WellTech Mid-Continent

Plain-English summary

WellTech used tractor-trailer rigs to haul rock to an oil-well access road during rainy weather. One loaded truck left the muddy road, overturned into a pond, and the driver died. Judge Ken S. Welsch held that the cited earthmoving-equipment standard did not apply because the trucks operated both on public highways and off highway, while the standard covered trucks used exclusively off highway. He also found that the Secretary did not prove the road was unsafe rather than merely wet and slick. Credible testimony showed the road was repeatedly graded, and the investigating highway officer attributed the accident to unsafe speed for muddy conditions. The citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.602(a)(3)(i).
• Outcome: Serious access-road citation vacated, with no penalty.
• Key point: The Secretary did not establish either that the earthmoving-equipment standard covered trucks used on and off public roads or that the access road was maintained unsafely.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 97-873
Welltech Mid-Continent,
Respondent.

APPEARANCES

           Janice H. Mountford, Esq.                      George R. Carlton, Jr., Esq.
           David C. Rivela, Esq.                          Godwin & Carlton
           Office of the Solicitor                        Dallas, Texas
           U. S. Department of Labor                               For Respondent
           Dallas, Texas
                    For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                DECISION AND ORDER
   WellTech Mid-Continent (WellTech) prepares oil well sites for drilling. Following an

employee fatality at a WellTech worksite on April 10, 1997, the Occupational Safety and Health
Administration (OSHA) conducted an investigation. The Secretary issued a citation to WellTech
on May 27, 1997, alleging a serious violation of § 1926.602(a)(3)(i) for failing to maintain an
access road in safe condition to accommodate earthmoving equipment.
WellTech acknowledges jurisdiction and coverage. A hearing was held in this matter on
November 20, 1997. WellTech defends itself on two grounds. First, WellTech asserts that
§ 1926.602(a)(3)(i) is not applicable to the vehicle involved in the accident. Second, WellTech
contends that the Secretary failed to establish that the access road was unsafe at the time of the
accident. The parties each filed post-hearing briefs.
For the reasons set out below, the court finds that the Secretary failed to establish a
violation of § 1926.602(a)(3)(i). The citation is vacated.

                                        Background



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On April 10, 1997, a crew from WellTech was preparing a new location for a drilling rig
at the Cross Timbers lease site, located approximately 13½ miles to the west of Fairview,
Oklahoma (Tr. 13, 38). WellTech was constructing an extension from an existing access road to
the new drilling location (Tr. 98). The WellTech crew had been working on this project for
approximately one week (Tr. 57).
The crew of seven WellTech employees was hauling rock from a quarry, known as Allied
Gypsum, located south of Fairview to the Cross Timbers lease site (Tr. 10-11, 13, 34). The crew
arrived at WellTech’s yard at approximately 8:00 a.m. Four employees, John Farrand, Michael
Farrand, Steven Meister, and Wayne Simons, operated semi-tractor rigs (identified at the hearing
as “8687 Peterbuilt rigs” (Tr. 62)) with attached belly dump trailers which carried loads of rock to
be used on the access road extension. Another driver was operating a semi-tractor rig with an
attached low-boy trailer used to haul loaders and dozers (Tr. 10, 13). Roy Boehs was operating
a grader and Lynn Dobbs was operating a bulldozer at the Cross Timbers site (Tr. 13-14, 49-51,
91-92).
In the early afternoon the crew began hauling rock from the quarry to the access road
under construction. The crew dumped the rock on top of the section of new road. Dobbs then
packed the rock down (Tr. 11). After dumping the load of rock the trucks would leave the
construction site and return to the quarry to pick up another load of rock (Tr. 14-15). The trucks
were spaced approximately 30 to 45 minutes apart from each other (Tr. 16, 63).
The Allied Gypsum quarry is located next to Highway 60, which the trucks traveled on for
about two miles before turning off onto a county road with a rock surface. The trucks then
turned left onto the lease, or access, road that is the subject of this proceeding (Tr. 36-37). The
access road was approximately 12 feet wide over most of its length, accommodating one lane of
traffic. It had a dirt and shale surface (Tr. 12, 36, 40, 52). The access road had “a couple of little
curves in it,” and then curved sharply to the right (Tr. 41). After passing the sharp curve, the
vehicles traveled down a hill to a valley where an earthen dam was constructed and up another hill
(Exhs. J-1 through J-4; Tr. 41-42, 76, 154, 244, 253-254). The earthen dam was bounded on the
south by a pond and on the north by a creek. From the dam, the road climbed for approximately

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½ mile to an existing well site. From that well site, the road went to the new road that WellTech
was in the process of constructing (Tr. 244-245).
On April 10, 1997, the access road was muddy. It had been raining on and off during the
previous week. The ground was saturated with water (Tr. 54, 174). It was sprinkling when the
crew brought the first load of rock to the site on April 10, 1997 (Tr. 19). After the trucks
dropped off the first load of rock it began to rain harder (Tr. 43-45). Mike Farrand went to Ray
Boehs and asked him whether the crew should get another load because the weather conditions
were worsening (Tr. 19). Boehs told Farrand to go to Fairview and to check with him later (Tr.
122). Boehs called WellTech supervisor Ronnie Trammel on the radio and asked him whether the
crew should return for another load. Trammel said he would have to check with Dennis Dilbeck,
a manager for WellTech’s client who owned the lease, to see whether they should continue work.
Trammel instructed Boehs to haul another load (Tr. 20, 122).
On the descent of the access road, before it reached the dam, was a terrace, “a small hump
of dirt across the road” (Exhs. J-1, J-4; Tr. 28, 53-54). Dobbs had to push trucks through the
water on the terrace with the bulldozer. The existing access road became slick as the rain
continued (Tr. 49-58). To provide better traction, Boehs used the grader to blade over the tracks
from the trucks that had used the hill (Tr. 116, 126).
John Farrand drove the last truck to descend the hill. He was on his way to the road
extension and had not dumped his load of rock (Tr. 40). Just prior to Farrand’s descent, Boehs
bladed the road (Tr. 78, 135). After going down the grade, Farrand’s tractor and belly dump
trailer traveled off the road and overturned into the pond at the bottom of the slope (Tr. 61).
John Farrand died as a result of the accident (Tr. 25).

                         Alleged Violation of § 1926.602(a)(3)(i)
   The Secretary alleges a serious violation of § 1926.602(a)(3)(i), which provides:

   No employer shall move or cause to be moved construction equipment or vehicles
   upon any access roadway or grade unless the access roadway or grade is
   constructed and maintained to accommodate safely the movement of the
   equipment and materials involved.


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The Secretary has the burden of proving her case by a preponderance of the evidence.

   In order to establish a violation of an occupational safety or health standard, the
   Secretary has the burden of proving: (a) the applicability of the cited standard, (b)
   the employer’s noncompliance with the standard’s terms, (c) employee access to
   the violative conditions, and (d) the employer’s actual or constructive knowledge
   of the violation (i.e., the employer either knew or, with the exercise of reasonable
   diligence could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

                             Applicability of the Cited Standard
   WellTech argues that § 1926.602(a)(3)(i) does not apply to the cited vehicles. In her

citation, the Secretary singled out the “gravel hauling, and equipment hauling tractor trailers.” No
mention is made of the bulldozer and grader that WellTech employees operated at the site.
Section 1926.602 is entitled “Material handling equipment.” Section 602(a), under which
the Secretary cited WellTech, is captioned “Earthmoving equipment.” Section 602(b) is
captioned “Excavating and other equipment,” and section 602(c) is captioned “Lifting and hauling
equipment.” Even though the Secretary emphasized the hauling functions of the trucks in the
citation, she cited WellTech under the “earthmoving equipment” section.
Section 1926.602(a)(1) provides in pertinent part:

   These rules apply to the following types of earthmoving equipment: scrapers,
   loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders,
   agricultural tractors, and similar equipment.

   WellTech argues that the Peterbuilt trucks are not covered by this standard. The

Secretary argues that the trucks are “off-highway trucks” within the meaning of the standard. No
definition of “off-highway trucks” appears in the standard. Section 1926.601(a), which WellTech
argues is the applicable standard to the Peterbuilt vehicles, provides:

   Motor vehicles as covered by this part are those vehicles that operate within an
   off-highway jobsite, not open to public traffic. The requirements of this section do
   not apply to equipment for which rules are prescribed in § 1926.602.


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The Review Commission explored the somewhat confusing relationship between the
coverage sections of §§ 1926.601 and 1926.602 in Gerard Leone & Sons, Inc., 9 BNA OSHC
1819 (No. 76-4105, 1981). The issue was whether § 1926.601(b) applied to dump trucks not
equipped with certain safety devices. The respondent argued that § 1926.601 did not apply
because the dump trucks were being operated on a highway open to public traffic, and the
standard is limited to vehicles being operated on off-highway jobsites. The Review Commission
rejected this approach, finding that “the coverage provision at section 1926.601(a) limits the
standards’applicability by vehicle and not by location.” Id. at 1820. The Review Commission
found “that the standard applies to trucks that operate off highway even if they do not operate
exclusively off highway, regardless of where they are generally operated or where they are
operated at a particular time.” Id.
The Commission brought § 1926.602, the standard at issue in the instant case, into its
discussion of the coverage of § 1926.601:

   The first sentence of subsection 601(a) expressly applies to “those vehicles that
   operate off highway,” while the second sentence specifically excludes “equipment
   for which rules are prescribed in section 1926.602.” Section 1926.602, entitled
   “Material Handling Equipment,” applies to, among other things, trucks operated
   exclusively off highway. This indicates that trucks that operate exclusively off-
   highway are not covered by section 1926.601. It follows, therefore, that section
   1926.601 applies to trucks that operate both on and off highway.

Id. (emphasis added).
WellTech’s drivers drove the Peterbuilt trucks two miles on Highway 60 on the way from
the quarry to the new road site and two miles back. Michael Farrand testified that the Peterbuilt
trucks “were mainly just used out in the oil fields” (Tr. 10). He referred to his truck as “an oil-
field issue” (Tr. 26) and stated that “99 per cent of the time [the trucks] are used out on the dirt
roads, and the lease roads.” The trucks “had been beefed up substantially for the oil field with
bigger tires and that sort of thing” (Tr. 27). Farrand conceded, however, that WellTech’s drivers
drove the trucks on the highway, and that there was no reason that they could not be driven on
the highway (T. 27).

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Compliance officer George McCown investigated the accident for OSHA. He stated that
the Peterbuilt trucks “are normally used both on and off the road. You can see them on the road
hauling earthen materials to a job site over a highway. . . . They make a good combination of on-
road, off-road vehicles for hauling materials (Tr. 242-243).
The record establishes that the Peterbuilt trucks were not used exclusively for off-highway
work. Although they were modified for oil-field work, the trucks were used on the highway. The
Secretary cites several cases in which § 1926.602(a)(3) was applied to vehicles similar to
Peterbuilt trucks (Secretary’s brief, p. 9). A review of these cases reveals that the applicability of
the standard to the cited vehicles was not raised as an issue by the respondents.
The Secretary asserts that if the Peterbuilt trucks do not meet the requirements of “off-
highway trucks,” they meet the requirements of the “and similar equipment” category tacked on
to the end of the standard. The Secretary offers no reasonable explanation as to why the
Peterbuilt trucks should be considered equipment similar to the earthmoving equipment
specifically identified in the standard. It would be illogical for the standard to limit trucks to “off-
highway” and then to allow combination “on-road, off-road” trucks to come in under the “similar
equipment” umbrella.
The Secretary has failed to establish that § 1926.602(a)(3)(i) applies to the Peterbuilt
trucks.
Noncompliance with § 1926.602(a)(3)(i)
Even if it were determined that the cited standard applies, the Secretary failed to establish
that WellTech was in noncompliance. It is the Secretary’s burden to prove that WellTech failed to
construct and maintain the access road “to accommodate safely the movement of” the Peterbuilt
trucks. The record shows that the access road became muddy and slick as the rainfall increased.
This alone does not establish the Secretary’s case. Any road becomes slicker when rained upon.
Some evidence of the degree of slickness is necessary to prove that a hazard existed. The
witnesses whose testimony tended to support the Secretary’s theory that the road was unsafe
were on the whole less credible than the witnesses who considered the road to be safe.
Harold Dobbs drove the bulldozer. Dobbs testified that the road was “boggy” and that
several of the trucks became stuck in the mud after they dumped their loads. Dobbs pushed the

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trucks out with the bulldozer (Tr. 49-50). Dobbs described the road as being “in fairly good
shape when we started” (Tr 53). Dobbs believed that the access road “was holding up good
except for the terrace part” (Tr. 56). The access road “was in good repair but it was slick” (Tr.
75).
Dodds stated that he and Boehs discussed shutting down the jobsite, but he explained that
the condition of the access road was not the reason for the discussion. Dobbs wanted to shut
down the site because the crew was unable to do its job of preparing the new location (Tr.59):

   [T]he reason we were wanting to shut down was because of the road that we were
   constructing was--we weren’t doing any good. It was making things worse
   instead of better. That’s why we discussed shutting down.

   The road that the WellTech crew was constructing had a dirt base over which the crew

was dumping rocks. The dirt was washing away in the rain. Dobbs explained (Tr. 87):

   Well, when Roy [Boehs] and I discussed shutting down, it wasn’t because we
   thought it was getting unsafe. We just thought we weren’t accomplishing anything
   because of the rain.

   Ray Boehs drove the grader the day of the accident. Boehs believed the access road was

in “good, safe condition” that day (Tr. 136). He testified that he bladed the road six to eight
times that day, and four or five times after 1:00 p.m. (Tr. 107-108). He observed some of the
trucks getting stuck in the mud (Tr. 105). Boehs did not consider this to be dangerous; if a driver
got his truck stuck Dobbs “just gave him a push with the dozer” (Tr. 130).
Boehs testified about the dam area of the road where the accident occurred. The road
narrowed at that point. Boehs stated that where the road crosses over the dam, “there are no
shoulders or anything on it. If a truck goes off towards the side of it, it’s steep enough that it’s
going to turn over.” Boehs bladed this part of the road repeatedly (Tr. 118).
Steven Meister was driving one of the Peterbuilt trucks on April 10. Meister stated that
“the road conditions had gotten slick” and that the trucks “could lose traction” (Tr. 142).
Overall, Meister’s testimony was vague and evasive. He peppered his testimony with qualifiers

                                               7

such as “I believe,” “maybe,” “probably,” and “I suppose;” and he answered “I don’t know” or “I
don’t recall” to a number of pertinent questions (See generally Tr. 158-160).
David White is the Oklahoma Highway Patrol Officer who was called to the accident site.
The estimates of the amount of time that elapsed between Farrand’s accident and White’s arrival
at the scene varied from 45 minutes to 2 hours (Tr. 189, 202-204). In that time, emergency
rescue vehicles had converged at the site and Farrand’s body had been removed from the truck in
the pond. The rain had increased in intensity. White conceded that the road was not in the same
condition it had been at the time of the accident (Tr. 189). When White arrived at the site, he
found the access road to be muddy, slick, and slippery (Tr. 184).
White made no physical examination of the road other than to look at it. He did not drive
on it or perform a “coefficient of friction” test, a test that could help quantify the degree of
slickness (Tr. 187). White could not state how slick the road was at the time of the accident (Tr.
188).
White estimated that John Farrand had been driving approximately 40 m.p.h. at the time
his truck went off the road (Tr. 201). In his accident report, White determined the cause of the
accident to be that Farrand was driving “an unsafe speed for muddy roads” (Tr. 182).
Michael Farrand was driving one of the Peterbuilt trucks the day of the accident. He was
the brother of the deceased, John Farrand. Michael Farrand testified that on the afternoon of
April 10, at the time he was hauling his second load, the road “was to the point where it was
getting slick” (Tr. 16). Farrand stated that as he was descending the slope of the access road and
then ascending it on the other side of the dam, the trailer and the back of his truck were “slipping
a little bit” from side to side, and the wheels were spinning (Tr. 17). Michael Farrand’s testimony
went farthest of the employee witnesses in describing the road conditions as unsafe on the day of
the accident. At the time of the hearing, Michael Farrand was a plaintiff in civil litigation arising
from his brother’s death.
Of the witnesses who observed the road conditions immediately before and after the
accident, Dobbs and Boehs were the most credible. Unlike Michael Farrand, they had no
pecuniary interest in the outcome of any proceeding related to John Farrand’s accident. And
unlike the testimony of Meister, their testimony was detailed, specific, and direct. According to

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their descriptions of the access road at the time of the accident, it was slick but not hazardous.
Boehs was concerned about the area of the road that crossed the dam, so he bladed it several
times during the afternoon. Dobbs and Boehs did not consider trucks getting stuck in the mud to
be anything unusual when working on a dirt road in rainy weather.
Officer White was a credible witness but he had little to contribute to the information
regarding the condition of the road at the time of the accident. He arrived at the scene after the
accident and after the condition of the road was changed substantially by the arrival of the
emergency vehicles and the continuing rain. White concluded that the cause of the accident was
John Farrand’s excessive speed on a muddy road.
Compliance officer George McCown could also offer little information regarding the
road’s condition. McCown disputed White’s estimate of Farrand’s speed at the time of the
accident, but he based his opinion on photographs of the scene taken a day after the accident
which, the parties agreed, did not show anything other than the layout of the area at issue (Tr.
46-47, 279). McCown could offer no quantifiable evidence of the degree of slickness of the road
(Tr. 310-312).
The Secretary has failed to establish that WellTech did not maintain the access road “to
accommodate safely the movement” of the Peterbuilt trucks. The citation is vacated.

                 FINDINGS OF FACT AND CONCLUSIONS OF LAW
   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                          ORDER
   Based upon the foregoing decision, it is hereby ORDERED that:
   Item 1 of Citation No.1, alleging a serious violation of § 1926.602(a)(3)(i) is vacated and

no penalty is assessed.

                                                   KEN S. WELSCH
                                                   Judge

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Date: November 30, 1998

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