“SECRETARY OF LABOR,Complainant,v.CITY OIL WELL SERVICE CO.,Respondent.OSHRC Docket No. 81-1797_DECISION_Before: BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:The Secretary of Labor’s serious citation 1, as amended to allege thatCity Oil Well Service Co. violated 29 C.F.R. ?? 1910.134(a)(1) and (2),is affirmed. The Commission assesses a total penalty of $800.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: September 30, 1986————————————————————————SECRETARY OF LABOR,Complainant,v.CITY OIL WELL SERVICE CO.,Respondent.OSHRC Docket No. 81-1797_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).At issue is whether the administrative law judge erred in vacating acitation alleging that City Oil Well Service Company (\”City\”) violatedthe respirator standards at 29 C.F.R. ?? 1910.134(a)(1) and (a)(2).[[1]]The citation followed an OSHA inspection after the deaths of twoemployees at a \”frac tank\” while they were engaged in swabbing (drainingfluids from an oil well after drilling and before oil production).Though there was no need for the employees to go inside the tank duringtheir well servicing work, the body of one of them was found inside itand the body of the other was found at the top. Subsequent testingrevealed hydrogen sulfide (H2S) gas at the wellhead, after the valveshad been bled for several minutes, in a concentration of 225 parts permillion (ppm). That level exceeds the permissible employee exposurelimits in Table Z-2 of 29 C.F.R. ? 1910.1000.[[2]] City relied on thewell operator to inform it if there were H2S hazards at the wellsite andmade no inquiries of its own. The evidence indicates that the custom andpractice of the industry is for the well servicer to rely on the welloperator or owner to advise it if H2S hazards are present and to providerespirators if necessary.The two Commissioners are divided on whether the judge’s decision shouldbe affirmed or reversed.[[3]] Chairman Buckley would affirm the judge’sdecision. Under the cited standards, respirators are to be provided\”when such equipment is necessary to protect the health of theemployee.\” This is a broadly-worded requirement similar to 29 C.F.R. ?1910.132(a) requiring personal protective equipment \”wherever it isnecessary by reason of hazards . . . . \” Thus, in Chairman Buckley’sview, whether City violated the cited standards depends on whether areasonable person familiar with the circumstances, including any factsunique to the industry, would recognize a hazard warranting provision ofrespirators or establishment of a respirator program by City. SeeOwens-Corning Fiberglas Corp., 79 OSAHRC 26\/D6, 7 BNA OSHC 1291, 1295,1979 CCH OSHD ? 23,509, p. 28,491 (No. 76-4990, 1979), aff’d on othergrounds, 659 F.2d 1285 (5th Cir. 1981).One of the undisputed facts, unique to City’s industry, is that wellservicers rely on well operators to advise them if H2S hazards arepresent and to provide respirators if necessary. It is the custom andpractice in this industry for the well operator to determine and warn ofthe presence of H2S gas. The well owner or operator is in a uniqueposition to know whether H2S hazards exist and to have the appropriaterespirators on hand in the event they are necessary. The owner oroperator is in overall charge of well operations and makes repeatedtests during drilling and production for the presence of hazardoussubstances like H2S gas. Well servicing companies send employees to thewellsite only to perform certain specific jobs such as the swabbinghere. Absent some indication from the operator of the need forrespirators because of the presence of H2S, a reasonable person in thewell servicing industry would not recognize a need \”to protect thehealth of the employee.\”If the well servicer has reason to foresee that the owner or operatormay not properly protect the employees, the normal reliance is notjustified. Cf. Sasser Electric and Mfg. Co., 11 BNA OSHC, 2133, 2135-36,1984 CCH OSHD ? 26,982, pp. 34,684-85 (No. 82-178, 1984), appeal filed,No. 84-1961 (4th Cir. Sept. 25, 1984 );Cities Service Oil Co., 76 OSAHRC105\/A2, 4 BNA OSHC 1515, 1518, 1976-77 CCH OSHD ? 20,999, pp. 25,237-38(No. 4648, 1976), aff’d, 577 F.2d 126 (10th Cir. 1978) (employer whohires an outside specialist for particular work may reasonably rely onthe specialist not to endanger the hiring employer’s employees in thecourse of that work, unless there is reason to foresee that thespecialist will not work safely). However, City had no reason to believethat the well owner or operator on the worksite here would not properlywarn of possible excessive concentrations of H2S or provide respiratorsif needed. Indeed, the compliance officer’s own investigation alsoshowed that the well was not known or expected to be a sour gas well.Chairman Buckley, therefore, concludes that City’s reliance on the wellowner and operator here was reasonable and that it could not reasonablyhave anticipated H2S hazards at the wellsite where the accident occurred.The Secretary also argues that City should have established a respiratorprogram because it was on notice that employees previously had beenexposed to H2S gas at other worksites in the same six-mile area.However, an employer’s duty to protect its employees under the standarddoes not arise from the mere presence of an air contaminant. Rather, itarises from a risk of a concentration of that contaminant exceedingpermissible levels. Snyder Well Servicing, Inc., 82 OSAHRC 10\/C3, 10 BNAOSHC 1371, 1375-76, 1982 CCH OSHD ? 25,943, p. 32,511 (No. 77-1344,1982). The permissible exposure limits to H2S are contained in section1910.1000, Table Z-2. An employer who was not on notice that theemployees’ exposure on the wellsite might exceed those limits could notbe required to establish a respiratory protection program under section1910.134(a)(2).The evidence does not establish that excessive levels of H2S gas hadbeen encountered on any worksites where City’s employees had worked.There is no evidence that City ever had been informed by any well owneror operator of H2S hazards or of a need for respirators on any of itsworksites in the area. It had a right to rely on their judgment becausethe owners and operators were in the best position to know. Although twoCity employees testified that they previously had worked on what theycalled \”sour\” gas wells, both testified that they never had had a reasonto use a respirator. The evidence did not indicate what levels of gaswere actually or potentially present on any worksite.[[4]] Therefore, itwas not shown that City knew or should have known that its employeespreviously had been actually or potentially exposed to levels of H2S gasexceeding permissible levels. In the circumstances, Chairman Buckleywould not find a violation.Commissioner Cleary would affirm both citation items. In his view,City’s passive reliance on the well operator is indefensible becausesection 1910.134(a)(2) makes clear that \”the employer\” shall provide thenecessary respiratory protection and \”the employer\” shall be responsiblefor establishing Respiratory protective program when such equipment isnecessary. Any traditional custom and practice of the industry to thecontrary clearly has been superceded by OSHA’s more protectiverequirements. City’s statutory responsibility for its employees cannotbe shifted to independent companies who contract with City for specificjobs. E.g., Anning-Johnson Co., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1198n. 13, 1975-76 CCH OSHD ? 20,690, p. 24,783 n. 13 (Nos. 3694 & 4409,1976); Central of Georgia R.Co. v. OSAHRC, 576 F.2d 620 (5th Cir. 1978).City did not even inquire of the well operator whether hazardous aircontaminants might be present or whether respirators might be needed.Thus, it was in no position to protect employees from the kind of deadlyoverexposure that occurred.Commissioner Cleary concludes that with any reasonable amount ofinquiry, City would have known that H2S was a problem in the area wherethe fatalities occurred. For example, one City employee, Holly,testified that he had encountered \”sour\” gas on numerous previous jobswith City at levels where he needed instruction in how to avoid it. Yetthe only protection provided was his brother’s informal advice to stayupwind of the gas. City itself gave no instructions to employees on thesubject and apparently afforded them no protection. Relying on anemployee’s sense of smell to avoid H2S hazards is inadequate because ahigh concentration of H2S gas deadens the sense of smell and asufficiently high concentration is lethal. A manager for an H2S safetycompany testified to that effect, and section 1910.1000, Table Z-2,containing the H2S permissible exposure limits, also references thisinformation (ANSI Z37.2-1966). The same manager also testified that hiscompany had provided services within a six-mile radius of the wellsitewhere the accident occurred. City should have had a respiratoryprotection program available well before the day of the fatalities.Commissioner Cleary also notes that the judge’s rationale for vacatingthe citation items, which was that both standards require a showing thatengineering controls are not feasible, or if feasible have not beeninstituted, is inconsistent with Commission precedent. E.g., Snyder WellServicing. Commissioner Cleary adopts the judge’s alternative findingthat section 1910.134(a)(2) was violated. Thus, Commissioner Clearywould find violations of both cited standards.To resolve their impasse on the merits of the citation and to permit theparties to conclude this litigation, Chairman Buckley and CommissionerCleary have agreed to vacate the direction for review. Eg., Texaco,Inc., 80 OSAHRC 74\/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ? 24,634 (Nos.77-3040 & 77-3542, 1980). The judge’s decision in this case thereforebecomes the appealable final order of the Commission, but is accordedthe precedential value of an unreviewed judge’s decision.FOR THE COMMISSION: Ray H. Darling, Jr.EXECUTIVE SECRETARYDATED: April 10, 1985————————————————————————SECRETARY OF LABOR,Complainant,v.CITY OIL WELL SERVICE CO.,Respondent.OSHRC DOCKET NO. 81-1797_DECISION AND ORDER_Appearances: U. Sidney Cornelius, Jr., Esq., ofDallas, Texas, for the complainant.George R. Carlton, Jr., Esq., ofDallas, Texas, for the respondent._PROCEDURAL HISTORY_BLYTHE, Judge:Hydrogen sulfide gas (H2S) was blamed for the deaths of two employees ofthe respondent, City Oil Well Service Co. (\”City\”), June 4, 1981, at anoil well drilling location known as Nixon-Lease Smith No. 1, near Nixon,Texas. As the result of an investigation commencing June 5, 1981, andending June 26, 1981, by a compliance officer of the Occupational Safetyand Health Administration (\”OSHA\”), a single citation was issued to CityJuly 1, 1981, charging it with violating ?5(a)1 of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-658 (\”the Act\”), infailing to protect its employees from the recognized hazard of wellservicing operations in zones where H2S tray be encountered. City timelyfiled notice of contest July 16, 1981, initiating this proceeding beforethe Occupational Safety and Health Review Commission (\”the Commission\”)under ?10(c) of the Act. A complaint and answer were filed with theCommission, and subsequently, by amended complaint, the Secretary ofLabor (\”the Secretary\”) eliminated the ? 5(a)(1) charge, and insteadalleged violations of ? 5(a)(2) of the Act and standards at 29 CFR1910.134(a)(1) and (a)(2). City filed an amended answer admitting thejurisdictional and coverage allegations of the complaint, denyingviolations of the cited standards, and asserting the affirmative defenseof unpreventable employee misconduct.The case came on regularly for hearing November 19, 1981, at CorpusChristi, Texas. No affected employee or authorized representative ofaffected employees took part in the proceeding. Both parties havesubmitted post-hearing briefs.The issues to be determined are whether City violated the citedstandards as alleged and, if so, the appropriate penalty therefor. Thissubsumes the issue of whether City has made out its affirmative defenseof unpreventable employee misconduct._DISCUSSION AND OPINION __The factual background._The oil well where the fatal accident occurred had been drilled to aformation called the Austin Chalk, then a \”Christmas tree\”, a valvesystem, was installed and the well was shut in to await swabbingoperations by City preparatory to bringing the well into production.Swabbing consists of lowering a plug, or swab, on a wire line to thebottom of the hole and pulling it to the top to remove accumulatedfluids. In this case the fluids were run through a flow line first intoan open pit and then into a tank called a \”frac tank\” so it could bemeasured to determine the flow rate of the well. Measuring the fractank’s contents entailed an employee’s going to the top of the tank andtaking the measurement through a vent. The tank was otherwise sealed,although there was a 2′ x 2′ manhole which could be opened. The swabbingoperation had been completed, and City’s two employees on the site,Marion Danny Mitchell and Davy Lynn Sparkman, had started \”riggingdown\”. There were no surviving witnesses to the accident, but for someunexplained reason Sparkman entered the tank through the manhole in itstop. His body was found inside the tank, and Mitchell’s body was foundon top of the tank.[[1]]Jerry Holt, assistant regional manager for FSSE International, a firmspecializing in H2S safety, was called to the accident scene and arrivedthere two or three hours after its occurrence (Tr.69). The tank hadalready been \”blown out\” by emergency rescue personnel who removed thebody from the tank. Holt opened a valve at the wellhead and tested thegas emitted therefrom at 225 ppm H2S (Tr.69), an amount which he saidwas deadly (Tr.76). Holt also opined that H2S in the amount of 20 ppmrequires the use of respirators (Tr.76).Bert Lindquist, the OSHA compliance officer, witnessed another H2S testat the wellhead which showed about 237 pp. H2S (Tr.12,85). The date ofthis test was not established.T_he alleged violations of ? 1910.134(a)(1) and (a)(2)._City is alleged to have violated 29 CFR 1910.134(a)(1) and (a)(2), whichprovide :1910.134-_-RESPIRATORY PROTECTION_(a) _Permissible practice._(1) In the control of those occupational diseases caused by breathingair contaminated with harmful dusts, fogs, fumes, mists, gases, smokes,sprays, or vapors, the primary objective shall be to prevent atmosphericcontamination. This shall be accomplished as far as feasible by acceptedengineering control measures (for example, enclosure or confinement ofthe operation, general and local ventilation, and substitution of lesstoxic materials). When effective engineering controls are not feasible,or while they are being instituted, appropriate respirators shall beused pursuant to the following requirements.(2) Respirators shall be provided by the employer when such equipment isnecessary to protect the health of the employee. The employer shallprovide the respirators which are applicable and suitable for thepurpose intended. The employer shall be responsible for theestablishment and maintenance of a respiratory protective program whichshall include the requirements outlined in paragraph (b) of this section.Paragraph (b), incorporated by reference in ? 1910.134(a)(2), provides:_(b) Requirements for a minimal acceptable program._(1) Written standard operating procedures governing the selection anduse of respirators shall be established.(2) Respirators shall be selected on the basis of hazards to which theworker is exposed.(3) The user shall be instructed and trained in the proper use ofrespirators and their limitations.(4) Where practicable, the respirators should be assigned to individualworkers for their exclusive use.(5) Respirators shall be regularly cleaned and disinfected. Those issuedfor the exclusive use of one worker should be cleaned after each day’suse, or more often if necessary. Those used by more than one workershall be thoroughly cleaned and disinfected after each use.(6) Respirators shall be stored in a convenient, clean, and sanitarylocation.(7) Respirators used routinely shall be inspected during cleaning. Wornor deteriorated parts shall be replaced. Respirators for emergency usesuch as self- contained devices shall be thoroughly inspected at leastonce a month and after each use.(8) Appropriate surveillance of work area conditions and degree ofemployee exposure or stress shall be maintained.(9) There shall be regular inspection and evaluation to determine thecontinued effectiveness of the program.(10) Persons should not be assigned to tasks requiring use ofrespirators unless it has been determined that they are physically ableto perform the work and use the equipment. The local physician shalldetermine what health and physical conditions are pertinent. Therespirator user’s medical status should be reviewed periodically (forinstance, annually).(11) Approved or accepted respirators shall be used when they areavailable. The respirator furnished shall provide adequate respiratoryprotection against the particular hazard for which it is designed inaccordance with standards established by competent authorities. The U.S.Department of Interior, Bureau of Mines, and the U.S. Department ofAgriculture are recognized as such authorities. Although respiratorslisted by the U.S. Department of Agriculture continue to be acceptablefor protection against specified pesticides, the U.S. Department of theInterior, Bureau of Mines, is the agency now responsible for testing andapproving pesticide respirators.City contends that it was not in violation of ?1910.134(a)(1) becausethe Secretary failed to prove engineering controls were not feasible andbecause feasible and effective engineering controls were in use. It thencontends that it was not in violation of ? 1910.134(a)(2) because thisstandard is not applicable unless ? 1910.134(a)(1) is applicable.Amended item 1A alleges:29 CFR 1910.134(a)(1): When effective engineering controls were notfeasible or while such controls were being instituted, appropriaterespirators were not used pursuant to the requirements of this section:Well servicing employees, performing operations on sour well site, wherehydrogen sulfide gas was present.This language, as well as the standard itself, makes it clear that itwas the Secretary’s burden to prove that effective engineering controlswere not feasible. This he has not done. The nearest he came to this wasthe introduction of the compliance officer’s testimony that in aswabbing operation H2S could be encountered at the wellhead, along theflow line, in the open pit area, or at the frac tank (Tr.11). Feasibleengineering controls were not mentioned.On the other hand, the evidence is insufficient to support City’scontention that the Christmas tree, flow line and frac tank constitutedeffective and feasible engineering controls during the swabbingoperations. The record shows that H2S could escape at the wellhead, atthe open pit, and from the vent atop the frac tank during suchoperations (Tr.11). Nevertheless, the Secretary’s failure to prove thatengineering controls were not feasible makes it necessary to vacate the? 1910.134(a)(1) citation.The next issue is whether ? 1910.134(a)(2) is applicable if ?1910.134(a)(1) is not. City bases its position on the final sentence of? 1910.134(a)(1): When effective engineering controls are not feasible, or while they arebeing instituted, appropriate respirators shall be used pursuant to thefollowing requirements.However, ? 1910.134(a)(2), when read alone, does not appear to depend onthe preceding subsection. It starts out with its own positive requirement:Respirators shall be provided by the employer when such equipment isnecessary to protect the health of the employee.Section 1910.134 was derived in pertinent part from American NationalStandards lnstitute (\”ANSl\”) Standard Z 88.2-1969, Standard Practice forRespiratory Protection, ? 3.3 of which contains the provisions found in? 1910.134 (a) (2) and is headed \”Employer Responsibility.\” Thisheading, while not conclusive, buttresses the impression that ?1910.134(a)(2) is independent and can form the basis for a citationwithout a violation being found under ?1910.134(a)(1).The Commission majority apparently has not addressed this issuedirectly, although Commissioner Van Namee, concurring in North AmericanRockwell Corp., 75 OSAHRC 43\/A6, 2 BNA OSHC 1710 1974-75 CCH OSHD ?19,464 (Nos. 2692 and 2875, 1975), aff’d., 540 F.2d 1283 (6th Cir.,1976), recognized the problem, saying:In addition to being cited for violating the asbestos standard Rockwellwas charged with a violation of 29 1910.134(a)(2), based on the factthat the operator of grinder #048 was not protected from overexposure toasbestos by a respirator. As noted above, however, the asbestos standardprovides that respirators shall only be used while engineering controlsare being implemented or when such controls are not feasible. To holdthat a respirator should have been worn in this case would mean thatrespirators would always have to be worn, regardless of whethereffective engineering controls have been implemented, for it is alwayspossible that an unpredictable breakdown or malfunction in such controlswill lead to a temporary condition of over-exposure. Such a holdingwould be inconsistent with the asbestos standard, which specifies theuse of respirators only as an interim measure or as a last resort.The situation here is the same as that stated by Commissioner Van Namee,for ? 1910.134(a)(1) is substantially equivalent to the asbestosstandards then in effect, ?? 1910.93a(b)(1) and (3) and (c)(1).[[2]] Thelead opinion by Chairman Moran in the Rockwell case went off on theissue of employer knowledge, as did Commissioner Cleary’s dissent, sothe applicability of ? 1910.134(a)(2) was discussed only by CommissionerVan Namee. However, I find that Commission Van Namee’s logic persuasive,and I shall follow it.[[3]] But, to avoid remand in the event ofreversal on this point, I shall proceed to make alternative findings andconclusions.Item 1B of citation 1, as amended, alleges:29 CFR 1910.134(a)(2): Appropriate respirators were not provided whensuch equipment was necessary to protect the health of employees, nor wasa respiratory protection program established which included therequirements outlined in paragraph (b) of this section:Well servicing employees, performing operations on sour well site, wherehydrogen sulfide gas was present.The uncontradicted evidence establishes that City provided norespirators on this well location and had no respiratory protectionprogram, although it was not uncommon in that area for wells to be\”sour,\” that is, to produce H2S.Compliance Officer Lindquist testified that \”there were wells in thegeneral area of this one that were also sour\” (Tr. 12, 52), that he wasinformed that there was a sour well about five miles from the one hereinvolved (Tr.42), that he understood that there were other wells thatproduced H2S from the Austin Chalk formation (Tr.42), and that hisinvestigation indicated that H2S had been present at this well for sometime prior to the accident (Tr. 32).Richard Allen Snow, a City swab operator, testified that some wells inthat area are sweet and some are sour (Tr. 57).Jerry Holt, the H2S safety expert, testified that his company hadserviced wells in a five or six mile radius of this well and he assumedthat the area where the accident occurred was known to have H2S (Tr.70).With regard to a respiratory protective program, Lindquist, Snow andSteve Holly (another City swab operator) testified without contradictionthat City had none, written or oral (Tr. 18, 19, 58, 59, 62-65). City’spractice was to rely on the operator of a well to tell it if a well Citywas to service was sour (Tr. 19), but it apparently initiated noinquiries on this subject (Tr. 19). If a well was sour, the operatormight or might not supply respirators (Tr. 29,57), but according to Snowand Holly respirators were never used even when H2S was encountered (Tr.57,64).H2S is a colorless, flammable, very poisonous, heavier-then-air gas witha rotten egg odor that is readily recognizable (Tr. 78). However, itrapidly anesthetizes the olfactory nerves so that one’s sense of smellcannot be relied upon to detect its continued presence (Tr. 39, 40, 72).It is also dangerous and deadly (Tr. 12, 39, 40, 76).According to Lindquist, an acceptable respiratory protection program forCity would consist of inquiring of the operator in each instance whetherthe well to be serviced is sour or sweet; making sure that respiratorsare available where the well is known to be, or turns out to be, sour;monitoring the work environment during operations to ascertain that theconcentration of H2S does not exceed the threshold limit value; writteninstructions to its employees on use of respirators if H2S isencountered; and a plan for evacuation of employees if H2S isencountered and respirators are not available (Tr. 17, 39).It is clear that, if ? 1910.134(a)(2) is applicable, City was inviolation, and in view of the nature of the hazard the violation wasserious. I would assess a penalty of $400 as proposed, after consideringthe statutory criteria._The employee misconduct defense._City’s amended answer raises the affirmative defense of unpreventableemployee misconduct. It introduced no evidence on this point and did notdiscuss it in its brief, so the defense may be considered abandoned. Ofcourse, it is moot if this decision is not reversed, but here againalternative findings will be made to obviate a possible remand.Since City elected not to put on any witnesses of its own, it must relyon the testimony of two of its swab operators, Snow and Holly, who werecalled by the Secretary. Neither of these witnesses supported thisaffirmative defense, of which City has the burden of proof.Snow said that City’s employees had no business in the frac tank butthat he had never been told not to go into them (Tr. 56, 58). Hetestified that City had no safety meetings at which respirators werediscussed, and did not distribute written material about respirators,until after the fatal accident (Tr. 56, 57).Holly testified he had been told not to go into a frac tank but thatbefore the fatal accident he had received no instructions on the use ofrespirators or to stay off the tops of frac tanks (Tr. 62, 63). He saidthe only instruction he had received regarding H2S was from his brotherand was to stay upwind of the gas (Tr. 65,66).City was proved none of the elements of this affirmative defense, asoutlined in Weatherhead Co., 76 OSAHRC 61\/B7, 4 BNA OSHC 1296, 1976- 77CCH OSHD ? 20,784 (No. 8862, 1976), and many other cases. It has provedneither the existence of a work rule nor specific instructions to itsemployees adequate to prevent their exposure to H2S, much less that anysuch rules or instructions were effectively communicated or uniformlyenforced. It has failed to prove this affirmative defense._FINDINGS OF FACT_1. At all times material to the proceeding, City was engaged in the oilwell servicing business, a business affecting commerce, and it hademployees, all within the meaning of ?3(5) of the Act.2. On June 4, 1981, two of City’s employees, Marion Danny Mitchell andDavy Lynn Sparkman, were asphyxiated by H2S gas at an oil well known asNixon-Lease Smith No. 1, near Nixon, Texas, during swabbing operations.This well was in an area known in the oil and gas producing industry tohave some wells that were \”sour\”, that is, that produced H2S gas.3. City did not make a practice of inquiring of the operators of wellsit was called to service whether or not they were sour, relying insteadon the operator to volunteer such information if the wells were indeed sour.4. The well here involved was reported to the OSHA compliance officer,Bert Lindquist, to have been known as a sour well in advance of thefatal accident. A few hours after the accident it was tested and foundto produce 225 ppm of H2S whereas the amount of 20 ppm of H2S requiresthe use of respirators by persons exposed to it.5. H2S is a colorless, very poisonous, flammable, heavier-than air gascharacterized by an offensive \”rotten egg\” odor that is initiallyreadily detectable. However, it anesthetizes one’s olfactory nerves sothat the sense of smell cannot be relied upon for a warning if exposureis long continued.6. City’s practice was to rely on the operator to provide respirators ifa well was known to be sour. However, two of its swab operators whotestified at the hearing said that although they had worked on sourwells before the fatal incident they had never used respirators on suchjobs before or since that date.7. City had no respiratory protection program.8. There was a substantial probability that death or serious physicalinjury could result from the lack of respirators.9. City, in the exercise of reasonable diligence, could have known ofthe need for respirators.10. The Secretary failed to prove that engineering controls were notfeasible to control H2S at the well site here involved. _CONCLUSIONS OF LAW_1. The Commission has jurisdiction of the parties and of the subjectmatter of this proceeding.2. On June 4, 1981, the respondent, City Oil Well Service Co., was notin violation of ? 5(a)(2) of the Act and the standards at 29CFR 1910.134(a)(1) and (a) (2). _ORDER_It is ORDERED that items 1A and 1B of citation 1, as amended, allegingserious violations of ?5(a)(2) of the Act and 29 CFR 1910.134(a)(1) and(a) (2) , together with the proposed penalties, are VACATED.DEE C. BLYTHEAdministrative Law Judge Date: March 1, 1982FOOTNOTES:[[1]] ? 1910.134 Respiratory protection.(a) Permissible practice. (1) In the control of those occupationaldiseases caused by breathing air contaminated with harmful dusts, fogs,fumes, mists, gases, smokes, sprays, or vapors, the primary objectiveshall be to prevent atmospheric contamination. This shall beaccomplished as far as feasible by accepted engineering control measures(for example, enclosure or confinement of the operation, general andlocal ventilation, and substitution of less toxic materials). Wheneffective engineering controls are not feasible, or while they are beinginstituted, appropriate respirators shall be used pursuant to thefollowing requirements.(2) Respirators shall be provided by the employer when such equipment isnecessary to protect the health of the employee. The employer shallprovide the respirators which are applicable and suitable for thepurpose intended. The employer shall be responsible for theestablishment and maintenance of a respiratory protective program whichshall include the requirements outlined in paragraph (b) of this section.[[2]] H2S gas is sometimes encountered during oil drilling in certainareas of the country, and sufficiently high exposure can result in deathby suffocation.[[3]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Under section 12(f) of theAct, 29 U.S.C. ? 661(e), official action can be taken by the Commissionwith the affirmative vote of at least two members. Because there is avacancy, the Commission currently has only two members.[[4]] One of City’s employees, Holly, testified that he had had to standupwind from the gas on a number of jobs with City. However, that actionby Holly was based on advice by his brother. The fact that an employeefelt the need to stand upwind from H2S gas on certain worksites does notby itself establish actual or potential exposure above permissible levels.[[1]] At p.2 of its brief, City speculates that one employee entered thetank and that the other \”either tried to accompany him or attempted arescue.\” There is no support in the record for either theory.[[2]] The present comparable standards are ?? 1910.1001 (a) (1) and (d)(1) .[[3]] It seems desirable that, where dangerous gases such as H2S areinvolved, an employer be required to have respirators available whetheror not engineering controls are feasible, since there is always apossibility that engineering controls may fail. However, the citedstandard does not so provide, and it is not this agency’s function tostretch standards to fit situations not covered by their provisions.Burtex Constructors, Inc., 76 OSAHRC 149\/A2, 4 BNA OSHC 1928, 1976-77CCH OSHD ? 21,394 (No. 11553, 1976).”