Grey Wolf Drilling Co. L.P. v. Occupational Safety & Health Review Commission , 89 F. App'x 458 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 8, 2004
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-60508
_____________________
GREY WOLF DRILLING COMPANY L. P., RIG 865,
Petitioner,
versus
OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION; ELAINE CHAO, SECRETARY,
DEPARTMENT OF LABOR,
Respondents.
________________________________________________________________
Petition for Review of an Order of the
Occupational Safety and Health Review Commission
_________________________________________________________________
Before JOLLY, DUHÉ, and STEWART, Circuit Judges.
PER CURIAM:*
We affirm the final order of the Occupational Safety and
Health Review Commission (“the Commission”) upholding a citation
issued to Grey Wolf Drilling Company, L.P. (“Grey Wolf”), for the
following reasons:
First, although the arguments of Grey Wolf were well-presented
and vigorously argued, we nevertheless find substantial evidence to
support the Commission’s conclusion that Grey Wolf violated the
“general duty clause” of the Occupational Health and Safety Act by
failing to furnish a place of employment free from recognized
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
hazards likely to cause death or serious injury to employees. 29
U.S.C. § 654(a)(1). In reaching this conclusion, we have taken
into account Grey Wolf’s vigorous contention that the use of a
“swamper” in these circumstances would not have constituted a more
effective means of abatement than the precautionary measures
already in effect at the time of the accident. That argument has
some force, especially given the peculiarities of this particular
accident. However, we find substantial evidence in the record to
support the Commission’s findings that instead of the “swamper”
riding inside the unloaded wench truck, the “swamper” walking
outside on the passenger side at the rear of the vehicle when it is
in reverse motion is a feasible means of abating the risks of a
“struck-by” hazard.
Second, we hold that the petitioner’s contention that it is
entitled to the affirmative defense of employee misconduct fails in
this case. As an element of such a defense, Grey Wolf must
demonstrate that it had a safety program in place that adequately
addressed the hazard at issue. For the reasons stated above, Grey
Wolf does not satisfy this element here.
Accordingly, we affirm the final order of the Commission in
all respects.
AFFIRMED.
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