“SECRETARY OF LABOR,Complainant,v.D.A. & S. OIL WELL SERVICING, INC.,Respondent.OSHRC DOCKET NO. 85-0604_ORDER_The Commission vacates the direction for review in this case underCommission Rule 93(d), 29 C.F.R. ? 2200.93(d), in light of thepetitioning party’s failure to timely file a brief.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: JAN 9 1987————————————————————————SECRETARY OF LABOR,Complainant,v.D A & S OIL WELL SERVICING, INC.,[[1]]Respondent.OSHRC DOCKET NO. 85-0604_DECISION AND ORDER_Appearances:Richard L. Collier, of Dallas, Texas, for the complainant.George R. Carlton, of Dallas, Texas, for the respondent.PROCEDURAL HISTORYAs part of a local emphasis program, a compliance officer of theOccupational Safety and Health Administration (\”OSHA\”) on April 14,1985, conducted an inspection of a portable, truck-mounted oil wellservicing rig, owned and operated by the respondent, D A & S Oil WellServicing, Inc., at the site of an oil well owned by AMOCO on theMidland Farms Unit, 13 miles south of Andrews, Texas. This inspectionresulted in the issuance on May 23, 1985, of two citations charging D A& S with one serious and three nonserious violations of ? 5(a)(2) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”theAct\”), and safety standards promulgated thereunder. D A & S timelyfiled notice of contest on June 3, 1985, thus initiating this proceedingbefore the Occupational Safety and Health Review Commission (\”theCommission\”). Thereafter a formal complaint and an answer were filedwith the Commission. The case came on regularly for hearing October 11,1985, in Lubbock, Texas. No affected employee or representative ofaffected employees participated in this proceeding. Neither party fileda posthearing brief._THE ISSUES_The allegations of the complaint regarding jurisdiction and coveragewere admitted by the answer. The ultimate issues to be determined are:1. Whether D A & S was in serious violation of 29 C.F.R. 1910.134(a)(2)and, if so, the appropriate penalty therefor.2. Whether D A & S was in nonserious violation of 29 C.F.R. 1910.23(c)(3).3. Whether D A & S was in nonserious violation of 29 C.F.R.1910.151(b).[[2]]_DISCUSSION AND OPINION_I. _The alleged serious violation of 29 C.F.R. 1910.134(a)(2)_.Item 1 of citation 1, as amended,[[3]] alleges a serious violation of 29C.F.R. 1910.134 (a) (2) [[4]] in thatNo emergency escape or emergency rescue respirators were available onApril 18, 1985 for employees of D A & S Oil Well Servicing, Inc.,(located at Midland Farm Unit, Well No. 605, located approximately 13miles south of Andrews, TX) when performing oil and gas well work-overoperations.The citation does not specify the hazard necessitating the provision ofrespirators, but testimony adduced at the hearing by the Secretary,without objection from D A & S, made it clear that the hazard washydrogen sulfide gas (H_2 S), a highly toxic gas. This gas was notpresent in the atmosphere at the time of the inspection, and severalengineering controls were in place to prevent such an occurrence: thewell was cased and the casing was cemented at the bottom; packets hadbeen inserted into the casing to isolate production zones; the well borehad been filled with water to \”kill\” the well with hydrostatic pressure;and there was a blowout preventer (\”BOP\”) atop the wellhead.Respondent’s safety director, Richard McFadden, conceded oncross-examination that these engineering controls could fail (Tr. 45),resulting in a release of H_2 S which might come either slowly orsuddenly. Neither McFadden nor the OSHA compliance officer (the onlywitnesses who testified) knew precisely what kind of operation was beingperformed by the D A & S servicing rig. McFadden said it was a producingwell and that he thought D A & S was changing the pump (Tr. 48). Compliance Officer Placido E. Vigil testified that D A & S wascompleting the well; that it had completed the packing; and that it wasgetting ready to run the tubing (Tr. 9). On cross-examination, however,Vigil admitted he did not know whether the well was producing, whatdepth had been reached, or what formations had been penetrated (Tr.29). Vigil testified, without contradiction, however, that he had beeninformed by AMOCO’s representative that 1100 ppm of H_2 S had beenencountered in the drilling operation (Tr. 11, 33) and that this wasenough to kill a person instantly (Tr. 53). D A & S had no respiratorson the jobsite (Tr. 22).H_2 S is a colorless, heavier-than-air gas that is encountered in oiland gas wells in some areas but not in others. The Secretaryestablished that the Midland Farms area was one in which H_2 S could beexpected to be encountered in an oil and gas well. The Texas RailroadCommission (which regulates oil and gas wells in Texas) so classifiedthe Midland Farms area, and a tabulation from that source (Exhibit C-1)shows that concentrations of H_2 S as high as 147,000 ppm have beenencountered in that area. The Texas Railroad Commission required a signwarning of the danger of H_2 S gas to be posted on the well hereinvolved (Exhibit C-4). A nearby well, shown in two photographs(Exhibits C-5 and C-6) had experienced a gas blowout at the time of theinspection.The central question is whether D A & S was required by ? 1910.134(a)(2)to provide respirators when there was no H_2 S actually leaking from thewell and where the well had been shut in with engineering controls butwhere there was a possibility of a release of H_2 S despite these controls.It is noted that the proposed vertical OSHA standards for the oil andgas well drilling and servicing industry would provide:All Employees working in an area of potential exposure to hydrogensulfide shall wear or carry on their person an approved escape-typeself-contained breathing apparatus, or they shall wear or carry on theirperson a respirator which provides equal or better protection. Thoseemployees who must remain in or reenter the danger area in accordancewith the emergency action plan shall have available, in addition to theescape units, an approved positive pressure respirator to be worn whilethey remain in or return to the danger area.48 PR 57202, December 28, 1983. Of course, this standard is not ineffect and may never be and a proposed standard has no effect onenforcement of the present standard. United Technologies, Power SystemsDiv., 81 OSAHRC 40\/C13, 9 BNA OSHC 1813, 1981 CCH OSHD ? 25,350 (No.79-1552, 1981). However, it shows OSHA’s view of the problem.The National Institute for Occupational Safety and Health (NIOSH) onSeptember 1, 1976, issued work protective recommendations similar to theproposed OSHA standard, CCH OSHD ? 10,509, pointing out that \”[o]ver thepast two years, in the State of Texas alone, there have been 24 deathsreported from acute exposure to hydrogen sulfide\”.Given the extreme toxicity of H_2 S, it does not seem unreasonable torequire that an employer be required to make appropriate respiratorsavailable in areas where there is a reasonable possibility that H_2 Smay be released. Reliance on engineering controls alone is not enough,in view of the possibility that they may fail.Since no respirators were available on this worksite, a violation isfound, and it must be characterized as serious.Both parties introduced testimony with regard to respondent’srespiratory protection program, and, as quoted above, ? 1910.134(a)(2)incorporates by reference paragraph (b) thereof, which sets forth in 11subparagraphs the \”Requirements for a minimal acceptable program.\” However, it is unnecessary to discuss this matter because the citationdoes not allege a violation of any of these provisions, which includewritten procedures for the selection and use of respirators, training ofemployees in the use of respirators, and the cleaning, maintenance andstorage of respirators.It is true that item 2 of citation 2, which was withdrawn at the hearingas \”duplicitous\”, alleged a nonserious violation of ? 1910.134(b)(3) forfailure to train employees \”in the proper use of respirators whenworking in a H_2 S identified area.\” However, the withdrawal of thisitem was not combined with a corresponding amendment to item 1 ofcitation 1, so the matter of training in the use of respirators waseffectively removed from this proceeding. In any event, a violation of? 1910.134(a)(2) has been found already, and another violation would besuperfluous.II. _The alleged nonserious violation of 29 C.F.R. 1910.23(c)(3)_[[5]]Item 1 of citation 2 alleges a nonserious violation of 29 C.F.R.1910.23(c)(3) in that the operator’s platform was not guarded by astandard railing.The unrefuted testimony of the compliance officer established that theoperator’s station was on a platform about four feet above ground; thatit had no guardrails; that if the operator fell off the platform on oneside he might strike a pipe rack which was about three feet away; andthat the operator was observed standing within a few inches of this openside (Tr. 22, 23, 59).The question is whether the pipe rack was \”dangerous equipment\” withinthe meaning of ? 1910.23(c)(3). By its own terms, this standard appliesto platforms \”above or adjacent to dangerous equipment, pickling orgalvanizing tanks, degreasing units, and similar hazards. . .\” Identicallanguage is used in 29 C.F.R. 1926.500 (d)(5), the construction industrycounterpart of ? 1910.23(c)(3). The Commission has never had occasionto define \”dangerous equipment\” as used in these standards, so the usualrules of construction must be applied.\”[A] standard should be construed in light of its purposes as well asits plain meaning . . . \” _Duncanson-Harrelson Co_., 81 OSAHRC 28\/A2, 9BNA OSHC 1539, 1981 CCH OSHD ? 25,296 (No. 76-1567, 1981). Here,however, it is not clear whether \”dangerous equipment\” is somethingdifferent from \”pickling or galvanizing tanks, degreasing units, andsimilar hazards.\” It appears that these specific items are intended tobe illustrative, so that the standard should be interpreted to read,\”dangerous equipment, [such as] pickling or galvanizing tanks,degreasing units, and similar hazards.\” Then the doctrine of _ejusdem__generis_ would apply, \”[t]hat is, when specific words . . . follow moregeneral words, . . . the application of the general term should berestricted to things that are similar to those specificallyenumerated.\” _Dayton Tire and Rubber Co_., 80 OSAHRC 95\/D4, 8 BNA OSHC2086, 1980 CCH OSHD ? 24,842 (No. 16188, 1980). The use of the_ejusdem_ _generis_ doctrine is further indicated here by the use of thephrase \”and similar hazards\” after the specific illustrations. It canhardly be said that a pipe rack is a \”similar hazard\” to \”pickling orgalvanizing tanks\” or \”degreasing units.\” I hold that it is not.Incidentally, it is odd that these specific items are listed in theconstruction standard, ? 1926.500(d)(5), since they are unlikely to befound in such a workplace. Perhaps the reason is a desire foruniformity in comparable standards. However, it is the general industrystandard, ? 1910.23(c)(3), that is here involved.There is another reason for not characterizing the pipe rack as\”dangerous equipment\”: It was not described in enough detail to makesuch a determination. The compliance officer said it was a \”sharp metalobject\” holding the tubing for the well (Tr. 22), but he said it wasabout three feet from the operator’s platform (Tr. 59). Thus theplatform was not, in the language of ? 1910.23 (c)(3), \”above oradjacent to\” the pipe rack.III. _The alleged nonserious violation of 29 C.F.R. 1910.151(b)_[[6]]Item 3 of citation 2 alleges a nonserious violation of 29 C.F.R.1910.151(b) in that no medical facility for treatment of injuredemployees was in near proximity to the workplace and in that none of itsemployees was adequately trained to render first aid.Compliance Officer Vigil testified that the nearest hospital was 15miles from the workplace and that he was informed by respondent’semployees that none of them had been trained in first aid (Tr. 24).On the other hand, D A & S safety director McFadden testified that anumber of D A & S employees, including Jaime Renteria, crew chief on therig here involved, had been given \”multi-media\” first aid trainingentitling them to be certified by the American Red Cross; that Renteriawas so trained in an 8-hour course between August 31 and September 8,1982; that Renteria was issued a Red Cross certificate that was validfor three years; and that the certificate was still good on the date ofthe inspection, April 14, 1985. As evidence of this training, McFaddenproduced a Red Cross course record (Exhibit R-1) containing Renteria’sname and the course dates. I find this evidence much more convincingthan the hearsay evidence secured from unnamed employees, especiallysince there is nothing to indicate that Crew Chief Renteria wasinterrogated about this.I find no violation of ? 1910.151(b).IV. _The appropriate penalty for the serious violation_The Secretary proposes a civil penalty of $280 for the serious violationof 29 C.F.R. 1910.134(a)(2).Section 17(j) of the Act requires the Commission, in assessingpenalties, to consider the gravity of the violation and the employer’ssize, good faith and history of previous violations. These factors neednot be accorded equal weight, but the gravity is usually of greatersignificance than the others. _Colonial Craft Reproductions_, 72 OSAHRC11\/B10, 1 BNA OSHC 1063, 1971-73 CCH OSHD ? 15,277 (No. 881, 973). Elements to be considered in determining gravity include the number ofemployees exposed to the risk of injury, duration of the exposure,precautions taken against injury, and the degree of probability ofoccurrence of an injury. _National Realty & Construction Co., Inc_., 72OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,188 (No. 85, 1972)_rev’d on other grounds_, 489 F.2d 1257 (D.C. Cir., 1973). Afterapplying these statutory criteria, I find, on balance, that the proposedpenalty of $280 is appropriate in this case.FINDINGS OF FACT1. D A & S, an oil well servicing company based in Hobbs, New Mexico,was servicing an oil and gas well at Midland Farms Unit 13 miles southof Andrews, Texas, when its workplace was inspected April 14, 1985, byan OSHA compliance officer.2. The location of this well was designated by the Texas RailroadCommission as an H_2 S area, and H_2 S in concentrations of up to 1100ppm had been encountered when the well was drilled. Such a concentrationof H_2 S, a highly toxic gas, could be almost instantly fatal toemployees unprotected by respirators.3. At the time of the inspection the well had been shut in byengineering controls (casing, cement, packers, hydrostatic pressure, anda blowout preventer), and no H_2 S was present in the atmosphere. However, there was no possibility that H_2 S could be released despitethese engineering controls.4. D A & S did not have any respirators at this workplace. Respiratorswere necessary under the circumstances to protect the health of theemployees. There was a substantial probability that death or seriousphysical injury could result from the lack of respirators. D A & S, inthe exercise of reasonable diligence, could have known it was inviolation of ? 1910.134 (a)(2).5. A penalty of $280 is appropriate for the violation of 29 C.F.R.1910.134(a)(2).6. The operator’s platform was about four feet above ground level andhad no guardrail on an open side which was about three feet from a piperack. The operator was observed standing a few inches from theunguarded edge of the platform. If he had fallen, he might have fallenagainst the pipe rack. This pipe rack was not \”dangerous equipment\”within the meaning of 29 C.F.R. 1910.23 (c)(3).7. The crew chief on the rig had been trained to render first aid andhad a valid American Red Cross certificate to that effect.CONCLUSIONS OF LAW1. D A & S is an employer engaged in a business affecting commercewithin the meaning of ? 3(5) of the Act. The Commission hasjurisdiction of the parties and of the subject matter of this proceeding.2. On April 14, 1985, D A & S was in serious violation of 29 C.F.R.1910.134(a)(2).3. On said date D A & S was not in violation of 29 C.F.R. ??1910.23(c)(3) and 1910.151(b).ORDEROn the basis of the foregoing findings of fact, conclusions of law, anddiscussion and opinion, it is ORDERED that:1. Item 1 of citation 1, for serious violation of 29 C.F.R. 1910.134(a)(2), is AFFIRMED and a penalty of $280 is ASSESSED.2. Items 1 and 3 of citation 2, for nonserious violations of 29 C.F.R.?? 1910.23(c)(3) and 1910.151(b), are VACATED.DEE C. BLYTHEAdministrative Law JudgeDate: December 27, 1985FOOTNOTES:[[1]] The caption was corrected at the hearing (Tr. 36) to insert theword \”Oil\” in respondent’s name.[[2]] Item 2 of citation 2 alleged a nonserious violation of 29 C.F.R.1910.134(b)(3), but this item was withdrawn at the hearing (Tr. 23) as\”duplicitous.\”[[3]] The citation originally alleged a violation of 29 C.F.R.1910.134(b)(3), but at the opening of the hearing the Secretary of Labor(\”the Secretary\”) moved to amend the citation and complaint to allege aviolation of 29 C.F.R. 1910.134(a)(2). This motion was granted (Tr. 6),but D A & S was allowed until 10 days after receipt of the transcript torequest a supplemental hearing. No such request was made, so the recordis now closed.[[4]] 29 C.F.R. 1910.134(a)(2) provides: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.[[5]] 29 C.F.R. 1910.23(c)(3) provides:Regardless of height, open-sided floors, walkways, platforms, or runwaysabove or adjacent to dangerous equipment, pickling or galvanizing tanks,decreasing units, and similar hazards shall be guarded with a standardrailing and toe board.[[6]] 29 C.F.R. 1910.151(b) provides:In the absence of an infirmary, clinic, or hospital in near proximity tothe workplace which is used for the treatment of all injured employees,a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readilyavailable.”