ACME Energy Services dba Big Dog Drilling

Read the official release (oshrc.gov)

Plain-English summary

Big Dog Drilling employees were extending an oil rig's telescoping mast when the hydraulic ram failed and large suspended equipment fell onto the rig floor. A driller assigned to watch the mast from the rig floor was fatally struck. The judge vacated OSHA's general duty clause citation, finding insufficient proof of industry recognition and feasible abatement. The Commission reversed, relying on experienced expert testimony and industry manuals showing that the oil-drilling industry recognized a struck-by hazard throughout the rig floor during scoping. It also found that placing the driller on the ground was feasible and would materially reduce exposure while still allowing the work to be performed, even if it could not eliminate every risk. The Commission affirmed the citation as serious and assessed the proposed $7,000 penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: General duty clause citation affirmed as serious with a $7,000 penalty.
• Key point: A feasible general-duty-clause abatement need only materially reduce the recognized hazard, and moving a nonessential worker off an elevated rig floor met that requirement.

Full text (OSHRC public release)

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EN-US
X-NONE
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MicrosoftInternetExplorer4

United States of America

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

1120
20 th Street, N.W., Ninth Floor

Washington,
DC 20036-3457

SECRETARY
OF LABOR,

Complainant,

v.

OSHRC Docket No. 08-0088

ACME
ENERGY SERVICES dba BIG DOG DRILLING, and its successors,

Respondent.

ON BRIEFS:

Lee Grabel, Attorney; Charles F. James, Counsel for
Appellate Litigation; Joseph M. Woodward, Associate Solicitor of Labor for
Occupational Safety and Health; M. Patricia Smith, Solicitor of Labor; U.S.
Department of Labor, Washington, DC

����������� For
the Complainant

Steven R. McCown, Esq.; Malone M. Lankford, Esq.;
Littler Mendelson, Dallas, TX

����������� For
the Respondent

DECISION

Before: ROGERS, Chairman; ATTWOOD, Commissioner.

BY THE COMMISSION:

On
July 27, 2007, part of the mast of an oil drilling rig owned and operated by
ACME Energy Services dba Big Dog Drilling (�Big Dog�) fell, and a Big Dog
employee was fatally injured. � The
accident occurred at a Big Dog oil field worksite in Stanton, Texas, when
employees were extending the upper section of the mast during what is known as
the �rig-up� process. � After an
inspection by the Occupational Safety and Health Administration (�OSHA�), the
Secretary issued Big Dog a citation alleging a serious violation of the
Occupational Safety and Health Act of 1970 (�the Act�), 29 U.S.C. �� 651-678, under the �general duty
clause,� 29 U.S.C. � 654(a)(1), [1]
on the grounds that �employees were exposed to [a] �struck-by� hazard[] on the
drill floor during �rig-up� operations on a telescoping drilling rig.� � The citation, as amended, asserts that Big
Dog could feasibly abate the hazard by implementing the following
practice: � �Only personnel required to
carry out the operation shall be allowed in or under the mast unless it is in
the fully raised or lowered position. � No
one other than the operator should be allowed on the carrier platform
. . . or under the mast until well servicing units are fully scoped,
raised, or lowered.� � The Secretary
proposed a penalty of $7,000 for the alleged violation.

Administrative
Law Judge Dennis L. Phillips vacated the citation, concluding that the
Secretary failed to establish that (1) either Big Dog or its industry
recognized the hazard, and (2) the proposed means of abatement could
feasibly eliminate or materially reduce the hazard. � For the following reasons, we reverse the
judge�s decision, affirm the serious citation, and assess a $7,000 penalty.

BACKGROUND

The
drilling rig at issue here, �Rig No. 3,� has a mast that was transported in a
horizontal position to the drilling site on a vehicle called a �carrier.� � Once at the site, the carrier was backed up
to a structure, the top of which is known as the �rig floor.� � The rig floor was approximately 18-20 feet long by 15-18 feet
wide and accessed from the ground by stairways. �
The crew began the rig-up process by pivoting the mast up to a
vertical position and pinning the base of the mast to the rig floor. � The next step of the rig-up process��scoping�
or �scoping up��required the operators to telescope the upper section of the
mast up from its nested position within the mast�s lower section, using a
hydraulic ram located within the mast itself. �
Fully scoped, the mast reached 104 feet in height and tilted at an angle
of three degrees so that the top or �crown� of the mast was directly over the
�rotary table.� � The portion of the rig
floor that contained the rotary table was close to the base of the mast, and
the �racking board��where the deceased employee was assigned to work at the
time of the accident�was farther away. �

The
Big Dog crew for the rig-up operation at issue here consisted of seven
employees: two supervisors who also served as operators, Bobby Ruth and Mark
Steele (referred to as �tool pushers�); the deceased employee who was assigned
to work as a driller; two �rig hands� who stood on the ground toward the back
side of the drilling rig, and two welders who were in an enclosure next to the
rig floor called the �dog house.� � When
scoping the mast, both tool pushers stood at the controls located on the sides
of the rig by the mast base�Ruth operated the scoping controls, while Steele
operated the controls for the brakes. � From the racking board, the driller was to
observe the moving parts of the mast, including cables that are part of the
mast�s pulley system, and communicate with the tool pushers as they performed
the scoping operation. �

The
day before the accident, the crew raised the mast to the vertical position and
scoped it up to its full 104-foot height. �
The next day, the crew lowered the upper section of the mast to add more
counterweights to the mast�s pulley system. �
In addition to the counterweights, the pulley system was comprised of
numerous cables and a pulley block, which measured at least six feet long and
weighed over five tons. � The block was
suspended by cables from the scoped mast�s crown and hung approximately six
feet above the rig floor. � After adding
the counterweights, the crew began to again scope up the upper section of the
mast when the hydraulic ram failed, buckling and falling onto the rig floor
along with the pulley block and other suspended equipment. � The collapsed ram extended past the racking
board and beyond the end of the rig floor. �
The driller was struck and killed.

In
the year before this accident, two incidents occurred on Rig No. 3 while a
driller stood on the rig floor. � The
first occurred when the hydraulic ram failed because a piece of iron it was
bolted to at its bottom end had corroded and weakened. � No one was injured, but the ram collapsed
and, as Ruth described, �curled up on the floor.� � The second occurred when an operator
attempted to �pull� too much weight, causing structural damage to the mast, but
nothing fell. � After the first incident,
Big Dog hired Crown Energy (�Crown�) to repair the mast, but after the second
incident, Crown replaced the entire mast, including the ram.

DISCUSSION

To
prove a violation of the general duty clause, �the Secretary must show that a
condition or activity in the workplace presented a hazard, that the employer or
its industry recognized this hazard, that the hazard was likely to cause death
or serious physical harm, and that a feasible and effective means existed to
eliminate or materially reduce the hazard.� �
Arcadian Corp. , 20 BNA
OSHC 2001, 2007, 2004-2009 CCH OSHD �  32,756, p. 52,074 (No. 93-0628,
2004). �

On
review, the Secretary contends that the judge erred in finding she did not
establish that (1) Big Dog and its industry recognized the struck-by
hazard of falling equipment, and (2) positioning the driller on the ground
during scoping up is a feasible abatement method. � Big Dog maintains that neither it nor its
industry recognizes the cited hazard and that positioning the driller on the
ground is infeasible and would not materially reduce the hazard. � For the following reasons, we find that the
Secretary has established industry recognition and a feasible means of
abatement. [2]

I.       
Industry recognition

The
Secretary�s expert witness, Ronald Britton, testified that based on his
experience in the oil drilling industry, the industry recognizes that when
scoping up a rig�s mast, a struck-by hazard exists throughout the rig floor. � However, the judge found that Britton�s
opinion was �unsupported� and �undermined� by various industry manuals that
Britton referenced and by a video showing Crown, the company that manufactured
and refurbished Rig No. 3, scoping up the rig�s mast with an employee standing
on the rig floor. � On review, the
Secretary argues that the judge erroneously disregarded Britton�s decades-long
experience in the industry while misconstruing the manuals and video. [3] � We agree.

Hazard
recognition �may be shown by proof that �a hazard . . . is recognized
as such by . . . general understanding in the [employer�s]
industry.� � � Otis Elevator Co. , 21 BNA OSHC 2204, 2207,
2004-2009 CCH OSHD � 32,920, p. 53,546 (No. 03-1344, 2007)
(quoting Kokosing , 17 BNA OSHC
at 1873, 1995-1997 CCH
OSHD at p. 43,725 ). � It is
�[t]he hazard, not the specific incident resulting in injury, [that] is the
relevant consideration in determining the existence of a recognized
hazard.� � Kansas City Power & Light Co., 10 BNA OSHC 1417, 1422,
1982 CCH OSHD � 25,957, p. 32,539 (No. 76-5255, 1982); see Arcadian
Corp. , 20 BNA OSHC at 2008, 2004-2009 CCH OSHD at p. 52,079 (making
same observation given that � �[t]he goal of the Act is to prevent the
first accident� � (citation omitted)). �
Industry recognition may be shown through the knowledge or understanding
of safety experts familiar with the workplace conditions or the hazard in
question. � See Kelly Springfield Tire Co. v. Donovan , 729 F.2d 317, 322 (5th
Cir. 1984) (�The [industry] recognition standard centers on �the common
knowledge of safety experts who are familiar with the circumstances of the
industry or activity in question.� � (citation omitted)); Beverly Enters., Inc. , 19 BNA
OSHC 1161, 1187, 2000 CCH OSHD � 32,227, p. 48,978 (No.
91-3344, 2000) (consolidated) (same). �

Here,
we find that Britton, a registered professional engineer in petroleum
engineering with more than forty years in the oil drilling industry who the
judge qualified as an expert, has extensive experience that is directly
relevant to the issue of industry recognition, including: (1) working with
�pretty much every� major drilling company (including Big Dog) as an employee
or consultant; (2) manufacturing, building, and operating his own drilling
rigs; and (3) �scoping up . . . rigs just like� Rig No. 3. � Britton has also served on the board of
directors of the International Association of Drilling Contractors and, as a
consultant, he advises numerous drilling companies on �troubleshooting� and the
causes of oil rig failures. �

Based
on his training and experience, Britton�s view is that �the [oil drilling]
industry is well aware and recognizes that employees are exposed to struck-by
hazards on the drill floor,� including the area of the rig floor where the
driller was assigned to work, �during rig-up operations on a telescoping
rig.� � Britton stated that he would never allow someone to
stand �in the area that [the driller] was at the time he was killed� during
scoping because, with the mast towering over the relatively small area
of the rig floor, �[t]here really isn�t anywhere on the rig floor that he is
not exposed.� � And Britton emphasized
that his opinion is consistent with what the �leaders� in the oil drilling
industry recognize as hazards and have adopted as safe practices, which he
testified are reflected in the company manuals he referenced at the hearing.

The
judge nevertheless found that the information contained in these manuals, and
the practices depicted in the Crown video, were inconsistent with Britton�s
opinion. � But the judge failed to consider
the full scope of Britton�s testimony�particularly his detailed explanation of
the manuals� applicability and Crown�s practices. � Indeed, we find no inconsistency given
Britton�s testimony, which is based on his extensive industry experience,
including an in-depth knowledge of the equipment at issue and familiarity with
Crown and the various companies and organizations that produced these
manuals. � Specifically, t he
judge found many of the manuals inapplicable to Rig No. 3 simply because
they referred to a hazard to employees on a �carrier� or �carrier platform�
rather than a �rig floor.� [4] � But Britton testified that the manuals�
recognition of a struck-by hazard on a carrier platform was equally applicable to a rig floor
because a rig floor is the functional equivalent of a carrier platform. � He explained that on a �service� or
�servicing� rig, the working surface where workers stand to operate the rig is
the carrier platform�the part of the rig that the mast rests on horizontally
during transport. � However, on Rig No. 3,
which was converted from a service rig into a �drilling� rig, the working
surface where workers stand to operate the rig is the rig floor. � As Britton testified, in this respect, the
rig floor is �the same thing� as a carrier platform. � Because the struck-by hazard is the same
whether the working surface is a carrier platform or a rig floor, we agree with
Britton�s conclusion that these differences are inconsequential. [5]

The
judge also concluded that manuals prohibiting employees from working in the
area �under the mast��the phrase used in the amended citation�are inapplicable
here because he found that the driller was not working in that location at the
time of the accident. [6] � The judge dismissed Britton�s testimony that
�under the mast� comprises the entire rig floor and instead relied on testimony
from rig operator Ruth�who did not testify as an expert�indicating that this
phrase refers only to the area within and immediately adjacent to the mast�s
four legs. � We find, however, that Britton�s expert opinion
regarding the meaning of �under the mast� is entitled to more weight than
Ruth�s lay opinion. [7] �

Given his professional
training and extensive experience in the oil drilling industry, Britton was in
a better position than Ruth to judge how specific companies, and the industry
generally, use this terminology. � See Indus. Glass , 15 BNA
OSHC 1594, 1601, 1991-1993 CCH OSHD � 29,655, p. 40,174
(No. 88-348, 1992) (finding for party based in part on eminence of its
experts); All Purpose Crane ,
13 BNA OSHC at 1239, 1986-1987 CCH OSHD at p. 36,550 (finding
expert�s testimony �persuasive in light of his extensive experience�). � Although both witnesses have worked for
decades in the oil drilling industry, Britton has worked in various capacities for
multiple drilling companies, including serving as a consultant tasked with
inspecting accident sites and providing advice on safety matters. � From that experience, Britton has gained
personal knowledge of each of these companies� safety practices and how they
interpret the safety provisions in their manuals . � See Beverly
Enters. , 19 BNA OSHC at 1187 , 2000 CCH OSHD at
p. 48,978
(finding industry recognition based on the �knowledge or understanding of
safety experts familiar with the workplace conditions or the hazard in
question�). � Britton has also designed
and manufactured drilling rigs and participated in scoping operations. �

In contrast, Ruth has worked
for only five companies with scoping rigs and only in the capacity of a driller
or tool pusher. � According to Ruth, the
racking board area was �safe� because those five companies all positioned a
worker there during scope-up, and he had been unaware of any accidents
affecting that location. � But a lack of
prior similar accidents �does not show� that the industry did not recognize the
underlying hazard. � Kelly Springfield Tire Co. , 10 BNA OSHC 1970, 1974,
1982 CCH OSHD � 26,227, p. 33,113 (No. 78-4555, 1982) (industry
recognition depends on experts familiar with the industry, not awareness of a
type of accident), aff�d , 729
F.2d 317 (5th Cir. 1984) . � And Britton�s expert opinion on
this point carries more weight because he has much more extensive experience
working with drilling companies and their rigging policies than Ruth. � Moreover, while Ruth gave no reason why the
racking board position would not be considered �under the mast,� Britton
provided a compelling reason why it would: during scoping, the mast is tilted
and extended towards a point above the center of the rig floor, creating a zone
of danger throughout the rig floor due to the height of the mast and the weight and size of the
blocks and cables. � In fact, Ruth agreed
with Britton that the mast has the potential to fail during scope-up and that
such failures pose a danger on the entire rig floor. � Accordingly, we find that the manuals
referenced by Britton support, rather than undercut, his opinion that the
industry recognizes a struck-by hazard throughout the rig floor.

Finally,
the judge erred in concluding that the Crown video �thoroughly undermines Mr.
Britton�s opinion that no one should be on the rig floor during scope-up,
except for persons essential to the operation.� �
The video, taken after Crown modified Rig No. 3�s mast prior to the
fatal accident, depicts Crown testing the rig by scoping the mast without any
counterweights while a Crown employee stood on the rig floor at the base of the
mast. � Britton testified that because the
employee was not operating the controls, it was contrary to industry practice
for the employee to stand on the rig floor. �
Based on his previous work with Crown, Britton stated that Crown
believes it is necessary to place employees in such areas as part of its
manufacturing process. � As a result, we
find the video to be of little relevance here as it depicts a manufacturer
demonstrating the mast without suspended equipment, not a drilling company
using the mast for its stated purpose with the equipment attached. � Moreover, the video only represents what one
company did on one day. � In contrast,
Britton�s expert opinion of what the industry considers hazardous is based on
over 40 years of experience working with nearly every drilling
company�experience that specifically includes operating rigs like the one at
issue here. � See Indus. Glass , 15 BNA OSHC at 1601, 1991-1993 CCH OSHD
at p. 40,174 (relying on eminence of company�s expert); All Purpose Crane , 13 BNA OSHC at
1239, 1986-1987 CCH OSHD at p. 36,550 (�extensive experience� of
expert). �

For
all of these reasons, we conclude that the Secretary established that the oil
drilling industry recognized the cited struck-by hazard on the rig floor.

II.     Abatement

The
Secretary asserted in her amended citation that a feasible means of abating the
struck-by hazard is for Big Dog to permit �[o]nly personnel required to carry
out the operation� to be located �under the mast� when it is being raised or
lowered. [8] �
The judge rejected the Secretary�s assertion that this method would
feasibly eliminate or materially reduce the struck-by hazard. � For the following reasons, we find that the
judge erred.

The
Secretary has the burden of �demonstrat[ing] both that the [proposed abatement]
measures are capable of being put into effect and that they would be effective
in materially reducing the incidence of the hazard.� � Beverly
Enters. , 19 BNA OSHC at 1190, 2000 CCH OSHD at
p. 48,981. � �Feasible means of
abatement are those regarded by conscientious experts in the industry as ones
they would take into account in �prescribing a safety program.� � � Id. at
1191 (quoting Nat�l Realty & Constr.
Co. v. OSHRC , 489 F.2d 1257, 1266 (D.C. Cir. 1973)). � If the proposed abatement �creates additional
hazards rather than reducing or eliminating the alleged hazard, the citation
must be vacated for failure to prove feasibility . . . .� � Kokosing ,
17 BNA OSHC at 1875 n.19, 1995-1997 CCH OSHD at p. 43,727
n.19. � But the Secretary is not required
to show that the proposed abatement would completely eliminate the hazard. � Morrison-Knudsen
Co./Yonkers Contracting Co. , 16 BNA OSHC 1105, 1122,
1993-1995 CCH OSHD � 30,048, p. 41,279 (No. 88-572, 1993).

Here,
the judge agreed with Big Dog�s claim that it met the terms of the Secretary�s
proposed abatement method because the driller is one of the personnel �required
to carry out the operation� on the rig floor. �
According to Big Dog, tasks performed by the driller�watching the pulley
system�s cables to ensure that they do not become entangled, trouble-shooting other
problems when they arise, and communicating with other personnel on the rig
floor�would be hampered by distance and thus cannot be done as effectively from
the ground. � As a result, Big Dog
maintains, the proposed abatement would increase the risk of an accident
occurring. � Big Dog further contends that
even if the driller worked from the ground, there would remain a risk of being
struck. [9]
�

The
Secretary concedes that positioning the driller on the ground may not eliminate
every struck-by hazard, especially if the entire mast were to fall. � But she argues, and we agree, that any
adverse effects of such positioning would be minor compared to the safety
benefits. � Indeed, based on the record
evidence before us, the safety benefits of the Secretary�s proposed abatement
method significantly outweigh its disadvantages. � See,
e.g. , Chevron Oil Co. ,
11 BNA OSHC 1329, 1334, 1983-1984 CCH OSHD � 26,507,
p. 33,725 (No. 10799, 1983) (finding that �[t]he benefit afforded by the
use of flotation devices greatly outweighs the harm that could be caused in the
unlikely event that one of these devices were to hit an employee�). � Compare
Kokosing , 17 BNA OSHC at 1875
& n.19, 1995-1997 CCH OSHD at p. 43,727 & n.19 (finding no
material reduction where Secretary failed to rebut testimony that abatement
method could cause additional hazards). �
Big Dog�s arguments against positioning the driller on the ground center
on its contention that the driller has a better view of the mast and cables
from the rig floor, and can both communicate more easily with the other employees
engaged in scoping and more quickly resolve problems with the mast from that
position. � But according to Ruth, the
driller is not the only worker watching the mast during scoping�the tool
pushers who are operating the mast and brakes from positions on the rig floor
and the two rig hands who are positioned on the ground also watch the equipment
and the cables. � Ruth described it as the
driller being simply a �third set of eyes.� �
And Big Dog�s claim that communication would be impaired is not
compelling given Ruth�s acknowledgement that scoping up is a �quiet�
process. � As Ruth put it, �if anyone were
to holler and say they�ve got an issue, you�d be able to hear them
. . . .� � With regard to
problem-solving, Ruth noted that it would take �a little extra time� for the
driller to assess a situation and get onto the rig floor from the ground. � But Britton explained that any such delay
would not affect safety because problem-solving would only begin after the
scoping operation had been halted. �

In
fact, Britton testified that his own work practice for scoping�as well as the
standard industry practice, which was utilized by the companies he worked
for�is to position the driller on the ground, not on the rig floor. � See
Beverly Enters. , 19 BNA OSHC at 1191, 2000 CCH OSHD at
p. 48,981 (�The question is whether a precaution is recognized by safety
experts as feasible . . . .�). �
He emphasized that the industry uses this practice to avoid the known,
inherent risk posed by the close proximity of large, multi-ton objects
suspended from a moving mast. � See PSP Monotech Indus. , 22 BNA
OSHC 1303, 1306-07, 2004-2009 CCH OSHD � 32,976, p. 54,044
(No. 06-1201, 2008) (indicating that working near a suspended load is a
recognized hazard in general industry). �
That risk is compounded here by the rig floor�s elevation, a condition
that makes it difficult for the driller to escape in the event of an equipment
failure. � Thus, positioning the driller
on the ground not only provides the obvious benefit of being farther away from
any equipment that could fall, but also provides a better chance of escape
should a failure occur. � See Nelson
Tree Servs., Inc. v. OSHRC , 60 F.3d 1207, 1211 (6th Cir. 1995) (finding
that restricting access of employees �not directly involved� in tree-felling
operation would have �substantially reduce[d]� the struck-by hazard); Chevron Oil , 11 BNA OSHC at 1334, 1983-1984 CCH OSHD at
p. 33,725 (finding that requiring fire detection system with
automatically-ejected flotation devices for offshore drilling platform would
materially reduce drowning hazard).

Under these circumstances,
we find that even though the driller may still be exposed to a struck-by hazard
while standing on the ground, working from that location would materially
reduce �the incidence of the hazard,� which is all that the general duty clause requires. � Beverly
Enters. , 19 BNA OSHC at 1190, 2000 CCH OSHD at
p. 48,981. � Accordingly, we conclude
that the Secretary has established the feasibility of her proposed means of
abatement by showing that the duties assigned to the driller can be adequately
performed from the ground, and that the safety benefits of this abatement
method substantially outweigh the harm. [10] � See
Chevron Oil , 11 BNA OSHC at
1334, 1983-1984 CCH OSHD at p. 33,725 (finding that employer failed
to rebut Secretary�s evidence supporting proposed abatement because the benefit
afforded by the abatement �greatly outweighs the harm that could be caused� by
the abatement); see also Morrison-Knudsen ,
16 BNA OSHC at 1122, 1993-1995 CCH OSHD at p. 41,279 (affirming
general duty clause violation where proposed abatement method �would have
materially reduced the harm�). �

Accordingly, we affirm the general duty clause violation.

III. � Characterization and penalty

The
Secretary characterized this violation as serious
and proposed a penalty of $7,000. � Having
vacated the citation, the judge did not address either characterization or
penalty, and neither party has addressed these issues in their briefs before
the Commission. � However, the record is
sufficiently developed for the Commission to make these determinations. � See,
e.g. , Spancrete Ne., Inc. ,
15 BNA OSHC 1020, 1024, 1991-1993 CCH OSHD � 29,313,
p. 39,358 (No. 86-521, 1991) (finding it inefficient to remand a case for
a penalty determination where the Commission �thoroughly reviewed the record
and [is] able to make the necessary determinations�).

A
violation is serious if there is �a substantial
probability that death or serious physical harm could result.� � 29 U.S.C. � 666(k). � This �does not mean
that the occurrence of an accident must be a substantially probable result of
the violative condition but, rather, that a serious injury is the likely result
should an accident occur.� � Pressure Concrete Constr. Co. ,
15 BNA OSHC 2011, 2018, 1991-1993 CCH OSHD � 29,902,
p. 40,813 (No. 90-2668, 1992). �
Here, the compliance officer gave unrebutted testimony that falling
equipment from a collapsing mast could cause serious injury. � And the record shows that the struck-by
hazard did lead to serious harm in this case. �
Accordingly, we find that the violation was serious.

In
assessing an appropriate penalty, the Commission is required to consider : �the size of the business of the employer being charged,
the gravity of the violation, the good faith of the employer, and the history
of previous violations.� � 29 U.S.C.
� 666(j). � The gravity of a
violation is generally �the primary element in the penalty assessment� and
depends upon �the number of employees exposed, the duration of the exposure, the
precautions taken against injury, and the likelihood that any injury would
result.� � Hern Iron Works Inc. , 16 BNA OSHC 1619, 1624,
1993-1995 CCH OSHD � 30,363, p. 41,884 (No. 88-1962, 1994); J.A. Jones Constr. Co. , 15 BNA
OSHC 2201, 2214, 1991-1993 CCH OSHD � 29,964, p. 41,033
(No. 87-2059, 1993). �

Here,
the driller was the only non-operator on the rig floor and the record shows
that the scoping process takes only a few minutes. [11] � But the driller was exposed to the potential
for serious injury from the struck-by hazard throughout the entire scope-up
process. � See Gen. Motors Corp. , 22 BNA OSHC 1019, 1048,
2004-2009 CCH OSHD � 32,928, p. 53,627 (No. 91-2834E, 2007)
(consolidated) (noting that �even momentary exposure� poses a significant risk
of serious harm or death). � Thus, we find
that the gravity of the violation was high. �
See Roberts Pipeline Constr. Inc. ,
16 BNA OSHC 2029, 2030, 1993-1995 CCH OSHD � 30,576,
p. 42,331 (No. 91-2051, 1994) (finding high gravity although �only a small
number of employees were exposed to the violative conditions for only a short
period of time,� because �violations exposed the employees to death�), aff�d , 85 F.3d 632 (7th Cir. 1996)
(unpublished). �

We
find no basis to reduce the penalty for company size given testimony from Big
Dog�s drilling manager that there were approximately 750 employees under his
supervision. � See George Campbell Painting Corp. , 18 BNA OSHC 1929,
1935, 1999 CCH OSHD � 31,935, p. 47,391 (No. 94-3121, 1999) (no
penalty reduction based on size for a �substantial company� with between 200
and 250 employees). � In addition, the
record is silent about Big Dog�s prior citation history and contains no
evidence to support a good faith reduction given Big Dog�s failure to protect
the driller from the struck-by hazard. �
For all of these reasons, we find the proposed penalty of $7,000 to be
appropriate.

ORDER

����������� We affirm Citation 1 Item 1 as
serious and assess a penalty of $7,000.

SO ORDERED.

����������������������������������������������������������������������� /s/ ��������������������������������������������������������������������

����������������������������������������������������������������������� Thomasina
V. Rogers

����������������������������������������������������������������������� Chairman

����������������������������������������������������������������������� /s/ �������������������������������� �����������������������������������

����������������������������������������������������������������������� Cynthia
L. Attwood

Dated: September 19, 2012 ��������������������������������������� Commissioner

�������������������������������������������
United States of America

OCCUPATIONAL SAFETY
AND HEALTH REVIEW COMMISSION

��������������������������������� 1120 20th
Street, N.W., Ninth Floor

������������������������������ ��������� Washington, DC 20036-3457

����������������������� SECRETARY OF LABOR, �� �������������������� �� :

�������������������� � :

������������������������� Complainant, ����������������� � ��� :

��������������������� :

����������������������������� � V ����� ������������ ���������������������� ������� � : OSHRC DOCKET NO. 08-0088

��������������������� :

��������������������� � ACME ENERGY SERVICES, ���������� �������� :

����
������������������� d/b/a BIG DOG
DRILLING, ������������ ��������� :

�� �������������������������������������������������������������������� � �������������������� :

�����������������������������������������������
Respondent. ��� �������������������� :

APPEARANCES: ����������������������������������������������������������������� Josh
Bernstein, Esquire

����������������������������������������������������������������������������������������������� Steven
R. McCown, Esquire

U.S. Department of Labor ����������������� Malone M. Lankford, Esquire

Office of the Solicitor ������������������������ Littler Mendelson, P.C.

Dallas, Texas �������������������������������������������������������������������������� Dallas,
Texas

For the Complainant. ������������������������������������������������� For
the Respondent.

BEFORE: ������������������������������ Dennis
L. Phillips

Administrative Law
Judge

������������������������������������������������������� DECISION
AND ORDER

This proceeding is before the Occupational Safety and Health
Review Commission (  the Commission  ) pursuant to section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C.  651 et seq . (  the Act  ). On July 20, 2007, a fatal accident
occurred at a work site of Respondent, Acme Energy Services, d/b/a Big Dog
Drilling (  Respondent  or  Big Dog  ). The work site was located in Stanton,
Texas. The accident took place as the crew at the site was  scoping up  the mast, or derrick, of  Rig No. 3,  one of Big Dog  s oil drilling rigs. The Occupational
Safety and Health Administration (  OSHA  ) investigated the accident. As a
result, OSHA issued a citation to Respondent, alleging a violation of section
5(a)(1) of the Act. Respondent contested the citation. The hearing in this
matter was held on December 2 and 3, 2008, in Midland, Texas. Both parties have
filed post-hearing briefs, and Respondent has filed a reply brief.

�������������������������������������������������������������������� Jurisdiction

In its Answer, Respondent admits the Commission has
jurisdiction of this matter pursuant to section 10(c) of the Act. It also
admits that it is an employer engaged in a business affecting commerce within the
meaning of section 3(5) of the Act. I find, therefore, that the Commission has
jurisdiction of the parties and the subject matter in this case.

������������������������������������������������������������������� Background

On the afternoon of July 20, 2007, a Big Dog crew was at the
Stanton site to finish rigging up, or setting up, Rig No. 3. The mast, or
derrick, of Rig No. 3 had been transported to the site in a horizontal position
on a carrier. [12] The first
part of the rig-up involved raising the mast hydraulically up to vertical onto
the rig floor at the site. [13] The
second part involved raising the interior of the mast with a hydraulic ram, or
cylinder, located inside the mast, so that the mast would be extended up to its
full height of 104 feet. This particular type of rig is called a  telescoping rig.  The raising of the mast  s interior, which is analogous to
raising up an extension ladder, is referred to as  scoping up  the mast. Once the mast is vertical,
and is in the process of being scoped up, it actually tilts 3 degrees over
vertical. When fully scoped up, the top, or crown, of the mast is situated
right over the hole, or well, where drilling will take place. [14] Also,
when the mast is being scoped up, there is a  traveling block,  or  block,  which is suspended by cables from the
top of the mast. The block is part of the pulley system through which various
cables travel. The block is very large and very heavy, weighing about 10,500
pounds. There are also other items suspended from the top of the mast,
including counterweights. (Tr. 67-77, 104, 109-11, 116, 121-23, 132-35, 227).

Big Dog  s crew at the site consisted of two
supervisors, called  tool pushers,  a driller, two rig hands, and two
welders. Bobby Ruth was the  lead tool pusher.  He was responsible for the other crew
members and for operation of the rig. Mark Steele was the other tool pusher,
and the driller was Gabriel Chavarria. The day before the accident, the crew
had raised the mast of Rig No. 3 to vertical and scoped it up to its full
height. On July 20, 2007, they lowered the top part of the mast to put more
weight in the counterweight buckets. They then proceeded to scope up the top
part of the mast again. Mr. Ruth, located back behind the mast, was operating
the hydraulic controls to scope up the mast. [15]
The two rig hands were on the ground behind the mast. They were holding onto
guy lines as the mast went up. The two welders were in the dog house. Mr.
Steele was up on the rig floor. He was on the left side of the mast operating
the brakes for the block. � Mr. Chavarria
was also up on the rig floor. His job was to watch the various cables and lines
and the mast as it was scoped up. He was also to insure that the tubing/belly
board halfway up the derrick folded out correctly and to communicate with the
tool pushers if a problem occurred. As the mast was being scoped up, at about
3:00 p.m., there was a loud pop, the ram gave way, and the top part of the mast
slid down inside itself. The ram buckled and fell, and the equipment suspended
by cables and all of the drilling lines also fell. Mr. Chavarria was found
lying on the rig floor with the ram adjacent to, and partly above, his left
side. The block was to his right. Emergency medical help was summoned, but Mr.
Chavarria was pronounced dead at about 4:00 p.m. (Tr. 66-77, 85-89, 92-97, 113-21,
125-28, 134-35, 165-66, 198, 227-32, 446; C-27, C-28, Nos. 61-64, C-34, C-44).

Deputies from the Martin County Sheriff  s Office, Stanton, Texas, also
responded to the emergency summons. One of the deputies, Ashley Borgstedte,
took a number of photographs at the site at about 4:00 p.m., July 20, 2007,
that included views of the mast, the rig floor and the accident scene. Texas
Ranger Sergeant Don Williams also arrived at the oil rig. Later that evening,
the law enforcement authorities obtained statements at the Sheriff  s Office � from some of the crew members, including
Messrs. Ruth and Steele. The Sheriff  s Office and the Texas Rangers
determined that the incident had been an industrial accident. The Sheriff  s Office and the Texas Rangers turned their
entire investigation over to OSHA. (Tr. 32-42, 56-63; C-28).

Big Dog began investigating the accident, and notified OSHA,
right after the incident occurred. According to statements of the crew members,
the scope-up was proceeding normally and there was no indication anything was
wrong. According to the statement of Mr. Steele, the block struck Mr. Chavarria
on one side and the ram, or cylinder, struck him on the other side. Violet
Hobbs, an OSHA compliance officer (  CO  ), arrived at the site at about 6:40
p.m. She surveyed the scene, took photographs of her observations, and spoke
with some Big Dog employees, including Mr. Sanchez, its safety director. The CO
interviewed employees of Big Dog, including Mr. Ruth and Mr. Steele, during
November 2007. OSHA made no determination as to the cause of the accident. The
citation was issued on December 18, 2007. (Tr. 211-17; C-34).

����������������������������������������������������������� The
Alleged Violation

The OSHA citation, as amended, alleges a violation of the
general duty clause, section 5(a)(1) of the Act, as follows:

Section 5(a)(1) of
the [Act]: The employer did not furnish employment and a place of employment
which were free from recognized hazards that were causing or likely to cause
death or serious physical harm to employees in that employees were exposed to
the condition(s) below:

ACME Energy Services,
Inc., DBA Big Dog Drilling, Rig 3, Lost Dutchman #1, Martin Co., TX. For the
period of time up to and including 7/20/07, employees were exposed to  struck-by 
hazards on the drill floor during  rig-up  operations on a telescoping drilling
rig.

Among other methods,
one feasible and acceptable abatement method to correct this hazard would
include complying with API Recommended Practice 54, Third Edition, April 1999,
titled  Recommended Practice for Occupational
Safety for Oil and Gas Drilling and Servicing Operations,  which states in Section 9, Paragraph
9.2.9,  Only personnel required to carry out
the operation shall be allowed in or under the mast unless it is in the fully
raised or lowered position. No one other than the operator should be allowed on
the carrier platform in the derrick or under the mast until well servicing
units are fully scoped, raised, or lowered. 

�������������������������������������������������� The
Secretary  s Burden of Proof

To prove a violation of the general duty clause, the
Secretary has the burden of demonstrating that: (1) an activity or condition in
the employer  s workplace presented a hazard to employees; (2) the cited
employer or its industry recognized that the condition or activity was
hazardous; (3) the hazard was causing or likely to cause death or serious
physical harm; and (4) there were feasible means to eliminate or materially
reduce the hazard. See Kokosing Constr. Co. , 17 BNA OSHC 1869, 1872 (No.
92-2596, 1996), citing to Waldon Healthcare Center , 16 BNA OSHC 1052,
1058 (No. 89-2804, 1993). Hazards  must be defined in a way that apprises
the employer of its obligations, and identifies conditions or practices over
which the employer can reasonably be expected to exercise control.  Pelron Corp. , 12 BNA OSHC 1833,
1835 (No. 82-388, 1986) (citation omitted).

The Secretary contends she has met her burden of proof as to
all four elements. She asserts � that the
equipment suspended above Mr. Chavarria  s work area, like the ram and the
block, presented struck-by hazards during the scope-up of Rig No. 3. She also
asserts that Big Dog and its industry recognized the hazard, based on the
testimony of her expert, Big Dog personnel, and industry documents she
presented at the hearing. She further asserts that the hazard was causing or
likely to cause death or serious physical harm. Finally, she asserts that a
feasible means of abating the hazard was to comply with American Petroleum
Institute (  API  ) Recommended Practice 54, Section 9. Respondent contends
the Secretary has not met her burden of proving the alleged section 5(a)(1)
violation.

�������������������������������������������������������� Testimony
of Bobby Ruth

Mr. Ruth has worked in oil drilling for 34 years. He
testified it is known in the oil industry that the rig-up of a mast like on Rig
No. 3 can be potentially dangerous due to the suspended equipment � over an area where people may be working. He
further testified that how the scope-up was done on July 20, 2007, with Mr.
Chavarria located about mid-center on the racking board, was standard
procedure. [16] He and
Big Dog were unaware then that where Mr. Chavarria was standing was hazardous
or dangerous during the scope-up operation. Mr. Ruth said he had worked for
about 12 oil companies. Four of those had telescoping rigs like Rig No. 3. As
driller for those companies, he had stood on the racking board of those rigs
during scope-up  hundreds of times.  [17] He also said that before the accident,
he did not think a man could be hit as Mr. Chavarria was. [18]
In all of his experience he had never seen a similar accident. Mr. Ruth agreed
Rig No. 3 had two previous failures. They were not the same as the one
occurring on July 20, 2007, and had not caused any injuries. The first,
occurring in about 2006, was due to equipment deterioration, which caused the ram
to  curl up  on the floor. [19]
After that incident, the mast was completely rebuilt and recertified. The
second was due to an operator trying to pull too much weight through the block,
causing the ram to buckle. After that incident, the mast and ram were replaced
with a new mast and ram. Mr. Ruth did not know what had caused the July 20,
2007 accident, but he believed it was due to equipment failure. (Tr. 71-72,
77-85, 93-94, 98-106, 117-18, 125).

Mr. Ruth viewed R-24A and said it accurately depicted Rig
No. 25 and where the drill floor and racking board were. [20] � He drew a line he marked as  A  on R-24A to show where the raised mast
would be. He noted that neither the drill floor nor the racking board was
actually under the mast. [21] Rather,  under the mast  was the 3-foot space between the mast
and the drill floor where the rotary table, guard and chain were located. [22] Mr. Ruth
also viewed C-43, a sketch of the raised mast of Rig No. 3 over the rig floor.
He marked an  A  on the sketch to indicate where Mr. Chavarria had been
standing, a  B  to show the drill floor, a  C  to show the rotary table area, and a  Y  to indicate where the block would have
been suspended. [23] Mr. Ruth
next viewed C-28, No. 61, which is a front view of the raised mast of Rig No. 3
right after the accident. He marked various areas on No. 61, including a  D  to show where at the time of the
accident he had been, an  E  to show where Mr. Steele had been, and
an  F  and  G  to show where the rig hands had been.
He identified  A  as where Mr. Chavarria had been. Finally, Mr. Ruth viewed
C-28, Nos. 63 and 64. They showed Mr. Chavarria after the accident with the ram
to his left side and the block to his right. Photograph No. 64 also showed
where Mr. Chavarria was from the legs of the mast. He testified that he had no
reason to believe that the ram did not strike Mr. Chavarria and that it was a  possibility  the block also struck him. (Tr. 70-74,
108-21, 125-27, 134-38, 165-68).

Mr. Ruth testified that during both a rig-up and scope-up
there are lots of wires which could potentially get tangled or fouled up and
which need to be watched by all of the crew. There are at least ten wires that
the crew needed to keep an eye on during the scope-up that occurred on July 20,
2007. � Mr. Ruth also testified that while
he was at the raising controls, Mr. Steele was on the brake, and the two  rig hands  were on the ground at the back or
opposite side of the rig. They were all watching the cables so that they would
not  get hung up,  as well as the board to insure that it
folded out correctly. [24] They were
also trying to guide the wires as they came up to the rig floor so that the
wires did not get caught. Mr. Chavarria was an extra set of eyes to insure the
same while he stood on the racking board, also known as the rig floor. He was
also there to watch the derrick going up and the stabilizer bars that come out
and go around the scoping ram. Mr. Chavarria  s role was also to communicate with
both tool pushers during the scope-up operation. From his position on the
racking board, Mr. Chavarria could view the whole derrick and better see what
was coming toward the front end of the rig. Two welders, located inside the dog
house, were also present during the scope-up on July 20, 2007. The welders were
adding weight to the counterweight buckets. Respondent  s general rule during scope-up was not
to allow third parties, such as the welders, on the rig floor. � (Tr. 86-95, 127). ���

Mr. Ruth said no one should be on the carrier when the mast
is raised to vertical. It is raised hydraulically, and if that equipment fails,
the mast can fall and injure someone. He also said that no one should be inside
the mast, the area within its four legs, during the scope-up operation. It
would be very dangerous to be inside the mast since the derrick could slide
down inside itself and because of any overhead suspended equipment. Mr. Ruth
noted that no one should be in the rotary table area, shown in C-28, No. 49,
during scope-up. If equipment fails, the block or ram can fall in that area. He
further noted that while Big Dog no longer has a driller stand in the area
where Mr. Chavarria was standing, a driller still stands on the racking board
during the scope-up of a telescoping rig. Mr. Ruth stated that although the
driller  s job could be done from the ground, it would not be as
effective. The driller has the best view of the mast, cables and lines from the
racking board. There is not a good vantage point from the ground. Unclear
communications and an inability to watch the stabilizer arms and other rig
areas occur when the driller is on the ground. If a cable or line gets caught,
or if there is a problem with the mast, the driller is in the best position to
see it and tell a tool pusher before the problem becomes a hazard. [25] Mr. Ruth
also stated that it can be more dangerous to not have a driller up on the
racking board. If a cable or line catches on something, it can have a slingshot
effect and rip a board or equipment off the rig that can strike someone on the ground.
He noted that being on the ground is not necessarily safer than being on the
racking board. When a mast failure occurs, there is no way to tell which way or
where it will fall. The tool pusher on the controls or a rig hand in another
area of the rig can just as easily be hit by the mast if it fails. Mr. Ruth did
not consider Mr. Chavarria to be in the zone of danger when he was standing on
the racking board at the time of the accident. (Tr. 77-79, 84, 92-99, 103-08,
132, 141-42, 147, 153-63).

�������������������������������������������������������� Testimony
of Lee Sanchez

Mr. Sanchez was Big Dog  s safety director at the time of the
accident. He no longer works for the company. He testified that before July 20,
2007, he was unaware of a telescoping rig ever collapsing. It had never occurred
to him an accident like that could happen. He had never heard of such an
accident before. Mr. Sanchez agreed that being anywhere on the rig floor during
scope-up was hazardous and dangerous. If a block falls, you cannot know where
it will fall. [26] He stated
that he did not know whether Mr. Chavarria was exposed to a hazard during the
scope-up process in the area where he was standing. He further agreed that he
and Big Dog recognized before the accident that drilling rig moves were among
the most hazardous tasks the employees performed and that all personnel were to
be completely and safely clear before a derrick or mast was raised. He said he
did not know all the procedures for setting up rigs and that he relied on the
operational personnel in that regard. [27]
He also said that when he went to sites to inspect rigs he was looking at items
such as fall protection, grounding, and substructure. [28]
Mr. Sanchez noted that while Big Dog attempted to have a safety person at sites
during rig-up, it was not possible to do so for every rig-up. Prior to July 20,
2007, Mr. Sanchez did not think that where Mr. Chavarria was standing at the
time of the accident was unsafe. He had not recognized � prior to the accident that being on the rig
floor was a hazard. He further noted that after the accident, Big Dog no longer
had anyone on the rig floor where Mr. Chavarria had been. Mr. Sanchez did not
know why the ram or cylinder in the mast had failed on July 20, 2007. (Tr.
175-208).

������������������������������������������������������ Testimony
of Ronald Britton

Mr. Britton has been continuously in the oil business since
1965. He is a registered petroleum engineer and �
a board-certified oil and gas forensic examiner. He worked for several
oil companies before starting � his own
consulting firm. He also designed, built and operated his own drilling rigs. He
has been a member of the API for most of his career. For the past ten years, he
has been on API subcommittees that address hoisting systems on drilling rigs.
Mr. Britton  s experience has included the operation of telescoping rigs
like Rig No. 3. [29] (Tr.
219-20).

Mr. Britton testified Rig Nos. 3 and 25 were actually
pulling units that had been modified to be drilling rigs by adding a drill
floor. He further testified that in his experience with telescoping rigs, he
never had anyone on the rig floor where Mr. Chavarria had been during scope-up.
He drew C-44, a bird  s-eye, not to scale, sketch of the mast and floor of Rig No.

3. The sketch showed where the ram was after it failed and the approximate area
   where Mr. Chavarria could have been standing based on photographs he had seen
   and witness testimony. Mr. Britton estimated the rig floor to be 10 by 12 feet
   with the hole in its center. He stated that the testimony had been that, at the
   time of the accident, Mr. Chavarria was  everywhere  on the rig floor, from the two matting
   boards to the V-door. He noted that the photographs of Mr. Chavarria  s body showed him laying alongside the
   side of the hole in the floor. Mr. Britton assumed that Mr. Chavarria was
   standing where he was found, or on one of the mats. He said that Mr. Chavarria
   was trying to keep straight two guy lines off the top of the crown, as well as
   two other guy lines that were on the tubing/belly board halfway up the derrick
   as the derrick was being raised. He also said an employee anywhere on the rig
   floor where Mr. Chavarria may have been standing could be struck by falling
   equipment should the mast fail during scope-up. Mr. Britton noted this was due
   to possible equipment failure, as in this case, which can cause the ram, block
   and drilling cables to fall to the floor. [30]
   He stated that the crown got scoped almost up to the top [104 feet] before the
   scoping cylinder either failed or the latching  dogs  did not catch. The block, which is 6
   to 8 feet off the floor at about head height and essentially over the hole
   during scope-up, can fall in any direction. [31]
   The drilling cables, which are heavy and stiff, can also fall and  whip all over  the rig floor. He further noted that
   the only persons who should be on the floor during scope-up are the two persons
   operating the controls on either side of the mast, that is, the driller  s controls on the left and the scoping
   controls on the right. Mr. Britton explained that those persons have to be
   there to operate the controls and that they are protected by being right next
   to the legs of the mast. [32] (Tr.
   223-34, 306, 323, 388-90, 408-09).

Mr. Britton identified various exhibits as safety and
operating � manuals that address rigging
up in the oil and gas industry. He said the exhibits were from his library of
manuals from the many companies with which he had worked. He also said that
while the exhibits mainly prohibit being under a suspended load, some of them
prohibit being on the rig floor or carrier during raising operations. Mr.
Britton stated that when the mast is being raised or lowered the suspended load
is the block. He also stated that the scoping cylinder was not a suspended
load. � Mr. Britton discussed provisions
from the manuals. He testified that the manuals  say mainly don  t be under a suspended load.  He further testified that some manuals
say  don  t be on rig floors during rigging up.
There are some [manuals] that say don  t be in the rig or the carriers.  [33] The Pool Company manual,  U.S. Land Accident Prevention Handbook,  revised August, 1988 (  Pool Manual  ), requires all persons, except the
crew chief, to stay clear of the carrier while the derrick is being raised,
lowered, or scoped up or down. [34] The Pool
manual also states that all persons, except the crew chief, shall stay clear of
the carrier while the derrick is being raised, lowered, or telescoped up or
down. (C-6, DOL 83). Mr. Britton defined  carrier  as being  the mobile 18-wheeler under the rig
that brings the rig out to the location .... And it has the mast mounted on the
top of it. It  s one piece.  Mr. Britton interpreted  carrier  in these and other manuals to mean the
actual vehicular carrier, as well as the rig floor. He explained that using the
word carrier now  gets confusing  because small pulling or servicing
rigs, like Rig No. 3, originally had a small floor that was attached to the
carrier. The carrier then obviously included the floor. When such rigs were
modified to become drilling rigs, the rig floor was a completely separate
piece. The terms in the manuals were never changed. He believed that when the
manuals referred to the carrier it included the rig floor and meant that
workers were to stay clear of the mast on both the carrier and the rig floor
during raising and scoping operations. The Key Energy manual,  Key Energy Services Employee Safety
Handbook,  January, 1999, prohibits standing under the derrick or on
the carrier while it is being raised or lowered. [35]
The manual issued by the Association of Energy Servicing Companies (  AESC  ) entitled  Recommended Safe Procedures and
Guidelines for Oil and Gas Well Servicing,  4 th revision, April, 2000,
recommends as a safe operating practice that  people on the floor should stand clear
when rigging up ....  (Tr. 235-71, 277-79, 288; C-7, at DOL 89, C-11, DOL 114).

A Schramm, Inc. manual,  Schramm Rotadrill Operator  s & Maintenance Manual,  �
undated, states as follows:

Before raising the
mast (derrick), clear all drill rig personnel (with exception of the operator)
and visitors from the areas immediately to the rear and sides of the mast.
Inform all drill rig personnel and visitors that the mast is being raised prior
to raising it. (Tr. 272-73; C-9, DOL 98). [36]

Mr. Britton discussed other manuals. One, called  Safety on the Rig,  published by PETEX in 1999, [37] notes
that one of the most dangerous times is during rigging up and down and that
these periods account for 15.8 percent of lost time incidents. (Tr. 273-74;
C-10, DOL 106). It also states:  Absolutely no one should be on or under
the derrick while it is being raised because the possibility of equipment
failure is always present.  (Tr. 275; C-10, DOL 108). It
additionally states:

Never walk or stand
under anything being lifted. Use tag lines to guide a load. When loads are
being hoisted there is always the possibility that a line may slip or break;
objects may fall from above; and, broken lines can whip about dangerously. Id .

Mr. Britton also considered the PETEX provision prohibiting
being under a load relevant as it shows that industry standards require keeping
the rig floor clear. (Tr. 275-76). A Corsair manual,  Owner Operator  s Manual for CORSAIR Oil Well Servicing
Rig,  by Crane Carrier Company, March 1,
1982, � provides:  Do not permit personnel under mast when
it is being raised or lowered, and do not let personnel climb or be on mast
when extending upper section.  [38] (C-12, DOL 216). [39]
Mr. Britton considered that Mr. Chavarria was under the mast when he was
killed. [40] He noted
that accidents commonly occur when people are struck by the falling block or
drill lines. (Tr. 276-78, 377). A Continental Emsco Company manual for Wilson
Fabricated masts,  Wilson Manufacturing, Mogul 42-B Double Drum B.I.
Winchmobile, Operation & Maintenance,  recommends that the operator study
safety points that include a recommendation that all personnel keep clear of
the mast in the raising, lowering, and telescoping operations. It also states
that the crew should never be beneath the mast in these operations. (Tr.
283-84, C-15, DOL 153). Another Wilson manual,  Wilson Manufacturing, Drilling Rig
Manuals, � Machine: Mogul  42" S.D. Winchmobile for J. &
C. Drilling Company,  dated February 23, 1970 [The 65', 84', 90', 96', 102', and
110' Wilson Fabricated Masts], has similar provisions, except that it
recognizes the necessity  for the crew to keep the guy lines
clear in both raising and lowering operations, but these men should never be
beneath the mast in raising and lowering operations.  In addition, it prohibits  [being] in a position where he might be
injured if the upper section should fall, and the upper section should not be
moved while any man is up on the mast....  (Tr. 279-80; C-14, DOL 125-26). � A Stewart & Stevenson (  Stewart  ) manual,  Parts and Service Manual Workover Rig
Model: WTD-00550, rev00-February07,  states:

WARNING:
Personnel must never work on the raised mast unless wearing their safety ���������������� harness.

WARNING:
If the latches are not fully extended, the top section of the mast may fail.
This �������� may cause extensive damage
to the equipment and possible injury to personnel. [41]

� (Tr. 285-86; C-16, DOL 166). Mr. Britton
agreed that the cited Stewart reference did not address

� workers being in or under the mast, or on the
rig floor.

A Unit Drilling Company  Safe Workplace Handbook,  �
undated, states that when raising a derrick, workers should not be
positioned underneath the derrick. [42] � It further states, when securing a derrick to
A legs with pins/bolts, all personnel should stand clear of all overhead work.
Mr. Britton also identified a Safety Alert from the International Association
of Drilling Contractors,  Alert 07-03,  undated, that pertained to a drilling
rig mast that had a raising line whip during failure. He explained that the
Safety Alert was not  100 percent on point.  Finally, a Basic Energy Services,  Employee Safety Handbook,  August 2000 (  BES Handbook  ), states that before a derrick is
raised, personnel are to be placed to observe the derrick from all positions to
prevent line entanglement. The BES Handbook further states that  No one but the operator should stand
under the derrick or on the carrier, while it is being raised or lowered.  �
(Tr. 287-89; C-17, DOL 162, C-19, C-21, DOL 181).

Mr. Britton testified that, based on his experience, there
was  no question in [his] mind  that the industry recognized that
employees working up on the rig floor where Mr. Chavarria was were exposed to
the hazard of being struck by equipment during scope-up. He opined that the ram,
the block, or a cable could have struck Mr. Chavarria. [43]
He said that the block and cables were clearly suspended loads. He also
believed the ram was a suspended load. He explained that the ram was part of
the mast and that the mast, once it was  up there,  was a suspended load. (Tr. 281-85,
289, 383-85).

At the hearing, Mr. Britton viewed C-27, Crown  s DVD of its rig-up of Rig No. 3 [44] at Crown  s yard, and he explained what it
showed. [45] The mast
was raised from the carrier platform by a hydraulic cylinder. While this was
taking place, a person was standing on the carrier platform, under the mast. He
stated that anything underneath the mast was under the suspended load. A second
person was sitting in the middle of the rig floor. That person, once the mast
was raised and tilted 3 degrees over vertical, proceeded to pin into place the
two derrick legs of the mast that were on the rig floor. This person was also
in the zone of danger. The scope-up of the mast began while that person was
still pinning the legs. [46] Once the
scope-up was completed, the down-scoping took place. A person then appeared on
the floor, to unpin the legs of the mast. That person stayed near the driller  s controls as the mast was lowered. At
the end of C-27, a person appeared on the carrier platform as the mast was
almost down on the carrier. Mr. Britton said no one should have been under the
mast while it was being raised from or lowered onto the carrier, as the
hydraulic cylinder could have failed, causing the mast to fall. The person
under the mast should have been raising the mast from the controls on the far
side of the mast leg. [47] (Tr.
305-25; C-27, frame 833).

Mr. Britton also stated that only two workers should be  anywhere around the rig floor  during the raising of the mast, or
while it was being scoped up or down. This is because the ram could fail, fall
and strike workers on the rig floor. One of these two workers was the person
operating the controls on the far side of the mast. The other was the driller
having to be at the controls controlling the block when scoping up. [48] He
conceded that someone had to be on the rig floor to pin and then unpin the
legs, but he noted that the scope-up should not have been done while the
pinning was still being done. Mr. Britton agreed that it is almost impossible
to predict the direction equipment would fall in the event of mast failure. He
further conceded that while he would expect Crown, the rig  s manufacturer, to follow the industry
standard, the employees in C-27 were not doing so. Mr. Britton stated that
Crown should have followed the industry standard even though there was no
equipment on the mast other than guy lines. He also stated that he planned to
discuss C-27 with Stewart, which he described as a top company, and inform it
that what its workers had been doing on the C-27 video was unsafe and in
violation of the industry standards that he identified earlier in his
testimony. He agreed that the industry standards applied to pulling rigs, and
not Rig No. 3. (Tr. 322-26, 342, 385-400; C-44).

Mr. Britton discussed the  Grey Wolf Safety Manual,  revised July, 2000, Basic Safety Rule
No. 14, that states that  Employees should never position
themselves under a suspended load. (Taglines should be used to position and
control loads.)  He noted that it said nothing about being on the rig floor,
under the mask, or in the derrick. (Tr. 327; C-2). � He also noted that he did not think that Gray
Wolf has any telescoping rigs, although they may have had some originally. � Similarly, Mr. Britton stated that the  Safety Manual,  Exxon Company U.S.A. Production
Department, December, 1994, said nothing about being under a mast or being off
the rig floor in the manual  s personnel precaution section. [49] (Tr.
330-33; C-3). He also said that Nabors Safety Manual, Item 17 (revised
February, 1998), did not address the raising or lowering of a rig. (Tr.
332-333; C-4, 22). � Likewise, he said
that the Pool Safety & Training Policies & Procedures, General Safety
Section, page 3 (effective March 1, 1994), made no reference to rigging up or
rigging down a telescoping rig. � (Tr.
334; C-5). �

Mr. Britton testified that it was proper for crew � members to be on a rig floor underneath
blocks, rigs and suspended loads, including casing pipes, provided the derrick
was already fully rigged up correctly. (Tr. 348-352). He further testified that
it was his opinion that only limited personnel were allowed in or under the
mast during the raising or lowering of the mast. (Tr. 361). � He stated that there was no OSHA regulation
telling companies how to raise and lower rigs. He believed that there was no
specific OSHA regulation that applied directly to the oil and gas business.
(Tr. 361-62). � Mr. Britton opined that
Mr. Chavarria � was beneath the mast in
the area where the top of the mast was over the center of the hole and directly
below the block at the time of the accident during the raising and lowering
operation. (Tr. 377; C-44). From his review of the photographs and testimony,
he opined that Mr. Chavarria was hit by the cylinder, the blocks, or the
cables. [50] (Tr.
383-84). He also opined that the block, cables and cylinder (as part of the
mast arrangement) were suspended loads. (Tr. 384). He agreed with the Secretary  s counsel that it was his experience,
based upon background, education, training and the materials entered into
evidence, that the oil field industry is well aware and recognizes that
employees are exposed to struck-by hazards on the drill floor during rig-up
operations on a telescoping rig. (Tr. 404, 409).

������������������������������������������������������� Testimony
of Walter Smith

Mr. Smith has worked in oil drilling since 1972. He has been
a drilling manager with Big Dog for almost five years. He supervises
approximately 750 employees. He testified that in his opinion, the policies of
the various companies that Mr. Britton discussed were directed at pulling or
servicing units, and not drilling units. He further testified that to his
knowledge Rig No. 3 was bought as a rotary drilling rig. He explained the
difference. A pulling unit has a work floor mounted on the unit itself that
stays on the carrier at all times. When the unit is scoped up the floor is laid
down, and that floor, usually 6 or 8 feet square, is the work floor. A drilling
unit has a substructure that is designed as a totally separate piece. The
substructure, holding the rotary table area and the racking floor, is rated to
support a certain amount of weight. The mast of a drilling unit is transported
to the work site on a carrier. The substructure is transported to the site
separately on a hauling or rig-up truck. Mr. Smith stated that the written
materials referenced by Mr. Britton were directed at pulling units, and not
drilling rigs. (Tr. 418-25).

Mr. Smith described the two previous failures of Rig No. 3.
In the first, the flat piece of iron �
attached to the bottom of the ram had corroded and it gave way while the
rig was being raised, causing the ram to fail and bend. In December 2006, Crown
completely repaired and redid the mast and recertified it, at a cost of
$529,232.70. Crown recertified that Rig No. 3 was repaired to specifications
and, in Mr. Smith  s words, that it could  handle what it was originally designed
to handle.  In the second, the operator attempted to pull an 8 3/4 IB
into the rotating head with only a 7 7/8ths opening, which damaged the top legs
of the top part of the mast. [51] At the
time, Rig No. 3 was already rigged up and was not engaged in raising or lowering
the mast. The damaged mast did not fall below. In June 2007, Crown put a  brand new  mast, which included a new ram, on the
rig, and again recertified the rig, at a cost of $212,234.50. [52] The new
mast was heavier and could pull more weight during raising and lowering. Mr.
Smith described the new derrick as a 250,000 pound test pull derrick. Mr. Smith
chose the heavier mast to avoid a similar incident in the future and to add a
larger margin of safety to the rig. No one was injured in either incident, and
no changes were made in where employees were positioned on the floor during
rig-up. (Tr. 425-32; � 441-42, 457-58,
469-70; R-14, R-15).

Mr. Smith observed the video of Crown  s test of Rig No. 3 at the hearing. He
said that rig-up was  naked,  as there was no equipment such as the
block and drilling lines suspended from the mast, but he considered the top
part of the mast to be part of the load. He also said Big Dog tested the rig in
its yard after Crown delivered the rig. The test involved scoping up Rig No. 3
half way. The yard was too close to the airport to scope it up to its full
height, which cannot be done without advance notice to and permission from the
airport. The scope-up in the yard was done with as many lines on the mast as
possible, but there was no equipment like the block or counterweights on the
mast. After the test, Big Dog took the rig to the site. Mr. Smith was not
present at the time, but he knew the crew had scoped up the mast to its full
height the day before the accident. [53]
That scope-up included all of the equipment that was on the mast at the time of
the accident, except for the 200 to 300 pounds added to the counterweight
buckets just before the accident occurred. (Tr. 432-33, 458-60).

During cross-examination, Mr. Smith agreed, after reviewing
a photograph of Mr. Chavarria  s body, that he did not know where Mr.
Chavarria was standing at the time he was killed. He stated that he was
familiar with API standards and practices to some extent. He testified that he
was not familiar with any API standards that addressed where personnel should
or should not be standing on platforms during rig-up. Mr. Smith also stated
that he was unaware that Mr. Steele had said that the block came down and
caught Mr. Chavarria on the right side. Mr. Smith estimated that the rig floor
of Rig No. 3 was 18-20 feet wide and 15-18 feet long. (Tr. 419, 443, 447-51).

Mr. Smith said he believed that all personnel needed to be
safe and clear of any hazards and in their proper position before a mast or
derrick was raised. [54] He also
said there were always potential hazards up on the rig floor and that he and
Big Dog had been aware of the hazards of falling equipment before the accident.
In his view, the driller and tool pusher both needed to be up on the rig floor
for scope-up, and both were in a potential danger zone. He believed it was
necessary to have the driller on the floor of Rig No. 3 for scope-up and
indicated the job could not have been done as effectively from the ground. Mr.
Smith stated that Big Dog had not revised its policy as to where the driller
was located. That policy was for the driller to be on the far corner on the  off side  of the racking board, which was not
right in front of the mast. In that position, the driller could see both tool
pushers, communicate with everyone, and watch the mast. Mr. Smith noted that if
Mr. Chavarria had been where he was shown in the photos, he had been in the
wrong place and in harm  s way. He stated that Mr. Chavarria was
supposed to be further back from where his body was shown in photographs and
not out in the middle of the work floor. (Tr. 439, 456-57, 460-65; C-39, p.
254).

��������������� The
Secretary Has Met the First and Third Elements of her Burden of Proof

The first element the Secretary must show is that an
activity or condition in the employer  s workplace presented a hazard to
employees. Respondent asserts the Secretary  s citation does not even identify a
condition or practice. I disagree. The citation alleges that  employees were exposed to  struck-by  hazards on the drill floor during  rig-up  operations on a telescoping drilling
rig.  The evidence in this case shows that
as the mast was being scoped up, the ram failed and Mr. Chavarria was struck by
the ram, block, or cables, or a combination thereof. Mr. Ruth testified that
although he did not see what happened, he saw the ram to the left side of Mr.
Chavarria and the block to his right immediately after the accident. He also
testified he had no reason to believe the ram did not strike Mr. Chavarria and
that it was a  possibility  the block also struck him. (Tr.
165-66). Mr. Steele  s statement, taken July 20, 2007, indicates he saw the block
hit Mr. Chavarria on one side and the ram hit his other side. (C-34, p. 112).
Mr. Britton opined the ram or the block, or even cabling, had hit Mr.
Chavarria. (Tr. 383). The hazardous condition, therefore, was Mr. Chavarria  s exposure to being struck by equipment
as he stood on the rig  s floor while the mast was being scoped up. The citation
does not identify the specific items that struck or could have struck Mr.
Chavarria. However, I find that the citation sufficiently describes the hazard.
The Secretary has thus shown the first element. She has also shown the third
element that the hazard was causing or likely to cause death or serious
physical harm. This is so in view of Mr. Chavarria  s fatal accident and the certainty that
heavy equipment, like the ram and block, striking employees would cause death
or serious physical harm.

������������������ The
Secretary Has Not Met the Second Element of Her Burden of Proof

The second element is whether Respondent or its industry
recognized that the condition or activity was hazardous.

1. � Big Dog did not recognize at the time of the
   accident that having an employee standing on the racking board during scope-up
   operations was hazardous. ��

The parties agree that Mr. Chavarria was standing on the
racking board, the part of the rig floor farthest from the mast, at the time of
the accident. S. Brief, p. 3; R. Brief, p. 4. See also R-24A. They
disagree whether Big Dog recognized Mr. Chavarria  s location as a hazard. Mr. Ruth
testified Mr. Chavarria was about mid-center on the racking board. He indicated
he himself had stood in that location  hundreds of times  during scope-up operations when he was
a driller for other companies. He also indicated that being in that location
was standard procedure and how he and others in the industry were taught. (Tr.
77-78, 103-06, 118). Upon viewing the photographs at C-28, Nos. 64 and 49, Mr.
Ruth disagreed that Mr. Chavarria  s feet were  just a few feet  from the mast legs. He said the
driller  s console, where Mr. Steele was, was 8 to 10 feet from Mr.
Chavarria. [55] (Tr.
71-72, 163-67). Mr. Ruth also identified, on C-43, where Mr. Chavarria was,
where the drill floor and rotary table area were, and where the block was. He
said Mr. Chavarria was not  under the mast,  as that refers to the 3-foot space
between the mast and the drill floor where the rotary table area is. (Tr.
118-19, 136-38). He also said that, at the time of the accident, he did not
believe that someone working around the racking board area would be exposed to
being hit by materials suspended above should the mast fail. Prior to the
accident, he did not believe that it was dangerous to have someone on the
racking board during the scope-up process. Mr. Ruth had never seen a similar
accident before. (Tr. 78-79, 84, 103, 153, 163). Mr. Ruth stated that there is
still an employee on the racking board for scope-up on telescoping rigs. (Tr.
153-55, 162).

Mr. Sanchez testified that, before the accident, he and Big
Dog recognized that drilling rig moves were among the most hazardous tasks the
employees performed and that all personnel were to be completely and safely
clear before a derrick or mast was raised. However, he also testified he had
never before heard of an accident like the one involving Mr. Chavarria and it
had not occurred to him such an accident could happen. (Tr. 179-82).

Mr. Smith testified there were always potential hazards on
the rig floor and that he and Big Dog knew of the hazards of falling equipment
before the accident. He also testified he believed that all personnel needed to
be safe and clear of any hazards before a mast or derrick was raised. However,
in his view, both the driller and tool pusher had to be up on the floor and
both were in a potential danger zone. (Tr. 456, 460-65).

Based on C-43, R-24A and Mr. Ruth  s testimony, I find that the block was
not  right above  Mr. Chavarria  s work area, as the Secretary suggests.
S. Brief, p. 3. Rather, in view of the evidence, the block was basically above
the rotary table area, and beyond that was the racking board, where Mr. Chavarria
was. [56] See
C-43; R-24A. I also find that Big Dog did not recognize that having the driller
where Mr. Chavarria was located during scope-up operations was hazardous before
the accident. Mr. Ruth  s testimony made this clear, and I found him a credible and
convincing witness. I also found Mr. Sanchez a credible witness. He and Mr.
Ruth both indicated they knew of no similar accidents before the one in this
case and had not believed such an accident could have happened. [57] Mr.
Sanchez did testify that he and Big Dog recognized that rig moves were
hazardous and that all persons must be completely and safely clear before a
derrick or mast is raised during drilling rig moves. These provisions are in
Big Dog  s safety policy. See C-39, p. 254. However, as I read
the provisions, they are not specific enough to show that Big Dog recognized,
before the accident, that Mr. Chavarria  s location on the racking floor during
Rig No. 3  s scope-up was dangerous. [58]
This is especially so in light of Mr. Ruth  s testimony.

Mr. Ruth was adamant that Mr. Chavarria  s feet �
were not  just a few feet  from the mast legs. He also said the
driller  s console, where Mr. Steele was, was 8 to 10 feet from Mr.
Chavarria. (Tr. 71, 163-67). I have already found Mr. Ruth to be a credible
witness, and no one testified specifically how far Mr. Chavarria was from the
mast when the accident occurred. I find Mr. Ruth  s testimony to be the most reliable
evidence regarding the location of Mr. Chavarria due to his familiarity with
Rig No. 3 and his viewing the scene right after the accident took place. [59] This
finding supports my conclusion that Big Dog did not recognize Mr. Chavarria  s location on the racking board to be a
hazard.

2. � The Secretary did not prove that the industry
   recognized that having an employee on the racking board during scope-up
   operations was hazardous.

Turning to industry recognition of the cited hazard, Mr.
Britton, the Secretary  s expert, testified there was  no question in [his] mind  that the industry recognized that
employees working up on the rig floor where Mr. Chavarria was were exposed to
the hazard of being struck by equipment during scope-up. (Tr. 289). His opinion
was based on his experience and the numerous industry manuals he discussed. [60] However,
Mr. Britton  s opinion does not hold up under scrutiny. He said Rig No. 3
was a small pulling or well servicing unit that had been converted to a
drilling unit by the addition of a completely separate drill floor. � He also said that such a unit before
modification had a small floor that was attached to and part of the carrier.
While it had a separate drill floor after it was converted, the word  carrier  still included the separate drill
floor. (Tr. 260-70). Even assuming Rig No. 3 was a converted well servicing
unit, I do not agree. First, Mr. Britton provided no persuasive reasons for
concluding that for a converted rig, the word  carrier  included the separate drill floor and
racking board. Second, the Pool and Key manuals, discussed supra ,
essentially prohibit persons being on the carrier or under the mast or derrick
as it is raised or lowered. (C-6, p. 32, C-11, p. 6-39). � Third, the Schramm manual, also discussed supra ,
requires all persons to the rear and sides of the mast or derrick to be cleared
before it is raised or lowered. � (C-9).
Taken together, these manuals indicate the industry prohibits being on or to
the sides or back of the carrier when a mast or derrick is being raised. [61] These
three manuals do not prohibit employees from standing mid-center on the racking
board during scope-up operations involving telescoping rigs. Mr. Britton
admitted the Schramm manual did not say to clear persons from the front of the
carrier. (Tr. 341-42). He also admitted that Rig No. 3 was a drilling rig and
that some of the manuals he relied on applied to servicing rigs. (Tr. 307,
326). His opinion, that the word  carrier  used in the manuals included a
separate floor like the one on Rig No. 3, is rejected. Stated another way, the
above provisions in the Pool, Key and Schramm manuals do not apply to the
accident in this case.

Mr. Britton also opined that excerpts from the manuals
prohibiting being under loads were relevant to this case. One of these, from
the PETEX manual noted supra , states:

Never walk or stand
under anything being lifted. Use tag lines to guide a load. When loads are
being hoisted there is always the possibility that a line may slip or break;
objects may fall from above; and, broken lines can whip about dangerously.

(C-10,
DOL 108). Mr. Britton indicated these provisions showed industry recognition
that Mr. Chavarria  s location, under suspended loads, was hazardous. (Tr. 275).
On cross-examination, however, he agreed these and similar provisions did not
mention being on a rig floor, raising a mast or derrick, or rigging up or down. [62] (Tr.
327-38). � For example, C-2, C-3, and C-16
do not address workers being on the rig floor. (Tr. 357; C-2, C-3, C-16). ���

Mr. Britton also believed the manual provisions that
prohibited being on or under the mast were relevant. (Tr. 275-80, 283-84). The
record in this case shows Mr. Chavarria had not been  on  the mast. (Tr. 316, 356). Further, Mr.
Ruth testified, as noted above, that  under the mast  refers to the 3-foot space between the
mast legs and the drill floor. I have found Mr. Ruth a credible witness, and I
find that Mr. Chavarria was not  under the mast  at the time of the accident. Based on
the record, and particularly on Respondent  s cross-examination, I conclude Mr.
Britton  s opinions are not supported by the manuals he discussed.
(Tr. 314-16, 326-42, 354-60).

The most serious blow to Mr. Britton  s opinion was C-27, the DVD showing
Crown  s rig-up of Rig No. 3 after the mast
and ram were replaced in June 2007. Mr. Britton  s testimony about C-27 is set out in
full earlier in this decision. C-27 shows Crown had an individual up on the rig
floor as the mast was being raised from the carrier, as the top part of the
mast was being scoped up, and as the mast was lowered back down onto the
carrier. [63] Mr.
Britton testified that Crown, the rig  s manufacturer, should have followed
industry practice and not had anyone on the floor during these activities,
except the person operating the scope-up controls. Mr. Britton admitted someone
had to be up on the floor to pin the mast legs to the rig floor and to then
unpin the legs before the mast was lowered back down to the carrier. He noted,
however, that the scope-up shown in C-27 began while the person was still pinning
the legs, which was improper. He also noted that the person who unpinned the
legs stayed on the floor while the mast was being lowered, which was also
improper. In addition, the person who appeared on the carrier as the mast was
almost back in place should not have been there. Mr. Britton indicated he
planned to discuss C-27 with Crown. (Tr. 305-26, 389-400).

In my view, C-27 thoroughly undermines Mr. Britton  s opinion that no one should be on the
rig floor during scope-up, except for persons essential to the operation, i.e. ,
those operating the controls on either side of the mast. That Crown, the rig  s manufacturer, had an employee pinning
the legs right under the mast at the same time scope-up was occurring convinces
me, along with the other � evidence in
this case, that the industry did not recognize that Mr. Chavarria  s location at the time of the accident
was hazardous. [64] For these
reasons, and all of those stated supra , I conclude the Secretary has not
met her burden of proving that Big Dog or its industry recognized the cited
condition as a hazard.

������������������� The
Secretary Has Not Met the Fourth Element of Her Burden of Proof

The fourth element the Secretary must prove is that there were
feasible means to eliminate or materially reduce the hazard. The means of
abatement set out in the citation is:

[to comply] with API
Recommended Practice 54, Third Edition, April 1999, titled  Recommended Practice for Occupational
Safety for Oil and Gas Drilling and Servicing Operations,  which states in Section 9, Paragraph
9.2.9,  Only personnel required to carry out
the operation shall be allowed in or under the mast unless it is in the fully
raised or lowered position. No one other than the operator should be allowed on
the carrier platform in the derrick or under the mast until well servicing
units are fully scoped, raised, or lowered. 

As Respondent notes, API Recommended Practice 54 (  R.P. 54  ) has a definitions section � that defines the terms  drilling rig  and  well servicing rig,  as follows:

3.1.33 � drilling rig: �
Equipment and machinery assembled primarily for the purpose of drilling
or boring a hole in the ground.

�
��������� 3.1.111 � well servicing rig: Equipment and
machinery assembled primarily for the purpose of any well work involving
pulling or running tubulars or sucker rods, to include but not be limited to
redrilling, completing, recompleting, workover and abandoning operations.

See C-1A, pp. 4, 7. As Respondent also
notes, section 9, paragraph 9.2.9, of R.P. 54, by its own terms, applies only
to  well servicing units.  R. Brief, p. 16. I agree. The citation
sets out the terms of section 9, paragraph 9.2.9, verbatim. The fact that  well servicing units  are specified in the final sentence of
paragraph 9.2.9 persuades me that paragraph applies to well servicing units and
not drilling units. This is so even though section 9 applies generally to both
drilling rigs and well servicing rigs, because the latter are specified in
paragraph 9.2.9. See C-1A, pp. 4, 7, 16.

As Respondent further notes, even if paragraph 9.2.9 does
apply to Rig No. 3, the record shows that Big Dog complied with the terms of
that paragraph. R. Brief, pp. 16-17. As set out supra , Mr. Ruth
testified that no one should be on the carrier when the mast is raised to
vertical because, if the hydraulic equipment fails, the mast can fall and
injure someone. He also testified that no one should be in the rotary table
area during scope-up because, if there is equipment failure, the block or ram
can fall in that area. Mr. Ruth explained that the rotary table area is the
3-foot area between the legs of the mast and the drill floor and that that is
the only part of the drilling rig that is actually under the mast. Mr. Ruth stated
that if someone were to say that Mr. Chavarria was  under the mast  at the time of the accident, that
person would be wrong. He also stated that Mr. Chavarria was not on the carrier
platform on the day of the accident. (Tr. 118-21, 136-41,147, 168; C-28, No.
49, C-43, R24A). I have found Mr. Ruth a credible witness. On the basis of his
testimony, I agree with Respondent that Big Dog was in compliance with the
terms of both sentences contained in paragraph 9.2.9.

Although it is not necessary to reach this issue, I address
whether Mr. Chavarria was a person  required to carry out the operation  such that he had to be up on the rig
floor during scope-up on July 20, 2007. Mr. Ruth testified that Mr. Chavarria
had to be on the racking board to watch the lines and to watch the mast as it
went up, and to watch the stabilizer bars and the board as it folded out as the
mast went up. He also had to be there to communicate with the tool pushers. Mr.
Ruth said that although the driller  s job could be done from the ground, it
would not be as effective. The driller has the best view of the mast, cables
and lines from the racking board. If a cable or line gets caught, or if there
is a problem with the mast, the driller is in the best position to see it and tell
a tool pusher before the problem becomes a hazard. He also said it can be more
dangerous to not have a driller up on the racking board. If a cable or line
catches on something, it can have a slingshot effect and rip a board or
equipment off the rig that can strike someone on the ground. Mr. Ruth stated
that being on the ground is not necessarily safer than being on the racking
board. When a mast failure occurs, there is no way to tell which way or where
it will fall. The tool pusher on the controls or a rig hand in another area of
the rig can just as easily be hit by the mast if it fails. (Tr. 92-99, 107-08,
132). Mr. Smith also believed � it was
necessary to have the driller on the floor for scope-up on Rig No. 3. He
indicated the job could not have been done as effectively from the ground. (Tr.
460-62). See also R. Brief, pp. 18, 21-22. Based on the evidence of
record, I conclude that Mr. Chavarria, in working on the racking board of the
rig floor during scope-up, � was a person  required to carry out the operation  on July 20, 2007.

In reaching this conclusion, I have noted the Secretary  s contrary assertions. I have
considered the Secretary  s arguments in this regard and find
them unpersuasive. In particular, I have considered the Secretary  s implying that after the accident, Mr.
Ruth no longer had anyone on the rig floor where Mr. Chavarria had been and
that he now puts the driller on the ground and has successfully scoped up rigs
like Rig No. 3 that way. S. Brief, pp. 19-20. However, as set out supra ,
Mr. Ruth  s testimony was that while no one stands now where Mr.
Chavarria was at the time of the accident, Big Dog still has an employee on the
racking board for scope-up. (Tr. 153-55, 162). Mr. Smith explained that Big Dog  s policy was for the driller to be on
the racking board, but not right in front of the mast. (Tr. 462-64). Mr. Ruth  s testimony indicates that while he and
others had discussed, after the accident, putting the driller on the ground for
scope-up, the policy instead changed as to where the driller stood on the
racking board. [65] (Tr. 88,
153-55, 162).

For all of the foregoing reasons, I find that the Secretary
has not demonstrated the fourth element of her burden of proof. Because the
Secretary has not met two of the elements necessary to prove a violation of the
general duty clause, the citation is vacated. [66]

������������������������������� FINDINGS
OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes my findings of fact and conclusions
of law in accordance with Federal Rule of Civil Procedure 52(a).

����������������������������������������������������������������������� ORDER

Based upon the foregoing findings of fact and conclusions of
law, it is ordered that:

1. Serious Citation 1, Item 1, alleging a violation of
   section 5(a)(1) of the Act, is VACATED in its entirety.

_/s/________

The Honorable Dennis
L. Phillips

U.S. OSHRC Judge ���

Dated: November 01,
2009

� Washington, D.C.

[1] The general duty clause requires that each employer
�furnish to each of his employees employment and a place of employment which
are free from recognized hazards that are causing or are likely to cause death
or serious physical harm to his employees . . . .� � 29 U.S.C. � 654(a)(1).

[2] Because we find that the record evidence establishes
industry recognition, we need not reach the issue of whether Big Dog itself
recognized the struck-by hazard. � See Kokosing Constr. Co. , 17 BNA
OSHC 1869, 1873, 1995-1997 CCH OSHD � 31,207, p. 43,725
(No. 92-2596, 1996) (�Hazard recognition may be shown by either the actual knowledge of the employer or the standard of knowledge in the employer�s industry
. . . .� (emphasis added)); cf.
Coleco Indus., Inc. , 14 BNA OSHC 1961, 1964, 1991-1993 CCH
OSHD � 29,200, p. 39,071 (No. 84-546, 1991) (noting that because
Commission found that Secretary established employer recognition, it need not
address whether she established industry recognition).

[3] The Commission�s briefing notice raised two threshold
issues to this inquiry: whether the judge found Britton�s testimony unreliable
or irrelevant under the �gatekeeping� requirement of Federal Rule of Evidence
702 and, if so, whether the Commission should apply an abuse of discretion
standard to review that finding. � See Fed. R. Evid. 702 (2008) (�If
scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.�); Daubert v. Merrell Dow Pharm., Inc .,
509 U.S. 579, 589 (1993) (federal district court judge must serve as
�gatekeeper� to �ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable� ); Kumho Tire Co. v. Carmichael , 526 U.S.
137, 149 (1999) (extending the court�s gatekeeper function to all expert
testimony). � In determining the relevance
and reliability of an expert�s testimony for purposes of admissibility under
Rule 702 and Daubert , a court�s focus
�must be solely on principles and methodology, not on the conclusions that they
generate.� � Daubert , 509 U.S. at 595.

As to the first issue, we note that Big Dog never
invoked Rule 702 or otherwise objected before the judge to Britton testifying
as an expert. � In addition, the judge
never found�implicitly or explicitly�that Britton�s testimony was
inadmissible. � Rather, he found that
Britton�s conclusions were outweighed by other evidence in the record, as
discussed infra . � Under these circumstances, we do not reach
the second issue regarding the standard of review under Rule 702.

[4] For
example, a manual from the Pool Company states: �All persons, except the Crew
Chief, shall stay clear of the carrier while the derrick is being raised,
lowered or telescoped up or down . . . . � No one is to be allowed in the derrick while
it is being raised, lowered or telescoped up or down .� � (emphasis omitted).

[5]
Similarly, we reject the judge�s finding that other manuals pertaining to
�service rigs� are inapplicable to the rig at issue in this case in light of
Britton�s unrebutted expert testimony that there is no relevant distinction
between unconverted service rigs and drilling rigs with regard to the struck-by
hazard posed by the mast and its suspended equipment. � Likewise, the judge�s finding�that manuals
prohibiting worker exposure �when a mast or derrick is being raised� are
inapplicable because they do not address �scope-up operations involving
telescoping rigs��is directly contradicted by Britton�s testimony. � Britton testified that such prohibitions are
indeed applicable to telescoping rigs. �

[6] The
judge also found inapplicable certain manuals with provisions prohibiting
employees from working under suspended loads because Britton acknowledged that
these provisions do not mention being on a rig floor, raising a mast or
derrick, or rigging up or down. � But
Britton did not claim that these manuals specifically address such conditions. � Rather, he testified that the manuals reflect
the industry�s recognition that, as a
general principle , being under suspended loads is hazardous.

[7] We note that
the judge neither compared the two witnesses� experience nor addressed
Britton�s credibility�he simply noted that Ruth was �a credible witness.� � This credibility determination was not
supported by demeanor-based findings, and therefore we do not defer to it. � See
Metro Steel Constr. Co ., 18 BNA
OSHC 1705, 1706-07, 1999 CCH OSHD � 31,802, pp. 46,666-67
(No. 96-1459, 1999) (Commission is �in as good a position as the judge to
determine the facts� given a credibility determination not based on demeanor or
other factors �peculiarly observable by the judge�); All Purpose Crane, Inc. , 13 BNA OSHC 1236, 1240,
1986-1987 CCH OSHD � 27,877, p. 36,550 (No. 82-284, 1987) (rejecting
judge�s decision as Commission is �in as good a position as the judge to
evaluate the qualifications of the experts and weigh their testimony�).

[8] The citation also states
that �[n]o one other than the operator should be allowed on the carrier platform
. . . or under the mast until well servicing units are fully scoped,
raised, or lowered.�

[9]
In rejecting the Secretary�s proposed abatement method, the judge faulted her
for relying on a work rule from American Petroleum Institute (�API�) Recommended
Practice 54, � 9.2.9 (3rd ed. 1999) (�� 9.2.9�) that refers only to
�servicing units,� which he found rendered the rule inapplicable to Rig No.3,
as it is a drilling rig and not a servicing rig. � We disagree. �
Although the Secretary does assert that the practice embodied in this
work rule would constitute a feasible means of abatement if implemented here,
she does not argue that API�s adoption of the rule is evidence of its
feasibility on a drilling rig. � And regardless
whether API intended � 9.2.9 to apply only to servicing rigs, the
Secretary need only show, as she has done here, that her proposed abatement
method is �capable of being done.� � Beverly Enters. , 19 BNA OSHC at
1191, 2000 CCH OSHD at p. 48,981.

[10]
Big Dog contends it lacked notice of
the abatement method the Secretary asserts on review�restricting unnecessary
personnel from being anywhere on the rig floor during scoping. � None of the arguments Big Dog makes in
support of its claim have merit. �
According to Big Dog, the Secretary never effectively amended the
citation because her motion to amend sought only to �clarify� the originally
proposed abatement��insuring no personnel
is [sic] on the drill floor when telescoping the mast.� � (emphasis added). � But this ignores the plain language of the amended
citation, as approved by the judge, which specifically limits the restriction
to �personnel [not] required to carry out the operation� and
�non-operators.� � See Fed. R. Civ. P. 15(a)(2) (allowing for liberal amendment of
pleadings); 29 U.S.C. � 661(g)
(Federal Rules of Civil Procedure apply to Commission proceedings unless
Commission adopts a different rule); see
also Gen. Dynamics Land Sys. Div., Inc. , 15 BNA OSHC 1275, 1279,
1991-1993 CCH OSHD � 29,467, p. 39,751 (No. 83-1293, 1991) (OSHA
citations �are to be liberally construed and easily amended�), aff�d , 985 F.2d 560 (6th Cir. 1993)
(unpublished).

Big Dog further asserts it lacked notice that
the Secretary�s proposed abatement applied to the entire rig floor because the
restriction applied only �under the mast� or �on the carrier platform,� and was
applicable only to service rigs. �
However, the Secretary made clear at the hearing that the abatement she
sought applied to the entire rig floor, regardless of rig type. � As discussed above, she elicited testimony
from Britton in her case in chief that the term �under the mast� encompassed
the entire rig floor and that, with respect to working surfaces, a drilling
rig�s floor is the functional equivalent of a service rig�s �carrier platform.�

Finally, as the evidence discussed above shows, the parties clearly
litigated the issue that is on review: whether positioning the driller on the
ground instead of the rig floor during scoping would feasibly and materially
reduce the struck-by hazard. � See Fed. R. Civ. P. 15(b)(2) (�When an
issue not raised by the pleadings is tried by the parties� express or implied
consent, it must be treated in all respects as if raised in the pleadings. � A party may move�at any time, even after
judgment�to amend all the pleadings to conform them to the evidence and to
raise an unpleaded issue. � But failure to
amend does not affect the result of the trial of that issue.�); KS Energy Servs., Inc. , 22 BNA
OSHC 1261, 1263, 2004-2009 CCH OSHD � 32,958, p. 53,921
(No. 06-1416, 2008). �

[11] The video in evidence establishes that scoping up Rig
No. 3�s mast without any weights takes approximately two minutes.

[12] The
carrier is the truck (mobile 18-wheeler), or moving device, that brings the rig
to the site. � (Tr. 109-10, 257-58).

[13] R-24A
is a photo of another of Big Dog  s
rigs, Rig No. 25, which is the same type of rig as Rig No. 3. R-24A shows the
carrier platform with the mast lying on it. It also shows the floor of the rig,
which consists of the  drill
floor 
and the  racking
board. 
Additionally, it shows the  dog
house, 
the blue structure on the rig floor that has the rig  s
number on it. (Tr. 108-18).

[14] C-27
is a DVD showing the rig-up of Rig No. 3. Crown Energy, the rig  s manufacturer, made the video
after making repairs to the rig in June 2007. These repairs consisted of
replacing the existing mast, and the hydraulic ram, with a new mast and ram.
(Tr. 79, 102, 429-33; R-15).

[15] C-28,
No. 61, is a photograph showing the front of Rig No. 3 right after the accident.
Mr. Ruth identified where he and the others were when the accident took place.
(Tr. 69-77, 93-94, 125-28).

[16] Mr.
Ruth indicated that being in that location was how he and others in the oil
industry were trained. He also indicated he personally trained the employees
who worked on his rigs and that to be a driller, like Mr. Chavarria was, an
employee had to work at least a year to a year and a half on the same rig. He
further testified that Big Dog was following the industry practice by having
Mr. Chavarria on the racking board during the scoping operation. (Tr. 77-78,
97, 124).

[17] Mr.
Ruth identified the four companies as: 1) Key Energy, 2) Rowley Drilling
Company, 3) Fairmore Drilling, and 4) J.C. Wells Service. He testified that
during the scope-up of these rigs, these other companies always had a man on
the racking board. (Tr. 105-106; R-38).

[18] Mr.
Ruth agreed that while Mr. Steele had also been exposed to the overhead block,
other crew members were not as exposed to equipment collapsing as Mr. Chavarria
had been. (Tr. 134-38).

[19] In
that instance, according to Mr. Ruth, the ram was not bent out as it was in
this case, as shown in C-28, No. 62.

[20] Mr.
Ruth testified that Rig No. 25 was another telescoping rig owned by Respondent.
(Tr. 113).

[21] Mr.
Ruth stated that Mr. Chavarria was not under the mast at the time of the
accident. (Tr. 121, 123).

[22] Mr.
Ruth said C-28, No. 49, showed the rotary table area. It also showed the
controls, where Mr. Steele had been, which were 8 to10 feet from Mr. Chavarria. � (Tr. 139-41, 163-64).

[23] Mr.
Ruth testified that the blocks are kept as low to the rig floor as possible
during scope-up of the top section of the mast. He stated that the block was
not suspended above the area of the rig floor where Mr. Chavarria was working.
Mr. Ruth said the block was suspended about 6 feet off the floor during the
scope-up of the top section of the mast. Messrs. Ruth and Steele were operating
the raising controls and brake, respectively, to maintain the block  s 6-foot height. As Mr. Ruth was
scoping the derrick up, Mr. Steele was releasing the brake drum keeping the
blocks about 6 feet off the rig floor. He marked an  L  on C-28, No. 61, to indicate
where the block was before it fell. (Tr. 132-33,162, 164).

[24] The
board was the platform located halfway up the mast. � (Tr. 86-87). �

[25] Mr.
Ruth agreed he had said in his statement to OSHA, when asked if scoping up
could be done as effectively with no one on the rig floor,  Yeah, I think so.  He indicated he no longer
agreed with that statement at the hearing. (Tr. 156-60).

[26] Mr.
Sanchez stated that because of the potential dangers on the rig floor during
scope-up, the number of employees allowed up on the floor was kept to a
minimum. He acknowledged changing his November 8, 2007 deposition testimony by
adding on August 22, 2008 that he could not  say
that the [sic] just the rig floor is dangerous because the entire oil field is
dangerous. 
(Tr. 185-93, 201; R-26, at p. 115).

[27] Mr.
Sanchez indicated he was more familiar with conventional rigs, which he called  jackknife rigs.  He noted that such a rig does
not have the hazard of the mast sliding down inside itself like a telescoping
rig does. (Tr. 182-85).

[28] Mr.
Sanchez testified that he had never seen any OSHA regulation that related to
procedures to be followed to rig-up a telescoping rig like Rig No. 3. (Tr.
198).

[29] Mr.
Britton was found to be a qualified expert as proffered by the Secretary. (Tr.
292).

[30] Mr.
Britton did not determine the actual cause of the accident in this case. (Tr.
236-37).

[31] Mr.
Britton testified that, in this instance, the block fell toward the V-door and
back toward the mast. (Tr. 233; C-28, No. 63, C-44). �

[32] Mr.
Britton said the area he circled on C-44, which was the  zone
of danger 
on the rig floor, did not include the legs of the mast. (Tr. 321).

[33] Mr.
Britton stated that his testimony would address the industry standards
addressing  suspended
load problems.  � He explained that suspended load problems
pertained to temporary arrangements that included anything being lifted temporarily
during rigging up. He said that once a rig is rigged up it was appropriate for
people to be on the rig floor under suspended loads. He also said that  we  re
kind of splitting hairs 
on whether a worker can be on a rig floor and not be under a suspended load, or
whether an area is a drill floor and not a rig carrier. (Tr. 244-47).

[34]
During cross examination, Mr. Britton admitted that a paragraph in the Pool
Manual, Derrick , No.12, at DOL 83-84, did not address where workers were to be
located during rigging up or telescoping the derrick. (Tr. 339-340; C-6).

[35] Mr.
Britton agreed that the referenced provision of C-11 did not mention scoping.
(Tr. 355; C-11).

[36] Mr.
Britton agreed that the manual does not say to clear personnel from the front
of the mast before raising the mast and reiterated his position that no one can
predict or predetermine where a struck-by hazard was going to go in the event
of a failure. � (Tr. 341-342).

[37] PETEX
refers to the Petroleum Extension Service of the University of Texas and the
International Association of Drilling Contractors. These entities write the
manual. (Tr. 273-74).

[38] Other
manuals also prohibit being in the derrick when the derrick is being raised,
lowered or telescoped up or down, and for all, except the crew chief, to stay
clear of the carrier while the derrick is being scoped up or down. See, e.g. ,
 Sundown Operating, Inc., Wilson
Operating, Inc., Employee Handbook & Safety Manual, 
undated, C-13, DOL 119.

[39] The
Corsair manual pertains to a well-servicing rig. � (Tr. 355; C-11, DOL 195).

[40] Mr.
Britton defined  under
the mast 
as including the area within the four legs of the mast where attached to the
drill floor, as well as the area beneath the tilted crown directly over the
center of the drilling floor. (Tr. 277-78).

[41] Mr.
Britton first said Stewart was the manufacturer of Rig No. 3. He later
indicated that it was Crown Energy (  Crown  ). Later still, he indicated
that Stewart had bought out Crown at some point. (Tr. 284, 305-06, 309-10,
312-14, 325-26). See also R-14, R-15. In this decision, the rig  s fabricator and manufacturer is
referred to as Crown.

[42] The
handbook  s
disclaimer states that the recommended practices are not mandatory.

[43] Mr.
Britton opined that the equipment failure may have been caused by stabilizers
not working properly.

[44] Mr.
Britton stated that Rig No. 3 was, at one time, a filling unit or
well-servicing unit that had been since modified to be a drilling rig. (Tr.
306-07).

[45] Mr.
Britton explained that Rig No. 3 as shown in the video, was not rigged up with
blocks, tongs, or counterweight buckets. (Tr. 396-400; C-27).

[46] Mr.
Britton noted that C-27 showed the two sets of  stabilizer
arms 
that come out on either side of the ram during scope-up. C-27 also showed the  dog, 
a latching mechanism that serves to hold the ram in place at the end of the
scope-up. (Tr. 314, 317-18).

[47] On
redirect, Mr. Britton changed his testimony to state that the person raising
the mast to vertical had to be on the carrier to operate the raising controls.
(Tr. 390-91).

[48] In
this instance, at the time of the accident, Mr. Steele was the tool pusher
operating the blocks and Mr. Ruth was the lead tool pusher at the controls
running the scoping cylinder. � (Tr. 58,
96, 125-26, 323).

[49] Mr.
Britton testified that he observed a driller by the mast leg on the rig floor
when a rig was rigged up for Exxon. � (Tr.
332).

[50] Mr.
Britton did not examine Rig No. 3 after the accident. � He also did not review the forensics, autopsy
of the decedent, or a good set of photographs. �
(Tr. 383-84).

[51] Mr.
Smith indicated the operator was disciplined after the incident. (Tr. 432).

[52] These
recertifications were in accordance with API standards and regulations. (Tr.
442).

[53] Mr.
Smith was also not there for Crown  s
rig-up of Rig No. 3 or Big Dog  s
test in the yard. He indicated he was familiar with telescoping rigs, but he
agreed that he had never actually worked on one. He also agreed that, in his
statement to OSHA, he had indicated he was not that familiar with such rigs. He
said he had been on Rig No. 3  s
floor many times. (Tr. 436-39, 466).

[54] The
Safety Policy of Acme Energy Services, Respondent  s
parent company, states that  It
shall be the responsibility of the Contractor  s
operator to ensure that all personnel are completely and safely clear before a
derrick or mast is raised or lowered. 
(Tr. 455-56; C-39, p. 254). �

[55] At
the hearing, the Secretary suggested the rig floor was only 6 to 8 feet square.
Mr. Smith disagreed, estimating it was 18 to 20 feet by 15 to 18 feet. (Tr.
450-51, 457). Mr. Britton himself estimated the floor to be 10 by 12 feet or
larger. (Tr. 230-31). Upon viewing C-28, No. 61, and considering all of the
testimony, I conclude that Mr. Smith  s
estimate was the most accurate.

[56] Mr.
Britton  s
testimony also shows that the block hung over the hole, or rotary table area.
(Tr. 225-26).

[57] In
this regard, I have noted Mr. Ruth  s
testimony that the two prior incidents involving Rig No. 3 were not the same as
the accident in this case. I have also noted Mr. Smith  s
testimony concerning the two prior incidents. (Tr. 100-01, 425-32, 457-58,
469-70). I find that the two prior incidents do not establish Big Dog  s recognition of the cited
hazard.

[58] This
finding is supported by the discussion that follows as to industry recognition.

[59] Mr.
Britton indicated on C-44, his sketch of the rig floor, the two locations where
he thought Mr. Chavarria could have been based on other witness testimony and
the photographs of Mr. Chavarria after the accident. (Tr. 226-33). One of these
location shows Mr. Chavarria lying just to the left of the hole. Mr. Britton
conceded his sketch was not to scale and that it represented approximations,
especially as to Mr. Chavarria  s
location. (Tr. 306). I find that Mr. Chavarria was not lying just to the left
of the hole, in view of the creditable evidence of record.

[60] Several
of the materials are undated. See C-9, C-13, C-15, C-17, and C-19.
Several of them were published more than 20 years ago. See C-6, C-12,
and C-14.

[61] Mr.
Ruth explained this is so as the mast is raised hydraulically. If the
hydraulics fail, the mast can fall and injure someone. (Tr. 147-48).

[62] Mr.
Britton tried to show that one of these provisions was relevant to this case,
in that Mr. Steele was using the controls to raise the block. His effort was
not persuasive. (Tr. 335-38).

[63] Mr.
Britton initially said the person on the carrier should not have been there as
the carrier was being raised. On redirect, he changed his testimony to state
that that person had to be there to operate the raising controls. (Tr. 308-10,
390-91). Also, in view of Mr. Ruth  s
testimony, Mr. Ruth evidently scoped up the mast from an area back behind the
mast and not from any controls on the floor.(Tr. 119-21). And, while it is
unclear from C-27, it appears the person on the floor may have used the driller  s controls to lower the mast to
the carrier. (Tr. 321).

[64] This
is so even without equipment such as the block being suspended over the floor,
as Mr. Britton conceded that the ram in C-27 could have failed and struck the
person on the floor as the mast was being scoped up. (Tr. 312).

[65] As
noted supra , in footnote no. 14, Mr. Ruth agreed he had said in his
statement to OSHA, when asked if scoping up could be done as effectively with
no one on the rig floor,  Yeah,
I think so. 
He indicated he no longer agreed with that statement at the hearing. He also
indicated that at the time he made that statement he had been working on a
different type of rig and not on Rig No. 3. (Tr. 156-60).

[66] In
vacating the citation, I am very aware of the tragic accident that resulted in
the death of Mr. Chavarria. I am also aware of the testimony of all of the
witnesses that working up on the rig floor during scope-up can be hazardous.
However, in this particular case, the Secretary simply failed to meet her
burden of proof with respect to the alleged section 5(a)(1) violation.