Basic Energy Services, LP (ALJ decision, January 2, 2020)

Plain-English summary

Basic Energy Services used a mobile well-servicing rig to pull pipe stuck thousands of feet underground. A derrick hand remained on a platform about 60 feet above the rig floor while the crew substantially increased pulling force and used jars to free the pipe. The rig tipped over, killing the derrick hand and seriously injuring two other employees. The judge found that the company and the well-servicing industry recognized the danger of keeping a worker aloft after normal pulling force could no longer move the pipe. Removing the worker from the elevated platform was a feasible step required by the company's own policy and industry guidance. The serious general duty clause citation was affirmed with a $7,000 penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The serious general duty clause citation was affirmed, with a $7,000 penalty.
• Key point: A derrick worker should have been brought down before force and jarring increased beyond normal pipe-pulling conditions.

Full text (OSHRC public release)


Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Com plain ant,

v.   

BASIC ENERGY SERVICES, LP,

Respondent.

DOCKET NO.
   1 6 - 0367

Appearances:

Christopher D. Lopez-Loftis , Esq. , U.S. Depa rtment of Labor, Office of the Solicitor, Dallas, Tex a s

For Complainant

Steven R. McCown, Esq., Earl M. Jones, III, Esq., Sean M. McRory, Esq., Littler Mendelson, PC

For Respondent

Before: A dministrative Law Judge
Brian A. Duncan

DE CISION AND ORDER

Procedural History

O n
July 23, 2015 ,
Respondent’s mobile well-servicing rig
tipped over while
its employees were
attempting to remove a piece of pipe that had become stuck in an oil well thousands of feet under ground . T wo employees were s eriously injured and another, who was positioned 60 f e et up in the derrick , was killed. Complainant assigned Compliance Safety a nd Health Officer (“CSHO”) Wayne Eyerly and James Nelson , a technical analyst from the OSHA Salt Lake City T echnical C enter, to perform an inspection of the worksite. CSHO Eyerly a nd Mr. Nelson arrived at the worksite a week-and-a-half after the accident occurred . Based on CSHO Eyerly’s and Mr. Nelson ’s observations and recommendations, Complainant issued a Citation and Notifica tion of Penalty , alleging that Respondent committed a serious violation of 29 U.S.C. § 654(a)(1) , also referred to as the general duty clause , with a proposed penalty of $ 7,000 . Respondent timely contested the Citation , which brought the matter before the Occupational Safety and Health Review Commission pur s uant to Section 10(c) of the OSH Act.

This
case
was originally
set
for trial on December 6, 2016;
then continued ,
at the request
of the parties, to March 9, 2017.

On March 9, 2017, the trial
began
bu t was
quickly recessed
because
two key witnesses ,
Joh n ny
Mullins and
Michael
Brown,
refused
to comply with
trial
subpoena s
issued by this Court . 1 Both parties also raised multiple discovery issues and claims of prejudi ce for the first time at trial . (Tr. 78-106).

On March 29, 2017, Complainant filed a mot i on to enforce the subpoenas . Therefore, the matter was referred to the Department of Justice, who has authority to pursue the enforcement of OSHRC subpoenas before the appropriate U.S. District Court. See 29 C.F.R. § 2200.65(f) .

It took nearly 10 months
for the DOJ
to
authorize the enforcement action
and refer the matter to a local U.S. Attorney’s Office . On February 27, 2018, the U.S. Attorney filed a petition to enforce the administrative subpoenas served on Mullins and Brown in the Eastern District o f Texas. T his Court further issued an order compelling Mullins and Brown to testify at a commencement of this trial on March 1, 2018.

When the
trial was reconvened on March 1, 2018,
however,
Mullins a nd Brown again failed to appear. In lieu of waiting f o r Mullins and Brown , t he Court heard testimony from the only other witness called by the parties: James Nelson . (Tr. 140).

By
th e conclusion of
Nelson’s testimony , neither Mullins nor Brown had appeare d . Therefore, the Court ordered the trial be recesse d again while the subpoena enforceme nt action progressed before the District Judge in the Eastern District of Texas. (Tr. 282-294).

On April 17, 2018, Respondent filed a
Petition for Interlocutory
R eview
based on the repeated trial delays
and
a
claim of pr e judice resulting from those delays. The matter was n ot accepted by the Commission for review , resulting in a de facto denial of the petition on May 18, 2018. See 29 C.F.R. § 2200.73(b).

On December 3, 2 018, the Eastern District of Texas District Court iss u ed an Order to Show Cause to Mullins and Brown regarding their failure to appear at the OSHRC trial .

Ultimately, on
April 8, 20 19,
Brown and Mullins withdrew their previously lodged objections to the O SHRC subpoenas . Therefore , o n April 10, 201 9, the Di s trict Court issued an order directing Mullins and Brown to appear before this Court “at such reasonable time and place as the AL J may set, and then and there testify.”

O n June 7, 2019,
the conclusion o f this
trial was conducted
in
Tyler, Texas, wherein b o th Mullins and Brown appeared and gave testimony . No additional witnesses were called by either party. B oth parties timely sub mitted post-trial briefs for consideration.

Jurisdiction
& Stipulations

T he parties
stipulated
that
the Commission has j urisdi c tion
over this proceeding
pursuant to Section 10(c) of the Act
and
that, at all times relevant to this proceeding, Respondent was an employer engaged in a business and industry affecting interstate comm erce within the meaning of Sections 3(3) and 3(5) of t he Act, 29 U.S.C. § 652(5). ( Tr. 15 ) .

See
Slingluff v. OSHRC , 425
F.3d 861 (10th Cir. 2005).

Factual
Background

Respondent
was
hired by Mid-States Petroleum to remove a section of oil pipe that ha d become stuck roughly 7 , 5 00 feet below the wellhead. (Tr. 353, 384, 450 ). Respondent worked with a tool hand named George Ogle , who was employed by Knight Tools , which provides specialty tools to aid in the removal of stuck pip e. (Tr. 365–66 ). The opera tion was overseen by a company man, Stewart Luce, who represented Mid-St ates at the wellsite. (Tr. 366, 421 ). Respondent’s on-site crew consisted of Michael Brown (Rig Supervisor /Tool Pusher ) , Johnny Mullins (Rig Operator) , Justin Turner ( d errick h and) , a nd two other d errick h ands. (Tr. 337, 421, 450).

Th e
process
of removing a piece of stuck
oil
pipe
down the well
is commonly referred to as “fishing , ” and the piece of stuck pipe is referred to as the “fish”. (Tr. 317–19 ). Respondent provided what is kno wn as a mobile workover rig, which was used as the fi s hing po le, so to speak, to reel in the fish . 2 (Tr. 323 ). The rig being used at this site , a series 750 , ha d a hydraulic actuated mast , 3 which extend ed 120 feet up in the air from the rear of the mobile unit , and ha d a 300,000-pound lifting capacity . (Tr. 149, 32 6–28 ). Once the rig wa s positioned over the wellhead, it wa s anchored to a base beam, which is a solid piece of steel, measuring roughly 85 feet long , 4 feet wide, and at least 6–12 inches thick . (Tr. 328– 30 ).

T he derrick ha d
three main
employee
w ork
areas: the
“ goat stand, ”
where the rig operator , Mullins,
wa s positioned; the rig floor , where the two derrick hands worked ; and the elevated tubing board, where derrick hand Justin Turner, wa s stat ioned . (Tr. 337–38, 344 , 354). The rig operator rais e d and lower ed the pipe string by controlling elevators attached to the mast. (Tr. 319–20, 344 ). The rig floor hands used a set of tongs to separate sections of pipe, known as “stands”, 4 as they c a me ou t of the wellhead. (Tr. 344). The derrick hand who w a s positioned on the tubing board, roughly 60 feet above the rig floor, t ook the individual pipes that ha d been lifted out of the wellhead and p laced them in a rack stand. (Tr. 191–93, 344 , 357 ; Ex. C-4 at 7, 12 ).

Brown’s
crew arrived at the wellsite
at
3 :00
p.m. on
July 22, 2015,
the day before the rig
collapse . (Tr. 347). They
set
up the mobile servicing unit and the night crew started putting pipe into the hole until 7:00 a.m. the next morning, at w hich point Brown’s c rew took over after conducting it s safety meeting, filling out a job safety analysis, and attaching a new weight indicator. (Tr. 345, 348–49). After 3–4 hours of running pipe down the hole, Brown’s crew had reached the stuck section of pipe (aka “ fish ”) ( Tr. 350). As part of the fishing operation, the night crew , with the assistance of Ogle , had attached a piece of equipment to the bottom hole assembly (BHA) known as an overshot. 5 (Tr. 317, 339, 349, 413 ). The overshot wa s designed to latch onto the fish , so it could be freed and pull ed upward to the ground su r face. (Tr. 319 ). At this point in the process, there wa s 7 , 500 feet, or approximately 96,000 pounds , of pipe (including the BHA) down the well , which Mullins referred to as the “work string” or “pipe string.” (Tr. 340 , 353 ).

Onc e
Mullin s latched onto the fish, he loaded the “jars”, which we re compressed hydraulic rims inside of a cylinder on the BHA that appl y an impact, or jolt, to the stuck fish. 6 (Tr. 351 –52 ) . Mullins incre ased the upwa rd pull weight on the pipe string to 120 , 000 pounds , which caused the jars to be set off. (Tr. 351). At that point, the fish remained stuck in place, so Mullins reloaded the jars and increased the string pull weight to 170,000 pounds. (Tr. 35 1–52). Accor ding to Mullins, when the jars were rele a sed again at 170,000 pounds, the stuck section of pipe/ fish came loose . (Tr. 351–52 ). None of Respondent’s employees were working on the rig floor or on the elevated tube board during this first releas e of stuck pi p e . (Tr. 354). After they “ caught the fish ”, the three derrick hands climbed up on the rig to various positions to begin pulling out the work string and busted pipe. (Tr. 353–54 ).

According to Mullins, the
subsequent
pipe removal
was a sl ow
process because there was a bend
towards the botto m
of the
well
hole where the
pipe t urned
laterally for 3,000 to 4,000
feet. (Tr. 355). Mullins testified it took nearly an hour-and-a-half to remove 15 to 16 stands of pipe from the well , because they h ad to occasionally move the string up and down in ord e r to move the stands past the bend. 7 (Tr. 355 , 359). The extracted stands were placed in the rack by Turner, who was aloft in the mast. (Tr. 357). During this part of the process , the weight indicator sho wed the rig pulling with roughly 85,000 to 100,000 pounds of force, which accounted for the approximate 96,000 pound string weight , and the additional force needed to get the stands past the bend in the hole. (Tr. 359 , 425 ). Mullins testified it was no t unusual to have fluctuations of a few thousand poun d s above the string weight. (Tr. 388 ). Rig Supervisor Brown was in his truck during the in i tial removal of pipe sections . (Tr. 361).

Once
Respondent’s crew
had removed 1 5 to 16 stands of pipe,
it
got
stuck again. (Tr. 360). At this point, Mullins calle d Brown and the Knight Tool rep , Ogle , to come to the Rig Operator station . (Tr. 360). Both Ogle and Brown watched Mullins work the string up and down a few times , unsucces sfully trying to free th is seco nd stuck pipe/fish . (Tr. 360).

Brown
confirmed this
d uring his trial testimony, indicating that pipe stand number 17 is the point at which “it got real stuck.” (Tr. 433).

Ogle
then
told
Mullins
to
increase the pull weight
to 120,000 pounds
and set off
the jars again . (Tr. 361). At that point, Mullins as k ed Brown if they could get Justin Turner down from the elevated tube board above the rig . (Tr. 362). Ogle told Mullins and Brown: “You know we already pulled the 170 [k]. This is not nothing up there he ’s not used to. Don’t worry about it.” (Tr. 363). Mu l lins again asked Brown what he should do, and Brown told him to listen to Ogle. (Tr. 363). Mullins followed those instructions and pulled until the indicator read 120 ,000 pounds of force and set off th e jars, which caused a “big jolt” to the rig . Howeve r , it did not free the stuck pipe. (Tr. 363).

At this point, the
Mid-States
company man, Luce, made his way up to the
Rig Operator’s position . (Tr. 365).

Also at that
time, t he
two
other
derrick
floor
hand s got down off the rig . (Tr. 366–68).

Rig Oper a tor
Mullins was
then
accompanied by Ogle, Luce, and Brown,
while
derrick hand Justin
Turner was still 60 feet up
above the rig floor
o n the
elevated
tube board. (Tr.
36 6 ). Ogle
directed
Mullins to
incr ease the rig
pull ing force
to 140 ,000 pounds , at whic h
point Mullins
told his supervisor
Brown
again , “We need to get Justin down.” (Tr. 369).

After Ogle said it would be all right, Brown told him to proceed, leaving Turn er up in the mast. (Tr. 369). Mul lins slowly increased the force of the pull to 140 ,00 0 pounds , but it still failed to free the stuck pipe . (Tr. 370). Ogle and Luce then told him to increase the pull to 160,000 pounds . (Tr. 370). Mullins again asked his supervisor Brown to bring Justin Turner down off the rig . (Tr. 370). In response, Ogl e told him, “If you’re that worried about Justin, you need to holler up there and tell him to hold onto something.” (Tr. 370).

Mullins looked to Brown, who
was standing
right next to him and
told him :
“ Just do what they’re saying .” (Tr.
371 ).
Ogle follo w ed
this
by mocking
Respondent’s crew
for being too timid
and call ed
them
derogatory
names . (Tr. 371).
Following the instruction s
he was given, Mullins slowly
increased the rig pull force
to
160 ,000 pou nds , at which point
they
not iced
the front end
of the
rig lifting up off the ground . (Tr. 372 -373 ). According to Mullins, the pipe then broke free, and the rig fell back toward the g round, and flipped over on its side . (Tr. 373).

Though Brown and Mullin s agreed on many facts during the trial, there were s o me discrepancies. When Brown testified, he confirmed that Mullins asked to remove Turner from the mast before they lifted to 120 ,000 pounds , but claimed they did not set off the jars during the time Tu rner was in the elevated platform. (Tr. 434–35 ). Onc e they reached 120 ,000 pounds of force , Brown also confirmed that Mullins again asked if they could remove Turner from the elev a ted derrick platform . (Tr. 425). Brown also confirmed that Ogle referred t o Mullins in a derogatory way after voicing his conce r ns , and that Luce, the company man, just laughed. (Tr. 426). Br own also confirmed that he told Mullins they were “still good right now”, and with Turner still on the elevated platform, directed Mullins increase the pull weight to 1 30 ,000 pounds, then 140 , 000 pounds, then 150,000 pounds.

(Tr. 426).

Brown testified
t hat once they reached 150,000 pounds, contrary to Mullins’ testimony, that he told the two floor hands an d Turner to get off the rig . (Tr. 426). Brown further testified that he was arguing w i th Luce about Turner coming down from the derrick tube platform , just as the rig started lifting off of the ground. (Tr. 427).

T he Court
found
Mullins’ testimony to be more
credible
than Brown’s . Mu llins
was at the controls of the rig the entire time, and had first-hand knowledge of the rig pull settings and progressions. Although Brown claimed that jars were not set off again at 120,000 pounds , the Court specifically credits Mullins over Brown on this issue. Mullins testified very specifically, th a t Ogle told him to re- set the jars at 120 ,000 to try to free this second “fish . ” Mullins was the one specifically responsible for re-setting those jars and increasing the pull pressure to set them off . G iven the impact th at jarring ha d on the rig, Mulli n s’ testimony regarding the jars explains both his heightened concern for Turner’s safety, as well as the floor hands’ subsequent decision to vacate the rig floor , at a point whe n Brown, Ogle, and Luce s eemed to be comfortable with the employees’ locations and working conditions .

T he Court also
notes that
Mullins’ testimony was consistent throughout, whereas Brown hedged or changed his testimony in some areas. For example, when Brown was asked what con stitute d a “ normal pull ” for the rig , he testified th a t it was equal to the weight of the work string /pipe string below the rig , which is how Mullins described it . (Tr. 388, 469–71 ). However, in response to questions from Respondent’s counsel, Brown chang ed his testimony to suggest that a “ normal ” pull coul d far exceed the weight of the work string /pipe string . (Tr. 482–83 ). Such variation in testimony suggests, in part, that Brown’s may have been motivated by his desire to show he had made appropriate su pervisory decisions under the c ircumstances .

As t h e rig
collapsed ,
Mullins and Brown were thrown from the walkway they were using to try to escape. (Tr. 377 ). When he regained consciousness underneath the toppled rig , Mullins was co vered in hot oil . ( Tr. 378 ). He subsequently underwent multiple surgeri e s as a result of his injuries. Turner, who was still on the elevated platform above the rig floor throughout all of these events , was killed in the collapse. (Tr. 381). Brown was f ound on top of plas tic chemical tanks with iron and wire guidelines layi n g across him. (Tr. 381–82 ). Brown had to be life-flighted to the nearest hospital, where he underwent multiple surgeries. (Tr. 382–83).

OSHA began its investigation on
August 4, 2 015, approximately
a week-and-a-half after the
accident . (Tr. 146). Com p lainant sent CSHO Wayne Eyerly from the Oklahoma City Area Office and James Nelson , a n engineer and consultant with the OSHA Technical Center, to inspect the site. Nelson was called in to provide techn ical support for the inspection based on his previous participation in investigations involving oil and gas wells. (Tr. 144–45). At this point in time, the rig rem ained in the same position it was in after it had fallen on July 23, 2015. (Tr. 148; Ex. C-4 ).

The inspection was
limited.

Nelson
and Eyerly
t ook
pictures and ask ed
questions of the company representatives that were on site, but did not conduct intervi ews of any individuals involved in the accident itself. (Tr. 149–50, 160–61). Accordingly, in support of their determination that a violation oc c urred, Nelson and Eyerly relied heavily upon statements provided to police officers a fter the accident. (Tr. 1 64, 166).

Based on
their
investigation , Complainant
determined that
Respondent violated Sec tion 5(a)(1) of the Act when it engaged in unusually h ard pull s while Justin Turner was on the derrick’s elevated tube deck, 60 feet above the rig floor .

Discussi on

Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Ite m 1 as follows:

Section 5(a)(1) of the Occupational
S afety and Health Act of 1970 : The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to c ause death or serious physical ha rm during an oil and gas services rig fall over event :

At the worksite: On or about July 23, 2015, employees working within an oil and gas service rig were not removed from the derrick prior to applying unusual loading on the rig.

Among others, one feasi ble and acceptable means of abatement would be to com p ly with American Petroleum Institute (API) 54, Recommended Practice for Occupational Safety for Oil and Gas Well Drilling and Servicing Operations, Chapter 9.

Citation and Notification of Penalty
at 6.

To establish a violation of the general duty clause, Complainant must prove “(1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or se r ious physical harm; and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.” S.J. Louis Constr. of Tex. , 25 BNA OSHC 1892, 1894 (No. 12-1045, 2016). Citing to the American Petroleum Institute’s Recommended Practice 54 , C omplainant alleges Respondent violated the general duty clause by attempting an unusual pull to free a piece of stuck pipe while employees were on the servicing rig, thereby creating falling and struck-by hazards. Respondent argues that Complainant fai l ed to establish a violation because: (1) he did not d efine what “unusual loading” is and, therefore, did not establish the existence of a hazard; (2) he did not establish Respondent or the well servicing industry recognized such a hazard under the circums t ances presented in this case ; and (3) he failed to s h ow Respondent had adequate time to abate the hazard once it became aware of the hazard.

T he term “unusual”, which is used twice in the cited API Recommended Practice, is not specifically defined by th e API. However, the Court finds t hat Respondent was a ware that pulling on a piece of stuck pipe , at the increased levels involved in this case, with the use of jarring, result ed in unusual loading on the rig and create d a hazard for the employee on the el evated tube stand . T hus, Respondent should have remo v ed Turner from the rig before the pulling force was increased to 120,000 pounds and the jars were set off . Accordingly, consistent with the discussion below, the Court finds Respondent violated the g en eral duty clause as alleged by Complainant.

The
C on d itions
C reated a
H azard for
E mployees

“[H]azards must be defined in a way that apprises the employer of its obligations and identifies conditions or practices over which the employer can reasonably b e expected to exercise control.” Pelron Corp. , 12 BNA O S HC 1833, (No. 82-388, 1986) (citing Davey Tree , 11 BNA OSHC 1898, 1899 (No. 77-2350, 1984)). A hazard is a “condition that creates or contributes to an increased risk that an event causing death or se ri ous bodily harm to employees will occur.” Baroid Div. of NL Indust., Inc. , 660 F.2d 439, 444 (10th Cir. 1981).

If the evidence shows that a practice could result in serious physical harm “upon other than a freakish or utterly implausible concurrence of ci rcumstances”, then Complainant has established the ex i stence of a hazard. See Nat’l Realty & Constr. Co., Inc. v. OSHRC , 489 F.2d 1257, 1265 n.33 (D.C. Cir. 1973).

The original basis for Complainant’s claim of a hazard is the API RP 54, Chapter 9, whi ch states: “During instances of unusual loading of the d errick or mast, such as when making any unusually hard pull, only the driller or other essential supervisory personnel should be on the rig floor, and no on e should be in the derrick, mast, or cellar. ” (Ex. C-10 at § 9.2.11). Complainant argues that Resp o ndent’s crew engaged in unusual loading when it left its employees—other than Mullins—on the rig floor and in the mast while it pulled and jarred on the second pipe that had become stuc k . Respondent con tends that Complainant failed to establish this eleme n t in two ways: (1) he failed to define “unusu al”, such that he could characterize Respondent’s activities as hazardous; and (2) the weight indicator only showed a pull of 160,000 pounds, which is well b elow the 300,000-pound capacity of the rig and, thus, not unusual. The Court agrees with Complainan t.

The hazardous condition
result ed
from
a confluence of
employee location and specific rig operation; namely, that employees (other than the Rig Operator) should not have been o n the rig while it engaged in “ a n unusually hard pull”. In other words, an un usually hard pull is not, of itself, a violative condition. I t only bec omes so when employees are located on the rig derrick, mast, or cellar during such ac tivity.

As it turns out,
Respondent’s own safety pol i cy contains a prohibition that is similar , bu t more detailed , than API RP 54. (Ex. C-18 at p. 23 , No. 17 ). According to Respondent’s policy, “Crews are to be off the rig floor, out of the cellar, and o ut of the derrick when the following operations are b e ing conducted: unseating a pump, un-landing t ubing, pulling the first joint of tubing, jarring or pulling on stuck pipe, and when more than normal pulling force is required .” ( Id. ) (emphasis added).

Re spondent was engaged in both
highlighted
activities i n
the time period leading up to the rig
collapse .
The Court finds “more than normal”
(Respondent’s policy term)
and “unusually hard”
(API’s term)
express the same
concept , albeit in slightly different
wa ys .

Mullins
testified
that
“more than
normal pullin g
force , ”
per Respondent’s safety policy,
equates to a pull that exceeds the weight of the pipe string below the rig. (Tr. 388, 391; Ex. C-18 at 23) . In other words, a normal pull would mean the weight indicator should provide a reading that is roughly eq u al to whatever the weight of the pipe string is , including the BHA . This is consistent with Brown’s testimony in response to questions from th e Court: “normal” pulling force is generally equal to the s tring weight, which w ould vary depending on how far d o wn the string has to reach and the type of equipment being used. (Tr. 469-471).

In this case, both Mullins and Brown testified that the force necessary to extract the 96,000 pound pipe string (after di slodging the first stuck pipe) was rough ly 85–100k po u nds, which accounted for minor fluctuation s as the first 15 to 16 pipe stands were removed . The Court finds, consistent with Mullins’ testimony, that the pull became “unusual” or “more than normal” wh en the rig pulling force was increased to 120,000 pound s and the jars were triggered. (Tr. 360 , 433–34).

And further still, since the pipe remained stuck, the pulling force continued to be increase to 170,000 pounds, almost twice the pipe string weight. (T r. 435). All while Turner remained on the elevated t u be board above the rig floor.

Respondent
argues that the pull was not unusual because th is rig wa s capable of lifting up to 300 ,000 pounds, and that Brown had previously been o n a rig when it pulled 2 60 ,000 pounds . (Tr. 446, 459–60, 482–83 ). The Court f inds that these two facts, in isolation, do not resolve the issue. W hile the rig may have been cap able of pulling 300 ,000 pounds, the Court finds the prohibition against having employees o n the rig w hi le engaged in an “unusual” or “harder than normal” pu l l relates more to the fact that Respondent’s crew , in this case, was jarring stuck pipe at nearly twice the pipe string weight. Under other circumstances, a smooth pull on unstuck pipe, with no need fo r jarring, at 200,000 pounds of force, might not be c o nsidered “unusual” or “more than normal” by a reasonable person familiar with the industry.

These facts further support the conclusion that this pull was “unusual” and “more than normal”:

(1)
Mulli ns
stopped when he was asked to increase the pull weigh t to 120,000 pounds and set the jars, to call Respondent’s Rig Supervisor Brown from his truck to the operator’s station, (2) Mullin s repeatedly asked his supervisor, Brown , to remove Turner from the e le vated platform, based on his understanding that setti n g off jars and pulling far in excess of the string weight was hazardous, and a violation of company polic y ; and (3) the two other derrick hand employees decided to get off the rig floor when 120,000 pou nds of force, and jarring, failed to f r ee the stuck p i pe.

T he Court finds
that
Respondent failed to free its worksite of a hazard ous condition for Turner, who continued to work in an elevated platform above the derrick floor while “unusual” and “more than normal” pulling force was applied to stuck oil well p i pe. Complainant established the existence of a hazard.

Respondent and Its Industry Recognized the Hazard

A hazard is recognized when either the cited employer or its industry recognizes the risk of ha rm from the cited conditions. See Arcadian Corp. , 20 B NA OSHC 2001, 2008 (No. 93-0628, 2004). Probative evidence of industry recognition includes, amongst other things, voluntary industry standards, such as those published by ANSI, NFPA, and API. See, e.g. , Cargill, Inc. , 10 BNA OSHC 1398 (No. 78-5707, 1982) (NFPA); Kokosing Constr. Co., 17 BNA OSHC 1869 (No. 92-2596, 1996) (ANSI) . Regarding employer recognition, the Commission stated, “While an employer’s safety precautions alone do not establish that the employer believed that those precautions were necess a ry for compliance with the Act
. . .
precautions taken by an employer can be used to establish hazard recognition in conjunction with other evidence.” B everly Enters., Inc. , 19 BNA OSHC 1161 (Nos. 91-31 44 et al., 2000) (emphasis added) (citing Wheeling-Pi t tsburgh Corp. , 16 BNA OSHC 1218 (No. 89-3389, 1993); Waldon , 16 BNA OSHC 1052 (No. 89-3097), 1993 ).

The
record establishe d
that this
hazard
was recognized by the oil servicing
industry as a whole, as w ell as Respondent specifically. First, Respondent’s p olicy specifically state d that employees shall not be on the rig while setting off jars, pulling on stuck pipe, or engaging in a harder-than- normal pull. (Ex. C-18). The record clearly established that Respondent’s crew was engaged in all three of those a ctivities on July 23, 2015. Second, each time he was asked to increase the force of the pull to 120,000 pounds and beyond , Mullins asked Bro wn to remove Turner from the elevated tube deck . T his reques t was made three different times. This demonstrated M ullins’ knowledge and awareness of Respondent’s policy, and was specifically directed to the person with authority over Respondent’s operatio ns at the well site. Third , the two other deck hands exit ing the rig floor after Mullins increased the pull to 120 , 000 and set off the jars, demonstrated their recognition of the hazard and knowledge of Respondent’s policy. Alternatively, if Brown’s testimony that he directed the two floor hands to get off the rig floor at some point is believed, it further demonstra t es that Respondent’s supervisor recognized the hazard and had knowledg e of Respondent’s policy. See Missouri Basin Well Svc., Inc. , 26 BNA OSHC 2314 (No. 13-1817, 2018) (finding supervisor’s recogniti on of the hazard was imputable to his employer) .

A d ditionally, the Court also finds
the well servicing industry recognize d the hazard at issue. Though Nelson was not qualified as an expert, he d id have experience performing investigations of oil and ga s rigs and wa s familiar with the API standards. (Tr. 1 42 ). According to him, API RP 54, Chapter 9 applie d to the work perfo rmed by Respondent at this site . (Tr. 226, 239 ). Given the similarities between the referenced API standard and Respondent’s own sa fety policy on this issue, the Court agrees.

Respond e nt and its industry clearly recognized this hazard.

The
Hazard Caused
Serious Injury
and
Death

Complainant must show
that
Respondent’s employees were “exposed to a hazard likely to cause death or ser ious physical harm.” Peacock Eng’g, Inc. , 26 BNA OSHC 1588 (No. 11-2780, 2017). The appropriate standard for assessing this element is “not the likelihood of an accident or injury , but whether, if an accident occur s , the results are likely to cause death o r serious harm.” Waldon , 16 BNA OSHC at 1060. Here, t he Court does not need to make a speculative assessment of possible injuries from the hazardous condition . As a result of th e mobile rig collapse, one employee died when he fell from the elevated tube deck, and two others received serious injuries, which required hospitalization and multiple surgeries. Accordingly, the Court finds that the violation was properly characterized as serious, since the hazard was likely to cause death or serious physical ha rm.

Complainant Established Feasible Means to Abate t he Hazard

To establish this element,
Complainant must “‘specify the proposed abatement measures and demonstrate both that t he measures are capable of being put into effect and that they would be effec tive in materially reducing the incidence of the haza r d.”’ Arcadian Corp. , 20 BNA OSHC 2001 (quoting Beverly Enters., Inc. , 19 BNA OSHC 1161 (No. 91-3144 et al. , 2000)). “Feasible means of abatement are established if “conscientious experts, familiar with the industry’ would prescribe those means and methods to eliminate or materially reduce the recognized hazard.” Id. (quoting Pepperidge Farm, Inc. , 17 BNA OSHC 1993)). Where an employer has taken steps to abate the recognized hazard, Complainant must show those measures are inadequate. Alabama Power Co. , 13 B NA OSHC 1240 (citing Cerro Metal Prods. Div., Marmon Grp., Inc. , 12 BNA OSHC 1821, 1822 (No. 78-5159, 1986)).

Complainant
established that
th e proposed
abatement w ould have been
adequate, and
easy to
implement ,
to address the hazard characterized in the
citation . Once Respondent determined that
a second piece of pipe was “real stuck” ; 8 that th e pulling force of the rig needed to be increased to 120,000 pounds ; and that the jars needed to be re-set for use, derrick hand Turner should have been removed fr o m the elevated tube platform above the derrick floor . Such action would have been consisten t with API RP 54, 9.2.11 and Respondent’s own safety policy. Instead, despite multiple requests from Rig Oper ator Mullin s to remove him, Turner was left aloft in t he tubing board for approximately 20–30 minutes through significant increases in pulling for ce and jarring . (Tr. 433, 452, 476). 9

Based on these facts, the Court further rejects Respondent’s argument that abatement was infeasible because the hazard purp o rtedly became apparent only a minute or two before the accident. T he hazard did not materialize when the rig started to lift, wobble , and tip. By the terms of the API standard and Respondent’s own saf ety policy, the hazard to Turner arose at the point t h e rig was no longer capable of removing the pipe string through the application of no rmal pulling force. Indeed, this was the point at which Brown was called over to the rig controls, and Mullins began his repeated requests to remove Turner from the mast platform . This particular abatement was uncomplicated and required nothing more of R espondent than to follow industry standards, comply with its own safety policy, and listen to its Rig O perator. Turn er could have simply been instructed to get off the r i g. Accordingly, the Court finds Complainant established a feasible means to abate th e hazard.

Respondent’s Employees Were
Exposed
to
a
Hazard

As discussed above, Turner was exposed to the hazard whe n he was allowed to remain on the elevated tube platf o rm, 60 feet above the derrick floor, while the rig pulling force was gradually increa sed to nearly double the pipe string weight, and jars were set off. Employee exposure to the hazard was established.

Respondent Had Knowledge of the Violation

T o prov e
this element , Complainant must show Respondent knew or, with the exercise of reasona ble diligence, could have known of the violation. Dun-Par Engineered Form Co. , 12 BNA OSHC 1962, 1965 (No. 82-928, 19 86). The key is whether Respondent was aware of the c onditions constituting a violation, not whether it understood the conditions violated the Act. Phoenix Roofing, Inc. , 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 1995). Complainant can prove knowledge of a n employer through the knowledge, actual or construct i ve, of its supervisory employees. Dover Elevator Co. , 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). If a supervisor is, or should be, aware of a hazardous condition , it is reasonable to charge the employe r with that knowledge. See Mountain States Tel. & Tel . Co. v. OSHRC , 623 F.2d 155, 158 (10th Cir. 1980).

Brown,
Respondent’s on-site supervisor,
was standing right next to Mullins from the time the decision was made to increase the pulling force to 120,0 00 and re-set the jars, to the point right before the rig tipped over. (Tr. 372–73 ). Brown estimated th at this lasted approximately 20 minutes. He was specifically aware of the conditions of the rig, the location of derrick hand Turner, and the multiple requests made by Mullins to remove Turner from the ri g mast. Rig Supervisor Brown’s knowledge is imputed to Respondent. Complainant established employer knowledge of the violative condition. Accordingly, the Court finds Complainant established the prim a facie elements of the general duty clause violation alleged in Citation 1, Item 1.

Respondent Failed to
Prove the Affirmative Defense of
Unpreventable Employee Misconduct

In order to prevail on a claim of unpr eventable employee misconduct, Respondent must show: ( 1) it ha d established work rules designed to prevent the violation; (2) it ha d adequately communicated those rules to its employees; (3) it ha d taken steps to discover violations of the rules; and (4) i t effectively enforce d the rules when violations we re detected. Am. Eng’g & Dev. Corp. , 23 BNA OSHC 2093, 2096–97 (No. 10-0359, 2012).

In other words, it is incumbent upon Respondent to “demonstrate that the actions of the employee were a departure from a uniformly and effectively communicated and enforced w orkrule [sic].” Archer-Western C ontractors Ltd. , 15 BNA OSHC 1013 (No. 87-1067, 1991) .

During the examination of Brown, Respondent asked whether an employee could be disciplined for his/her failure to exercise stop work authority in a situation that cal l s for it. (Tr. 462). Complainant objected on the basis that such evidence was irrelevant in light of Respondent’s discovery re sponses , whe rein it stated three separate times that “it’s not currently as serting an employee misconduct defense but reserves t h e right to assert such defense at a later time.” (Tr. 463–65); see also C o mpl’t Br. at 23–24 . Respondent said that it felt compelled to re -assert the affirmative defense at trial , with no prior notice to Complainant or the Court, because Mullins testifie d he exercised his stop work authority by pausing the operation and asking at various points to have Turner come down from the tubing board. (Tr. 408–409). Respondent, without producing any evidence in support , argued this was inconsistent with deposition testimony Mullins had given in a separate, civil case. (Tr. 465–67) . The Court left open the issue of whether the defense was still availa ble to Respondent and directed the parties to address it in the ir post-trial briefs. (Tr. 467–68).

Although given th e
opportunity to do so,
Respondent did not pursue the matter further in its examination of witnesses or in its post-trial brief. Thus, altho ugh Respondent asserted the unpreventable employee misconduct d efense in its Answer , the Court finds its discovery r e sponses and failure to argu e the defense in its post-trial brief are tantamount to abandonment. Georgia-Pacific Corp ., 15 BNA OSHC 1127, 1991 CCH OSHD ¶29,395 (No. 89-2713, 1991). Accordingly, the Cour t rejects any claim of unpreventable employee miscond u ct by Respondent. Citation 1, Item 1 will be AFFIRMED.

Penalty

In calculating appropriate penalties for affirmed violations, Sectio n 17(j) of the Act requires the Commission give due consideration to f our 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 employ ees exposed, the duration of the exposure, the precau t ions taken against injury, and the likelihood of an actual injury. J.A. Jones Construction Co. , 15 BNA OSHC 2201 (No. 87-2059, 1993) . It is well established that the Commission and its judges conduct d e novo penalty determinations and have full discretio n 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) .

Complainant
proposed
a penalty of $7,000 , which, a t
the time of the citation, was the highest penalty allowed for a serious violation of the Act.

Complainant
determined
that
Respondent had roughly 5,000 employees,
and therefore,
did not
reduc e the prop osed penalty
based on
the employer’s
size.
(Ex. C-1).

Complainant also determined Respondent was not eligible for a reduction based on history beca use of previous OSHA violation s at other jobsites . ( Ex. C-3 ). Further, Complainant declined to apply a good faith penalty reduction. Based on the totality of c i rcumstances discussed above, the Court finds that a penalty of
$7,000
for Citation 1, Item 1
is appropriate.

O RDER

Based
upon the foregoing Findings of Fact and Conclus i ons of Law, it is ORDERED

t hat
Citat ion 1, Item
1
is
AFFIRME D
as a SERIOUS violatio n
of the Act , and a penalty of $7,000 is ASSESSED.   

/s/
Brian A. Duncan

Judge Brian A. Duncan

U.S. Occupational Safety and Health Review Commission

Date:    December
2, 2019

Denver, Colorado

"

1
Served by Complainant on February
28, 2017 and March 2, 2017.

2 . According to Mullins, a servicing rig serves two functions: completion and workover operations. (Tr. 319). This case focuses on workover operations, which are implemented when something goes wrong at the well, such as a stuck piece of pipe. (Tr. 319).

3 . The mast is also referred to as the derrick. (Tr. 322).

4 . An individual section of pipe is referred to as a “joint”, whereas two pieces of pipe attached by a collar are referred to as a “stand”. (Tr. 342). A joint is typically 31.5- to 32.5-feet long. (Tr. 431). Thus, a stand is roughly 65-feet long, which explains the position of a derrick hand in a 60-foot tall perch. (Tr. 431)

5 . The BHA is the first thing sent
down the well. (Tr. 414).

6 . According to Mullins,
this “jolt” shakes the entire servicing rig, not merely the portion of the pipe below the surface. (Tr. 363–64).

7 . This is one area where Mullins’ and Brown’s testimony differed. According to Brown, extracting the first 15 stands of pipe only took 10–15 minutes. (Tr. 477).

8
As described by Rig Supervisor Brown.
(Tr.
433).