Longhorn Service Company

Read the official release (oshrc.gov)

Plain-English summary

Longhorn Service Company operated a well-servicing rig near Alexander, North Dakota. The judge affirmed serious items involving an unguarded hole in the rig floor, an inadequately guarded open platform, and improperly maintained and inspected fire extinguishers. A repeat stair-railing item was also affirmed based on a substantially similar final citation from 2011. The fixed-stair item was vacated because employees accessed the rig only briefly and fixed stairs were not required for that limited use, while the eye-protection item was vacated for insufficient proof of a significant risk. The Secretary withdrew a general-duty-clause item at trial. The company's employee-misconduct defense failed because it did not prove that rules were communicated, violations were sought out, or discipline was imposed. Total penalties were $20,000.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1910.23(a)(8); 29 C.F.R. § 1910.23(c)(1); 29 C.F.R. § 1910.24(b); 29 C.F.R. § 1910.133(a)(1); 29 C.F.R. § 1910.157(c)(4); 29 C.F.R. § 1910.157(e)(2); 29 C.F.R. § 1910.23(d)(1)(iii)
• Outcome: Five items or subitems affirmed, two vacated, and one withdrawn; $20,000 total penalty assessed.
• Key point: Safety rules do not support an employee-misconduct defense without evidence of communication, monitoring, and actual enforcement, especially when supervisors participate in the violations.

Full text (OSHRC public release)

                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

                        Complainant,
                                                         OSHRC DOCKET NO.                13-1458
               v.

LONGHORN SERVICE COMPANY,

                        Respondent.

Appearances:

    Alicia Truman, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado
             For Complainant

    George R. Carlton, Jr., Esq., Godwin Lewis, PC, Dallas, Texas
            For Respondent

Before: Administrative Law Judge John H. Schumacher

                                 DECISION AND ORDER

I. Procedural history

    This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29

U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)

conducted an inspection of a Longhorn Servicing Company (“Respondent”) worksite, located at

the Laroque 34-12H well in Alexander, North Dakota on April 12, 2013. As a result of the

inspection, OSHA issued a Citation and Notification of Penalty (“Citation”) to Respondent

alleging seven serious violations and one repeat violation of the Act with a proposed total

penalty of $29,400.00. Respondent filed a timely notice of contest, bringing this matter before

the Commission. A trial was held on November 13, 2014, in Denver, Colorado. At the

beginning of the trial, Complainant withdrew Citation 1, Item 1, which alleged a violation of
section 5(a)(1) of the Act and proposed a penalty of $4,500.00. (Tr. 11–12). Both parties have

filed post-trial briefs.

II. Stipulations

    The parties submitted a set of Joint Proposed Stipulations to the Court. The Stipulations

are as follows:

    1.        The Administrative Law Judge has subject matter and personal jurisdiction over

the dispute in this case.

    2.        Longhorn is, and was at all pertinent times, an Oklahoma corporation engaged in

well servicing operations and Longhorn’s activities affect interstate commerce.

    3.        The Secretary employs Robert Klostermann as a Compliance Safety and Health

Officer for the Occupational Safety and Health Administration (“OSHA”), assigned to OSHA’s

Denver, Colorado, Area Office. He served in that position and was an authorized representative

of the Secretary at all pertinent times.

    4.        On April 12, 2013, Mr. Kolstermann inspected a worksite located at the Laroque

34-12H well in Alexander, North Dakota (“Worksite”) where Longhorn’s Rig 33 was located

(OSHA Inspection No. 900410).

    5.        Respondent’s management employees were present for and involved in the setup

of the rig operations at the worksite.

    6.        The rig floor on Longhorn’s Rig 33, as set up at the worksite on the day of the

inspection, was approximately seven feet, eight inches above the ground.

    7.        There was no fixed stairs or ladder provided for Respondent’s employees at the

worksite to use when climbing to and from the rig floor on Rig 33.

    8.        The exhibits to be offered by the parties are stipulated to be authentic but no

stipulation is made as to their relevance or as to the truth of the matters asserted therein.

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III. Jurisdiction

      As stipulated to by the parties, the Court finds that jurisdiction of this action is conferred

upon the Commission by section 10(c) of the Act, 29 U.S.C. § 651 et seq. Further, Respondent

has also stipulated that it is an employer engaged in a business and industry affecting interstate

commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5). See Slingluff v.

OSHRC, 425 F.3d 861, 866–67 (10th Cir. 2005).

IV. Factual Background

     Three witnesses testified at trial: (1) Compliance Safety and Health Officer (“CSHO”)

Robert Klostermann; (2) David de los Angles, a tool hand and on-site supervisor for Respondent;

and (3) Richard Bittle, General Manager of Respondent.1

     Respondent is a well-servicing company that has operations in North Dakota but has its

principal office in Oklahoma. As part of its well-servicing operations, Respondent is contracted

by the well owner (in this case, Whiting Oil and Gas) to prep wells for both hydraulic fracturing

and production. (Tr. 28). In order to accomplish this, Respondent uses a well-servicing rig,

which is mounted to a truck. The rig is backed up to the well, and an expanded metal platform is

lowered over the well bore. (Tr. 143).

     Two days prior to the inspection at issue, Respondent set up the servicing rig and inserted

pipe into the Laroque 34-12H well in order to flush it out. (Tr. 29). This process is also known

as “tripping in”. (Tr. 29, 34). The next day, Respondent flushed out the well by pumping water

into the pipe system, cleaning out contaminants and preparing it for production. (Id.). On the day

1. At the close of Respondent’s case, counsel for Respondent proffered, and the Court admitted, the deposition of
   Mr. Kenneth Jordan. Upon further review, the Court finds that the deposition submitted by Respondent is hearsay.
   Former testimony, such as a deposition, is only an exception to the hearsay rule when the declarant is unavailable as
   a witness. See F.R.E. 804(b)(1). The criteria for whether a declarant is considered “unavailable” is found at F.R.E.
   804(a). Respondent put forth no evidence to suggest Mr. Jordan was unavailable, thus the deposition is hearsay and
   was not considered by the Court in rendering this Decision. Further, the Court’s ruling in this regard will have little
   impact, as Respondent did not rely upon nor did it cite Mr. Jordan’s deposition in its brief.

                                                     3
   

   of the inspection, Respondent was in the process of removing the pipe string from the well, also

known as “tripping out”. (Tr. 29).

   CSHO Klostermann arrived at the worksite in the afternoon of April 12, 2013, and met

with David de los Angles and David McNabb, the area manager from Oklahoma, as well as a

couple of representatives from Whiting Oil and Gas. (Tr. 27). According to Klostermann, his

inspection of Respondent’s worksite was conducted pursuant to OSHA Region VIII’s oil and gas

industry problem-solving initiative. (Tr. 24). The purpose of this initiative is to focus inspection

efforts on the four leading causes of accidents and injuries in the oil and gas industry; namely,

falls, fires, struck-by hazards, and electrical hazards. (Tr. 25). Klostermann testified, however,

that based on his observation of a number of different unsafe behaviors, he decided that it was

appropriate to expand the scope of the inspection to a comprehensive inspection. (Tr. 25).

   During his inspection, Klostermann observed five of Respondent’s employees working

on the rig: two floor hands; a derrick hand; David de los Angles, the tool hand; and Sergio

Medrano, the rig operator. (Tr. 26, 29). A tool pusher, typically the on-site manager, was not

present on the day of the inspection. (Tr. 187–88). Angles and Sergio Medrano were the

worksite supervisors in the absence of a tool pusher. (Tr. 29, 188).

   As a result of his inspection, Klostermann recommended, and Complainant issued,

several citations involving tripping and fall-related hazards, personal protective equipment, and

fire hazards. Each of those citations, along with their respective characterizations and penalties,

will be discussed further below.

V. Applicable Law

   To establish a prima facie violation of Section 5(a)(2) of the Act, Complainant must

prove by a preponderance of the evidence that: (1) the standard applies to the cited condition;

(2) the terms of the standard were violated; (3) one or more of the employees had access to the

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cited condition; and (4) the employer knew or, with the exercise of reasonable diligence, could

have known, of the violative condition. Ormet Corporation, 14 BNA OSHC 2134 (No. 85-0531,

1991).

     A violation is “serious” if there was a substantial probability that death or serious

physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k).

Complainant need not show that there was a substantial probability that an accident would occur;

he need only show that if an accident occurred, serious physical harm could result. Phelps

Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible injury addressed

by a regulation is death or serious physical harm, a violation of the regulation is serious. Mosser

Construction, 23 BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15 BNA OSHC 2072

(No. 88-0523, 1993).

VI. Discussion

     A. Citation 1, Item 2A

     Complainant alleged a serious violation of the Act as follows:

     29 CFR 1910.23(a)(8): Every floor hole in which employees could accidentally
     walk was not guarded or covered:

     (a)     On or about April 12, 2013, for employees tripping out of the well with
     the area around the drill pipe having an opening of approximately 12 inches x 24
     inches and exposed to a potential fall hazard of approximately 7 feet, 8 inches,
     Longhorn Service Company Rig 33 at Laroque 34-12H near Alexander, ND.

     The cited standard provides:

     Every floor hole into which persons can accidentally walk shall be guarded by
     either:

     (i)    A standard railing with standard toeboard on all exposed sides, or

     (ii)   A floor hole cover of standard strength and construction. While the cover
            is not in place, the floor hole shall be constantly attended by someone or
            shall be protected by a removable standard railing.

29 C.F.R. § 1910.23(a)(8).

                                             5

This Citation Item addresses a hole in the rig floor that Klostermann observed during the

course of his investigation. (Ex. C-4). The rig floor was equipped with a hole so that pipe could

be inserted into and taken out of the well bore. (Tr. 32; Ex. C-4). Klostermann, however, was

concerned with the hole that was adjacent to the pipe-setting equipment. This hole was created

by shifting an adjustable piece of the rig floor so that a piece of equipment known as a “V-door”

would rest properly against the rig floor. (Tr. 36, 178, 201). The V-door allowed Respondent’s

employees to transfer pieces of pipe away from the servicing rig. (Tr. 178, 201; Ex. C-4). By

shifting the piece of the rig floor outward, Respondent created, in Klostermann’s estimation, a

hole that measured approximately 12 inches by 24 inches. (Tr. 40–41). As they were removing

pipe from the well bore, Klostermann observed two employees working around, and in close

proximity to, the floor hole. (Tr. 44–45).

           1. The Standard Applies

   According to Subpart C of the regulations, a “floor hole” is “[a]n opening measuring less

than 12 inches but more than 1 inch in its least dimension, in any floor, platform, pavement, or

yard, through which materials but not persons may fall; such as a belt hole, pipe opening, or slot

opening.” 29 C.F.R. § 1910.21(a)(1). Respondent contends that the hole at issue does not meet

the definition of a “floor hole” because it is too large and because “it specifically states that to be

a ‘floor hole’ people may not fall through it.” Resp’t Br. at 3. Complainant contends that the

dimensions of the hole accord with the definition of a “floor hole”. Alternatively, however,

Complainant notes that the preface to section 1910.21(a)(1) explains that the terms shall have the

meanings ascribed to them in this paragraph “unless the context requires otherwise.” Compl’t

Br. at 10 (citing 29 C.F.R. § 1910.21(a)). Thus, Complainant argues, even if the hole were

slightly larger than 12 inches in its least dimension (which Complainant does not concede), but

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was not such that a person was likely to fall through it, context requires a finding that the hole in

question was, in fact, a “floor hole”.2

    The Court finds that the standard applies. Klostermann estimated the dimensions of the

hole to be approximately one foot by two feet. Though Angles testified that the hole was two

feet wide, he did not indicate what the other dimension of the hole was. (Tr. 203). The Court

accepts Klostermann’s measurements and further finds that, given the location of the equipment

surrounding the hole, it was a hole “into which persons may accidentally walk” but not one

“through which persons may fall.” See 29 C.F.R. § 1910.21(a)(1) & (2). In this context, the

Court finds that the cited standard applies.

             2. The Terms of the Standard Were Violated

    The Court also finds that the terms of the standard were violated. First, the Court finds

that this is a hole into which persons can accidentally walk. Klostermann testified that he

observed Respondent’s employees working in the immediate area surrounding the floor hole and

determined that employees could step into the hole while loading pipe onto the V-door.3 (Tr. 36–

37, 44). There were no standard railings or covers over the hole; in fact, the cover, as it were,

had been slid out away from the floor. Further, contrary to Respondent’s assertion, there was

nobody attending the hole while it was uncovered. To be sure, both floor hands worked in close

proximity to the hole, and likely were aware of its existence; however, while on the rig floor, the

floor hands were occupied with removing pipe from the well bore and transporting it to the slide.

It is one thing to generally know that a floor hole is present in your workspace, it is yet another

to actually attend to that hole to ensure that others do not step into it. The plain language of the

standard contemplates a situation whereby the cover for a floor hole is removed and an employee

2. A “floor hole” is distinguished from a “floor opening”, which measures 12 inches or more in its least dimension,
   through which persons may fall. See 29 C.F.R. § 1910.21(a)(2).
3. In this respect, the Court accords little weight to Rick Bittle’s testimony as to where employees stand while
   working. As noted by Complainant, Bittle had not been to this particular worksite, or any other worksite in North
   Dakota for that matter, and has little involvement with the field crews in general.

                                                   7
   

   “constantly attend[s]” it. 29 C.F.R. § 1910.23(a)(8) (emphasis added). CSHO Klostermann

testified that the employees were focused on the job at hand, which would take their attention

away from the floor hole. (Tr. 42–43). See also Stearns-Roger, Inc., 7 BNA OSHC 1919 (No.

76-2326, 1979) (holding that identical construction standard regarding floor holes “is directed

toward accidental situations when employees are not looking precisely where they are walking”).

The Court finds that an employee who is otherwise engaged in a work activity cannot constantly

attend to the hole under the meaning of the standard. Accordingly, the standard was violated.

           3. Respondent’s Employees Were Exposed to the Hazard

   Respondent contends that Complainant failed to prove that the two floor hands were

exposed to the hazard presented by the floor hole. The Commission, however, does not require

definitive proof of actual exposure to the hazard; rather, the question is whether employees have

access to the hazard. Gilles & Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976). Access to a

hazardous condition exists “if there is a ‘reasonable predictability’ that employees ‘will be, are,

or have been in’ the ‘zone of danger.’” Kokosing, 17 BNA OSHC 1869 (citing Capform, Inc., 16

BNA OSHC 2040 (No. 91-1613, 1994)). The zone of danger is “that area surrounding the

violative condition that presents the danger to employees which the standard is intended to

prevent.” RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995). It is sufficient for

the Secretary to prove access to the zone of danger, rather than actual exposure to the immediate

risk of injury or death. Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 811–12 (3rd Cir.

1985); Phoenix Roofing, Inc. 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) (exposure to a

violative condition may be established either by showing actual exposure or that access to the

hazard was reasonably predictable.)

   Angles and Medrano set up the servicing rig two days before Klostermann conducted his

inspection. (Tr. 89, 189). Over the course of those two days, Respondent’s employees inserted

                                            8

pipe into and removed pipe from the well bore. By way of example, during the “tripping out”

process the rig operator operates a system of pulleys and slips to pull the pipe string out of the

well bore and hold it in place while the topmost pipe section is removed from the string. (Tr. 34).

The pulley system, also known as the traveling block, is connected to the top part of the pipe that

is sticking out of the well bore. (Tr. 35). The floor hands will remove the slips holding the

topmost pipe section in place, which allows the traveling block to raise the pipe out of the well

bore until the bottom portion of the pipe section is exposed. (Id.). Once the entire pipe section is

exposed, the slips are placed back in the pipe stem to prevent the remainder of the string from

falling back into the well bore. (Id.). The floor hands then use a set of hydraulic tongs, which are

placed on the fully exposed pipe section, as well as the one below it, to unscrew the pipe. (Id.).

After the pipe is separated from the string, the floor hands guide the bottom portion of the pipe to

the V-door, and the rig operator lowers the pipe onto the slide. (Tr. 36). Once on the slide, the

floor hands disconnect the elevators from the top of the pipe, which allows it to travel down the

slide. According to Klostermann, this process takes approximately 3 hours, both for tripping in

and tripping out pipe. (Tr. 71).

   The Court finds that the foregoing process exposed the floor hands to the floor hole on

the rig. Over the course of two days, the floor hands were working around the floor hole,

guiding pipe into or out of the well bore. As the pictures show, the well bore, where the pipe is

removed from, is directly adjacent to the floor hole. (Ex. C-4, C-10). The lion’s share of the

work was centered around that hole. Based on the observations of Klostermann, his description

of the work process, and Respondent’s admission that the floor hole had been present on the rig

during the entire operation, the Court finds that “there is a ‘reasonable predictability’ that

employees ‘will be, are, or have been in’ the ‘zone of danger.’” Kokosing, 17 BNA OSHC 1869

(citing Capform, Inc., 16 BNA OSHC 2040 (No. 91-1613, 1994)).

                                             9

4. Respondent Knew or, With the Exercise of Reasonable Diligence, Could Have
Known of the Violative Condition

     Respondent also knew or, with the exercise of reasonable diligence, could have known of

the violative condition. “The actual or constructive knowledge of an employer’s foreman can be

imputed to the employer.” Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82–

928, 1986). “An employee who has been delegated authority over other employees, even if only

temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an

employer.” Paul Betty, d/b/a Betty Brothers, 9 BNA OSHC 1379, 1381–82 (No. 76–4271,

1981).

     Angles testified that he and Medrano were responsible for setting up the rig and that he

was considered to be an on-site supervisor, which was confirmed by Bittle. (Tr. 188, 210). More

specifically, Angles testified that he set up the rig with the hole in the floor at the very beginning

in order to accommodate the V-door. (Tr. 189, 201). In other words, the on-site supervisors

were responsible for creating the condition. Further, the floor hole was in the direct line of sight

of the rig operator, Medrano. (Tr. 55–56). This constitutes both actual and constructive

knowledge of the condition on behalf of Angles and Medrano. Given their positions as on-site

supervisors, the Court finds that their knowledge is properly imputable to Respondent. Thus, the

Court finds that Complainant has proved its prima facie case.

            5. The Violation Was Serious

     The Court finds that the violation was serious, albeit for slightly different reasons than

initially envisioned by Complainant. Part of the problem with Complainant’s initial

characterization was the fact that the putative injury was based on the presumption that an

employee would fall through the floor hole to the ground over seven feet below. (Tr. 56). As

noted above, however, a floor hole is defined such that an employee cannot fall through it and

still be considered a “floor hole” pursuant to the standard. See 29 C.F.R. § 1910.21(a)(1). That

                                             10

said, the floor hole still presents a potential trip and fall hazard. As testified to by Klostermann,

if one of the floor hands were to step into the hole during the process of removing pipe, they

would be exposed to potential amputation hazards from the traveling blocks, elevators, and other

moving machine parts. (Tr. 56). Furthermore, the still photographs taken from Klostermann’s

inspection video also show a gap in the handrail adjacent to the hole. (Ex. C-4, C-10). Thus,

although Respondent’s employees may not have been able to fall through the hole itself, they

could still step into it, trip, and fall over the side of the rig floor. In that respect, based on his

experience as a CSHO, the Court accepts Klostermann’s conclusion that a fall from a height of

over seven feet would result in a serious injury.4

             6. Respondent Has Not Established an Affirmative Defense

    In its Answer, Respondent asserted the affirmative defense of impossibility of

performance, indicating that “it was impossible to guard the floor hole with standard railings

according to the requirements of 29 C.F.R. 1910.23(a)(8).” Answer at ¶ IX. While it may have

been impossible to guard the hole with standard railings, that is not the only possible or available

means by which Respondent could have abated the hazard. Section 1910.23(a)(8)(ii) also

provides that the floor hole shall be guarded by a standard railing or “[a] floor hole cover of

standard strength and construction.” In that respect, Angles testified that it would have been

possible to fabricate a floor hole cover to guard the space voided by the removable floor section.

(Tr. 189–90). Based on the testimony of Angles, and the availability of alternate means of

4. Complainant contends that Klostermann was not qualified to opine on the possible injuries resulting from a fall
   of more than seven feet. See Resp’t Br. at 7. The Court disagrees. CSHO Klostermann has conducted “about 1,400”
   inspections during his tenure with OSHA. (Tr. 22). In that time, he has undoubtedly inspected and reviewed cases
   involving falls from such heights and perhaps even lower. Further, there are an abundance of cases indicating that a
   fall from heights of approximately 7 feet would result in serious injury. See, e.g., Teddy Mosley Painting, 24 BNA
   OSHC 1706 (No. 12-2154, 2013) (ALJ) (seven feet); Saul Ramirez, 23 BNA OSHC 2067 (No. 11-0412, 2011)
   (ALJ) (employee received serious injury after fall from eight feet); North Atlantic Fish Co., Inc., 19 BNA OSHC
   1608 (No. 98-0848 et al., 2001) (ALJ) (finding fall from 6 feet could result in serious injuries such as broken bones
   or death).

                                                    11
   

   abatement within the standard itself, the Court finds that Respondent has failed to prove that it

was impossible to comply with the standard.

   Based on the foregoing, the Court finds that Respondent violated 29 C.F.R. §

1910.23(a)(8) and that the violation was serious. Accordingly, Citation 1, Item 2A shall be

AFFIRMED.

   B. Citation 1, Item 2B

   Complainant alleged a serious violation of the Act as follows:

   29 CFR 1910.23(c)(1): Open-sided floors and platforms four feet or more above
   adjacent floor or ground level were not guarded with standard railings (or
   equivalent) and toeboards:

   (a) On or about April 12, 2013, for employees tripping pipe out of the well while
       working from the rig floor and exposed to a potential fall hazard of
       approximately 7 feet, 8 inches, Longhorn Service Company Rig 33 at Laroque
       34-12H near Alexander, ND.

   The cited standard provides:

   Every open-sided floor or platform 4 feet or more above adjacent floor or ground
   level shall be guarded by a standard railing (or the equivalent as specified in
   paragraph (e)(3) of this section) on all open sides except where there is entrance
   to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard
   wherever, beneath the open sides,

           (i)     Persons can pass,
           (ii)    There is moving machinery, or
           (iii)   There is equipment with which falling materials could create a
                   hazard.

29 C.F.R. § 1910.23(c)(1).

           1. The Standard Applies

   The rig floor at issue is an open-sided platform that can be equipped with guardrails. (Tr.

65; Ex. C-4, C-10). Klostermann measured the rig floor to be seven feet, eight inches above the

ground. (Tr. 64). Thus, the cited standard applies.

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2. The Terms of the Standard were Violated

   In its brief, Respondent admits that “[t]he evidence does indicate that the proper guards

on the rig were not in place.” Resp’t Br. at 6. Further, the still photos taken by Klostermann

clearly show an elevated platform with guardrails missing in multiple places, as well as a chain

rail that does not comply with the requirements of a “standard railing”. See 29 C.F.R. §

1910.23(e). Based on Klostermann’s photos, and Respondent’s admission, the Court finds that

the terms of the standard were violated.

           3. Respondent’s Employees Were Exposed to the Hazard

   Although the hazard to which Respondent’s employees were exposed in this Citation

Item are slightly different than those described in Citation 1, Item 2A, the Court finds that the

rationale applied in Section VI.A.3 of this Decision is equally applicable to the present Citation

Item and incorporates it herein. The floor hands worked on the rig floor for approximately three

hours a day for two days. During that time, they operated machinery located at the center of the

rig floor, thereby placing them on the outer part of the platform during operations, which only

provided an area of three-and-a-half feet. (Tr. 70; Ex. C-4, C-10). Without adequate guardrails,

the floor hands were exposed to the potential for falls of over seven feet.

           4. Respondent Knew or, With the Exercise of Reasonable Diligence, Could Have
              Known of the Violative Condition

   As noted above, both Angles and Medrano were responsible for setting up the servicing

rig, which included installing guardrails. In lieu of repeating the same discussion, the Court

incorporates its findings of facts and conclusions of law discussed in Section VI.A.4, supra.

Accordingly, the Court finds that Respondent knew or, with the exercise of reasonable diligence,

could have known of the violative condition.

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5. The Violation Was Serious

   Because the hazard of falling from a height of over seven feet was also discussed with

respect to the previous Citation Item, the Court hereby incorporates its findings of fact and

conclusions of law discussed in Section VI.A.5, supra.

   Based on the foregoing, the Court finds that Respondent violated 29 C.F.R. §

1910.23(c)(1) and that the violation was serious. Accordingly, Citation 1, Item 2B shall be

AFFIRMED.

   C. Citation 1, Item 2C

   Complainant alleged a serious violation of the Act as follows:

   29 CFR 1910.24(b): Fixed stairs were not provided for access from one structure
   level to another where operations necessitated regular travel between levels and
   for access to operating platforms at any equipment which requires attention
   routinely during operations:

   (a) On or about April 12, 2013, for the employees climbing from the truck
       platform to the work over rig floor with a step of approximately 33 inches
       high between the levels, Longhorn Service Company Rig 33 at Laroque 34-
       12H near Alexander, ND.

   The cited standard provides:

   Where fixed stairs are required. Fixed stairs shall be provided for access from one
   structure level to another where operations necessitate regular travel between
   levels, and for access to operating platforms at any equipment which requires
   attention routinely during operations. Fixed stairs shall also be provided where
   access to elevations is daily or at each shift for such purposes as gauging,
   inspection, regular maintenance, etc., where such work may expose employees to
   acids, caustics, gases, or other harmful substances, or for which purposes the
   carrying of tools or equipment by hand is normally required. (It is not the intent of
   this section to preclude the use of fixed ladders for access to elevated tanks,
   towers, and similar structures, overhead traveling cranes, etc., where the use of
   fixed ladders is common practice.) Spiral stairways shall not be permitted except
   for special limited usage and secondary access situations where it is not practical
   to provide a conventional stairway. Winding stairways may be installed on tanks
   and similar round structures where the diameter of the structure is not less than
   five (5) feet.

29 C.F.R. § 1910.24(b).

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As noted in the Citation Item narrative, Respondent was cited for failing to provide a set

of fixed industrial stairs between the truck platform and the servicing rig platform. Respondent

provided a set of stairs to access the truck platform; however, when accessing the rig platform

from the truck, employees had to ford a 33-inch high, 10-inch wide gap. (Tr. 82; Ex. C-11). In

order to accomplish this, employees had to steady themselves on a guardrail located on the truck

platform and hoist themselves up to the rig platform. (Tr. 84). According to Klostermann, the

guardrail was not secured in place and would bow out approximately four inches when the

employees grabbed onto it. (Tr. 84, 155–56). During his inspection, Klostermann noted that a set

of detachable stairs was located near the servicing rig but were not installed. (Tr. 84; Ex. C-11 at

3). According to Angles, the height of the blowout preventer at the wellhead prevented proper

installation of the stairs. (Tr. 88).

    Although it is clear that Respondent should have provided a safe means of ingress and

egress from the rig platform to the truck platform, the Court finds that the standard cited by

Complainant does not apply to the cited condition. Section 1910.24(b) describes situations

wherein fixed industrial stairs are required. According to section 1910.24(a), “[t]his

classification includes interior and exterior stairs around machinery, tanks, and other equipment,

and stairs leading to or from floor, platforms, or pits.” 29 C.F.R. § 1910.24(a). Thus, based on

the language of 1910.24(b), it would seem reasonable to assume that fixed stairs were required to

access the rig platform from the truck.

    That said, there are two key problems with the application of this standard to the

condition on the rig platform. Klostermann interpreted the term “fixed industrial stairs” to mean

“stairs that are secured in place.” (Tr. 80). While that interpretation carries some cachet, it does

not comport with the manner in which the term “fixed” is used in Subpart D. There is no

definition for the term “fixed industrial stairs” in Subpart D, but there is a definition for a “fixed

                                             15

ladder”. According to Section 1910.21(e)(2), “A fixed ladder is a ladder permanently attached to

a structure, building, or equipment.” 29 C.F.R. § 1910.21(e)(2) (emphasis added). The Court

finds that these standards should be read in conjunction. See In Pari Materia, Black’s Law

Dictionary (10th ed., 2014) (“It is a canon of construction that statutes that are in pari materia

may be construed together, so that inconsistencies in one statute may be resolved by looking at

another statute on the same subject.”). In that respect, Klostermann’s definition does not go far

enough—it is not sufficient for a stairway (or ladder) to be merely secured in place; rather, they

must be permanently attached. This construction is further supported by the fact that the

standard itself states, “It is not the intent of this section to preclude the use of fixed ladders for

access to elevated tanks, towers, and similar structures . . . where the use of fixed ladders is

common practice.” 29 C.F.R. § 1910.24(b) (emphasis added). Considering that the rig platform

was adjustable and that the stairs that would normally be in place are detachable—due in no

small part to the fact that the well-servicing rig is a portable unit—there is no sense in which the

stairs identified in Exhibit C-11 could be considered “fixed” under the language of 1910.24(b).

(Ex. C-11 at 3).

   Second, Klostermann testified that there was more than one way for Respondent to abate

the hazard. Angles told Klostermann that they did not attach the stairs to the rig platform

because the height of the blowout preventer caused the rig floor to be set at a different height

than the set of stairs that Angles and Medrano brought to the worksite. (Tr. 88–89). When

questioned about this explanation at trial, Klostermann testified that the height of the blowout

preventer should have been factored into account in advance of setting up the rig, which would

have allowed them to select the appropriate set of stairs for the job. (Tr. 89). To the extent that

different sets of stairs can be used to accommodate varying rig floor heights, those stairs will not

be “fixed” according to the standard. Further, and perhaps more problematic was Klostermann’s

                                             16

response to how Respondent could have abated the condition. He stated, “Longhorn could have

installed stairs or even a ladder to access the rig floor.” (Tr. 89) (emphasis added). The

implication, of course, is that there was more than one way to abate the hazard. The cited

standard, however, covers those situations where fixed stairs are required, not optional. Clearly,

Respondent could have used stairs to provide proper ingress and egress to the rig platform;

however, the Court finds that the standard does not mandate that Respondent was required to do

so under this set of facts.5 Accordingly, Citation 1, Item 2C shall be VACATED.

    D. Citation 1, Item 3

    Complainant alleged a serious violation of the Act as follows:

    29 CFR 1910.133(a)(1): Protective eye equipment was not required where there
    was a reasonable probability of injury that could be prevented by such equipment:

    (a) On or about April 12, 2013, for employees tripping pipe out of an oil well and
        exposed to struck-by hazards from the tongs and pipe and chemical splash
        hazards, including but not limited to, drilling fluid and crude oil, while
        wearing regular plastic prescription lenses, Longhorn Service Company Rig
        33 at Laroque 34-12H near Alexander, ND.

    The cited standard provides:

    The employer shall ensure that each affected employee uses appropriate eye or
    face protection when exposed to eye or face hazard from flying particles, molten
    metal, liquids, acids or caustic liquids, chemical gases or vapors, or potentially
    injurious light radiation.

29 C.F.R. § 1910.133(a)(1).

    Klostermann observed one of Respondent’s employees wearing prescription glasses that

did not include side shields. (Tr. 96–97; Ex. C-12). In his opinion, prescription glasses do not

meet the same criteria as safety glasses because they do not have the same hardness and are thus

inadequate to protect against flying objects.6 (Tr. 98). In that respect, Klostermann identified the

following hazards present at the worksite, which he believed required the use of protective eye

5. By so holding, the Court does not condone Respondent’s failure to provide any means whatsoever to access the
   rig platform.
6. Complainant did not introduce evidence in support of Klostermann’s opinion.

                                                 17
   

   equipment pursuant to the standard: (1) the potential for hydraulic hoses to become disconnected

and strike a person in the eye; (2) the potential for hot hydraulic fluid to splash in employees’

eyes if the hoses were to become disconnected; (3) the potential for employees being struck by

falling objects underneath the derrick; (4) the potential for the hydraulic pump to kick, causing

the tongs to strike an employee in the face; (5) the use of hand tools, which could kick back and

hit the employee in the face; (6) the potential splashing from chemicals and/or oil coming from

the well. (Tr. 98–100).

   Respondent argues that its employees were not exposed to any of the hazards listed

within the language of the standard, such as flying particles or molten metal. (Tr. 160).

Respondent further argues that Complainant failed to prove that its employees were exposed to

volatile organic compounds or caustic liquids. Klostermann testified that he was “not entirely

sure” what liquids were present at the worksite, because he did not perform any sampling. (Tr.

161). Klostermann admitted that he did not have any evidence that Respondent’s employees

were actually exposed to any of the hazards listed in the standard. (Id.).

   According to Commission precedent, “the scope of section 1910.133(a)(1) is narrow.”

Atlantic Battery Co., 16 BNA OSHC 2131 (No. 90-1747, 1994). However, because it is so

broadly worded, “it is appropriate to apply the reasonable person test in assessing compliance

with the standard.” Id. (quoting Philadelphia, Bethlehem & New England R.R., 11 BNA OSHC

1345, 1347 (No. 77-2200, 1983)). Thus, personal protective equipment is mandated only “if a

reasonable person familiar with the circumstances surrounding an allegedly hazardous condition,

including any facts unique to a particular industry, would recognize a hazard warranting the use

of personal protective equipment.” Id. In that respect, [t]he Secretary must show more than the

mere possibility of or a potential for injury . . . .” Andrew Catapano Enters., Inc., 17 BNA

OSHC 1776 (Nos. 90-0050 et al., 1996). Instead, the Commission has held that “the Secretary

                                             18

must prove the existence of a significant risk of harm in each case where he proceeds under a

standard that does not incorporate a finding that that risk exists.” Anoplate Corp., 12 BNA

OSHC 1678, (No. 80-4109, 1986) (emphasis added); see also Donovan v. General Motors Corp.,

764 F.2d 32, 35 (1st Cir. 1985) (holding that proof of hazard under PPE standard requires a

demonstration that there is a significant level of risk).

       The Court finds that the hazards listed above do not rise to the level of a significant risk

of harm. Klostermann characterized the above-listed hazards in terms of the “chance” or

“potential” that they would come to fruition. (Tr. 100). There was no evidence to indicate, let

alone a suggestion, that the hydraulic hoses regularly disconnected or “kicked”, thereby exposing

employees to struck-by or splashing injuries. The well had been cemented, cased, and plugged,

which prevented the potential release of hydrocarbons from the well. (Tr. 158). Klostermann

could not identify the chemicals that were present at the worksite, nor did he demonstrate that,

even if there were caustic chemicals stored at the worksite, employees were actually exposed to

them. (Tr. 160). The level of risk associated with the potential hazards identified by

Klostermann was too attenuated to warrant a finding that a reasonable person familiar with the

circumstances surrounding those conditions would conclude that safety glasses were necessary.

See General Motors, 764 F.2d at 36 (upholding Commission’s conclusion that “Secretary did not

establish a ‘generic hazard’ based solely on the inherent risk in handling heavy automotive

parts”).

       In reality, Respondent’s employees may well have been exposed to a significant risk of

harm, and a reasonable person may have concluded that hazard existed such that protective

eyewear was required. However, it is Complainant’s obligation to meet this burden of proof.

The evidence presented at trial did not illustrate what a reasonable person familiar with industry

practice would have done under similar circumstances, nor did Complainant prove that

                                                19

Respondent’s employees were exposed to a significant risk of harm. Accordingly, Citation 1,

Item 3 shall be VACATED.

   E. Citation 1, Item 4A

   Complainant alleged a serious violation of the Act as follows:

   29 CFR 1910.157(c)(4): Portable fire extinguishers were not maintained in a
   fully charged and operable condition:

   (a)     On or about April 12, 2013, for the employees engaged in oil well
   servicing operations with hydrocarbon vapors present with two fire extinguishers
   present on the rig being full discharged, Longhorn Service Company Rig 33 at
   Laroque 34-12H near Alexander, ND.

   The cited standard provides:

   The employer shall assure that portable fire extinguishers are maintained in a fully
   charged and operable condition and kept in their designated places at all times
   except during use.

29 C.F.R. § 1910.157(c)(4).

   Klostermann found two extinguishers on Respondent’s rig that he determined were not

maintained in a fully charged and operable condition. One extinguisher was missing its safety

lock, and its gauge indicated that it was empty. (Tr. 107; Ex. C-14 at 1). A second extinguisher,

which was found on the ground, did not have a gauge and also had a broken safety lock. (Tr.

107; Ex. C-14 at 2). Klostermann testified that Angles told him that one of the extinguishers had

been discharged. (Tr. 107). Neither Complainant nor Respondent performed a test to determine

whether the subject fire extinguishers were fully charged or operable. Instead, Complainant

relied entirely on the gauge (or lack thereof) and the missing safety lock. Angles testified that

the gauges were unreliable and that the only way to judge whether they were fully charged and

operable was to pick them up and feel the weight. (Tr. 184–85).

                                           20

1. The Standard Applies

   According to 29 C.F.R. § 1910.157(a), “The requirements of this section apply to the

placement, use, maintenance, and testing of portable fire extinguishers provided for the use of

employees.” The fire extinguishers at issue were installed by Angles and Medrano for the use of

the servicing rig employees. (Tr. 110, 196). Thus, the standard applies.

           2. The Terms of the Standard were Violated

   The terms of section 1910.157(c)(4) essentially require three things: (1) the extinguisher

must be fully charged; (2) it must be operable; and (3) it must be kept in its designated place. In

a case involving almost identical facts (and arguments) to the one at bar, ALJ Blythe noted:

   Respondent contends that, since gauges are not required, the CO was not entitled
   to rely on them for evidence that the extinguishers were not fully charged, that the
   absence of safety pins is likewise not proof the extinguishers were inoperable, and
   that tests should have been performed.

   It is true that the CO easily could have determined, by squeezing the release,
   whether the fire extinguishers were under any pressure, but this would not have
   determined if they were fully charged. Under the circumstances, he was entitled to
   rely on the gauges to determine whether they contained a full charge. This is true
   even though, as respondent points out, § 1910.157(c)(4) does not mention
   pressure gauges. The level of pressure on the gauges is at least some evidence that
   the extinguishers were not operable. Absence of the safety pins alone would not
   be evidence that the extinguishers were inoperable, as the CO conceded (Tr. 41);
   but it corroborates the evidence provided by the gauges since safety pins
   ordinarily are not removed until extinguishers are used to combat a fire.

Culberson Well Svc., Inc., 11 BNA OSHC 1677 (No. 82-1162, 1983) (ALJ).

   This Court agrees with the rationale of ALJ Blythe as it applies to the fire extinguisher

with the gauge showing as “empty”. (Ex. C-14 at 1). Given the information available to

Klostermann, the Court finds his determination that this particular fire extinguisher was not fully

charged and operable was reasonable. Not only did the gauge read “empty”, but the safety lock

was missing, and Angles told Klostermann that it had been discharged. (Tr. 107). As ALJ Blythe

noted, the missing safety lock, in and of itself, is not an indication that the extinguisher was

                                            21

inoperable; however, “it corroborates the evidence provided by the gauge[] since safety pins are

not removed until extinguishers are used to combat a fire.” Culberson, 11 BNA OSHC 1677.

    Although Respondent contends that cold weather can impact the gauge, there was no

indication as to what the temperature was at the worksite in the days leading up to the inspection,

nor was such information provided to Klostermann. (Tr. 183). Further, the Court is not

persuaded by Respondent’s method of lifting the extinguisher to assess whether it is fully

charged and operable. (Tr. 184). At best, such a method will tell you if an extinguisher has some

retardant in it; however, the weight gives no indication if it is “fully charged”, let alone whether

it is operable.

    With respect to the extinguisher without a gauge, the Court simply does not have enough

information to determine whether it complied with the standard. There was no evidence that a

gauge was required, nor was there any indication of its condition independent of the broken

safety lock. In other words, the broken safety lock did not corroborate any other evidence about

the fire extinguisher. Thus, the Court concludes that the terms of the standard were violated as

applied to the extinguisher with the gauge that read “empty”.

              3. Respondent’s Employees Were Exposed to the Hazard

    Respondent exposed its employees to potential burn hazards because it failed to have

fully charged and operable fire extinguishers at the worksite. If a fire were to break out, which is

not an unprecedented occurrence at an oil and gas well, and one of Respondent’s employees

attempted to put out the fire with an inoperable or less-than-fully-charged fire extinguisher, they

could be burned if the extinguisher failed to work. As previously noted, the extinguishers were

in place for use by any of Respondent’s employees, thus exposing all of Respondent’s employees

to the hazard. (Tr. 110).

                                            22

4. Respondent Knew or, With the Exercise of Reasonable Diligence, Could Have
Known of the Violative Condition

   As noted above, both Angles and Medrano were responsible for setting up the servicing

rig, which included installing fire extinguishers. (Tr. 110). In lieu of repeating the same

discussion, the Court incorporates its findings of facts and conclusions of law discussed in

Section VI.A.4, supra. Accordingly, the Court finds that Respondent knew or, with the exercise

of reasonable diligence, could have known of the violative condition.

           5. The Violation Was Serious

   Klostermann testified that attempting to fight a fire without a functioning fire

extinguisher could result in potential burn injuries, which would require medical care. (Tr. 112).

Accordingly, the Court finds that the violation was serious. Citation 1, Item 4A shall be

AFFIRMED.

   F. Citation 1, Item 4B

   Complainant alleged a serious violation of the Act as follows:

   29 CFR 1910.157(e)(2): Portable fire extinguishers were not visually inspected at
   least monthly.

   (a)     On or about April 12, 2013, for the employees engaged in oil well
   servicing operations with hydrocarbon vapors present and two fire extinguishers
   present on the rig being full discharged, Longhorn Service Company Rig 33 at
   Laroque 34-12H near Alexander, ND.

   The cited standard provides:

   Portable extinguishers or hose used in lieu thereof under paragraph (d)(3) of this
   section shall be visually inspected monthly.

29 C.F.R. § 1910.157(e)(2).

   Due to the presence of apparently empty, or at least not fully charged, fire extinguishers

with broken safety locks, Klostermann determined that Respondent failed to perform monthly

visual inspections pursuant to section 1910.157(e)(2). (Tr. 113–14).

                                           23

1. The Standard Applies

    According to 29 C.F.R. § 1910.157(a), “The requirements of this section apply to the

placement, use, maintenance, and testing of portable fire extinguishers provided for the use of

employees.” The fire extinguishers at issue were installed for the use of the servicing rig

employees. Thus, the standard applies.

           2. The Terms of the Standard were Violated

    Neither Angles nor Bittle could credibly testify as to when the last monthly inspection of

the fire extinguishers had occurred. (Tr. 185, 197, 214). Bittle testified that Respondent hired an

outside company, Red Hot Fire Extinguisher Service, to perform its monthly inspections, but he

could not confirm that the inspections were occurring. (Tr. 207, 218–19). In fact, Complainant

requested documentation of the inspections and was told that records were not available. (Tr.

172).

    Respondent contends that it did not maintain records of inspection because it relied upon

Red Hot to perform and document the inspections. This is insufficient. As noted by Complainant,

“Respondent cannot avoid its responsibility to its employees by a contract which transfers that

obligation to a third party.” Sec’y Br. at 39 (quoting PBR, Inc., 8 BNA OSHC 1546 at *4 (No.

78-4833, 1980)). Although non-functioning fire extinguishers, by themselves, do not establish

that a monthly inspection did not occur, that evidence, when coupled with Respondent’s failure

to provide any documentation whatsoever of inspections actually occurring, supports the

reasonable inference that Respondent failed to comply with the standard. Respondent had an

obligation to ensure that monthly visual inspections were occurring. Not one of the witnesses

who testified, including the General Manager, could give any details regarding the contract with

Red Hot or provide any information as to when or how these purported inspections were taking

place. Accordingly, the terms of the standard were violated.

                                            24

3. Respondent’s Employees Were Exposed to the Hazard

   Respondent exposed its employees to potential burn hazards because it failed to have

fully charged and operable fire extinguishers at the worksite. This likely would not have

occurred if Respondent had taken steps to ensure that monthly inspections were being

performed—whether by Respondent’s own employees or by an independent third party. If a fire

were to break out, and one of Respondent’s employees attempted to put out the fire with an

inoperable or less-than-fully-charged fire extinguisher, they could be burned if the extinguisher

failed to work. As previously noted, the extinguishers were in place for use by any of

Respondent’s employees, thus exposing all of Respondent’s employees to the hazard. (Tr. 110).

           4. Respondent Knew or, With the Exercise of Reasonable Diligence, Could Have
              Known of the Violative Condition

   Both Angles and Medrano were responsible for setting up the servicing rig, which

included the installation of the subject fire extinguishers. Respondent’s own safety policy

indicates that fire extinguishers should be inspected monthly and documented. (Ex. C-13 at 4).

Further, the policy states, “The supervisor is responsible for ensuring that all extinguishers are

properly maintained and inspected.” (Id.). Notwithstanding this responsibility, Angles stated that

he did not know when the extinguishers were last inspected. (Tr. 185). Because it was Angles’

responsibility to ensure that the extinguishers were properly maintained and inspected, and

considering he and Medrano installed the fire extinguishers at the worksite, the Court finds that,

at the very least, Respondent had constructive knowledge of the violation. Accordingly, the

Court finds that Respondent knew or, with the exercise of reasonable diligence, could have

known of the violative condition.

           5. The Violation Was Serious

   For the same reasons expressed above in Section VI.E.5, the Court finds that the violation

was serious. Accordingly, Citation 1, Item 4B shall be AFFIRMED.

                                           25

G. Citation 2, Item 1

   Complainant alleged a repeat violation of the Act as follows:

   29 CFR 1910.23(d)(1)(iii): A stairway less than 44 inches wide, with both sides
   open, did not have a stair railing on both sides:

   (a)    On or about April 12, 2013, for employees accessing the operator’s station
   and the work over rig floor and exposed to a potential fall hazard of
   approximately 4.5 feet due to the stairway only having one stair rail, Longhorn
   Service Company Rig 33 at Laroque 34-12H near Alexander, ND.

   Note: Longhorn Service Company was previously cited for a violation of this
   occupational safety and health standard or its equivalent standard, which was
   contained in OSHA Inspection Number 315798082, Citation 1, Item 2, and was
   affirmed as a final order on March 8, 2012, with respect to a workplace located at
   Yoder 2H Well Pad Pisgah Rd, Troy, PA 16947.

   The cited standard provides:

   Stairway railings and guards. (1) Every flight of stairs having four or more risers
   shall be equipped with standard stair railings or standard handrails as specified in
   paragraphs (d)(1)(i) through (v) of this section, the width of the stair to be
   measured clear of all obstructions except handrails:

   (iii)   On stairways less than 44 inches wide having both sides open, one stair
           railing on each side.

29 C.F.R. § 1910.23(d)(1)(iii).

           1. The Standard Applies

   This Citation Item is directed at the flight of stairs that provided access from the ground

level to the truck platform. (Ex. C-15). As the photograph shows, the stairway had more than

four risers, was open on both sides, and had only one handrail on the right-hand side. According

to Klostermann, the width of the stairway was 24 inches. (Tr. 121; Ex. C-15 at 3). Thus, the

standard applies.

           2. The Terms of the Standard were Violated

   In its brief, Respondent admitted that the terms of the standard were violated. Resp’t Br.

at 12. The Court agrees. As required by the standard, stairways with four or more risers, with

                                           26

both sides open, and which measure less than 44 inches across, require handrails on both sides.

The stairway at issue only had one handrail, thus the terms of the standard were violated.

           3. Respondent’s Employees Were Exposed to the Hazard

   Klostermann observed Respondent’s employees going up and down the stairs to access

both the operator’s station, which was located on the truck platform, and the rig floor. (Tr. 122–

23). Klostermann testified that Angles told him the stairway had been in this condition since the

rig had been set up, which meant that Respondent’s employees were exposed to the hazardous

condition for at least two days. (Tr. 123). Klostermann also noted that Respondent’s employees

were usually carrying tools with them as they went up and down the stairs, thereby increasing the

likelihood that a fall would occur. (Tr. 122).

           4. Respondent Knew or, With the Exercise of Reasonable Diligence, Could Have
              Known of the Violative Condition

   As previously noted, both Angles and Medrano were responsible for setting up the

servicing rig, which included installing the stairway. Accordingly, the Court incorporates its

findings of facts and conclusions of law discussed in Section VI.A.4, supra. Accordingly, the

Court finds that Respondent knew or, with the exercise of reasonable diligence, could have

known of the violative condition.

           5. The Violation Was Properly Characterized as Repeat

   “A violation is repeated under section 17(a) of the Act if, at the time of the alleged

violation, there was a Commission final order against the same employer for a substantially

similar violation.” Potlatch, 7 BNA OSHC 1061 (No. 16183, 1979). One of the ways in which

Complainant can establish substantial similarity is by showing that the prior and present

violations are for failure to comply with the same standard under section 5(a)(2) of the Act. Id.

A prima facie showing of substantial similarity can be rebutted by evidence that the conditions

and hazards associated with the violations are different. Id.

                                             27

Respondent was cited for a violation of 29 C.F.R. § 1910.23(d)(1)(iii) in 2011, which

became a final order of the Commission on March 8, 2012. (Tr. 127–31; Ex. C-17). Specifically,

Respondent was cited for having a flight of stairs leading to the rig floor that was not fully

equipped with standard railings. (Id.). Because both the current and prior violations involved the

same standard and exposed employees to the same hazard, the Court finds that the two violations

are substantially similar. Accordingly, Citation 2, Item 1 was properly characterized as

“Repeat”.

   Respondent mistakenly argues that this Citation Item was improperly characterized as a

serious violation of the Act. Resp’t Br. at 12. No such allegation was made in the Citation.

Because Respondent has not put forth evidence to rebut the allegation of substantial similarity,

Citation 2, Item 1 shall be AFFIRMED as a repeat violation of the Act.

VII. Unpreventable Employee Misconduct

   In addition to claiming the affirmative defense of impossibility of performance, which

was dealt with previously, Respondent has also alleged that the violations at issue were the

product of unpreventable employee misconduct. In order to prevail on this defense, Respondent

must prove that: (1) it has work rules designed to prevent the violation; (2) that it has adequately

communicated those rules; (3) that it has taken steps to discover violations; and (4) that it has

effectively enforced the rules when violations are discovered. Burford’s Tree, Inc., 22 BNA

OSHC 1948 (No. 07-1899, 2010). “A supervisor’s involvement in the misconduct is strong

evidence that the employer’s safety program was lax.” Archer-Western Contractors, Ltd., 15

BNA OSHC 1013, 1017 (No. 87-1017, 1991), aff’d without published opinion, 978 F.2d 744

(D.C. Cir. 1992). For the reasons that follow, Respondent’s affirmative defense is rejected.

   Although Respondent had work rules designed to prevent the foregoing violations,

Respondent did not put forth any evidence that its work rules were communicated to its

                                            28

employees, that it took steps to discover violations, or that it effectively enforced those rules

when violations were discovered. (Ex. C-13). See N&N Contractors, Inc., 18 BNA OSHC 2121

(No. 96-0606, 2000) (holding that employers must exercise reasonable diligence to discern

presence of violations, including adequate supervision of employees, inspecting work area,

anticipating hazards, and taking measures to prevent occurrence of violations). With respect to

floor holes, Angles testified that he was not aware of any policies that indicated permissible floor

hole size on rig floors, nor was there any indication that he received training from Respondent on

that issue. (Tr. 192). He also testified that he was not aware of any employees being disciplined

for not following company rules regarding the foregoing violations. (Tr. 193, 195, 197–98).

Bittle testified that rig crews do not have a formal checklist for setting up rigs, and Respondent

failed to put forth any evidence of worksite inspections or disciplinary action related to violations

of its safety program. (Tr. 215–216). See Precast Svcs., Inc., 17 BNA OSHC 1454 (No. 93-

2971, 1995) (“To prove that its disciplinary system is more than a ‘paper program,’ an employer

must present evidence of having actually administered the discipline outlined in its policy and

procedures.”). The fact that these violations were committed by supervisors bolsters the Court’s

conclusion that Respondent’s safety program was deficient. Accordingly, Respondent’s defense

of unpreventable employee misconduct is rejected.

VIII. Penalty

   In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act

requires the Commission give due consideration to four criteria: (1) the size of the employer’s

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the

employer’s prior history of violations. Gravity is the primary consideration and is determined by

the number of employees exposed, the duration of the exposure, the precautions taken against

injury, and the likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201

                                             29

(No. 87-2059, 1993). It is well established that the Commission and its judges conduct de novo

penalty determinations and have full discretion to assess penalties based on the facts of each case

and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995);

Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975).

    With respect to each of the foregoing violations, Complainant considered Respondent’s

size, history of violations, and good faith. (Tr. 93–94). Respondent was not given credit for its

size, because it employs approximately 400 employees across multiple states. (Tr. 93, 104, 118).

Further, Respondent was not given credit for good faith due to the number of safety issues and

violations present at the worksite. (Tr. 94, 105, 118). With the exception of Citation 2, Item 1,

however, Respondent was given a ten percent reduction in penalty because it did not have a

history of serious violations from its previous inspection in 2011. The Court agrees with these

general assessments of Respondent and its worksite—the servicing rig was haphazardly put

together, thereby exposing Respondent’s employees to multiple hazards over the course of two

days. Even more distressing is that many violations were open and obvious and could have been

abated by tools or building implements that were readily available at the worksite. (Ex. C-4, C-

10, C-11).7

    For the purpose of assessing a penalty, Complainant grouped Citation 1, Items 2A, 2B,

and 2C, because they involved interrelated fall hazards. Accordingly, Complainant assessed a

grouped penalty of $4,500.00. Complainant determined that the violations were of high severity

due to the hazards involved, but lower probability due to the likelihood that an accident would

result. The Court agrees with Complainant’s assessments as to Items 2A and 2B—employees

were exposed to the potential for serious injury due to the trip and fall hazards identified by

7. As a side note, although the Court has found that certain violations were not supported by the evidence, the
   Court in no way condones the manner in which Respondent addressed those particular hazards.

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   Complainant. However, due to the short duration of the job (approximately three hours on two

separate days), and the limited number of times that the rigs were accessed on a daily basis, the

Court finds that the there was a lower probability of injury. Because Citation 1, Item 2C has

been vacated, the Court finds that a grouped penalty of $3,000.00 is appropriate.

     Citation 1, Items 4A and 4B, which address the fire extinguishers, were also grouped for

penalty purposes. The Court agrees with Complainant’s assessment that the violations were of

low gravity and low probability. At the time of the violation, the well was cased, cemented, and

plugged, which reduced the likelihood of a fire occurring. Further, as noted by Complainant,

Respondent’s employees were wearing fire retardant clothing. (Tr. 117; Ex. C-2). Accordingly,

the Court finds that a penalty of $2,000.00 is appropriate.

     Finally, the Court agrees with Complainant’s assessment as to Citation 2, Item 1, for

which he proposed a penalty of $15,000.00. Although a fall from approximately four feet would

likely result in only sprains or contusions,8 the Court finds that the violation was indicative of

Respondent’s emphasis (or lack thereof) on safety. Complainant identified multiple fall hazards

in a relatively small work space. Thus, while there was a low probability that any one violation

may result in an injury, the foregoing violations, viewed in the aggregate, illustrate that there

were multiple opportunities for Respondent’s employees to be injured. The fact that this

violation was nearly identical to one that occurred in 2011 is yet another indication that

Respondent has not learned from its previous mistakes and illustrates to the Court that it does not

take seriously its obligation to provide a safe workplace. Accordingly, the Court finds that a

penalty of $15,000.00 is appropriate.

8. Such injuries, although of lesser gravity, would nonetheless be properly characterized as “serious”.

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   ORDER

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED
   

that:

1. Citation 1, Item 1 was withdrawn by Complainant.

2. Citation 1, Items 2A and 2B are AFFIRMED, and a grouped penalty of $3,000.00 is
   ASSESSED.

3. Citation 1, Item 2C and its associated penalty are VACATED.

4. Citation 1, Item 3 and its associated penalty are VACATED.

5. Citation 1, Items 4A and 4B are AFFIRMED, and a grouped penalty of $2,000.00 is
   ASSESSED.

6. Citation 2, Item 1 is AFFIRMED, and a penalty of $15,000.00 is ASSESSED.

SO ORDERED.

                                              /s/
                                              John H. Schumacher
                                              Judge, OSHRC

Date: April 30, 2015
Denver, Colorado

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