SAFTENG Comment: I am not sure why OSHA chose to use the General Duty Clause (GDC) rather than cite 1910.307
This case involves an oil and gas well-servicing company after a fire at a worksite injured an employee, and OSHA conducted an inspection. OSHA issued a citation alleging a violation of the general duty clause of the Occupational Safety and Health Act for exposing its employees to fire and explosion hazards. The general duty clause provides that “[e]ach employer… shall furnish to each of his employee’s employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Law Judge Brian Duncan VACATED the citation, finding that the Secretary failed to prove two (2) elements of the alleged general duty clause violation:
- recognition of the hazard and
- the existence of a feasible and practical means to abate the hazard.
For the reasons discussed below, the citation is vacated.
BACKGROUND
On April 2, 2013, the company was servicing an oil well when a fire occurred. Specifically, the company was “circulating the well,” a process which involved pumping large amounts of water into the well and back out to remove debris, such as leftover drilling mud and sand. The company’s supervisor on the project, the day before the fire, had his crew set up a 500-barrel, enclosed tank to serve as the water “supply tank,” a 120-barrel, open-top “discharge tank” to receive the water discharged from the well, and a diesel-powered “mud pump” to circulate the water from the tank into the well and out again (by drawing water out of the supply tank, pushing it down the well, and out into the discharge tank). The supervisor testified that he followed his usual practice and separated the discharge tank approximately 75 feet from the mud pump in order to address his concern that combustible fumes or vapors might emanate from the discharge tank and migrate to the mud pump, which is a potential ignition source.
The supervisor selected an open-top tank to hold the discharge water to encourage the dissipation of any combustible vapors. The supply tank, discharge tank, and mud pump were each placed at least 100 feet from the wellhead. The next day, the day of the fire, the owner of the well official instructed the servicing supervisor to move the mud pump closer to the discharge tank—from approximately 75 feet away to less than 30 feet away and also to use a 500-barrel, enclosed discharge tank, known as a “frac tank,” instead of the 120-barrel, open-top tank.
The supervisor testified that he was concerned about moving the mud pump closer to the discharge tank. He agreed to do so, however, thinking that it “would be good enough” so long as the enclosed tank’s “top hatch” remained closed, forcing any vapors to be released through a 3-inch vent opening on the back of the 50-foot long discharge tank so that any gas would emanate from the tank at about 80 feet from the mud pump. He testified that he instructed all members of his crew to keep the hatch on the discharge tank closed.
The supply tank and the water were supplied by the owner of the well. The service company presumed the water was salt water. Neither freshwater nor saltwater are combustible or flammable.
The well owner representative indicated he wanted to use 500-barrel tanks for both the supply and discharge so that the discharge tank did not need to be emptied during the circulation process; thus, saving money.
With this new set-up in place, the crew began “circulating the well.” After they had been doing so for one to two hours, a fire broke out near the pump, which engulfed a service company employee who sustained second-degree burns to his face. The fire then migrated from the mud pump to the hatch of the discharge tank, which was now open, and continued to burn through the open hatch for fifteen to twenty minutes until the fire department extinguished it.
DISCUSSION
To prove a violation of the general duty clause, the Secretary must establish the following:
- a condition or activity in the workplace presented a hazard;
- the employer or its industry recognized the hazard;
- the hazard was causing or likely to cause death or serious physical harm; and
- a feasible and effective means existed to eliminate or materially reduce the hazard.
Here, the judge found that the Secretary established the presence of the alleged hazard at the worksite, but he failed to establish the hazard recognition and abatement elements of the violation. As to the recognition element, the judge framed the issue as a question of whether the service company or its industry recognized that the Secretary’s proposed abatement measures were required and concluded that the Secretary had not made this showing. As to the abatement element, the judge found that the service company already had adequate safety measures in place to address the risk of a fire at the worksite and that there was insufficient evidence to show the Secretary’s proposed abatement measures would have materially reduced the hazard. Each of these issues is addressed in turn below.
Hazard
In a general duty clause case, “[the] hazard must be defined in a way that apprises the employer of its obligations, and identifies conditions and practices over which the employer can reasonably be expected to exercise control.” The hazard must be defined “regarding the physical agents that could injure employees rather than the means of abatement.” In his amended complaint, the Secretary describes the allegedly hazardous condition as an unsafe distance between the mud pump and discharges of oil and gas from the discharge tank. On review, the service company challenges the Secretary’s definition, arguing the Secretary inappropriately defined the hazard regarding an abatement method. This argument lacks merit.
The service company is correct that the alleged hazard and the Secretary’s main proposed abatement method overlap to some extent in that both implicate the spacing between the discharge tank and the mud pump. But the hazard allegation itself does not specify an abatement method; it only references an insufficient amount of spacing. Thus, the Secretary has not, as the service company contends, defined the hazard regarding the distance or space that must be maintained to abate the hazard.
The judge found that the alleged hazard was present but redefined it as “the existence of possible ignition sources on oil well worksites where flammable hydrocarbons are typically present in some quantity.”
Since Chairman MacDougall joins Commissioner Sullivan in concluding that the Secretary failed to meet his burden to prove that MBI should have implemented the proposed abatement measures he advocated, there is an agreement to vacate the citation regardless of how the hazard at issue is defined or whether the hazard was recognized by the service company. Thus, Chairman MacDougall does not join her colleagues’ discussion on either of these issues. However, Chairman MacDougall notes that her colleagues overstate the record evidence that flammable vapors were released from the discharge tank—particularly given the evidence that the service company reasonably presumed the tank contained “pure water” and the compliance officer’s acknowledgement that a discharge tank containing water with an ignition source nearby “doesn’t raise any red flags.” Chairman MacDougall notes, as did the judge, that the Secretary’s theories of how flammable vapors could have been generated from the discharge tank were too speculative. As stated by the judge, the “key facts, as well as the precise cause of the fire, are still undetermined.”
In addition, Chairman MacDougall notes the Secretary’s difficulty in defining the alleged hazard and is concerned that the Secretary’s definition is too broad. As the Commission observed in Pelron, an employer cannot reasonably be expected to free its workplace of inherent risks that are incident to its normal operation. See Pelron Corp., 12 BNA OSHC 1833, 1835 (No. 82-388, 1986) (“[d]efining the hazard as a ‘possibility’ that a condition will occur defines not a hazard but a potential hazard”). Therefore, to respect Congress’s intent, hazards must be defined in a way that gives an employer fair notice of its obligations under the Act by identifying the conditions or practices over which the employer can reasonably be expected to exercise control.
The evidence also establishes that this hazard was present at the worksite. There is no dispute that the mud pump was an ignition source and that it was less than thirty feet from the discharge tank. In addition, four servicing company employees identified the open hatch of the discharge tank as the source of the combustible vapors that were ignited, and the supervisor testified that he saw flames coming through the open hatch. In a post-accident investigation, the servicing company’s vice-president of health, safety, and environment determined that the discharge tank emitted flammable vapors.
The service company’s expert witness, Ron Britton, agreed that the fire resulted from flammable vapors that escaped from the discharge tank and were ignited. Although the source of the flammable vapors was never determined, there was near unanimity among the witnesses, including Britton, that the source was either the water or the discharge tank provided by well owner. Thus, the record shows that discharges of flammable vapors were released from the discharge tank at an unsafe distance from the mud pump, posing a fire hazard.
Hazard Recognition
To establish hazard recognition, the Secretary must show that the service company or its industry recognized that locating the mud pump—an undisputed ignition source—an unsafe distance (less than thirty feet) from discharges of gas from a tank presented a fire or explosion hazard. Whether a work condition is recognized as a hazard is a question of fact.
Based on the supervisor’s testimony, it is clear the service company recognized that allowing discharges of gas vapors to emanate from a tank located less than thirty feet away from a pump presented a fire hazard.
The supervisor, who had worked in the oil and gas industry for 45 years, testified that he understood there was a risk the pump would ignite flammable vapors emanating from the tank, and for this reason, he decided to use an open-top tank to better disperse such vapors and placed the tank at least 75 feet away from the pump:
Q: Your practice is to try to keep the discharge tank 75 feet—at least 75 feet from the engine of the mud pumping unit?
A: Yes.
Q: … And you did that because you know that vapors could come from the discharge tank?
A: Yes.
Q: Combustible vapors? You did that because of combustible vapors?
A: Yes.
…
Q: And you … prefer [open-top tanks] because open tanks disperse whatever combustible vapors might be in the tank better…?
A: Well, there’s always a possibility that it can, yes.
Q: But that’s the purpose …?
A: Yes.
Although the supervisor consented when the well owner directed him to move the mud pump to a location less than 30 feet from the tank, he testified that he “still really didn’t like it.” As a supervisor, his recognition that the distance between the pump and the discharges of gas vapors from the tank posed a fire hazard is imputed to the servicing company.
Although the judge acknowledged the supervisor’s attempt to maintain a 75-foot distance between the tank and the pump, he found this only reflected his “personal practice and preference” and did not show the service company recognized that such spacing was required under the Act. The supervisor made clear, however, that this practice was not just his personal preference. Indeed, he had been taught the 75-foot rule by two of the oil and gas servicing companies for whom he had previously worked and carried that practice with him.
The service company’s vice-president testified that MBI “trusts [it’s supervisory] personnel” to make these types of judgments. The judge’s requirement that the Secretary show that the service company recognized that the Act required the 75-foot abatement method is erroneous.
Because the Secretary established that the service company recognized the hazard, there is no need to address whether the industry also recognized it.
The judge also cited to Commission precedent noting a reluctance to rely solely on an employer’s safety precaution to find hazard recognition. Here, however, the supervisor clearly understood that the conditions at the worksite posed a fire risk. He “didn’t like” the well owners’ decision to move the pump to within 30 feet of the tank and discussed his reasons for keeping the two pieces of equipment farther apart. “We talked about it and decided that it would work if-if that hatch was closed, it would vent out the back of the tank if there was any gas coming off of it.” The supervisor testified that ultimately “I went along with his thinking… thinking that that would be good enough, you know, if you would vent out the back.” See id at 2007 (finding no need to rely solely on the existence of an employer safety practice to establish recognition when there was evidence the employer was “actually aware” of the hazard); cf. Cotter & Co v. OSHRC, 598 F.2d 911, 914-15 (5th Cir. 1979)
Accordingly, the record establishes that the service company recognized the condition posed a fire hazard.
Chairman MacDougall does not believe it is necessary to join her colleagues’ discussion on this issue since she agrees that the citation must be vacated regardless of whether there was a recognized hazard. Chairman MacDougall notes, however, that her colleagues’ characterization of the record evidence regarding the supervisors’ practice of spacing a mud pump at least 75 feet from a tank is overstated. It is the Secretary who in questioning called it a “rule,” while the supervisor characterized it is as “more or less a preventative measure.”
In addition, in her view, her colleagues’ finding that a supervisor’s voluntary safety measure should be imputed to his employer as its recognition of the hazard—particularly where the service company’s expert witness, Britton, testified that the supervisors’ measure was merely a cautious approach not based on any recognized practice in the industry—creates a new standard; one that may have the undesired consequence of discouraging voluntary safety practices. Chairman MacDougall notes that longstanding precedent holds that voluntary safety measures an employer offers do not establish the employer’s recognition of the hazard.
Feasibility of Abatement
To establish the feasibility of a proposed abatement measure, the Secretary must “demonstrate both that the measure[] [is] capable of being put into effect and that [it] would be effective in materially reducing the incidence of the hazard.” The Secretary need only show that the abatement method would materially reduce the hazard, not that it would eliminate the hazard. Where an employer has undertaken measures to address the hazard, the Secretary must show that such measures were inadequate.
Here, the judge found that the service company had already instituted a number of safety precautions to address the risk of a fire or explosion at the worksite and the Secretary failed to establish that these measures were inadequate. Specifically, the judge cited evidence that the service company, among other things, used a diesel pump with spark arresters and a kill switch, required employees to wear fire resistant clothing that protect the body (but not the face), prohibited smoking and cell phone use, banned open flames on location, made fire extinguishers readily available, and trained employees on fire prevention and control. While these general fire-related safety measures are commendable, they fell short of abating the specific fire hazard at issue here. As demonstrated by the facts of this case, spark arresters and the prohibition of cell phone use, smoking, and open flames are insufficient to prevent the ignition of the flammable vapors. As for the other measures cited by the judge, they can only reduce the extent of a fire and/or its consequent injuries after it has occurred—these measures would not prevent the ignition of such flammable vapors in the first place.
In her view, if the Commission is to rely on the supervisor’s spacing practice, there should be either:
- corroborating independent evidence of hazard recognition, or
- a framework that allows for the Secretary’s prima facie showing to be rebutted with evidence that the service company took reasonable measures to prevent the occurrence of the alleged violation.
Chairman MacDougall notes that her colleagues find no corroborating independent evidence of hazard recognition. As to service company’s reasonable measures to prevent the occurrence of fire hazards from flammable hydrocarbon liquids and gases, Britton stated that the company’s safety practices were “outstanding” and that it did everything that a safe well-servicing company should have done at this worksite to mitigate and attempt to eliminate, this hazard. Even the compliance officer acknowledged that the service company had installed “prudent safety measures to … mitigate vapor explosions or fires … .”
The judge correctly found, however, that the Secretary failed to prove his proposed abatement measure would materially reduce the risk of a fire. The Secretary’s method involves ensuring that “[d]ischarges of oil and gas to the atmosphere” are “to a safe area, preferably on the downwind side of the well and a minimum of 100 feet (30.5 m) from the wellhead, open flame, or other sources of ignition,” as “described in Section 12 of the America[n] Petroleum Institute Recommended Practice 54, “Occupational Safety for Oil and Gas Well Drilling and Servicing Operations.”
In support of this measure, the Secretary relies heavily on testimony from the OSHA compliance officer who inspected the worksite. The compliance officer testified that, in his opinion, maintaining a 100-foot distance between the tank and the pump would materially reduce the likelihood of a vapor cloud migrating to the pump.
Whether increasing the spacing between the pump and tank from 30 feet to 100 feet would materially reduce the chances of a fire occurring is a technical/scientific question that requires expertise to answer. As the compliance officer was never proffered as an expert with the qualifications necessary to opine on this question under Federal Rule of Evidence 702, his opinion on this question is given no weight.
The Secretary also contends that testimony from the service company’s expert witness, Britton, supports the efficacy of the proposed measure. According to the Secretary, Britton’s opinion is that the accident would not have occurred if the vapors had discharged 75 feet from the pump. This ignores, however, that Britton’s testimony on this point was predicated on the tank being completely sealed, with no fumes escaping it. As the supervisor testified, the tank used here had a vent line at the back, and the Secretary’s proposed abatement measure does not mention ensuring that no vapors escape the tank. In addition, Britton denied that a 100-foot separation would eliminate or substantially reduce the hazard. Further, while the Secretary argues that generally increasing the distance decreases the risk of explosion, he makes no attempt to quantify the rate at which the risk decreases as the amount of distance increases.
The compliance officer admitted during the hearing that he obtained some of the information he relied on during his investigation, such as the fact that a mud pump can act as an ignition source, from his own internet research. This indicates that the compliance officer lacked expertise regarding the technical/scientific question of whether a mud pump may ignite flammable vapors emanating from a tank 100 feet away. Apart from the compliance officer, no witness could say with any confidence that the abatement method would substantially reduce the hazard, and even the compliance officer could not say that the method would reduce the hazard by 50 percent:
Q. [Y]ou can’t say whether spacing the mud pump, and frac tank 75 to 100 feet apart would have materially reduced the hazard by, say, 50%, could you?
A. In this condition, without knowing what’s in the tank, I cannot.
Britton’s understanding that fumes would not escape if the tank’s hatch was kept closed is reflected in his testimony that “[when] you start pumping into the frac return tank, as you pump more fluid in, you’re going to try to compress whatever vapors are in there; air, whatever’s in there, it will be compressed up against the [hatch] of the frac tank … .” (Emphasis added.)
Indeed, he made clear that, in his opinion, a 75-foot separation would be ineffective if fumes did escape the tank—as they would if the hatch was open:
Q. And would that 75-foot distance, if the hatches were open, would that eliminate or substantially reduce—the 75 feet eliminate or substantially reduce the hazard?
A. No. Because again, you’ve got the same problem, where’s your wind coming from, what direction it’s coming from? Is it early morning? You have these wide swings in temperature, and that affects it tremendously. You have 60 below zero up here.
Q. How about 100 feet spacing?
A. Same thing.
Finally, the Secretary cites the American Petroleum Institute (API) safety recommendation, on which the wording of his proposed abatement measure is based, as evidence that a 100-foot separation would be adequate.
The API standard, however, does not appear to have been intended to address the circumstances at issue here. The standard’s 100-foot provision is located within a section titled “Special Services,” which is defined as “[t]hose operations utilizing specialized equipment and personnel to perform work processes to support well drilling and servicing operations.” Both Britton and the compliance officer testified that the service company’s well circulation did not involve any specialized equipment or personnel.
The API standard contains a separate section titled, “Fire Prevention and Protection,” which does not have a similar scope limitation. Since the 100-foot provision is located within the “Special Services” section, rather than the generally applicable “Fire Prevention and Protection” section, the standard’s structure shows that the provision was intended to apply only to the activities specifically defined as “Special Services.”
In her dissent, Commissioner Attwood contends that Britton was not responding to the question that was asked—whether 75 or 100-foot separations would eliminate or substantially reduce the hazard—and was instead only answering whether it would eliminate the risk. There is nothing in his response that provides a basis for her conclusion or that otherwise indicates Britton was not, in fact, responding to the entire question that was asked.
The API recommendation states:
Discharges of oil or gas to the atmosphere should be to a safe area, preferably on the downwind side of the well and a minimum of 100 ft (30.5 m) from the wellhead, open flame, or another source of ignition. At locations where this recommendation may be impractical, appropriate safety measures should be implemented.
In her dissent, Commissioner Attwood relies heavily on the API standard as evidence that the abatement measure would be effective but does not point to any expert testimony explaining the standard’s relevance to the circumstances in this case. When considering the efficacy of an abatement method, the Commission looks to industry standards and testimony by experts in the industry. In this case, the Secretary failed to produce an expert witness to address whether the 100-foot separation would be sufficient to reduce the hazard substantially. Without such testimony, the API standard—which is inapplicable to the instant facts (and whose meaning, given the unanswered questions about whether the standard treats the wellhead as a source of ignition, is unclear)—is insufficient standing alone to establish that this method would have materially reduced the hazard in this case.
Moreover, the 100-foot spacing recommendation contained in this API standard is in reference to spacing equipment from the wellhead, spacing with which the service company complied; it does not state that equipment should be placed 100 feet from a mud pump. In sum, the API recommendation is insufficient to establish that the Secretary’s proposed abatement measure would be adequate.
As the Secretary has thus failed to prove that materially effective means existed to abate the hazard, he has been unable to establish a general duty clause violation. Accordingly, the citation is vacated.
ATTWOOD, Commissioner, dissenting in part:
Because I find that it is more likely than not that the Secretary’s proposed abatement measure would materially reduce the incidence of the proven hazard, I dissent. First, as the following discussion between the service company’s attorney and its expert, Ron Britton, establishes, there is no room for debate on this record regarding the cause of the flash fire:
Q. It’s apparent, is it not, that when the hatch for … the discharge frac tank was open, vapors escaped from that discharge frac tank, went over into the area around the first [sic] pump, and ended up being ignited; is that correct?
A. That’s correct.
Second, Britton, the CO, and the vice president for safety, health, and environment, all acknowledged, as the judge put it, “the general principle that longer distances create greater opportunities for flammable vapors to dissipate.” Indeed, Britton testified that:
[T]he whole idea of distance is to dilute the fumes to where they won’t be explosive. That’s the whole purpose of distance. That’s the only reason you put something farther away. In all [the] … rules on [hydrogen disulfide] exposure, on the radius of exposure, they’re all done in distances from the well bore, and the farther you get away from the well bore, the easier it is to dissipate the fumes because you’re mixing it with more air.
The CO’s testimony was based on the same general principle:
[A]s a vapor cloud or gas cloud was to migrate, it would dissipate and expand. Again, that would be based on pressure, temperature, humidity. But the farther the distance, the less – the less likely it is to ignite.
Finally, Brown and the Secretary’s counsel engaged in the following exchange:
Q. To prevent a recurrence of the accident, your report describes measures to ensure proper spacing of frac tanks – and discharge tanks and mud pumping unit.
A. Yes, sir.
Q. And for you, proper spacing is as far away as possible?
A. Yes, it is, sir.
Thus, there is clear unanimity among three witnesses, including an expert in the oil and gas servicing industry, that increasing the distance between an ignition source and a source of flammable vapors will decrease the likelihood of a fire or explosion. In an exchange with the attorney, Britton applied this common-sense principle to the facts of this case:
Q. Do you have an opinion on whether or not this incident would’ve been prevented had the hatch on top of the discharge frac tank been kept closed—
* * * *
A. My answer was – let’s see. Your question was: If the hatch had been closed, would the accident have happened, and my answer is: No, it would not.
In addressing this testimony my colleagues claim that Britton’s response “on this point was predicated on the tank being completely sealed, with no fumes escaping it.” This ignores, however, that Britton, an industry expert with an in-depth familiarity with frac tanks, had already heard the supervisor’s earlier testimony that the discharge tank had one hatch on top and a vent at the back of the tank, and that his plan had been to keep the hatch closed so that the fumes would escape out of that vent almost 50 feet farther away from the pump than the hatch. Thus, it is unreasonable to conclude that Britton, in responding to this question, was assuming that with the hatch closed, the tank would have somehow been “completely sealed.”
Moreover, my colleagues misinterpret the meaning of the second quoted a passage from Britton’s testimony—service company’s counsel asked Britton the following: “would that 75-foot distance, if the hatches [sic] were open, would that eliminate or substantially reduce the hazard?” And Britton’s response reflects that he is only answering whether such an abatement method would eliminate the hazard:
A. No. Because again, you’ve got the same problem, where’s your wind coming from, what direction it’s coming from? Is it early morning? You have these wide swings in temperature, and that affects it tremendously. You have 60 below up here.
Q. How about 100 feet spacing?
A. Same thing.
Elsewhere in his testimony, Britton brings this point into focus by acknowledging that there are factors, such as wind and temperature, that can also play a role in the behavior of a flammable vapor cloud:
[N]obody’s talked about the wind direction. What direction is the wind coming from? Are you putting the tank in a direct line where it would blow back over the frac tank, or is it going to be the opposite, is the frac tank blowing directly towards the reverse unit?
If the pump and the motor are 100 feet away downwind from the frac tank, then you’re going to blow the fumes right over it. Even if it’s 100 feet away, you’ll probably have an accident there. So you’ve got to look at the wind and stuff.
The fact that several variables may affect the behavior of a vapor cloud appears to be at the heart of Britton’s conclusion that even a 100-foot distance between the frac tank and the pump may not eliminate the hazard. However, he never claims that—holding those other variables constant— increasing the distance between the pump and the discharge tank would not have materially reduced the incidence of the hazard. And his emphatic declaration that “the whole idea of distance is to dilute the fumes to where they won’t be explosive” leads to the exact opposite conclusion.
Of course, only two of the variables mentioned by Britton are subject to employer control: distance and wind direction vis-a-vis the vapor cloud and the ignition source. Presumably, it is for that very reason that the Secretary based the wording of his proposed abatement measure on Section 12.1.8 of the American Petroleum Institute’s Recommended Practice 54, “Occupational Safety for Oil and Gas Well Drilling and Servicing Operations,” which only recommends controls for distance and wind direction:
Discharges of oil or gas to the atmosphere should be to a safe area, preferably on the downwind side of the well and a minimum of 100 ft… from the wellhead, open flame, or other sources of ignition.
My colleagues seek to minimize the significance of this API provision, noting that it is contained in a section dealing with “Special Services,” which are not implicated in this case and that the “Fire Prevention and Protection” section of the API standard does not contain such a provision. But the Secretary does not argue that this API provision is directly applicable (or establishes feasibility); instead he relies on the common-sense logic supporting it, along with Britton’s expert testimony that the accident would not have occurred, to verify that a 100-foot downwind distance between a discharge of oil or gas and an ignition source is materially safer.
My colleagues’ discussion of the API recommendation is misleading. The only API provision on which the Secretary relies to prove efficacy is contained in the “Special Services” section and is quoted above. Thus, it is irrelevant that the service company complied with a separate API provision that recommends a mud pump be placed at least 100 feet from the wellhead.
My colleagues argue that there is no “expert testimony explaining the [API] standard’s relevance to the circumstances in this case.” This is erroneous. As I emphasize above, Britton testified that “[i]f the hatch had been closed,” the accident “would not” have happened. And, of course, Britton, an expert in the industry, must have known that with the hatch closed any discharge of gases would occur from the frac tank’s rear vent line approximately 75 feet from the mud pump. Thus, this testimony establishes the relevance and efficacy of the API “Special Services” provision—if Britton believed a 75-foot distance would have prevented the accident, it is evident that the API’s 100-foot requirement would also be practical.
I find this evidence more than sufficient to establish that the Secretary’s proposed abatement method would materially reduce the hazard. Accordingly, because I find the Secretary set a feasible and effective means of abatement, I dissent.
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