“Docket No. 85-0166 \u00a0SECRETARY OF LABOR, Complainant, v. POWER FUELS, INC., Respondent.OSHRC DOCKET NO. 85-0166DECISION Before:\u00a0 FOULKE, Chairman; MONTOYA andWISEMAN, Commissioners.BY THE COMMISSION:This case comes before the Commission on reviewfrom a petition filed by Power Fuels, Inc., objecting to the Decision and Order of formerCommission Administrative Law Judge Ramon Child.\u00a0 This case arose from an OSHAinvestigation triggered by the death of a Power Fuels employee on an oil drilling site inNorth Dakota.\u00a0 The judge held that Power Fuels had committed serious violations ofthe Occupational Safety and Health Administration’s (OSHA’s) general respirator standardat 29 C.F.R. ? 1910.134(a)(2)[[1]] and of the standard setting a ceiling exposure limitfor hydrogen sulfide (H2S) gas at 29 C.F.R. ? 1910.1000(b)(2).[[2]]\u00a0 Weaffirm a combined serious violation of these two standards, and we assess a penalty of$1000, as proposed by the Secretary.Based on our review of the record, we concludethat the evidence overwhelmingly confirms what Power Fuels reported to OSHA before thecitations were issued: namely, that its employee was fatally overcome by exposure toexcessive levels of H2S gas.\u00a0 We further conclude that Power Fuels shouldhave been aware that H2S gas was a known risk on the oil drilling site and thatits employee should have used a respirator while working there.[[3]]I.\u00a0 Whether Power Fuels’ employee wasexposed to H2S gas in excess of the \”maximum peak concentration\”permitted by ?1910.1000(b)(2)The first major issue presented in this case iswhether the judge erred in finding that the deceased employee was exposed to levels of H2Sgas that were greater than 50 p.p.m.\u00a0 Power Fuels presents numerous challenges thatare related to its overriding argument that the finding is in error.\u00a0 We conclude,however, that none of these arguments are meritorious and that the judge’s finding isfully supported by the record evidence.The facts are as follows.\u00a0 David Nelson,the employee whose death led to the OSHA investigation, was a truck driver based at PowerFuels’ District Office in Watford City (McKenzie County), North Dakota.\u00a0 He drove onthe night shift.\u00a0 Nelson, a new employee with less than two months on the job,arrived alone at a tank battery at the Gilbertson Lease in McKenzie County, as assigned,at about 11 p.m. on August 30, 1984.\u00a0 Nelson was to drain the contents of a saltwater storage tank into the truck’s container and take the salt water to a waste site fordisposal.[[4]]\u00a0 The evidence indicates that at the time of the accident, Nelson wasnot wearing a respirator; nor was one provided for his use.Nelson’s body was discovered on top of the tankat about 8 a.m. the next morning by Power Fuels employee Walter Runion. McKenzie CountySheriff Paul Larsen, who was called to the scene that morning, testified that Runion toldhim that the body had not been moved from where he had found it.\u00a0 Nelson’s head wasabout 12 inches from the thief hatch cover, which was closed. (The thief hatch is theopening through which the fluids are gauged and removed.)\u00a0 Sheriff Larsen furthertestified that a gauge lay next to Nelson and there was a strong odor, similar to thesmell of rotten eggs, the odor that is customarily associated with H2S gas.As required by law, Power Fuels reported the fatality to OSHA.\u00a0 The report statedthat the employee \”was fatally overcome by hydrogen sulfide gas…\” On the sameday that Nelson’s body was found, an autopsy was performed on it by a physician retainedby McKenzie County Coroner Gerald M. Moredock, M.D.\u00a0 In his autopsy report, theretained physician set forth his diagnoses of four significant conditions, includingsevere lung congestion.[[5]]\u00a0 In the coroner’s report, Dr. Moredock stated that the\”[a]utopsy showed severe lung congestion that would be consistent with H2Sgas suffocation.\u00a0 No other cause or reason could be found for his death.\”According to \”Recommended Practices forConducting Oil and Gas Production Operations Involving Hydrogen Sulfide\” (1981), apublication of the American Petroleum Institute that was received into evidence, H2Sdoes not cause immediate, serious effects until present in levels exceeding 50 p.p.m., themaximum peak concentration cited in ? 1910.1000 (b) (2).\u00a0 Exposure of 100 p.p.m. ormore is associated with increasing odor, as well as eye and throat irritation.\u00a0 H2Sgas does not cause unconsciousness or death until concentrations reach approximately 700p.p.m.\u00a0 Testimony to the same effect was given by OSHA Area Director David DiTomasso,an industrial hygienist who has a master’s degree in environmental health.\u00a0 Thisevidence was not contradicted.Readings taken by David Tuhy, Power Fuels’safety representative, on the two days following the fatality, showed extremely highlevels of H2S gas in the tank.\u00a0 Tuhy twice tested the air inside the hatchof the tank on the afternoon of August 31. Both times, his instrument, a Bendix Gas Techhand-held detector, registered 1600 p.p.m. of H2S gas (the maximum reading ofwhich the device was capable).The next day, Tuhy made two readingsapproximately one foot above the hatch cover with the thief hatch open.\u00a0 According toTuhy’s recollection, one of those readings was taken on the downwind side and registered100 p.p.m.\u00a0 The other reading was taken on the upwind side and registered 55 to 60p.p.m.\u00a0 That same day, Tuhy also took two other samples:\u00a0 one by the hatch withthe cover closed, and one at the downwind side of the tank at ground level.\u00a0 No H2Sgas registered in either of those two tests.At the hearing, Dr. Moredock testified thatNelson could have died of causes unrelated to H2S, but that normally the otherconditions noted on the death certificate would not cause the severe lung congestion thathe believed was the immediate cause of death.\u00a0 He testified that heavy concentrationsof H2S gas could cause such severe lung congestion.\u00a0 Dr. Moredock had beena practicing physician for eight years and coroner of McKenzie County for about fiveyears.Power Fuels raises numerous challenges to theSecretary’s evidence on this factual issue, that is, the level of H2S gas atthe time of Nelson’s death.\u00a0 For example, Power Fuels argues that Dr. Moredock’sconclusions as to the cause of death were insufficient because he did not perform theautopsy.\u00a0 As mentioned above, the conclusions made by Dr. Moredock were based on hisreview of the autopsy performed by a physician that he had retained.\u00a0 Power Fuels hasnot shown that such a procedure was improper or unreliable.\u00a0 Also, Power Fuels relieson the fact that the laboratory test ordered by Dr. Moredock to determine the presence ofH2S gas in Nelson’s system did not reveal any.\u00a0 However, Dr. Moredocktestified that he was told by the laboratory’s chemist that the laboratory wasinexperienced in H2S gas analysis and that it was unable to get its test towork.\u00a0 We therefore conclude that the laboratory test is not probative in decidingthe H2S exposure issue.Power Fuels questions Dr. Moredock’scredibility, noting his testimony that, to the best of his recollection, he filed arevised death certificate stating that \”the cause of [Nelson’s] death is respiratoryasphyxiation with the most likely cause [being] H2S gas exposure.\”\u00a0 Power Fuels relies on the testimony of one of its employees that the original deathcertificate, prepared by Dr. Moredock on September 1, 1984, stated that the immediatecause of death was \”unknown\” and that its cause was \”PendingInvestigation\” and was due to or was a consequence of \”Extensive pulmonarygranulomatous.\”\u00a0 This witness further testified that, on the day after Dr.Moredock’s testimony in this case, the original death certificate and not the reviseddeath certificate was still on file at the McKenzie County Courthouse.\u00a0 So far as therecord shows, however, failure to file the revised death certificate was merely aninadvertent error.\u00a0 Power Fuels does not suggest any alternative explanation.\u00a0 We find no basis to disbelieve the testimony of Dr. Moredock.In addition, Power Fuels points to testimonythat some cause of death other than H2S suffocation was possible.\u00a0 Thattestimony was given by Dr. Moredock, and by OSHA Area Director and Industrial HygienistDiTomasso.\u00a0 However, both of these witnesses testified that H2Ssuffocation was the most likely cause of death, and the only cause suggested by the knowndata.\u00a0 The standard of proof on this issue is the preponderance of the evidence.\u00a0 E.g., R.D. Anderson Construction Co., 12 BNA OSHC 1665, 1666, 1986-87CCH OSHD ? 27,500, p. 35,638 (No. 81-1469, 1986).\u00a0 Here, we find that apreponderance of the evidence establishes that Nelson’s death was due to exposure to H2Sgas.Power Fuels argues that the measurements Tuhymade the day after Nelson died do not tend to prove the levels of H2S gas towhich he was exposed.\u00a0 We disagree.\u00a0 Those levels are consistent with the H2Slevels found in the gas stream of a well on the Gilbertson Lease in 1981.\u00a0 The 1981tests may be compared directly with Tuhy’s tests, even though the 1981 tests were of the\”gas stream\” (measured at the wellhead), whereas Tuhy’s tests were of theheadspace above the saltwater in the waste tank.\u00a0 Gas and salt water are separateproducts, but they reach the wellhead together in the gas stream from underground.The 1981 tests showed 39,300 p.p.m. of H2Sin the gas stream.\u00a0 DiTomasso testified that he would expect that level of H2Sin the gas stream to translate into about 1900 p.p.m. of H2S gas in theheadspace of a salt water tank.\u00a0 His estimate was based on his measurements in aprevious case.\u00a0 Douglas Lipetsky, an environmental engineer for the North DakotaDepartment of Health, testified that he would expect the H2S concentration inthe gas stream at the time of Nelson’s death to have been at least as high as in 1981.\u00a0 That conclusion was based on his experience with other producing wells.\u00a0 Thus,the evidence indicates that the H2S gas levels in 1981 were similar to thosethat Tuhy found on August 31, 1984 (at least 1600 p.p.m. in the headspace of the saltwater tank).Of course, as Power Fuels notes, H2Sgas levels can rise or fall quickly.\u00a0 DiTomasso testified that H2S gaslevels can rise suddenly when the tank’s contents are disturbed, by pumping, for example.\u00a0 The evidence indicates that Nelson had pumped fluids out of the tank before hedied.\u00a0 Thus, Nelson was engaged in precisely the kind of activity calculated to raiseH2S gas levels suddenly to high levels, such as those found in 1981 and on theday after the accident.\u00a0 Clearly, the 1981 tests corroborate what is establishedindependently by the other evidence:\u00a0 that Nelson was exposed to an excessive levelof H2S gas.Power Fuels further argues that it had no noticethat it was being charged with exceeding the \”maximum peak\” limitation.\u00a0 However, the citation and complaint expressly charged that violation, and theSecretary reaffirmed the allegation in discovery. Clearly, there was no lack of notice toPower Fuels of this charge.\u00a0 The evidence convincingly demonstrates that Nelson wasexposed to levels of H2S gas exceeding the maximum peak concentration allowedunder ? 1910.1000(b)(2)II. Whether Power Fuels reasonably could haveknown of the H2S gas hazardsWe agree with the judge that Power Fuels\”had every reason to know\” that the waste salt water at the Gilbertson Leasecontained H2S.\u00a0 Furthermore, we reject Power Fuels’ arguments that itcould not have known of the hazard created by H2S gas.\u00a0 First, KellyGebhardt, Power Fuels’ District Manager for Watford City, and Nelson’s supervisor,testified that in a \”large majority\” of producing wells from which his districthauls, \”there would be some type of [H2S] smell from the wells . . . .\”Second, Power Fuels also knew that H2Slevels exceeded permissible levels at certain sites.\u00a0 The results of tests at theGilbertson Lease in 1981, as mentioned above, showing high levels of H2Spresent there, were on file with the North Dakota Department of Health.\u00a0 Those testshad been conducted by the producer at the Gilbertson Lease, Energetics, Inc.\u00a0 Furthermore, Power Fuels’ safety representative, Tuhy, testified that it had beeninformed of high H2S concentrations by the producers at the Mullen and RognesLeases (in the Watford City district), where an employee had complained of H2Sproblems.\u00a0 Power Fuels required SCBA (self-contained breathing apparatus) respiratorsat those leases.Third, OSHA had issued a citation to Power Fuelspreviously for violation of ? 1910.134(a)(2) and other respirator requirements. Thecitation related to drivers who were exposed to H2S gas while gauging tanks inthe Watford City area.\u00a0 In a letter accompanying the previous citation, the OSHA areadirector had stated that \”[d]rivers untrained in respirator use and the dangers of H2Sare hauling salt water that has been pumped from wells containing H2S.\u00a0 H2Sis dissolved in this water and will be released from it into the air . . . .Furthermore, the H2S hazards in thearea had been the subject of a prior Commission decision, Bomac Drilling Div., TRGDrilling Corp., 9 BNA OSHC 1681, 1683-85, 1981 CCH OSHD ? 25,363, pp.31,540-41 (No. 76-450, 1981).\u00a0 That decision discussed the sporadic H2Shazards throughout the Williston Basin, which includes the entire area at issue here.\u00a0 Bomac noted that H2S is most likely to be encountered in fluidstaken from the substrata in the Madison Zone.\u00a0 The fluids at the Gilbertson Leasewere taken from these same substrata.Thus, the evidence shows overwhelmingly thatPower Fuels was well aware of the potential for exposure to excessive H2S gasin the locale.\u00a0 We also note that no objection has been raised to the evidence thatTuhy had attended OSHA seminars where the H2S risks in the area, and the needfor respirators, were thoroughly explained.To rebut this evidence of foreseeability, PowerFuels argues that the judge failed to consider the evidence that no employee hadcomplained of H2S problems at the Gilbertson Lease.\u00a0 However, its ownsafety materials emphasize that H2S is difficult to detect and evaluate, that atechnical instrument is needed, and that the sense of smell is inadequate because H2Sdeadens that sense at about 200 p.p.m.[[6]]\u00a0 Despite this known effect, Power Fuelsdid not provide H2S detection devices to its employees.\u00a0 Also, asmentioned above, high levels of H2S gas may arise suddenly, without warning, ina tank when the fluids are disturbed, as they apparently were when the tank in questionwas being drained by Nelson.Power Fuels argues that it was entitled to relyon an industry custom and practice that allegedly imposes an obligation on oil and gasproducers to notify the transportation firms if H2S hazards are present.\u00a0 The Fifth Circuit rejected a similar argument in Brock v. City WellService Co., 795 F.2d 507, 512 (5th Cir. 1986) .\u00a0 The court held that an oil wellservice company may not shift its responsibility for its employees’ protection from H2Sgas to well owners or operators, based on industry custom and practice.Power Fuels’ safety representative knew thatthere may have been H2S on oil and gas sites even though Power Fuels had notbeen notified about its presence.\u00a0 In addition, Gebhardt acknowledged that \”veryfew\” oil and gas producers have notified him of H2S concentrations, eventhough H2S can be smelled at a large majority of wellsites in the area.\u00a0 We cannot excuse Power Fuels’ failure to protect its employee where, as here, itknew that H2S hazards existed in the area and that producers might fail toreport those hazards to it.In addition, Power Fuels failed to establishthat the alleged custom or practice regarding notice of high H2S concentrationsexisted, or that Power Fuels reasonably relied upon it.\u00a0 Its citations to thetranscript in this regard do not support its position.\u00a0 The only substantialtestimony in the record on this issue goes contrary to Power Fuels’ position.\u00a0 Consulting geologist and drilling foreman Kane testified that it was customary forcompanies hauling water from his well drilling sites to a waste disposal site, todetermine for themselves the water’s H2S content.\u00a0 Kane further testifiedthat there were instances where Power Fuels had determined the H2S content ofsalt water it hauled to waste sites and drilling sites.Power Fuels asserts that salt water containing H2Sis \”hazardous waste\” under Federal and state regulations and that, therefore,the owner or operator of the tank battery was required to inform it if H2S waspresent in the salt water.\u00a0 However, no specific statutory or regulatory provision iscited by Power Fuels to support this assertion.\u00a0 To the contrary, water produced indrilling for gas and oil, like the salt water here, is excluded from the definition of\”hazardous waste\” under the Environmental Protection Agency (\”EPA\”)regulations.\u00a0 40 C.F.R. ? 261.3(a)(1),.4(b)(5).\u00a0 Furthermore, the Department ofTransportation (\”DOT\”) motor carrier safety regulations that formed part ofPower Fuels’ safety program indicate that this employer had a duty to find out if it wascarrying any hazardous materials.\u00a0 49 C.F.R. ?? 397.1,.21.\u00a0 Under thoseregulations, Power Fuels could not have shifted to another company its responsibility todetermine whether it was transporting hazardous materials.III. Whether a violation of ? 1910.134(a)(2)was provenPower Fuels argues that ? 1910.134(a)(2) is abroadly-worded standard that may be enforced only under a \”reasonable person\”test. Under that test, the Secretary would have to prove that a reasonable person familiarwith the circumstances, including any facts peculiar to the industry, would recognize ahazard warranting the precautions urged by the Secretary.\u00a0 The precautions at issuehere are providing respirators on jobsites, such as the Gilbertson Lease, and requiringtheir use.Under Commission precedent, the use of thereasonable person test is not required as an aid in interpreting and applying the citedstandard.\u00a0 Snyder Well Servicing, Inc., 10 BNA OSHC 1371, 1375-76, 1982 CCHOSHD ? 25,943, p. 32,511 (No. 77-1334, 1982).\u00a0 In addition, the Fifth Circuit hasessentially rejected such a requirement.\u00a0 City Oil Well Service Co., supra,795 F.2d at 511. Moreover, even assuming arguendo that Power Fuels is correct inits assertion that use of this test is required, we conclude that the Secretary hasdemonstrated that a reasonable person in Power Fuels’ position would have required thatNelson use a respirator while working on the Gilbertson Lease.Power Fuels’ H2S safety bookletstated:\u00a0 \”When you are required to be present or work in an area where H2Sis a potential hazard, you must wear breathing protection.\”\u00a0 The company’sdistrict manager, Gebhardt, testified that he believed the only safe way to work around H2Sis to wear a respirator.\u00a0 Power Fuels’ safety rules required the use of SCBArespirators where H2S was known to be present.\u00a0 The testimony revealedthat Power Fuels actually had respirators in its Watford City office.\u00a0 Yet, thecompany failed to take steps to ensure that they were provided at its wellsites.\u00a0 Itis clear from this evidence that a reasonable person in Power Fuels’ position would haverecognized a hazard warranting (1) provision of an SCBA respirator at the well site on theGilbertson Lease, and (2) a requirement that the employee use the respirator.The Secretary has established that the H2Sgas constituted a significant risk of harm, making a respirator necessary to protect theemployee’s health.\u00a0 See Kastalon, Inc., 12 BNA OSHC 1928, 1937-38, 1986-87 CCHOSHD ? 27,643, p. 35,974 (No. 79-3561, 1986). An employee was exposed to the hazards, andPower Fuels and the requisite knowledge of the conditions.\u00a0 See, e.g., TrumidConstruction Co., 14 BNA OSHC 1784, 1788, 1990 CCH OSHD ? 29,078, p. 38,859 (No.86-1139, 1990.)[[7]]\u00a0 Thus, the Secretary has established a violation of both ??1910.134(a)(2) and .1000(b)(2).IV. Effect of discovery responsesPower Fuels asserts that the Commission mustignore much of the evidence introduced at the hearing because it goes beyond or isinconsistent with the Secretary’s responses to certain prehearing discovery requests byPower Fuels.\u00a0 This claim is without merit, for several reasons.\u00a0 First, PowerFuels did not object to the introduction of the evidence it now claims is precluded by theprehearing documents.\u00a0 Second, Power Fuels did not seek to have introduced intoevidence any of the alleged answers to interrogatories on which it now relies, and did noteven mention them at the hearing.\u00a0 Third, when properly read, none of the allegedadmissions would change the result in the case.\u00a0 In fact, Power Fuels’representations as to what admissions were made are incorrect in numerous instances.As to the first point, if the Secretaryattempted to introduce evidence at the hearing that was subject to preclusion by herdiscovery responses, the proper time for Power Fuels to object was when the evidence wasintroduced.\u00a0 By not objecting then, Power Fuels has failed to preserve its argumentfor use on review.\u00a0 Rule 103(a)(1) of the Federal Rules of Evidence(\”F.R.E.\”) provides that \”[e]rror may not be predicated upon a ruling whichadmits . . . evidence [unless] a timely objection or motion to strike appears of record,stating the specific ground of objection, if the specific ground was not apparent from thecontext\”).\u00a0 Former Commission Rule 72, which was in effect at the time of thehearing, incorporated F.R.E. Rule 103(a)(1) in Commission proceedings; \”Hearingsbefore the Commission insofar as practical shall be governed by the rules of evidenceapplicable in United States District Courts.\” Former 29 C.F.R. ? 2200.72.[[8]]As to the second point, answers tointerrogatories generally are not considered evidence unless they are introduced as suchat the hearing.\u00a0 E.g., Jones v. Diamond, 519 F.2d 1090, 1098 (5th Cir. 1975); MontgomeryWard & Co. v. Fotopoulos, 32 F.R.D. 333, 334 (D. Minn. 1963).\u00a0 Even whereanswers to interrogatories are introduced in evidence, they generally have no bindingeffect if they are contradicted by evidence at the hearing.\u00a0 E.g., Freed v. ErieLackawanna Ry. Co., 445 F.2d 619, 621 (6th Cir. 1971), cert. denied, 404U.S. 1017, 92 S.Ct. 678 (1972), and cases cited therein.\u00a0 See generally, 8 C.Wright & A. Miller, Federal Practice and Procedure, ?? 2180, 2181; 4A Moore’sFederal Practice, ? 33.29.Power Fuels does not explain its failure tointroduce the Secretary’s discovery responses into evidence.\u00a0 The alleged answers toPower Fuels’ interrogatories are not in the official case record, even though the companywas on notice that those answers might not have been filed with the Commission.[[9]]\u00a0 Power Fuels cites certain court cases for the proposition that discovery admissionsand interrogatory answers, like those allegedly made here, preclude the introduction ofadditional or contradictory evidence.\u00a0 None of those cases dealt with discoverymatters, however.Power Fuels further relies on an unreviewedjudge’s decision, which it says supports the result it urges.\u00a0 McWilliams ForgeCo., 8 BNA OSHC 1792, 1794, 1980 CCH OSHD ? 24,578 (No. 79-228, 1980).\u00a0 Unreviewed judges’ decisions do not constitute Commission precedent.\u00a0 E.g.,Leone Construction Co., 3 BNA OSHC 1979, 1981, 1975-76 CCH OSHD ? 20,387, p. 24,322(No. 4090, 1976).\u00a0 The cited case is inapplicable.\u00a0 In McWilliams Forge,the judge deemed matters admitted because the Secretary failed to timely respond torequests for admissions and did not explain that failure.As to the third point, none of the allegedadmissions would affect the result of the case, even if they were considered.\u00a0 Itbears noting that Power Fuel’s representations as to what admissions were made in thiscase are incorrect in a number of instances.\u00a0 For example, Power Fuels representsthat the Secretary’s discovery responses stated:\u00a0 (1) The Secretary did not knowwhich of the substances\u00a0 listed in ? 1910.1000, Table Z-2, includes H2Sgas, and (2) no notice has been given that any of these limitations apply to H2Sgas.\u00a0 However, Power Fuels’ requests for admissions to that effect were ambiguously deniedby the Secretary.\u00a0 Power Fuels also makes other incorrect representations ofpurported admissions [[10]].\u00a0 We note that the Commission’s rules requires thatcounsel make a reasonable inquiry in advance to determine that arguments made in briefsare well grounded in fact and warranted by a good faith legal argument.\u00a0 29 C.F.R. ?2200.32.[[11]]Respondent thus fails in its assertion that theSecretary’s prehearing responses preclude the Commission from deciding this case based onthe evidence presented at the hearing.V. Alleged duplication of chargePower Fuels argues that at most only oneviolation may be affirmed, because all of the items on review are based on the same hazardat the same place and time, and that hazard could have been abated by one step –provision of an SCBA respirator to Nelson on the Gilbertson Lease.\u00a0 The Secretarystates:The Secretary agrees that all three violationsaffirmed by the judge essentially concern one violative condition which should have beenavoided by one method of abatement — provision of appropriate respiratory equipment toDavid Nelson.\u00a0 Therefore, the Commission should affirm a serious violation of1910.134 (a)(2) and 1910.1000 (b) and assess a single penalty of $1000 for thatviolation, rather than the $1,500 penalty assessed by the judge.(Emphasis in original.)\u00a0 Based onthis statement, we conclude that the Secretary has abandoned the third item on review, thealleged violation of ? 1910.134 (b) (9), even though the judge affirmed that item.\u00a0 We see no compelling reason to question the Secretary’s judgement on this issue.\u00a0 The ? 1910.134(b)(9) item will therefore be vacated.\u00a0 See Cuyahoga ValleyRy. Co. v. United Transp. Union, 474 U.S. 3, 7, 106 S. Ct. 286, 288 (1985)(Secretary’s decision to withdraw a citation is not reviewable by the Commission). We willaffirm a single citation item — a combined violation of ?? 1910.134(a)(2) and1000(b)(2).VI. Classification and penaltyThe violation undeniably was serious under theAct.\u00a0 See 29 U.S.C. ? 666(k).\u00a0 We will impose the Secretary’s proposedpenalty, $1000, which was the maximum penalty for a serious violation.\u00a0 Regarding thepenalty factors, the extreme gravity of the known H2S hazards would warrant themaximum penalty, regardless of other factors.\u00a0 Furthermore, we note that Power Fuelspreviously had admitted violations of H2S respirator requirements at a nearbyoil well site; that it was a sizeable company, with eight district offices; and that itsgood faith is questionable, in light of its extensive knowledge of the hazards.[[12]]\u00a0 See 29 U.S.C. ? 666 (j)In conclusion, we affirm a combined seriousviolation of ??1910.134(a)(2) and .1000(b)(2), and assess the $1000 penalty requested bythe Secretary.\u00a0 The ? 1910.134 (b) (9) item is vacated.Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G.WisemanCommissionerDated: April 17, 1991SECRETARY 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 ORDERChild, Judge:Statement of the CaseThis matter is before the Occupational Safetyand Health Review Commission (the Commission) pursuant to section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et seq., (the Act).\u00a0 Complainant seeks affirmance of Citation No. 1, issued to respondent February 12,1985, charging five items of willful violation of section 5(a)(2) of the Act and ofproposed penalties totaling $21,000.00.\u00a0 In the event said violations are found notto be willful, complainant alleges in the alternative that they are serious within themeaning of the Act.The matter came on regularly for hearing atMinot, North Dakota, on August 20, 1985.\u00a0 Notice of the hearing was duly givenaffected employees.\u00a0 Except as employees may have been called as witnesses, there wasno appearance by or on their behalf. (Tr. 8, 9).The parties have submitted post hearing briefsin support of their positions.\u00a0 Respondent has admitted that it is a corporationengaged in commerce and that it is subject to the Act and the jurisdiction of thisCommission.\u00a0 (Answer) Various affirmative defenses have been raised by the respondentin its Answer and will be treated in the Discussion portion of this Decision.The Issues raised by the citation and theComplaint to be here determined are:1.\u00a0 Was the respondent in violation of thestandard at 29 C.F.R. 1910.134(a)(2)?[[1\/]2A.\u00a0 Was the respondent in violation of thestandard at 29 C.F.R. 1910.134(b)(3)? [[2A\/]]2B.\u00a0 Was the respondent in violation of thestandard at 29 C.F.R. 1910.134(b)(8)? [[2B\/]]2C.\u00a0 Was the respondent in violation of thestandard at 29 C.F.R. 1910.134(b)(9)? [[2C\/]]3.\u00a0 Was the respondent in violation of thestandard at 29 C.F.R. 1910.1000 (b)(2)?[[3\/]]4.\u00a0 If the respondent was in violation ofthe aforesaid standards, or any of them, was said violation willful or failing that,serious?5.\u00a0 What, if any, penalty would beappropriate?Statement of FactRespondent is engaged in the business oftransporting various commodities, including crude oil, water and other liquids in bulk, asa common carrier under a certificate granted by the North Dakota Public ServiceCommission.\u00a0 (Tr. 900) Its business is operated from seven district offices, six inNorth Dakota and one in Montana.\u00a0 (Tr. 577)\u00a0 An inspection of respondent wasinitiated by the Occupational Safety and Health Administration (OSHA) to investigate afatality which occurred at a tank battery located approximately four miles north of Keene,North Dakota. (Tr. 207) Respondent’s employee, David Nelson, died in thesaid fatality which occurred on August 30, 1984, at what is referred to\u00a0 herein asthe Gilbertson Tank Battery site.\u00a0 (RFA 1 and 2(a))[[ 4\/]]\u00a0 He was employed byrespondent as a truck driver.\u00a0 (RFA 5) The said site was under the control andcustody of Energetics, Inc., a company which is not a party to this proceeding.\u00a0 (RFA3, Tr. 217-218) There were three tanks located at the said site; two steel oil tanks andone fiberglass salt water storage tank which was approximately 15 feet high.\u00a0 (RFA2(b); Exhibits C-4, C-5, C-11, C-12, C-13).On August 30, 1984, respondent had assignedNelson to fill an order received from Energetics, Inc. to transport salt water from theGilbertson site to a waste disposal location for disposal.\u00a0 Nelson was working thenight shift on said date and the said assignment was given to him sometime after hereported for work at 6:30 p.m. (RFA 8(a), 8(b); Tr. 873)\u00a0 On the morning of August31, 1984, Nelson’s body was discovered by respondent on top of the salt water storage tankat the said site.\u00a0 (Exhibits C-1, C-2, C-6) An autopsy performed on that date listedthe final diagnoses as:\”I.\u00a0 Bruise, recent, rightanterolateral chest.II.\u00a0 Congestion, lungs, severe.III. Granulomatous inflammation, lungs, lymph nodes and liver, etiology undetermined.IV. Kyphoscoliosis, severe.\”(RFA 9(a); Exhibit R-7There were no known witnesses to Nelson’s death,nor was any person other than Nelson known to be present at the said site on the night ofAugust 30, 1984.\u00a0 The truck which Nelson had been assigned to drive was parked at thesaid site at the time Nelson’s body was discovered. Prior to his death, he had gone to thetop of the tank, measured (gauged) the amount of water therein by lowering a measuringdevice to the bottom of the tank from a hatch opening at the top, entered the measurementupon a water invoice, and filled the truck with water from the tank.\u00a0 (RFA 9(b),9(c); Tr. 704-705, 879-881)\u00a0 A tachograph device on Nelson’s truck showed that he hadstopped the truck at the site at around 11:00 to 11:10 p.m. on August 30. (Tr. 41,862-863)\u00a0 The time of his death was placed at between 11:00 p.m. and midnight on thatday by McKenzie County Sheriff Paul Larson, the local government official who investigatedthe death.\u00a0 (Tr. 42-43)\u00a0 Nelson’s death certificate completed by the coronerlists the \”immediate cause\” of death as \”unknown.\”\u00a0 It furtherstates that the \”underlying\” cause of death was \”extensive pulmonarygranolamatous.\”\u00a0 (Tr. 111-112; Exhibits C-9 and R-28) The coroner in his undated\”Report\” concluded that death occurred about 7:00 a.m. on August 31, 1984. Hethere noted that the decedent was found \”. . . with his head near the tankopening\”, whereas the evidence was that the cover of the \”thief hatch\” nearMr. Nelson’s head was closed.\u00a0 The \”Coroner’s Report\” stated:\”Autopsy showed severe lung congestion thatwould be consistent with H2S gas suffocation.\u00a0 No other cause or reasoncould be found for his death.\”(Exhibits C-1, C-2, C-6, C-8; Tr. 33, 34, 35)Mr. Nelson was not wearing respiratoryprotection and no respiratory protection equipment was in the truck he had beendriving.(Tr. 41)\u00a0 There was no permanent air line and no warning sign concerning thepresence of Hydrogen Sulphide gas (H2S) on the site, nor was there a windsockpresent. (Tr. 40, 42)David Tuhy, safety representative forrespondent, using a Bendix Gas Tech detector which measured only to a maximum of 1600parts per million (ppm), determined that the detector measured 1600 ppm of H2Sin the airspace at the top of the water tank in question on August 31, 1984.\u00a0 (Tr.651-652)\u00a0 Measurements taken by Mr. Tuhy all the site on September 1, 1984, disclosedconcentrations of H2S at a point one foot above the open thief hatch on theupwind side to be 55-60 ppm and on the downwind side to be 100 ppm.\u00a0 No H2Swas found to be present at ground level nor at the top of the tank with the \”thiefhatch\” cover closed. (Tr. 653-656 )Mr. Nelson had been employed by respondent sinceJuly 11, 1984.\u00a0 (Tr. 835)\u00a0 At the time he was hired he was provided a copy ofthe respondent’s safety program, Exhibit C-23, and had on at least one occasion drivenwith a driver-trainer. (Tr. 849; Exhibit C-22)Discussion To prove a violation of section 5(a)(2) of theAct the complainant must prove by a preponderance of the evidence an employer’snoncompliance with an applicable standard and employee exposure to the hazard created bythe violative condition.\u00a0 Otis Elevator Co., 78 OSAHRC 88\/ E5, 6 BNAOSHC 2048, 1978 CCH OSHD ? 23,135 (No. 16057, 1978).\u00a0 In addition to the foregoing,section 17(k) of the Act has been interpreted by the Commission as placing on thecomplainant the burden of proving that the employer knew, or in the exercise of reasonablediligence, could have known of the presence of the violative condition.\u00a0 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 standardat 29 C.F.R. 1910.134(a)(2)?[[5\/]]Although the death of an employee of therespondent on the job on August 30, 1984, gave rise to the inspection out of which thecitation herein issued, the cause of that death is not here our concern.\u00a0 Althoughthe circumstances of an accident may provide relevant evidence, our inquiry is notnecessarily to find the cause of death or determine whether a violation caused it. See Ulysses Irrigation Pipe Company, OSAHRC Docket No. 78-799, 11 BNA OSHC 1273(1983); Kansas City Power & Light Co., 82 OSAHRC 13\/A2, 10 BNA OSHC1417,1422, 1982 CCH OSHD ? 25,957 p. 32,539 (No. 76-5255, 1982); Boeing Co., 77OSAHRC 188\/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD ? 22,266 (No. 12879, 1977); ConcreteConstruction Co., 76 OSAHRC 47\/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 ofMr. Nelson on August 30, 1984, provide evidence that an employee of the respondent wasexposed to the effects of H2S 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 now before us was determined by the Commission in Snyder WellServicing, Inc., OSAHRC Docket No. 77-1334 (1982), 10 BNA OSHC 1371, 1375-6, 1982 CCHOSHD ? 25,943 p. 32511. There as here the respondent urged the words in the standard\”. . . . when such equipment is necessary to protect the employee,\” to beinterpreted to be where the Secretary shows exposure to concentrations of air contaminantsabove the threshold limit value specified for the substance in question or to exceed thetime allowance permitted up to certain levels.\u00a0 The Commission expressly rejectedsuch interpretations saying that to adopt such arguments \” . . . would mean that nomatter how great the likelihood of an emergency, an employer is not required to take evenelementary precautions until it is too late.\u00a0 That would be contrary to the purposeof section 1910.134 and to the preventive purpose of the Act.\”Because of the widely recognized presence of H2Sthroughout the Williston Basin (Tr. 421, 432-433) and two deaths resulting from exposurethereto in late 1983 and early 1984, OSHA sponsored two H2S hazard recognitionseminars to acquaint and remind those working in the oil and gas producing industry in themonth of March 1984. (Tr. 716-718)\u00a0 Respondent’s safety representative attended eachof these seminars where the standards were discussed and the need to provide employeesengaged in the function of gauging tanks with self contained breathing apparatus orsupplied air respirators was explained to be mandatory unless the employer had ruled outthe presence of H2S in excessive amounts at the specific location by conductingadequate prior monitoring. (Tr. 719, 721, 722, 724, 725, 740)Evidence disclosed that as of December 1, 1981,tests showed that production of this well measured at the wellhead contained 3.93% H2Sby volume.\u00a0 (Exhibit C-21; Tr. 533,537)\u00a0 It is reasonable to assume that iffurther gas analysis were performed on August 30, 1984, at this wellhead the results wouldshow H2S to again be present at least 3.93% by volume. (Tr. 542)It is to be expected that 3.93% H2Sby volume measured at the wellhead would produce H2S concentrations in theairspace above the saltwater in a tank battery at that site in excess of 1600 ppm. (Tr.762, 763)Tests conducted at the saltwater tank byrespondent’s safety representative on the afternoon of August 31, 1984, disclosed H2Sin the airspace above the water to be at least 1600 ppm. (Tr. 649-652)\u00a0 It may fairlybe inferred, therefore, that at the time Mr. NeIson opened the cover of the thief hatch atthe top of this saltwater tank at about 11:00 p.m. on August 30, 1984, he was in theproximity of air contaminated with a concentration of H2S in the neighborhoodof 1600 ppm.Tests conducted by respondent’s safetyrepresentative at the saltwater tank in question on September 1, 1984, disclosed:1.\u00a0 55-60 ppm H2S measured onefoot above the upwind side of the hatch opening — immediately after opening the hatchcover.2.\u00a0 100 ppm H2S measured onefoot above the downwind side of the hatch opening–immediately after opening the hatchcover. concentration of H2S measured at the hatch with the3.\u00a0 No concentration of H2Smeasured at the hatch with the cover closed.4.\u00a0 No concentration of H2Smeasured at ground level.(Tr. 653-656)It may fairly be inferred from the foregoingthat at the time Mr. Nelson gauged the contents of this saltwater tank at about 11:00 p.m.on August 30, 1984, he was exposed to air contaminated with H2S inconcentrations in excess of 50 ppm.Respondent’s noncompliance with an applicablestandard and employee exposure to the hazard created by the violative condition havingthus been established, we now consider whether the complainant here met the burden ofproving that the respondent knew, or in the exercise of reasonable diligence, could haveknown of the presence of the violative condition.Respondent’s safety representative was informedof the two deaths which occurred in the Williston Basin late in 1983 and early in 1984from exposure to H2S.\u00a0 Respondent’s safety representative was informed ofOSHA’s claim that any gauging performed at tank batteries in the Williston Basin must beaccomplished while wearing appropriate respiratory equipment by reason of the risk ofexposure to excessive levels of H2S.\u00a0 Respondent’s safety representativewas informed as to the hazards attendant upon exposure to various levels of H2Sin the workplace.\u00a0 H2S 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 claimsto have been uniformed that its employees sent out to gauge and haul saltwater from tankbatteries could be exposed to H2S in dangerous levels.\u00a0 Of 100 tankbatteries serviced in the Watford City area only two of the producers ever advisedrespondent that H2S was a hazard at their specific site.\u00a0 Those twoproducers engaged the respondent to haul crude oil only.\u00a0 Of some 45 well sites fromwhich respondent hauled saltwater in this area, none of the producers advised respondentof the presence of H2S on their sites in hazardous concentrations. (Tr. 843)Generally, well sites with tank batteries wereequipped with windsocks to show the wind direction and if H2S was present inhazardous concentration, a sign was posted to that effect by the lease owner or producerand an air supply line was present.\u00a0 No windsock, warning sign or air supply line waspresent at this site.Respondent relied upon the customer requestingthe haulage to inform of the presence of H2S if it constituted a hazard.\u00a0 (Tr. 920, 921)\u00a0 At least one drilling foreman customarily did so.\u00a0 (Tr.447,449)\u00a0 When the dispatcher was informed of the presence of H2S at thesite by the customer, he would in turn inform the driver who was expected to avail himselfof appropriate respiratory equipment maintained at the district office for that purposeand from which office the truck and driver were dispatched.North Dakota State Law and Federal Statutes andRegulations found at Title 49 CFR urged upon us by respondent do not appear to justifyrespondent’s reliance upon the leaseholder or producer providing information as to thepotential hazard or the risks attendant thereon to respondent’s employees.\u00a0 (ExhibitR-27; Respondent’s Brief page 19)Here respondent was not shipping H2S,but was rather hauling waste saltwater which the respondent had every reason to know wouldcontain H2S in some albeit unknown percentage.\u00a0 In the exercise ofreasonable diligence respondent could have known that H2S would enter thebreathing environment and could expose its employee to harm.\u00a0 That diligence wouldhave been exercised merely by heeding the information, advice and warnings givenrespondent’s responsible personnel at training seminars in ample time to have anticipatedand prepared for the violative condition here found and to which respondent’s employee wasexposed.Self-contained breathing apparatus in thedispatcher’s office could provide no respiratory protection to a driver confronted with H2Sat a well site.\u00a0 (Tr. 667)\u00a0 Respondent thus failed to comply with the standard.Issue 2A:Was the respondent in violation of the standardat 29 CFR 1910.134(b)(3)?[[6\/]]In conducting its investigation hereincomplainant was confronted with an uncooperative employer.\u00a0 The investigating officerrecommended citing this violation based upon the fact although he requested the trainingrecords of the deceased employee, none were produced.\u00a0 The evidence of violation ofthis standard was not particularly enhanced by the investigating officer’s testimony that\”individuals\” he spoke with indicated Mr. Nelson had not been trained. (Tr. 298)Without detailing the extent of training given,respondent offered some testimony to the effect that Mr. Nelson had received some trainingeven though 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 afinding in relation to its allegation of violation of this standard and failed to meetthat burden.Issue 2B:Was the respondent in violation of the standardat 29 CFR 1910.134(b)(8)?[[7\/]]Complainant based its claim of violation setforth in item 1 of the citation that unless monitoring had been done to rule out thepresence of H2S in excessive concentrations, gauging must be accomplished whilewearing appropriate respirators.Complainant’s witness who tests tank batteriesfor H2S concentrations did not customarily wear respirators while testing atthe top of tanks.\u00a0 (Tr. 161, 163,167,172)\u00a0 In view of the evidence presented bycomplainant that monitoring at the tank batteries would be difficult and unreliable, itcannot be here said that it would be appropriate.\u00a0 (Tr. 799)\u00a0 Particularly isthis so when under the complainant’s interpretation of 29 CFR 1910.134(a)(2) appropriaterespirators can be worn in lieu of monitoring.Complainant failed to meet its burden of provinga violation of item 2B the Citation issued herein.Issue 2C:Was the respondent in violation of the standardat 29 CFR 1910.134(b)(9)? [[8\/]]Notwithstanding knowledge that OSHA had warnedrespondent of the incipient hazards associated with H2S and the need to provideemployees with respiratory protection to be worn during gauging operations, respondentpersisted in pursuing its respiratory safety program of relying upon customers to adviseif hazardous levels of H2S might be present and then to so advise driversassigned to that site so that the driver might take respiratory equipment with him whendispatched.The evidence presented compels a finding thatrespondent did nothing by way of inspection and evaluation (regular or otherwise) todetermine the effectiveness of its program.\u00a0 (Tr. 646, 648, 673, 849, 865, 926, 927)Complainant has met its burden of proving aviolation of item 2C of the citation by a preponderance of the evidence.The failure to inspect or evaluate preventedrespondent from determining the need to provide respiratory equipment when or if needed,but did not directly result in probability of death or serious injury to respondent’semployees and was therefore an other-than-serious violation.Issue 3:Was the respondent in violation of the standardat 29 CFR 1910.1000(b)(2)?[[9\/]]As discussed under Issue 1, there was herepresented a preponderance of evidence to support a finding that an employee of respondentwas exposed to concentrations of H2S in excess of those permitted under TableZ-2 on the 30th of August 1984. Complainant met its burden of proof with respectto 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 thecomprehensive definition of \”Willful\” as it appears in the Act which definitionhas been offered by the Circuit Court of Appeals for the Tenth Circuit:The failure to comply with a safety standardunder the Occupational Safety and Health Act is willful if done knowingly and purposely byan employer, who having a free will or choice, either intentionally disregards thestandard or is plainly indifferent to its requirement.\u00a0 An omission or failure to actis willfully done if done voluntarily and intentionally.\u00a0 Kent Nowlin Constructionv. Occupational Safety and Health Review Commission and Secretary of Labor, 593F.2d 368 (10th Cir. 1979)Applying that definition the respondent could beconstrued to have acted willfully herein or to have willfully failed to act.\u00a0 However, we are reminded that an intentional act or an intentional failure to actis one in which there is an intellectual apprehension of the end plus the desire for theend result.In view of the apparently successful practice ofstanding upwind when opening a thief hatch cover (Tr. 867, 868) and the lack of evidencehere as to the extent to which respondent’s employees were so trained or not so trained,it is felt that the evidence does not support a finding that respondent’s conduct rose tothe level of willful.\u00a0 Respondent’s safety training program, enforcement thereof andplacing of responsibility for concerns of safety in its organization certainly are notmodels to be emulated.\u00a0 There would appear to be areas requiring attention andimprovement.\u00a0 In those items here found to be violations the respondent displayed toocasual an approach to its responsibilities and its employees could thereby be exposed tothe probability of suffering death or serious physical harm from conditions confrontingthem in their work environment.Item 5:What, if any, penalty would be appropriate?Giving due consideration to the factors providedby the Act for determining penalties and for the integrated relationship of the violationshere found, a total combined penalty in the sum of $1,500.00 is here found to beappropriate; said sum to be apportioned as in the Findings of Fact set forth.Respondent faults the complainant for whatrespondent views as lack of evidence as to reasonableness of abatement dates. However, theevidence is to the effect that compliance on the part of respondent does not require time.\u00a0 Respondent’s employees are entitled to immediate protection under the Act.\u00a0 Nodelay in abatement should here be countenanced and the abatement date of \”immediatelyupon receipt\” is found to be reasonable.Respondent also argues in its brief that \”. . . all citations in this case are statutorily invalid because they were not issuedwithin the time period prescribed in the Act.\”\u00a0 The time period relied upon byrespondent is not the six months statute of limitations but the \”reasonablepromptness\” requirement set forth in Section 9(a) of the Act.\u00a0 Such anaffirmative defense was not raised specifically in respondent’s Answer.\u00a0 SeeSecretary v. Hoffman Construction Co., 3 BNA OSHC 1064.More importantly, however, it is clear from therecord in this case that respondent was uncooperative in the investigation required by theAct.\u00a0 Respondent obstructed the investigation by refusing permission to speak withemployees and failing to supply requested records.\u00a0 Respondent refused access tocertain areas and refused to disclose the location of the site requiring investigation.Perhaps respondent was within its rights to thusperceive its needs to protect its rights, but the result was to present the complainantwith obstacles in the investigation and delay its exercise of discretion as to whether andwhat violations to cite.\u00a0 Having thus contributed to the delay in issuing thecitation and having shown no prejudice resulting to its interests as a result of that timedelay, respondent may not defeat the purposes of the Act.\u00a0 Under the circumstancesthe citation was issued with reasonable promptness. (Tr. 209-212, 216, 217, 251, 358, 359)The affirmative defenses raised in respondent’sAnswer filed herein are not supported by the law or evidence in the record and are withoutmeritNow having observed the demeanor of thewitnesses and having weighed the credibility thereof, there are here entered thefollowing:Findings of Fact1.\u00a0 The factual statements set forthhereinabove under Statement of Facts are not controverted and are incorporated herein byreference.2.\u00a0 Respirators were not provided by therespondent to its employee(s) when such equipment was necessary to protect the health ofsaid employee(s).3.\u00a0 Respondent’s employees are exposed tothe risk of overexposure to H2S when engaged in gauging fluid levels at tankbatteries generally throughout the Williston Basin of western North Dakota and easternMontana.4.\u00a0 Respondent knew or in the exercise ofreasonable diligence could have known of the presence of H2S and the risk ofoverexposure thereto of employees engaged in gauging fluid levels at tank batteriessituated in the Williston Basin area on August 30,1984.5.\u00a0 There was a substantial probabilitythat respondent’s employees would suffer death or serious physical harm as a result ofexposure to H2S should an overexposure occur unless respirators were providedat the point of exposure.6.\u00a0 An appropriate penalty to be awardedfor the violation of item 1 of the citation is $700.00.7.\u00a0 Respondent made no regular inspectionsor evaluations to determine the effectiveness of its respiratory protection program.8.\u00a0 It is appropriate that a penalty in thesum of $100.00 should be assessed for the violation of item 2C of the citation whichviolation was other-than-serious.9.\u00a0 An employee of respondent was exposedto concentrations of H2S in excess of those permitted under table Z-2 ofsubpart Z of 29 CFR 1910 on the 30th of August 1984.10.\u00a0 An appropriate penalty to be awardedfor the violation of item 3 of the citation is $700.00.11.\u00a0 It is reasonable that abatement of theviolations here found should be immediately accomplished.12.\u00a0 The citation herein was issued withreasonable promptness.Conclusions of Law1.\u00a0 Respondent is an employer engaged in abusiness affecting commerce within the meaning of the Act.2.\u00a0 Jurisdiction of the subject matter ofthis proceeding is conferred upon the Commission by section 10(c) of the Act and theCommission has jurisdiction of the parties hereto. 3.\u00a0 The standard at 29 CFR 1910.134(a)(2)applies to the work activity for which respondent was cited in item 1 of the citation,subject of this action.4.\u00a0 Respondent was in violation of thestandard at 29 CFR 1910.134(a)(2) and item 1 of Citation No. 1, issued to respondentFebruary 12, 1985, should be affirmed as a serious violation of the Act and a penalty of$700.00 should be assessed.5.\u00a0 The evidence fails to support a findingof violation of the standard at 29 CFR 1910.134(b)(3) and item 2A of the citation inquestion should be vacated.6.\u00a0 The evidence fails to support a findingof violation of the standard at 29 CFR 1910.134(b)(8) and item 2B of the citation inquestion should be vacated.7.\u00a0 The standard at 29 CFR 1910.134(b)(9)applies to the work activity for which respondent was cited in item 2C of the citation,subject of this action.8.\u00a0 Respondent was in violation of thestandard at 29 CFR 1910.134(b)(9) and item 2C of Citation No. 1, issued to respondentFebruary 12, 1985, should be affirmed as an other-than-serious violation of the Act.\u00a0 A penalty of $100.00 should be assessed.9.\u00a0 The standard at 29 CFR 1910.1000(b)(2)applies to the work activity for which respondent was cited in item 3 of the citation,subject of this action.10.\u00a0 Respondent was in violation of thestandard at 29 CFR 1910.1000(b)(2) and item 3 of Citation No. 1, issued to respondent.February 12, 1985, should be affirmed as aserious violation of the Act and a penalty of $700.00 should be assessed.Order1.\u00a0 Item 1 of Citation No. 1, issued torespondent February 12, 1985, is AFFIRMED as a serious violation of the Act and a penaltyof $700.00 is ASSESSED.2.\u00a0 Items 2A and 2B of said Citation No. 1are VACATED.3.\u00a0 Item 2C of said Citation No. 1 isAFFIRMED as an other-than-serious violation of the Act and a penalty of $100.00 isASSESSED.4.\u00a0 Item 3 of said Citation No. 1 isAFFIRMED as a serious violation of the Act and a penalty of $700.00 is ASSESSED.R. M. Child Judge, OSHRCDated: January 27, 1986FOOTNOTES:[[1]] The standard provides:? 1910.134 Respiratory Protection.(a) Permissible Practice.(2) Respirators shall be provided by theemployer when such equipment is necessary to protect the health of the employee. Theemployer shall provide the respirators which are applicable and suitable for the purposeintended. 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.[[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 not exceed at any timeduring an 8-hour shift the acceptable ceiling concentration limit given for the materialin the table, except for a time period, and up to a concentration not exceeding themaximum duration and concentration allowed in the column under \”acceptable maximumpeak above the acceptable ceiling concentration for an 8-hour shift.\”The \”acceptable maximum peak\” columnof Table Z-2 lists 50 p.p.m. for hydrogen sulfide. Thus, exposure may not exceed the 50p.p.m. ceiling at any time. The term \”p.p.m.\” is the same as \”p\/m\” asdefined in Table Z-1: the \”[p]arts of vapor or gas per million parts of contaminatedair by volume . . . . \” Thus, Power Fuels’ argument that H2S\”gas\” is not regulated by the standard is incorrect. See also, ANSI Z37.2-1966(source standard for H2S exposure limits).[[3]] Power Fuels argues that the citationshould be dismissed because:\u00a0 (1) it was not issued with reasonable promptness, and(2) the inspection was invalid under the Fourth Amendment.\u00a0 However, those specificissues were not raised in Power Fuels’ pleadings, and there is no indication that theywere tried by consent, express or implied.\u00a0 Therefore, we will not consider thesedefenses in these circumstances.\u00a0 ? Commission Rule 36(b)(1) (all affirmativedefenses, 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).\u00a0 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, 1986-87CCH OSHD ? 27,729, pp. 36,257-58 (No. 81-206, 1986) (no attorneys’ fees would be awardedwhere defense on which employer relied was stated so generally that other party would nothave been aware of weakness in its case).[[4]] Salt water is found in the geologicalsubstrata in that area.\u00a0 It is hauled from one wellsite to another and is used topush oil to the surface.\u00a0 The used salt water is disposed of when the H2Scontent is considered too high for further use.[[5]] The four conditions noted were:I.\u00a0\u00a0\u00a0 Bruise, recent, rightanterolateral chest. II.\u00a0\u00a0 Congestion, lungs, severe.III.\u00a0 Granulomatous inflammation, lungs, lymph nodes and liver, etiologyundetermined. IV.\u00a0 Kyphoscoliosis, severe.[[6]] The H2S booklet that was partof Power Fuels’ safety program makes these points clearly.\u00a0 For example, it states:\”You cannot rely on your nose to tell you how much H2S gas is present. WearYour Breathing Apparatus.\”\u00a0 ESSE International, Inc., \”H2S:The Killer!\”, p. 7.\u00a0 The booklet also notes that H2S causesunconsciousness quickly at about 700 p.p.m. As noted above, tests made by Power Fuels theday after Nelson’s death found H2S gas levels of at least 1600 p.p.m. in thetank.The booklet also makes it clear that todetermine whether H2S is present, a technical device should be used. Listedexamples of detecting devices are: lead acetate, ampoules or coated strips, electronicdetectors, air sampling gas detector tubes, and fixed systems.[[7]] Power Fuels argues that the requirement ofthe citation that it abate the hazards immediately is unreasonable.\u00a0 This assertionis untenable.\u00a0 Power Fuels had the necessary means of compliance –SCBA respirators– at the Watford City office even before the fatality.\u00a0 It also was on notice of therequirement that it maintain a respirator program because of a previous citation, amongother things.\u00a0 Where the contest is initiated in good faith, abatement requirementsunder the Act do 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 theF.R.E. in full.\u00a0 29 C.F.R. ? 2200.71.[[9]] For example, Power Fuels was on noticefrom the Secretary’s letter of June 10, 1985, that no signed answers were filed at thattime. (June 10, 1985, is the filing date for those answers relied on by Power Fuels.) Thejudge even noted at the hearing that the significance of the interrogatories had not beenbrought to his attention. Power Fuels’ claims that the judge disregarded discoveryresponses seems disingenuous in light of its failure to bring them up at the appropriatetime.[[10]] At various points Power Fuels argues thatknowledge has not been established because the Secretary’s discovery admissions andanswers to its interrogatories limited the issues solely to \”the facts andcircumstances surrounding the fatality of . . . David Nelson . . . on August 30,1984.\”\u00a0 However, its request for an admission to that effect was denied by theSecretary.\u00a0 Power Fuels further represents that the Secretary admitted in discoverythat she did not know the concentration of H2S gas at the Gilbertsonsite on or before August 30, 1984.\u00a0 However, Power Fuels’ request for admission wasinadequate to produce such an admission.\u00a0 The request stated, \”Complainant does nowknow what amount, level or concentration of H2S or hydrogen sulfide gas existedat the said site when David Nelson arrived there on August 30, 1984, or at any time priorthereto.\”\u00a0 (Emphasis added.)\u00a0 The Secretary’s agreement with that statementdoes not help Power Fuels.[[11]] The Commission’s rule is comparable tothe requirements of the Federal Rules of Civil Procedure.\u00a0 See, e.g.,Fed. R. Civ. P. 11.\u00a0 See also, former Commission Rule 30(c), former 29 C.F.R.? 2200.30(c) (similar requirement, in effect when this case began).\u00a0 We also notethat Commission Rule 104(a) states, \”All representatives appearing before theCommission and its judges shall comply with the letter and spirit of the Model Rules ofProfessional Conduct of the American Bar Association [ABA].\”\u00a0 The relevant ABAModel Rules prohibit attorneys from:\u00a0 (1) asserting or controverting issues on merelyfrivolous grounds; (2) failing to make reasonable efforts to expedite litigation; and (3)making false statements of material fact or law to the tribunal.\u00a0 ABA, Model Rules ofProfessional Conduct 3.1 to 3.3 (1983).[[12]] The modest penalty required in this casemay not be sufficient, in and of itself, to bring home to Power Fuels the importance ofabating the kind of H2S safety program violation involved here and in itsprevious citation.\u00a0 Thus, we note that its violation here arguably was willful, andwas one of many apparent failures in Power Fuels’ H2S safety program.As noted above (n. 6 supra andaccompanying text) , Power Fuels’ H2S safety booklet stated that respiratorsare needed when any H2S is present, and that H2S levels should bedetected with a scientific device, not the sense of smell. That booklet and certain otherevidence suggests that Power Fuels was fully aware that its safety precautions at the timeof the Nelson incident were inadequate.Power Fuels did not implement an appropriatesafety program for H2S, and there is no indication that its employees wereproperly trained to detect H2S.\u00a0 Its supervisors testified that theyrelied on their sense of smell to avoid H2S.\u00a0 In fact, Power Fuels’ H2Ssafety program was amorphous.\u00a0 It did not have a safety director with overallresponsibility for developing and implementing the company’s safety program.\u00a0 Tuhy,its safety representative, testified that he did not formulate the company’s safetypolicy, and was not sure who did.\u00a0 He testified that he was not its safety director,and he did not consider himself responsible for employee training. The crucial importanceof proper training is underscored by the fact that Nelson was a new employee, with lessthan two months on the job.Furthermore, Power Fuels did not have anemergency response program or other method of aiding an employee on a site such as theGilbertson Lease.\u00a0 Rescue plans are crucial because H2S gas normally isnot an immediate killer, even where an employee is overcome. See 29 C.F.R. ?1910.134 (e)(3)(iii).\u00a0 In addition, Power Fuels showed no evidence of having adisciplinary program for violations of its relevant safety rules.\u00a0 The deficienciesin its safety program were widespread and unexplained on this record.[[1\/]] The citation reads: 129 CFR 1910.134(a)(2):\u00a0 Respirators were not provided by the employer when suchequipment was necessary to protect the health of the employee(s):(a) On or about August 30, 1984, at theGilbertson Tank Battery site, located approximately 4 miles north of Keene, North Dakota,respiratory equipment was not provided for an employee gauging oil tanks where hydrogensulphide gas was present.(b) On or about August 31, 1984, at theGilbertson Tank Battery site, located approximately 4 miles north of Keene, North Dakota,respiratory equipment was not worn by an employee performing rescue operations in thepresence of hydrogen sulphide gas.[[2A\/]] The citation reads: 2A29 CFR 1910.134(b)(3):\u00a0 The users of respirators were not instructed and trained inthe proper use of respirators and their limitations:(a) On or about August 30, 1984, where anemployee was required to gauge tanks at the Gilbertson Tank Battery site, locatedapproximately 4 miles north of Keene, North Dakota, where excessive amounts of hydrogensulphide gas was present.[[2B\/]] The citation reads:2B 29 CFR 1910.134(b)(8):\u00a0 Appropriate surveillance of work area conditions and degreeof employee exposure or stress was not maintained:(a) On or about August 30, 1984, at theGilbertson Tank Battery site, located approximately 4 miles north of Keene, North Dakota,to determine employee exposure to hydrogen sulphide gas.[[2C\/]] The citation reads2C29 CFR 1910.134(b)(9):\u00a0 There were no regular inspections and evaluations todetermine the continued effectiveness of the respirator program:(a) On or about August 30, 1984, where anemployee was required to work at oil tank battery sites where hydrogen sulphide gas waspresent.[[3\/]] The citation reads:3 29 CFR 1910.1000(b)(2):\u00a0 Employee(s) were exposed to material(s) in excess of theacceptable maximum peak concentration(s) allowed in the column in Table Z-2 of subpart Zof 29 CFR part 1910 under \”Acceptable Maximum Peak Above the Acceptable CeilingConcentration for an 8-hour Shift\”:(a) On or about August 30, 1984, at theGilbertson Tank Battery site, located approximately 4 miles north of Keene, North Dakota,an employee was overexposed to hydrogen sulphide gas while gauging oil storage tanks.[[4\/]] The designation \”RFA\” refers toRequests for Admission of record in this action.[[5\/]] The standard reads:?1910.134 Respiratory Protection.(a) Permissible Practice.(2) Respirators shall be provided by theemployer when such equipment is necessary to protect the health of the employee.\u00a0 Theemployer shall provide the respirators which are applicable and suitable for the purposeintended . . . .[[6\/]] The standard reads:?1910.134 Respiratory Protection.(b) Requirements for a minimally acceptableprogram.3. The user shall be instructed and trained inthe proper use of respirators and their limitations.[[7\/]] The standard reads:? 1910.134 Respiratory Protection.(b) Requirements for a minimally acceptableprogram.(8) Appropriate surveillance of work areaconditions and degree of employee exposure or stress shall be maintained.[[8\/]] The standard reads:?1910.134 Respiratory Protection.(b) Requirements for a minimally acceptableprogram.(9) There shall be regular inspection andevaluation to determine the continued effectiveness of the program.[[9\/]] The standard and the table in pertinentpart read:?1910.1000 Air Contaminants.(b) Table Z-2:(2) Acceptable ceiling concentrations.\u00a0 Anemployee’s exposure to a material listed in table Z-2 shall not exceed at any time duringan 8-hour shift the acceptable ceiling concentration limit given for the material in thetable, except for a time period, and up to a concentration not exceeding the maximumduration and concentration allowed in the column under \”acceptable maximum peak abovethe acceptable ceiling concentration for an 8-hour shift.\”TABLE Z-2 Material 8-hour time weighted average Acceptable ceiling concentration Acceptable maximum peak above the acceptance ceiling concentration for an 8-hour shift Hydrogen sulfide(Z37.2-1966) …………………………………………………………………. 20 p.p.m. 50 p.p.m…..10 minutes once only if no other measurable exposure occurs “