Basic Energy Services, LP

Plain-English summary

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

Decision snapshot

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

Full text (OSHRC public release)


Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Com plain ant,

v.   

BASIC ENERGY SERVICES, LP,

Respondent.

DOCKET NO.
   1 6 - 0367

Appearances:

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

For Complainant

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

For Respondent

Before: A dministrative Law Judge
Brian A. Duncan

DE CISION AND ORDER

Procedural History

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

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

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

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

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

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

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

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

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

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

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

Jurisdiction
& Stipulations

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

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

Factual
Background

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Tr. 426).

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

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

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

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

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

The inspection was
limited.

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

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

Discussi on

Citation 1, Item 1

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

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

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

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

Citation and Notification of Penalty
at 6.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Respondent and Its Industry Recognized the Hazard

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

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

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

Respond e nt and its industry clearly recognized this hazard.

The
Hazard Caused
Serious Injury
and
Death

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

Complainant Established Feasible Means to Abate
t he Hazard

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

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

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

Respondent’s Employees Were
Exposed
to
a
Hazard

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

Respondent Had Knowledge of the Violation

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

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

Respondent Failed to
Prove the Affirmative Defense of
Unpreventable Employee Misconduct

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

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

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

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

Penalty

In calculating appropriate penalties for affirmed violations, Sectio n 17(j) of the Act requires the Commission give due consideration to f our criteria:
(1) the size of the employer’s business ,
(2) the gravity of the violation, (3) the good faith of the employer, and (4) the employer’s prior history of violations. Gravity
is the primary consideration and is determined by the number of employ ees exposed, the duration of the exposure, the precau t ions taken against injury, and the likelihood of an actual injury.
J.A. Jones Construction Co. , 15 BNA OSHC 2201 (No. 87-2059, 1993) . It is well established that the Commission and its judges conduct
d e novo
penalty determinations and have full discretio n
to assess penalties based on the facts of each case and the applicable statutory criteria. Valdak Corp ., 17 BNA OSHC 1135 (No. 93- 0239, 1995);
Allied Structural Steel , 2 BNA OSHC 1457 (No. 1681, 1975) .

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

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

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

O RDER

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

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

/s/
Brian A. Duncan

Judge Brian A. Duncan

U.S. Occupational Safety and Health Review Commission

Date:    December
2, 2019

Denver, Colorado

"

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

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

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

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

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

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

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

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