Basic Energy Services

Read the official release (oshrc.gov)

Plain-English summary

Basic Energy Services provided well-servicing work at an oil and gas well near Hawkins, Texas. OSHA observed employees working on an elevated rig platform where stairs between platform levels were broken and replaced with a box, and a roughly six-foot section of guardrail was missing. The judge found that fixed stairs were required for regular travel between the levels and that employees were exposed to a fall from the open platform edge. The company did not prove its impossibility or greater-hazard defenses, including because it had not sought a variance and did not use available alternative fall protection. The stair violation was affirmed as serious, and the guardrail violation was affirmed as repeat based on a prior final citation under the same standard. The assessed penalties totaled $44,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.24(b); 29 C.F.R. § 1910.23(c)(1)
• Outcome: Serious fixed-stair item and repeat guardrail item affirmed; $44,000 total penalty assessed.
• Key point: A claimed greater hazard does not excuse an open platform edge when the employer neither sought a variance nor used available alternative fall protection.

Full text (OSHRC public release)

                      United States of America
      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

                  Complainant,                              OSHRC Docket No. 14-0542

                          v.

BASIC ENERGY SERVICES,

                  Respondent.

Appearances:

   Mia F. Terrell, Esq., U.S. Department of Labor, Office of the Solicitor, Dallas, Texas,
       For Complainant

   Steven R. McCown, Esq. and L. Mey Ly, Esq., Littler Mendelson PC, Dallas, Texas,
       For Respondent

Before: Administrative Law Judge Peggy S. Ball

                                 DECISION AND ORDER

I. Procedural History

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

Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.

§ 659(c) (“the Act”). On September 23, 2013, the Occupational Safety and Health

Administration (“OSHA”) conducted an inspection of Respondent’s worksite, which was located

at the Hitts Lake Unit #5-1 well near Hawkins, Texas. (Ex. C-1). Respondent was providing

well-servicing services to Valence Operating Company, which owned the well. (Tr. 43; Exs. C-

1; C-22). OSHA issued a Citation and Notification of Penalty (“Citation”) to Respondent
alleging one serious and one repeat violation with a proposed penalty of $44,000.00.

Respondent timely contested the Citation.

      The trial took place on March 31 and April 1, 2015, in Dallas, Texas. Three witnesses

testified at trial: (1) Angel Guerrero, floor hand for Respondent, (2) Jeff Stewart, Respondent’s

Vice President of Safety and Training; and (3) Ruth Solis-Lewis, Compliance Safety and Health

Officer (“CSHO”). Both parties timely submitted post-trial briefs. After reviewing the parties’

arguments and the record, the Court issues the following Decision and Order.

II.      Stipulations 1

      The parties stipulated to the following:

1. The Commission has jurisdiction over this proceeding under Section 10(c) of the

Occupational Safety and Health Act, 29 U.S.C. § 659(c) (“Act”).

2.    Basic Energy Services, LP is an employer engaged in a business affecting commerce

within the meaning of Section 3(5) of the Act, 29 U.S.C. § 652(5).

III. Jurisdiction

      The parties have stipulated that the Commission has jurisdiction over this proceeding and

that Respondent was an employer engaged in a business affecting commerce within the meaning

of § 3(5) of the Act, 29 U.S.C. § 652(5). Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).

IV.      Factual Background

      Respondent is a full-service provider in the oil and gas industry, with approximately

6,000 employees. (Tr. 175, 204). As is relevant to the present case, Respondent provides well-

servicing assistance, which is the maintenance and upkeep of an existing, producing oil or gas

1. The parties’ stipulations can be found in the parties’ Joint Stipulation Statement, which was filed with the Court.
   These stipulations were read in open court and can be found on page 11 of the transcript.

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   well. (Tr. 175). This work is accomplished through the use of a mobile servicing or workover

rig. (Tr. 178).

      A well-servicing rig is mobile so it can be driven to the various oil and gas wells that are

serviced by Respondent. (Tr. 182; Ex. C-2). It is a complex piece of machinery that includes a

telescoping derrick; a series of elevators, tongs, and a break drum to assist in the insertion and

removal of pipe from the well; articulating platforms to allow for differences in the respective

well sites to which the rig travels; as well as many other implements that aid in the maintenance

and upkeep of an existing well. (Tr. 178–87). Once the rig is driven to the site, Respondent’s

crew positions the rig around the well head. (Tr. 184; Ex. C-2). After the rig is situated around

the well head, the “rig-up” process begins, whereby the rig is positioned with jacks, the derrick

mast is scoped upwards and secured to a base-beam with guy wires and turnbuckles, and, to the

extent needed, work platforms are adjusted to accommodate the height of the blowout preventer,

which is located at the mouth of the well head. (Tr. 184–87; Ex. C-2). The rigging-up process

also includes installation of guardrails, stairs, and other implements related to ingress/egress and

safety.

      On September 23, 2013, CSHO Solis-Lewis was returning to the Dallas OSHA area

office when she pulled off the highway to refuel her car. (Tr. 259). As she was standing at the

gas station, she observed people working on the elevated platform of a well-servicing rig with

missing guardrails. (Tr. 259–60). The rig was later identified as Rig No. 1552, which was

located at the Hitts Lake Unit #5-1 worksite outside of Hawkins, Texas. (Tr. 43; Exs. C-1, C-22).

The worksite and well were owned and operated by Valence Operating Company. (Ex. C-22).

      As she refilled her tank, CSHO Solis-Lewis observed the worksite for approximately 5–

10 minutes. (Tr. 272). After refueling, CSHO Solis-Lewis drove to a nearby parking lot, from

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which she took photographs of the worksite. (Tr. 272; Ex. C-2). The photographs show

members of Respondent’s work crew working on the elevated platform, which was missing a set

of guardrails. The foregoing observations lasted approximately 15–20 minutes. 2 (Tr. 273).

     After CSHO Solis-Lewis had taken photographs, she entered the worksite to conduct an

inspection pursuant to the OSHA Region VI Regional Emphasis Program for oil and gas. (Tr.

258). According to CSHO Solis-Lewis, she presented her credentials and held an opening

conference with Santiago Luna, who identified himself as the Respondent’s toolpusher, which is

the equivalent of the crew foreman. (Tr. 261–62). As such, Luna was in charge of a four-man

crew, which consisted of the rig operator, Tiquio Paredes; two floor hands, Angel Guerrero and

Edgar Castillo; and a derrick hand, Carlos Sanchez. (Tr. 35–36, Ex. C-22). During her

conversation with Mr. Luna, CSHO Solis-Lewis recognized him as the same man she had

previously observed standing in close proximity to the platform (not on it) with the missing

guardrail. (Tr. 261–262).

     During the opening conference, Mr. Luna told CSHO Solis-Lewis the crew was engaged

in pulling pipe to remove and replace a down hole pump. 3 (Tr. 263). The crew had begun the

set-up for this particular job on the Friday before the inspection. (Tr. 50). According to

2. Respondent placed a significant amount of emphasis on the fact that CSHO Solis-Lewis’ inspection of the
   worksite only lasted about 15 minutes. However, based on the CSHO’s testimony that Mr. Luna had to leave the
   worksite during the course of her inspection, the Court finds nothing unusual about the length of the inspection as it
   relates to the quality of CSHO Solis-Lewis’ observations. (Tr. 324–27).
3. At trial Respondent objected, on hearsay grounds, to CSHO Solis-Lewis’ testimony about what Mr. Luna had
   said to her. Respondent reiterated this objection in its post-trial brief. Specifically, Respondent contends that
   because Mr. Luna was deceased at the time of trial, there was no way for Respondent to examine him regarding the
   statements made to CSHO Solis-Lewis. Respondent’s argument attempts to paste F.R.E. 801(d)(1)’s requirement
   that the declarant be subject to cross-examination onto F.R.E. 801(d)(2). According to F.R.E. 801(d)(2), however,
   the availability of the declarant is immaterial; rather, all that is required is a statement offered against an opposing
   party that satisfies one of five conditions. Fed. R. Evid. 801(d)(2). In this instance, Mr. Luna was an
   agent/employee of Respondent and made a statement to CSHO Solis-Lewis on a matter within the scope of his
   relationship with Respondent. See Fed. R. Evid. 801(d)(2)(D). Thus, the statement is not hearsay. Further, contrary
   to Respondent’s proclamation that hearsay is admissible in administrative proceedings, the Occupational Safety and
   Health Review Commission Rules of Procedure plainly state the “Federal Rules of Evidence are applicable.” 29
   C.F.R. § 2200.71.

                                                      4
   

   Respondent’s records, Luna and his crew arrived at the worksite around 7:00 a.m. on the

following Monday, at which time they held a safety meeting and completed a job safety analysis

(JSA). (Ex. C-22). According to CSHO Solis-Lewis, she arrived at the worksite sometime

around 10:00 a.m. (Tr. 262).

    During her inspection, CSHO Solis-Lewis observed a missing guardrail on the upper rig

platform, as well as a missing set of stairs between the lower platform to the upper platform. (Tr.

264; Ex. C-2). CSHO Solis-Lewis testified that Mr. Luna told her the guardrails were

incomplete because they were in a hurry and that they had just arrived at the site and had not yet

installed all guardrails. (Tr. 264). As to the stairs, Guerrero testified that the set of stairs used for

accessing the upper platform was broken. (Tr. 67). In its stead, CSHO Solis-Lewis observed a

box that was used as a step. 4 (Tr. 81–84, 104; Ex. C-2a).

    According to her measurements, CSHO Solis-Lewis determined that the height of the

upper platform was approximately 81 inches, or roughly 6.75 feet, above the ground. (Tr. 265).

In addition, she determined that the gap in the railing of the upper platform measured

approximately 6 feet across. (Tr. 265). As she was observing Respondent’s work crew from the

adjacent parking lot, CSHO Solis-Lewis saw Mr. Guerrero guiding pipe approximately 3 feet

from the unguarded edge. (Tr. 265). She also observed Mr. Paredes working at the operator’s

console, which was adjacent to the unguarded opening. (Ex. C-2).

    CSHO Solis-Lewis recommended, and Complainant issued, two Citations. The Court

shall address each violation, as well as Respondent’s affirmative defenses, below in Sections VI

and VII. Based on its review of the record and the parties’ respective post-trial briefs, the Court

4. The parties dispute whether the box was actually used as a means of access to the top platform. The resolution of
   this factual dispute can be found in Section VI.A, infra.

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   finds Complainant has established the violations as alleged in the Citation and Notification of

Penalty and that Respondent failed to establish an affirmative defense.

V. Applicable Law

    To establish a violation of an OSHA standard, Complainant must establish that: (1) the

standard applies to the facts; (2) the employer failed to comply with the terms of the standard;

(3) employees were exposed to the hazard covered by the standard, and (4) the employer had

actual or constructive knowledge of the violation (i.e., the employer knew, or with the exercise

of reasonable diligence could have known, of the violative condition). Atlantic Battery Co., 16

BNA OSHC 2131, 2138 (No. 90-1747, 1994).

VI. Discussion

       A. Citation 1, Item 1

    Complainant alleged a serious violation of the Act in Citation 1, Item 1 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 required attention
    routinely during operations:

    This violation was observed on or about September 23, 2013, where employees
    on a work-over rig platform were not provided safe access to all working levels.

    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



                                             6

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).

               i. The Standard Applies

   According to 29 C.F.R. § 1910.22, which indicates the general requirements for Subpart

D (of which 1910.24(b) is a part), “This section applies to all permanent places of employment,

except where domestic, mining, or agriculture work only is performed.” 29 C.F.R. 1910.22. The

rig is a mobile unit, capable of traveling to different well sites, and the work performed by

Respondent’s employees is considered well-servicing. (Tr. 233). Even though the specific type

of servicing work may be different day-to-day—Stewart testified that well-servicing rigs perform

a number of different functions—the work nonetheless always takes place on or about the rig. In

this regard, the Court finds persuasive the rationale of ALJ Mitchell in Signal Oilfield Svc., Inc. 6

BNA OSHC 1717 (No. 77-0226, 1978) (ALJ). Specifically, ALJ Mitchell found in this context

that “the word ‘permanent’ refers to the place of employment where the men actually do their

work. In this instance, Signal’s employees obviously perform their duties on the drilling rig—

regardless of where the rig might be located geographically.” Id. This comports with the

purpose of the Act, which is to “assure safe and healthful working conditions for working men

and women . . . .” 29 U.S.C. § 651. Further, there are a number of other cases at both the

Commission and ALJ levels affirming violations cited under Subpart D, Walking-Working

Surfaces, on mobile drilling and servicing rigs. See, e.g., Well Solutions, Inc., 15 BNA OSHC

1718 (No. 89-1559, 1992); Welltech, Inc., 12 BNA OSHC 1333 (No. 84-0919, 1985) (ALJ);

Poole Co. Texas Ltd., 19 BNA OSHC 1317 (No. 99-0815, 2000) (ALJ). See also Computer

Sciences Raytheon, 17 BNA OSHC 1057 (No. 93-232, 1995) (ALJ) (holding a mobile launch

platform is a permanent place of employment in that it affords employees a fixed workspace).

                                             7

Accordingly, the Court finds this mobile rig is a permanent place of employment as that term is

used in the Act, and that Subpart D applies to Respondent’s worksite. The rig is where these

workers work, and the fundamental objective of making their place of work safe would not be

well-served by applying safety regulations inconsistently based upon where the workplace

happens to be geographically situated on a given day or exempting this worksite from safety

regulations, which would otherwise apply to the work being performed, simply because their

worksite is moved from one well to another

   The Court also finds that the specific standard cited by Complainant applies to the cited

condition. Respondent contends that in order to be classified as “fixed stairs”, the stairs must be

permanently attached to the structure. This argument is derived by grafting the definition of

“fixed ladder”, which is found in 29 C.F.R. § 1910.21, onto the term “fixed stairs”, which is not

defined by 1910.21. According to Section 1910.21(e)(2), a fixed ladder is “is a ladder

permanently attached to a structure, building, or equipment.” Thus, Respondent contends a

ladder cannot be “fixed” unless it is permanently attached, and therefore “fixed stairs” similarly

must be permanently attached. Because the platforms here are adjustable, the rig is mobile, and

the stairs are interchangeable, Respondent contends the standard does not apply to this rig.

   Complainant, on the other hand, argues the term “fixed” in the context of industrial stairs

means “attached in some way to prevent movement”. (Tr. 275). In this case, Mr. Stewart

testified that the stairs are “constructed of aluminum material. They have hooks on each end or

at the top of the stairs that will slide into a pocket.” (Tr. 134). Mr. Stewart also admitted that

when the stairs are in place, they are sturdy enough to withstand the downward force of someone

walking on them. (Tr. 134). Complainant’s interpretation squares with the rationale of ALJ

Schwartz, who held:

                                             8

Though Poole argues that the stairs were not permanently attached to the mobile
rig, the stairs were, nonetheless, “fixed” in that they were secured to the platform
to prevent their movement while in the configuration. CO Nystel testified that the
steps were attached to the rig with flanges that could be inserted into slots on the
platform floor, which were apparently intended for that purpose.

    Complainant has established that the steps in question were fixed industrial stairs
    as contemplated by the standard, and that the cited standard is applicable.

Poole, 19 BNA OSHC 1317, 2000 WL 373797 at *3.

    The Court agrees with Complainant. Though Respondent’s argument that “fixed stairs”

should be interpreted similarly to “fixed ladder” carries some cachet, it does not establish that

Complainant’s interpretation is unreasonable. See Unarco Comm. Prods., 16 BNA OSHC 1499

(No. 89-1555, 1993) (holding that Court may defer to agency’s reasonable interpretation of

standard when plain meaning and regulatory history do not clarify standard’s applicability). A

Commission ALJ addressed an employer’s interpretation of the term “fixed ladder” in the

construction context, which used the same basic definition as 1910.21(e)(2). See U.S. Steel

Corp., 7 BNA OSHC 1579 (No. 78-4231, 1979) (ALJ) (discussing ANSI standard for fixed

ladders that was adopted by the Secretary as part of code of regulations for construction). 5 In

U.S. Steel, the ALJ noted the following with respect to the use of the term “permanent”:

    In sum, the Secretary upon adopting the ANSI Code for Fixed Ladders into Part
    1926, the standards for construction under the Act, did not use the adverb
    ‘permanently’ in its literal sense, but in the sense that a ladder is firmly implanted
    upon a structure, building, or equipment, and used during the entire process in
    every kind of construction. This interpretation is consonant with the purpose and
    policy of the Act which is to assure so far as possible every working man and
    woman in the nation safe and healthful working conditions.

Id. at *3. Similarly, Respondent’s restrictive interpretation of the term “fixed” would ostensibly

excuse it from installing stairs or ladders, notwithstanding whether such means of access would

5. The standard, previously found at 29 C.F.R. § 1926.450 has since been amended and recodified at 29 C.F.R. §
   1926.1050.

                                                 9
   

   be necessary to preclude the existence of a hazard. As such, the Court finds Complainant’s

interpretation of the term “fixed” sensibly conforms to the purpose and plain meaning of the

term. Thus, the standard applies.

                   ii. The Terms of the Standard were Violated

     There is no serious dispute that Respondent failed to install stairs between the upper and

lower platforms of the servicing rig. 6 (Ex. C-2). The question, however, is whether the terms of

the standard required stairs to be used in this context. According to the standard, fixed stairs are

required:

     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.

29 C.F.R. § 1910.24(b). See Poole, 19 BNA OSHC 1317 (holding fixed stairs were required

where employees worked on elevated platforms of workover rig on daily basis); Spirit Homes,

Inc., 2002 OSHD (CCH) ¶ 32624, 2002 WL 31163770 (Nos. 00-1807 & 00-1808, 2002) (ALJ)

(holding that access to work platform twice per day satisfied standard); Simmons, Inc., 6 BNA

OSHC 1157 (No. 12862, 1976) (ALJ) (holding access 2–3 times per week sufficient to meet

requirements of standard).

6. Respondent attempted to argue, because the stairways were detachable, it was possible the stairs were removed
   from the lower platform and attached to the upper platform as needed. See Resp’t Br. at 19. The testimony on this
   particular point is equivocal at best, especially in light of the fact that Paredes and Guerrero were on the top platform
   even though the stairs were still attached to the lower platform. (Tr. 274). Further, when confronted with his
   deposition testimony, during which Guerrero described in detail how he utilized the white box (pictured in C-2) and
   the handrail to hoist himself onto the platform, he admitted they did not have stairs leading to the upper platform on
   the day of the inspection and they used the white box and handrail for access. (Tr. 83–84). The Court is more
   convinced by this testimony than the discussions regarding the interchanging of stairs and ladders, which appeared
   to be coached.

                                                      10
   

   In this case it is clear, at the very least, Mr. Guerrero accessed the upper platform on a

daily basis to perform his regular job tasks—the photographs taken by CSHO Solis-Lewis show

both Mr. Guerrero and Mr. Paredes on the upper platform of the rig. (Ex. C-2). The job they

were performing—removing pipe from the well to access a submerged pump—required both

men to be on the upper platform, either operating the controls or guiding pipe out of, or into, the

hole. Mr. Guerrero’s testimony shows that he accessed the platform on a daily basis and exited

the platform when his shift was over or when he took a break. (Tr. 106–107). The job duties

associated with the well-servicing activities performed by Respondent clearly required its

employees to access the upper (and lower) platforms on daily basis, and Mr. Guerrero’s

testimony confirms (regardless of the manner in which the platform was accessed), at the very

least, he accessed the upper platform at least one time per day. Accordingly, the Court finds the

cited standard required fixed stairs to be in place on Rig 1552 and Respondent failed to comply

with its terms.

              iii. Respondent Knew or, With the Exercise of Reasonable Diligence,
                   Could have Known of the Violative Condition

     Complainant contends that Respondent’s supervisor, Mr. Luna, knew, or at the very

least could have known, of the violative condition. The conspicuousness of the violation is

illustrated by the photos taken by CSHO Solis-Lewis, which show Mr. Luna standing directly in

front of the rig. Further, CSHO Solis-Lewis testified that Mr. Luna admitted to her that he knew

the stairs were missing. (Tr. 273). This constitutes direct knowledge of the violative condition.

Alternatively, the Court finds that Mr. Luna had constructive knowledge of the condition in that

he was present at the worksite, had the opportunity to view the rig, the violation was readily

apparent, and, as the supervisor of the rig, he had the responsibility to inspect the worksite for

                                            11

hazards. See Greenleaf Motor Express, Inc., 21 BNA OSHC 1872 (No. 03-1305, 2007) (quoting

Precision Concrete Constr., 19 BNA OSHC 1404, 1406 (No. 99-0707, 2001)).

   “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). Mr. Luna was

the on-site supervisor for Respondent. (Tr. 261–62). As such, his knowledge of the violation is

properly imputable to Respondent. Accordingly, the Court finds that Respondent knew or could

have known of the violative condition.

              iv. Respondent’s Employees were Exposed to the Hazard

     CSHO Solis-Lewis testified that Respondent’s failure to have fixed stairs between the

upper and lower platforms exposed employees to a fall hazard. (Tr. 271). This was the result of

the floor hand and the operator accessing the upper platform without a set of fixed stairs. (Tr. 81,

84, 87). Respondent, on the other hand, contends that Complainant’s evidence is an assumption,

unsupported by direct evidence. Specifically, Respondent argues that, because CSHO Solis-

Lewis did not directly observe the employees use the box and handrails to access the upper

platform, the conclusion that they were exposed to a hazard is mere speculation. The Court finds

otherwise.

     As noted above, Mr. Guerrero testified at deposition and trial that he and Mr. Paredes

used the box and handrails to access the upper platform. (Tr. 81, 84, 87). This evidence,

independent of any direct observation, is sufficient for the purposes of establishing exposure to

                                            12

the hazard. Further, to the extent that Mr. Guerrero and Mr. Paredes 7 were standing on an

elevated platform with no visible means of access other than the box, the Court finds that it is

reasonable to infer that they accessed the platform without the use of fixed stairs. See Okland

Constr. Co., 3 BNA OSHC 2023 (No. 3395, 1976) (affirming ALJ’s conclusion that Secretary

established a violation based on inferences drawn from circumstantial evidence). As such,

Complainant has established that Respondent’s employees were exposed to the hazard, as well as

its prima facie case.

                  v. Respondent Failed to Prove an Exception to the Standard

       As noted by Respondent, Section 1910.24(a) addresses the applicability of 1910.24(b).

Although the Court has already determined the standard applies, there is an exception to the

general rule, which states, “This section does not apply to stairs used for fire exit purposes, to

construction operations to private residences, or to articulated stairs, such as may be installed on

floating roof tanks or on dock facilities, the angle of which changes with the rise and fall of the

base support.” 29 C.F.R. § 1910.24(a). Respondent contends that, because the rig has multiple,

articulating platforms, the exception applies. The Court disagrees.

       The exception at issue is clearly directed to stairs which rest on water—floating roof

tanks and dock facilities. See Poole, 19 BNA OSHC 1317 (rejecting defense based on exception

to 1910.24(a) and finding that the cited stairs of workover rig rest on solid ground and do not

change pitch with the rise and fall of said ground). The rig at issue, like the rig in Poole, rests on

stable ground. Further, the articulating platforms, though moveable, are generally static during

7. Respondent points out that the operator’s platform moves independently from the rest of the rig, which means
   that Mr. Paredes did not need to use the stairs. Resp’t Br. at 21. Even if that were the case, it is clear that Mr.
   Guerrero was exposed. However, given Mr. Guerrero’s testimony, the Court finds that both he and Mr. Paredes
   were exposed to the violative condition.

                                                   13
   

   the course of the well-servicing work; thus, there is no need for the stairs themselves to

articulate. (Tr. 282–83).

     It is Respondent’s burden to establish an exception to the standard. C.J. Hughes

Construction, Inc., 17 BNA OSHC 1753, 1756 (No. 93-3177, 1996) (party seeking benefit of

exception to legal requirement has burden to show it applies). Respondent did not put forth

evidence to suggest that the stairs at issue were capable of articulating with the movement of the

platforms; in fact, based on the photographs of the stairs at the worksite, it seems clear that they

are rigid. (Ex. C-2). As such, the Court finds that the exception does not apply.

              vi. The Violation Was Serious

   A violation is classified as serious under the Act if “there is substantial probability that

death or serious physical harm could result.” 29 U.S.C. § 666(k). Commission precedent

requires a finding that “a serious injury is the likely result if an accident does occur.” Mosser

Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010) (citation omitted); see Omaha

Paper Stock Co. v. Sec’y of Labor, 304 F.3d 779, 784 (8th Cir. 2002). Complainant does not

need to show there was a substantial probability that an accident would occur; he need only show

that if an accident did occur, serious physical harm could result. Id.

     CSHO Solis-Lewis testified that the distance between the upper platform and the lower

platform was approximately three feet. (Tr. 271). Based on her experience, she testified that

serious injury, up to and including death, could result from such a fall. (Tr. 273). This testimony

was buttressed by Mr. Stewart, who testified, “It’s possible to sustain a serious injury falling just

a few inches.” (Tr. 139). The photographs taken by CSHO Solis-Lewis show objects and

equipment that a worker’s head or other body part could strike if he or she fell transitioning

between platforms.

                                             14

Based on the foregoing, the Court finds that Complainant has proved a violation of the

standard and that said violation was serious. Accordingly, Citation 1, Item 1 shall be

AFFIRMED.

       B. Citation 2, Item 1

   Complainant alleged a repeat violation of the Act in Citation 2, Item 1 as follows:

   29 CFR 1910.23(c)(1): Except where there was an entrance to a ramp, stairway,
   or fixed ladder, every open-sided floor or platform 4 feet or more above adjacent
   floor or ground level was guarded by a standard railing (or the equivalent as
   specified in 29 CFR 1910.23(e)(3)) on all open sides:

   This violation was observed on or about September 23, 2013, where employees
   on a work-over rig were not protected from falling more than 6 feet to the ground
   below.

   Basic Energy Services has been cited previously for a violation of this
   occupational safety and health standard or its equivalent standard 1910.23(c)(1),
   which was contained in OSHA inspection number 313500241, citation number 1,
   item number 1 and was affirmed as a final order on October 19, 2011, with
   respect to a workplace located at Helen Crump-Well #B9, Odessa, Texas 79760.

   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.

29 C.F.R. § 1910.23(c)(1).

               i. The Standard Applies

   The Court has previously determined that the standards of Subpart D apply to

Respondent’s worksite. See Section VI.A.i, supra. As such, the Court hereby incorporates by

reference Section VI.A.i. Further, the Court finds that the specific standard cited also applies—

the mobile rig is comprised of multiple, open-sided platforms, which, at the time of the

inspection, were four feet or more above the ground level. See Welltech, 12 BNA OSHC 1333

                                           15

(holding 1910.23(c)(1) applicable to well-servicing rig); Well Solutions, Inc., 15 BNA OSHC

1718 (same).

              ii. The Terms of the Standard Were Violated

   Respondent does not, indeed cannot, argue that the terms of the standard were not

violated. CSHO Solis-Lewis took photographs of the work platform clearly illustrating a six-

foot gap in the railing. (Ex. C-2). The upper platform was more than six feet above the ground,

which is more than the minimum height requirement of four feet. Accordingly, the terms of the

standard were violated.

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

   The Court hereby incorporates by reference Section VI.A.iii, supra. Both conditions—

the missing stairs and missing guardrail—were either directly observed by Mr. Luna or should

have been observed in light of the obvious nature of the violation and Mr. Luna’s proximity to

the condition. (Ex. C-2). Accordingly, the Court finds that Respondent knew or, with the

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

              iv. Respondent’s Employees Were Exposed to the Hazard

   “To establish exposure, ‘the Secretary . . . must show that it is reasonably predictable

either by operational necessity or otherwise (including inadvertence), that employees have been,

are, or will be in the zone of danger.’” Delek Ref., Ltd., 25 BNA OSHC 1365 (08-1386, 2015)

(citing Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997)). See also

Gilles & Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976).

   Respondent contends that Complainant is attempting to enforce a strict liability standard

by merely presuming exposure to the six-foot gap in the railing on the upper platform. In that

respect, Respondent points out that: (1) Guerrero testified he did not work near the opening and

                                           16

that his working area was approximately 4 feet away from the gap; (2) Paredes did not need to go

near the gap because his job duties did not take him away from the control panel; and (3) neither

of the employees were photographed actually standing in the railing gap. Complainant, however,

argues that Guerrero’s and Paredes’ proximity to the railing gap was sufficiently close to

establish exposure to the hazard. See Compl’t Br. at 23 (citing Star Circle Wall Sys. Inc., 1 BNA

OSHC 3052 (No. 1991, 1973) (employees working 3–4 feet from unprotected edge were

exposed to hazard)). Additionally, Complainant also points out that: (1) there was nothing to

block access to the gap in the railing; and (2) the job of removing and replacing the pump would

place employees right at the edge of the unguarded platform edge in order to guide the pump.

   The Court agrees with Complainant. The photographs found at Exhibits C-2a, C-2b, and

C-2c clearly show Paredes standing no more than a foot away from the gap in the railing. There

is no partition to prevent him from moving from the operator’s controls. By operational

necessity—to wit, his duties at the control panel—he is standing directly adjacent to the gap in

the railing. See Jacobson Son Constr., 7 BNA OSHC 1640 (No. 78-3415, 1979) (“Respondent’s

relief foreman, because of the nearness [10 feet] of his work station to the south opening . . .

must be held to have been exposed to the falling hazard contemplated by the cited standard.”).

Further, as the standard for establishing exposure also countenances inadvertence, the Court

finds that it is reasonably likely that a simple mistake or lapse of attention would place Paredes

directly in front of the gap. Likewise, though perhaps a bit more attenuated, Guerrero, while

operating the tongs at the center of the platform, was a mere three feet away from the gap in the

railing. The Commission has held that standing 10 feet away from an unprotected edge is

sufficient to establish exposure. See id.; see also Brennan v. OSHRC (Underhill Constr. Co.),

513 F.2d 1032, 1035–36 (2d. Cir. 1975) (employer is responsible for requiring fall protection

                                           17

whenever hazard is accessible to an employee, including, for example, where employees using

ceiling sanding machine worked 10 feet from unguarded edge of floor high above ground). 8

Sometimes it is not the gap located close enough to have the worker’s attention that results in a

fall—it is the one that is out of sight or behind the worker and forgotten during active work.

    In light of the foregoing, the Court finds that it is reasonably predictable either by

operational necessity or otherwise (including inadvertence), that employees have been, are, or

will be in the zone of danger. Accordingly, the Court finds that Complainant has established its

prima facie case.

                  v. The Violation Was Repeated

    “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.

    The evidence shows that, in a previous inspection, 9 Respondent was cited for a violation

of 29 C.F.R. § 1910.23(c)(1) under basically the same circumstances as those presented here.

(Tr. 149–150, 288–289; Ex. C-7). Both CSHO Solis-Lewis and Mr. Stewart testified that the

underlying citation involved missing guardrails on a mobile rig, and the violation exposed

8. In response to arguments similar to those proffered by Respondent in this case, the Second Circuit stated, “One
   takes it that Dic-Underhill would have us hold that for a citation properly to issue, an employee of the particular
   employer creating the perimeter hazard must be seen by an inspector teetering on the edge of the floor 150 feet or so
   up from the ground. No such interpretation of the standards would be reasonable. No such interpretation is
   consistent with, let alone called for by, the Act.”
9. The inspection for the underlying violation was No. 313500241. The citation was issued on September 22, 2011.
   (Ex. C-7).

                                                    18
   

   employees to a fall hazard. (Tr. 149–150, 288–289). As noted by Complainant, Respondent did

not contest the Citation; instead, Respondent submitted a letter indicating abatement had

occurred, and, shortly thereafter, Complainant received payment in full for the assessed

penalties. (Tr. 296; Exs. C-9, C-25). As such, the Citation became a final order of the

Commission by operation of law on October 19, 2011. See 29 U.S.C. § 659 (failure to submit

notice of contest within fifteen days from receipt of Citation and Notification of Penalty results

in citation becoming final order of Commission).

   Respondent’s only argument with respect to this issue is that Exhibit C-9, which is the

letter sent from Respondent to OSHA regarding abatement, should be excluded pursuant to

Federal Rule of Evidence 408 because it is the result of an informal settlement. Resp’t Br. at 12.

Federal Rule of Evidence 408 provides:

   Evidence of the following is not admissible—on behalf of any party—either to
   prove or disprove the validity or amount of a disputed claim or to impeach by a
   prior inconsistent statement or a contradiction:

   (1) Furnishing, promising, or offering—or accepting, promising to accept, or
   offering to accept—a valuable consideration in compromising or attempting to
   compromise the claim; and

   (2) Conduct or a statement made during compromise negotiations about the
   claim . . . .

Fed. R. Evid. 408.

   The Court does not find that the foregoing rule precludes consideration of the disputed

exhibit. The letter merely indicates that corrective actions had been taken to abate the citation

and notification of penalty. (Ex. C-9). It is not being used here to prove or disprove the validity

or amount of a claim, nor is it being used for impeachment. See Cates v. Morgan Portable Bldg.

Corp., 708 F.2d 683 (7th Cir. 1985) (Rule 408 does not bar evidence of a settlement when

offered to prove a breach of the settlement agreement, as the purpose of the evidence is to prove

                                            19

the fact of settlement as opposed to the validity or amount of the underlying claim); see also

United States v. Austin, 54 F.3d 394 (7th Cir. 1995) (no error to admit evidence of the

defendant’s settlement with FTC, because it was offered to prove that defendant was on notice

that subsequent similar conduct was wrongful). The letter submitted by Complainant is merely

being offered to show that Respondent did not submit a notice of contest in the earlier action and,

thus, the citation and notification of penalty became a final order of the Commission by

operation of law. This is corroborated by Exhibit C-25, which shows that payment of the full

penalty amount was received by Complainant on November 9, 2011. (Ex. C-25).

     Regardless of whether this letter may or may not have been prompted by settlement

negotiations between the parties, such is irrelevant to the determination of whether it is

admissible. Just because something is related to settlement negotiations, or contemporaneous

with negotiations, does not bring it under the protection of the rule. See Fed. R. Evid. 408

advisory committee’s note (evidence of unqualified factual assertions is admissible). In this

instance, the letter is not being used to address the validity of the underlying violation that was at

issue during settlement negotiations for the former matter; rather, its purpose was far more

mechanical—establishing the existence of an underlying final order of the Commission.

Accordingly, Respondent’s argument is rejected, and the Court finds that the citation item was

properly characterized as “repeat”.

                  vi. Affirmative Defenses

     With respect to Citation 2, Item 1, Respondent has claimed the affirmative defenses of

infeasibility and greater hazard. 10 The Court shall address each in turn.

10. In reality, Respondent’s brief specifically mentions the affirmative defense of infeasibility; however, in light of
    its use of the term “greater hazard” in its argument, and in its Amended Answer, the Court shall consider it. The
    Court also notes that Respondent pled the affirmative defense of employee misconduct, but elected not to address

                                                      20
    

    1. Infeasibility

     In order to establish the affirmative defense of infeasibility, Respondent must prove that
    

“(1) the means of compliance prescribed by the applicable standard would have been infeasible

under the circumstances in that (a) its implementation would have been technologically or

economically infeasible, or (b) necessary work operations would be technologically or

economically infeasible after its implementation, and (2) either (a) an alternative method of

protection was used, or (b) there was no feasible alternative means of protection.” AJ McNulty &

Co., Inc., 19 BNA OSHC 1121 (No. 94-1758, 2000).

     Respondent contends full installation of the guardrails would have been infeasible

because the gap in the guardrails was necessary to accommodate the removal and installation of

a down-hole pump. Essentially, Respondent claims that its employees would be exposed to an

even greater hazard if the pump had to be lifted over a guardrail, instead of needing only to clear

the floor of the platform, because of a concern regarding equipment falling from overhead.

     Respondent’s defense of infeasibility is rejected because the arguments it makes in

support have nothing to do with whether or not the use of guardrails was infeasible. Instead,

many of the arguments it makes are more specifically targeted at the question of whether

compliance would have created a greater hazard, which will be addressed below. The

installation of guardrails does not implicate feasibility issues—Respondent readily admits that

the rig is designed to use a sheave or wheel to lift items off the ground onto the platform. Lifting

the pump over a guardrail instead of directly onto the platform was not technologically or

economically infeasible, nor would the presence of guardrails render ongoing work infeasible,

since the equipment necessary to carry out the job was already part of the workover rig. The rig

this issue in its post-trial brief or present more than scant evidence at trial on that issue. Accordingly, the Court
deems abandoned Respondent’s affirmative defense of employee misconduct.

                                                     21

was designed to have handrails in the location where the gap was found; thus, compliance would

require neither additional expense nor technological work-arounds. See Altor, Inc., 23 BNA

OSHC 1458 (No. 99-0958, 2011) (rejecting infeasibility defense where witness testified that

guardrails could have been used throughout the worksite).

   Based on the arguments of Respondent, this affirmative defense is rejected. It is clear

that Respondent’s main point is that compliance with the guardrail standard, under the

circumstances presented here, would have created a greater hazard than noncompliance.

Accordingly, the Court will address the greater hazard defense.

                      2. Greater Hazard

   To establish the defense of greater hazard, Respondent must prove that: “(1) the hazards

of compliance with the standard are greater than noncompliance; (2) alternative means of

protecting employees were either used or were not available; and (3) an application for a

variance under section 6(d) of the Act would be inappropriate.” Id. (citing Peterson Bros. Steel

Erection Co., 16 BNA OSHC 1196, 1204 (No. 90-2304, 1993)). With respect to the third

element, the Commission has held that “[w]e need not inquire whether [the employer] has

proved the first two elements of the defense, because it is clear that the company has introduced

no evidence on the third.” Spancrete Northeast, Inc., 15 BNA OSHC 1020, 1020–23 (No. 86-

521, 1991). See also Donovan v. Williams Enters., Inc., 744 F.2d 170, 178 n.12 (D.C. Cir. 1984)

(greater hazard defense rejected because company did not apply for variance).

   As noted by Complainant, Respondent has put forth no evidence that it attempted to seek

a variance or even considered the appropriateness of applying for one. Based on the case law,

this failure alone defeats the greater hazard defense. Nevertheless, the Court shall address the

remaining two elements, neither of which has been satisfied by Respondent.

                                           22

Respondent argues that the hazard of having a guardrail in place was greater than leaving

an open side on the platform. As discussed above, Respondent is referring to the fact that the

pump would have to be raised above the guardrail, thereby exposing employees to overhead

struck-by hazards. There are a couple of problems with this assertion: (1) it is not clear to the

Court, on the basis of the evidence, that the hazard of suspended equipment is any greater than

the fall hazard presented by the missing guardrail or that the presence of a guardrail would have

magnified the suspended equipment hazard appreciably; and (2) at the time of the inspection, the

pump was not being removed, nor was a new pump being installed.

   As to (1), Respondent did not proffer convincing evidence to suggest that the actual

reason for the missing guardrail was a good faith determination—based on a comprehensive

evaluation of work practices and their associated hazards—that the probability of being struck by

falling objects was greater than the probability of falling from an unguarded platform. If that

were the case, the Court would expect Respondent to have developed work policies and

procedures to provide alternative methods of compliance. Instead, Respondent’s safety policies

and procedures repeatedly stress that working platforms, elevated more than four feet above the

ground, must be equipped with a standard guardrail system or some other form of fall protection.

(Ex. R-5 at 5, R-6 at 30, R-7 at § 2, p. 5, R-14). Respondent does not contend that the hoisting of

the pump(s) could be avoided by not having the guardrail completed—only that it would have to

be hoisted high enough by the sheave to clear the guardrail during the on/off process.

    As to (2), the evidence does not establish the section of guardrail was removed

contemporaneously with movement of a pump. The work observed by the CSHO did not include

hoisting a new pump onto the platform or a used pump off of the platform. Respondent’s

argument that the workers removed a section of guardrail to facilitate movement of a pump is

                                            23

inconsistent with the statements of Mr. Luna onsite that the guardrails were incomplete because

they were in a hurry, had just arrived at the site, and had not yet installed all guardrails, and also

with the observations of ongoing work by the CSHO. (Tr. 264). The inevitability that at some

point in time the hoisting of a pump was going to be a necessary part of the job is not sufficient

to establish the affirmative defense of greater hazard for the work being performed at the time of

the inspection. Respondent has specific procedures for the installation and removal of a

submersible pump in its Well Service Field Manual, none of which address the removal of

guardrails to accommodate the pump. (Ex. C-18 at 93–96). Even if removal of the guardrails

during pump extraction or insertion had been warranted, it does not follow that leaving the

platform open while other work was in progress was a safe practice.

   Respondent also failed to prove that alternative forms of fall protection were used or were

otherwise unavailable. As observed by CSHO Solis-Lewis, none of Respondent’s employees

used an alternative form of fall protection. (Ex. C-2). Although Mr. Stewart opined that personal

fall arrest systems such as lanyards and harnesses could cause a greater hazard due to the

potential for getting tangled or being struck during a blowout, Respondent’s own policy requires

the use of secondary fall protection when work occurs on an elevated surface “where heights are

greater than 6 ft. without a guardrail or net.” (Ex. R-7 at § 2, p.5). This suggests that alternative

methods of fall protection were both available and required when a standard guardrail was not in

use.

   Rather than putting forth a legitimate claim that compliance with the standard created a

greater hazard, the Court finds that Respondent’s arguments are little more than post hoc

justifications for its failure to comply. Accordingly, Respondent’s defense of greater hazard is

rejected, and Citation 2, Item 1 shall be AFFIRMED.

                                             24

VII. Penalty

   In determining the appropriate penalty for affirmed violations, section 17(j) of the Act

requires the Commission to 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. 29 U.S.C. § 666(j). 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 Constr. Co.,

15 BNA OSHC 2201, 2214 (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. E.g., Allied Structural Steel

Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138

(No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995).

   The Court finds that the gravity of the foregoing violations is somewhat muted by a low

probability of significant injury or death. Although the Court has found that the violations

exposed both Paredes and Guerrero to the potential for serious injury, the likelihood of either

suffering a serious injury from falling off the platform due to the missing guardrail or fixed stairs

was relatively low. This is based, in part, on the location of the platform where they performed

their work and the length of time they were actually exposed to the hazard. In this regard, the

Court agrees with the assessments of Complainant. However, the Court also notes the presence

of heavy pipe and equipment increases the hazardous nature of the work environment. Overall,

the Court also agrees that due to Respondent’s size (over 6,000 employees) and its documented

history of noncompliance, the penalties proposed by Complainant are appropriate.

                                             25

ORDER

   The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1 is AFFIRMED as serious, and a penalty of $5,500.00 is ASSESSED.

2. Citation 2, Item 1 is AFFIRMED as repeat, and a penalty of $38,500.00 is ASSESSED.



   SO ORDERED


                                              /s/
                                              Peggy S. Ball
                                              Judge, OSHRC

Date: September 16, 2015
Denver, Colorado

                                         26