“Docket No. 89-3423 SECRETARY OF LABOR,Complainant,v.ALLEN’S CASING CREWS, INC.,Respondent.OSHRC Docket No. 89-3423ORDERThis case was directed for review on the issue of whetherAdministrative Law 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 safety belt lanyard inreliable condition because the latch on the lanyard would not properly lock. The Secretaryof Labor argues that the judge relied on the wrong evidence in deciding to vacate theitem. Having reviewed the record, we conclude that the judge apparently did err in hisconsideration of the evidence concerning this item. We remand this case to him to resolvethis matter.A representative of the U.S. Department of Labor’s OccupationalSafety and Health Administration conducted an inspection of an oil drilling rig that wasthe site of a fatal accident near Crane, Texas, resulting in the issuance of a citation toAllen’s alleging two serious violations. Item 1 of the citation alleged that theinoperable safety catch on a lanyard was in violation of section 1910.132 (a), whichprovides that \”[p]rotective equipment… shall be provided, used, and maintained ina… reliable condition . . . .\” As the judge acknowledged at one point in hisstatement of the facts, \”[t]his [lanyard] was not the same equipment that had beenused by the deceased employee.\” Rather, it was used by a member of the replacementcrew 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 thedeceased 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 tobe performed.\”In the portion of his decision entitled \”RelevantFacts,\” the judge included 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 the stabbing job. . . .He further testified that the lanyard he used ([exhibits] C-7 and C-8) had a defectivesnap-hook (missing spring).During his cross-examination of this witness, the owner ofAllen’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 thejudge in the \”Discussion\” portion of his decision, where he set forth his reasonfor vacating item 1. Instead, he discussed evidence as to how the lanyard of the deceasedemployee had broken. Then, he stated that \”[i]n its damaged condition noconclusion can be reached to support a finding that the equipment was not properlyprovided, used, and maintained.\” (emphasis added). Because the only damaged lanyardwas the one involved in item 2, it appears that, the judge relied on evidence that wasintroduced for that item in vacating item 1, while not considering the evidence in therecord addressing item 1, some of which he had previously noted in his statement of thefacts.In light of the discussion above, we set aside the judge’sdisposition of item 1 and remand this case to the judge to review the record and toconsider the evidence presented by both parties concerning item 1. Any amended decisionentered by the judge should clearly state what evidence he is relying upon for hisdisposition of item 1.Edwin G.Foulke, Jr. ChairmanDonald G. WisemanCommissioner Velma MontoyaCommissionerDated: October 8, 1991SECRETARY OF LABOR,Complainant,v.ALLEN’S CASING CREWS, INC.,Respondent.OSHRC Docket No. 89-3423APPEARANCES:For the Complainant:\u00a0\u00a0\u00a0\u00a0 Sara D. Smith, Esq.,For the Respondent:\u00a0\u00a0\u00a0\u00a0 Larry Allen, Pro Se DECISION AND ORDERL. LaVecchia, JudgeThis 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 knownas \”OSHA,\” for alleged violations of the safety and health standards promulgatedunder the Act.As a result of a fatality investigation made by an OSHA compliance officer on October18-19, 1989, two citations were issued against the respondent. The first citation,characterized as \”serious,\” alleges that the respondent violated the safetystandard set forth at 29 CFR 1910-132(a) for not maintaining protective equipment in asanitary and reliable condition. Specifically, it is charged that:The Casing Crew for Unit #7 was operating south of Crane, Texason Hondo Drilling Rig #9 on or about October 18, 1989. The Rose safety belt Model 502503and lanyard used by an employee was not maintained in reliable condition. The buckles onthe lanyard would not stay closed and the belt’s grommets were damaged by storing tools ontop 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 approximately40 feet.It is further charged in the first citation that the respondentviolated the safety standard set forth at 29 CFR 1910.132(c) because all personalprotective 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 hazardof approximately 40 feet while running 5 1\/2 inch casing. The lanyard did not limit thefall to less than 6 feet when employee mover, above stabbing board. Protective equipmentmust be safe while in use from all work positions.A second citation, issued at the same time, alleged a violationcharacterized as \”other,\” but this charge was withdrawn by the complainant afterthe 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 bothparties presented evidence in support of their respective positions. Post-hearing briefswere not filed.RELEVANT FACTSThe respondent employs about 20 employees and is engaged inperforming oil and gas well servicing for the producers of those products (Tr. 14-15). Itsannual 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 a fatal accidentoccurred, resulting in the death of one of its employees. The deceased man had beenworking 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 ashort time during the period leading up to the fatal accident. He had worked on oil rigsmost of his working career, but had never performed any \”stabbing\” operationswhich require working at higher levels of the rigs for the installation of casing inwells. However, on the date of the accident he had been scheduled to mount the derricktoward the end of the operations in order to try his hand at \”stabbing.\” Thiswork 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, butstated that he had not been given any instructions on how to use them; nor was he givenany instructions on how and where to tie off the lanyard (Tr. 28-29). He previously hadworked for ten or eleven drilling contractors before the respondent. Since he was a floorhand he was not required to mount the derricks and was given no safety belt training. Hemounted a derrick on one occasion only, but other than being told that it had to be wornhe received no other training or instructions. (Tr. 30-31).Larry Steel testified that he was presently employed by adrilling company as a \”derrick man.\” He has had more than 10 years’ experiencein the field of gas and oil drilling, and was employed in the past by the respondent. Hewas 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 dayworked as a \”stabber,\” which entails mounting the derrick and guiding the pipedown 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), andfrom which the safety belt had fallen. (Tr. 37). He identified the traveling blocks shownin exhibit C-3 (red in appearance) and described their function in picking up casing andmoving it into position for installation in the well. (Tr. 39). The crew, including thedeceased workman (Barnett) took turns using the same lanyard when they alternated workingon the derrick in the \”stabbing\” operation. The lanyard was about 8 or 9 feetlong. (Tr. 40-41). It was made of cable, perhaps 1\/4 inch size and was sheathed inplastic. (Tr. 41-42). He expressed the opinion that a 6- foot lanyard would be too shortto 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 inorder to move about on the derrick from beam to beam, etc. He normally ties off thelanyard to the side of the rig. On the date of the accident, because the derrick was notlevel (out of plumb) the blocks were hanging \”way to one corner\” of the rig. Thewind was blowing pretty hard that day in the same direction as the blocks, but he did notfeel that the wind would have much effect on the blocks. (Tr. 42-44). The blocks usuallysway as they are elevated upwards in the derrick. The casing joints being installed wereabout 32 to 42 feet long. (Tr. 47). The witness identified the broken lanyard in exhibitC-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 derrickwhile the lanyard had to be disconnected in order to make the required movements. In therealm of real evidence, the respondent presented the lanyard and safety belt in questionfor the purpose of showing that there was orange paint on them, indicating that theorange-painted blocks had apparently struck the belt and lanyard, knocking the deceasedoff 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 forthe respondent. He was a foreman, or crew leader during the 3 or 4 years that he workedfor the respondent. The safety belt and lanyard involved in this accident were thepersonal property of the witness, although the respondent would have provided thatequipment upon request. (Tr. 68). He permitted other employees, including the deceased, touse 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 hadany kind of training like that.\” On the other hand he stated that Mr. Allen conductedsafety meetings about once a week.\u00a0 he used the lanyard every day, but did not use asafety belt because he had seen two men fall from derricks while wearing safety belts.\u00a0 One was fatally injured.\u00a0 (Tr. 69). he estimated that his lanyard was 7 or 8feet in length, but that if it were tied off at some point in the derrick it would beshorter.\u00a0 In further testimony he contradicted himself by stating that he never useseither 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.\u00a0 (Tr.70) He felt that this accident was caused by the employee’s use of the safety belt. \u00a0(Tr. 72). He further stated that the compliance officer had told him in the past that thebelly 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 thederrick was not as level as it should have been since the blocks did not hang straightdown and struck the sides of the derrick when moving in the lifting and positioning of thecasing joints.\u00a0 The problem was discussed with the job superintendent or hisassistant, but not with Mr. Allen because the latter was not on the jobsite at that time.(Tr. 74-75).\u00a0 The superintendent acknowledged that the derrick was not plumb. (Tr.75). However, the witness stated that although the stabbing operation was made moredifficult by the leaning derrick, he did not feel that it made matters unsafe. Theleveling of the rig would be very expensive. (Tr. 76).The witness had worked on many rigs and stated that somethingcould 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 hadworked for the respondent about five and a half years, primarily as a stabber. Hetestified that he had been provided with a safety belt and lanyard by the crew hauler, andthat he always used them. He never had received any instructions on how to use thatequipment when working for the respondent, but stated that he already knew how to safelyuse the equipment. (Tr. 83-82). He was not working on the day of the accident, but wascalled onto the job to finish the stabbing operations later in the day. He worked on thebeam, 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 ofthe lanyard and belt that he used when he finished the stabbing job. He figured thelanyard to be 7 or 8 feet long. (Tr. 83- 84). This was not the same equipment that hadbeen used by the deceased employee. (Tr. 85- 86). He further testified that the lanyard heused (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 off because he felt that itwould be difficult to get out of if necessary. He stated that he would rather tie ahalf-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 thelanyard hook was not bent; that the spring in the latch had been removed in order topermit the hook on the latch to fit over the rope. He said the rope was bigger than thelatch 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 training program for thatcompany. He had had many years of experience in safety matters pertaining to drillingrigs, etc., and had had some of his work published in the oil and gas drilling field. Hehad worked with the American Petroleum Institute in the evolvement of safety standardsused in the drilling industry. (Tr. 95-98). He qualified as an expert witness with respectto oil and gas well drilling matters. (Tr. 98).The witness had been contacted by OSHA for purposes oftestifying 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 thiscase to be hazardous, requiring the use of personal protective equipment. (Tr. 101).He indicated that the industry practice or custom is to provideequipment to the employees, allowing the employees to choose the point to which thelanyard will be attached. An important factor in the decision as to where to tie off is toconsider the length of the fall before the lanyard takes hold–a lanyard of excessivelength might fail to halt the fall of an individual. The belly ropes used by men workingin the derrick serve to protect the employees from falling from the derrick. The witnessstated that it is customary for the employee to use a belt with loops through whichattachment to the belly rope can be made for protection. He testified that some employeesworking on the derricks are reluctant to tie off to anything on the derrick for fear thatthey might be dragged off the stabbing board by the blocks. (Tr. 103-104).The American Petroleum Institute recommends that lanyards be atleast one-half inch in diameter, of nylon material or equivalent, and be adjusted topermit a maximum fall of 5 feet. (Tr. 108).The witness expressed the opinion that the deceased employeehad tied off the lanyard in the wrong location. He also felt that the personal protectiveequipment provided by the respondent was not of safe design and construction suitable forthe work being performed. He also felt that the missing spring in the lanyard hook wasindicative that the equipment was not kept in reliable condition. (Tr. 122-23).There are some workers who prefer using belly ropes for safetypurposes, and there are some who don’t like the idea of using safety belts or lanyards orany such equipment — they want to feel free to move about without restriction. (Tr. 125).On cross-examination the witness admitted that he had never runany 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 andconstruction for the work to be performed.In the absence of the compliance officer’s testimony it isdifficult to reach any conclusions with respect to whether the safety belt and lanyardworn by the deceased were defectively maintained. From the mish-mash of evidence presentedby the parties it appears that the accident resulted from the traveling blocks strikingthe belt or lanyard or 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 and lanyard produced bythe respondent at the hearing substantiate the respondent’s theory that the blocks,traveling upward, struck the deceased’s equipment, pulling him off the derrick, breakingthe lanyard, and causing him to fall to his death. In its damaged condition no conclusioncan 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 thatthe lanyard on another belt and lanyard combination (owned by the employee using it) had alanyard which was long enough to permit a fall of more than 6 feet. But the employeestated that he preferred not to clip the lanyard to the derrick structure for fear ofbeing unable to untie himself in the event of an emergency. He would rather wrap thelanyard around an object 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 the structure or otheremergency. The evidence indicates that there is a natural fear among those employeesengaged in working at heights such as those in this case that they might not be able toextricate themselves from safety belts and lanyards if necessary. Some employees prefer towork without any safety belts or lanyards on the theory that they are then free to movewithout restriction in the event of an emergency. It is also apparent that when a lanyardis wrapped around a point in the derrick structure it loses much of its length and theactual drop of an employee’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 therefore vacated.CONCLUSIONS OF LAW1. The Review Commission has jurisdiction of this matter andthe parties.2. The respondent did not violate the standard at 29 CFR1910.132(a). 3. The respondent did not violate the standard at 29 CFR1910.132(c).ORDERCitations 1 and 2 are vacated.Louis G. LaVecchia Judge,OSHRCDATED: AUG 15, 1991″