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, the 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

[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.

OSHRC Docket No. 08-0088

DECISION