“SECRETARY OF LABOR,Complainant,v.FOUR FLAGS DRILLING COMPANY,Respondent.OSHRC DOCKET NO. 84-0065_ORDER _The Commission approves the parties’ stipulation and settlement agreement.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDate: MAY 16 1985FORD B. FORD, UNDER SECRETARY OF LABOR,Complainant,v.FOUR FLAGS DRILLING COMPANY,Respondent.OSHRC DOCKET NO. 84-0065_STIPULATION AND SETTLEMENT AGREEMENT_I.The parties have reached agreement on a full and complete settlement ofthe instant matter which is presently pending before the Commission.II.The parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereinafter\”the Commission\”) has jurisdiction of this matter pursuant to section10(c) of the Occupational Safety and Health Act of 1970 (85 Stat. 1590;29 U.S.C. 651 et seq. (hereinafter \” the Act\”).(b) Respondent, Four Flags Drilling Co. is a corporation with itsprincipal place of business located at 6849 Leopard, Corpus Christi,Texas 78409. It is engaged in the business of oil and gas well drillingand during the course of its business its employees perform varioustasks in the nature of oil and gas well drilling. During the course ofits business, respondent, at all times material to this matter, usedmaterials and equipment which it received from places located outsidethe state of Texas. Respondent, as a result of the aforesaid activities,is an employer engaged in a business affecting commerce as defined bysection 3(3) and 3(5) of the Act and has employees as defined by section3(6) of the Act and is subject to the requirements of the Act.(c) As a result of an inspection conducted December 13, 1983, atrespondent’s facility at Shell Beaurline #7, near Linn, Texas, acitation for one serious violation was issued to respondent on December29, 1983, along with a proposed related penalty of $300. The citationalleged a violation of the standard at 29 CFR 1910.212(a)(1) in thatmachine guarding was not provided to protect operator(s) and otheremployees from hazard(s) created by a \”smooth\” type kelly bushing.[[1\/]](d) Respondent elected to contest the citation and the Secretary filedhis complaint on February 9, 1984. On February 15, 1984, respondentfiled its answer and on April 30, 1984, a hearing was held in CorpusChristi, Texas before Administrative Law Judge Dee C. Blythe.(e) On July 9, 1984, Judge Blythe issued his decision and Orderaffirming the citation and assessing the recommend $300 penalty.(f) Respondent filed a timely petition for review and on September 5,1984 review was ordered of the judge’s decision on the affirmance of the29 CFR 1910.212(a)(1) violation. On February 5, 1985, a notice wasissued by the Commission requesting briefs from the parties.Now, in order to avoid further review and litigation, the parties agreeto the following:I.Respondent hereby agrees to abate the cited conditions as follows:(a) Respondent agrees that when using a \”smooth\” type Varco kellybushing on any of its worksites it will provide and use a guard thatwill prevent employee contact with the kelly bushing and the rotarytable when the equipment is in operation; or(b) In lieu of a guard, respondent will will institute the followingalternative methods of abatement:1. All employees shall be trained in safe operating procedures whenaround the rotary table and kelly bushing.2. The employer shall designate the equipment operator and shall ensurethat the designated person is trained and competent in the operation ofthe rotary drilling equipment.3. The designated equipment operator shall control the access andactivity of all personnel on the drilling floor while equipment isrotating and shall stop such equipment from rotating whenever there isdanger to personnel from that equipment.4. The equipment operator shall never engage the rotary clutch withoutfirst ensuring that no employees are on or in proximity to the rotarytable in such a manner that they could be endangered.5. At any time an employee’s work activities require the handling ofmaterials which can become entangled in the rotary table, the kellybushing or the kelly while such equipment is in motion, the designatedequipment operator, who is capable of stopping the rotating equipment,shall be at the controls.6. No materials which may become entangled in the rotary table, kellybushing and\/or kelly shall be allowed within 6 inchesof this equipment when it is to be operated.7. Wash downhoses shall be of such length or located in such manner thatno part of such hoses can ho brought to within 6 inches of the kellybushing.8.Spinning chain shall not be wrapped around the joint of the pipe inthe mousehold nor handled on the drilling floor so that any part of thechain is within 2 feet of the exposed rotating portions of the rotarytable, kelly bushing or kelly.II.Complainant recognizes that the alternative methods of abatement as setout in Paragraph I(b) is according to the variance granted by OSHAInstruction STD 1-12.28 dated February 14, 1983, to which the Respondentis bound by this Stipulation and Settlement Agreement but not by thisvariance until it becomes a standard by due operation of law.III.Complainant hereby agrees to withdraw its complaint and citation forviolation of 29 CFR 1910.212(a)(1) and the related proposed penalty.IV.Respondent hereby submits that the conditions noted in the above-mentioned citation has been abated according to the terms of thisagreement and shall remain abated.V.The parties agree that this Stipulation and Settlement Agreement is notto be considered precedential or binding in situations involvingconditions or machinery of any other employer and that it does not applyto any type of kelly bushing other than a \”smooth\” Varco Kelly Bushing.VI.The parties agree to bear their own attorney’s fees, expenses and costsincurred as a result of the instant litigation.VII.Respondent agrees to post this Stipulation and Settlement Agreement inaccordance with Commission Rule 7.Wherefore, the parties request that this Stipulation and SettlementAgreement be approved by the Commission.————————————————————————FOOTNOTES:[[1\/]] Another citation for non-serious violation of 29 CFR 1910.307(b)was issued and affirmed by the Judge. That violation, however, is not onreview and not the subject of the instant agreement.”