” SECRETARY OF LABOR,Complainant,v.POWER FUELS, INC.,Respondent.OSHRC DOCKET NO. 85-0166_DECISION_Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:This case comes before the Commission on review from a petition filed byPower Fuels, Inc., objecting to the Decision and Order of formerCommission Administrative Law Judge Ramon Child. This case arose froman OSHA investigation triggered by the death of a Power Fuels employeeon an oil drilling site in North Dakota. The judge held that PowerFuels had committed serious violations of the Occupational Safety andHealth Administration’s (OSHA’s) general respirator standard at 29C.F.R. ? 1910.134(a)(2)[[1]] and of the standard setting a ceilingexposure limit for hydrogen sulfide (H_2 S) gas at 29 C.F.R. ?1910.1000(b)(2).[[2]] We affirm a combined serious violation of thesetwo standards, and we assess a penalty of $1000, as proposed by theSecretary.Based on our review of the record, we conclude that the evidenceoverwhelmingly confirms what Power Fuels reported to OSHA before thecitations were issued: namely, that its employee was fatally overcome byexposure to excessive levels of H_2 S gas. We further conclude thatPower Fuels should have been aware that H_2 S gas was a known risk onthe oil drilling site and that its employee should have used arespirator while working there.[[3]]I. _Whether Power Fuels’ employee was exposed to H_2 S gas in excess ofthe \”maximum peak concentration\” permitted by ?1910.1000(b)(2)_The first major issue presented in this case is whether the judge erredin finding that the deceased employee was exposed to levels of H_2 S gasthat were greater than 50 p.p.m. Power Fuels presents numerouschallenges that are related to its overriding argument that the findingis in error. We conclude, however, that none of these arguments aremeritorious and that the judge’s finding is fully supported by therecord evidence.The facts are as follows. David Nelson, the employee whose death led tothe OSHA investigation, was a truck driver based at Power Fuels’District Office in Watford City (McKenzie County), North Dakota. Hedrove on the night shift. Nelson, a new employee with less than twomonths on the job, arrived alone at a tank battery at the GilbertsonLease in McKenzie County, as assigned, at about 11 p.m. on August 30,1984. Nelson was to drain the contents of a salt water storage tankinto the truck’s container and take the salt water to a waste site fordisposal.[[4]] The evidence indicates that at the time of the accident,Nelson was not wearing a respirator; nor was one provided for his use.Nelson’s body was discovered on top of the tank at about 8 a.m. the nextmorning by Power Fuels employee Walter Runion. McKenzie County SheriffPaul Larsen, who was called to the scene that morning, testified thatRunion told him that the body had not been moved from where he had foundit. Nelson’s head was about 12 inches from the thief hatch cover, whichwas closed. (The thief hatch is the opening through which the fluids aregauged and removed.) Sheriff Larsen further testified that a gauge laynext to Nelson and there was a strong odor, similar to the smell ofrotten eggs, the odor that is customarily associated with H_2 S gas.As required by law, Power Fuels reported the fatality to OSHA. Thereport stated that the employee \”was fatally overcome by hydrogensulfide gas…\” On the same day that Nelson’s body was found, an autopsywas performed on it by a physician retained by McKenzie County CoronerGerald M. Moredock, M.D. In his autopsy report, the retained physicianset forth his diagnoses of four significant conditions, including severelung congestion.[[5]] In the coroner’s report, Dr. Moredock stated thatthe \”[a]utopsy showed severe lung congestion that would be consistentwith H_2 S gas suffocation. No other cause or reason could be found forhis death.\”According to \”Recommended Practices for Conducting Oil and GasProduction Operations Involving Hydrogen Sulfide\” (1981), a publicationof the American Petroleum Institute that was received into evidence, H_2S does not cause immediate, serious effects until present in levelsexceeding 50 p.p.m., the maximum peak concentration cited in ? 1910.1000(b) (2). Exposure of 100 p.p.m. or more is associated with increasingodor, as well as eye and throat irritation. H_2 S gas does not causeunconsciousness or death until concentrations reach approximately 700p.p.m. Testimony to the same effect was given by OSHA Area DirectorDavid DiTomasso, an industrial hygienist who has a master’s degree inenvironmental health. This evidence was not contradicted.Readings taken by David Tuhy, Power Fuels’ safety representative, on thetwo days following the fatality, showed extremely high levels of H_2 Sgas in the tank. Tuhy twice tested the air inside the hatch of the tankon the afternoon of August 31. Both times, his instrument, a Bendix GasTech hand-held detector, registered 1600 p.p.m. of H_2 S gas (themaximum reading of which the device was capable).The next day, Tuhy made two readings approximately one foot above thehatch cover with the thief hatch open. According to Tuhy’srecollection, one of those readings was taken on the downwind side andregistered 100 p.p.m. The other reading was taken on the upwind sideand registered 55 to 60 p.p.m. That same day, Tuhy also took two othersamples: one by the hatch with the cover closed, and one at thedownwind side of the tank at ground level. No H_2 S gas registered ineither of those two tests.At the hearing, Dr. Moredock testified that Nelson could have died ofcauses unrelated to H_2 S, but that normally the other conditions notedon the death certificate would not cause the severe lung congestion thathe believed was the immediate cause of death. He testified that heavyconcentrations of H_2 S gas could cause such severe lung congestion. Dr. Moredock had been a practicing physician for eight years and coronerof McKenzie County for about five years.Power Fuels raises numerous challenges to the Secretary’s evidence onthis factual issue, that is, the level of H_2 S gas at the time ofNelson’s death. For example, Power Fuels argues that Dr. Moredock’sconclusions as to the cause of death were insufficient because he didnot perform the autopsy. As mentioned above, the conclusions made byDr. Moredock were based on his review of the autopsy performed by aphysician that he had retained. Power Fuels has not shown that such aprocedure was improper or unreliable. Also, Power Fuels relies on thefact that the laboratory test ordered by Dr. Moredock to determine thepresence of H_2 S gas in Nelson’s system did not reveal any. However,Dr. Moredock testified that he was told by the laboratory’s chemist thatthe laboratory was inexperienced in H_2 S gas analysis and that it wasunable to get its test to work. We therefore conclude that thelaboratory test is not probative in deciding the H_2 S exposure issue.Power Fuels questions Dr. Moredock’s credibility, noting his testimonythat, to the best of his recollection, he filed a revised deathcertificate stating that \”the cause of [Nelson’s] death is respiratoryasphyxiation with the most likely cause [being] H_2 S gas exposure.\” Power Fuels relies on the testimony of one of its employees that theoriginal death certificate, prepared by Dr. Moredock on September 1,1984, stated that the immediate cause of death was \”unknown\” and thatits cause was \”Pending Investigation\” and was due to or was aconsequence of \”Extensive pulmonary granulomatous.\” This witnessfurther testified that, on the day after Dr. Moredock’s testimony inthis case, the original death certificate and not the revised deathcertificate was still on file at the McKenzie County Courthouse. So faras the record shows, however, failure to file the revised deathcertificate was merely an inadvertent error. Power Fuels does notsuggest any alternative explanation. We find no basis to disbelievethe testimony of Dr. Moredock.In addition, Power Fuels points to testimony that some cause of deathother than H_2 S suffocation was possible. That testimony was given byDr. Moredock, and by OSHA Area Director and Industrial HygienistDiTomasso. However, both of these witnesses testified that H_2 Ssuffocation was the most likely cause of death, and the only causesuggested by the known data. The standard of proof on this issue is thepreponderance of the evidence. _E.g_., _R.D. Anderson ConstructionCo._, 12 BNA OSHC 1665, 1666, 1986-87 CCH OSHD ? 27,500, p. 35,638 (No.81-1469, 1986). Here, we find that a preponderance of the evidenceestablishes that Nelson’s death was due to exposure to H_2 S gas.Power Fuels argues that the measurements Tuhy made the day after Nelsondied do not tend to prove the levels of H_2 S gas to which he wasexposed. We disagree. Those levels are consistent with the H_2 Slevels found in the gas stream of a well on the Gilbertson Lease in1981. The 1981 tests may be compared directly with Tuhy’s tests, eventhough the 1981 tests were of the \”gas stream\” (measured at thewellhead), whereas Tuhy’s tests were of the headspace above thesaltwater in the waste tank. Gas and salt water are separate products,but they reach the wellhead together in the gas stream from underground.The 1981 tests showed 39,300 p.p.m. of H_2 S in the gas stream. DiTomasso testified that he would expect that level of H_2 S in the gasstream to translate into about 1900 p.p.m. of H_2 S gas in the headspaceof a salt water tank. His estimate was based on his measurements in aprevious case. Douglas Lipetsky, an environmental engineer for theNorth Dakota Department of Health, testified that he would expect theH_2 S concentration in the gas stream at the time of Nelson’s death tohave been at least as high as in 1981. That conclusion was based onhis experience with other producing wells. Thus, the evidence indicatesthat the H_2 S gas levels in 1981 were similar to those that Tuhy foundon August 31, 1984 (at least 1600 p.p.m. in the headspace of the saltwater tank).Of course, as Power Fuels notes, H_2 S gas levels can rise or fallquickly. DiTomasso testified that H_2 S gas levels can rise suddenlywhen the tank’s contents are disturbed, by pumping, for example. Theevidence indicates that Nelson had pumped fluids out of the tank beforehe died. Thus, Nelson was engaged in precisely the kind of activitycalculated to raise H_2 S gas levels suddenly to high levels, such asthose found in 1981 and on the day after the accident. Clearly, the1981 tests corroborate what is established independently by the otherevidence: that Nelson was exposed to an excessive level of H_2 S gas.Power Fuels further argues that it had no notice that it was beingcharged with exceeding the \”maximum peak\” limitation. However, thecitation and complaint expressly charged that violation, and theSecretary reaffirmed the allegation in discovery. Clearly, there was nolack of notice to Power Fuels of this charge. The evidence convincinglydemonstrates that Nelson was exposed to levels of H_2 S gas exceedingthe maximum peak concentration allowed under ? 1910.1000(b)(2)II. _Whether Power Fuels reasonably could have known of the H_2 S gashazards_We agree with the judge that Power Fuels \”had every reason to know\” thatthe waste salt water at the Gilbertson Lease contained H_2 S. Furthermore, we reject Power Fuels’ arguments that it could not haveknown of the hazard created by H_2 S gas. First, Kelly Gebhardt, PowerFuels’ District Manager for Watford City, and Nelson’s supervisor,testified that in a \”large majority\” of producing wells from which hisdistrict hauls, \”there would be some type of [H_2 S] smell from thewells . . . . \”Second, Power Fuels also knew that H_2 S levels exceeded permissiblelevels at certain sites. The results of tests at the Gilbertson Leasein 1981, as mentioned above, showing high levels of H_2 S present there,were on file with the North Dakota Department of Health. Those testshad been conducted by the producer at the Gilbertson Lease, Energetics,Inc. Furthermore, Power Fuels’ safety representative, Tuhy, testifiedthat it had been informed of high H_2 S concentrations by the producersat the Mullen and Rognes Leases (in the Watford City district), where anemployee had complained of H_2 S problems. Power Fuels required SCBA(self-contained breathing apparatus) respirators at those leases.Third, OSHA had issued a citation to Power Fuels previously forviolation of ? 1910.134(a)(2) and other respirator requirements. Thecitation related to drivers who were exposed to H_2 S gas while gaugingtanks in the Watford City area. In a letter accompanying the previouscitation, the OSHA area director had stated that \”[d]rivers untrained inrespirator use and the dangers of H_2 S are hauling salt water that hasbeen pumped from wells containing H_2 S. H_2 S is dissolved in thiswater and will be released from it into the air . . . .Furthermore, the H_2 S hazards in the area had been the subject of aprior Commission decision, _Bomac Drilling Div., TRG Drilling_ _Corp._,9 BNA OSHC 1681, 1683-85, 1981 CCH OSHD ? 25,363, pp. 31,540-41 (No.76-450, 1981). That decision discussed the sporadic H_2 S hazardsthroughout the Williston Basin, which includes the entire area at issuehere. _Bomac_ noted that H_2 S is most likely to be encountered influids taken from the substrata in the Madison Zone. The fluids at theGilbertson Lease were taken from these same substrata.Thus, the evidence shows overwhelmingly that Power Fuels was well awareof the potential for exposure to excessive H_2 S gas in the locale. Wealso note that no objection has been raised to the evidence that Tuhyhad attended OSHA seminars where the H_2 S risks in the area, and theneed for respirators, were thoroughly explained.To rebut this evidence of foreseeability, Power Fuels argues that thejudge failed to consider the evidence that no employee had complained ofH_2 S problems at the Gilbertson Lease. However, its own safetymaterials emphasize that H_2 S is difficult to detect and evaluate, thata technical instrument is needed, and that the sense of smell isinadequate because H_2 S deadens that sense at about 200 p.p.m.[[6]] Despite this known effect, Power Fuels did not provide H_2 S detectiondevices to its employees. Also, as mentioned above, high levels of H_2S gas may arise suddenly, without warning, in a tank when the fluids aredisturbed, as they apparently were when the tank in question was beingdrained by Nelson.Power Fuels argues that it was entitled to rely on an industry customand practice that allegedly imposes an obligation on oil and gasproducers to notify the transportation firms if H_2 S hazards arepresent. The Fifth Circuit rejected a similar argument in _Brock v_._City Well Service Co_., 795 F.2d 507, 512 (5th Cir. 1986) . The courtheld that an oil well service company may not shift its responsibilityfor its employees’ protection from H_2 S gas to well owners oroperators, based on industry custom and practice.Power Fuels’ safety representative knew that there may have been H_2 Son oil and gas sites even though Power Fuels had not been notified aboutits presence. In addition, Gebhardt acknowledged that \”very few\” oiland gas producers have notified him of H_2 S concentrations, even thoughH_2 S can be smelled at a large majority of wellsites in the area. Wecannot excuse Power Fuels’ failure to protect its employee where, ashere, it knew that H_2 S hazards existed in the area and that producersmight fail to report those hazards to it.In addition, Power Fuels failed to establish that the alleged custom orpractice regarding notice of high H_2 S concentrations existed, or thatPower Fuels reasonably relied upon it. Its citations to the transcriptin this regard do not support its position. The only substantialtestimony in the record on this issue goes contrary to Power Fuels’position. Consulting geologist and drilling foreman Kane testifiedthat it was customary for companies hauling water from his well drillingsites to a waste disposal site, to determine for themselves the water’sH_2 S content. Kane further testified that there were instances wherePower Fuels had determined the H_2 S content of salt water it hauled towaste sites and drilling sites.Power Fuels asserts that salt water containing H_2 S is \”hazardouswaste\” under Federal and state regulations and that, therefore, theowner or operator of the tank battery was required to inform it if H_2 Swas present in the salt water. However, no specific statutory orregulatory provision is cited by Power Fuels to support this assertion. To the contrary, water produced in drilling for gas and oil, like thesalt water here, is excluded from the definition of \”hazardous waste\”under the Environmental Protection Agency (\”EPA\”) regulations. 40C.F.R. ? 261.3(a)(1),.4(b)(5). Furthermore, the Department ofTransportation (\”DOT\”) motor carrier safety regulations that formed partof Power Fuels’ safety program indicate that this employer had a duty tofind out if it was carrying any hazardous materials. 49 C.F.R. ??397.1,.21. Under those regulations, Power Fuels could not have shiftedto another company its responsibility to determine whether it wastransporting hazardous materials.III. _Whether a violation of ? 1910.134(a)(2) was proven_Power Fuels argues that ? 1910.134(a)(2) is a broadly-worded standardthat may be enforced only under a \”reasonable person\” test. Under thattest, the Secretary would have to prove that a reasonable personfamiliar with the circumstances, including any facts peculiar to theindustry, would recognize a hazard warranting the precautions urged bythe Secretary. The precautions at issue here are providing respiratorson jobsites, such as the Gilbertson Lease, and requiring their use.Under Commission precedent, the use of the reasonable person test is notrequired as an aid in interpreting and applying the cited standard. _Snyder Well Servicing, Inc._, 10 BNA OSHC 1371, 1375-76, 1982 CCH OSHD? 25,943, p. 32,511 (No. 77-1334, 1982). In addition, the Fifth Circuithas essentially rejected such a requirement. _City Oil Well ServiceCo._, _supra_, 795 F.2d at 511. Moreover, even assuming _arguendo_ thatPower Fuels is correct in its assertion that use of this test isrequired, we conclude that the Secretary has demonstrated that areasonable person in Power Fuels’ position would have required thatNelson use a respirator while working on the Gilbertson Lease.Power Fuels’ H_2 S safety booklet stated: \”When you are required to bepresent or work in an area where H_2 S is a potential hazard, you mustwear breathing protection.\” The company’s district manager, Gebhardt,testified that he believed the only safe way to work around H_2 S is towear a respirator. Power Fuels’ safety rules required the use of SCBArespirators where H_2 S was known to be present. The testimony revealedthat Power Fuels actually had respirators in its Watford City office. Yet, the company failed to take steps to ensure that they were providedat its wellsites. It is clear from this evidence that a reasonableperson in Power Fuels’ position would have recognized a hazardwarranting (1) provision of an SCBA respirator at the well site on theGilbertson Lease, and (2) a requirement that the employee use therespirator.The Secretary has established that the H_2 S gas constituted asignificant risk of harm, making a respirator necessary to protect theemployee’s health. _See Kastalon, Inc_., 12 BNA OSHC 1928, 1937-38,1986-87 CCH OSHD ? 27,643, p. 35,974 (No. 79-3561, 1986). An employeewas exposed to the hazards, and Power Fuels and the requisite knowledgeof the conditions. _See_, _e.g_., _Trumid_ _Construction Co._, 14 BNAOSHC 1784, 1788, 1990 CCH OSHD ? 29,078, p. 38,859 (No. 86-1139,1990.)[[7]] Thus, the Secretary has established a violation of both ??1910.134(a)(2) and .1000(b)(2).IV. _Effect of discovery responses_Power Fuels asserts that the Commission must ignore much of the evidenceintroduced at the hearing because it goes beyond or is inconsistent withthe Secretary’s responses to certain prehearing discovery requests byPower Fuels. This claim is without merit, for several reasons. First,Power Fuels did not object to the introduction of the evidence it nowclaims is precluded by the prehearing documents. Second, Power Fuelsdid not seek to have introduced into evidence any of the alleged answersto interrogatories on which it now relies, and did not even mention themat the hearing. Third, when properly read, none of the allegedadmissions would change the result in the case. In fact, Power Fuels’representations as to what admissions were made are incorrect innumerous instances.As to the first point, if the Secretary attempted to introduce evidenceat the hearing that was subject to preclusion by her discoveryresponses, the proper time for Power Fuels to object was when theevidence was introduced. By not objecting then, Power Fuels has failedto preserve its argument for use on review. Rule 103(a)(1) of theFederal Rules of Evidence (\”F.R.E.\”) provides that \”[e]rror may not bepredicated upon a ruling which admits . . . evidence [unless] a timelyobjection or motion to strike appears of record, stating the specificground of objection, if the specific ground was not apparent from thecontext\”). Former Commission Rule 72, which was in effect at the timeof the hearing, incorporated F.R.E. Rule 103(a)(1) in Commissionproceedings; \”Hearings before the Commission insofar as practical shallbe governed by the rules of evidence applicable in United StatesDistrict Courts.\” Former 29 C.F.R. ? 2200.72.[[8]]As to the second point, answers to interrogatories generally are notconsidered evidence unless they are introduced as such at the hearing. _E.g., Jones v. Diamond_, 519 F.2d 1090, 1098 (5th Cir. 1975);_Montgomery Ward & Co. v. Fotopoulos_, 32 F.R.D. 333, 334 (D. Minn.1963). Even where answers to interrogatories are introduced inevidence, they generally have no binding effect if they are contradictedby evidence at the hearing. _E.g., Freed v. Erie Lackawanna Ry. Co._,445 F.2d 619, 621 (6th Cir. 1971), _cert_. _denied_, 404 U.S. 1017, 92S.Ct. 678 (1972), and cases cited therein. _See generally_, 8 C. Wright& A. Miller, _Federal Practice and_ _Procedure_, ?? 2180, 2181; 4A_Moore’s Federal Practice_, ? 33.29.Power Fuels does not explain its failure to introduce the Secretary’sdiscovery responses into evidence. The alleged answers to Power Fuels’interrogatories are not in the official case record, even though thecompany was on notice that those answers might not have been filed withthe Commission.[[9]] Power Fuels cites certain court cases for theproposition that discovery admissions and interrogatory answers, likethose allegedly made here, preclude the introduction of additional orcontradictory evidence. None of those cases dealt with discoverymatters, however.Power Fuels further relies on an unreviewed judge’s decision, which itsays supports the result it urges. _McWilliams Forge Co._, 8 BNA OSHC1792, 1794, 1980 CCH OSHD ? 24,578 (No. 79-228, 1980). Unreviewedjudges’ decisions do not constitute Commission precedent. _E.g., LeoneConstruction Co_., 3 BNA OSHC 1979, 1981, 1975-76 CCH OSHD ? 20,387, p.24,322 (No. 4090, 1976). The cited case is inapplicable. In_McWilliams Forge_, the judge deemed matters admitted because theSecretary failed to timely respond to requests for admissions and didnot explain that failure.As to the third point, none of the alleged admissions would affect theresult of the case, even if they were considered. It bears noting thatPower Fuel’s representations as to what admissions were made in thiscase are incorrect in a number of instances. For example, Power Fuelsrepresents that the Secretary’s discovery responses stated: (1) TheSecretary did not know which of the substances listed in ? 1910.1000,Table Z-2, includes H_2 S gas, and (2) no notice has been given that anyof these limitations apply to H_2 S gas. However, Power Fuels’ requestsfor admissions to that effect were ambiguously _denied_ by theSecretary. Power Fuels also makes other incorrect representations ofpurported admissions [[10]]. We note that the Commission’s rulesrequires that counsel make a reasonable inquiry in advance to determinethat arguments made in briefs are well grounded in fact and warranted bya good faith legal argument. 29 C.F.R. ? 2200.32.[[11]]Respondent thus fails in its assertion that the Secretary’s prehearingresponses preclude the Commission from deciding this case based on theevidence presented at the hearing.V. _Alleged duplication of charge_Power Fuels argues that at most only one violation may be affirmed,because all of the items on review are based on the same hazard at thesame place and time, and that hazard could have been abated by one step– provision of an SCBA respirator to Nelson on the Gilbertson Lease. The Secretary states:The Secretary agrees that all three violations affirmed by the judgeessentially concern one violative condition which should have beenavoided by one method of abatement — provision of appropriaterespiratory equipment to David Nelson. Therefore, the Commission shouldaffirm a serious violation of 1910.134 (a)(2) _and_ 1910.1000 (b) andassess a single penalty of $1000 for that violation, rather than the$1,500 penalty assessed by the judge.(_Emphasis in original_.) Based on this statement, we conclude that theSecretary has abandoned the third item on review, the alleged violationof ? 1910.134 (b) (9), even though the judge affirmed that item. Wesee no compelling reason to question the Secretary’s judgement on thisissue. The ? 1910.134(b)(9) item will therefore be vacated. _SeeCuyahoga Valley Ry. Co. v. United Transp_. _Union_, 474 U.S. 3, 7, 106S. Ct. 286, 288 (1985) (Secretary’s decision to withdraw a citation isnot reviewable by the Commission). We will affirm a single citation item– a combined violation of ?? 1910.134(a)(2) and 1000(b)(2).VI. _Classification and penalty_The violation undeniably was serious under the Act. _See_ 29 U.S.C. ?666(k). We will impose the Secretary’s proposed penalty, $1000, whichwas the maximum penalty for a serious violation. Regarding the penaltyfactors, the extreme gravity of the known H_2 S hazards would warrantthe maximum penalty, regardless of other factors. Furthermore, we notethat Power Fuels previously had admitted violations of H_2 S respiratorrequirements at a nearby oil well site; that it was a sizeable company,with eight district offices; and that its good faith is questionable, inlight of its extensive knowledge of the hazards.[[12]] _See_ 29 U.S.C.? 666 (j)In conclusion, we affirm a combined serious violation of??1910.134(a)(2) and .1000(b)(2), and assess the $1000 penalty requestedby the Secretary. The ? 1910.134 (b) (9) item is vacated.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G.WisemanCommissionerDated: April 17, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.POWER FUELS, INC.,Respondent.OSHRC DOCKET NO. 85-0166APPEARANCES:For the Complainant:Jaylynn K. Fortney, Esq., Kansas City, MissouriFor the Respondent:Robert D. Moran, Esq., Washington, D.C._DECISION AND ORDER_Child, Judge:_Statement of the Case_This matter is before the Occupational Safety and Health ReviewCommission (the Commission) pursuant to section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 _et seq_.,(the Act). Complainant seeks affirmance of Citation No. 1, issued torespondent February 12, 1985, charging five items of willful violationof section 5(a)(2) of the Act and of proposed penalties totaling$21,000.00. In the event said violations are found not to be willful,complainant alleges in the alternative that they are serious within themeaning of the Act.The matter came on regularly for hearing at Minot, North Dakota, onAugust 20, 1985. Notice of the hearing was duly given affectedemployees. Except as employees may have been called as witnesses, therewas no appearance by or on their behalf. (Tr. 8, 9).The parties have submitted post hearing briefs in support of theirpositions. Respondent has admitted that it is a corporation engaged incommerce and that it is subject to the Act and the jurisdiction of thisCommission. (Answer) Various affirmative defenses have been raised bythe respondent in its Answer and will be treated in the Discussionportion of this Decision.The Issues raised by the citation and the Complaint to be heredetermined are:1. Was the respondent in violation of the standard at 29 C.F.R.1910.134(a)(2)?[[1\/]2A. Was the respondent in violation of the standard at 29 C.F.R.1910.134(b)(3)? [[2A\/]]2B. Was the respondent in violation of the standard at 29 C.F.R.1910.134(b)(8)? [[2B\/]]2C. Was the respondent in violation of the standard at 29 C.F.R.1910.134(b)(9)? [[2C\/]]3. Was the respondent in violation of the standard at 29 C.F.R.1910.1000 (b)(2)?[[3\/]]4. If the respondent was in violation of the aforesaid standards, orany of them, was said violation willful or failing that, serious?5. What, if any, penalty would be appropriate?_Statement of Fact_Respondent is engaged in the business of transporting variouscommodities, including crude oil, water and other liquids in bulk, as acommon carrier under a certificate granted by the North Dakota PublicService Commission. (Tr. 900) Its business is operated from sevendistrict offices, six in North Dakota and one in Montana. (Tr. 577) Aninspection of respondent was initiated by the Occupational Safety andHealth Administration (OSHA) to investigate a fatality which occurred ata tank battery located approximately four miles north of Keene, NorthDakota. (Tr. 207)Respondent’s employee, David Nelson, died in the said fatality whichoccurred on August 30, 1984, at what is referred to herein as theGilbertson Tank Battery site. (RFA 1 and 2(a))[[ 4\/]] He was employedby respondent as a truck driver. (RFA 5) The said site was under thecontrol and custody of Energetics, Inc., a company which is not a partyto this proceeding. (RFA 3, Tr. 217-218) There were three tanks locatedat the said site; two steel oil tanks and one fiberglass salt waterstorage tank which was approximately 15 feet high. (RFA 2(b); ExhibitsC-4, C-5, C-11, C-12, C-13).On August 30, 1984, respondent had assigned Nelson to fill an orderreceived from Energetics, Inc. to transport salt water from theGilbertson site to a waste disposal location for disposal. Nelson wasworking the night shift on said date and the said assignment was givento him sometime after he reported for work at 6:30 p.m. (RFA 8(a), 8(b);Tr. 873) On the morning of August 31, 1984, Nelson’s body wasdiscovered by respondent on top of the salt water storage tank at thesaid site. (Exhibits C-1, C-2, C-6) An autopsy performed on that datelisted the final diagnoses as:\”I. Bruise, recent, right anterolateral chest.II. Congestion, lungs, severe.III. Granulomatous inflammation, lungs, lymph nodes and liver, etiologyundetermined.IV. Kyphoscoliosis, severe.\”(RFA 9(a); Exhibit R-7There were no known witnesses to Nelson’s death, nor was any personother than Nelson known to be present at the said site on the night ofAugust 30, 1984. The truck which Nelson had been assigned to drive wasparked at the said site at the time Nelson’s body was discovered. Priorto his death, he had gone to the top of the tank, measured (gauged) theamount of water therein by lowering a measuring device to the bottom ofthe tank from a hatch opening at the top, entered the measurement upon awater invoice, and filled the truck with water from the tank. (RFA9(b), 9(c); Tr. 704-705, 879-881) A tachograph device on Nelson’s truckshowed that he had stopped the truck at the site at around 11:00 to11:10 p.m. on August 30. (Tr. 41, 862-863) The time of his death wasplaced at between 11:00 p.m. and midnight on that day by McKenzie CountySheriff Paul Larson, the local government official who investigated thedeath. (Tr. 42-43) Nelson’s death certificate completed by the coronerlists the \”immediate cause\” of death as \”unknown.\” It further statesthat the \”underlying\” cause of death was \”extensive pulmonarygranolamatous.\” (Tr. 111-112; Exhibits C-9 and R-28) The coroner in hisundated \”Report\” concluded that death occurred about 7:00 a.m. on August31, 1984. He there noted that the decedent was found \”. . . with hishead near the tank opening\”, whereas the evidence was that the cover ofthe \”thief hatch\” near Mr. Nelson’s head was closed. The \”Coroner’sReport\” stated:\”Autopsy showed severe lung congestion that would be consistent with H_2S gas suffocation. No other cause or reason could be found for his death.\”(Exhibits C-1, C-2, C-6, C-8; Tr. 33, 34, 35)Mr. Nelson was not wearing respiratory protection and no respiratoryprotection equipment was in the truck he had been driving.(Tr. 41) There was no permanent air line and no warning sign concerning thepresence of Hydrogen Sulphide gas (H_2 S) on the site, nor was there awindsock present. (Tr. 40, 42)David Tuhy, safety representative for respondent, using a Bendix GasTech detector which measured only to a maximum of 1600 parts per million(ppm), determined that the detector measured 1600 ppm of H_2 S in theairspace at the top of the water tank in question on August 31, 1984. (Tr. 651-652) Measurements taken by Mr. Tuhy all the site on September1, 1984, disclosed concentrations of H_2 S at a point one foot above theopen thief hatch on the upwind side to be 55-60 ppm and on the downwindside to be 100 ppm. No H_2 S was found to be present at ground levelnor at the top of the tank with the \”thief hatch\” cover closed. (Tr.653-656 )Mr. Nelson had been employed by respondent since July 11, 1984. (Tr.835) At the time he was hired he was provided a copy of therespondent’s safety program, Exhibit C-23, and had on at least oneoccasion driven with a driver-trainer. (Tr. 849; Exhibit C-22)_Discussion _To prove a violation of section 5(a)(2) of the Act the complainant mustprove by a preponderance of the evidence an employer’s noncompliancewith an applicable standard and employee exposure to the hazard createdby the violative condition. _Otis Elevator_ _Co_., 78 OSAHRC 88\/ E5, 6BNA OSHC 2048, 1978 CCH OSHD ? 23,135 (No. 16057, 1978). In addition tothe foregoing, section 17(k) of the Act has been interpreted by theCommission as placing on the complainant the burden of proving that theemployer knew, or in the exercise of reasonable diligence, could haveknown of the presence of the violative condition. _Pre-stressedSystems, Inc._, 81 OSAHRC 43\/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ? 25,358(No. 16147, 1981)._Issue 1_:Was the respondent in violation of the standard at 29 C.F.R.1910.134(a)(2)?[[5\/]]Although the death of an employee of the respondent on the job on August30, 1984, gave rise to the inspection out of which the citation hereinissued, the cause of that death is not here our concern. Although thecircumstances of an accident may provide relevant evidence, our inquiryis not necessarily to find the cause of death or determine whether aviolation caused it.See _Ulysses Irrigation Pipe Company_, OSAHRC Docket No. 78-799, 11 BNAOSHC 1273 (1983); _Kansas City Power & Light_ _Co._, 82 OSAHRC 13\/A2, 10BNA OSHC 1417,1422, 1982 CCH OSHD ? 25,957 p. 32,539 (No. 76-5255,1982); _Boeing Co_., 77 OSAHRC 188\/D13, 5 BNA OSHC 2014, 1977-78 CCHOSHD ? 22,266 (No. 12879, 1977); _Concrete Construction Co._, 76 OSAHRC47\/A2, 4 BNA OSHC 1133, 1135 & N.3, 1975-76 CCH OSHD ? 20,610 p. 24,664& n.3 (No. 2490, 1976)Here the circumstances surrounding the death of Mr. Nelson on August 30,1984, provide evidence that an employee of the respondent was exposed tothe effects of H_2 S in the course of his employment and that exposurecould have caused death or serious physical harm.That the standard at 29 CFR 1910.134(a)(2) applies to the situation nowbefore us was determined by the Commission in _Snyder_ _Well Servicing,Inc._, OSAHRC Docket No. 77-1334 (1982), 10 BNA OSHC 1371, 1375-6, 1982CCH OSHD ? 25,943 p. 32511. There as here the respondent urged the wordsin the standard \”. . . . when such equipment is necessary to protect theemployee,\” to be interpreted to be where the Secretary shows exposure toconcentrations of air contaminants above the threshold limit valuespecified for the substance in question or to exceed the time allowancepermitted up to certain levels. The Commission expressly rejected suchinterpretations saying that to adopt such arguments \” . . . would meanthat no matter how great the likelihood of an emergency, an employer isnot required to take even elementary precautions until it is too late. That would be contrary to the purpose of section 1910.134 and to thepreventive purpose of the Act.\”Because of the widely recognized presence of H_2 S throughout theWilliston Basin (Tr. 421, 432-433) and two deaths resulting fromexposure thereto in late 1983 and early 1984, OSHA sponsored two H_2 Shazard recognition seminars to acquaint and remind those working in theoil and gas producing industry in the month of March 1984. (Tr.716-718) Respondent’s safety representative attended each of theseseminars where the standards were discussed and the need to provideemployees engaged in the function of gauging tanks with self containedbreathing apparatus or supplied air respirators was explained to bemandatory unless the employer had ruled out the presence of H_2 S inexcessive amounts at the specific location by conducting adequate priormonitoring. (Tr. 719, 721, 722, 724, 725, 740)Evidence disclosed that as of December 1, 1981, tests showed thatproduction of this well measured at the wellhead contained 3.93% H_2 Sby volume. (Exhibit C-21; Tr. 533,537) It is reasonable to assume thatif further gas analysis were performed on August 30, 1984, at thiswellhead the results would show H_2 S to again be present at least 3.93%by volume. (Tr. 542)It is to be expected that 3.93% H_2 S by volume measured at the wellheadwould produce H_2 S concentrations in the airspace above the saltwaterin a tank battery at that site in excess of 1600 ppm. (Tr. 762, 763)Tests conducted at the saltwater tank by respondent’s safetyrepresentative on the afternoon of August 31, 1984, disclosed H_2 S inthe airspace above the water to be at least 1600 ppm. (Tr. 649-652) Itmay fairly be inferred, therefore, that at the time Mr. NeIson openedthe cover of the thief hatch at the top of this saltwater tank at about11:00 p.m. on August 30, 1984, he was in the proximity of aircontaminated with a concentration of H_2 S in the neighborhood of 1600 ppm.Tests conducted by respondent’s safety representative at the saltwatertank in question on September 1, 1984, disclosed:1. 55-60 ppm H_2 S measured one foot above the upwind side of the hatchopening — immediately after opening the hatch cover.2. 100 ppm H_2 S measured one foot above the downwind side of the hatchopening–immediately after opening the hatch cover. concentration of H_2S measured at the hatch with the3. No concentration of H_2 S measured at the hatch with the cover closed.4. No concentration of H_2 S measured at ground level.(Tr. 653-656)It may fairly be inferred from the foregoing that at the time Mr. Nelsongauged the contents of this saltwater tank at about 11:00 p.m. on August30, 1984, he was exposed to air contaminated with H_2 S inconcentrations in excess of 50 ppm.Respondent’s noncompliance with an applicable standard and employeeexposure to the hazard created by the violative condition having thusbeen established, we now consider whether the complainant here met theburden of proving that the respondent knew, or in the exercise ofreasonable diligence, could have known of the presence of the violativecondition.Respondent’s safety representative was informed of the two deaths whichoccurred in the Williston Basin late in 1983 and early in 1984 fromexposure to H_2 S. Respondent’s safety representative was informed ofOSHA’s claim that any gauging performed at tank batteries in theWilliston Basin must be accomplished while wearing appropriaterespiratory equipment by reason of the risk of exposure to excessivelevels of H_2 S. Respondent’s safety representative was informed as tothe hazards attendant upon exposure to various levels of H_2 S in theworkplace. H_2 S was generally known to be present and pervasivethroughout the oil and gas producing industry in the Willington Basin.(Tr. 432, 433)Notwithstanding the foregoing, respondent claims to have been uniformedthat its employees sent out to gauge and haul saltwater from tankbatteries could be exposed to H_2 S in dangerous levels. Of 100 tankbatteries serviced in the Watford City area only two of the producersever advised respondent that H_2 S was a hazard at their specific site. Those two producers engaged the respondent to haul crude oil only. Ofsome 45 well sites from which respondent hauled saltwater in this area,none of the producers advised respondent of the presence of H_2 S ontheir sites in hazardous concentrations. (Tr. 843)Generally, well sites with tank batteries were equipped with windsocksto show the wind direction and if H_2 S was present in hazardousconcentration, a sign was posted to that effect by the lease owner orproducer and an air supply line was present. No windsock, warning signor air supply line was present at this site.Respondent relied upon the customer requesting the haulage to inform ofthe presence of H_2 S if it constituted a hazard. (Tr. 920, 921) Atleast one drilling foreman customarily did so. (Tr. 447,449) When thedispatcher was informed of the presence of H_2 S at the site by thecustomer, he would in turn inform the driver who was expected to availhimself of appropriate respiratory equipment maintained at the districtoffice for that purpose and from which office the truck and driver weredispatched.North Dakota State Law and Federal Statutes and Regulations found atTitle 49 CFR urged upon us by respondent do not appear to justifyrespondent’s reliance upon the leaseholder or producer providinginformation as to the potential hazard or the risks attendant thereon torespondent’s employees. (Exhibit R-27; Respondent’s Brief page 19)Here respondent was not shipping H_2 S, but was rather hauling wastesaltwater which the respondent had every reason to know would containH_2 S in some albeit unknown percentage. In the exercise of reasonablediligence respondent could have known that H_2 S would enter thebreathing environment and could expose its employee to harm. Thatdiligence would have been exercised merely by heeding the information,advice and warnings given respondent’s responsible personnel at trainingseminars in ample time to have anticipated and prepared for theviolative condition here found and to which respondent’s employee wasexposed.Self-contained breathing apparatus in the dispatcher’s office couldprovide no respiratory protection to a driver confronted with H_2 S at awell site. (Tr. 667) Respondent thus failed to comply with the standard._Issue 2A_:Was the respondent in violation of the standard at 29 CFR1910.134(b)(3)?[[6\/]]In conducting its investigation herein complainant was confronted withan uncooperative employer. The investigating officer recommended citingthis violation based upon the fact although he requested the trainingrecords of the deceased employee, none were produced. The evidence ofviolation of this standard was not particularly enhanced by theinvestigating officer’s testimony that \”individuals\” he spoke withindicated Mr. Nelson had not been trained. (Tr. 298)Without detailing the extent of training given, respondent offered sometestimony to the effect that Mr. Nelson had received some training eventhough respondent’s safety representative had not met him. (Tr. 612-618,685, 839, 849; Exhibit C-22)Complainant had the burden of proof to support a finding in relation toits allegation of violation of this standard and failed to meet that burden._Issue 2B_:Was the respondent in violation of the standard at 29 CFR1910.134(b)(8)?[[7\/]]Complainant based its claim of violation set forth in item 1 of thecitation that unless monitoring had been done to rule out the presenceof H_2 S in excessive concentrations, gauging must be accomplished whilewearing appropriate respirators.Complainant’s witness who tests tank batteries for H_2 S concentrationsdid not customarily wear respirators while testing at the top of tanks. (Tr. 161, 163,167,172) In view of the evidence presented by complainantthat monitoring at the tank batteries would be difficult and unreliable,it cannot be here said that it would be appropriate. (Tr. 799) Particularly is this so when under the complainant’s interpretation of29 CFR 1910.134(a)(2) appropriate respirators can be worn in lieu ofmonitoring.Complainant failed to meet its burden of proving a violation of item 2Bthe Citation issued herein._Issue 2C_:Was the respondent in violation of the standard at 29 CFR1910.134(b)(9)? [[8\/]]Notwithstanding knowledge that OSHA had warned respondent of theincipient hazards associated with H_2 S and the need to provideemployees with respiratory protection to be worn during gaugingoperations, respondent persisted in pursuing its respiratory safetyprogram of relying upon customers to advise if hazardous levels of H_2 Smight be present and then to so advise drivers assigned to that site sothat the driver might take respiratory equipment with him when dispatched.The evidence presented compels a finding that respondent did nothing byway of inspection and evaluation (regular or otherwise) to determine theeffectiveness of its program. (Tr. 646, 648, 673, 849, 865, 926, 927)Complainant has met its burden of proving a violation of item 2C of thecitation by a preponderance of the evidence.The failure to inspect or evaluate prevented respondent from determiningthe need to provide respiratory equipment when or if needed, but did notdirectly result in probability of death or serious injury torespondent’s employees and was therefore an other-than-serious violation._Issue 3_:Was the respondent in violation of the standard at 29 CFR1910.1000(b)(2)?[[9\/]]As discussed under Issue 1, there was here presented a preponderance ofevidence to support a finding that an employee of respondent was exposedto concentrations of H_2 S in excess of those permitted under Table Z-2on the 30th of August 1984.Complainant met its burden of proof with respect to item 3 of the citation._Issue 4_:Were the violations found herein willful, or, failing that, serious?In its brief the complainant refers us to the comprehensive definitionof \”Willful\” as it appears in the Act which definition has been offeredby the Circuit Court of Appeals for the Tenth Circuit:The failure to comply with a safety standard under the OccupationalSafety and Health Act is willful if done knowingly and purposely by anemployer, who having a free will or choice, either intentionallydisregards the standard or is plainly indifferent to its requirement. An omission or failure to act is willfully done if done voluntarily andintentionally. _Kent Nowlin Construction v._ _Occupational Safety andHealth Review Commission and Secretary of Labor_, 593 F.2d 368 (10thCir. 1979)Applying that definition the respondent could be construed to have actedwillfully herein or to have willfully failed to act. However, we arereminded that an intentional act or an intentional failure to act is onein which there is an intellectual apprehension of the end plus thedesire for the end result.In view of the apparently successful practice of standing upwind whenopening a thief hatch cover (Tr. 867, 868) and the lack of evidence hereas to the extent to which respondent’s employees were so trained or notso trained, it is felt that the evidence does not support a finding thatrespondent’s conduct rose to the level of willful. Respondent’s safetytraining program, enforcement thereof and placing of responsibility forconcerns of safety in its organization certainly are not models to beemulated. There would appear to be areas requiring attention andimprovement. In those items here found to be violations the respondentdisplayed too casual an approach to its responsibilities and itsemployees could thereby be exposed to the probability of suffering deathor serious physical harm from conditions confronting them in their workenvironment._Item 5_:What, if any, penalty would be appropriate?Giving due consideration to the factors provided by the Act fordetermining penalties and for the integrated relationship of theviolations here found, a total combined penalty in the sum of $1,500.00is here found to be appropriate; said sum to be apportioned as in theFindings of Fact set forth.Respondent faults the complainant for what respondent views as lack ofevidence as to reasonableness of abatement dates. However, the evidenceis to the effect that compliance on the part of respondent does notrequire time. Respondent’s employees are entitled to immediateprotection under the Act. No delay in abatement should here becountenanced and the abatement date of \”immediately upon receipt\” isfound to be reasonable.Respondent also argues in its brief that \” . . . all citations in thiscase are statutorily invalid because they were not issued within thetime period prescribed in the Act.\” The time period relied upon byrespondent is not the six months statute of limitations but the\”reasonable promptness\” requirement set forth in Section 9(a) of theAct. Such an affirmative defense was not raised specifically inrespondent’s Answer. _See Secretary v. Hoffman Construction Co._, 3 BNAOSHC 1064.More importantly, however, it is clear from the record in this case thatrespondent was uncooperative in the investigation required by the Act. Respondent obstructed the investigation by refusing permission to speakwith employees and failing to supply requested records. Respondentrefused access to certain areas and refused to disclose the location ofthe site requiring investigation.Perhaps respondent was within its rights to thus perceive its needs toprotect its rights, but the result was to present the complainant withobstacles in the investigation and delay its exercise of discretion asto whether and what violations to cite. Having thus contributed to thedelay in issuing the citation and having shown no prejudice resulting toits interests as a result of that time delay, respondent may not defeatthe purposes of the Act. Under the circumstances the citation wasissued with reasonable promptness. (Tr. 209-212, 216, 217, 251, 358, 359)The affirmative defenses raised in respondent’s Answer filed herein arenot supported by the law or evidence in the record and are without meritNow having observed the demeanor of the witnesses and having weighed thecredibility thereof, there are here entered the following:_Findings of Fact_1. The factual statements set forth hereinabove under Statement ofFacts are not controverted and are incorporated herein by reference.2. Respirators were not provided by the respondent to its employee(s)when such equipment was necessary to protect the health of said employee(s).3. Respondent’s employees are exposed to the risk of overexposure toH_2 S when engaged in gauging fluid levels at tank batteries generallythroughout the Williston Basin of western North Dakota and eastern Montana.4. Respondent knew or in the exercise of reasonable diligence couldhave known of the presence of H_2 S and the risk of overexposure theretoof employees engaged in gauging fluid levels at tank batteries situatedin the Williston Basin area on August 30,1984.5. There was a substantial probability that respondent’s employeeswould suffer death or serious physical harm as a result of exposure toH_2 S should an overexposure occur unless respirators were provided atthe point of exposure.6. An appropriate penalty to be awarded for the violation of item 1 ofthe citation is $700.00.7. Respondent made no regular inspections or evaluations to determinethe effectiveness of its respiratory protection program.8. It is appropriate that a penalty in the sum of $100.00 should beassessed for the violation of item 2C of the citation which violationwas other-than-serious.9. An employee of respondent was exposed to concentrations of H_2 S inexcess of those permitted under table Z-2 of subpart Z of 29 CFR 1910 onthe 30th of August 1984.10. An appropriate penalty to be awarded for the violation of item 3 ofthe citation is $700.00.11. It is reasonable that abatement of the violations here found shouldbe immediately accomplished.12. The citation herein was issued with reasonable promptness._Conclusions of Law_1. Respondent is an employer engaged in a business affecting commercewithin the meaning of the Act.2. Jurisdiction of the subject matter of this proceeding is conferredupon the Commission by section 10(c) of the Act and the Commission hasjurisdiction of the parties hereto.3. The standard at 29 CFR 1910.134(a)(2) applies to the work activityfor which respondent was cited in item 1 of the citation, subject ofthis action.4. Respondent was in violation of the standard at 29 CFR 1910.134(a)(2)and item 1 of Citation No. 1, issued to respondent February 12, 1985,should be affirmed as a serious violation of the Act and a penalty of$700.00 should be assessed.5. The evidence fails to support a finding of violation of the standardat 29 CFR 1910.134(b)(3) and item 2A of the citation in question shouldbe vacated.6. The evidence fails to support a finding of violation of the standardat 29 CFR 1910.134(b)(8) and item 2B of the citation in question shouldbe vacated.7. The standard at 29 CFR 1910.134(b)(9) applies to the work activityfor which respondent was cited in item 2C of the citation, subject ofthis action.8. Respondent was in violation of the standard at 29 CFR 1910.134(b)(9)and item 2C of Citation No. 1, issued to respondent February 12, 1985,should be affirmed as an other-than-serious violation of the Act. Apenalty of $100.00 should be assessed.9. The standard at 29 CFR 1910.1000(b)(2) applies to the work activityfor which respondent was cited in item 3 of the citation, subject ofthis action.10. Respondent was in violation of the standard at 29 CFR1910.1000(b)(2) and item 3 of Citation No. 1, issued to respondent.February 12, 1985, should be affirmed as a serious violation of the Actand a penalty of $700.00 should be assessed._Order_1. Item 1 of Citation No. 1, issued to respondent February 12, 1985, isAFFIRMED as a serious violation of the Act and a penalty of $700.00 isASSESSED.2. Items 2A and 2B of said Citation No. 1 are VACATED.3. Item 2C of said Citation No. 1 is AFFIRMED as an other-than-seriousviolation of the Act and a penalty of $100.00 is ASSESSED.4. Item 3 of said Citation No. 1 is AFFIRMED as a serious violation ofthe Act and a penalty of $700.00 is ASSESSED.R. M. ChildJudge, OSHRCDated: January 27, 1986FOOTNOTES:[[1]] The standard provides:? 1910.134 _Respiratory Protection_.(a) Permissible Practice.(2) 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.[[2]] That standard provides:? 1910.1000 _Air contaminants_.(b) Table Z-2:(2) _Acceptable ceiling concentrations._An employee’s exposure to a material listed in table Z-2 shall notexceed at any time during an 8-hour shift the acceptable ceilingconcentration limit given for the material in the table, except for atime period, and up to a concentration not exceeding the maximumduration and concentration allowed in the column under \”acceptablemaximum peak above the acceptable ceiling concentration for an 8-hourshift.\”The \”acceptable maximum peak\” column of Table Z-2 lists 50 p.p.m. forhydrogen sulfide. Thus, exposure may not exceed the 50 p.p.m. ceiling atany time. The term \”p.p.m.\” is the same as \”p\/m\” as defined in TableZ-1: the \”[p]arts of vapor or gas per million parts of contaminated airby volume . . . . \” Thus, Power Fuels’ argument that H_2 S \”gas\” is notregulated by the standard is incorrect. See also, ANSI Z37.2-1966(source standard for H_2 S exposure limits).[[3]] Power Fuels argues that the citation should be dismissed because: (1) it was not issued with reasonable promptness, and (2) the inspectionwas invalid under the Fourth Amendment. However, those specific issueswere not raised in Power Fuels’ pleadings, and there is no indicationthat they were tried by consent, express or implied. Therefore, we willnot consider these defenses in these circumstances. ? Commission Rule36(b)(1) (all affirmative defenses, including reasonable promptness,must be pled); Gannett Corp., 4 BNA OSHC 1383, 1385, 1976-77 CCH OSHD ?20,915, pp. 25,114-15 (No. 6352, 1976) (same). See also, Fed. R. Civ.P. 15(b) (unpleaded issues may be considered where tried by express orimplied consent). _Cf._, _William B. Hopke Co_., 12 BNA OSHC 2158, 2161,1986-87 CCH OSHD ? 27,729, pp. 36,257-58 (No. 81-206, 1986) (noattorneys’ fees would be awarded where defense on which employer reliedwas stated so generally that other party would not have been aware ofweakness in its case).[[4]] Salt water is found in the geological substrata in that area. Itis hauled from one wellsite to another and is used to push oil to thesurface. The used salt water is disposed of when the H_2 S content isconsidered too high for further use.[[5]] The four conditions noted were:I. Bruise, recent, right anterolateral chest.II. Congestion, lungs, severe.III. Granulomatous inflammation, lungs, lymph nodes and liver, etiologyundetermined.IV. Kyphoscoliosis, severe.[[6]] The H_2 S booklet that was part of Power Fuels’ safety programmakes these points clearly. For example, it states: \”You cannot rely onyour nose to tell you how much H_2 S gas is present. *Wear YourBreathing Apparatus*.\” ESSE International, Inc., \”H_2 S: The Killer!\”,p. 7. The booklet also notes that H_2 S causes unconsciousness quicklyat about 700 p.p.m. As noted above, tests made by Power Fuels the dayafter Nelson’s death found H_2 S gas levels of at least 1600 p.p.m. inthe tank.The booklet also makes it clear that to determine whether H_2 S ispresent, a technical device should be used. Listed examples of detectingdevices are: lead acetate, ampoules or coated strips, electronicdetectors, air sampling gas detector tubes, and fixed systems.[[7]] Power Fuels argues that the requirement of the citation that itabate the hazards immediately is unreasonable. This assertion isuntenable. Power Fuels had the necessary means of compliance –SCBArespirators — at the Watford City office even before the fatality. Italso was on notice of the requirement that it maintain a respiratorprogram because of a previous citation, among other things. Where thecontest is initiated in good faith, abatement requirements under the Actdo not take effect until entry of a final order by the Commission.?10(b) of the Act, 29 U.S.C. ? 659(b).[[8]] The current Commission rules adopt the F.R.E. in full. 29 C.F.R.? 2200.71.[[9]] For example, Power Fuels was on notice from the Secretary’s letterof June 10, 1985, that no signed answers were filed at that time. (June10, 1985, is the filing date for those answers relied on by PowerFuels.) The judge even noted at the hearing that the significance of theinterrogatories had not been brought to his attention. Power Fuels’claims that the judge disregarded discovery responses seems disingenuousin light of its failure to bring them up at the appropriate time.[[10]] At various points Power Fuels argues that knowledge has not beenestablished because the Secretary’s discovery admissions and answers toits interrogatories limited the issues solely to \”the facts andcircumstances surrounding the fatality of . . . David Nelson . . . onAugust 30, 1984.\” However, its request for an admission to that effectwas denied by the Secretary. Power Fuels further represents that theSecretary admitted in discovery that she did _not_ know theconcentration of H_2 S gas at the Gilbertson site on or before August30, 1984. However, Power Fuels’ request for admission was inadequate toproduce such an admission. The request stated, \”Complainant does _now_know what amount, level or concentration of H_2 S or hydrogen sulfidegas existed at the said site when David Nelson arrived there on August30, 1984, or at any time prior thereto.\” (Emphasis added.) TheSecretary’s agreement with that statement does not help Power Fuels.[[11]] The Commission’s rule is comparable to the requirements of theFederal Rules of Civil Procedure. _See_, _e.g._, Fed. R. Civ. P. 11. _See also_, former Commission Rule 30(c), former 29 C.F.R. ? 2200.30(c)(similar requirement, in effect when this case began). We also notethat Commission Rule 104(a) states, \”All representatives appearingbefore the Commission and its judges shall comply with the letter andspirit of the Model Rules of Professional Conduct of the American BarAssociation [ABA].\” The relevant ABA Model Rules prohibit attorneysfrom: (1) asserting or controverting issues on merely frivolousgrounds; (2) failing to make reasonable efforts to expedite litigation;and (3) making false statements of material fact or law to thetribunal. ABA, Model Rules of Professional Conduct 3.1 to 3.3 (1983).[[12]] The modest penalty required in this case may not be sufficient,in and of itself, to bring home to Power Fuels the importance of abatingthe kind of H_2 S safety program violation involved here and in itsprevious citation. Thus, we note that its violation here arguably waswillful, and was one of many apparent failures in Power Fuels’ H_2 Ssafety program.As noted above (n. 6 _supra_ and accompanying text) , Power Fuels’ H_2 Ssafety booklet stated that respirators are needed when any H_2 S ispresent, and that H_2 S levels should be detected with a scientificdevice, not the sense of smell. That booklet and certain other evidencesuggests that Power Fuels was fully aware that its safety precautions atthe time of the Nelson incident were inadequate.Power Fuels did not implement an appropriate safety program for H_2 S,and there is no indication that its employees were properly trained todetect H_2 S. Its supervisors testified that they relied on their senseof smell to avoid H_2 S. In fact, Power Fuels’ H_2 S safety program wasamorphous. It did not have a safety director with overallresponsibility for developing and implementing the company’s safetyprogram. Tuhy, its safety representative, testified that he did notformulate the company’s safety policy, and was not sure who did. Hetestified that he was not its safety director, and he did not considerhimself responsible for employee training. The crucial importance ofproper training is underscored by the fact that Nelson was a newemployee, with less than two months on the job.Furthermore, Power Fuels did not have an emergency response program orother method of aiding an employee on a site such as the GilbertsonLease. Rescue plans are crucial because H_2 S gas normally is not animmediate killer, even where an employee is overcome. _See_ 29 C.F.R. ?1910.134 (e)(3)(iii). In addition, Power Fuels showed no evidence ofhaving a disciplinary program for violations of its relevant safetyrules. The deficiencies in its safety program were widespread andunexplained on this record.[[1\/]] The citation reads:129 CFR 1910.134(a)(2): Respirators were not provided by the employerwhen such equipment was necessary to protect the health of the employee(s):(a) On or about August 30, 1984, at the Gilbertson Tank Battery site,located approximately 4 miles north of Keene, North Dakota, respiratoryequipment was not provided for an employee gauging oil tanks wherehydrogen sulphide gas was present.(b) On or about August 31, 1984, at the Gilbertson Tank Battery site,located approximately 4 miles north of Keene, North Dakota, respiratoryequipment was not worn by an employee performing rescue operations inthe presence of hydrogen sulphide gas.[[2A\/]] The citation reads:2A29 CFR 1910.134(b)(3): The users of respirators were not instructed andtrained in the proper use of respirators and their limitations:(a) On or about August 30, 1984, where an employee was required to gaugetanks at the Gilbertson Tank Battery site, located approximately 4 milesnorth of Keene, North Dakota, where excessive amounts of hydrogensulphide gas was present.[[2B\/]] The citation reads:2B29 CFR 1910.134(b)(8): Appropriate surveillance of work area conditionsand degree of employee exposure or stress was not maintained:(a) On or about August 30, 1984, at the Gilbertson Tank Battery site,located approximately 4 miles north of Keene, North Dakota, to determineemployee exposure to hydrogen sulphide gas.[[2C\/]] The citation reads2C29 CFR 1910.134(b)(9): There were no regular inspections andevaluations to determine the continued effectiveness of the respiratorprogram:(a) On or about August 30, 1984, where an employee was required to workat oil tank battery sites where hydrogen sulphide gas was present.[[3\/]] The citation reads:329 CFR 1910.1000(b)(2): Employee(s) were exposed to material(s) inexcess of the acceptable maximum peak concentration(s) allowed in thecolumn in Table Z-2 of subpart Z of 29 CFR part 1910 under \”AcceptableMaximum Peak Above the Acceptable Ceiling Concentration for an 8-hourShift\”:(a) On or about August 30, 1984, at the Gilbertson Tank Battery site,located approximately 4 miles north of Keene, North Dakota, an employeewas overexposed to hydrogen sulphide gas while gauging oil storage tanks.[[4\/]] The designation \”RFA\” refers to Requests for Admission of recordin this action.[[5\/]] The standard reads:?1910.134 Respiratory Protection.(a) Permissible Practice.(2) 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 . . . .[[6\/]] The standard reads:?1910.134 Respiratory Protection.(b) Requirements for a minimally acceptable program.3. The user shall be instructed and trained in the proper use ofrespirators and their limitations.[[7\/]] The standard reads:? 1910.134 Respiratory Protection.(b) Requirements for a minimally acceptable program.(8) Appropriate surveillance of work area conditions and degree ofemployee exposure or stress shall be maintained.[[8\/]] The standard reads:?1910.134 Respiratory Protection.(b) Requirements for a minimally acceptable program.(9) There shall be regular inspection and evaluation to determine thecontinued effectiveness of the program.[[9\/]] The standard and the table in pertinent part read:?1910.1000 Air Contaminants.(b) Table Z-2:(2) Acceptable ceiling concentrations. An employee’s exposure to amaterial listed in table Z-2 shall not exceed at any time during an8-hour shift the acceptable ceiling concentration limit given for thematerial in the table, except for a time period, and up to aconcentration not exceeding the maximum duration and concentrationallowed in the column under \”acceptable maximum peak above theacceptable ceiling concentration for an 8-hour shift.\”TABLE Z-2Material \t8-hour time weighted average \tAcceptable ceilingconcentration \tAcceptable maximum peak above the acceptance ceilingconcentration for an 8-hour shiftHydrogen sulfide(Z37.2-1966)\t…………………………………………………………………. \t20 p.p.m. \t50 p.p.m…..10 minutes once only if no other measurable exposure occurs”