Fred Wilson Drilling Co., Inc. v. Marshall, 78-3077

• Citation: 624 F.2d 38
• Decision Date: 15 August 1980
• Docket Number: No. 78-3077,78-3077
• Parties: 8 O.S.H. Cas.(BNA) 1921, 1980 O.S.H.D. (CCH) P 24,715 FRED WILSON DRILLING COMPANY, INC., Petitioner, v. F. Ray MARSHALL, Secretary of Labor, U. S. Department of Labor, Occupational Safety and Health Review Commission, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 38

624 F.2d 38

8 O.S.H. Cas.(BNA) 1921, 1980 O.S.H.D. (CCH) P 24,715

FRED WILSON DRILLING COMPANY, INC., Petitioner, v. F. Ray MARSHALL, Secretary of Labor, U. S. Department of

Labor, Occupational Safety and Health Review

Commission, Respondent.

No. 78-3077.

United States Court of Appeals, Fifth Circuit.

Aug. 15, 1980.

Fitzgerald & Sorola, Attys., David S. Fitzgerald, Jr., Lafayette, La., for petitioner.

Domenique Kirchner, Allen H. Feldman, U.S. Dept. of Labor, Washington, D.C., for respondent.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before GOLDBERG, GARZA and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

Fred Wilson Drilling Company appeals a final order of the Occupational Safety and Health Review Commission which sustained the administrative law judge's ("ALJ") findings. ¹ The ALJ fined the drilling company $250 for violating standard 29 C.F.R. § 1910.36(b)(1) by failing to provide a "Geronimo" escape line for derrickmen working on the "monkey board" platform of its oil drilling rig number nine, and $100 for violating standard 29 C.F.R. § 1910.212(a)(1) by failing to guard the rig's Kelly bushing and rotary table. We affirm the finding of liability for violation of the first standard; we vacate the second.

Geronimo Line

The monkey board is a horizontal platform on the derrick approximately ninety feet above the derrick floor and over 100 feet above ground. Employees work on this platform handling sections of drill pipe during drilling operations. Although there are a number of means of exit from this platform, the ALJ's finding that no escape route accessible from the platform would allow descent other than straight down was uncontradicted. The Geronimo line, by providing a method of egress at an angle away from the derrick, provides a safe means of escape in the event of a fire or explosion resulting from drilling, and therefore satisfies 29 C.F.R. § 1910.36(b)(1). Because we find substantial evidence on the record as a whole to support the Commission's factual determinations, 29 U.S.C. § 660(a), we affirm.

Kelly Bushing

The drilling company was found in violation of the standard 29 C.F.R. § 1910.212(a)(1) for failure to guard the Kelly bushing and rotary table. The rotary table, flush with the derrick floor, is approximately three feet in diameter and is constantly rotating during the drilling process. The Kelly bushing rests upon the rotary table surrounding the Kelly, which is a heavy, vertical steel pipe. Power is transmitted from a bank of diesel engines, generators, or power units through a belt system to the rotary table/bushing unit. The rotary table turns the bushing, and together they transmit rotation power to the Kelly while simultaneously permitting vertical movement of the Kelly. The Kelly in turn transmits power to the drill string and cutting bit.

29 C.F.R. § 1910.212 provides, in part, as follows:

§ 1910.212 General requirements for all machines.

(a) Machine guarding (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are barrier guards, two-hand tripping devices, electronic safety devices, etc.

(2) General requirements for machine guards. Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible. The guard shall be such that it does not offer an accident hazard in itself.

In finding Fred Wilson in violation of this standard, the ALJ acknowledged that use of a Kelly bushing guard would pose serious hazards, but concluded that an unguarded bushing, on balance, presented the more unsafe situation. Because Wilson appeared to have acted under a good faith belief that it might be more hazardous to use such a guard than not to use one, the ALJ reduced the penalty recommended by the Secretary from $250.00 to $100.00.

The ALJ based his finding on the testimony of an OSHA compliance officer whose familiarity with this particular aspect of the drilling industry appears to have been minimal. The inspector had never seen a Kelly bushing guard on any rigs he had inspected, had not visited a factory at which guards were manufactured and had never viewed a Kelly bushing guard other than in brochures published by their manufacturers. The officer admitted that he did not understand how a guard is placed on the rig and that he knew nothing of the maintenance of a Kelly bushing. Finally the officer conceded he did not know what effect a guard would have in the event a "blowout" occurred.

The ALJ also relied on the testimony of the president of the Kelly Bushing Guard Manufacturing Company, who is also the designer of the guard manufactured by his company. Although he had twenty-three years experience as a welder, he was not an engineer, had no formal education beyond the tenth grade, and had not had his guard independently tested. His company, which...