Pool Company Texas, Ltd.

Plain-English summary

Pool Company Texas runs oil-and-gas well-servicing (workover) rigs. During a January 1999 inspection at a lease near Peyote, Texas, OSHA cited the company because two sets of stairs leading up to the rig's operating platforms lacked a standard railing on one open side. The administrative law judge rejected the company's argument that the steps were ladders rather than fixed stairs, affirmed the railing citation, and assessed a $300 penalty (treating one stair as a serious violation and the other as other than serious). A Commissioner then directed review of the case. Before the Commission ruled, the parties filed a Stipulation and Settlement Agreement in which the Secretary withdrew the remaining citation item and the parties asked that the judge's decision be set aside. The Commission approved the settlement and set aside the ALJ's decision, so no violation or penalty stands against the company. The document notes a clerical error in the standard number: the citation and the judge's decision refer to 29 C.F.R. § 1910.24(b), while the Commission's order and a correction letter identify the correct provision as 29 C.F.R. § 1910.24(h).

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.24(b) (as cited and in the ALJ decision); 29 C.F.R. § 1910.24(h) (corrected in the settlement and Commission order)
• Outcome: Settlement approved; the citation item is withdrawn and the ALJ's decision is set aside, leaving no violation or penalty in force.
• Key point: When a Commissioner has directed review and the parties then settle by withdrawing the citation, the Commission can approve the settlement and vacate the underlying ALJ decision so it has no future effect.

Full text (OSHRC public release)

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:
SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 99-0815
:
POOL COMPANY TEXAS, LTD.,1 :
:
Respondent. :

     ORDER APPROVING STIPULATION AND SETTLEMENT AGREEMENT

             This matter is before the Commission on a direction for review entered by

Commissioner Gary L. Visscher on April 6, 2000. The parties have now filed a Stipulation and
Settlement Agreement. In the Stipulation, the Secretary withdraws Citation 1, Item 2, instances
(a) and (b), alleging violations of 29 C.F.R. § 1910.24(h), and the notification of proposed penalty
for those instances.2 The parties also request that the administrative law judge’s decision be set
aside.
Having reviewed the record, and based upon the representations appearing in the
Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting

                                                                         2000 OSHRC No. 19

1
The Stipulation identifies the Respondent as “Pool Company Texas, Ltd.” and states that the
Respondent was inadvertently cited as “Poole Company Texas, Ltd.” The case caption is amended
consistent with the Stipulation.
2
The Secretary withdrew Citation 1, Item 1, at the hearing.
further review by the Commission. The Stipulation and Settlement Agreement is approved
and the administrative law judge’s decision is set aside.
So ordered.

Date: August 1, 2000 /S/
Thomasina V. Rogers
Chairman

                                                /S/
                                               Gary L. Visscher
                                               Commissioner


                                                /S/
                                               Stuart E. Weisberg
                                               Commissioner

99-0815

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Counsel for Regional Trial Litigation
Eve Marie Stocker, Attorney
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, DC 20210

John F. Martin, Esq.
Godwin White & Gruber
901 Main Street, Suite 2500
Dallas, TX 75202-3727

Irving Sommer
Chief Administrative Law Judge
Occupational Safety and Health
Review Commission
1120 20th Street, Suite 990
Washington, D.C. 20036-3419

Stanley M. Schwartz
Administrative Law Judge
Occupational Safety and Health
Review Commission
1244 North Speer Boulevard, Rm. 250
Denver, CO 80204-3582
U.S. Department of Labor Office of the Solicitor
Washington, D.C. 20210

July 31, 2000

Mr. Ray H. Darling, Jr.
Executive Secretary
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, NW, 9th Floor
Washington, DC 20036-3419

    Re: Secretary of Labor v. Pool Company Texas, Ltd.
         OSHRC Docket No. 99-0815

Dear Mr. Darling:

Enclosed please find a corrected first page of the Stipulation
and Settlement Agreement in this case. The corrected page
reflects that the regulation cited by the Secretary in Citation
1, Item 2, was 1910.24(h), not 1910.24(b). (The judge’s
decision, at pages 2 and 5, contains the same clerical error.)
The Secretary has contacted Employer’s counsel who joins with the
Secretary in asking that the clerical error in the Settlement
Agreement be corrected by replacing existing page one with the
corrected page. The Secretary is forwarding copies of the same
corrected page to employer’s counsel who states that he will
forward a copy of the corrected page to the company for posting,
as required by Commission Rules 7 and 100, in order to serve
notice on non-party affected employees.

Sincerely,

/s/

Eve Marie Stocker
Attorney for the
Secretary of Labor

Enclosure

cc: Mr. John F. Martin, Esq.
Godwin White & Gruber
901 Main Street, Suite 2500
Dallas, Texas 75202-3727
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ALEXIS M. HERMAN,
Secretary of labor,
Complainant,

                   v.                           OSHRC DOCKET NO. 99-0815

POOL COMPANY TEXAS, LTD.,
Respondent.

               STIPULATION AND SETTLEMENT AGREEMENT

                                           I

   The parties have reached agreement on a full and complete settlement and disposition of

the issues in this proceeding which is currently pending before the Commission.

                                           II

   It is hereby stipulated and agreed by and between the Complainant, Secretary of Labor

and the Respondent, Pool Company Texas, Ltd. (inadvertently cited as “Poole Company

Texas, Ltd.”), that:

   1. Complainant hereby withdraws citation 1, item 2, instances (a) and (b), alleging

violations of 29 C.F.R. §1910.24(b) and the notification of proposed penalty for those

instances. 2. Each party agrees to bear its own fees and other expenses incurred by each

party in connection with any stage of this proceedings.
 3. The parties request that the Review Commission set aside the judge’s decision. The

Secretary of Labor and OSHA agree not to use the ALJ’s decision in this action affirming the

citations alleging violations of 29 C.F.R. § 1910.24 in any future proceedings against Pool

Company Texas, Ltd.

The Secretary of Labor and OSHA reserve the right to issue citations

against Pool Company Texas, Ltd. for future OSHA violations pertaining to ship’s ladders of

ship’s stairs.

   4. Respondent states that there are no authorized representatives of affected employees.

   5. The parties agree that this Stipulation and Settlement Agreement is effective upon

execution, and shall resolve all pending issues, charges and complaints arising from the

inspection on January 8-14, 1999.

   6. Respondent certifies that a copy of this Stipulation and Settlement Agreement was

posted at its workplace at the workover rig at issue in inspection No. 300576816 in a

conspicuous manner on the 1st day of August, 2000, pursuant to Commission Rules 7 and 100

and will remain posted for a period of ten (10) days.
 Dated this 26th day of July, 2000.

                            Respectfully submitted,

                            HENRY L. SOLANO
                            Solicitor

                            JOSEPH M. WOODWARD
                            Associate solicitor for
                              Occupational Safety and Health

                            DONALD G. SHALHOUB
                            Deputy Associate Solicitor for
                              Occupational Safety and Health

                            DANIEL J. MICK
                            Counsel for
                              Regional Trial Litigation

/S/ /S/
John F. Martin, Esq. Eve Marie Stocker
Attorney for Pool Company Texas, Ltd. Attorney for the
Godwin White & Gruber Secretary of Labor
901 Main Street, Suite 2500
Dallas, Texas 75202-3727
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 North Speer Boulevard, Room 250
Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                           v.                              OSHRC DOCKET NO. 99-0815

POOLE COMPANY TEXAS LTD., and its
successors,
Respondent.

APPEARANCES:

      For the Complainant:
               Richard Munoz, Esq., Janice H. Mountford, Esq., Office of the Solicitor, U.S. Department of Labor,
               Dallas, Texas

      For the Respondent:
               George R. Carlton, Esq., John F. Martin, Esq, Godwin, White & Gruber, Dallas, Texas

Before: Administrative Law Judge: Stanley M. Schwartz

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Poole Company Texas Ltd., and its successors (Poole), at all times relevant to this
action maintained a place of business at the Caprito 83 Lease on North Hwy. 115, Peyote, Texas.
Respondent admits it is an employer engaged in a business affecting commerce and is subject to the
requirements of the Act.
On January 8-14, 1999 the Occupational Safety and Health Administration (OSHA) conducted
an inspection of Poole’s work site on the Caprito 83 lease. As a result of that inspection, Poole was
issued citations alleging violations of the Act together with proposed penalties. By filing a timely notice
of contest Poole brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
On November 5, 1999, a hearing was held in Dallas, Texas. At the hearing, the Secretary
withdrew citation 1, item 1 (Tr. 5-6). The parties have submitted briefs on the item remaining at issue,
and this matter is ready for disposition.
Alleged Violations
Serious citation 1, item 2 alleges:

29 CFR 1910.24(b): Standard railing(s) were not provided on the open side(s) of all fixed industrial
stairway(s) and stair platform(s):

    a) A set of stairs leading to the north side of the working platform on a workover rig on the
    Caprito 83 lease, on January 11, 1998, was not equipped with a standard railing on the west
    side. The railing on the east side did not meet the definition of a standard railing in that it was
    not equipped with a midrail.

    b) A set of stairs leading to the east side of the deck of a workover rig on the Caprito 83 lease,
    on January 11, 1998, was not equipped with a standard railing on the north side of the stairs.

Employees who were engaged in pulling tubing from the well were thus not protected against the
hazards of slips and falls from the open side of a fixed industrial stairway.

Facts
Thomas Nystel, OSHA’s Compliance Officer (CO), testified that when he arrived on Poole’s
work site, he observed and photographed two sets of steps accessing the sides of two platforms of a
mobile well-servicing rig (Tr. 11, 14, 22; Exh. C-1 through C-4). Nystel testified that the first set of
steps consisted of four risers leading from the ground to a platform attached to the drilling rig where the
operator of the rig stands (Tr. 16-17; Exh. 1). Nystel estimated that platform was approximately 4-1/2
feet off the ground (Tr. 18). The second stair consisted of two adjustable, overlapping segments with
four risers on each (Tr. 55). Six risers were in use, and led up to a higher operating floor, where the rig
hands work (Tr. 17-18; Exh. C-2, C-3). The steps were attached to the rig with metal flanges that were
inserted into slots in the platform floor (Tr. 19-20; Exh. C-4). Both sets of steps had handrails on the
left side, and mounts on the right side, into which a second rail could be inserted. The left hand mounts,
however, were empty (Tr. 14).
Operations had been shut down, and no one was working on the platform during Nystel’s first
visit (Tr. 10). However, when Nystel returned to the site on January 11, the second set of steps had
been moved around the corner to the end of the rig, and employees were on both platforms,
withdrawing drilling string or a “fish tool” from the hole (Tr. 15, 21, 46; Exh. C-5). Nystel testified,
without contradiction, that the steps were the only means of accessing the service platforms. Based on
employee interviews, Nystel determined that Poole employees routinely used them for that purpose (Tr.
25, 38-39; Exh. C-3).
Nystel testified that the platforms of the mobile well servicing rig are attached to the base of a
derrick, which is part of the drilling rig itself (Tr. 22, 56). The servicing units, though mobile, are
placed on stands while in use; its wheels are either lifted from the ground or chocked during servicing
(Tr. 23). Nystel stated that the service platforms can be moved up and down on the derrick as needed,
but were stationary for the duration of the inspection (Tr. 22, 55). Nystel testified that the steps were
sturdy, and did not wobble when used (Tr. 21). Nystel believed that an employee could fall to the
unprotected side of the stair, fall and sustain contusions and/or broken bones, though he admitted the
probability was low (Tr. 43).
Discussion
Poole does not dispute CO Nystel’s recitation of the facts. Poole stipulates that fixed industrial
stairs are required to have standard rails on each side (Tr. 37). If the cited standard is found to be
applicable to the cited stairs, therefore, the violation is established.
Poole argues, however, that the cited standard is not applicable, because the steps at issue are
not “fixed stairs,” but constitute an “extension ladder,” as defined by the Act, and so do not require
handrails. Poole further argues that the steps, if found to be stairs, were not fixed, and so are not
covered by the cited standard. Finally, Poole maintains that if the steps are found to be fixed industrial
stairs, they are exempt from coverage under subsection (a) which excludes “articulated” stairs.
For the reasons set forth below, Poole’s arguments are rejected.
Applicability. Section 1910.21(b)(4) defines “ladder” as:
. . .an appliance usually consisting of two side rails joined at regular intervals by cross-pieces
called steps, rungs, or cleats, on which a person may step in ascending or descending.

    As noted by Poole, the cited steps meet the strict definition of “ladders” set forth in §1910.21.

Nonetheless, the record establishes that the cited steps were not, and could not be used in the way a
ladder is used. Functionally, the steps are not ladders.
Section 1910.26(a)(3)(i) Use of ladders suggests that portable ladders be set so that the distance
between the base of the ladder and the vertical wall is equal to 1/4 the working length of the ladder,
creating a pitch of approximately 75°. Subsection (v) states that when ascending or descending, the
climber must face the ladder. The purpose of these sections is to ensure that anyone ascending or
descending the ladder can comfortably use the side rails or cleats/rungs as hand holds. CO Nystel did
not measure the pitch of the cited steps; however, it is clear from the photographs that the pitch of the
stairs is between 45° and 60°. Poole introduced blueprints which, though not dispositive, suggest that
the pitch of the steps was approximately 55° (Exh. R-7). Because the pitch of the steps was relatively
gradual, employees would face the steps while ascending to the platform, but would face outwards
when descending. It would be impossible for an employee climbing or descending the steps to use
either the side rails or cleats as handholds. The cited steps cannot, functionally, be considered ladders.
The cited steps do, however, meet the definition of “stairs, stairways” set forth in
§1910.21(b)(8), i.e.:
A series of steps leading from one level or floor to another or leading to platforms, pits, boiler
rooms, crossovers or around machinery, tanks or other equipment that are used more or less
continuously or routinely by employees or only occasionally by specific individuals. A series of
steps and landings having three or more risers constitutes stairs or stairway.

Moreover, the §1910.24(b) requires that fixed stairs 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. . ..”
CO Nystel testified, without contradiction, that the sole purpose of the workover rig is to serve
as a work platform; the rig operator stands on the lower platform of the well-servicing rig, while the rig
hands work from the higher platform. Nystel photographed the exposed employees, who worked from
the platforms during the second day of his inspection; according to Nystel, the operator never left the
platform (Tr. 46).
The record establishes that the workover rig was a platform routinely and/or continuously used
by employees, which required fixed stairs.
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.
Exemption. Subsection (a) of the cited standard exempts “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. The cited stairs, which rested on solid ground, clearly do not change pitch with the
rise and fall of said ground. Respondent’s argument that the adjustable stairs are “articulated stairs”
within the meaning of subsection (a) is, therefore, rejected.
The cited violation is established.
Penalty
Two employees were exposed to the cited hazard for an unspecified period of time. CO Nystel
testified that based on the relatively low height of the platform and the stair, as well as the presence of
another railing, he determined the probability of an accident occurring was low. Because Poole has a
written safety program which requires that open stairways have handrails, CO Nystel gave Poole a 15%
credit for good faith based on their safety program, which requires that open stairways have handrails
(Tr. 30-31; Exh. C-6). Nonetheless a penalty of $1,700.00 was proposed for this violation.
It is well-settled that the Commission has the exclusive authority to assess penalties for items
that have been contested and the Secretary’s proposed penalties are no more than proposals. Orion
Construction, Inc., 18 BNA OSHC 1867, 1999 CCH OSHD ¶31,896 (No. 98-2014, 1999). This judge
agrees with CO Nystel that a fall from the six riser stair could result in a serious injury. The violation is,
therefore, correctly classified as “serious.” It is clear from the photographic evidence, however, that the
fall hazard from the four riser stair was not a “serious” violation, in that a misstep from that stair would
not give rise to a "substantial probability" of death or serious physical harm. CO Nystel’s admitted that
the likelihood of an accident occurring was low because of the presence of the guardrails on both stairs.
This judge finds that size is not the primary factor in penalty assessment in this case. The
Commission has, in the past, assessed a penalty of $100 for a serious violation of a fall protection
standard where the overriding factor was the low gravity of the violation, even where the employer was
relatively large. See; Flintco, Inc., 16 BNA OSHC 1404, 1406, 1993-95 CCH OSHD ¶30,227, p.
41,611-12 (No. 92-1396). Based on the gravity and size discussions above, and on Poole’s good faith,
which is demonstrated by its written safety program, I conclude that a penalty of $300.00 is appropriate
for item 1(b) of the subject citation. No penalty is assessed for item 1(a), which was found to be “other
than serious.
ORDER

1. Citation 1, item 1(a), alleging violation of §1910.24(b) is AFFIRMED as an “other than serious” violation, without
   penalty.

2. Citation 1, item 1(b), alleging violation of §1910.24(b) is AFFIRMED as a “serious” violation, and a penalty of $300.00
   is ASSESSED.

                                                                 /s/
                                                           Stanley M. Schwartz
                                                           Judge, OSHRC
   

   Dated: February 28, 2000
   ```