UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

BRONCO OILFIELD SERVICES, INC.,

Respondent.

DOCKET NO. 16-0996

Appearances:

Christopher Lopez-Loftis, Esq., U.S. Department of Labor, Office of the Solicitor, Dallas, Texas

For Complainant

Michael H. Bagot, Jr., Esq., Wagner, Bagot & Rayer, L.L.P., New Orleans, Louisiana

For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Background

On January 29, 2016, Compliance Safety and Health Officer John Ammon conducted an

inspection of the Hardesty oil well site,1located in Grady County, Oklahoma. (Tr. 25). The

inspection included multiple employers working at the location, and was conducted under a

1

. The full identifier for the oil well is Hardesty IH-22-15, SC 22-10 N-6W.
regional emphasis program for upstream oil and gas activities, particularly those involving well

sites. (Tr. 41). CSHO Ammon identified this particular well site through the use of state agency

documents tracking well activity in a portion of the state near Grady County. (Tr. 41). The

Hardesty well belonged to Citizen Energy II, the production company. (Tr. 42). Citizen Energy

hired three contractors to conduct pre-frack testing on the well. (Tr. 43).

Bronco Oilfield Services, one of those contractors and the Respondent in this case, was

hired to provide water and pressurization equipment to perform a test frack of the Hardesty well.

(Tr. 44). A test frack provides information to the production company about how the well,

which had already been drilled, would be fracked in the future.2(Tr. 44, 182, 268–69). During a

test frack, water is pumped down the well until a sleeve is pushed down and the first fracking

zone is opened up. (Tr. 182). Once the zone was opened up, Respondent was to perform an

injection test and determine the well’s pump capacity. (Tr. 182).

The pre-frack process at the Hardesty well required Respondent to attach two 500-barrel

water tanks and two truck-mounted pumping units to the wellhead. (Tr. 50; Ex. R-3). One

pumping unit contained two pumps (Unit 8096) and the other contained a single pump (Unit

8082). (Exs. R-3, C-12 at 1–2). The two pumps on Unit 8096 were tied together into a single

pipeline close to the rear of the truck. (Ex. C-12 at 1). In turn, the merged pipeline from 8096

was tied into the pipeline running from Unit 8082. (Tr. 192; Ex. C-12 at 3). The resulting,

single, consolidated pipeline was then run to the wellhead and tied into the Christmas tree.3In

order to connect/disconnect to the wellhead Christmas tree, Respondent’s employees had to

reach across a well cellar (essentially a pit) surrounding the wellhead. (Tr. 328; Ex. C-12 at 7).

2

. According to CSHO Ammon, there are different approaches to fracking a well, which are dictated by the

information gleaned from pre-fracking activities. (Tr. 269).

3

. A Christmas tree is a series of valves mounted to the top of the wellhead to control the flow of hydrocarbons, and

other fluids, into and out of the well. (Tr. 268; Ex. R-36 at § 3.1.21).

2
All told, roughly 50 pieces of iron pipe were tied together on the ground between Respondent’s

pumps and the Christmas tree through a series of joints, valves, transducers, and flow meters.

(Tr. 177–78; Ex. C-12 at 3). This set-up process is known as “rigging up”. (Tr. 176).

After the pumps and pipe were rigged up, the crew performed a pressure test to ensure

the set-up was correct and the system was stable. (Tr. 178). The test required the crew to ensure

all valves were open along the pipe path to the well, and then power up the pumps to a predetermined level. (Tr. 279). In this case, the company man for Citizen Energy wanted pressure

testing conducted up to 9,500 psi.4It should be noted that Respondent’s equipment, inclusive of

the pumps and pipe, was rated to 15,000 psi. (Tr. 67, 216, 223-224). Due to the extreme high

pressure involved in the operation, Respondent implemented various measures to counteract

overpressure, including pop-off, or pressure relief, valves and kick-out gauges.

A pop-off valve is designed to “prevent over-pressuring of the lines and pump

equipment”, which it accomplishes by releasing pressure in the line at a pre-determined limit, in

this case 9,500 psi. (Tr. 138–39; Ex. R-5 at 2). A kick-out gauge, on the other hand, is a manual

gauge set by the operator on the control panel in the cab that will disengage the motor and

transmission of the pump once a pre-determined pressure level has been reached, thus preventing

the pressure from exceeding the pre-set limit. (Tr. 201; Ex. R-33). The kick-out gauge is

typically set to engage between 500 to 1000 psi lower than the pop-off valve and serves as the

“first-line defense for over-pressuring the iron” beyond the level set by the company man. (Tr.

201-202; Ex. R-33). On this particular set-up, Respondent’s field supervisor, Andrew Souza,

installed a single pressure relief valve for the three-pump system, but each pump was equipped

with its own kick-out gauge. (Tr. 315).

Respondent arrived at the Hardesty well on January 27, 2016, and was only scheduled to

4 pounds of pressure per square inch

3
be on-site for one day. However, due to problems experienced by another on-site contractor,

Respondent remained at the work site for two additional days. (Tr. 173, 182, 211). The

testimony provided by Davenport and Souza was somewhat inconsistent as to what

activities—breakdown, pressure test, rig up, rig down—occurred on which days; however, there

was no dispute that each of the listed activities was carried out between January 27 and January

29, 2016. Further, there was no dispute that the rigging set-up observed by CSHO Ammon was

the same throughout the relevant period. (Ex. R-3). According to the activity logs submitted by

Respondent, it appears that actual pumping activities occurred on January 27th and 28th. (Ex. R2).

After meeting with the Citizen Energy company man on January 29, 2016, CSHO

Ammon held an opening conference with Andrew Souza, Respondent’s site supervisor,

conducted a walk-around inspection of Respondent’s equipment, and interviewed pump operator

Cody Davenport. (Tr. 53–54; Exs. C-1, C-5). One of CSHO Ammon’s first observations was

that neither of the pumps on Unit 8096 had its own pressure relief valve; only Unit 8082 had a

pressure relief valve installed on its direct line. (Tr. 54). Further investigation revealed

additional pressure relief valves were available in the trailer adjacent to the pumping unit. (Tr.

56; Ex. C-12 at 4). CSHO Ammon also noted Respondent had installed whip-checks, or tiedowns, on the first sections of pipe that were directly connected to the pumps; however, none of

the other pipe between the pumps and the wellhead had been secured to the ground. (Tr. 63–65;

Ex. C-12). Finally, CSHO Ammon found the well cellar, which he measured as roughly 5–6 feet

deep and 8 feet across (with the Christmas tree in the center), was not protected with a guard or

cover. (Tr. 80; Ex. C-12 at 7).

Based on his observations, CSHO Ammon determined that Respondent violated the

4
general duty clause based on its failure to install a pressure relief valve for each pump being

used, and a failure to tie down the pipe sections to prevent their unintentional movement. CSHO

Ammon testified that each of these failures exposed Respondent’s employees to blunt force

trauma, lacerations, and potentially death as a result of overpressure resulting in a line or system

failure, which could result in shrapnel and exposure to contents under extremely high pressure.

(Tr. 67–68, 87). He also concluded that Respondent violated the walking/working surfaces

standard due to employees reaching over the unguarded well cellar to attach pipe to the

Christmas tree. As a result of CSHO Ammon’s investigative recommendations, OSHA issued a

Citation and Notification of Penalty (“Citation”) to Respondent, which alleged one serious

violation of the general duty clause (with three sub-instances), and one serious violation of 29

C.F.R. § 1910.22(c). Complainant proposed total penalties of $6,000.00 for the violations.

Respondent timely contested the Citation, which brought the matter before the United States

Occupational Safety and Health Review Commission (“Commission”) for adjudication pursuant

to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (“the

Act”).

A trial was conducted in Oklahoma City, Oklahoma on April 4–5, 2017. Before either

party presented evidence, Complainant withdrew instance (c) of Citation 1, Item 1. (Tr. 9).

Three witnesses testified at trial: (1) CSHO John Ammon; (2) Cody Davenport, Respondent’s

fluid pump operator;

5 and (3) Andrew Souza, Respondent’s field supervisor. Both parties timely

submitted post-trial briefs for the Court’s consideration.

Jurisdiction & Stipulations

The parties stipulated that the Commission has jurisdiction over this proceeding pursuant

to Section 10(c) of the Act. (Tr. 24–25). The parties also stipulated that, at all times relevant to

5

. By the time of the hearing, Mr. Davenport had been promoted to a supervisor. (Tr. 171).

5
this proceeding, Respondent was an employer engaged in a business and industry affecting

interstate commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5).

(Tr. 24–25). See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).

Discussion

Citation 1, Item 1

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

OSH ACT of 1970 Section 5(a)(1): The employer did not furnish employment and a

place of employment which were free from recognized hazards that were causing or

likely to cause death or serious physical harm to employees in that employees were

exposed to struck by hazards:

Southwest side of the wellhead: On or about January 29, 2016, employees were running

two pumping units in support of a pre-fracking operation. The pumping installation and

operation exposed the employees to the hazard of being struck by high pressure water

and/or high pressure line components in the following instances:

a) The lines carrying the high pressure water from the two pumping units to the

wellhead were not secured to prevent movement in the event of a line failure.

b) One of the two pumping units did not have installed pressure relief devices on either

of its pumps.

. . .

Among other methods one feasible and acceptable means to protect employees against

high pressure water and moving line components would be to comply with The American

Petroleum Institute (API) Recommended Practice (RP) 54, Recommended Practice for

Occupational Safety for Oil and Gas Well Drilling and Servicing Operations Section

9.13, Pressure Equipment.

Citation and Notification of Penalty at 6.

6

To establish violation of the general duty clause, Complainant must prove, by a

6

. As noted above, instance (c) of Citation 1, Item 1 was withdrawn by Complainant. The Court has removed

instance (c) from its recitation of Complainant’s allegations.

6
preponderance of the evidence, that: (1) a condition or activity in the workplace presented a

hazard; (2) the employer or industry recognized the hazard; (3) the hazard was likely to cause

death or serious physical harm; and (4) a feasible and effective means existed to eliminate or

materially reduce the hazard. See Waldon Healthcare Center, 16 BNA OSHC 1052 (No. 89-

2804, 1993); 29 U.S.C. § 654(a)(1). Complainant must also prove that Respondent knew, or

with the exercise of reasonable diligence, could have known, of the violative condition. Tampa

Shipyards, 15 BNA OSHC 1533, 1535 (Nos. 86-360, 86-469, 1992).

The Conditions Presented a Hazard

According to the Commission, “[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 be expected to exercise control.” Pelron Corp., 12 BNA OSHC 1833 (No. 82-388,

1986) (citing Davey Tree, 11 BNA OSHC 1898, 1899 (No. 77-2350, 1984)). Put another way,

“A safety hazard at the worksite is a condition that creates or contributes to an increased risk that

an event causing death or serious bodily harm to employees will occur.” Baroid Div. of NL

Indust., Inc., 660 F.2d 439, 444 (10th Cir. 1981). See also Waldon, 16 BNA OSHC 1052

(“There is no mathematical test to determine whether employees are exposed to a hazard under

the general duty clause. Rather, the existence of a hazard is established if the hazardous incident

can occur under other than a freakish or utterly implausible concurrence of circumstances.”

(citing National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 n. 33)).

Instance (a)

CSHO Ammon identified the unsecured pipe between the pumps and the wellhead as a

hazard based upon the high operating pressure of the system. According to Davenport, Citizen

Energy’s company man wanted the pump system operating up to 9,500 psi. (Tr. 202). At this

7
level of pressure, CSHO Ammon testified that a line failure could cause: (1) flying objects in the

form of pipe unions or joints that connect the multiple pieces of pipe; (2) sudden, unexpected

movement of the pipe itself; and (3) severe lacerations if an employee were exposed to a release

of the liquid contents under pressure. (Tr. 67). CSHO Ammon supported his conclusion that the

unsecured line presented a hazard by recounting injuries and deaths on other worksites that

resulted from line failures occurring at much lower levels of pressure, including one worksite on

which an air receiver operating at 100 psi came loose and struck an employee’s head. (Tr. 66).

Respondent argued that Complainant failed to establish the existence of a hazard,

pointing to its policy of implementing a buffer zone, which placed employees behind barriers

(“iron”) to prevent exposure to the hazard, and the existence of gauges and valves designed to

protect against over-pressurization. Resp’t Br. at 29. However, these practices addresses

Respondent’s precautions to prevent exposure to the hazard, not the existence of the hazard.

Accordingly, the Court finds that a hazard existed with respect to Instance (a).

Instance (b)

The hazard identified by CSHO Ammon with respect to Instance (b) is essentially the

same as in Instance (a): over-pressurization leading to line or equipment failure. (Tr. 237-238).

In this instance, however, CSHO Ammon added the hazard of shrapnel resulting from an

explosion. (Tr. 139–140). Whereas the previous instance more specifically addresses a line

failure at the pipe unions, instance (b) addresses the potential for the pipe or pressure equipment

to explode due to the system’s inability to adequately relieve pressure. Given the tremendously

high pressure at which Respondent’s equipment operated, and in consideration of CSHO

Ammon’s testimony regarding deaths that have occurred as a result of over-pressured equipment

operating at much lower pressures, the Court finds that the pump system presented a hazard as

8
alleged by Complainant.

As with Instance (a), Respondent contends it adequately addressed the hazard through its

implementation of pressure relief valves and kick-out gauges, as well as the aforementioned

buffer zone. Again, however, the implementation of such devices or policies does not negate the

existence of the hazard in the first instance; rather, they are designed to abate an already

recognized hazard. See Peacock Eng’g, Inc., 26 BNA OSHC 1588 (No. 11-2780, 2017) (“The

efficacy of Peacock’s work methods in avoiding injury, however, is a separate inquiry from

whether an alleged hazard was present.”). Respondent did not rebut Complainant’s allegation

that the pressurized equipment presented a hazard; indeed, as will be discussed below,

Respondent implemented a number of measures and controls to prevent such a hazard from

actually causing injury.

Respondent and its Industry Recognized the Hazards

According to the Commission, a hazard is recognized when either the cited employer or

its industry recognizes the risk of harm from the cited conditions. See Arcadian Corp., 20 BNA

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); Duriron Co., 11 BNA OSHC

1405, 1407 n.2 (No. 77-2847, 1983) (NIOSH). Regarding employer recognition, the

Commission stated, “While an employer’s safety precautions alone do not establish that the

employer believed that those precautions were necessary for compliance with the Act . . .

precautions taken by an employer can be used to establish hazard recognition in conjunction with

other evidence.” Beverly Enters., Inc., 19 BNA OSHC 1161 (Nos. 91-3144 et al., 2000)

9
(emphasis added) (citing Wheeling-Pittsburgh Corp., 16 BNA OSHC 1218 (No. 89-3389, 1993);

Waldon, 16 BNA OSHC at 1061–62).

Instance (a)

The Court finds both Respondent and the well-servicing industry recognized the hazard

of overpressure leading to line movement and/or line failure. API Recommended Practice 54

states, “Each section of a high pressure rigid line should be secured using appropriate means to

prevent movement should the line fail.” (Ex. R-36 at § 9.13.3). This standard directly addresses

the hazard identified by CSHO Ammon—the potential for line failure and unintentional

movement of the iron pipe. (Id.). The Court’s finding of industry recognition is bolstered by

CSHO Ammon’s testimony that he has observed other employers secure pipe between the

wellhead and pumps as suggested in API RP 54. (Tr. 66).

In addition to industry recognition, the Court also finds Respondent was directly aware of

the hazard posed by unsecured pipeline. The Job Safety Analysis filled out by Souza that

indicated “pressure” as a hazard, and CSHO Ammon took photographs that showed a series of

cables stretched over the top of the portion of the pipeline immediately extending from the back

of the double pump unit. (Ex. C-12 at 1, R-28). These cables are commonly referred to as “whip

checks” and, according to CSHO Ammon, whip checks are designed to limit movement, or

whipping, of the line in the event of an overpressure event or line failure. (Tr. 70–71). This was

confirmed by Souza, who testified his crew installed whip checks on the back of the double

pump to prevent their movement. (Tr. 313). Souza also admitted when the pipeline is operating

under pressure, line failure is “always a possibility.” (Tr. 314). Because Respondent not only

recognized the possibility of a line failure, but also implemented abatement measures to mitigate

the effects of such a failure, the Court finds Respondent recognized the hazard described in

10
Instance (a).

Instance (b)

For similar reasons, the Court finds Respondent and its industry also recognized the

hazard described in Instance (b). Again relying on API RP 54, Complainant argued that the well

servicing industry recognized the hazards associated with over-pressurization. (Tr. 75–76; Ex.

C-8). Section 9.13.8 of RP 54 states, “Positive displacement pumps shall be equipped with

pressure relief devices that discharge to the circulation system or other acceptable location.” (Ex.

R-36 at 21). Similarly, Respondent’s own procedures state:

A pop off valve is a pressure relief valve, its purpose is to prevent over pressuring

of lines and pump equipment and should be installed as near the pump as possible

taking into consideration wind direction and populous area. It is recommended

that a manual valve be ran under the pop off valve so in case the pop off valve

washes out you can close the manual valve.

(Ex. R-5 at 2). In this case, Respondent installed a single pressure relief valve for the collective

three-pump system. Thus, Respondent not only had procedures that addressed the hazard of

overpressure, but Respondent also actually installed and used devices to counteract the hazard of

over-pressurization, including pressure relief valves and kick-out gauges. Accordingly, the Court

finds that Respondent and its industry recognized the hazard alleged by Complainant in Instance

(b).

The Hazards were Likely to Cause Death or Serious Physical Harm

“[T]he Commission has made clear [that] the criteri[on] . . . [in this regard] is not the

likelihood of an accident or injury, but whether, if an accident occurs, the results are likely to

cause death or serious physical harm.” Peacock Eng’g, 26 BNA OSHC 1588 (quoting Waldon,

16 BNA OSHC at 1060). As previously discussed, CSHO Ammon testified the hazard of

over-pressurization leading to line failure or explosion could result in exposure to high pressure

11
liquid spray, pipe shrapnel, and violent movement of pipe or associated connections. Exposure

to these hazards, according to CSHO Ammon, could cause severe lacerations, blunt force

trauma, and even death. Respondent did not dispute these assertions. Accordingly, the Court

finds the hazards addressed by both Instance (a) and Instance (b) were likely to cause death or

serious physical harm.

Respondent’s Employees were Exposed to the Hazard

Though not explicitly an element of the general duty clause, the Commission has held

that “[i]mplicit in the above elements is the necessity for establishing employee exposure to the

cited hazardous condition.” Grossman Steel & Aluminum Corp., 6 BNA OSHC 2020, 2022 (No.

76-2834, 1978). “The Secretary may prove employee exposure to a hazard by showing that,

during the course of their assigned working duties, their personal comfort activities on the job, or

their normal ingress-egress to and from their assigned workplaces, employees have been in a

zone of danger or that it is reasonably predictable that they will be in a zone of danger.” Rgm

Constr. Co., 17 BNA OSHC 1229 (No. 91-2107, 1995).

The question of exposure in this case is an interesting one. Respondent instituted a

buffer/danger zone policy, which was intended to remove employees from the zone of danger

imposed by the pressurized equipment. (Tr. 193; Ex. R-5). Prior to starting the pumps and

pressurizing the system, employees were instructed to vacate the area and place “iron” between

themselves and the pressurized equipment. (Tr. 194). In this case, the “iron” was either the

equipment trailer or standing on the opposite end of the tractor that housed the pumps. (Tr. 194;

Ex. R-3). According to Souza—who, along with Davenport, would be stationed in the

operator’s cabin of the double pump—he would communicate with two of his employees via

12
radio, who would, in turn, keep other employees and contractors out of the zone of danger. (Tr.

348).

Complainant argues that Respondent’s buffer zone policy was insufficient to fully protect

its employees for two reasons. First, Complainant argues that Respondent failed to

conspicuously identify the buffer zone with red tape or other warning signs, which he had seen at

other worksites implementing a similar policy. (Tr. 92–94). While such warning signs may have

been more effective at highlighting the danger zone, there is no evidence to suggest that they

were required, nor did Complainant establish the policy implemented by Respondent was

ineffective or ignored. Accordingly, the Court finds those employees covered by the buffer zone

policy were not exposed to the hazard.

Complainant’s second argument, however, points out that not all of Respondent’s

employees were protected through the use of the buffer zone. Davenport and Souza were seated

in the operator cabins while the pumps were being used. (Tr. 173, 178–79, 337). The operator’s

cabin on the double pump is located directly behind the pumps, with the window of the cabin

overlooking the pipeline leading to the wellhead.7(Tr. 134; Ex. R-23). With respect to both

Instance (a) and Instance (b), CSHO Ammon testified that an overpressure event leading to a line

failure or explosion could cause whipping pipes; flying objects in the form of components, such

as the unions that join pipes; exposure to contents under extreme pressure; and shrapnel. (Tr.

67–68, 139–140). In both instances, CSHO Ammon testified the pressure of the system was

capable of ejecting metal components at such a speed that it could penetrate other metal. (Tr. 67,

78). CSHO Ammon’s testimony is bolstered by Respondent’s buffer zone policy, which

addresses this hazard by placing the other employees behind the iron trailers. Davenport, and

potentially Souza, however, were located in the pump cabs during pressurization, behind nothing

7

. The control cab for the single pump unit was located on a separate trailer. (Tr. 134, 347; C-12 at 2).

13
more than a pane of glass.

Respondent attempted to undercut CSHO Ammon’s conclusions by suggesting the cabs’

control consoles could serve as a barrier, and also intimated that the operator would be seated at

the lower edge of the pump cab windows. (Tr. 136, 214). While the control console may be

substantial, there was no evidence to suggest it could (or was intended to) stop flying shrapnel,

flying sections of pipes, or other components. Likewise, there was no evidence that the windows

of the pump cabs were rated for such protection, nor is the Court convinced that the location of

the operator’s chair relative to the window reduced the risk of exposure in any way. Instead, the

Court is persuaded by Respondent’s own policy, which places all employees except the operator

of the double pump and his supervisor behind the iron trailers. In Souza’s words, “You always

try to get something between you and the pressurized equipment. In case it does fail, you have

something to take the force of it before it ever gets to you.” (Tr. 340). There was no evidence

that the cab provided that level of protection. Souza testified he did not feel at risk when in the

operator’s cabin only because “the chance of anything coming back at you is very slim.” (Tr.

339). While likelihood of an actual injury may be relevant to a penalty determination, it does not

negate the fact that the occupants of the cab were not adequately protected from the hazards

described in Citation 1, Item 1. Accordingly, the Court finds that Davenport and Souza were

exposed to the hazards in both Instances (a) and (b).

Respondent further argues Section 16 of API RP 54 was more specifically applicable to

Respondent’s work and thus takes precedence over the requirements of Section 9. Resp’t Br. at

27. A brief review of Section 16 quickly dispels this argument: “All applicable recommended

practices of other sections of this publication, in addition to the practices under Section 16, apply

to acidizing, fracturing, and hot oil operations.” (Ex. R-36 at § 16.1.2). Respondent’s second

14
argument, which is premised on the first, is that Section 16 “mandate[s] that the operator be at

the controls during operations . . . .” This is not entirely true. Section 16 actually states “[p]ump

operators should remain at the controls while the pump is in operation.” (Id. at § 16.2.2)

(emphasis added). According to API RP 54, the term ‘should’ means, “a recommended

practice(s) (a) where a safe comparable alternative practice(s) is available; (b) that may be

impractical under certain circumstances; or (c) that may be unnecessary for personnel safety

under certain circumstances.” (Id. at § 3.1.89). Further, even though Davenport “should” be in

the operator’s cabin, nothing in the API standards (presented in this record) indicated that the cab

was required to be located in any particular place. Although Davenport testified that the cab of

the double pump is always set up in the manner described above, there was no testimony that its

location directly behind the double pump was where it had to be. (Tr. 221). In fact, the

operator’s cabin for the single pump was located on a separate trailer, which tracks with Souza’s

testimony that Respondent determines the location of the cab relative to the pump equipment.

(Tr. 347). Respondent’s arguments are rejected. Respondent’s pump operators were exposed to

the hazardous condition of highly pressurized lines and equipment.

Respondent had Knowledge of the Hazardous Conditions

In addition to proving that Respondent, or its industry, recognized the hazard,

Complainant must also prove that Respondent knew or, with the exercise of reasonable

diligence, could have known of the presence of the violative condition. See Pride Oil Well Svc.,

15 BNA OSHC 1809 (No. 87-692, 1992). Complainant need not show Respondent knew the

conditions were hazardous or violated the Act; rather, he need only show Respondent had actual

or constructive knowledge of the conditions giving rise to the hazard. Phoenix Roofing, Inc., 17

BNA OSHC 1076 (No. 90-2148, 1995). A supervisor’s knowledge of the condition can be

15
imputed to the employer. See Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1726 (No. 95-1449,

1999).

Souza, Respondent’s on-site supervisor, testified he did not install tie-downs on the

pipeline, nor did he install more than one pressure relief device, because he “figured it would be

enough.” (Tr. 315). This constitutes actual knowledge of the hazard. Because Souza was a

supervisory employee, his knowledge is properly imputable to Respondent. Accordingly, the

Court finds Respondent was aware of the conditions constituting the hazard alleged by

Complainant.

Feasible and Effective Means of Eliminating or Materially Reducing the Hazard

In order to establish a violation of the general duty clause, Complainant must “‘specify

the proposed abatement measures and demonstrate both that the measures are capable of being

put into effect and that they would be effective in materially reducing the incidence of the

hazard.’” 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 BNA OSHC 1240 (citing Cerro

Metal Prods. Div., Marmon Grp., Inc., 12 BNA OSHC 1821, 1822 (No. 78-5159, 1986)). See,

e.g., SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202, 1215 (D.C. Cir. 2014) (“[SeaWorld] had

already implemented abatement for at least one of its killer whales and needed only to apply the

same or similar protective contact measures it used with Tilikum to other killer whales.”).

Instance (a)

16
In order to abate the hazards associated with a pipeline failure or unintended pipe

movement, Complainant proposed that Respondent use a staking system to secure the iron

pipeline in place during pumping operations. (Tr. 64–65). API RP 54 does not specify the means

by which the line should be “secured using appropriate means”, but CSHO Ammon suggested

driving pairs of substantial metal stakes into the ground at an angle over the top of the pipeline at

various points, creating a “teepee” anchor, as it were. (Tr. 65). CSHO Ammon suggested that

these anchors be installed at or near critical connection points and midpoint of each pipe section.

(Tr. 65). Respondent did not dispute the efficacy of this form of abatement. Indeed, when

confronted with the question of whether Respondent anchored the lines, Davenport also

described a process by which anchors could be installed. (Tr. 199). Nonetheless, he testified

that: “we just do not do that.” (Tr. 198-199). Instead, he testified that anchors are typically

utilized by employers engaged in flowback—drawing fluid out, instead of pumping it

in—“[b]ecause the pump jobs usually consist of a day to a few days job but the flowback iron

will be out there for months on general time.” (Tr. 199). There was no evidence that that using

tie-down stakes or anchors was exceedingly onerous or otherwise infeasible.

Respondent implemented a similar form of abatement through its use of whip-checks, but

only with respect to the first section of pipe immediately connected to the double pump. (Tr.

68–69). In lieu of securing the entire line, Respondent contends that its buffer zone policy was

sufficient to abate the hazard. However, as discussed above with respect to the issue of

exposure, the buffer zone policy did not cover the pump operators in the control cabins during

pressurization.

The Court finds that Complainant established the feasibility and utility of the

staking/anchoring system described by both CSHO Ammon and Davenport. According to

17
CSHO Ammon, installing stakes or anchors at the midpoint of each pipe section, and at the

connection points would prevent, or severely restrict, the unintentional movement of the pipe

and, subsequently, the ejection of joints, collars, or other implements attached to it. (Tr. 64–69,

140). Respondent did not present evidence to suggest otherwise. Accordingly, Citation 1, Item

1(a) will be AFFIRMED.

Instance (b)

The Court finds that Complainant failed, however, to establish by a preponderance of the

evidence that Respondent’s use of a single pressure relief device (“pop-off valve”) failed to

address the explosion hazard associated with an overpressure event.

API RP 54 is not a model of clarity when it comes to the installation of pressure relief

devices. It states, “Positive displacement pumps shall be equipped with pressure relief devices

that discharge to the circulation system or other acceptable location.” (Ex. R-36 at § 9.13.8).

According to Complainant, § 9.13.8 requires a pressure relief device on a per pump basis to

properly abate the hazard. The Court is not convinced. The language of the API standard is

ambiguous and key terms are left undefined. For example, though Complainant urges a onedevice-per-pump interpretation, the standard merely states that pumps shall be equipped with

pressure relief devices; it does not indicate where those devices shall be installed, whether the

installation is contingent on the use of multiple pumps, or even define the term “pressure relief

device.” There was no expert or other testimony proffered by Complainant that provided

additional clarity. Instead, CSHO Ammon testified that the problem with using a single pressure

relief valve had to do with the possibility of intervening valves being closed between the pump

and the lone pressure relief device. (Tr. 76). There are multiple problems with this position.

18
First, although there were multiple valves between the pump and the lone pressure relief

device, Respondent’s policy addressed the potential hazards associated with one of the valves

being erroneously closed when pressurization occurred. Specifically, Respondent’s policy

“recommended running as few of [sic] valves in the pump line as possible”, thus reducing the

likelihood that one or more would be closed prior to pressurizing the system. (Ex. R-5 at 2).

Further, Respondent’s policy also required “[a]ll valves inline [to be] double checked to make

sure they are fully open and or [sic] stiff to open and close so as to prevent valve closing while

pumping at high rates.” (Id.) (emphasis added). On this jobsite, there was no indication that

these policies had been disregarded, and Davenport testified that a supervisor always confirms

that all valves are open before pressure is introduced into the system. (Tr. 219–20). The Court

also notes that opening and closing valves on the line required the use of a valve-specific tool.

(Tr. 254).

Second, and perhaps more enlightening, is the following trial colloquy between

Respondent’s counsel and CSHO Ammon:

BY MR. BAGOT [Respondent’s counsel]:

Q. Good morning, Mr. Ammon. When we talked yesterday, you made a

comment about the fact that your intervening valves between the two

pumps – remember the single pump and the double pump? And because of

that, you didn’t think it was appropriate to use the pressure relief valve on

the single pump to also be the relief valve for the dual pump.

Do you remember that testimony?

A. Yes.

Q. Do you remember testifying that in your deposition in this case, that if

the valves had been locked open, that in your opinion they could use the

pressure relief valve on the single pump for both the single pump and the –

and the dual pump.

A. I indicated that my research had indicated that that could be done

under some state laws that cover this area. I think particularly the state of

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California laws allows that. And that we would probably allow that, too,

if that pressure relief valve would provide relief for the whole system.

Q. Okay. So if they had locked the valves open, you would have allowed

the use of the one pressure relief valve for both pumping units; is that –

A. Most likely, yes.

(Tr. 251–52). This testimony undermines Complainant’s principal assertion that

industry-recognized abatement requires the installation of multiple pressure relief devices on a

per pump basis. CSHO Ammon suggests that Complainant would allow a single pressure relief

device insofar as it “would provide relief for the whole system.” (Tr. 252). Based on the

testimony of Davenport, and the aforementioned elements of Respondent’s operating policy, that

is exactly how the system, as set up on the day of the inspection, appears to have operated.

In response to a question about how a single pressure relief valve is adequate to relieve

pressure across both pumps, Davenport testified:

Well, the pressure’s going to be the same over all lines. I mean, it’s –

they’re tied together into the wellhead. So if both units are pumping,

they’re both seeing the same amount of pressure.

So say that the double pump has a malfunction, they are still tied in to line

together. And the pressure will be the same no matter if you’re pushing

water or pulling water or anything. The pressure’s is going to be the same

over the entirety of the line.

(Tr. 197). Davenport subsequently explained:

So that pressure will not be detained – or deterred just because this pump

is pumping at nine barrels a minute compared to this pump, pumping at six

barrels a minute. The pressure down that line is going to be the same no

matter what flow rate you have down either line. It’s like, the pressure is

on the well and you’re pushing down the well. So therefore the pressure is

coming back up through the lines.

(Tr. 226). Complainant did not dispute this characterization of how pressure equalizes

throughout the system, and CSHO Ammon’s testimony regarding system-wide pressure relief

20
implicitly endorses it.8 CSHO Ammon’s concerns regarding the possibility of a closed valve

within the system seemed speculative, and were belied by Respondent’s policy of having a

supervisor double-check all valves in the pump line prior to pressurizing the system.

Even if a problem arose due to a valve being closed, Respondent had alternative pressure

relief devices designed to prevent over-pressurization. As referenced earlier, the pump operating

cabs are equipped with kick-out gauges. According to Davenport, these gauges are set

approximately 500 to 1000 psi below the operating pressure set by the company man, which is

also the level at which the pressure relief (pop-off) valve is set. (Tr. 202). If the system reaches

the designated pressure point, the kick-out gauges disengage the pumps motor and transmission,

thereby preventing the system from exceeding the designated amount. (Tr. 201). Based on this

understanding, if a standard valve along the route to the pressure relief device happened to be left

closed when the double pump was turned on, the kick-out gauge would cause the pump motor to

immediately disengage once the designated pressure limit had been reached. This process, in

effect, instantly relieves pressure on the system.

CSHO Ammon attempted to downplay the effectiveness of the kick-out gauges by

characterizing them as “operational controls” as opposed to safety devices. (Tr. 273). He did not

provide any additional justification for the distinction, which the Court finds to be without

significance. If the principal concern about Respondent’s system was the potential for an

explosion due to over-pressurization, then any and all devices that restrict or relieve that pressure

could serve an important safety function. Based on CSHO Ammon’s testimony, the Court is not

aware of any reason why an operational control cannot also serve safety-related purposes.

Complainant also attempted to undermine the efficacy of the kick-out gauges by

8

. CSHO Ammon also stated explicitly that the pressure “should be pretty well equal all the way through that whole

system.” (Tr. 259).

21
suggesting that, in the event of a line failure or rupture below the designated pressure limit, the

kick-out gauges would have no effect, whereas the in-line pressure relief device would still

protect employees. Compl’t Br. at 14. Complainant’s argument is not supported by the record

evidence. Both the pressure relief valve and the kick-out gauges were set to engage when the

system reached or approached the upper limit (9,500 psi) set by the company man. As the Court

understands it, unless the pressure within the system reaches that designated limit, then neither

the valve nor the gauge would activate. (Tr. 216).

When Respondent provides evidence of abatement measures to address a recognized

hazard, it is incumbent upon Complainant to provide evidence that those measures are somehow

deficient. See Alabama Power Co., 13 BNA OSHC 1240, supra. Complainant was unable to

meet that burden. While Complainant may have preferred a one-to-one ratio of pressure relief

valves to pumps, there is nothing in the API standards or in Respondent’s own materials that

persuade the Court that such a requirement exists. Respondent provided convincing evidence that

the combination of kick-out gauges, a single pressure relief valve, iron pipe and components

rated almost 50% higher than the operational pressures, and its work practices constituted an

effective plan designed to prevent an overpressure explosion. Accordingly, Citation 1, Item 1(b)

is VACATED.

Citation 1, Item 2

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

29 CFR 1910.22(c): Covers and/or guardrails were not provided to protect personnel

from the hazards of open pits, tanks, vats, ditches, etc.:

Well head: On or about January 29, 2016, and times prior to, employees engaged in prefracking operation worked over and around the unguarded well cellar. Employees were

exposed to the hazard of falling into the well cellar.

Citation and Notification of Penalty at 7.

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The Cited Standard Did Not Apply

Surrounding the wellhead and Christmas tree was a well cellar, a circular pit that was

roughly 8 feet in diameter (with the Christmas tree in the center) and between 5 and 6 feet deep.

(Ex. R-29; Ex. C-12 at 7). The bottom one or two feet of the pit was filled with oil and water.

(Tr. 83). In order to connect pipe to the Christmas tree, at least one of Respondent’s employees

was required to reach over a small gap, approximately a foot-and-a-half wide, between the edge

of the well cellar and the Christmas tree. (Tr. 328). Complainant alleges that Respondent

violated the walking-working surfaces standard found at 29 C.F.R. § 1910.22(c)9 because its

employees were exposed to the possibility of falling into the unguarded pit while connecting pipe

to the Christmas tree. In response, Respondent argues that the walking-working surfaces

standard does not apply because the well site, including the well cellar, was not its “permanent

place of employment” as required in the standard. The Court agrees.

According to the standard, “This section applies to all permanent places of employment,

except where domestic, mining, or agricultural work only is performed.” 29 C.F.R. § 1910.22.

In support of its argument that the area around the well cellar was Respondent’s permanent place

of employment, Complainant cites to series of cases involving oil well servicing rigs. See Signal

Oilfield Serv., Inc., 6 BNA OSHC 1717 (No. 77-0226, 1978) (ALJ); Basic Energy Svcs., 25

BNA OSHC 1811 (No. 14-0543, 2015) (ALJ). In each case, the ALJ held that the mobile well

servicing rig was the employees’ permanent place of employment. In Signal, the ALJ stated,

“[T]he word ‘permanent’ refers to the place of employment where the men actually do their

work. In this instance, Signal’s employees obviously perform their duties on the drilling

9

. The numbering and language of the walking-working surfaces standard changed in January 2017. For the

purposes of discussing Complainant’s allegation, the Court is referring to the former 29 C.F.R. § 1910.22. See

Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems), 81 Fed. Reg. 82494,

82502 (November 18, 2016).

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rig—regardless of where the rig might be located geographically. Signal, 6 BNA OSHC 1717 at

*12. This was echoed by the ALJ in Basic Energy, who held, “The rig is a mobile unit, capable

of traveling to different well sites, and the work performed by Respondent’s employees is

considered well-servicing. Even though the specific type of servicing work may be different

day-to-day—Stewart testified that well-servicing rigs perform a number of different

functions—the work nonetheless always takes place on or about the rig.” Basic Energy, 25 BNA

OSHC 1811 (emphasis added).

Applying the foregoing, Complainant argues the pumping units Respondent brought to

the Hardesty well qualified as the employees’ permanent place of employment and the standard,

therefore, applies. While the Court agrees that mobile pumping units can be considered

permanent place of employment, the Court is not confronted with a question about walkingworking surfaces on mobile pumping units. Rather, the focus of this particular violation is the

unprotected well cellar, at the permanent wellhead, surrounding the Christmas tree, which is not

Respondent’s permanent place of employment.

This conclusion is supported by two sources: The first is Complainant’s historical

interpretation of the standard and subsequent modification of the scope and application

paragraph. As noted by Respondent, Complainant previously published an interpretive letter

regarding the scope of 29 C.F.R. § 1910.22. See Letter from Thomas Galassi, Directorate of

Enforcement Programs, OSHA, to Chip Darius, President, Safety Priority (July 10, 2014).10 In

response to a question regarding the proper scope of a “permanent place of employment”,

Galassi wrote:

A permanent place of employment is a fixed place of employment. Those whose

principal activity involves going to other sites to perform services, such as

plumbers, computer repair workers, and cable installers, are considered to have a

10

. Available at

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=29810.

24
permanent place of employment at the location where they meet with managers,

gather supplies, or return the company vehicles.

Id. Respondent and other well servicing companies routinely travel to well sites to perform

services. The violations identified in Signal and Basic Energy were located on the mobile rigs

the employers brought to the well site. See Signal, 6 BNA OSHC 1717 at *12; Basic Energy, 25

BNA OSHC 1811 at *4. Thus, under the facts presented in this case, Complainant may have

cited Respondent for walking-working surface violations insofar as they were found on the

equipment Respondent brought to the site itself. Instead, Complainant cited Respondent for a

fixed condition at the well site, which is where Respondent’s employees temporarily traveled to

perform services. Since Respondent was originally engaged to work at the Hardesty well for

only one day, which due to complications involving another contractor, was extended to three

days, the Court finds that the Hardesty wellhead was not Respondent’s employees’ permanent

place of employment. (Tr. 173, 182, 211).

Second, this conclusion is supported by recent amendments to the walking-working

surfaces standard, which became effective on January 17, 2017. See Walking-Working Surfaces

and Personal Protective Equipment (Fall Protection Systems), 81 Fed. Reg. 82494, 82502

(November 18, 2016). The new version of the standard no longer references “permanent places

of employment”; instead, the standard now applies to “all places of employment.” See id. See 81

Fed. Reg. at 82502 (“The final rule consolidates the scope requirements for subpart D into one

provision and specifies that the final rule applies to all walking-working surfaces in general

industry workplaces.”). The new scope provision in paragraph (a) indicates that, unless

otherwise provided by a specific provision, all of general industry is governed by all of Subpart

D, which would include oil and gas well sites, irrespective of whether it was a particular

employer’s permanent place of employment. See id. Though this change in the scope provision is

25
not sufficient itself to support Respondent’s argument that the standard did not apply at the time

of the present inspection, the Court finds it persuasive when read in conjunction with the

foregoing case law, agency interpretations, and the standard itself.

Based on the foregoing, the Court finds that Complainant failed to prove that 29 C.F.R. §

1910.22(c) applied to the well site, as it was not Respondent’s employees’ permanent place of

employment. Accordingly, Citation 1, Item 2 shall be VACATED.

Penalty

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act

requires the Commission give due consideration to four 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 employees exposed, the duration of the exposure, the precautions 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 de novo

penalty determinations and have full discretion 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 $3,750.00 for Citation 1, Item 1, which included

Instances (a), (b), and (c). The Court vacated Instance (b), and Complainant withdrew Instance

(c), so the penalty discussion is limited to Instance (a). Complainant originally calculated a

gravity-based penalty of $5,000.00, by characterizing the violation as high gravity, but with a

low likelihood of actual injury. (Tr. 87; Ex. C-3). The Court agrees. Complainant then applied a

25% penalty discount for Respondent’s good faith, based on its safety and health program, which

26
the Court also accepts. Lastly, no additional discounts were applied for history, because there

was no OSHA inspection history to evaluate, nor for size, because Respondent has over 251

employees. (Tr. 89, Ex. C-3).

Although the high pressure in this pump and pipe system exposed Respondent’s

employees to a hazard capable of causing significant injury and death, the likelihood of that

accident actually coming to fruition was low. The buffer zone policy kept Respondent’s

employees out of the zone of danger, with the exception of the pump operators, and the whip

checks located at the pumps provided at least some limited measure of protection for the

operator’s cabin occupants. Considering the totality of the circumstances, the Court finds that a

slightly lower penalty is appropriate in light of its vacation of Instance (b) and Complainant’s

withdrawal of Instance (c). Accordingly, a penalty of $2,000.00 will be assessed for Citation 1,

Item 1, Instance (a).

Order

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

1. Citation 1, Item 1(a) is AFFIRMED and a penalty of $2,000.00 is ASSESSED;

2. Citation 1, Item 1(b) is VACATED;and

3. Citation 1, Item 2 is VACATED.

/s/ Brian A. Duncan

Judge Brian A. Duncan

U.S. Occupational Safety and Health Review Commission

Date: November 27, 2017

Denver, Colorado

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