Brooks Well Servicing, Inc.

Plain-English summary

Brooks Well Servicing employees were assisting a specialized snubbing operation at an active oil and gas well when a blowout and explosion killed seven people. OSHA alleged that Brooks failed to provide adequate emergency escape from the elevated snubbing rig. The Commission held that the exit standard applied because the rig was removed from its truck and assembled at the wellsite, so Brooks did not prove that it was an exempt mobile structure. It nevertheless found that the available ladders and multiple escape ropes matched customary snubbing-industry practice and that the Secretary did not prove they were inadequate under the Fifth Circuit's reasonable-person test. The citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.36(b)(1) and 29 U.S.C. § 654(a)(1)
• Outcome: The emergency-egress citation was vacated.
• Key point: Under the Fifth Circuit's approach to a broadly worded standard, industry custom can define required precautions when the employer lacks actual notice that more protection is necessary.

Full text (OSHRC public release)

DFR DATE: AUGUST 3, 2000

Walter, J. David
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SECRETARY OF LABOR

Complainant,

v.

OSHRC
Docket Nos. 99-0849

BROOKS WELL
SERVICING, INC.,

Respondent.

DECISION

Before:
RAILTON, Chairman; STEPHENS, Commissioner.

BY
THE COMMISSION:

Following a blowout and explosion which killed seven
people at an oil and gas well in Bryceland, Louisiana, the Occupational Safety
and Health Administration (OSHA) investigated the incident and issued a
citation to Brooks Well Servicing, Inc. (Brooks) alleging that Brooks had
committed two serious violations of the Occupational Safety and Health Act of
1970, 29 U.S.C. §§ 651-678 (“the Act”). Brooks contested that citation, and a
hearing was held before Administrative Law Judge Stephen J. Simko, Jr., whose
decision has been directed for review pursuant to section 12(j) of the Act, 29
U.S.C. § 661(j). For the reasons below, we affirm the judge’s decision in
part, and we reverse in part.

Background

The
Bryceland oil and gas well was owned by Sonat Exploration Co. (Sonat), which
had hired Brooks to perform well servicing. Sonat hired another company, Cudd
Pressure Control (Cudd), to perform a specialized procedure called “snubbing.”
Snubbing is a technique for servicing an active well that involves inserting
tubing or pipes down the well while controlling the well’s pressure to prevent
fluid from escaping.

Cudd
brought its snubbing rig to the wellsite on a truck and began setting it up on
October 21, 1998, three days before the blowout occurred. Setting up the
snubbing rig involved first fitting high-pressure valves called “frac valves”
to the top of the wellhead to isolate the snubbing equipment from the wellbore.
Next, a “stack” or “tree” of valves called blowout preventers (“the BOP stack”)
was assembled and fastened on top of the frac valves. Then, the snubbing rig
was placed on top of the BOP stack and bolted in place. The snubbing rig, which
stood approximately 17 feet high, had two platforms: an upper one, known as the
“basket,” and a lower one about ten feet below. When the snubbing rig was in
place on top of the BOP stack, the floor of the basket was approximately 26
feet above the ground, and the guardrails around the basket were about thirty
feet from the ground.

On
October 24, 1998, two Brooks employees were in the basket assisting three Cudd
employees with the snubbing operation. Shortly after noon, the well blew out
and ignited, burning for two days. The record does not reveal the cause of the
blowout or the explosion, but the pipes being inserted, known as the
“completion string,” apparently encountered too much resistance and began to
buckle. One person was taken from the site and died later. The remains of six
other people were recovered from the ground near the base of the structure. All
five people who had been in the basket died. 

The citation

OSHA’s
citation alleged that Brooks committed two serious violations. One of these
charges was withdrawn at the beginning of the hearing. The remaining charge,
which is before us on review, alleged in the alternative that Brooks had
violated either the standard at 29 C.F.R. § 1910.36(b)(1), or section 5(a)(1) of the Act, 29
U.S.C. § 654(a)(1) by failing to provide adequate means of
egress from the snubbing rig to permit prompt escape in an emergency. The judge
found that the standard applied to the cited conditions and affirmed a serious
violation. For the reasons set out below, although we agree with the judge that
the cited standard governs the working conditions cited, we reverse his finding
of a violation.

Applicability

On
review, Brooks argues that the snubbing rig used at the Bryceland well was a
“mobile structure” within the meaning of section 1910.36(a) and therefore exempt from the egress
requirements of the cited standard. As the party claiming the benefit of this
exemption, Brooks has the burden of proving that the snubbing rig was, in fact,
a “mobile structure.” Kaspar Wire Works, Inc. , 18 BNA OSHC 2178, 2194,
2000 CCH OSHD ¶ 32,134, p. 48,420 (No. 90-2775, 2000), aff’d, 268
F.3d 1123 (D.C. Cir. 2001); Armstrong Steel Erect., Inc. , 17 BNA OSHC
1385, 1389, 1995-97 CCH OSHD ¶ 30,909, p. 43,032 (No. 92-262, 1995); Article
II Gun Shop , 16 BNA OSHC 2035, 2039, 1993-95 CCH OSHD ¶ 30,563,
p. 42,302 (No. 91-2146, 1994) (consolidated). Contrary to Brooks’ contention,
we therefore find that the judge did not err in placing the burden of proving
that the cited standard does not apply on the company. The judge also correctly
stated that exceptions are to be narrowly construed. Southern Pacific
Transp. Co. , 2 BNA OSHC 1313, 1314, 1974-75 CCH OSHD ¶ 19,054,
pp. 22,785-86 (No. 1348, 1975), aff’d , 539 F.2d 386 (5th Cir.
1976), cert. denied , 434 U.S. 874 (1977).

We
agree with the judge that Brooks failed to carry its burden to prove that the
standard does not apply to its snubbing rig operations. Although Brooks makes general
assertions about the mobile nature of snubbing units and states facts that it
claims are “well known and common sense in the snubbing industry,” it failed to
introduce sufficient evidence to support its claim that the snubbing rig used
here falls into the category of “vehicles, vessels, or other mobile
structures…not covered by this subpart.”

Brooks’
primary argument is that the Bryceland snubbing rig was similar to the well
servicing or “workover” rigs that the Secretary exempted from the cited
standard’s requirements in a 1978 directive. Program Directive # 100-67,
Directive Number STD 1-2.1. The directive was issued subsequent to two
decisions by Commission administrative law judges in which workover rigs –
described as telescoping derricks that remain permanently attached to trucks –
were found to be mobile structures and thus exempted from the standard’s egress
requirements. In the directive, OSHA stated that the
standards in Subpart E – Means of Egress of 29 C.F.R. Part 1910 “shall not be
applied to workover rigs because they are mobile structures and parts of
vehicles within the exemption set forth in 29 C.F.R. 1910.36(a).” The directive
also instructed compliance officers to cite inadequate egress from workover
rigs under section 5(a)(1) of the Act.

The
Secretary points out that in Fred Wilson Drilling Co. , 6 BNA OSHC 1942,
1978 CCH OSHD ¶ 23,021 (digest) (No. 77-3578, 1978) (ALJ), aff’d in
pertinent part , 624 F.2d 38 (5th Cir. 1980), a third type of rig known as a
well-drilling rig was not considered a mobile structure and, therefore, was
subject to the requirements of the cited standard. In Fred Wilson , the
well-drilling rig was transported from wellsite to wellsite by truck, then
removed from the truck and assembled for use. Thus, in determining whether
Brooks has established that the snubbing rig used at the Bryceland well was
exempt from the cited standard’s requirements, we must consider whether the
snubbing rig was more like the mobile workover rig exempted from the standard’s
coverage by OSHA’s 1978 directive or more like the well-drilling rig in Fred
Wilson that failed to qualify for the “mobile” exemption.

On the record here, we are unable to conclude that the
Bryceland snubbing rig was more comparable to the mobile workover rig than the
well-drilling rig. All three types of rigs are transported to the worksite by
truck. However, the mobile workover rig discussed in the Secretary’s directive
remained attached to the truck during use; thus, remained “mobile.” In
contrast, the snubbing rig at issue here and the well-drilling rig in Fred
Wilson were both removed from their means of transport before use and
required assembly over a two-day and several-day period, respectively, before
each could be used to perform the task for which it was designed. Accordingly,
we find that Brooks has not carried its burden of establishing that the
snubbing rig was a “mobile structure” and, therefore, exempt from the cited
standard’s requirements.

Were
the terms of the standard met?  

The
record establishes that there were a number of possible means of egress from
the snubbing rig. The normal means of access to the snubbing basket was a
ladder attached to the snubbing rig. Another ladder located about two feet
from the basket was attached to Brooks’ well servicing rig, which was used to
assist the snubbing rig. To reach the servicing rig’s ladder, an employee had
to unhook two chains on the railing of the basket and step across to the
ladder. Brooks’ expert testified that employees did this “routinely” and that
it was not dangerous because the ladder extended out enough to allow an
employee to take hold of it before stepping across the opening onto the ladder.

According to Sonat’s representative who was in charge
of the wellsite, there were also three or four ropes tied to the railings of
the snubbing basket the day before the explosion. One of the compliance officers stated
that a number of employees told him that ropes had been attached to the basket
for escape, but neither he nor the other inspector found any physical evidence
of the ropes. That is not surprising, as the first compliance officer did not
arrive at the site until four days after the explosion. By that time, both the
snubbing rig and the BOP stack had been removed from the wellhead and placed on
a flatbed truck. The other compliance officer, who arrived two days after that,
admitted that the fire had burned for two days, that the heat was “pretty
intense,” and that, “[i]t would be expected” that the ropes would be consumed
in the fire.

Finally, there were two “geronimo” escape ropes
attached to the derrick on Brooks’ well servicing rig adjacent to the snubbing
rig. Those ropes passed about three feet above the guardrails on the snubbing
basket and were staked at an angle to the ground below. The judge correctly
noted that the record does not establish the exact angle of these ropes. We
find, however, that the record does show that the normal industry practice is
to stake them at approximately a two-to-one angle. In other words, if the ropes
passed three feet above the railings, the stakes would be approximately 66 feet
from the ground directly below the railings. Because there is no evidence that
the normal practice was not followed here, it is reasonable to conclude that
the two geronimo escape ropes were staked approximately 66 feet away.

The judge found that because the record did not show
affirmatively that the ropes were in place on the day of the explosion, Brooks
had not proved that they were present at the time of the explosion. We reverse
this finding. We conclude that the judge improperly placed the burden of
proving the ropes were in place on the day of the explosion on Brooks. It is
well established that the Secretary has the burden of proving that the terms of
the cited standard were not met. Wheeling-Pittsburgh Steel Corp. , 16 BNA
OSHC 1780, 1993-95 CCH OSHD ¶ 30,445 (No. 91-2524, 1994). The record
clearly establishes that the ropes were in place on the day before the
explosion. Once a condition has been shown to exist, it is presumed to continue
unless there is evidence to the contrary. Central Pac. Ry. v. Alameda County ,
248 U.S. 463, 468 (1932). See also Hermitage Concrete Pipe Co. ,
10 BNA OSHC 1517, 1520, 1982 CCH OSHD ¶ 25,975, pp. 32,574-75 (No.
4678, 1982) (realistic estimate of probabilities suggests workplace conditions
remain the same). Absent evidence that any of the ropes had been removed before
the explosion, we find that a preponderance of the evidence shows they were
still in place at that time.

In addition, the judge found that, even if the ropes were
in place, Brooks had not provided adequate emergency egress as required by the
cited standard. He faulted both ladders because they were obstructed: the one
on the basket by a gate that swung inward and the one on the servicing rig by
the two railing chains. The judge also criticized the use of
the ladder on Brooks’ servicing rig as a means of egress because it exposed
employees to a fall of thirty feet. In addition, he found that the ladders were
not adequate as emergency egress because they would have conveyed employees
straight down into the blowout and the burning gas.

Similarly, the judge found that the ropes hanging from
the guardrails around the snubbing basket would not provide adequate emergency
egress because: employees had to climb over the guardrails to use them; they
did not convey employees away from the danger; and employees using them were
exposed to a thirty-foot fall. He also stated that he could not determine
whether the geronimo ropes conveyed employees away from the danger because:
there was no evidence as to the angle of the ropes; the ropes did not have
seats, slings, or a mechanism to control descent; and they exposed employees to
the danger of falling.

We
reverse the judge and find that the Secretary failed to establish that Brooks
did not comply with the terms of the standard. The Secretary alleges that
Brooks did not comply with the requirements of section 1910.36(b)(1) that
“[e]very building or structure, new or old, designed for human occupancy shall
be provided with exits sufficient to permit the prompt escape of occupants in
case of fire or other emergency.” Because the phrase “exits sufficient to
permit the prompt escape” does not state with specificity what an employer must
do to comply with the standard, we apply the well-established principle that a broadly-worded
regulation may be given meaning in a particular situation by reference to
objective criteria, including the knowledge and perception of reasonable
persons knowledgeable about the industry. ConAgra Flour Milling Co. , 16
BNA OSHC 1137, 1140, 1993-95 CCH OSHD ¶ 30,045, p. 41,233 (No.
88-1250, 1993) (citing Ryder Truck Lines, Inc. v. Brennan , 497 F.2d 230,
233 (5th Cir. 1974)), rev’d on other grounds , 25 F.3d 653 (8th Cir.
1993). Under Commission precedent, the Secretary can prove a violation of a broadly-worded
standard by showing that a reasonable person familiar with the situation,
including any facts unique to the particular industry, would recognize a
hazardous condition requiring the use of protective measures. Farrens Tree
Surgeons, Inc. , 15 BNA OSHC 1793, 1794, 1991-93 CCH OSHD ¶ 29,770,
p. 40,489 (No. 90-998, 1992). The Commission has held that evidence as to
current industry practice is relevant but is not dispositive. Baker Tank Co. ,
17 BNA OSHC 1177, 1179, 1993-95 CCH OSHD ¶ 30,734, p. 42,683 (No.
90-1786-S, 1995).

Because
this case arose in Louisiana and Brooks’ main office is in Texas, this case can
be appealed to the United States Court of Appeals for the Fifth Circuit. See
sections 11(a) & (b) of the Act, 29 U.S.C. §§ 660(a) & (b). When
the law of the circuit to which a case would likely be appealed differs from
the Commission’s case law, we apply the law of that circuit, here, the Fifth
Circuit. Interstate Brands Corp. , 20 BNA OSHC 1102, 1104 n.7, 2003 CCH
OSHD ¶ 32,656, p. 51,319 n.7 (No. 00-1077, 2003), pet. for rev.
filed , No. 03-2791 (3d Cir. June 19, 2003). The Fifth Circuit’s reasonable
person test differs from that of the Commission in one significant respect.
While Commission precedent holds that industry custom and practice are useful
points of reference but are not controlling, S & H Riggers &
Erectors , 7 BNA OSHC 1260, 1979 CCH OSHD ¶ 23,480 (No. 15855, 1979), rev’d ,
659 F.2d 1273 (5th Cir. 1981), the Fifth Circuit has stated that, when a
reasonable person test is used to determine what is required under a general
standard, there should be a close identification between the projected behavior
of the reasonable person and the customary practice of employers in the
industry. B & B Insulation v. OSHRC , 583 F.2d 1364, 1370 (5th Cir.
1978). The court has also stated that in the absence of a clear articulation of
the circumstances in which industry practice is not controlling, due process
requires proof either that: (1) the employer failed to provide protective
equipment customarily required in its industry; or (2) that it had actual
knowledge that such protection was required under the circumstances of the
case. S & H Riggers & Erectors v. OSHRC , 659 F.2d 1273, 1275
(5th Cir. 1981). We therefore must first determine the practice of the relevant
industry with respect to emergency escape; then, whether Brooks’ conduct
satisfied that practice.

Brooks’ expert witness testified that the oil well
snubbing industry, which he identified as the relevant industry here, is responsible for providing for safety
in snubbing operations, including emergency means of egress when problems
requiring the use of emergency egress arise. According to Brooks’ expert, the
snubbing industry uses the type of escape ropes and geronimo lines provided
here as the means of emergency escape.

The Secretary’s expert testified only that industry
practice is to rely on the snubbing company to satisfy safety requirements on a
snubbing rig and that, here, the snubbing company, Cudd, had placed the two
geronimo ropes on the derrick. There is nothing in the record to establish that
it is the practice of the snubbing industry to use enclosed slides or that the industry has recognized a
need for enclosed slides or any other measures beyond the five or six ropes
that were in place here. Although the judge found the ladders to be
unsatisfactory means of emergency egress, the record indicates that they
constitute one of the means of escape used by employees in the snubbing
industry as a whole. While the record shows that drilling rigs use wire ropes
or cables that have pulleys or slides to facilitate escape, there is nothing in
this record to show that the snubbing industry does the same.

Based on our review of the record, we find that the
means of egress provided at the Bryceland well comported with industry
practice. An employer’s duty under this standard is determined by reference to
the custom and practice of its industry. Accordingly, we find that Brooks
satisfied the requirement within that context even though the precautions taken
did not prevent the catastrophe here.

Conclusion

For the foregoing reasons, we find that section
1910.36(b)(1) applies to the cited conditions but that the Secretary failed to
show that the means of escape used here were inadequate within the context of
industry practice. Accordingly, we vacate the citation.

/s/

W.
Scott Railton

Chairman

/s/

James
M. Stephens

Commissioner

Dated:
August 26, 2003