traveling
blocks shown in exhibit C-3 (red in appearance) and described their
function in picking up casing and moving it into position for
installation in the well. (Tr. 39). The crew, including the deceased
workman (Barnett) took turns using the same lanyard when they alternated
working on the derrick in the "stabbing" operation. The lanyard was
about 8 or 9 feet long. (Tr. 40-41). It was made of cable, perhaps 1/4
inch size and was sheathed in plastic. (Tr. 41-42). He expressed the
opinion that a 6- foot lanyard would be too short to permit the required
work when working on a derrick in the described type of operations. (Tr.
42). He felt that it would be unsafe because it would require
disconnecting it in order to move about on the derrick from beam to
beam, etc. He normally ties off the lanyard to the side of the rig. On
the date of the accident, because the derrick was not level (out of
plumb) the blocks were hanging "way to one corner" of the rig. The wind
was blowing pretty hard that day in the same direction as the blocks,
but he did not feel that the wind would have much effect on the blocks.
(Tr. 42-44). The blocks usually sway as they are elevated upwards in the
derrick. The casing joints being installed were about 32 to 42 feet
long. (Tr. 47). The witness identified the broken lanyard in exhibit C-4
as the one he had been speaking of in his testimony. (Tr. 49).

On cross-examination by the respondent's president (_pro se_) he witness
once again described the difficulties involved in moving about the
derrick while the lanyard had to be disconnected in order to make the
required movements. In the realm of real evidence, the respondent
presented the lanyard and safety belt in question for the purpose of
showing that there was orange paint on them, indicating that the
orange-painted blocks had apparently struck the belt and lanyard,
knocking the deceased off the derrick. (Tr. 61-64). (Ex. R-1).

Curtis Lemons has had 10 years' experience in oil field work, and
although he was presently employed by another company, he had worked in
the past for the respondent. He was a foreman, or crew leader during the
3 or 4 years that he worked for the respondent. The safety belt and
lanyard involved in this accident were the personal property of the
witness, although the respondent would have provided that equipment upon
request. (Tr. 68). He permitted other employees, including the deceased,
to use his equipment, but he gave them no instructions with respect to
tying off the lanyard, and stated that "I don't think you would find
anybody in the oil field that has had any kind of training like that."
On the other hand he stated that Mr. Allen conducted safety meetings
about once a week.  he used the lanyard every day, but did not use a
safety belt because he had seen two men fall from derricks while wearing
safety belts.   One was fatally injured.  (Tr. 69). he estimated that
his lanyard was 7 or 8 feet in length, but that if it were tied off at
some point in the derrick it would be shorter.  In further testimony he
contradicted himself by stating that he never uses either a lanyard or a
safety belt, but that he braced himself against "belly" ropes or "back
ropes" in order to keep from falling off the derrick.  (Tr. 70) He felt
that this accident was caused by the employee's use of the safety belt.
  (Tr. 72). He further stated that the compliance officer had told him
in the past that the belly ropes could be used as safeguards against
falling instead of the safety belt. (Tr. 73).

This witness also stated that on the day of the accident the derrick was
not as level as it should have been since the blocks did not hang
straight down and struck the sides of the derrick when moving in the
lifting and positioning of the casing joints.  The problem was discussed
with the job superintendent or his assistant, but not with Mr. Allen
because the latter was not on the jobsite at that time. (Tr. 74-75). 
The superintendent acknowledged that the derrick was not plumb. (Tr.
75). However, the witness stated that although the stabbing operation
was made more difficult by the leaning derrick, he did not feel that it
made matters unsafe. The leveling of the rig would be very expensive.
(Tr. 76).

The witness had worked on many rigs and stated that something could be
found wrong with almost all of them if they were subjected to careful
inspection. (Tr.79).

Barney Marquez, recalled by the complainant, stated that he had worked
for the respondent about five and a half years, primarily as a stabber.
He testified that he had been provided with a safety belt and lanyard by
the crew hauler, and that he always used them. He never had received any
instructions on how to use that equipment when working for the
respondent, but stated that he already knew how to safely use the
equipment. (Tr. 83-82). He was not working on the day of the accident,
but was called onto the job to finish the stabbing operations later in
the day. He worked on the beam, not on the stabbing board, at the 41 or
42-foot level. (Tr. 82-83).

The witness identified exhibits C-7 and C-8 as photographs of the
lanyard and belt that he used when he finished the stabbing job. He
figured the lanyard to be 7 or 8 feet long. (Tr. 83- 84). This was not
the same equipment that had been used by the deceased employee. (Tr. 85-
86). He further testified that the lanyard he used (Exs. C-7 and C-8)
had a defective snap-hook (missing spring). He expressed some
reservations about using the spring-hook for tying the lanyard off
because he felt that it would be difficult to get out of if necessary.
He stated that he would rather tie a half-hitch in the lanyard in tying
off at some point on the derrick. (Tr. 87-91).

On cross-examination this witness stated that the latch on the lanyard
hook was not bent; that the spring in the latch had been removed in
order to permit the hook on the latch to fit over the rope. He said the
rope was bigger than the latch opening when the spring was not removed.
(Tr. 91).

Mr. Bill Goolsby testified that he was employed by Tyler Pipe
Industries, in Tyler, Texas, and that he had set up a safety training
program for that company. He had had many years of experience in safety
matters pertaining to drilling rigs, etc., and had had some of his work
published in the oil and gas drilling field. He had worked with the
American Petroleum Institute in the evolvement of safety standards used
in the drilling industry. (Tr. 95-98). He qualified as an expert witness
with respect to oil and gas well drilling matters. (Tr. 98).

The witness had been contacted by OSHA for purposes of testifying in
this case and had been made familiar with the incident involved. (Tr.
99). He stated that the industry considers the type of work that was
being performed in this case to be hazardous, requiring the use of
personal protective equipment. (Tr. 101).

He indicated that the industry practice or custom is to provide
equipment to the employees, allowing the employees to choose the point
to which the lanyard will be attached. An important factor in the
decision as to where to tie off is to consider the length of the fall
before the lanyard takes hold--a lanyard of excessive length might fail
to halt the fall of an individual. The belly ropes used by men working
in the derrick serve to protect the employees from falling from the
derrick. The witness stated that it is customary for the employee to use
a belt with loops through which attachment to the belly rope can be made
for protection. He testified that some employees working on the derricks
are reluctant to tie off to anything on the derrick for fear that they
might be dragged off the stabbing board by the blocks. (Tr. 103-104).

The American Petroleum Institute recommends that lanyards be at least
one-half inch in diameter, of nylon material or equivalent, and be
adjusted to permit a maximum fall of 5 feet. (Tr. 108).

The witness expressed the opinion that the deceased employee had tied
off the lanyard in the wrong location. He also felt that the personal
protective equipment provided by the respondent was not of safe design
and construction suitable for the work being performed. He also felt
that the missing spring in the lanyard hook was indicative that the
equipment was not kept in reliable condition. (Tr. 122-23).

There are some workers who prefer using belly ropes for safety purposes,
and there are some who don't like the idea of using safety belts or
lanyards or any such equipment -- they want to feel free to move about
without restriction. (Tr. 125).

On cross-examination the witness admitted that he had never run any
casing. (Tr. 134).

_DISCUSSION _

The safety standard at 29 CFR 1910.132(a) provides:

Protective equipment, including personal protective equipment * * *
shall be provided, used, and maintained in a sanitary and reliable
condition * * *

The safety standard at 29 CFR 1910.132(c) provides:

All personal protective equipment shall be of safe design and
construction for the work to be performed.

In the absence of the compliance officer's testimony it is difficult to
reach any conclusions with respect to whether the safety belt and
lanyard worn by the deceased were defectively maintained. From the
mish-mash of evidence presented by the parties it appears that the
accident resulted from the traveling blocks striking the belt or lanyard
or both which were being worn by the deceased as he worked at the
41-foot level of the derrick. The reddish-orange paint on the belt and
lanyard produced by the respondent at the hearing substantiate the
respondent's theory that the blocks, traveling upward, struck the
deceased's equipment, pulling him off the derrick, breaking the lanyard,
and causing him to fall to his death. In its damaged condition no
conclusion can be reached to support a finding that the equipment was
not properly provided, used, and maintained. Accordingly, Item 1 of
Citation No. 1 (Serious) must be vacated.

Item 2 of Citation No. 1 (Serious) grew out of a charge that the lanyard
on another belt and lanyard combination (owned by the employee using it)
had a lanyard which was long enough to permit a fall of more than 6
feet. But the employee stated that he preferred not to clip the lanyard
to the derrick structure for fear of being unable to untie himself in
the event of an emergency. He would rather wrap the lanyard around an
object in a half-hitch tie-off, on the theory that it would be easier to
free himself from the derrick in the event of a collapse of the
structure or other emergency. The evidence indicates that there is a
natural fear among those employees engaged in working at heights such as
those in this case that they might not be able to extricate themselves
from safety belts and lanyards if necessary. Some employees prefer to
work without any safety belts or lanyards on the theory that they are
then free to move without restriction in the event of an emergency. It
is also apparent that when a lanyard is wrapped around a point in the
derrick structure it loses much of its length and the actual drop of an
employee's body in an emergency would probably be less than 6 feet. In
the circumstances, this item must also be vacated.
Citation No. 2 having been withdrawn by the complainant, is therefore
vacated.

_CONCLUSIONS OF LAW_

1. The Review Commission has jurisdiction of this matter and the parties.

2. The respondent did not violate the standard at 29 CFR 1910.132(a).

3. The respondent did not violate the standard at 29 CFR 1910.132(c).


_ORDER_
Citations 1 and 2 are vacated.

Louis G. LaVecchia Judge,
OSHRC

DATED: AUG 15, 1991