Power Fuels, Inc.

Read the official release (oshrc.gov)

Plain-English summary

A Power Fuels truck driver was fatally overcome by hydrogen sulfide while working alone at an oil-field salt-water tank in North Dakota without a respirator. The Commission found that the evidence established exposure above the maximum peak concentration allowed by 29 C.F.R. § 1910.1000(b)(2). It also found that Power Fuels should have known of the hazard because hydrogen sulfide was a recognized regional risk, the company had received prior warnings and a prior respirator citation, and producers did not reliably report hazardous concentrations. The Commission affirmed one combined serious violation of the air-contaminant limit and the respirator requirement at 29 C.F.R. § 1910.134(a)(2). It assessed the Secretary's requested $1,000 penalty, reducing the ALJ's combined assessment of $1,500. The Commission vacated the separate item under 29 C.F.R. § 1910.134(b)(9) after the Secretary withdrew it.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.134(a)(2); 29 C.F.R. § 1910.1000(b)(2); 29 C.F.R. § 1910.134(b)(9)
• Outcome: Combined serious respirator and hydrogen-sulfide exposure violation affirmed with a $1,000 penalty; separate respirator-program inspection item vacated.
• Key point: An employer cannot shift responsibility for a known hydrogen-sulfide hazard to site operators when the employer knows warnings are unreliable and has its own duty to detect the hazard and provide respirators.

Full text (OSHRC public release)

Docket No. 85-0166

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 by Power Fuels, Inc., objecting to the Decision and Order of former
Commission Administrative Law Judge Ramon Child.  This case arose from an OSHA
investigation triggered by the death of a Power Fuels employee on an oil drilling site in
North Dakota.  The judge held that Power Fuels had committed serious violations of
the Occupational Safety and Health Administration's (OSHA's) general respirator standard
at 29 C.F.R. � 1910.134(a)(2)[[1]] and of the standard setting a ceiling exposure 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 these two standards, and we assess a penalty of
$1000, as proposed by the Secretary.

Based on our review of the record, we conclude
that the evidence overwhelmingly confirms what Power Fuels reported to OSHA before the
citations were issued: namely, that its employee was fatally overcome by exposure to
excessive levels of H 2 S gas.  We further conclude that Power Fuels should
have been aware that H 2 S gas was a known risk on the oil drilling site and that
its employee should have used a respirator while working there.[[3]]

I.  Whether Power Fuels' employee was
exposed to H 2 S gas in excess of the "maximum peak concentration"
permitted by �1910.1000(b)(2)

The first major issue presented in this case is
whether the judge erred in finding that the deceased employee was exposed to levels of H 2 S
gas that were greater than 50 p.p.m.  Power Fuels presents numerous challenges that
are related to its overriding argument that the finding is in error.  We conclude,
however, that none of these arguments are meritorious and that the judge's finding is
fully supported by the record evidence.

The facts are as follows.  David Nelson,
the employee whose death led to the OSHA investigation, was a truck driver based at Power
Fuels' District Office in Watford City (McKenzie County), North Dakota.  He drove on
the night shift.  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.  Nelson was to drain the contents of a salt
water storage tank into the truck's container and take the salt water to a waste site for
disposal.[[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 next morning by Power Fuels employee Walter Runion. McKenzie County
Sheriff Paul Larsen, who was called to the scene that morning, testified that Runion told
him that the body had not been moved from where he had found it.  Nelson's head was
about 12 inches from the thief hatch cover, which was closed. (The thief hatch is the
opening through which the fluids are gauged and removed.)  Sheriff Larsen further
testified that a gauge lay next to Nelson and there was a strong odor, similar to the
smell of rotten eggs, the odor that is customarily associated with H 2 S gas.

As required by law, Power Fuels reported the fatality to OSHA.  The report stated
that the employee "was fatally overcome by hydrogen sulfide gas..." On the same
day that Nelson's body was found, an autopsy was performed on it by a physician retained
by McKenzie County Coroner Gerald M. Moredock, M.D.  In his autopsy report, the
retained physician set forth his diagnoses of four significant conditions, including
severe lung congestion.[[5]]  In the coroner's report, Dr. Moredock stated that the
"[a]utopsy showed severe lung congestion that would be consistent with H 2 S
gas suffocation.  No other cause or reason could be found for his death."

According to "Recommended Practices for
Conducting Oil and Gas Production Operations Involving Hydrogen Sulfide" (1981), a
publication of the American Petroleum Institute that was received into evidence, H 2 S
does not cause immediate, serious effects until present in levels exceeding 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 increasing odor, as well as eye and throat irritation.  H 2 S
gas does not cause unconsciousness or death until concentrations reach approximately 700
p.p.m.  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.  This
evidence was not contradicted.

Readings taken by David Tuhy, Power Fuels'
safety representative, on the two days following the fatality, showed extremely high
levels of H 2 S gas in the tank.  Tuhy twice tested the air inside the hatch
of the tank on the afternoon of August 31. Both times, his instrument, a Bendix Gas Tech
hand-held detector, registered 1600 p.p.m. of H 2 S gas (the maximum reading of
which the device was capable).

The next day, Tuhy made two readings
approximately one foot above the hatch cover with the thief hatch open.  According to
Tuhy's recollection, one of those readings was taken on the downwind side and registered
100 p.p.m.  The other reading was taken on the upwind side and registered 55 to 60
p.p.m.  That same day, Tuhy also took two other samples:  one by the hatch with
the cover closed, and one at the downwind side of the tank at ground level.  No H 2 S
gas registered in either of those two tests.

At the hearing, Dr. Moredock testified that
Nelson could have died of causes unrelated to H 2 S, but that normally the other
conditions noted on the death certificate would not cause the severe lung congestion that
he believed was the immediate cause of death.  He testified that heavy concentrations
of H 2 S gas could cause such severe lung congestion.  Dr. Moredock had been
a practicing physician for eight years and coroner of McKenzie County for about five
years.

Power Fuels raises numerous challenges to the
Secretary's evidence on this factual issue, that is, the level of H 2 S gas at
the time of Nelson's death.  For example, Power Fuels argues that Dr. Moredock's
conclusions as to the cause of death were insufficient because he did not perform the
autopsy.  As mentioned above, the conclusions made by Dr. Moredock were based on his
review of the autopsy performed by a physician that he had retained.  Power Fuels has
not shown that such a procedure was improper or unreliable.  Also, Power Fuels relies
on the fact that the laboratory test ordered by Dr. Moredock to determine the presence 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 that the laboratory was
inexperienced in H 2 S gas analysis and that it was unable to get its test to
work.  We therefore conclude that the laboratory test is not probative in deciding
the H 2 S exposure issue.

Power Fuels questions Dr. Moredock's
credibility, noting his testimony that, to the best of his recollection, he filed a
revised death certificate stating that "the cause of [Nelson's] death is respiratory
asphyxiation with the most likely cause [being] H 2 S gas exposure."
  Power Fuels relies on the testimony of one of its employees that the original death
certificate, prepared by Dr. Moredock on September 1, 1984, stated that the immediate
cause of death was "unknown" and that its cause was "Pending
Investigation" and was due to or was a consequence of "Extensive pulmonary
granulomatous."  This witness further testified that, on the day after Dr.
Moredock's testimony in this case, the original death certificate and not the revised
death certificate was still on file at the McKenzie County Courthouse.  So far as the
record shows, however, failure to file the revised death certificate was merely an
inadvertent error.  Power Fuels does not suggest any alternative explanation.
  We find no basis to disbelieve the testimony of Dr. Moredock.

In addition, Power Fuels points to testimony
that some cause of death other than H 2 S suffocation was possible.  That
testimony was given by Dr. Moredock, and by OSHA Area Director and Industrial Hygienist
DiTomasso.  However, both of these witnesses testified that H 2 S
suffocation was the most likely cause of death, and the only cause suggested by the known
data.  The standard of proof on this issue is the preponderance of the evidence.
  E.g ., R.D. Anderson Construction Co. , 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 evidence establishes that Nelson's death was due to exposure to H 2 S
gas.

Power Fuels argues that the measurements Tuhy
made the day after Nelson died do not tend to prove the levels of H 2 S gas to
which he was exposed.  We disagree.  Those levels are consistent with the H 2 S
levels found in the gas stream of a well on the Gilbertson Lease in 1981.  The 1981
tests 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 the
headspace above the saltwater 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 gas stream to translate into about 1900 p.p.m. of H 2 S gas in the
headspace of a salt water tank.  His estimate was based on his measurements in a
previous case.  Douglas Lipetsky, an environmental engineer for the North Dakota
Department of Health, testified that he would expect the H 2 S concentration in
the gas stream at the time of Nelson's death to have been at least as high as in 1981.
  That conclusion was based on his experience with other producing wells.  Thus,
the evidence indicates that the H 2 S gas levels in 1981 were similar to those
that Tuhy found on August 31, 1984 (at least 1600 p.p.m. in the headspace of the salt
water tank).

Of course, as Power Fuels notes, H 2 S
gas levels can rise or fall quickly.  DiTomasso testified that H 2 S gas
levels can rise suddenly when the tank's contents are disturbed, by pumping, for example.
  The evidence indicates that Nelson had pumped fluids out of the tank before he
died.  Thus, Nelson was engaged in precisely the kind of activity calculated to raise
H 2 S gas levels suddenly to high levels, such as those found in 1981 and on the
day after the accident.  Clearly, the 1981 tests corroborate what is established
independently by the other evidence:  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 being charged with exceeding the "maximum peak" limitation.
  However, the citation and complaint expressly charged that violation, and the
Secretary reaffirmed the allegation in discovery. Clearly, there was no lack of notice to
Power Fuels of this charge.  The evidence convincingly demonstrates that Nelson was
exposed to levels of H 2 S gas exceeding the maximum peak concentration allowed
under � 1910.1000(b)(2)

II. Whether Power Fuels reasonably could have
known of the H 2 S gas hazards

We agree with the judge that Power Fuels
"had every reason to know" that the waste salt water at the Gilbertson Lease
contained H 2 S.  Furthermore, we reject Power Fuels' arguments that it
could not have known of the hazard created by H 2 S gas.  First, Kelly
Gebhardt, Power Fuels' District Manager for Watford City, and Nelson's supervisor,
testified that in a "large majority" of producing wells from which his district
hauls, "there would be some type of [H 2 S] smell from the wells . . . .
"

Second, Power Fuels also knew that H 2 S
levels exceeded permissible levels at certain sites.  The results of tests at the
Gilbertson Lease in 1981, as mentioned above, showing high levels of H 2 S
present there, were on file with the North Dakota Department of Health.  Those tests
had been conducted by the producer at the Gilbertson Lease, Energetics, Inc.
  Furthermore, Power Fuels' safety representative, Tuhy, testified that it had been
informed of high H 2 S concentrations by the producers at the Mullen and Rognes
Leases (in the Watford City district), where an employee 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 for violation of � 1910.134(a)(2) and other respirator requirements. The
citation related to drivers who were exposed to H 2 S gas while gauging tanks in
the Watford City area.  In a letter accompanying the previous citation, the OSHA area
director had stated that "[d]rivers untrained in respirator use and the dangers of H 2 S
are hauling salt water that has been pumped from wells containing H 2 S.  H 2 S
is dissolved in this water and will be released from it into the air . . . .

Furthermore, the H 2 S hazards in the
area had been the subject of a prior 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
hazards throughout the Williston Basin, which includes the entire area at issue here.
  Bomac noted that H 2 S is most likely to be encountered in fluids
taken from the substrata in the Madison Zone.  The fluids at the Gilbertson Lease
were taken from these same substrata.

Thus, the evidence shows overwhelmingly that
Power Fuels was well aware of the potential for exposure to excessive H 2 S gas
in the locale.  We also note that no objection has been raised to the evidence that
Tuhy had attended OSHA seminars where the H 2 S risks in the area, and the need
for respirators, were thoroughly explained.

To rebut this evidence of foreseeability, Power
Fuels argues that the judge failed to consider the evidence that no employee had
complained of H 2 S problems at the Gilbertson Lease.  However, its own
safety materials emphasize that H 2 S is difficult to detect and evaluate, that a
technical instrument is needed, and that the sense of smell is inadequate 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 detection devices to its employees.  Also, as
mentioned above, high levels of H 2 S gas may arise suddenly, without warning, in
a tank when the fluids are disturbed, as they apparently were when the tank in question
was being drained by Nelson.

Power Fuels argues that it was entitled to rely
on an industry custom and practice that allegedly imposes an obligation on oil and gas
producers to notify the transportation firms if H 2 S hazards are present.
  The Fifth Circuit rejected a similar argument in Brock v . City Well
Service Co ., 795 F.2d 507, 512 (5th Cir. 1986) .  The court held that an oil well
service company may not shift its responsibility for its employees' protection from H 2 S
gas to well owners or operators, based on industry custom and practice.

Power Fuels' safety representative knew that
there may have been H 2 S on oil and gas sites even though Power Fuels had not
been notified about its presence.  In addition, Gebhardt acknowledged that "very
few" oil and gas producers have notified him of H 2 S concentrations, even
though H 2 S can be smelled at a large majority of wellsites in the area.
  We cannot excuse Power Fuels' failure to protect its employee where, as here, it
knew that H 2 S hazards existed in the area and that producers might fail to
report those hazards to it.

In addition, Power Fuels failed to establish
that the alleged custom or practice regarding notice of high H 2 S concentrations
existed, or that Power Fuels reasonably relied upon it.  Its citations to the
transcript in this regard do not support its position.  The only substantial
testimony in the record on this issue goes contrary to Power Fuels' position.
  Consulting geologist and drilling foreman Kane testified that it was customary for
companies hauling water from his well drilling sites to a waste disposal site, to
determine for themselves the water's H 2 S content.  Kane further testified
that there were instances where Power Fuels had determined the H 2 S content of
salt water it hauled to waste sites and drilling sites.

Power Fuels asserts that salt water containing H 2 S
is "hazardous waste" under Federal and state regulations and that, therefore,
the owner or operator of the tank battery was required to inform it if H 2 S was
present in the salt water.  However, no specific statutory or regulatory provision is
cited by Power Fuels to support this assertion.  To the contrary, water produced in
drilling for gas and oil, like the salt water here, is excluded from the definition of
"hazardous waste" under the Environmental Protection Agency ("EPA")
regulations.  40 C.F.R. � 261.3(a)(1),.4(b)(5).  Furthermore, the Department of
Transportation ("DOT") motor carrier safety regulations that formed part of
Power Fuels' safety program indicate that this employer had a duty to find out if it was
carrying any hazardous materials.  49 C.F.R. �� 397.1,.21.  Under those
regulations, Power Fuels could not have shifted to another company its responsibility to
determine whether it was transporting 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 standard that may be enforced only under a "reasonable person"
test. Under that test, the Secretary would have to prove that a reasonable person familiar
with the circumstances, including any facts peculiar to the industry, would recognize a
hazard warranting the precautions urged by the Secretary.  The precautions at issue
here are providing respirators on jobsites, such as the Gilbertson Lease, and requiring
their use.

Under Commission precedent, the use of the
reasonable person test is not required 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 Circuit has
essentially rejected such a requirement.  City Oil Well Service Co. , supra ,
795 F.2d at 511. Moreover, even assuming arguendo that Power Fuels is correct in
its assertion that use of this test is required, we conclude that the Secretary has
demonstrated that a reasonable person in Power Fuels' position would have required that
Nelson use a respirator while working on the Gilbertson Lease.

Power Fuels' H 2 S safety booklet
stated:  "When you are required to be present or work in an area where H 2 S
is a potential hazard, you must wear breathing protection."  The company's
district manager, Gebhardt, testified that he believed the only safe way to work around H 2 S
is to wear a respirator.  Power Fuels' safety rules required the use of SCBA
respirators where H 2 S was known to be present.  The testimony revealed
that Power Fuels actually had respirators in its Watford City office.  Yet, the
company failed to take steps to ensure that they were provided at its wellsites.  It
is clear from this evidence that a reasonable person in Power Fuels' position would have
recognized a hazard warranting (1) provision of an SCBA respirator at the well site on the
Gilbertson Lease, and (2) a requirement that the employee use the respirator.

The Secretary has established that the H 2 S
gas constituted a significant risk of harm, making a respirator necessary to protect the
employee'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 employee was exposed to the hazards, and
Power Fuels and the requisite knowledge of the conditions.  See , e.g ., Trumid
Construction Co. , 14 BNA OSHC 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 evidence introduced at the hearing because it goes beyond or is
inconsistent with the Secretary's responses to certain prehearing discovery requests by
Power Fuels.  This claim is without merit, for several reasons.  First, Power
Fuels did not object to the introduction of the evidence it now claims is precluded by the
prehearing documents.  Second, Power Fuels did not seek to have introduced into
evidence any of the alleged answers to interrogatories on which it now relies, and did not
even mention them at the hearing.  Third, when properly read, none of the alleged
admissions would change the result in the case.  In fact, Power Fuels'
representations as to what admissions were made are incorrect in numerous instances.

As to the first point, if the Secretary
attempted to introduce evidence at the hearing that was subject to preclusion by her
discovery responses, the proper time for Power Fuels to object was when the evidence was
introduced.  By not objecting then, Power Fuels has failed to preserve its argument
for use on review.  Rule 103(a)(1) of the Federal Rules of Evidence
("F.R.E.") provides that "[e]rror may not be predicated upon a ruling which
admits . . . 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 the
context").  Former Commission Rule 72, which was in effect at the time of the
hearing, incorporated F.R.E. Rule 103(a)(1) in Commission proceedings; "Hearings
before the Commission insofar as practical shall be governed by the rules of evidence
applicable in United States District Courts." Former 29 C.F.R. � 2200.72.[[8]]

As to the second point, answers to
interrogatories generally are not considered 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 in evidence, they generally have no binding
effect if they are contradicted by 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, 92 S.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's discovery responses into evidence.  The alleged answers to
Power Fuels' interrogatories are not in the official case record, even though the company
was on notice that those answers might not have been filed with the Commission.[[9]]
  Power Fuels cites certain court cases for the proposition that discovery admissions
and interrogatory answers, like those allegedly made here, preclude the introduction of
additional or contradictory evidence.  None of those cases dealt with discovery
matters, however.

Power Fuels further relies on an unreviewed
judge's decision, which it says supports the result it urges.  McWilliams Forge
Co. , 8 BNA OSHC 1792, 1794, 1980 CCH OSHD � 24,578 (No. 79-228, 1980).
  Unreviewed judges' decisions do not constitute Commission precedent.  E.g.,
Leone Construction 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 the Secretary failed to timely respond to
requests for admissions and did not explain that failure.

As to the third point, none of the alleged
admissions would affect the result of the case, even if they were considered.  It
bears noting that Power Fuel's representations as to what admissions were made in this
case are incorrect in a number of instances.  For example, Power Fuels represents
that the Secretary's discovery responses stated:  (1) The Secretary 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 any of these limitations apply to H 2 S
gas.  However, Power Fuels' requests for admissions to that effect were ambiguously denied
by the Secretary.  Power Fuels also makes other incorrect representations of
purported admissions [[10]].  We note that the Commission's rules requires that
counsel make a reasonable inquiry in advance to determine that arguments made in briefs
are well grounded in fact and warranted by a good faith legal argument.  29 C.F.R. �
2200.32.[[11]]

Respondent thus fails in its assertion that the
Secretary's prehearing responses preclude the Commission from deciding this case based on
the evidence 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 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.  The Secretary
states:

The Secretary agrees that all three violations
affirmed by the judge essentially concern one violative condition which should have been
avoided by one method of abatement -- provision of appropriate respiratory equipment to
David Nelson.  Therefore, the Commission should affirm a serious violation of
1910.134 (a)(2) and 1910.1000 (b) and assess 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 the Secretary has abandoned the third item on review, the
alleged violation of � 1910.134 (b) (9), even though the judge affirmed that item.
  We see no compelling reason to question the Secretary's judgement on this issue.
  The � 1910.134(b)(9) item will therefore be vacated.  See Cuyahoga Valley
Ry. 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 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, which was the maximum penalty for a serious violation.  Regarding the
penalty factors, the extreme gravity of the known H 2 S hazards would warrant the
maximum penalty, regardless of other factors.  Furthermore, we note that Power Fuels
previously had admitted violations of H 2 S respirator requirements at a nearby
oil well site; that it was a sizeable company, with eight district offices; and that its
good faith is questionable, in light 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 requested by
the Secretary.  The � 1910.134 (b) (9) item is vacated.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G.Wiseman

Commissioner

Dated: April 17, 1991

SECRETARY OF LABOR,

Complainant,

v.

POWER FUELS, INC.,

Respondent.

OSHRC DOCKET NO. 85-0166

APPEARANCES:

For the Complainant:

Jaylynn K. Fortney, Esq., Kansas City, Missouri

For 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 Review Commission (the Commission) pursuant to section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. � 651 et seq ., (the Act).
  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 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 the
meaning of the Act.

The matter came on regularly for hearing at
Minot, North Dakota, on August 20, 1985.  Notice of the hearing was duly given
affected employees.  Except as employees may have been called as witnesses, there was
no appearance by or on their behalf. (Tr. 8, 9).

The parties have submitted post hearing briefs
in support of their positions.  Respondent has admitted that it is a corporation
engaged in commerce and that it is subject to the Act and the jurisdiction of this
Commission.  (Answer) Various affirmative defenses have been raised by the respondent
in its Answer and will be treated in the Discussion portion of this Decision.

The Issues raised by the citation and the
Complaint to be here determined 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, or any 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 various commodities, including crude oil, water and other liquids in bulk, as
a common carrier under a certificate granted by the North Dakota Public Service
Commission.  (Tr. 900) Its business is operated from seven district offices, six in
North Dakota and one in Montana.  (Tr. 577)  An inspection of respondent was
initiated by the Occupational Safety and Health Administration (OSHA) to investigate a
fatality which occurred at a tank battery located approximately four miles north of Keene,
North Dakota. (Tr. 207)

Respondent's employee, David Nelson, died in the
said fatality which occurred on August 30, 1984, at what is referred to  herein as
the Gilbertson Tank Battery site.  (RFA 1 and 2(a))[[ 4/]]  He was employed by
respondent as a truck driver.  (RFA 5) The said site was under the control and
custody of Energetics, Inc., a company which is not a party to this proceeding.  (RFA
3, Tr. 217-218) There were three tanks located at the said site; two steel oil tanks and
one fiberglass salt water storage tank which was approximately 15 feet high.  (RFA
2(b); Exhibits C-4, C-5, C-11, C-12, C-13).

On August 30, 1984, respondent had assigned
Nelson to fill an order received from Energetics, Inc. to transport salt water from the
Gilbertson site to a waste disposal location for disposal.  Nelson was working the
night shift on said date and the said assignment was given to 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 was discovered by respondent on top of the salt water storage tank
at the said site.  (Exhibits C-1, C-2, C-6) An autopsy performed on that date listed
the final diagnoses as:

"I.  Bruise, recent, right
anterolateral chest.

II.  Congestion, lungs, severe.

III. Granulomatous inflammation, lungs, lymph nodes and liver, etiology undetermined.

IV. Kyphoscoliosis, severe."

(RFA 9(a); Exhibit R-7

There 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 of
August 30, 1984.  The truck which Nelson had been assigned to drive was parked at the
said site at the time Nelson's body was discovered. Prior to his death, he had gone to the
top of the tank, measured (gauged) the amount of water therein by lowering a measuring
device to the bottom of the tank from a hatch opening at the top, entered the measurement
upon a water invoice, and filled the truck with water from the tank.  (RFA 9(b),
9(c); Tr. 704-705, 879-881)  A tachograph device on Nelson's truck showed that he had
stopped the truck at the site at around 11:00 to 11:10 p.m. on August 30. (Tr. 41,
862-863)  The time of his death was placed at between 11:00 p.m. and midnight on that
day by McKenzie County Sheriff Paul Larson, the local government official who investigated
the death.  (Tr. 42-43)  Nelson's death certificate completed by the coroner
lists the "immediate cause" of death as "unknown."  It further
states that the "underlying" cause of death was "extensive pulmonary
granolamatous."  (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. He
there noted that the decedent was found ". . . with his head near the tank
opening", whereas the evidence was that the cover of the "thief hatch" near
Mr. Nelson's head was closed.  The "Coroner's Report" stated:

"Autopsy showed severe lung congestion that
would be consistent with H 2 S 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 respiratory protection equipment was in the truck he had been
driving.(Tr. 41)  There was no permanent air line and no warning sign concerning the
presence of Hydrogen Sulphide gas (H 2 S) on the site, nor was there a windsock
present. (Tr. 40, 42)

David Tuhy, safety representative for
respondent, using a Bendix Gas Tech 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 the airspace 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 September 1, 1984, disclosed
concentrations of H 2 S at a point one foot above the open thief hatch on the
upwind side to be 55-60 ppm and on the downwind side to be 100 ppm.  No H 2 S
was found to be present at ground level nor 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
the respondent's safety program, Exhibit C-23, and had on at least one occasion 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 must prove by a preponderance of the evidence an employer's
noncompliance with an applicable standard and employee exposure to the hazard created by
the violative condition.  Otis Elevator Co ., 78 OSAHRC 88/ E5, 6 BNA
OSHC 2048, 1978 CCH OSHD � 23,135 (No. 16057, 1978).  In addition to the foregoing,
section 17(k) of the Act has been interpreted by the Commission as placing on the
complainant the burden of proving that the employer knew, or in the exercise of reasonable
diligence, could have known of the presence of the violative condition.  Pre-stressed
Systems, 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 August 30, 1984, gave rise to the inspection out of which the
citation herein issued, the cause of that death is not here our concern.  Although
the circumstances of an accident may provide relevant evidence, our inquiry is not
necessarily 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 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 CCH OSHD � 22,266 (No. 12879, 1977); Concrete
Construction 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 of
Mr. Nelson on August 30, 1984, provide evidence that an employee of the respondent was
exposed to the effects of H 2 S in the course of his employment and that exposure
could 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 Well
Servicing, Inc. , OSAHRC Docket No. 77-1334 (1982), 10 BNA OSHC 1371, 1375-6, 1982 CCH
OSHD � 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 be
interpreted to be where the Secretary shows exposure to concentrations of air contaminants
above the threshold limit value specified for the substance in question or to exceed the
time allowance permitted up to certain levels.  The Commission expressly rejected
such interpretations saying that to adopt such arguments " . . . would mean that no
matter how great the likelihood of an emergency, an employer is not required to take even
elementary precautions until it is too late.  That would be contrary to the purpose
of section 1910.134 and to the preventive purpose of the Act."

Because of the widely recognized presence of H 2 S
throughout the Williston Basin (Tr. 421, 432-433) and two deaths resulting from exposure
thereto in late 1983 and early 1984, OSHA sponsored two H 2 S hazard recognition
seminars to acquaint and remind those working in the oil and gas producing industry in the
month of March 1984. (Tr. 716-718)  Respondent's safety representative attended each
of these seminars where the standards were discussed and the need to provide employees
engaged in the function of gauging tanks with self contained breathing apparatus or
supplied air respirators was explained to be mandatory unless the employer had ruled out
the presence of H 2 S in excessive amounts at the specific location by conducting
adequate 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% H 2 S
by volume.  (Exhibit C-21; Tr. 533,537)  It is reasonable to assume that if
further gas analysis were performed on August 30, 1984, at this wellhead 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 wellhead would produce H 2 S concentrations in the
airspace above the saltwater in a tank battery at that site in excess of 1600 ppm. (Tr.
762, 763)

Tests conducted at the saltwater tank by
respondent's safety representative on the afternoon of August 31, 1984, disclosed H 2 S
in the airspace above the water to be at least 1600 ppm. (Tr. 649-652)  It may fairly
be inferred, therefore, that at the time Mr. NeIson opened the cover of the thief hatch at
the top of this saltwater tank at about 11:00 p.m. on August 30, 1984, he was in the
proximity of air contaminated with a concentration of H 2 S in the neighborhood
of 1600 ppm.

Tests conducted by respondent's safety
representative at the saltwater tank in question on September 1, 1984, disclosed:

1.  55-60 ppm H 2 S measured one
foot above the upwind side of the hatch opening -- immediately after opening the hatch
cover.

2.  100 ppm H 2 S measured one
foot above the downwind side of the hatch opening--immediately after opening the hatch
cover. concentration of H 2 S measured at the hatch with the

3.  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. 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 H 2 S in
concentrations in excess of 50 ppm.

Respondent's noncompliance with an applicable
standard and employee exposure to the hazard created by the violative condition having
thus been established, we now consider whether the complainant here met the burden of
proving that the respondent knew, or in the exercise of reasonable diligence, could have
known of the presence of the violative condition.

Respondent's safety representative was informed
of the two deaths which occurred in the Williston Basin late in 1983 and early in 1984
from exposure to H 2 S.  Respondent's safety representative was informed of
OSHA's claim that any gauging performed at tank batteries in the Williston Basin must be
accomplished while wearing appropriate respiratory equipment by reason of the risk of
exposure to excessive levels of H 2 S.  Respondent's safety representative
was informed as to the hazards attendant upon exposure to various levels of H 2 S
in the workplace.  H 2 S was generally known to be present and pervasive
throughout the oil and gas producing industry in the Willington Basin. (Tr. 432, 433)

Notwithstanding the foregoing, respondent claims
to have been uniformed that its employees sent out to gauge and haul saltwater from tank
batteries could be exposed to H 2 S in dangerous levels.  Of 100 tank
batteries serviced in the Watford City area only two of the producers ever advised
respondent that H 2 S was a hazard at their specific site.  Those two
producers engaged the respondent to haul crude oil only.  Of some 45 well sites from
which respondent hauled saltwater in this area, none of the producers advised respondent
of the presence of H 2 S on their sites in hazardous concentrations. (Tr. 843)

Generally, well sites with tank batteries were
equipped with windsocks to show the wind direction and if H 2 S was present in
hazardous concentration, a sign was posted to that effect by the lease owner or producer
and an air supply line was present.  No windsock, warning sign or air supply line was
present at this site.

Respondent relied upon the customer requesting
the haulage to inform of the presence of H 2 S if it constituted a hazard.
  (Tr. 920, 921)  At least one drilling foreman customarily did so.  (Tr.
447,449)  When the dispatcher was informed of the presence of H 2 S at the
site by the customer, he would in turn inform the driver who was expected to avail himself
of appropriate respiratory equipment maintained at the district office for that purpose
and from which office the truck and driver were dispatched.

North Dakota State Law and Federal Statutes and
Regulations found at Title 49 CFR urged upon us by respondent do not appear to justify
respondent's reliance upon the leaseholder or producer providing information as to the
potential hazard or the risks attendant thereon to respondent's employees.  (Exhibit
R-27; Respondent's Brief page 19)

Here respondent was not shipping H 2 S,
but was rather hauling waste saltwater which the respondent had every reason to know would
contain H 2 S in some albeit unknown percentage.  In the exercise of
reasonable diligence respondent could have known that H 2 S would enter the
breathing environment and could expose its employee to harm.  That diligence would
have been exercised merely by heeding the information, advice and warnings given
respondent's responsible personnel at training seminars in ample time to have anticipated
and prepared for the violative condition here found and to which respondent's employee was
exposed.

Self-contained breathing apparatus in the
dispatcher's office could provide no respiratory protection to a driver confronted with H 2 S
at a well site.  (Tr. 667)  Respondent thus failed to comply with the standard.

Issue 2A :

Was the respondent in violation of the standard
at 29 CFR 1910.134(b)(3)?[[6/]]

In conducting its investigation herein
complainant was confronted with an uncooperative employer.  The investigating officer
recommended citing this violation based upon the fact although he requested the training
records of the deceased employee, none were produced.  The evidence of violation of
this 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 training
even 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 a
finding in relation to its allegation of violation of this standard and failed to meet
that burden.

Issue 2B :

Was the respondent in violation of the standard
at 29 CFR 1910.134(b)(8)?[[7/]]

Complainant based its claim of violation set
forth in item 1 of the citation that unless monitoring had been done to rule out the
presence of H 2 S in excessive concentrations, gauging must be accomplished while
wearing appropriate respirators.

Complainant's witness who tests tank batteries
for H 2 S concentrations did not customarily wear respirators while testing at
the top of tanks.  (Tr. 161, 163,167,172)  In view of the evidence presented by
complainant that 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 of 29 CFR 1910.134(a)(2) appropriate
respirators can be worn in lieu of monitoring.

Complainant failed to meet its burden of proving
a violation of item 2B the Citation issued herein.

Issue 2C :

Was the respondent in violation of the standard
at 29 CFR 1910.134(b)(9)? [[8/]]

Notwithstanding knowledge that OSHA had warned
respondent of the incipient hazards associated with H 2 S and the need to provide
employees with respiratory protection to be worn during gauging operations, respondent
persisted in pursuing its respiratory safety program of relying upon customers to advise
if hazardous levels of H 2 S might be present and then to so advise drivers
assigned to that site so that the driver might take respiratory equipment with him when
dispatched.

The evidence presented compels a finding that
respondent did nothing by way of inspection and evaluation (regular or otherwise) to
determine the effectiveness of its program.  (Tr. 646, 648, 673, 849, 865, 926, 927)

Complainant has met its burden of proving a
violation of item 2C of the citation by a preponderance of the evidence.

The failure to inspect or evaluate prevented
respondent 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's
employees and was therefore an other-than-serious violation.

Issue 3 :

Was the respondent in violation of the standard
at 29 CFR 1910.1000(b)(2)?[[9/]]

As discussed under Issue 1, there was here
presented a preponderance of evidence to support a finding that an employee of respondent
was exposed to concentrations of H 2 S in excess of those permitted under Table
Z-2 on 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 definition of "Willful" as it appears in the Act which definition
has been offered by the Circuit Court of Appeals for the Tenth Circuit:

The failure to comply with a safety standard
under the Occupational Safety and Health Act is willful if done knowingly and purposely by
an employer, who having a free will or choice, either intentionally disregards the
standard or is plainly indifferent to its requirement.  An omission or failure to act
is willfully done if done voluntarily and intentionally.  Kent Nowlin Construction
v. Occupational Safety and Health Review Commission and Secretary of Labor , 593
F.2d 368 (10th Cir. 1979)

Applying that definition the respondent could be
construed to have acted willfully herein or to have willfully failed to act.
  However, we are reminded that an intentional act or an intentional failure to act
is one in which there is an intellectual apprehension of the end plus the desire for the
end result.

In view of the apparently successful practice of
standing upwind when opening a thief hatch cover (Tr. 867, 868) and the lack of evidence
here 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 to
the level of willful.  Respondent's safety training program, enforcement thereof and
placing of responsibility for concerns of safety in its organization certainly are not
models to be emulated.  There would appear to be areas requiring attention and
improvement.  In those items here found to be violations the respondent displayed too
casual an approach to its responsibilities and its employees could thereby be exposed to
the probability of suffering death or serious physical harm from conditions confronting
them in their work environment.

Item 5 :

What, if any, penalty would be appropriate?

Giving due consideration to the factors provided
by the Act for determining penalties and for the integrated relationship of the violations
here found, a total combined penalty in the sum of $1,500.00 is here found to be
appropriate; said sum to be apportioned as in the Findings of Fact set forth.

Respondent faults the complainant for what
respondent views as lack of evidence as to reasonableness of abatement dates. However, the
evidence is to the effect that compliance on the part of respondent does not require time.
  Respondent's employees are entitled to immediate protection under the Act.  No
delay in abatement should here be countenanced and the abatement date of "immediately
upon 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 issued
within the time period prescribed in the Act."  The time period relied upon by
respondent is not the six months statute of limitations but the "reasonable
promptness" requirement set forth in Section 9(a) of the Act.  Such an
affirmative defense was not raised specifically in respondent's Answer.  See
Secretary v. Hoffman Construction Co. , 3 BNA OSHC 1064.

More importantly, however, it is clear from the
record in this case that respondent was uncooperative in the investigation required by the
Act.  Respondent obstructed the investigation by refusing permission to speak with
employees and failing to supply requested records.  Respondent refused access to
certain areas and refused to disclose the location of the site requiring investigation.

Perhaps respondent was within its rights to thus
perceive its needs to protect its rights, but the result was to present the complainant
with obstacles in the investigation and delay its exercise of discretion as to whether and
what violations to cite.  Having thus contributed to the delay in issuing the
citation and having shown no prejudice resulting to its interests as a result of that time
delay, respondent may not defeat the purposes of the Act.  Under the circumstances
the citation was issued with reasonable promptness. (Tr. 209-212, 216, 217, 251, 358, 359)

The affirmative defenses raised in respondent's
Answer filed herein are not supported by the law or evidence in the record and are without
merit

Now having observed the demeanor of the
witnesses and having weighed the credibility thereof, there are here entered the
following:

Findings of Fact

1.  The factual statements set forth
hereinabove under Statement of Facts 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 to H 2 S when engaged in gauging fluid levels at tank
batteries generally throughout the Williston Basin of western North Dakota and eastern
Montana.

4.  Respondent knew or in the exercise of
reasonable diligence could have known of the presence of H 2 S and the risk of
overexposure thereto of employees engaged in gauging fluid levels at tank batteries
situated in the Williston Basin area on August 30,1984.

5.  There was a substantial probability
that respondent's employees would suffer death or serious physical harm as a result of
exposure to H 2 S should an overexposure occur unless respirators were provided
at the point of exposure.

6.  An appropriate penalty to be awarded
for the violation of item 1 of the citation is $700.00.

7.  Respondent made no regular inspections
or evaluations to determine the effectiveness of its respiratory protection program.

8.  It is appropriate that a penalty in the
sum of $100.00 should be assessed for the violation of item 2C of the citation which
violation was other-than-serious.

9.  An employee of respondent was exposed
to concentrations of H 2 S in excess of those permitted under table Z-2 of
subpart Z of 29 CFR 1910 on the 30th of August 1984.

10.  An appropriate penalty to be awarded
for the violation of item 3 of the citation is $700.00.

11.  It is reasonable that abatement of the
violations here found should be immediately accomplished.

12.  The citation herein was issued with
reasonable promptness.

Conclusions of Law

1.  Respondent is an employer engaged in a
business affecting commerce within the meaning of the Act.

2.  Jurisdiction of the subject matter of
this proceeding is conferred upon the Commission by section 10(c) of the Act and the
Commission has jurisdiction of the parties hereto.

3.  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.  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 standard at 29 CFR 1910.134(b)(3) and item 2A of the citation in
question should be vacated.

6.  The evidence fails to support a finding
of violation of the standard at 29 CFR 1910.134(b)(8) and item 2B of the citation in
question should be vacated.

7.  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.  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.
  A penalty of $100.00 should be assessed.

9.  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.  Respondent was in violation of the
standard at 29 CFR 1910.1000(b)(2) and item 3 of Citation No. 1, issued to respondent.

February 12, 1985, should be affirmed as a
serious violation of the Act and a penalty of $700.00 should be assessed.

Order

1.  Item 1 of Citation No. 1, issued to
respondent February 12, 1985, is AFFIRMED as a serious violation of the Act and a penalty
of $700.00 is ASSESSED.

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-serious violation 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 of the Act and a penalty of $700.00 is ASSESSED.

R. M. Child

Judge, OSHRC

Dated: January 27, 1986

FOOTNOTES:

[[1]] The standard provides:

� 1910.134 Respiratory Protection .

(a) Permissible Practice.

(2) Respirators shall be provided by the
employer when such equipment is necessary to protect the health of the employee. The
employer shall provide the respirators which are applicable and suitable for the purpose
intended. The employer shall be responsible for the establishment and maintenance of a
respiratory 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 time
during an 8-hour shift the acceptable ceiling concentration limit given for the material
in the table, except for a time period, and up to a concentration not exceeding the
maximum duration and concentration allowed in the column under "acceptable maximum
peak above the acceptable ceiling concentration for an 8-hour shift."

The "acceptable maximum peak" column
of Table Z-2 lists 50 p.p.m. for hydrogen sulfide. Thus, exposure may not exceed the 50
p.p.m. ceiling at any time. The term "p.p.m." is the same as "p/m" as
defined in Table Z-1: the "[p]arts of vapor or gas per million parts of contaminated
air by volume . . . . " Thus, Power Fuels' argument that H 2 S
"gas" is not regulated 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 inspection was invalid under the Fourth Amendment.  However, those specific
issues were not raised in Power Fuels' pleadings, and there is no indication that they
were tried by consent, express or implied.  Therefore, we will not consider these
defenses in these circumstances.  � Commission Rule 36(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 or
implied 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) (no attorneys' fees would be awarded
where defense on which employer relied was stated so generally that other party would not
have been aware of weakness in its case).

[[4]] Salt water is found in the geological
substrata in that area.  It is hauled from one wellsite to another and is used to
push oil to the surface.  The used salt water is disposed of when the H 2 S
content is considered 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, etiology
undetermined.

IV.  Kyphoscoliosis, severe.

[[6]] The H 2 S booklet that was part
of Power Fuels' safety program makes these points clearly.  For example, it states:
"You cannot rely on your nose to tell you how much H 2 S gas is present. Wear
Your Breathing Apparatus ."  ESSE International, Inc., "H 2 S:
The Killer!", p. 7.  The booklet also notes that H 2 S causes
unconsciousness quickly at about 700 p.p.m. As noted above, tests made by Power Fuels the
day after Nelson's death found H 2 S gas levels of at least 1600 p.p.m. in the
tank.

The booklet also makes it clear that to
determine whether H 2 S is present, a technical device should be used. Listed
examples of detecting devices are: lead acetate, ampoules or coated strips, electronic
detectors, air sampling gas detector tubes, and fixed systems.

[[7]] Power Fuels argues that the requirement of
the citation that it abate the hazards immediately is unreasonable.  This assertion
is untenable.  Power Fuels had the necessary means of compliance --SCBA respirators
-- at the Watford City office even before the fatality.  It also was on notice of the
requirement that it maintain a respirator program because of a previous citation, among
other things.  Where the contest is initiated in good faith, abatement requirements
under 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 the
F.R.E. in full.  29 C.F.R. � 2200.71.

[[9]] For example, Power Fuels was on notice
from the Secretary's letter of June 10, 1985, that no signed answers were filed at that
time. (June 10, 1985, is the filing date for those answers relied on by Power Fuels.) The
judge even noted at the hearing that the significance of the interrogatories had not been
brought to his attention. Power Fuels' claims that the judge disregarded discovery
responses seems disingenuous in light of its failure to bring them up at the appropriate
time.

[[10]] At various points Power Fuels argues that
knowledge has not been established because the Secretary's discovery admissions and
answers to its interrogatories limited the issues solely to "the facts and
circumstances surrounding the fatality of . . . David Nelson . . . on August 30,
1984."  However, its request for an admission to that effect was denied by the
Secretary.  Power Fuels further represents that the Secretary admitted in discovery
that she did not know the concentration of H 2 S gas at the Gilbertson
site on or before August 30, 1984.  However, Power Fuels' request for admission was
inadequate to produce such an admission.  The request stated, "Complainant does now
know what amount, level or concentration of H 2 S or hydrogen sulfide gas existed
at the said site when David Nelson arrived there on August 30, 1984, or at any time prior
thereto."  (Emphasis added.)  The Secretary's agreement with that statement
does not help Power Fuels.

[[11]] The Commission's rule is comparable to
the requirements of the Federal 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 note
that Commission Rule 104(a) states, "All representatives appearing before the
Commission and its judges shall comply with the letter and spirit of the Model Rules of
Professional Conduct of the American Bar Association [ABA]."  The relevant ABA
Model Rules prohibit attorneys from:  (1) asserting or controverting issues on merely
frivolous grounds; (2) failing to make reasonable efforts to expedite litigation; and (3)
making false statements of material fact or law to the tribunal.  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
abating the kind of H 2 S safety program violation involved here and in its
previous citation.  Thus, we note that its violation here arguably was willful, and
was one of many apparent failures in Power Fuels' H 2 S safety program.

As noted above (n. 6 supra and
accompanying text) , Power Fuels' H 2 S safety booklet stated that respirators
are needed when any H 2 S is present, and that H 2 S levels should be
detected with a scientific device, not the sense of smell. That booklet and certain other
evidence suggests that Power Fuels was fully aware that its safety precautions at the 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 to detect H 2 S.  Its supervisors testified that they
relied on their sense of smell to avoid H 2 S.  In fact, Power Fuels' H 2 S
safety program was amorphous.  It did not have a safety director with overall
responsibility for developing and implementing the company's safety program.  Tuhy,
its safety representative, testified that he did not formulate the company's safety
policy, and was not sure who did.  He testified that he was not its safety director,
and he did not consider himself responsible for employee training. The crucial importance
of proper training is underscored by the fact that Nelson was a new employee, with less
than two months on the job.

Furthermore, Power Fuels did not have an
emergency response program or other method of aiding an employee on a site such as the
Gilbertson Lease.  Rescue plans are crucial because H 2 S gas normally is
not an immediate killer, even where an employee is overcome. See 29 C.F.R. �
1910.134 (e)(3)(iii).  In addition, Power Fuels showed no evidence of having a
disciplinary program for violations of its relevant safety rules.  The deficiencies
in its safety program were widespread and unexplained on this record.

[[1/]] The citation reads:

1

29 CFR 1910.134(a)(2):  Respirators were not provided by the employer when 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,
respiratory equipment was not provided for an employee gauging oil tanks where hydrogen
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,
respiratory equipment was not worn by an employee performing rescue operations in the
presence of hydrogen sulphide gas.

[[2A/]] The citation reads:

2A

29 CFR 1910.134(b)(3):  The users of respirators were not instructed and trained in
the proper use of respirators and their limitations:

(a) On or about August 30, 1984, where an
employee was required to gauge tanks at the Gilbertson Tank Battery site, located
approximately 4 miles north of Keene, North Dakota, where excessive amounts of hydrogen
sulphide gas was present.

[[2B/]] The citation reads:

2B

29 CFR 1910.134(b)(8):  Appropriate surveillance of work area conditions and 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 determine employee exposure to hydrogen sulphide gas.

[[2C/]] The citation reads

2C

29 CFR 1910.134(b)(9):  There were no regular inspections and evaluations to
determine the continued effectiveness of the respirator program:

(a) On or about August 30, 1984, where an
employee was required to work at oil tank battery sites where hydrogen sulphide gas was
present.

[[3/]] The citation reads:

3

29 CFR 1910.1000(b)(2):  Employee(s) were exposed to material(s) in excess of the
acceptable maximum peak concentration(s) allowed in the column in Table Z-2 of subpart Z
of 29 CFR part 1910 under "Acceptable Maximum Peak Above the Acceptable Ceiling
Concentration for an 8-hour Shift":

(a) On or about August 30, 1984, at the
Gilbertson 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 to
Requests for Admission of record in this action.

[[5/]] The standard reads:

�1910.134 Respiratory Protection.

(a) Permissible Practice.

(2) Respirators shall be provided by the
employer when such equipment is necessary to protect the health of the employee.  The
employer shall provide the respirators which are applicable and suitable for the purpose
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 of respirators 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 of employee 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 the continued 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 a material listed in table Z-2 shall not exceed at any time during
an 8-hour shift the acceptable ceiling concentration limit given for the material in the
table, except for a time period, and up to a concentration not exceeding the maximum
duration and concentration allowed in the column under "acceptable maximum peak above
the 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