“Docket No. 81-1797 SECRETARY OF LABOR, Complainant, v. CITY OIL WELL SERVICE CO., Respondent.OSHRC Docket No. 81-1797DECISION Before: BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:The Secretary of Labor’s serious citation 1, as amended to allege that City Oil WellService Co. violated 29 C.F.R. ?? 1910.134(a)(1) and (2), is affirmed. The Commissionassesses a total penalty of $800.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED: September 30, 1986SECRETARY OF LABOR, Complainant, v. CITY OIL WELL SERVICE CO., Respondent.OSHRC Docket No. 81-1797DECISION Before: BUCKLEY, Chairman, and CLEARY, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-678 (\”the Act\”). The Commission is an adjudicatory agency,independent of the Department of Labor and the Occupational Safety and HealthAdministration. It was established to resolve disputes arising out of enforcement actionsbrought by the Secretary 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 a citationalleging that City Oil Well Service Company (\”City\”) violated the respiratorstandards at 29 C.F.R. ?? 1910.134(a)(1) and (a)(2).[[1]] The citation followed an OSHAinspection after the deaths of two employees at a \”frac tank\” while they wereengaged in swabbing (draining fluids from an oil well after drilling and before oilproduction). Though there was no need for the employees to go inside the tank during theirwell servicing work, the body of one of them was found inside it and the body of the otherwas found at the top. Subsequent testing revealed hydrogen sulfide (H2S) gas at thewellhead, after the valves had been bled for several minutes, in a concentration of 225parts per million (ppm). That level exceeds the permissible employee exposure limits inTable Z-2 of 29 C.F.R. ? 1910.1000.[[2]] City relied on the well operator to inform it ifthere were H2S hazards at the wellsite and made no inquiries of its own. The evidenceindicates that the custom and practice of the industry is for the well servicer to rely onthe well operator 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 should beaffirmed or reversed.[[3]] Chairman Buckley would affirm the judge’s decision. Under thecited standards, respirators are to be provided \”when such equipment is necessary toprotect the health of the employee.\” This is a broadly-worded requirement similar to29 C.F.R. ? 1910.132(a) requiring personal protective equipment \”wherever it isnecessary by reason of hazards . . . . \” Thus, in Chairman Buckley’s view, whetherCity violated the cited standards depends on whether a reasonable person familiar with thecircumstances, including any facts unique to the industry, would recognize a hazardwarranting provision of respirators 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 other grounds, 659 F.2d 1285 (5th Cir.1981).One of the undisputed facts, unique to City’s industry, is that well servicersrely on well operators to advise them if H2S hazards are present and to providerespirators if necessary. It is the custom and practice in this industry for the welloperator to determine and warn of the presence of H2S gas. The well owner or operator isin a unique position to know whether H2S hazards exist and to have the appropriaterespirators on hand in the event they are necessary. The owner or operator is in overallcharge of well operations and makes repeated tests during drilling and production for thepresence of hazardous substances like H2S gas. Well servicing companies send employees tothe wellsite only to perform certain specific jobs such as the swabbing here. Absent someindication from the operator of the need for respirators because of the presence of H2S, areasonable person in the well servicing industry would not recognize a need \”toprotect the health of the employee.\”If the well servicer has reason to foresee that the owner or operator may not properlyprotect the employees, the normal reliance is not justified. 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., 76OSAHRC 105\/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 who hires an outside specialist forparticular work may reasonably rely on the specialist not to endanger the hiringemployer’s employees in the course of that work, unless there is reason to foresee thatthe specialist will not work safely). However, City had no reason to believe that the wellowner or operator on the worksite here would not properly warn of possible excessiveconcentrations of H2S or provide respirators if needed. Indeed, the compliance officer’sown investigation also showed that the well was not known or expected to be a sour gaswell. Chairman Buckley, therefore, concludes that City’s reliance on the well owner andoperator here was reasonable and that it could not reasonably have anticipated H2S hazardsat the wellsite where the accident occurred.The Secretary also argues that City should have established a respirator programbecause it was on notice that employees previously had been exposed to H2S gas at otherworksites in the same six-mile area. However, an employer’s duty to protect its employeesunder the standard does not arise from the mere presence of an air contaminant. Rather, itarises from a risk of a concentration of that contaminant exceeding permissible levels.Snyder Well Servicing, Inc., 82 OSAHRC 10\/C3, 10 BNA OSHC 1371, 1375-76, 1982 CCH OSHD ?25,943, p. 32,511 (No. 77-1344, 1982). The permissible exposure limits to H2S arecontained in section 1910.1000, Table Z-2. An employer who was not on notice that theemployees’ exposure on the wellsite might exceed those limits could not be required toestablish a respiratory protection program under section 1910.134(a)(2).The evidence does not establish that excessive levels of H2S gas had beenencountered on any worksites where City’s employees had worked. There is no evidence thatCity ever had been informed by any well owner or operator of H2S hazards or of a need forrespirators on any of its worksites in the area. It had a right to rely on their judgmentbecause the owners and operators were in the best position to know. Although two Cityemployees testified that they previously had worked on what they called \”sour\”gas wells, both testified that they never had had a reason to use a respirator. Theevidence did not indicate what levels of gas were actually or potentially present on anyworksite.[[4]] Therefore, it was not shown that City knew or should have known that itsemployees previously had been actually or potentially exposed to levels of H2S gasexceeding permissible levels. In the circumstances, Chairman Buckley would not find aviolation.Commissioner Cleary would affirm both citation items. In his view, City’s passivereliance on the well operator is indefensible because section 1910.134(a)(2) makes clearthat \”the employer\” shall provide the necessary respiratory protection and\”the employer\” shall be responsible for establishing Respiratory protectiveprogram when such equipment is necessary. Any traditional custom and practice of theindustry to the contrary clearly has been superceded by OSHA’s more protectiverequirements. City’s statutory responsibility for its employees cannot be shifted toindependent companies who contract with City for specific jobs. E.g., Anning-Johnson Co.,76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1198 n. 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 air contaminantsmight be present or whether respirators might be needed. Thus, it was in no position toprotect employees from the kind of deadly overexposure that occurred.Commissioner Cleary concludes that with any reasonable amount of inquiry, Citywould have known that H2S was a problem in the area where the fatalities occurred. Forexample, one City employee, Holly, testified that he had encountered \”sour\” gason numerous previous jobs with City at levels where he needed instruction in how to avoidit. Yet the only protection provided was his brother’s informal advice to stay upwind ofthe gas. City itself gave no instructions to employees on the subject and apparentlyafforded them no protection. Relying on an employee’s sense of smell to avoid H2S hazardsis inadequate because a high concentration of H2S gas deadens the sense of smell and asufficiently high concentration is lethal. A manager for an H2S safety company testifiedto that effect, and section 1910.1000, Table Z-2, containing the H2S permissible exposurelimits, also references this information (ANSI Z37.2-1966). The same manager alsotestified that his company had provided services within a six-mile radius of the wellsitewhere the accident occurred. City should have had a respiratory protection programavailable well before the day of the fatalities.Commissioner Cleary also notes that the judge’s rationale for vacating thecitation items, which was that both standards require a showing that engineering controlsare not feasible, or if feasible have not been instituted, is inconsistent with Commissionprecedent. E.g., Snyder Well Servicing. Commissioner Cleary adopts the judge’s alternativefinding that section 1910.134(a)(2) was violated. Thus, Commissioner Cleary would findviolations of both cited standards.To resolve their impasse on the merits of the citation and to permit the partiesto conclude this litigation, Chairman Buckley and Commissioner Cleary have agreed tovacate the direction for review. Eg., Texaco, Inc., 80 OSAHRC 74\/B1, 8 BNA OSHC 1758, 1980CCH OSHD ? 24,634 (Nos. 77-3040 & 77-3542, 1980). The judge’s decision in this casetherefore becomes the appealable final order of the Commission, but is accorded theprecedential value of an unreviewed judge’s decision.FOR THE COMMISSION: Ray H. Darling, Jr.EXECUTIVE SECRETARYDATED: April 10, 1985SECRETARY OF LABOR, Complainant, v. CITY OIL WELL SERVICE CO., Respondent.OSHRC DOCKET NO. 81-1797DECISION AND ORDERAppearances: U. Sidney Cornelius, Jr., Esq., of Dallas, Texas, for the complainant.George R. Carlton, Jr., Esq., of Dallas, Texas, for the respondent.PROCEDURAL HISTORYBLYTHE, Judge:Hydrogen sulfide gas (H2S) was blamed for the deaths of two employees of the respondent,City Oil Well Service Co. (\”City\”), June 4, 1981, at an oil well drillinglocation known as Nixon-Lease Smith No. 1, near Nixon, Texas. As the result of aninvestigation commencing June 5, 1981, and ending June 26, 1981, by a compliance officerof the Occupational Safety and Health Administration (\”OSHA\”), a single citationwas issued to City July 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\”), in failing toprotect its employees from the recognized hazard of well servicing operations in zoneswhere H2S tray be encountered. City timely filed notice of contest July 16, 1981,initiating this proceeding before the Occupational Safety and Health Review Commission(\”the Commission\”) under ?10(c) of the Act. A complaint and answer were filedwith the Commission, and subsequently, by amended complaint, the Secretary of Labor(\”the Secretary\”) eliminated the ? 5(a)(1) charge, and instead allegedviolations of ? 5(a)(2) of the Act and standards at 29 CFR 1910.134(a)(1) and (a)(2).City filed an amended answer admitting the jurisdictional and coverage allegations of thecomplaint, denying violations of the cited standards, and asserting the affirmativedefense of unpreventable employee misconduct.The case came on regularly for hearing November 19, 1981, at Corpus Christi,Texas. No affected employee or authorized representative of affected employees took partin the proceeding. Both parties have submitted post-hearing briefs.The issues to be determined are whether City violated the cited standards asalleged and, if so, the appropriate penalty therefor. This subsumes the issue of whetherCity has made out its affirmative defense of unpreventable employee misconduct.DISCUSSION AND OPINION The factual background.The oil well where the fatal accident occurred had been drilled to a formation called theAustin Chalk, then a \”Christmas tree\”, a valve system, was installed and thewell was shut in to await swabbing operations by City preparatory to bringing the wellinto production.Swabbing consists of lowering a plug, or swab, on a wire line to the bottom of thehole and pulling it to the top to remove accumulated fluids. In this case the fluids wererun through a flow line first into an open pit and then into a tank called a \”fractank\” so it could be measured to determine the flow rate of the well. Measuring thefrac tank’s contents entailed an employee’s going to the top of the tank and taking themeasurement through a vent. The tank was otherwise sealed, although there was a 2′ x 2’manhole which could be opened. The swabbing operation had been completed, and City’s twoemployees on the site, Marion Danny Mitchell and Davy Lynn Sparkman, had started\”rigging down\”. There were no surviving witnesses to the accident, but for someunexplained reason Sparkman entered the tank through the manhole in its top. His body wasfound inside the tank, and Mitchell’s body was found on top of the tank.[[1]]Jerry Holt, assistant regional manager for FSSE International, a firm specializingin H2S safety, was called to the accident scene and arrived there two or three hours afterits occurrence (Tr.69). The tank had already been \”blown out\” by emergencyrescue personnel who removed the body from the tank. Holt opened a valve at the wellheadand tested the gas emitted therefrom at 225 ppm H2S (Tr.69), an amount which he said wasdeadly (Tr.76). Holt also opined that H2S in the amount of 20 ppm requires the use ofrespirators (Tr.76).Bert Lindquist, the OSHA compliance officer, witnessed another H2S test at the wellheadwhich showed about 237 pp. H2S (Tr.12,85). The date of this test was not established.The 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), which provide :1910.134–RESPIRATORY PROTECTION(a) Permissible practice.(1) In the control of those occupational diseases caused by breathing air contaminatedwith harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, the primaryobjective shall be to prevent atmospheric contamination. This shall be accomplished as faras feasible by accepted engineering control measures (for example, enclosure orconfinement of the operation, general and local ventilation, and substitution of lesstoxic materials). 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 the employer when such equipment is necessaryto protect the health of the employee. The employer shall provide the respirators whichare applicable and suitable for the purpose intended. The employer shall be responsiblefor the establishment and maintenance of a respiratory protective program which shallinclude 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 and use ofrespirators shall be established.(2) Respirators shall be selected on the basis of hazards to which the worker is exposed.(3) The user shall be instructed and trained in the proper use of respirators andtheir limitations.(4) Where practicable, the respirators should be assigned to individual workersfor their exclusive use.(5) Respirators shall be regularly cleaned and disinfected. Those issued for theexclusive use of one worker should be cleaned after each day’s use, or more often ifnecessary. Those used by more than one worker shall be thoroughly cleaned and disinfectedafter each use.(6) Respirators shall be stored in a convenient, clean, and sanitary location.(7) Respirators used routinely shall be inspected during cleaning. Worn ordeteriorated parts shall be replaced. Respirators for emergency use such as self-contained devices shall be thoroughly inspected at least once a month and after each use.(8) Appropriate surveillance of work area conditions and degree of employeeexposure or stress shall be maintained.(9) There shall be regular inspection and evaluation to determine the continuedeffectiveness of the program.(10) Persons should not be assigned to tasks requiring use of respirators unlessit has been determined that they are physically able to perform the work and use theequipment. The local physician shall determine what health and physical conditions arepertinent. The respirator user’s medical status should be reviewed periodically (forinstance, annually).(11) Approved or accepted respirators shall be used when they are available. Therespirator furnished shall provide adequate respiratory protection against the particularhazard for which it is designed in accordance with standards established by competentauthorities. The U.S. Department of Interior, Bureau of Mines, and the U.S. Department ofAgriculture are recognized as such authorities. Although respirators listed by the U.S.Department of Agriculture continue to be acceptable for protection against specifiedpesticides, the U.S. Department of the Interior, Bureau of Mines, is the agency nowresponsible for testing and approving pesticide respirators.City contends that it was not in violation of ?1910.134(a)(1) because theSecretary failed to prove engineering controls were not feasible and because feasible andeffective engineering controls were in use. It then contends that it was not in violationof ? 1910.134(a)(2) because this standard is not applicable unless ? 1910.134(a)(1) isapplicable.Amended item 1A alleges:29 CFR 1910.134(a)(1): When effective engineering controls were not feasible orwhile such controls were being instituted, appropriate respirators were not used pursuantto the requirements of this section: Well servicing employees, performing operations on sour well site, where hydrogen sulfidegas was present.This language, as well as the standard itself, makes it clear that it was theSecretary’s burden to prove that effective engineering controls were not feasible. This hehas not done. The nearest he came to this was the introduction of the compliance officer’stestimony that in a swabbing operation H2S could be encountered at the wellhead, along theflow line, in the open pit area, or at the frac tank (Tr.11). Feasible engineeringcontrols were not mentioned.On the other hand, the evidence is insufficient to support City’s contention thatthe Christmas tree, flow line and frac tank constituted effective and feasible engineeringcontrols during the swabbing operations. The record shows that H2S could escape at thewellhead, at the open pit, and from the vent atop the frac tank during such operations(Tr.11). Nevertheless, the Secretary’s failure to prove that engineering controls were notfeasible 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) isnot. City bases its position on the final sentence of ? 1910.134(a)(1):\u00a0When effective engineering controls are not feasible, or while they are being instituted,appropriate respirators shall be used pursuant to the following requirements.However, ? 1910.134(a)(2), when read alone, does not appear to depend on thepreceding subsection. It starts out with its own positive requirement:Respirators shall be provided by the employer when such equipment is necessary to protectthe health of the employee.Section 1910.134 was derived in pertinent part from American National Standardslnstitute (\”ANSl\”) Standard Z 88.2-1969, Standard Practice for RespiratoryProtection, ? 3.3 of which contains the provisions found in ? 1910.134 (a) (2) and isheaded \”Employer Responsibility.\” This heading, while not conclusive, buttressesthe 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 issue directly, althoughCommissioner Van Namee, concurring in North American Rockwell Corp., 75 OSAHRC 43\/A6, 2BNA 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 Rockwell wascharged with a violation of 29 1910.134(a)(2), based on the fact that the operator ofgrinder #048 was not protected from overexposure to asbestos by a respirator. As notedabove, however, the asbestos standard provides that respirators shall only be used whileengineering controls are being implemented or when such controls are not feasible. To holdthat a respirator should have been worn in this case would mean that respirators wouldalways have to be worn, regardless of whether effective engineering controls have beenimplemented, for it is always possible that an unpredictable breakdown or malfunction insuch controls will lead to a temporary condition of over-exposure. Such a holding would beinconsistent with the asbestos standard, which specifies the use of respirators only as aninterim 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 asbestos standards then in effect, ??1910.93a(b)(1) and (3) and (c)(1).[[2]] The lead opinion by Chairman Moran in the Rockwellcase went off on the issue of employer knowledge, as did Commissioner Cleary’s dissent, sothe applicability of ? 1910.134(a)(2) was discussed only by Commissioner Van Namee.However, I find that Commission Van Namee’s logic persuasive, and I shall follow it.[[3]]But, to avoid remand in the event of reversal on this point, I shall proceed to makealternative findings and conclusions.Item 1B of citation 1, as amended, alleges:29 CFR 1910.134(a)(2): Appropriate respirators were not provided when such equipment wasnecessary to protect the health of employees, nor was a respiratory protection programestablished which included the requirements outlined in paragraph (b) of this section:Well servicing employees, performing operations on sour well site, where hydrogensulfide gas was present.The uncontradicted evidence establishes that City provided no respirators on thiswell location and had no respiratory protection program, although it was not uncommon inthat area for wells to be \”sour,\” that is, to produce H2S.Compliance Officer Lindquist testified that \”there were wells in the generalarea of this one that were also sour\” (Tr. 12, 52), that he was informed that therewas a sour well about five miles from the one here involved (Tr.42), that he understoodthat there were other wells that produced H2S from the Austin Chalk formation (Tr.42), andthat his investigation indicated that H2S had been\u00a0 present at this well for sometime prior to the accident (Tr. 32). Richard Allen Snow, a City swab operator, testified that some wells in that areaare sweet and some are sour (Tr. 57).Jerry Holt, the H2S safety expert, testified that his company had serviced wellsin a five or six mile radius of this well and he assumed that the area where the accidentoccurred was known to have H2S (Tr.70).With regard to a respiratory protective program, Lindquist, Snow and Steve Holly(another City swab operator) testified without contradiction that City had none, writtenor oral (Tr. 18, 19, 58, 59, 62-65). City’s practice was to rely on the operator of a wellto tell it if a well City was to service was sour (Tr. 19), but it apparently initiated noinquiries on this subject (Tr. 19). If a well was sour, the operator might or might notsupply respirators (Tr. 29,57), but according to Snow and Holly respirators were neverused even when H2S was encountered (Tr. 57,64).H2S is a colorless, flammable, very poisonous, heavier-then-air gas with a rottenegg odor that is readily recognizable (Tr. 78). However, it rapidly anesthetizes theolfactory nerves so that one’s sense of smell cannot be relied upon to detect itscontinued presence (Tr. 39, 40, 72). It is also dangerous and deadly (Tr. 12, 39, 40, 76).According to Lindquist, an acceptable respiratory protection program for Citywould consist of inquiring of the operator in each instance whether the well to beserviced is sour or sweet; making sure that respirators are available where the well isknown to be, or turns out to be, sour; monitoring the work environment during operationsto ascertain that the concentration of H2S does not exceed the threshold limit value;written instructions to its employees on use of respirators if H2S is encountered; and aplan for evacuation of employees if H2S is encountered and respirators are not available(Tr. 17, 39).It is clear that, if ? 1910.134(a)(2) is applicable, City was in violation, andin view of the nature of the hazard the violation was serious. I would assess a penalty of$400 as proposed, after considering the statutory criteria.The employee misconduct defense.City’s amended answer raises the affirmative defense of unpreventable employee misconduct.It introduced no evidence on this point and did not discuss it in its brief, so thedefense may be considered abandoned. Of course, it is moot if this decision is notreversed, but here again alternative findings will be made to obviate a possible remand.Since City elected not to put on any witnesses of its own, it must rely on thetestimony of two of its swab operators, Snow and Holly, who were called by the Secretary.Neither of these witnesses supported this affirmative defense, of which City has theburden of proof.Snow said that City’s employees had no business in the frac tank but that he hadnever been told not to go into them (Tr. 56, 58). He testified that City had no safetymeetings at which respirators were discussed, and did not distribute written materialabout respirators, until after the fatal accident (Tr. 56, 57).Holly testified he had been told not to go into a frac tank but that before thefatal accident he had received no instructions on the use of respirators or to stay offthe tops of frac tanks (Tr. 62, 63). He said the only instruction he had receivedregarding H2S was from his brother and was to stay upwind of the gas (Tr. 65,66).City was proved none of the elements of this affirmative defense, as outlined inWeatherhead Co., 76 OSAHRC 61\/B7, 4 BNA OSHC 1296, 1976- 77 CCH OSHD ? 20,784 (No. 8862,1976), and many other cases. It has proved neither the existence of a work rule norspecific instructions to its employees adequate to prevent their exposure to H2S, muchless that any such rules or instructions were effectively communicated or uniformlyenforced. It has failed to prove this affirmative defense.FINDINGS OF FACT1. At all times material to the proceeding, City was engaged in the oil well servicingbusiness, a business affecting commerce, and it had employees, all within the meaning of?3(5) of the Act.2. On June 4, 1981, two of City’s employees, Marion Danny Mitchell and DavyLynn Sparkman, were asphyxiated by H2S gas at an oil well known as Nixon-Lease Smith No.1, near Nixon, Texas, during swabbing operations. This well was in an area known in theoil and gas producing industry to have some wells that were \”sour\”, that is,that produced H2S gas.3. City did not make a practice of inquiring of the operators of wells it wascalled to service whether or not they were sour, relying instead on the operator tovolunteer such information if the wells were indeed sour.4. The well here involved was reported to the OSHA compliance officer, BertLindquist, to have been known as a sour well in advance of the fatal accident. A few hoursafter the accident it was tested and found to produce 225 ppm of H2S whereas the amount of20 ppm of H2S requires the 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 initially readilydetectable. However, it anesthetizes one’s olfactory nerves so that the sense of smellcannot be relied upon for a warning if exposure is long continued.6. City’s practice was to rely on the operator to provide respirators if awell was known to be sour. However, two of its swab operators who testified at the hearingsaid that although they had worked on sour wells before the fatal incident they had neverused respirators on such jobs before or since that date.7. City had no respiratory protection program.8. There was a substantial probability that death or serious physical injurycould result from the lack of respirators.9. City, in the exercise of reasonable diligence, could have known of theneed for respirators.10. The Secretary failed to prove that engineering controls were not feasibleto control H2S at the well site here involved.\u00a0CONCLUSIONS OF LAW1. The Commission has jurisdiction of the parties and of the subject matter of thisproceeding.2. On June 4, 1981, the respondent, City Oil Well Service Co., was not inviolation of ? 5(a)(2) of the Act and the standards at 29 CFR 1910.134(a)(1) and (a) (2).\u00a0ORDERIt is ORDERED that items 1A and 1B of citation 1, as amended, alleging serious violationsof ?5(a)(2) of the Act and 29 CFR 1910.134(a)(1) and (a) (2) , together with the proposedpenalties, are VACATED.DEE C. BLYTHEAdministrative Law Judge\u00a0Date: March 1, 1982FOOTNOTES: [[1]] ? 1910.134 Respiratory protection.(a) Permissible practice. (1) In the control of those occupational diseases caused bybreathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays,or vapors, the primary objective shall be to prevent atmospheric contamination. This shallbe accomplished as far as feasible by accepted engineering control measures (for example,enclosure or confinement of the operation, general and local ventilation, and substitutionof less toxic materials). When effective engineering controls are not feasible, or whilethey are being instituted, appropriate respirators shall be used pursuant to the followingrequirements.(2) Respirators shall be provided by the employer when such equipment is necessary toprotect the health of the employee. The employer shall provide the respirators which areapplicable and suitable for the purpose intended. The employer shall be responsible forthe establishment and maintenance of a respiratory protective program which shall includethe requirements outlined in paragraph (b) of this section.[[2]] H2S gas is sometimes encountered during oil drilling in certain areas of thecountry, and sufficiently high exposure can result in death by suffocation.[[3]] As established by the Act, the Commission is composed of three members. Section12(a), 29 U.S.C. ? 661(a). Under section 12(f) of the Act, 29 U.S.C. ? 661(e), officialaction can be taken by the Commission with the affirmative vote of at least two members.Because there is a vacancy, the Commission currently has only two members.[[4]] One of City’s employees, Holly, testified that he had had to stand upwind from thegas on a number of jobs with City. However, that action by Holly was based on advice byhis brother. The fact that an employee felt the need to stand upwind from H2S gas oncertain worksites does not by itself establish actual or potential exposure abovepermissible levels.[[1]] At p.2 of its brief, City speculates that one employee entered the tank and that theother \”either tried to accompany him or attempted a rescue.\” There is no supportin 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 are involved, an employerbe required to have respirators available whether or not engineering controls arefeasible, since there is always a possibility that engineering controls may fail. However,the cited standard does not so provide, and it is not this agency’s function to stretchstandards to fit situations not covered by their provisions. Burtex Constructors, Inc., 76OSAHRC 149\/A2, 4 BNA OSHC 1928, 1976-77 CCH OSHD ? 21,394 (No. 11553, 1976).”