CNG Transmission Corporation

Plain-English summary

CNG Transmission was preparing a natural-gas field for underground storage and used workers supplied by Union Drilling to monitor a frac-fluid flow-back operation. After the piping was changed so that fluid and gas flowed directly into a frac tank, two night-shift workers were found inside the tank and were determined to have died from asphyxiation. The judge held that CNG was their employer for purposes of the OSH Act because CNG controlled the work and gave the workers their instructions. She affirmed a serious fixed-ladder violation but vacated an emergency eyewash and shower item because the Secretary did not prove that the returning frac fluid was injurious or corrosive. She also affirmed as serious, rather than willful, a general-duty violation for failing to train the workers in confined-space entry and five hazard-communication violations involving the written program, labels, safety data sheets, and training. Two other citation items were vacated at the Secretary's request, and the judge assessed total penalties of $16,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.27(b)(1)(ii), 1910.151(c), 1910.1200(e)(1)(ii), 1910.1200(f)(5)(i), 1910.1200(f)(5)(ii), 1910.1200(g)(8), and 1910.1200(h); 29 U.S.C. § 654(a)(1).
• Outcome: Mixed. The judge affirmed the ladder, general-duty, and five hazard-communication items as serious, vacated the eyewash item and two withdrawn items, and assessed $16,000.
• Key point: A company that controls leased workers' day-to-day work can be their employer under the OSH Act and responsible for training them about confined-space and chemical hazards.

Full text (OSHRC public release)

                         UNITED   STATES Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           One Lafayette Centre
                     1120 20th Street, N.W. - 9th Floor
                        Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0152
CNG TRANSMISSION CORPORATION
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINISTRVITVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced m was

docketed with the Commission on February 9, 1994. The decision of the Judge
will become a final order of the Commission on March 11, 1994 unles a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on ot before
March 1, P994 in order to ermit sufficient time for its review. See
Commission Rule 91,29 c?.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel I. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the SoTl
eitor, U.S. DOc
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: February 9, 1994 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 93-0152
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mi4 Esq.
Counsel for Re '0I11)11 Trial Liti ation
Office of the SoQ‘&or, U.S. Dck
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
14480 Gatewa Building
3535 Market Htreet
Philadelphia, PA 19104

R. Dell Ziegler, Esquire
Buchanan Ingersoll, P.C.
600 Grant Street, S8th fir.
Pittsburgh, PA 15219 2887

Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an (BHealth
Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00116042375:03
 UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COiMMlSSlON
1365 PEACHTREE STREET, NE., SUITE 240
ATLANTA, GEORGIA 30309-S 119

PHONE; FAX:
COM(4043474t97 COM (UM) 347-0113
RS(uM)3474197 FTS (404) 347-w 13

SECRETARY OF LABOR,

               Complainant

               v.
                                                           OSHR C          Docket   No .   93-152

CNG TRANSMISSION CORPORATION,

               Respondent.

APPEARANCES:

    AnitaEvewrightg
                 Esquire                                   R DcUZiegler,
                                                                      Esquire
       officz of the Solicitor                                      Buchanan IngerM, PC
       U. S. Department of Labor                                    Pittsburgh, Pewyhnia
       Philadelphia, Pennsyhania                                         For Rcqxmdeat
             For Complainant

Before: Admhistrative Law Judge Nancy J. Spies

                               DECISION AND ORDER


    On November30,1992, the Secretary issued CNG Transmission Corporation (CNG)

two citations resulting Tom an inspection conducted by Occupational Safety and Health
Administration (OSHi4) Compliance Officer Andrew Berestecky. Berestecky began his
inspection on June 4, 1992, in response to a report of the deaths of two employees at a
worksite in Hopwood, Pennsylvania, on June 2, 1992. CNG contested the citations at a
hearing held in Pittsburgh, Pennsylvania, on June 3 and 4,1993.
 At the beginning of the hearing,, the secretary moved to vacate items la ad lb of
Citation No. 1 vr. 7-8). The Secreta@ motion is granted, Rem at issue are he
following items:
Item 2 of CitationNo. 1, alleging a serious violation of 8 1910.27(b)(l)(ii),for
fhiling to ensure that the distance between the rungs of a ladder did not
exceed 12 inches and were uniform throughout the length of the ladder.
Item 3 of Citation NO. 1, alleging a serious violation of 0 1910.151(c), for
failing to provide suitable facilities for quick drenching or flushing of the eyes
and body within the work area for immediate emergency use.
Item 1 of Citation No. 2, alleging a willfulviolation of 9 S(a)(l), for fkilingto
fwnish employees employment and a place of employment &ee from
recognized hazards that are causing or are likely to cause death or wious
physical harm to employees.
- Item 2a of Citation No. 2, alleging a wilHadviolation of 0 l9lO.l2OO(c)(l)(ii),
for failing to develop, implement and maintain at the workplace a w&ten
h-d communication program, including the methods the empef uses to
Worm employees of the hazards of non-routine tasks.
W Item 2b of Citation No. 2, alleging a willfbl violation of 0 1910.1200@(5)(i),
for failing to ensure that each container of hazardous chemicds in the
workplace is labeled, tagged or marked with the identity of the hazardous
chemical(s) contained therein.
Item 2c of Citation No. 2, alleging a wilM violation of 6 1910.12OO(f)(5)(ii),
for failing to ensure that each container of hazardous chemMs in the
workplace is labeled, tagged or marked with appropriate warning hazards.
W Item 2d of Citation No. 2, alleging a willfulviolation of 8 1910.1200(g)(8), for
failing to maintain copies of the required material safety data sheets for each
hazardous chemical in the workplace and to ensure they are readily accessible
during each work shift to employees when they are in their work area(s).

                                                                      ..
                                                                        .. . . - _- - :.

0
Item 2e of Citation No. 2, alleging a wiIhl violation of 0 191O.lzoo(n),hr .
fhiling to pruvide employees with information and train& on hazardous
Chemicals in their work area at the time of their initial assignment and
whenever a new hazard is introduced into their work area.
This case is complicated by the question of who was acting as the employer of the
exposed employees for tbe purposes of the Occupational safety and Health Act of 1970 ’
(Act). CNG and Union Drilling (Union) were cited with identical citations. It is necessary
to deive into the relationship between CNG and Union in order to explain the dispute
regarding whether either or both companies acted as an employer.

                                       Backmound


   In 1990 CNG began preparing an old gas field in Hopwood, Penrlsvhghmia,
                                                                        for the

underground storage of natural gas (Tr. 13,57). CNG would hire one of sevd contractors
it dealt with to redrill a well. After the redriDingwas completed, the weI would undergo a
two-step “&acing” process in which the same operation is repeated twice. Fracing is
performed by forcing a mixture of water, nitrogen, hydrochloric acid, sand, and other
materials into the well so that the mixture fractures the rock strata and creates the storage
area (Tr. ll-13,4648)?
In 1991 CNG hired Delta Drillingto redrill a well referred to as UW 103(Tr. 17,46).
After Delta Drilling had redrilled UW 103, CNG hired HalliIiurton Setices to perform the -
&acing (Tr. 12). Halliiurton Services provided all of the chemicals used in the &Sng
process crf. 14). After the fiacing liquid was pumped into the well under pressure, the well
was capped. It was then necessary to recover the tiac fluid in the “flow-back” operation.
The frac fluid amtained under pressure underground was piped into a “fbw&a&” tank
(also referred to as the ‘Wow~back”tank). The flow-back tank contained a ba8le to blunt

• Because much of the evidence relevant to Union’s cast ws identical with that of CNCYsc8s+, the fbt
  portion of the hearinggenerateda vanscriptthat was wed in both cases The transaiptdtaths arc fbund
  in the tran&pt Mekd “CNG ‘Ilransmission &rporatio&’

                                           3
  

  the impact of the retuming frac fluid mixed with sand under press= vr. 49-51). The
  flw-back tank was padally open at the top (Exh. G2). The frac fluid was then piped hm
  a nearby BeI “Erac”(or ‘trvheely”)tank @xh. c2; Tr. 21). The flw-back tank was
  leased from Whip Stock (Tr. 14). CNG leased the frac taxikbrom Union (Tr. 54).
  At the rear of the frac tank, the floor of the tank formed a 20or 3-foot long step to
  acccmmodate the wheels underneath it (MI. G2, Photograph A). At the front of the f&
  tank was a “manho1e” next to the foot of the ladder which was used to gain acms to the
  top of the fix tank The manhole cover was posted with a sign written in English and
  Spanish. The English portion of the sign read (MI. C-2, Photograph D):

                               DANGER
                            DONOTENTER
                        THISTANKMAY CONTAIN
                            FATAL VAPORS
  

  On top of the frac tank were two openings, a manhole cover used to enter the tank
  in order to clean it out, and a smaller opening (Tr. 69). The manhole was appmaimateb
  19 by 21 inches, and the smaller opening was 1 or 2 inches in dimeter ok. 37,268). A
  ladder descended from the top manhole into the frac tank (Exh. C-5; Tr. 74). The top
  manhole is above the elevated section of the tank’s bottom. The smaller opening is above
  the lower section of the floor (Tr. 52).
  On June 2,1992, the second phase of the fracing process began at UW 103(Tr. 254).
  The first phase had been completed the week before (Tr. 124). James Simons,a production
  specialist from CNG, coordinated the second phase of the fbing process at UW 103. He .
  was not involved in the first phase (Tr. 11,25).
  Generally, CNG used its own people to perform the flow-backoperation, but Simons
  explained CNG was “under such a heavy workload that year that [it] did not have the
  people, so [CNGJcontracted outside help to do that work” (Tr. 18). Brian Sheppard, an
  engineer for CNG, Caned Arthur Dennis Chidester (Sheppard referred to him as ‘Dan”),
  a drilling superintendent for Union, in July 1991 (Tr. 327-328). Union had done some
  drilling for CNG in the past (Tr. 328). Sheppard told Chidester that CNG “needed

                                       4
  

  pers~~~l to help rig up the flow line and then monitor the flow back for the flow back
  operation” Fro 329) ,
  Sheppard asked Chidester for a two-man crew. Chidester asked Sheppard if he
  would mind us@ two two-man crews so that the personnel could be rotated and the
  employees could keep their benefits active. Sheppard agreed to this arrangement vr.
  330-331).
  Union assignedMike Phipps, A, Harley Doyle, George Burkhammer, Bob Davisson .
  and Herb Sias to the UW 103 site.2 Davisson and Sias were on the day crew, and Doyle
  and Burkhammer were on the night crew (Tr. 17). Prior to this assignment, neither
  Davisson nor Sias had ever done any flow-backwork (Tr. 128,171).
  Sias test&d that Davisson, who was his supervisor at Union, asked him if he wanted
  the assignment. Sias told him that he had never done flow-back work before. Davison
  assured Sias that the crew they were relieving would tell them what to do when they arrived
  at the site (Tr. 171). When they arrived at UW 103, Union employees Dqk and Mike
  Phipps explained to Davisson and Sias that they had to monitor the tank gauges and
  measure the depth of the frac fluid in the wheely tank every two hours (Tr. 172173). One
  of the crew, Sias remembers him as Doyle, told Sias and Davisson how they were measuring
  the fkac fluid. He said that they were going into the tank through the top manhole.
  Davkson never went into the fiat tank He went down the ladder the first day vr. 126).
  Sias went down through the manhole once or twice (Tr. 173, 189490) but then told
  Davisson, “I don’t like the idea of going down in here” (Tr. 173). Sias and Davissoa began
  measuring f!komthe smaller o*ning by dropping the weighted end of a lGf=t steel tape
  measure to the floor of the tank (Tr. 127, 173). A fluid late1 gauge on the & tank was
  inoperable (‘I?. 29,34, ZOO).Having discovered this method measuring the level of the tic
  fluid, Davissonand Sias demonstrated it to the nightcrew on June 2,1992, and warned them
  not to go down into the frac tank (Tr. 180481).

2 Apparently,the night crewfor the first night of the &acingprocessamisted of Doyle and Phippa The next
night Doyk was pairedwith Btukhammcr.
 Earlier that day, Simons and the Union crew detected a kak in the &m&ack tanlr_
Simons decided to readigm the piping and between 590 p.m. and 530 p.m. d&ted
Davisson and sibs to bypass the flcmbck tank and flow the liquiddirectlyinto the tiac tar&
(Tr. 14,63,67).
The gas pressure which had escaped when the fiat fluid was passing throughthe
flow-back tank now flowed directlyinto the fkac tank Sias, who stood on top of the tic
tank after the recotiguratio~ stated that the frac tank began pulsating: The tank was
just-the sides [were] going in and out of it and the top the same way . . . l It was just
moving back and forth, the metal on the sides of the tank The top was just moving back
and forth” (Tr. 162).
The new configuration also caused the liquid to foam up to the top of the frac tank
(Tr. 133,141-142). Sias and Davisson asked Simons to get some defoamer for the frac tank
Hailiiurton delivered several containers of the defoamer as Davisson and Sias were being
relieved by Doyle and Burkhamrner (Tr. 36, 141, 177).
Davisson and Sias reported to work on the morning of June 3, 1992, at 7~00a.m.
They saw no sign of Doyle and B&hammer whom they were supposed to rcliev~ QYr.145,
181). The foam was still a foot or two from the top of the tic tank (Tr. 161, 181). The
measuring tape had been stuck in the small opening on top of the tank. Sias and Davisson
started pumping the frac fitid out of the frac tank to see if the missing men were in there.
Eventually, the bodies of Doyle and Burkhammer were found at the bottom of the ladder
inside the tic tank vr. 145, 200). The cause of death was later determined to be
asphyxiation (Tr. 295).

                Who Was the “Em~lover” for P~~wM of the Act?


    Only an ‘employed may be cited for a violation of the Act.” Vetgvna Chme Co., 15

BNA OSHC 17Q 1783,1992 CCH OSHD f 29,775 (No. 88-1745,1992). Section 3(S) of
the Act defines an “employer” as “a person engaged in a business affecting commerce who
has employees.” Section 3(4) of the Act defines a “person” as “one or more WiGduals,
partnerships, associations, corporations, business trusts, legal representatives, or any

                                         6

O- group of ~C~OIS.* Section 3(6) de5ncs “emplayec” as %n employee af m
empm who ir empkgd in a business of his employees which afftcts commerce.”
Both ClUGand Union were cited as employers of the four men monitoringthe 1-l
of the &ac fluid. Union, and to a ksser exteni CNG, argue that the other party is the
employer for puposes of the Act. The secretary arguesthat both parties are liable as
employers under the Act. Review &nmission case law establishes some guidelinesfor
determiningwbo of two emplayers is responsible for the sslretyof employees.
LM year the Commission reiterated its %conomic realities test” formulated to
determine whether an employment relationship e&s between employees and the alleged
employer. In Loomis Cabinet Company, 15 BNA OSHC 1635, 1637, 1992 CCH OSHD
129,775 (No. 884012, 1992), the commission stated that it had %onsidered a number of
factors” when makingthe determination, including:
1) Whom do the workers consider their employer?

   2)      Wbo pays the workers’wages?

   3)      Wbo has the responsibility to control the workers?

   4)      Does the alleged employer have the power to control the
           workers?

   5)      Does the alleged employer have the power to fire, hire, or
           modify the employment condition of the workers?

   6)      Does the workers’ ability to increase their income depend on
           efficiency rather than initiative, judgment, and foresight?

   7)      HCIW
              are the workers’wages established?

   Vim Bzuwz-M&wash, 13 BNA OSHC at 2158, 1989 CCH OSHD at p.
   37,7#I (quotingGki#ih& Bmd, 6 BNA OSHC at 1703,lWS CCH OSHD at
   pp. 27&5aLol).

   In an earlier case, MU    Industries,k.,   12 BNA OSHC lS2S,l98S CCH OSHD

127,408 at p. 3S,S70(No. 83231, MIS), the commission emphasized that the primary factor
to be considered in determinin g whether an employment relationship exists is controls

                    .
                                         7



                                                                          _-..   .

‘2beaaesspurposeoftheActisto”assuresofaraspossibkeveryworking =
man and wumm in the Nation safe and healthful workiag conditions.” 29
U.S.c 9 651(b). To effectuate this purpose it is appropdate for the
Commission, in considering whether an employment relationship exists, to
place primaty rdiana upon who has controlwer the work environment such
that abatement of the hazards can be obtained.

   In another case from last year, the Commission addressed a recent Supreme Court

decision which accorded with commission precedent regarding the primacy of the issue of
control in analyzing an employment relationship:
The Supreme Court recently held that the term “emplayee” in a federal
statute should be interpreted under common law principles, unless the
particular statute spe&cally indicates otherwise. N&~&M4&zualI~
co. voDmkn, 112 S.Ct. 1344,1348 (1992). See bmir cizbiiw cd, l!l BNA
OSHC 1635,1637 (No. 88-20121992). The Court noted that all aspects of
the relationship are relevant, but that the central inquiry is as follows=

          In determining whether a hired party is an employee under the
         general common law of agency, we consider the hiring party’s
         right to control the manner and means by which the product is
         accomplished. Among the other factors relevant to this inquiry
         are the skill required; the source of the instrumentalities and
         tools; the location of the work; the duration of the relationship
         between the parties; whether the hiring party has the right to
         assign additional projects to the hired party; the extent of the
         hired party’s discretion over when and how long to work the
         method of payment; the hired party’s role in hiring and paying
         assistants; whether the work is part of the regular business of
         the hiring p~irty; whether the hiring party is in business; the
         provision of employee benefits; and the tax treatment of the
         hiredparty.

  112 S.Ct. at 1348 (quoting Communityfor CzeeativeNon-Vwke v. Reid,490U.S. 730,
  751-752(1989)(fmtnotes omitted)). Thus, the central inquiry under both tests is the
  question of whether the alleged employer has the right to control the work irrvohd.
  See Lamis, 15 BNA OSHC at 1638.

Vetgontz
&me Co., 15 BNA OSHC at 1784.
In the present case, CNG contacted Union and requested the company to send uver
some employees to monitor the fkacing process. After Union did so, its involvement with
the proje@ other than paying the empm’ w wntial!y e&d pro 70-73)
Chidester, Unioa’s nape&or, ustEed that he m@ned the employees to the prujca a&
stated, “1 remind t&b ~~rvisor as far as sending them out of the shop, and if I got a
d telling me we needed them tomorrow or to have them there at 6:00 a.m. or whatever,
I utas their supervisorin that capacity” (Tr. 88). chidester never visited the UW 103
worksite pro 8%89).
Union supe&ors were not present at the site, nor did they ever ins- the
employees on what theywere to do or how to do it. When Davisscmasked Sias if be wanted
to work on the UW 103well, Sias stated, “I have never done that before.” Davissonreplied,
“We will show you wben you get there. The guy you are relieving will explain to you what
you are doing and tell you what to do” (‘I’r.171). The aew that Davisson and Sias relieved
had been instructedby James Simons, CNG’s production specialist, who tcstibd, “I told
them at what point we should be opening the valve up to begin process of the fknwback,
and we also &cussed the measurements of the tank” vr.. 19).
Sias testifiedthat he considered CNG personnel to be the supeMso= of the pro&t.
Smave the crew instructionson bow to perform the work Simons and ano&cr CNG
supervisor, Dave:Taylor, would ask to see the logbook that the employees kept. As Sias
stated, “If we are drilling a well for a certain company, when the guy asks you to do
something, you do what he tells you or you try to. We consider that’s who we are working
for” (Tr. 176).
Davisson and Siaswere instructed by CNG to change the choke pr. 176477): ‘They
told us what sb choke to put in. We knocked the line apart and put a choke in it.” On
June 2,1992, when the flow-back tank was leaking, it was Simonswho ordered Davissonand
Sias to reconfine the pipe so that the frac fluid flowed directlyinto the fiat tank (I’r. 67,
177). When asked if it was necessary to call Union to request permission to allow the
employees to recotigure the pipe, Simons replied, “No” (Tr. 67).
Applying the Supreme Court’s employment test cited in Da&z, qmz, it is apparent
that CNG was an employer of the crews leased from Union for purposes of the Act. All of
the witnesses test%ed that the flow-back operation did not require a highly skilled w&f&e.
Davisson stated that he did not consider the work that be was asked to do dif&& or

                                         9

complicated (Tr. 146). Sias testiki that tk pb he was asked to do did not re~uitd q
special skills Fro 1%). Simons went so far as to state, ‘We could pick two people off &e

street to handle this job” vr. 314). CNGWBS
not rely@ on any particularexpertiseof the
Union workers. The crews did not baneto svp& Wy special tools or quipmen& The work
was done at CNG’s well site UW 103. CNG had the right to assign additional projects to
the workers, as evidenced by the events of June 2,1992, when Simons asked D&son and
Sias to assist him in realigning the pump so that fluid bypassed the fluw-backtank and went .
directlyinto the wheely ta& CNG Mormed Union what time the workers were to report
to the jobsite (Tr. 70-73). When the job was completed, CNG either told the employeeson
the site not to return or called Union, whichever was easier (Tr. 72). The flow-back
operation is part of the regular business of CNG and, ordinarily, CNG used their own
employees to flow back the wells during the b&g process ur. 18).
Under both the Supreme Court’s and the Commission’s fonnulathns of their ’
employment tests, in which the most significant f&tor is whether the alleged empkqer has
the right to control the work bobed, CNG was an employer of the employees leased kom
Union. CNG controlled the UW 103 well and controbd the employees’ p&xmana of
their work. The only instructions and orders the employees received were from CNG
personnel. CNG is an employer of the Union employees within the meaning of the Act.
In UnionDriving (No. 930154), the companion case to the present case, it was determined
that Union was not an employer of the employees monitoring the frac fluid for puposes of
the Act.

                               CITATION NO. 1
       .
                Item 2= Alleged Violation of 6 1910.27&Ml)(ii)


  The Secretary alleged a serious violation of 0 1910.27(b)(l)@), which provides:
  The distance between rungs, cleats, and steps shall not exceed 12 inches and
  shall be uniform throughout the length of the ladder.




                                        10

The ikac tank was quipped with fixed ladderson the front and rear to am a~
tothetopofthetank Theladderattherearofthetankwasmissingtwo~~G~
Photograph A; Tr. 212.213).
Compliance OBcer Beresteclq explained the hazard presented by the missingrungs
(Tr. 213-214):
we ladder] was available for use. There were no measures taken to ensure
that employees would not use it. For cxampk putting duct tape acrom the
ladder. My concern was that if you were on top, if you ascend the wheely
tank from the front, get on top and decide that tbe way you want the rear
ladder, you may have a bit of a problem on your hands once you reach that
fifth rung down, because it is not there.

   Tbis particular vehicle was being used at all times, day and night, and there
   was no artificial lighting in the asea
                                        l   l   l   l




   CNG counters that the Secretary failed to prove that any employee used the ladder

at the rear of the fkactank. Sias testifkd that be always used the ladder at the front of the
tank (Tr. 185). Sias’testimony does not establish, however, that the other employees did
not use tbe faulq ladder. Furthemore, as Berestecky testified, the faulty ladder WM
available for use. The Secretary need only prove that tbe employees had access to the
hazard, not that they were actually injured by it.
The missing rungs were obvious to anyone who visited the site (Tr. 214). CNG
personnel, including Simons, were at the site and should have, with reasonable diligence,
observed the missing rungs and taken steps to abate the hazard.
Beresteclq testified that tbe missing rungs created the hazard that an employee
descending the ladder could fall and injure bimse& resulting in Uything fkom a simpk
abrasion to a contusion to fiwtures or concussions” (Tr. 220-221). The site was relatively
isolated, which may have delayed medical treatment.
The Secretary has established that CNG was in serious violation of 3 1910e2@)(1)(iiiii~

                    Item 3: Alleged Violation of S 1910.151k~


   The Secretarycharged CNG with a serious violation of 8 1910.151(c),which providesz


                                            11

wheretbeyesorbodyof~ptfsoIImBybeexposedtoinjuriotucorrosive
materiak, suitable facilities for quick drenching or flushing of the eyes and
body lhan be provided within the work area for immediate emergenq use.

   Tbe chemicals used in the fhcing processincluded liquified nitrogenand hydrochloric

acid (Tr. 17). There was neither an eye wash station or a deluge shower at the site (‘I’re
217). Sias and Dwisson told Bcrcstecky that “there had been times when the materialgot
on their skin and caused some burningsensation”(Tr. 218). Davisson recounted bow it felt
when be got some fkac fluid on his arm (Tr. 130): uIt kind of burntyour skin. We thought
it was from the wind or something, that stuff getting on us. I don’t know whether it came
out of tbe well. It left a little tingle on your skin and on your arm.” Davisson did not wipe
the fluid off of his arm, nor did he seek medical treatment for it. The thgling sensation
lasted for “lj]ust a minute maybe” (Tr. 144).
CNG argues that, while bydrocbloricacid is used in tbe &acing process, it was
substantialIy diluted with water and was largely used up when it reacW with the
underground rock (Tr. 48). Simons testified tbat be had come into contact with hc fluid
on “numerous” occasions and had never sustained any kind of damage or disuxnfort as a
result (Tr. 314-316). Brian Sheppard, an engineer for CNG, testified tbat he bad gotten fkac
fluid on his skin ‘ivell over 100 times” and that he bad never stiercd any in effect from it
(TL 333-334).
Tbe Secretary did not submit tbe results of any chemical analysis of the frac fluid
Berestecky took a sample of the fluid on June 11, nine days after the accident (Tre 254).
He testified that be sent the sample to tbe Salt Lake City laboratory, which determinedthat
the sample Tuas predominantly water with a pH of roughly 5” (Tr. 252). The pH of a
neutral solution is 7.
Tbe cited standard applies to “injurious corrosive materials.” Tbe Secretary has
failed to establish that the frac fluid was either injurious or ConoSive, Tbe employees who
came in contact with the fiat fluid suffered no ill effects from it, other than a tingling
sensation that lasted less than a minute. Tbe Secretary presented no expert testimony,
either chemical or media to establish tbe composition and acidity of the frac fluid. The

                                         12

sample taken by Bcrcstcc~, whichwas not representativeof the hc fluid at the time of the
determined to be rno6tlyWater,
accident, WEIS
Abwnt more conclusiveevidence,it cannot be determined that the frac fluid Qualified
a~ an ?njuri= corrosive materiaLn The Secretary bas failed to pfovt that the cited
standard applies to the hc fluid. Item 2 is vacated.

                                      CITATION NO. 2

                            Item 1: AIlened Violation of 4 5(axu


         The Secretary alleged a willfkl violation of 6 5(a)(l) of t&e Act, which provides:

         Each employer shall furnish to each of his employees employment and a place
         of employment which are free from recognized hazardsthat arc causing or 8~c
         likely to cause death or serious physical harm to bis employees.

         The Secretary contends that CNG’sfailure to train the employeesleased from Union
in confined space entry procedures constituted a willfulviolation of 0 S(a)(l).
         To prove that an employer violated 9 S(a)(l), the- Secrew must show:
         (1) that a condition or activity in the employer’sworkplacepresented a hazard
         to employees, (2) that the cited employer or the employer’s industry
         recognized the hazard, (3) that tbe hazard was likely to cause death or serious
         physical harm and (4) that feasible means existed to eliminate or material@
         reduce the b-d.       UiWi SWU Steel Corp., 12 BNA OSHC 1692,1697-98,

. 1986-87 CCH OSHD 127,517, p. 35,669 (No. 79-1998, 1986).

CO~CO    IndrcsnieS,Inc,, 14 BNA OSHC 1%1,1%3,1991 CCH OSED I 29,200 (Noe 84546,                *
1991).
(1) A condition in the worblace Dresented a hazard to emDlovees.
         hrestecky testified that the primary b-d      presented to tbe employees at tbe site

was the absence of an adequate oxygen supply in the ikac tank Tbe nitrogen gas emanating
from UW 103 displaced the oxygen in the fkac tank, rendering the air in the tank inadequate
to sustain human life (Tr@224). The nature of the hazard is obvious from the deatbs of tbe
two men who were found in the fkac tank.

                                               13

In CNG’s safety manual, Guide 10Job Safetydt HcawS,pages 11 aad 12 address
“working in a Clmfmed Space” (Exh. R-3). On page 11, the manual states (emphasis
added):
Apical confined spaces would include vaults, manholes, pipe, wds, tcmkr,
etcm

   Before entering a confined space, the atmosphere must be tested to determine
  ifaflammablegasispre~ntoraxygarhcrsbcar~cdtoIhe~thofthc
  remainLrgair is iiwhquute for safe bauhi@. 77~ minimumacceptablelevd
  of w     contentfor safe breathingis ~~!!JNFIWU.

   The manual goes on to detail how the employees must test for the oxygen

concentration before entering the confjned space, notif) their supervisors if there is ary
indication of oxygen deficiency, use a self-contained breathing apparatus (SCBA) or air-line
breathing apparatus to enter a confined space with an oxygen deficiency, prepare ~II
emergency rescue plan prior to entering the confined space, and have at least OZBC
standby
person outside the confined space to provide assistance if necessq The section on
confined spaces concludes (Exh. R-2, pg. 12):
All employees who are subject to entering an area containing an unsafe
atmosphere must be trained in the use and maintenance of self-cuntained
breathing apparatus (SCBA) or air-line breathing apparatus.

  CNG’s safety manual provides strong evidence that CNG recognized the hazard

presented by entering the tiac tank The manual specifies tanks as confined spaces and
directly addresses the issue of oxygen displacement. CNG realized that approximately 1.5
millioncubic ftet of nitrogen was being used in the &a&g process (Tr. 227). The invoice
for the nitrogen was signed by CNG’s Simons (Exh C-8).
CNG rea@zed that entering the fkac tank during the &acing process was a hazard.
(3) The hazard was likely to cause death or serious physical harq.
The seriousness of the hazard is demonstrated by the deaths of the two employees.

                                        14

(4) meansexisted to eliminate or mated& b
J%asiibk
Had CNG actuallyimpkmented its confined qmce programby trainingthe empIoyees
ld ftom Union,it could bave materiallyreduced the hazard.
Davisson and Sias, the two Union employees assiped to the UW 103 project both
testified that they were never instructedby anyme from CNG not to enter the tank (Tr. 132,
180). Simons testified that he told one of the two emphyees not to go into the tank but .
could not remember which one (Tr. 22-23). Having observed the demeanor of the witnesses
and character of their testimony in light of the f&s, Simons’testimony that he warned one
of the two workers to stay out of the tar& is regarded as self-serving and is rejected.
Furthermore, Simons stated that he had no discussions whatsoever with Burkhammer or
Doyle, the employees who died in the tank (Tr. 42). The decision by Sias and Davisson Iwt
to enter the tank to take the &ac fluid measurement was reached on their own, with no
warnings or instructions from CNG.
The likelihood of an accident occurring was increased by the fact that the gauge cm
the tank for the fluid level was broken. Simons stated, “I have worked around these tanks
basically since they have been made, and if these tanks are not brand new, normally the
gauge does not work” (Tr. 34).
CNG relies on the warning signs posted on the outside of the tank to exculpate itself
from the responsl”bilityof training the employees in confined space entry. The signs are an
inadequate substitute for confined space training. The other crew from Union was the first
to give Sias and Davisson their instructions. ‘They said they were going down in the tank
getting readings” (Tr. 150). Sias and Davisson had no reason to beheve this procedure was
incomct (Tr. 150). Simons stated that he expected the employees to measure the fluid level
by climbing on top of the tank and sticking a steel tape measure down into the tank (Tr. 34).
Considering the top of the frac tank contained an opening large enough for a man to fit
through and had a ladder descending from the opening into the tank, it is not surprising that
employees assigned to measure tie fluid would enter the &ac tank to take the
measurements. Training in confined space entry would have alerted them to the dangers
in doing so.

                                         15

The Sccretq has established that CNG violated 9 S(a)(l) by its fkilurc to train w
empbyees ia ccmbed spu entry.
A willfbl violation is one committed with intentional, kxxnwingor voluntary
disregardfor the requirements of the Ad, or with plain indiEeremc to
employee safety. EG., WilliamrEnterpisct,Inc., 13 BNA OSHC 1249,12S
57, 1986-87CCH OSHD 127,893, p. 36#589(No. W-355, 1987). It is
difftrcntiated from other types of vioiatiom by a “heightemd awareness-of
the illegalityof the conduct or conditions-and by a state of mind-conscious
disregard or plain indEerencx.” Ii

       A finding of wWulness is not justified if an employer has made a good faith
       effort to complywith a standard, even though the employer% efforts are not
       entirely effective or complete. Iii A& a violation is not willfbl if the
       employer had a good faith opinion that the violative conditions confomed to
       the requirements of the cited standard However, the test of good faith for
       these purposes is an objective one-whether the employer% belief comeming
       a factual matter, or concerning the interpretation of a standard, wzub
       reasonable under the circumstances. Ii 13 BNA OSHC at 1259, 1986-87
       CCH OSHD at p. 36,591.

CalangCop., 14 BNA OSHC 1789,1791,1990 CCH OSHD 129,!531 (No. 85-319,199o).
       CNG3 violation of 0 S(a)(l) in this instana does not rise to the level of willfUn=
CNG did not demonstrate plain indifference to the employees’safety. The fact that it had
a co&ed     space entry program prior to OSHA requiring such a program showsthat CNG
was concerned with employee safety. The fact that CNG failed to train the employees
leased from Union is a serious violation of Q S(a)(l), but it does not manifest a heightened
awareness of the illegality of the violation. The frac tank was posted with warnings not to
enter it.   The measurements could be taken ikom outside the tank.           CNG believed,
mistakenly, that this was sufficient to keep the employees from entering the tank. While this
was a tragicmk@culation on the company’s m        it is not willful behavior. If the employees

. had been rquired to enter the frac tank and had still not been trained in conf%xxispaces,
that would amount to willful conduct. CNG should have trained the employees in ~nEned
spaces on the basis of their access to the interior of the frac tank, but its violation is a
serious violation.

                                             16

The secretary chargedCNG with willfulviolations of five secfi~~ls of 3 1910.12@ the
hazard communication standard The cited standards are:
Item 2a - 0 1910.12o(e)( l)(ii):

  (e) Wii#cn hourni COrrzmuZication Wm.           (1) Employers shall develop,
  implement, and maintain at the workplaa, a written hazard communication
  propam for their workplaces which at least describes how the criteria
  specified in paragraphs (f), (g), and (h) of this section for labels and other
  forms of warning, material safety data sheets, and employee informationand
  training will be met, and which also includes the following:



        (ii) The methods the employer will use to inform employees of
        the hods     of non-routine tasks (for example, the cleaning of
        reactor vessels), chemicals contained in unlabeled pipes in their
        work areas.

  Item 2b - 6 1910.1200(f)(5)(i):

 (f) Labels and otherform of wamihga(5) Except as provided in paragraphs
 o(6) and (f)(7) th e employer shall ensure that each container of hazardous
 chemicals in the workplace is labeled, tagged or marked with the following
 information:

         (i) Identity of the hazardous chemical(s) contained therein.

 Item 2c - J) 1910.1200(f)(5)@):

        (ii) Appropriate hazard warnings.

 Item 26 - 0 1910.1200(g)(8):

 (g) Materiarsafety datclsheets. (8) The employer shall maintain copies of the
 required material safety data sheets for each hazardous chemical in the
 workplace, and shall ensure that they are readily accessr’bleduring each work
 shift to employees when they are in their work area(s).


                                       17

JteU - 0 1910.1200@):

   (h) Ehrploycchfmtion andarrining.Employers shall provide empm
   with informationand trainingon hazardouschemicalsin their wcxk m at the
   time of their initialassignment,and whenever a new hazard is introduced into
   their work area.

   CNG has a written hazard communication program (Tr. 249). The hcing           prm

required the employees to work with nitrogen and hydrochloric acid. It is undisputed that
CNG failed to inform the employees leased from Union of the potential hazards of the
fiacing process, to mark the flow-back and frac tanks with appropriate hazard warnings, to
provide information identi&ing the chemicals used in the &acing process, to make available
material dety data sheets (MSDSs),and to provide training in working with nitrogen and
hydrochloric acid (Tr. 23,128, 178).
CNG raises several arguments, each without merit. First,CNG argues that UW 103
was a temporary, not a permanent, worksite. There is no provision in the Act makingthe
hazard communication standard applicable to only permanent worksites. As kmg as CNG
had employees on the site, it was required to comply with the standard
Second, CNG argues that Halliiiurton Services brought the frac fluid onto the site and
that, while Habiiiimon was on the site, it had the MSDSs available for the employees.
When Hallii!iurtonleft, it took the MSDSswith it. This is of no help to CNG. The standard
requires that “the employer” m@ceavailable at all times the MSDSs. It has alreadybeen
established that CNG was the employer of the emplayees leased from Union for purposes
of the Act. The employees from Union were not even on the site when Halli%urton
delivered the frac fluid to UW 103.
Third, CNG argues that the Secretary failed to prove that the employees were dealing
with hazardous chemicals that required MSDSs. WhileCNG acknowledges that hydrochloric
acid and liqtied oxygen went into UW 103, no accurate analysis of the frac fluid coming
back from UW 103 was done. CNG may have a point regarding the hydrochloric acid,
which was diluted with water. The same cannot be said, however, for the nitrogen. The
MSDS for nitrogen warns that “GAS REDUCES OXYGEN AVNLABIE FOR
BREATHING”and that it shouldbe used“ONLY WITHADEQUATE~TION”
(&la. C-l). Hkd the emplayees been told specificanythat thq were dealing with nitrogen,
and bad they had access to the MS= for it, they mayhave been less lilreb to enter the frac

   F!iii$   CZlW3
                argues that the warningsigns posted on the frac tank were suflicient

to put the elipfoyees on notice that they were not to enter the frac tank The hazard
GQ~~BZ&&OIIstandard mandates a number of very specific requirements for
tmmmmkating information to employees regardingthe chemicals they will be using. The
standard cannot be satisfied by recourse to a general warning sign permanentlyposted on
a 2iink0
The Secretary has established that CNG was in violation of the five cited provisions
of # 1910.1200. The Secretary cited the violationsas wihl, but presented no evidence that
established that CNG demonstrated either intentional disregard of the Act or plain
indifference to employee safety. The violations were, however, of a serious nature, involving
&e kilure to instruct employees in the use of a potentially (and in this case, actually) deadly
4, ‘Thetihtions are classified as serious.

                              l   Penalty Determination


   Under 0 17(j) of the Act, the Commission has authority to assess appropriate

penalties against the employer, “giving due consideration” to “the size of the business of the
employer being charged, the gravity of the violation, the good faith of the employer, and the
history of previous violations.” Because the Secretary cited the violations as willfi& the
compliance officer did not believe it was necessary to delve into CNG’s size, good faith, and
history of previous violations (I?. 272). The Secretary did not submit any evidence on these
points. CNG volunteered that it had received one citation in the past ten years (Exh. R-3;
Tr. 353). While the size of CNG is unknown, there was no evidence of bad faith on the part
of CNG at any time relevant to this case. The gravity of the offenses was severe, with death
as the likely outcome of the violations.

                                           19

Upon due amsidemtion of all of these fhtors, it is determined that the fonowing
penaltics am 4y’pmphte:

           Item2                                                 $5~

                                  Citation No. 2

           Item1                                                 s7,ooo
           Items 2aGe                                            s7,ooo


                           JTINDINGSOF FACT AND
                            CONCLUSIONSOF LAW


  The foregoing decision constitutes the findings of fact and conclusions .of law in

accordance with Federal Rule of Civil Procedure 52(a).

  Based upon the foregoing decision, it is hereby ORDERED:
  (1) That item 2 of Citation No. 1, alleging a violation of Q 1910.27@)(l)(ii), is

affirmed and a penalty of $2,000 is assess&;
(2) That item 3 of Citation No. 1, alleginga violation of 5 1910.151(c),is vacate&
(3) That item 1 of Citation No. 2, alleging a violation of 0 S(a)(l), is affkmed as
serious and a penalty of $7,000is assessed; and
(4) That items 2a through 2e, allegingvioIationsof H 1910.1200(e)(1)@),(f)(5)@
00(~)~ (sxsx =ci m are affirmed as serious and a total penalty of $7,000 is asesed.

                                              /is/Nancv J. Sbs
                                     NANCY J. SPIES
                                     Judge

Date: January 31, 1994