True Drilling Co. v. Donovan, 81-7033

• Citation: 703 F.2d 1087
• Decision Date: 11 April 1983
• Docket Number: No. 81-7033,81-7033
• Parties: 11 O.S.H. Cas.(BNA) 1310, 1983 O.S.H.D. (CCH) P 26,498 TRUE DRILLING COMPANY, a co-partnership, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, and Occupational Safety and Health Review Commission, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1087

703 F.2d 1087

11 O.S.H. Cas.(BNA) 1310, 1983 O.S.H.D. (CCH)

P 26,498

TRUE DRILLING COMPANY, a co-partnership, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, and Occupational Safety and Health Review Commission, Respondent.

No. 81-7033.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 5, 1982.

Decided April 11, 1983.

John L. Gallinger, Holland & Hart, Billings, Mont., for petitioner.

Domenique Kirchner, John A. Bryson, Washington, D.C., for respondent.

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

Before BROWNING, Chief Judge, and WALLACE and BOOCHEVER, Circuit Judges.

BROWNING, Chief Judge:

Petitioner True Drilling Company appeals a final order of the Occupational Safety and Health Review Commission affirming the Secretary of Labor's citation charging the company with a "serious violation" ¹ of section 5(a)(2) of the Occupational Safety and Health Act, 29 U.S.C. Sec. 654(a)(2) and 29 C.F.R. Sec. 1910.212(a), ² by failing to install machine guarding to protect employees from rotating parts on petitioner's drilling equipment.

The Secretary's citation was directed at the kelly bushing and rotary table on petitioner's oil drilling rig number 23 at Sidney, Montana. The kelly bushing and rotary table, located in the center of the derrick floor, are part of the power system which transmits torque from the rig's engines to the drilling bit. They rotate at speeds of 45 to 200 rpm during drilling. The kelly bushing rests on the rotary table. The derrick floor covers most of the rotary table, but the kelly bushing and a six to eight inch band of the rotary table at the base of the kelly bushing are exposed.

The Secretary cited petitioner for failing to guard the kelly bushing and exposed portions of the rotary table. Petitioner contested the citation, contending (1) the kelly bushing used by petitioner was not hazardous because it had recessed bolts rather than protruding "j-bolts" found on older models; (2) alternatively, the use of a guard would create an equal or greater hazard; and (3) the Secretary was collaterally estopped from relitigating these issues because they had been decided adversely to the Secretary in similar proceedings brought against other drilling companies.

The administrative law judge affirmed the citation. Since no Commissioner directed review, the order became final. 29 U.S.C. Sec. 661(i). This court has jurisdiction under 29 U.S.C. Sec. 660(a). We affirm.

I. Existence of Hazard

The administrative law judge's finding that the unguarded kelly bushing and rotary table constituted a hazard is "supported by substantial evidence on the record considered as a whole ...." 29 U.S.C. Sec. 660(a). See National Steel & Shipbuilding Co. v. OSHRC, 607 F.2d 311, 316 (9th Cir.1979).

Petitioner concedes old style kelly bushings with protruding "j-bolts" constitute a hazard since the protruding bolts may catch hoses, chains, or other equipment commonly used in the vicinity of the rotating parts. Petitioner contends, however, that the modern design of the kelly bushing used on its rig eliminates this hazard by countersinking the bolts into the bushing housing. The Secretary presented evidence that employees on petitioner's rig regularly passed within two feet of the rotating parts, that some employees were inexperienced, that there were chains, hoses, and tools on the rig floor, and that the floor was often wet and muddy. The judge concluded that in such circumstances the "relative smoothness" of the modern bushing would not eliminate the demonstrated hazards posed by the "j-bolt" design, and that the danger remained that employees would fall on the rotating surface, that objects would fall onto and be propelled off the rotating surface, and that chains or other objects would wrap around the bushing. The administrative law judge's conclusion was supported by the testimony of the Secretary's witnesses and by the occurrence of two accidents on other rigs, reported in Brinkerhoff Signal, Inc., OSHRC No. 79-2589 (1980), in which an employee was killed and another lost both legs when a chain in one instance, and a water hose in another, became entangled in modern kelly bushings of the same manufacturer as that used on petitioner's rig.

Petitioner's other objections to the finding that a hazard existed have no merit. Testimony that the safety precautions undertaken by the drilling industry included a standard practice not to permit employees to approach moving parts during drilling was not impressive in light of direct evidence, including photographs, reflecting a contrary practice on petitioner's rig. The compliance officer's testimony that a citation might or might not be issued when an unguarded kelly bushing was present did not reflect inconsistency in regulation, but rather, as the officer testified, that surrounding circumstances, including working conditions and safety procedures, would determine whether employees were exposed to a hazard because of the unguarded machinery. The fact that some state regulatory schemes did not require guards, and that the company that manufactured petitioner's kelly bushing also manufactured a kelly guard but did not require that both be purchased together, were only distantly relevant, if relevant at all. There was sufficient evidence that the exposed portion of the rotary table, as distinguished from the kelly bushing, was also hazardous, since it increased the danger that employees might fall. Finally, there is no merit in petitioner's claim that the administrative law judge committed reversible error by considering previous uncontested citations against petitioner because the citations had not been admitted into evidence. The record is unclear whether the compliance officer's testimony regarding the citations was excluded as well as the citations themselves. In any event, the citations were of little relevance in finding a hazard and the judge does not appear to have relied on them. If error occurred, it was harmless. See General Dynamics Corp. v. OSHRC, 599 F.2d 453, 463-64 (1st Cir.1979).

II. Greater Hazard Defense

To establish the greater hazard defense, an employer must show "(1) that the hazards of compliance are greater than the hazards of noncompliance, (2) that alternative means of protecting employees are unavailable, and (3) the unavailability or inappropriateness of obtaining a variance." Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d 199, 205 (9th Cir.1980). See Greyhound Lines West v. Marshall, 575 F.2d 759, 762 (9th Cir.1978). The administrative law judge concluded petitioner had failed to satisfy any of the three requirements.

Nothing in the record indicates that petitioner sought a variance under section 6(d) of the Act, 29 U.S.C. Sec. 655(d), or that such a variance would have been unavailable or inappropriate. On the contrary, as noted earlier, a compliance officer testified that a citation might not be necessary if the employer adopted and effectively enforced adequate safety procedures to preclude exposure of employees to the rotating equipment. ³

Petitioner contends that the employer need not show the unavailability or inappropriateness of obtaining a variance where, as here, the employer is charged under 29 C.F.R. Sec. 1910.212(a). This is true, petitioner argues, because by the express terms of subsection (2) of section 1910.212(a), a violation is not made out unless the government carries the burden of showing that a machine guard is available "that ... does not offer an accident hazard in itself." ⁴ The regulation sets forth no such burden, and the Commission has interpreted the language of subsection (2) of section 1910.212(a) as imposing a duty that must be discharged by the employer in selecting and installing machine guarding and not as creating an additional element of a violation that must be established by the government. Subsection (2) "does not provide an employer with a defense. Instead, it imposes an affirmative duty on the employer to guard the machine in a manner that does not create a separate hazard to employees. A guard must be both efficacious and safe." Buckeye Industries, Inc., 1975-76 O.S.H. Dec. (CCH) p 20,239 at 24,120 (1975). See also, The Rogers Manufacturing Co., 1979 O.S.H. Dec. (CCH) p 23,800 at 28,879 (1979); Weyerhaeuser Co., 1976-77 O.S.H. Dec. (CCH) p 21,465 at 25,751 n. 15 (1977). ⁵

We must "accept the agency's construction of its own regulation if it is not plainly erroneous or inconsistent with the regulation ...." United States v. Whelan, 463 F.2d 1093, 1094 (9th Cir.1972). See Irvington Moore, Division of U.S. Natural Resources, Inc. v. OSHRC, 556 F.2d 431, 434 (9th Cir.1977). The Commission's interpretation of section 1910.212(a)(2) is neither. An employer is required to seek a variance as a precondition to asserting the greater hazard defense in order to discourage employers from unilaterally and perhaps incorrectly concluding their employees would be better protected by deviating from the prescribed safety standards. Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d at 205; General Electric Co. v. Secretary of Labor, 576 F.2d 558, 561 (3rd Cir.1978). Petitioner advances no reason why this rationale does not apply to the machine guarding standard.

Petitioner's failure to seek a variance is sufficient alone to sustain the administrative law judge's rejection of petitioner's defense that available machine guards would have created a greater hazard than the unguarded kelly bushing and rotary table. It is desirable to reach the factual merits of the issue, however, in light of the Fifth Circuit's decision in Fred Wilson Drilling Co. v. Marshall, 624 F.2d 38.

In that case, the administrative law judge concluded "that use of a Kelly bushing guard would pose serious hazards, but concluded that an unguarded bushing, on balance, presented the more unsafe...