“Docket No. 81-1797 SECRETARY OF LABOR, Complainant,v.CITY OIL WELL SERVICE CO., Respondent.OSHRC Docket No. 81-1797DECISION Before:\u00a0 BUCKLEY, Chairman, and CLEARY,Commissioner.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration.\u00a0 It was established to resolvedisputes arising out of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C.? 659(c).At issue is whether the administrative law judgeerred in vacating a citation alleging that City Oil Well Service Company(\”City\”) violated the 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 two employeesat a \”frac tank\” while they were engaged in swabbing (draining fluids from anoil well after drilling and before oil production).\u00a0 Though there was no need for theemployees to go inside the tank during their well servicing work, the body of one of themwas found inside it and the body of the other was found at the top.\u00a0 Subsequenttesting revealed hydrogen sulfide (H2S) gas at the wellhead, after the valves had beenbled for several minutes, in a concentration of 225 parts per million (ppm).\u00a0 Thatlevel exceeds the permissible employee exposure limits in Table Z-2 of 29 C.F.R. ?1910.1000.[[2]]\u00a0 City relied on the well operator to inform it if there were H2Shazards at the wellsite and made no inquiries of its own.\u00a0 The evidence indicatesthat the custom and practice 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 provide respirators ifnecessary.The two Commissioners are divided on whether thejudge’s decision should be affirmed or reversed.[[3]]\u00a0 Chairman Buckley would affirmthe judge’s decision.\u00a0 Under the cited standards, respirators are to be provided\”when such equipment is necessary to protect the health of the employee.\”\u00a0This is a broadly-worded requirement similar to 29 C.F.R. ? 1910.132(a) requiringpersonal protective equipment \”wherever it is necessary by reason of hazards . . . .\” Thus, in Chairman Buckley’s view, whether City violated the cited standards dependson whether a reasonable person familiar with the circumstances, including any facts uniqueto the industry, would recognize a hazard warranting provision of respirators orestablishment of a respirator program by City.\u00a0 See Owens-Corning FiberglasCorp., 79 OSAHRC 26\/D6, 7 BNA OSHC 1291, 1295, 1979 CCH OSHD ? 23,509, p. 28,491 (No.76-4990, 1979), aff’d on other grounds, 659 F.2d 1285 (5thCir. 1981).One of the undisputed facts, unique to City’sindustry, is that well servicers rely on well operators to advise them if H2S hazards arepresent and to provide respirators if necessary.\u00a0 It is the custom and practice inthis industry for the well operator to determine and warn of the presence of H2S gas.\u00a0The well owner or operator is in a unique position to know whether H2S hazards existand to have the appropriate respirators on hand in the event they are necessary. \u00a0Theowner or operator is in overall charge of well operations and makes repeated tests duringdrilling and production for the presence of hazardous substances like H2S gas.\u00a0 Wellservicing companies send employees to the wellsite only to perform certain specific jobssuch as the swabbing here.\u00a0 Absent some indication from the operator of the need forrespirators because of the presence of H2S, a reasonable person in the well servicingindustry would not recognize a need \”to protect the health of the employee.\”If the well servicer has reason to foresee thatthe owner or operator may not properly protect the employees, the normal reliance is notjustified.\u00a0 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 OSAHRC 105\/A2, 4BNA 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 who hires an outside specialist for particularwork may reasonably rely on the specialist not to endanger the hiring employer’s employeesin the course of that work, unless there is reason to foresee that the specialist will notwork safely).\u00a0 However, City had no reason to believe that the well owner or operatoron the worksite here would not properly warn of possible excessive concentrations of H2Sor provide respirators if needed.\u00a0 Indeed, the compliance officer’s own investigationalso showed that the well was not known or expected to be a sour gas well.\u00a0 ChairmanBuckley, therefore, concludes that City’s reliance on the well owner and operator here wasreasonable and that it could not reasonably have anticipated H2S hazards at the wellsitewhere the accident occurred.The Secretary also argues that City should haveestablished a respirator program because it was on notice that employees previously hadbeen exposed to H2S gas at other worksites in the same six-mile area.\u00a0 However, anemployer’s duty to protect its employees under the standard does not arise from the merepresence of an air contaminant.\u00a0 Rather, it arises from a risk of a concentration ofthat contaminant exceeding permissible levels.\u00a0 Snyder Well Servicing, Inc.,82 OSAHRC 10\/C3, 10 BNA OSHC 1371, 1375-76, 1982 CCH OSHD ? 25,943, p. 32,511 (No.77-1334, 1982).\u00a0 The permissible exposure limits to H2S are contained in section1910.1000, Table Z-2.\u00a0 An employer who was not on notice that the employees’ exposureon the wellsite might exceed those limits could not be required to establish a respiratoryprotection program under section 1910.134(a)(2).The evidence does not establish that excessivelevels of H2S gas had been encountered on any worksites where City’s employees had worked.\u00a0There is no evidence that City ever had been informed by any well owner or operatorof H2S hazards or of a need for respirators on any of its worksites in the area.\u00a0 Ithad a right to rely on their judgment because the owners and operators were in the bestposition to know.\u00a0 Although two City employees testified that they previously hadworked on what they called \”sour\” gas wells, both testified that they never hadhad a reason to use a respirator.\u00a0 The evidence did not indicate what levels of gaswere actually or potentially present on any worksite.[[4]]\u00a0 Therefore, it was notshown that City knew or should have known that its employees previously had been actuallyor potentially exposed to levels of H2S gas exceeding permissible levels.\u00a0 In thecircumstances, Chairman Buckley would not find a violation.Commissioner Cleary would affirm both citationitems.\u00a0 In his view, City’s passive reliance on the well operator is indefensiblebecause section 1910.134(a)(2) makes clear that \”the employer\” shall provide thenecessary respiratory protection and \”the employer\” shall be responsible forestablishing a respiratory protective program when such equipment is necessary.\u00a0 Anytraditional custom and practice of the industry to the contrary clearly has beensuperceded by OSHA’s more protective requirements.\u00a0 City’s statutory responsibilityfor its employees cannot be shifted to independent companies who contract with City forspecific jobs.\u00a0 E.g., Anning-Johnson Co., 76 OSAHRC 54\/A2, 4 BNA OSHC1193, 1198 n. 13, 1975-1976 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).\u00a0 Citydid not even inquire of the well operator whether hazardous air contaminants might bepresent or whether respirators might be needed.\u00a0 Thus, it was in no position toprotect employees from the kind of deadly overexposure that occurred.Commissioner Cleary concludes that with anyreasonable amount of inquiry, City would have known that H2S was a problem in the areawhere the fatalities occurred.\u00a0 For example, one City employee, Holly, testified thathe had encountered \”sour\” gas on numerous previous jobs with City at levelswhere he needed instruction in how to avoid it.\u00a0 Yet the only protection provided washis brother’s informal advice to stay upwind of the gas.\u00a0 City itself gave noinstructions to employees on the subject and apparently afforded them no protection.\u00a0Relying on an employee’s sense of smell to avoid H2S hazards is inadequate because ahigh concentration of H2S gas deadens the sense of smell and a sufficiently highconcentration is lethal.\u00a0 A manager for an H2S safety company testified to thateffect, and section 1910.1000, Table Z-2, containing the H2S permissible exposure limits,also references this information (ANSI Z37.2-1966).\u00a0 The same manager also testifiedthat his company had provided services within a six-mile radius of the website where theaccident occurred.\u00a0 City should have had a respiratory protection program availablewell before the day of the fatalities.Commissioner Cleary also notes that the judge’srationale for vacating the citation items, which was that both standards require a showingthat engineering controls are not feasible, or if feasible have not been instituted, isinconsistent with Commission precedent. E.g., Snyder Well Servicing. \u00a0Commissioner Cleary adopts the judge’s alternative finding that section 1910.134(a)(2) wasviolated. Thus, Commissioner Cleary would find violations of both cited standards.To resolve their impasse on the merits of thecitation and to permit the parties to conclude this litigation, Chairman Buckley andCommissioner Cleary have agreed to vacate the direction for review.\u00a0 E.g., Texaco,Inc., 80 OSAHRC 74\/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ? 24,634 (Nos. 77-3040 &77-3542, 1980).\u00a0 The judge’s decision in this case therefore becomes the appealablefinal order of the Commission, but is accorded the precedential value of an unreviewedjudge’s decision.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 APR 10 1985FOOTNOTES: [[1]] ? 1910.134 Respiratory protection.(a) Permissible practice.\u00a0 (1) Inthe control if those occupational diseases caused by breathing air contaminated withharmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, the primary objectiveshall be to prevent atmospheric contamination.\u00a0 This shall be accomplished as far asfeasible by accepted engineering control measures (for example, enclosure or confinementof the operation, general and local ventilation, and substitution of less toxicmaterials).\u00a0 When effective engineering controls are not feasible, or while they arebeing instituted, appropriate respirators shall be used pursuant to the followingrequirements.(2) Respirators shall be provided by theemployer when such equipment is necessary to protect the health of the employee.\u00a0 Theemployer shall provide the respirators which are applicable and suitable for the purposeintended.\u00a0 The employer shall be responsible for the establishment and maintenance ofa respiratory protective program which shall include the requirements outlined inparagraph (b) of this section.[[2]] H2S gas is sometimes encountered duringoil drilling in certain areas of the country, and sufficiently high exposure can result indeath by suffocation.[[3]] As established by the Act, the Commission is composed of three members. \u00a0Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Under section 12(f) of the Act, 29 U.S.C. ?661(e), official action can be taken by the Commission with the affirmative vote of atleast two members.\u00a0 Because there is a vacancy, the Commission currently has only twomembers.[[4]] One of City’s employees, Holly, testifiedthat he had had to stand upwind from the gas on a number of jobs with City. However, thataction by Holly was based on advice by his brother.\u00a0 The fact that an employee feltthe need to stand upwind from H2S gas on certain worksites does not by itself establishactual or potential exposure above permissible levels.”