“Docket No. 85-0604 SECRETARY OF LABOR, Complainant, v. D.A. & S. OIL WELL SERVICING, INC., Respondent.OSHRC DOCKET NO. 85-0604ORDERThe Commission vacates the direction for review in this case under Commission Rule 93(d),29 C.F.R. ? 2200.93(d), in light of the petitioning party’s failure to timely file abrief.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated:\u00a0 JAN 9 1987 SECRETARY OF LABOR, Complainant, v. D A & S OIL WELL SERVICING, INC.,[[1]] Respondent.OSHRC DOCKET NO. 85-0604DECISION AND ORDERAppearances:Richard L. Collier, of Dallas, Texas, for thecomplainant.George R. Carlton, of Dallas, Texas, for the respondent.PROCEDURAL HISTORYAs part of a local emphasis program, a complianceofficer of the Occupational Safety and Health Administration (\”OSHA\”) on April14, 1985, conducted an inspection of a portable, truck-mounted oil well servicing rig,owned and operated by the respondent, D A & S Oil Well Servicing, Inc., at the site ofan oil well owned by AMOCO on the Midland Farms Unit, 13 miles south of Andrews,Texas.\u00a0 This inspection resulted in the issuance on May 23, 1985, of two citationscharging 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 (\”the Act\”),and safety standards promulgated thereunder.\u00a0 D A & S timely filed notice ofcontest on June 3, 1985, thus initiating this proceeding before the Occupational Safetyand Health Review Commission (\”the Commission\”).\u00a0 Thereafter a formalcomplaint and an answer were filed with the Commission.\u00a0 The case came on regularlyfor hearing October 11, 1985, in Lubbock, Texas.\u00a0 No affected employee orrepresentative of affected employees participated in this proceeding.\u00a0 Neither partyfiled a posthearing brief.THE ISSUESThe allegations of the complaint regardingjurisdiction and coverage were admitted by the answer.\u00a0 The ultimate issues to bedetermined are:1.\u00a0 Whether D A & S was in serious violationof 29 C.F.R. 1910.134(a)(2) and, if so, the appropriate penalty therefor.2.\u00a0 Whether D A & S was in nonseriousviolation of 29 C.F.R. 1910.23(c)(3).3.\u00a0 Whether D A & S was in nonseriousviolation of 29 C.F.R. 1910.151(b).[[2]]DISCUSSION AND OPINIONI.\u00a0 The alleged serious violation of 29C.F.R. 1910.134(a)(2).Item 1 of citation 1, as amended,[[3]] alleges a serious violation of 29 C.F.R. 1910.134(a) (2) [[4]] in thatNo emergency escape or emergency rescue respirators were available on April 18, 1985 foremployees of D A & S Oil Well Servicing, Inc., (located at Midland Farm Unit, Well No.605, located approximately 13 miles south of Andrews, TX) when performing oil and gas wellwork-over operations.The citation does not specify the hazard necessitating the provision of respirators, buttestimony adduced at the hearing by the Secretary, without objection from D A & S,made it clear that the hazard was hydrogen sulfide gas (H2S), a highly toxicgas.\u00a0 This gas was not present in the atmosphere at the time of the inspection, andseveral engineering controls were in place to prevent such an occurrence:\u00a0 the wellwas cased and the casing was cemented at the bottom; packets had been inserted into thecasing to isolate production zones; the well bore had 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 on cross-examination that theseengineering controls could fail (Tr. 45), resulting in a release of H2S whichmight come either slowly or suddenly.\u00a0 Neither McFadden nor the OSHA complianceofficer (the only witnesses who testified) knew precisely what kind of operation was beingperformed by the D A & S servicing rig. McFadden said it was a producing well and thathe thought D A & S was changing the pump (Tr. 48).\u00a0 Compliance Officer Placido E.Vigil testified that D A & S was completing the well; that it had completed thepacking; and that it was getting ready to run the tubing (Tr. 9).\u00a0 Oncross-examination, however, Vigil admitted he did not know whether the well was producing,what depth had been reached, or what formations had been penetrated (Tr. 29).\u00a0 Vigiltestified, without contradiction, however, that he had been informed by AMOCO’srepresentative that 1100 ppm of H2S had been encountered in the drillingoperation (Tr. 11, 33) and that this was enough to kill a person instantly (Tr. 53).\u00a0 D A & S had no respirators on the jobsite (Tr. 22).H2S is a colorless, heavier-than-air gasthat is encountered in oil and gas wells in some areas but not in others.\u00a0 TheSecretary established that the Midland Farms area was one in which H2S could beexpected to be encountered in an oil and gas well.\u00a0 The Texas Railroad Commission(which regulates oil and gas wells in Texas) so classified the Midland Farms area, and atabulation from that source (Exhibit C-1) shows that concentrations of H2S ashigh as 147,000 ppm have been encountered in that area.\u00a0 The Texas RailroadCommission required a sign warning of the danger of H2S gas to be posted on thewell here involved (Exhibit C-4).\u00a0 A nearby well, shown in two photographs (ExhibitsC-5 and C-6) had experienced a gas blowout at the time of the inspection.The central question is whether D A & S wasrequired by ? 1910.134(a)(2) to provide respirators when there was no H2Sactually leaking from the well and where the well had been shut in with engineeringcontrols but where there was a possibility of a release of H2S despite thesecontrols.It is noted that the proposed vertical OSHA standards for the oil and gas well drillingand servicing industry would provide:All Employees working in an area of potentialexposure to hydrogen sulfide shall wear or carry on their person an approved escape-typeself-contained breathing apparatus, or they shall wear or carry on their person arespirator which provides equal or better protection.\u00a0 Those employees who mustremain in or reenter the danger area in accordance with the emergency action plan shallhave available, in addition to the escape units, an approved positive pressure respiratorto be worn while they remain in or return to the danger area.48 PR 57202, December 28, 1983. Of course, this standard is not in effect and may never beand a proposed standard has no effect on enforcement of the present standard.\u00a0 UnitedTechnologies, Power Systems Div., 81 OSAHRC 40\/C13, 9 BNA OSHC 1813, 1981 CCH OSHD ?25,350 (No. 79-1552, 1981).\u00a0 However, it shows OSHA’s view of the problem.The National Institute for Occupational Safety andHealth (NIOSH) on September 1, 1976, issued work protective recommendations similar to theproposed OSHA standard, CCH OSHD ? 10,509, pointing out that \”[o]ver the past twoyears, in the State of Texas alone, there have been 24 deaths reported from acute exposureto hydrogen sulfide\”.Given the extreme toxicity of H2S, it doesnot seem unreasonable to require that an employer be required to make appropriaterespirators available in areas where there is a reasonable possibility that H2Smay be released.\u00a0 Reliance on engineering controls alone is not enough, in view ofthe possibility that they may fail.Since no respirators were available on this worksite,a violation is found, and it must be characterized as serious. Both parties introduced testimony with regard torespondent’s respiratory protection program, and, as quoted above, ? 1910.134(a)(2)incorporates by reference paragraph (b) thereof, which sets forth in 11 subparagraphs the\”Requirements for a minimal acceptable program.\”\u00a0 However, it isunnecessary to discuss this matter because the citation does not allege a violation of anyof these provisions, which include written procedures for the selection and use ofrespirators, training of employees in the use of respirators, and the cleaning,maintenance and storage of respirators.It is true that item 2 of citation 2, which waswithdrawn at the hearing as \”duplicitous\”, alleged a nonserious violation of ?1910.134(b)(3) for failure to train employees \”in the proper use of respirators whenworking in a H2S identified area.\”\u00a0 However, the withdrawal of thisitem was not combined with a corresponding amendment to item 1 of citation 1, so thematter of training in the use of respirators was effectively removed from this proceeding.\u00a0 In any event, a violation of ? 1910.134(a)(2) has been found already, and anotherviolation would be superfluous.II.\u00a0 The alleged nonserious violation of 29C.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 theoperator’s platform was not guarded by a standard railing.The unrefuted testimony of the compliance officer established that the operator’s stationwas on a platform about four feet above ground; that it had no guardrails; that if theoperator fell off the platform on one side he might strike a pipe rack which was aboutthree feet away; and that the operator was observed standing within a few inches of thisopen side\u00a0 (Tr. 22, 23, 59).The question is whether the pipe rack was \”dangerous equipment\” within themeaning of ? 1910.23(c)(3).\u00a0 By its own terms, this standard applies to platforms\”above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasingunits, and similar hazards. . .\” Identical language is used in 29 C.F.R. 1926.500(d)(5), the construction industry counterpart of ? 1910.23(c)(3).\u00a0 The Commissionhas never had occasion to define \”dangerous equipment\” as used in thesestandards, so the usual rules of construction must be applied.\”[A] standard should be construed in light ofits purposes as well as its plain meaning . . . \” Duncanson-Harrelson Co., 81OSAHRC 28\/A2, 9 BNA OSHC 1539, 1981 CCH OSHD ? 25,296 (No. 76-1567, 1981).\u00a0 Here,however, it is not clear whether \”dangerous equipment\” is something differentfrom \”pickling or galvanizing tanks, degreasing units, and similar hazards.\”\u00a0 It appears that these specific items are intended to be illustrative, so that thestandard should be interpreted to read, \”dangerous equipment, [such as] pickling orgalvanizing tanks, degreasing units, and similar hazards.\”\u00a0 Then the doctrine ofejusdem generis would apply, \”[t]hat is, when specific words . . .follow more general words, . . . the application of the general term should be restrictedto things that are similar to those specifically enumerated.\”\u00a0 Dayton Tireand Rubber Co., 80 OSAHRC 95\/D4, 8 BNA OSHC 2086, 1980 CCH OSHD ? 24,842 (No. 16188,1980).\u00a0 The use of the ejusdem generis doctrine is further indicatedhere by the use of the phrase \”and similar hazards\” after the specificillustrations.\u00a0 It can hardly be said that a pipe rack is a \”similarhazard\” to \”pickling or galvanizing tanks\” or \”degreasing units.\”\u00a0 I hold that it is not.Incidentally, it is odd that these specific items arelisted in the construction standard, ? 1926.500(d)(5), since they are unlikely to befound in such a workplace.\u00a0 Perhaps the reason is a desire for uniformity incomparable standards.\u00a0 However, it is the general industry standard, ?1910.23(c)(3), that is here involved.There is another reason for not characterizing thepipe rack as \”dangerous equipment\”:\u00a0 It was not described in enough detailto make such a determination.\u00a0 The compliance officer said it was a \”sharp metalobject\” holding the tubing for the well (Tr. 22), but he said it was about three feetfrom the operator’s platform (Tr. 59).\u00a0 Thus the platform was not, in the language of? 1910.23 (c)(3), \”above or adjacent to\” the pipe rack.III.\u00a0 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 nomedical facility for treatment of injured employees was in near proximity to the workplaceand in that none of its employees was adequately trained to render first aid.Compliance Officer Vigil testified that the nearesthospital was 15 miles 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 directorMcFadden testified that a number of D A & S employees, including Jaime Renteria, crewchief on the rig here involved, had been given \”multi-media\” first aid trainingentitling them to be certified by the American Red Cross; that Renteria was so trained inan 8-hour course between August 31 and September 8, 1982; that Renteria was issued a RedCross certificate that was valid for three years; and that the certificate was still goodon the date of the inspection, April 14, 1985.\u00a0 As evidence of this training,McFadden produced a Red Cross course record (Exhibit R-1) containing Renteria’s name andthe course dates.\u00a0 I find this evidence much more convincing than the hearsayevidence secured from unnamed employees, especially since there is nothing to indicatethat Crew Chief Renteria was interrogated about this.I find no violation of ? 1910.151(b).IV.\u00a0 The appropriate penalty for the seriousviolationThe Secretary proposes a civil penalty of $280 forthe serious violation of 29 C.F.R. 1910.134(a)(2).Section 17(j) of the Act requires the Commission, inassessing penalties, to consider the gravity of the violation and the employer’s size,good faith and history of previous violations.\u00a0 These factors need not be accordedequal weight, but the gravity is usually of greater significance than the others.\u00a0 ColonialCraft Reproductions, 72 OSAHRC 11\/B10, 1 BNA OSHC 1063, 1971-73 CCH OSHD ? 15,277(No. 881, 973).\u00a0 Elements to be considered in determining gravity include the numberof employees exposed to the risk of injury, duration of the exposure, precautions takenagainst injury, and the degree of probability of occurrence of an injury.\u00a0 NationalRealty & Construction Co., Inc., 72 OSAHRC 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).\u00a0 After applying these statutory criteria, I find, on balance, that theproposed penalty of $280 is appropriate in this case.FINDINGS OF FACT1.\u00a0 D A & S, an oil well servicing companybased in Hobbs, New Mexico, was servicing an oil and gas well at Midland Farms Unit 13miles south of Andrews, Texas, when its workplace was inspected April 14, 1985, by an OSHAcompliance officer.2.\u00a0 The location of this well was designated bythe Texas Railroad Commission as an H2S area, and H2S inconcentrations of up to 1100 ppm had been encountered when the well was drilled. Such aconcentration of H2S, a highly toxic gas, could be almost instantly fatal toemployees unprotected by respirators.3.\u00a0 At the time of the inspection the well hadbeen shut in by engineering controls (casing, cement, packers, hydrostatic pressure, and ablowout preventer), and no H2S was present in the atmosphere. \u00a0 However,there was no possibility that H2S could be released despite these engineeringcontrols.4.\u00a0 D A & S did not have any respirators atthis workplace.\u00a0 Respirators were necessary under the circumstances to protect thehealth of the employees.\u00a0 There was a substantial probability that death or seriousphysical injury could result from the lack of respirators.\u00a0 D A & S, in theexercise of reasonable diligence, could have known it was in violation of ? 1910.134(a)(2).5.\u00a0 A penalty of $280 is appropriate for theviolation of 29 C.F.R. 1910.134(a)(2).6.\u00a0 The operator’s platform was about four feetabove ground level and had no guardrail on an open side which was about three feet from apipe rack.\u00a0 The operator was observed standing a few inches from the unguarded edgeof the platform.\u00a0 If he had fallen, he might have fallen against the pipe rack.\u00a0 This pipe rack was not \”dangerous equipment\” within the meaning of 29C.F.R. 1910.23 (c)(3).7.\u00a0 The crew chief on the rig had been trainedto render first aid and had a valid American Red Cross certificate to that effect.CONCLUSIONS OF LAW1.\u00a0 D A & S is an employer engaged in abusiness affecting commerce within the meaning of ? 3(5) of the Act.\u00a0 The Commissionhas jurisdiction of the parties and of the subject matter of this proceeding.2.\u00a0 On April 14, 1985, D A & S was inserious violation of 29 C.F.R. 1910.134(a)(2).3.\u00a0 On said date D A & S was not inviolation 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, and discussion and opinion, it is ORDERED that:1.\u00a0 Item 1 of citation 1, for serious violationof 29 C.F.R. 1910.134 (a)(2), is AFFIRMED and a penalty of $280 is ASSESSED.2.\u00a0 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. BLYTHE Administrative Law JudgeDate:\u00a0 December 27, 1985FOOTNOTES: [[1]] The caption was corrected at the hearing (Tr.36) to insert the word \”Oil\” in respondent’s name.[[2]] Item 2 of citation 2 alleged a nonseriousviolation 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 of29 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).\u00a0 This motion was granted (Tr. 6), but D A& S was allowed until 10 days after receipt of the transcript to request asupplemental hearing.\u00a0 No such request was made, so the record is now closed.[[4]] 29 C.F.R. 1910.134(a)(2) provides:Respirators shall be provided by the employer whensuch equipment is necessary to protect the health of the employee.\u00a0 The employershall provide the respirators which are applicable and suitable for the purpose intended.\u00a0 The employer shall be responsible for the establishment and maintenance of arespiratory protective program which shall 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 runways above or adjacent to dangerous equipment, pickling or galvanizingtanks, decreasing units, and similar hazards shall be guarded with a standard railing andtoe board.[[6]] 29 C.F.R. 1910.151(b) provides:In the absence of an infirmary, clinic, or hospitalin near proximity to the workplace which is used for the treatment of all injuredemployees, a person or persons shall be adequately trained to render first aid. \u00a0First aid supplies approved by the consulting physician shall be readily available.”