Marshall v. Nichols

• Decision Date: 10 March 1980
• Docket Number: Civ. A. No. S-79-67-CA.
• Citation: 486 F. Supp. 615
• Parties: Ray MARSHALL, Secretary of Labor, United States Department of Labor v. Lee NICHOLS.
• Court: U.S. District Court — Eastern District of Texas

486 F. Supp. 615

Ray MARSHALL, Secretary of Labor, United States Department of Labor v. Lee NICHOLS.

Civ. A. No. S-79-67-CA.

United States District Court, E. D. Texas, Sherman Division.

March 10, 1980.

Walter W. Christy, New Orleans, La., and William C. Chaney, Dallas, Tex., for defendant.

Robert A. Fitz, Sol., Dept. of Labor, Dallas, Tex., for plaintiff.

MEMORANDUM OPINION AND ORDER

ROBERT M. PARKER, District Judge.

This lawsuit arises out of an explosion on a Penrod Drilling Company platform in the Gulf of Mexico. The well blowout occurred on March 5, 1979, and the drilling platform was situated at Block No. 281, a lease maintained by Placid Oil Company.

The lease in question was sold to Placid Oil by the Secretary of the Interior, after Placid Oil had complied with the extensive regulations of the Department of the Interior which govern the exploration of oil and gas deposits beneath the Outer Continental Shelf. See, generally, Union Oil Company v. Morton, 512 F.2d 743, 747 (9th Cir. 1975). Following issuance of this lease, Placid Oil contracted with Penrod Drilling for the performance of well drilling at Block No. 281, and during the course of drilling operations on Penrod Rig No. 30, a blowout and fire occurred on the platform. The fire and explosion killed several persons employed on the platform.

After the accident the Coast Guard and the United States Geological Survey conducted an investigation, and an initial hearing was held March 12-14, 1979. A representative of the plaintiff governmental agency, Occupational Safety and Health Administration, attended the hearings but did not participate. During the first phase of the Coast Guard and United States Geological Survey investigation, the cause of the accident and the safety precautions on Rig No. 30, both prior to and following the explosion, were issues upon which evidence was received. Subsequent hearings were conducted by the Coast Guard and the United States Geological Survey during June-July, 1979.

On March 14, 1979, plaintiff announced an intention to investigate the working conditions of Placid Oil's platform prior to the accident and obtained a warrant on March 16, 1979, to inspect Placid Oil's Houma, Louisiana, office. On motion of the plaintiff this inspection warrant was recalled, whereupon plaintiff issued administrative subpoenas compelling employees of Placid Oil Company and Penrod Drilling to testify at OSHA proceedings. Defendant, an employee of Penrod Drilling, refused to testify, and plaintiff filed this lawsuit to enforce the dishonored administrative subpoena.

Plaintiff has moved for summary judgment, seeking an order from this Court compelling defendant to testify in compliance with the administrative subpoena.

The defendant has filed a motion for summary judgment under Rule 56, F.R. Civ.P., which asks the Court to dismiss plaintiff's complaint. In support of his motion, defendant has filed with the Court affidavits of Lawrence Abbot, Van Kojis, Walter Christy, and Richard Ford, as well as, the transcript of a hearing held on plaintiff's motion for summary judgment in Marshall v. Van Kojis (E.D.La.1979), a companion case arising out of the same facts and involving identical legal issues.

Defendant has moved for summary judgment on the ground that issuance of the administrative subpoenas was beyond the statutory authority of plaintiff agency.

Plaintiff opposes defendant's motion for summary judgment, contending that investigations of offshore drilling operations are within the power of OSHA.

The Outer Continental Shelf Lands Act provides that the United States District Courts shall have original jurisdiction of cases in controversy arising out of any drilling operations conducted on the Outer Continental Shelf. 43 U.S.C. § 1349(b)(1).

The Outer Continental Shelf Lands Act sets up an extensive scheme for federal regulation of working conditions on offshore drilling platforms; and pursuant to this statutory authority, both the Coast Guard and the United States Geological Survey have enacted and enforced safety rules regarding offshore drilling. In setting up this regulatory sphere, Congress announced an intention that the Coast Guard and the United States Geological Survey are to promulgate and enforce regulations to insure that offshore drilling operations are ". . . conducted in a safe manner . . . in order to minimize the likelihood of occurrences which endanger life or health." 43 U.S.C. § 1332(6).

When the federal government executes a lease of offshore lands for the purpose of drilling operations to be conducted by the lessee, the Department of Interior has power to issue regulations concerning production operations to be carried out. 30 C.F.R. § 250.11. The United States Geological Survey, an agency under the Department of Interior, inspects and regulates offshore drilling operations with the specific purpose of seeking to prevent injury to life or property. Under the provisions of the Outer Continental Shelf Lands Act, an offshore lease is issued and maintained under the supervision of the United States Geological Survey.¹

The United States Geological Survey has developed and currently enforces safety regulations governing working conditions on drilling platforms in the Outer Continental Shelf.

The general policy of the Outer Continental Shelf Lands Act is that offshore drilling operations are to be conducted in a safe manner in order to minimize dangers to workers and the environment that result from blowouts. These policies are followed by the Interior Department and the United States Geological Survey in promulgation of regulations governing drilling and issuance of leases. Pauley Petroleum, Inc. v. United States, 591 F.2d 1308, 1323 (Court of Claims 1979). Orders specifying blowout prevention equipment to be installed on platforms, procedures to be taken upon occurrence of a blowout, safety equipment installation on drilling rigs, and mandatory safety training for personnel on offshore platforms have been issued by the United States Geological Survey. See, generally, 30 C.F.R. §§ 250.11, 250.12. Pursuant to the authority granted by the Outer Continental Shelf Lands Act, the Interior Department has promulgated the following regulation:

The lessee shall perform all operations in a safe and workmanlike manner and shall maintain equipment for the protection of the lease and its improvements, for the health and safety of all persons, and for the preservation and conservation of the property and the environment. The lessee shall take all necessary precautions to prevent and shall immediately remove any hazardous oil and gas accumulations or other health, safety or fire hazards. 30 C.F.R. § 250.46 ("Workmanlike Operations").

All of these regulations relate directly to safety and the prevention of well blowouts. Prior to commencement of drilling operations at Block No. 281, Placid Oil complied with all platform and safety design standards of the United States Geological Survey, and the United States Geological Survey approved Placid Oil's proposed operational plans. The drilling operations on this platform prior to March 5, 1979, were conducted in compliance with regulations promulgated by the United States Geological Survey and the Interior Department.

Pursuant to the authority granted by Congress in 43 U.S.C. § 1333(d)(1), the Coast Guard has promulgated and issued regulations governing the safety and health of persons employed on artificial islands. 33 C.F.R. § 140.01-5. On the subject of platform design as it relates to employee safety, the Coast Guard has enacted the following regulations:

(a) Manned platforms shall be provided with at least two `primary means of escape' extending from the uppermost platform level that contains living quarters or that personnel occupy continuously, to each successive lower working level and to the water surface. Working levels without living quarters, shops, or offices in manned platform structural appendages, extensions, and installations that personnel occupy only occasionally shall be provided with one `primary means of escape' and, when necessary in the opinion of the Officer in Charge, Marine Inspection, one or more `secondary means of escape.'

(b) Unmanned platforms shall be provided with at least one `primary means of escape' extending from the uppermost platform working level to each successively lower working level and to the water surface. When personnel are on board, unmanned platforms shall also be provided with one or more `secondary means of escape,' but not more than one will be required for every 10 persons extending from the uppermost working level of the platform to each successively lower working level and to the water surface, excluding platform appendages and installations, unless `secondary means of escape' from such appendages and installations are necessary in the opinion of the Officer in Charge, Marine Inspection. 33 C.F.R. § 143.05-5 ("Means of Escape — Numbers and Type Required").

(a) Except for helicopter landing decks which are provided for in paragraph (b) of this section, and areas not normally occupied, the unprotected perimeter of all floor or deck areas and openings shall be rimmed with guards and rails or wire mesh fence. The guard rail or fence shall be at least 42 inches high. The two intermediate rails shall be so placed that the rails are approximately evenly spaced between the guard rail and the floor or deck area: Provided, That if a toe board is installed then one of the intermediate rails may be omitted and the other rail placed approximately half way between the top of the toe board and the top guard rail.

(b) The unprotected perimeter of the helicopter landing deck shall be protected with a device of sufficient strength and size as to prevent any person from falling from such deck. 33 C.F.R. § 143-15 ("Guards and Rails — Floor or deck areas and openings").

Coast Guard regulations relating to lifesaving equipment,...