“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 AdministrativeLaw Judge Louis G. LaVecchia erred in vacating citation 1, item 1, whichalleged that Allen’s Casing Crews, Inc. (\”Allen’s\”) committed a seriousviolation of 29 C.F.R. ? 1910.132(a) by failing to maintain a safetybelt lanyard in reliable condition because the latch on the lanyardwould not properly lock. The Secretary of Labor argues that the judgerelied on the wrong evidence in deciding to vacate the item. Havingreviewed the record, we conclude that the judge apparently did err inhis consideration of the evidence concerning this item. We remand thiscase to him to resolve this matter.A representative of the U.S. Department of Labor’s Occupational Safetyand Health Administration conducted an inspection of an oil drilling rigthat was the site of a fatal accident near Crane, Texas, resulting inthe issuance of a citation to Allen’s alleging two serious violations.Item 1 of the citation alleged that the inoperable safety catch on alanyard was in violation of section 1910.132 (a), which provides that\”[p]rotective equipment… shall be provided, used, and maintained ina… reliable condition . . . .\” As the judge acknowledged at one pointin his statement of the facts, \”[t]his [lanyard] was not the sameequipment that had been used by the deceased employee.\” Rather, it wasused 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 oneworn by the deceased employee at the time of his accident. Section1910.132(c) requires that \”[a] 11 personal protective equipment shall beof safe design and construction for the work to be performed.\”In the portion of his decision entitled \”Relevant Facts,\” the judgeincluded the following evidence concerning item 1:The witness [Barney Marquez] identified exhibits C-7 and C-8 asphotographs of the lanyard and belt that he used when he finished thestabbing 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 lanyardlatch because \”with the spring in it, it would not go over the rope.\”The evidence noted immediately above was not mentioned by the judge inthe \”Discussion\” portion of his decision, where he set forth his reasonfor vacating item 1. Instead, he discussed evidence as to how thelanyard of the deceased employee had broken. Then, he stated that \”[i]nits _damaged_ condition no conclusion can be reached to support afinding that the equipment was not properly provided, used, andmaintained.\” (emphasis added). Because the only damaged lanyard was theone involved in item 2, it appears that, the judge relied on evidencethat was introduced for that item in vacating item 1, while notconsidering the evidence in the record addressing item 1, some of whichhe had previously noted in his statement of the facts.In light of the discussion above, we set aside the judge’s dispositionof item 1 and remand this case to the judge to review the record and toconsider the evidence presented by both parties concerning item 1. Anyamended decision entered by the judge should clearly state what evidencehe is relying upon for his disposition of item 1.Edwin G.Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: 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, JudgeThis proceeding arises under Section 10 of the Occupational Safety andHealth Act of 1970 (29 U.S.C. ? 651 et seq.), referred to as the \”Act.\”The respondent was cited by the Occupational Safety and HealthAdministration, also known as \”OSHA,\” for alleged violations of thesafety and health standards promulgated under the Act.As a result of a fatality investigation made by an OSHA complianceofficer on October 18-19, 1989, two citations were issued against therespondent. The first citation, characterized as \”serious,\” alleges thatthe respondent violated the safety standard set forth at 29 CFR1910-132(a) for not maintaining protective equipment in a sanitary andreliable condition. Specifically, it is charged that:The Casing Crew for Unit #7 was operating south of Crane, Texas on HondoDrilling Rig #9 on or about October 18, 1989. The Rose safety belt Model502503 and lanyard used by an employee was not maintained in reliablecondition. The buckles on the lanyard would not stay closed and thebelt’s grommets were damaged by storing tools on top of safetyequipment. Equipment must be clean, inspected and stored in a safeplace. The Casing Stabber (employee) was exposed to a fall fromelevation hazard of approximately 40 feet.It is further charged in the first citation that the respondent violatedthe safety standard set forth at 29 CFR 1910.132(c) because all personalprotective equipment was not of safe design and construction for thework to be performed.Specifically, it is charged that:The Casing Stabber was exposed to a fall from elevation hazard ofapproximately 40 feet while running 5 1\/2 inch casing. The lanyard didnot limit the fall to less than 6 feet when employee mover, abovestabbing board. Protective equipment must be safe while in use from allwork positions.A second citation, issued at the same time, alleged a violationcharacterized as \”other,\” but this charge was withdrawn by thecomplainant after the hearing. Citation No. 2 will therefore be vacated.A hearing was held in this matter on July 20, 1990 in Midland, Texas atwhich time both parties presented evidence in support of theirrespective positions. Post-hearing briefs were not filed._RELEVANT FACTS_The respondent employs about 20 employees and is engaged in performingoil 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 wellservicing operations on Hondo Drilling Rig #9 near Crane, Texas when afatal 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 wellrig being serviced on the above date (Exs. C-1, 2, 3). While so engagedhe fell to his death. (Ex. C-5)Don Mills, formerly employed by the respondent, worked for a short timeduring the period leading up to the fatal accident. He had worked on oilrigs most of his working career, but had never performed any \”stabbing\”operations which require working at higher levels of the rigs for theinstallation of casing in wells. However, on the date of the accident hehad been scheduled to mount the derrick toward the end of the operationsin order to try his hand at \”stabbing.\” This work was being performed bythe deceased at the time of his fatal fall from the derrick (Tr. 24-25).The witness recalled having been provided with a safety belt andlanyard, but stated that he had not been given any instructions on howto use them; nor was he given any instructions on how and where to tieoff the lanyard (Tr. 28-29). He previously had worked for ten or elevendrilling contractors before the respondent. Since he was a floor hand hewas not required to mount the derricks and was given no safety belttraining. He mounted a derrick on one occasion only, but other thanbeing told that it had to be worn he received no other training orinstructions. (Tr. 30-31).Larry Steel testified that he was presently employed by a drillingcompany as a \”derrick man.\” He has had more than 10 years’ experience inthe field of gas and oil drilling, and was employed in the past by therespondent. He was part of the work force at the time of the fatalaccident, working as a \”caser.\” This involves rigging up and runningpipe. He had earlier that day worked as a \”stabber,\” which entailsmounting the derrick and guiding the pipe down into the well. He\”stabbed\” about 20 such joints into the well. (Tr. 34-35). He identifiedin exhibit C-2 a lanyard which had been broken (pulled in two), and fromwhich the safety belt had fallen. (Tr. 37). He identified the travelingblocks shown in exhibit C-3 (red in appearance) and described theirfunction in picking up casing and moving it into position forinstallation in the well. (Tr. 39). The crew, including the deceasedworkman (Barnett) took turns using the same lanyard when they alternatedworking on the derrick in the \”stabbing\” operation. The lanyard wasabout 8 or 9 feet long. (Tr. 40-41). It was made of cable, perhaps 1\/4inch size and was sheathed in plastic. (Tr. 41-42). He expressed theopinion that a 6- foot lanyard would be too short to permit the requiredwork when working on a derrick in the described type of operations. (Tr.42). He felt that it would be unsafe because it would requiredisconnecting it in order to move about on the derrick from beam tobeam, etc. He normally ties off the lanyard to the side of the rig. Onthe date of the accident, because the derrick was not level (out ofplumb) the blocks were hanging \”way to one corner\” of the rig. The windwas 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 thederrick. The casing joints being installed were about 32 to 42 feetlong. (Tr. 47). The witness identified the broken lanyard in exhibit C-4as the one he had been speaking of in his testimony. (Tr. 49).On cross-examination by the respondent’s president (_pro se_) he witnessonce again described the difficulties involved in moving about thederrick while the lanyard had to be disconnected in order to make therequired movements. In the realm of real evidence, the respondentpresented the lanyard and safety belt in question for the purpose ofshowing that there was orange paint on them, indicating that theorange-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, andalthough he was presently employed by another company, he had worked inthe past for the respondent. He was a foreman, or crew leader during the3 or 4 years that he worked for the respondent. The safety belt andlanyard involved in this accident were the personal property of thewitness, although the respondent would have provided that equipment uponrequest. (Tr. 68). He permitted other employees, including the deceased,to use his equipment, but he gave them no instructions with respect totying off the lanyard, and stated that \”I don’t think you would findanybody in the oil field that has had any kind of training like that.\”On the other hand he stated that Mr. Allen conducted safety meetingsabout once a week. he used the lanyard every day, but did not use asafety belt because he had seen two men fall from derricks while wearingsafety belts. One was fatally injured. (Tr. 69). he estimated thathis lanyard was 7 or 8 feet in length, but that if it were tied off atsome point in the derrick it would be shorter. In further testimony hecontradicted himself by stating that he never uses either a lanyard or asafety belt, but that he braced himself against \”belly\” ropes or \”backropes\” in order to keep from falling off the derrick. (Tr. 70) He feltthat this accident was caused by the employee’s use of the safety belt. (Tr. 72). He further stated that the compliance officer had told himin the past that the belly ropes could be used as safeguards againstfalling instead of the safety belt. (Tr. 73).This witness also stated that on the day of the accident the derrick wasnot as level as it should have been since the blocks did not hangstraight down and struck the sides of the derrick when moving in thelifting and positioning of the casing joints. The problem was discussedwith the job superintendent or his assistant, but not with Mr. Allenbecause 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 operationwas made more difficult by the leaning derrick, he did not feel that itmade 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 befound wrong with almost all of them if they were subjected to carefulinspection. (Tr.79).Barney Marquez, recalled by the complainant, stated that he had workedfor 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 bythe crew hauler, and that he always used them. He never had received anyinstructions on how to use that equipment when working for therespondent, but stated that he already knew how to safely use theequipment. (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 inthe day. He worked on the beam, not on the stabbing board, at the 41 or42-foot level. (Tr. 82-83).The witness identified exhibits C-7 and C-8 as photographs of thelanyard and belt that he used when he finished the stabbing job. Hefigured the lanyard to be 7 or 8 feet long. (Tr. 83- 84). This was notthe 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 somereservations about using the spring-hook for tying the lanyard offbecause 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 tyingoff at some point on the derrick. (Tr. 87-91).On cross-examination this witness stated that the latch on the lanyardhook was not bent; that the spring in the latch had been removed inorder to permit the hook on the latch to fit over the rope. He said therope was bigger than the latch opening when the spring was not removed.(Tr. 91).Mr. Bill Goolsby testified that he was employed by Tyler PipeIndustries, in Tyler, Texas, and that he had set up a safety trainingprogram for that company. He had had many years of experience in safetymatters pertaining to drilling rigs, etc., and had had some of his workpublished in the oil and gas drilling field. He had worked with theAmerican Petroleum Institute in the evolvement of safety standards usedin the drilling industry. (Tr. 95-98). He qualified as an expert witnesswith respect to oil and gas well drilling matters. (Tr. 98).The witness had been contacted by OSHA for purposes of testifying inthis case and had been made familiar with the incident involved. (Tr.99). He stated that the industry considers the type of work that wasbeing performed in this case to be hazardous, requiring the use ofpersonal protective equipment. (Tr. 101).He indicated that the industry practice or custom is to provideequipment to the employees, allowing the employees to choose the pointto which the lanyard will be attached. An important factor in thedecision as to where to tie off is to consider the length of the fallbefore the lanyard takes hold–a lanyard of excessive length might failto halt the fall of an individual. The belly ropes used by men workingin the derrick serve to protect the employees from falling from thederrick. The witness stated that it is customary for the employee to usea belt with loops through which attachment to the belly rope can be madefor protection. He testified that some employees working on the derricksare reluctant to tie off to anything on the derrick for fear that theymight be dragged off the stabbing board by the blocks. (Tr. 103-104).The American Petroleum Institute recommends that lanyards be at leastone-half inch in diameter, of nylon material or equivalent, and beadjusted to permit a maximum fall of 5 feet. (Tr. 108).The witness expressed the opinion that the deceased employee had tiedoff the lanyard in the wrong location. He also felt that the personalprotective equipment provided by the respondent was not of safe designand construction suitable for the work being performed. He also feltthat the missing spring in the lanyard hook was indicative that theequipment 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 orlanyards or any such equipment — they want to feel free to move aboutwithout restriction. (Tr. 125).On cross-examination the witness admitted that he had never run anycasing. (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 reliablecondition * * *The safety standard at 29 CFR 1910.132(c) provides:All personal protective equipment shall be of safe design andconstruction for the work to be performed.In the absence of the compliance officer’s testimony it is difficult toreach any conclusions with respect to whether the safety belt andlanyard worn by the deceased were defectively maintained. From themish-mash of evidence presented by the parties it appears that theaccident resulted from the traveling blocks striking the belt or lanyardor both which were being worn by the deceased as he worked at the41-foot level of the derrick. The reddish-orange paint on the belt andlanyard produced by the respondent at the hearing substantiate therespondent’s theory that the blocks, traveling upward, struck thedeceased’s equipment, pulling him off the derrick, breaking the lanyard,and causing him to fall to his death. In its damaged condition noconclusion can be reached to support a finding that the equipment wasnot properly provided, used, and maintained. Accordingly, Item 1 ofCitation No. 1 (Serious) must be vacated.Item 2 of Citation No. 1 (Serious) grew out of a charge that the lanyardon 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 6feet. But the employee stated that he preferred not to clip the lanyardto the derrick structure for fear of being unable to untie himself inthe event of an emergency. He would rather wrap the lanyard around anobject in a half-hitch tie-off, on the theory that it would be easier tofree himself from the derrick in the event of a collapse of thestructure or other emergency. The evidence indicates that there is anatural fear among those employees engaged in working at heights such asthose in this case that they might not be able to extricate themselvesfrom safety belts and lanyards if necessary. Some employees prefer towork without any safety belts or lanyards on the theory that they arethen free to move without restriction in the event of an emergency. Itis also apparent that when a lanyard is wrapped around a point in thederrick structure it loses much of its length and the actual drop of anemployee’s body in an emergency would probably be less than 6 feet. Inthe circumstances, this item must also be vacated.Citation No. 2 having been withdrawn by the complainant, is thereforevacated._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,OSHRCDATED: AUG 15, 1991″