Basic Energy Services v. OSHC , 666 F. App'x 364 ( 2016 )

Case: 15-60887 Document: 00513809540 Page: 1 Date Filed: 12/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60887 FILED
December 22, 2016
BASIC ENERGY SERVICES,
Lyle W. Cayce
Clerk
Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order of the
Occupational Safety and Health Review Commission
OSHRC No. 14-542
Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
PER CURIAM:*
This is a petition for review relating to two workplace safety violations.
The Occupational Safety and Health Administration (“OSHA”) cited Basic
Energy Services (“Basic”) for violations of 29 C.F.R. §§ 1910.24(b) and
1910.23(c)(1) at a mobile well-servicing rig. Section 1910.24(b) requires fixed
stairs between platforms, and § 1910.23(c)(1) requires guardrails for elevated
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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platforms. Basic argues that the Administrative Law Judge (“ALJ”), whose
decision the Occupational Safety and Health Review Commission (the
“Commission”) declined to review, erroneously applied both regulations to
Basic’s mobile rig. For the following reasons, we DENY the petition for review.
I. BACKGROUND
Basic operates mobile rigs that provide maintenance and upkeep for oil
and gas wells. These rigs may travel as vehicles on highways from one well to
another. At a particular well, the rigs transform into structures with multiple
adjustable platforms, which can be connected by adjustable metal stairs.
Removable guardrails protect workers from falling off elevated platforms.
On September 23, 2013, a five-man crew was operating a Basic well-
servicing rig in Hawkins, Texas. OSHA inspector Ruth Solis-Lewis observed
the crew pulling pipe out of a well and photographed this activity from a
parking lot nearby. These photographs show that the crew had placed
guardrails only around part of the upper platform. According to Solis-Lewis’s
measurement, this platform was almost seven feet high. Solis-Lewis also
observed a set of stairs leading from the ground to the lower platform but no
stairs from the lower to the upper platform.
Based on Solis-Lewis’s observations, OSHA cited Basic for violations of
29 C.F.R. §§ 1910.24(b) and 1910.23(c)(1). These regulations are part of
OSHA’s Walking-Working Surfaces standard, which “applies to all permanent
places of employment, except where domestic, mining, or agricultural work
only is performed.” 1 29 C.F.R. § 1910.22. Under § 1910.24(b), “fixed stairs” are
required “for access from one structure level to another where operations
necessitate regular travel between levels.” The regulation does not define
1 Basic does not contest the ALJ’s finding that the well-servicing rig is a permanent
place of employment within the meaning of the standard.
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“fixed stairs.” OSHA cited Basic for lacking fixed stairs between platforms.
Section 1910.23(c)(1) requires that “[e]very open-sided floor or platform 4 feet
or more above adjacent floor or ground level . . . be guarded by a standard
railing . . . on all open sides except where there is entrance to a ramp, stairway,
or fixed ladder.” OSHA cited Basic under § 1910.23(c)(1) for lacking guardrails
around part of the work platform.
Basic challenged these citations. A trial took place before ALJ Peggy Ball
on March 31 and April 1, 2015. ALJ Ball found that §§ 1910.24(b) and
1910.23(c)(1) apply to mobile well-servicing rigs like Basic’s and affirmed both
citations. She rejected Basic’s affirmative defenses that compliance with the
guardrail regulation was infeasible and would have presented a greater
hazard. ALJ Ball also found that the fixed stairs violation was serious, and
that the guardrail violation was a repeat violation. Based on these findings,
she assessed penalties in the amount of $5,500 for the fixed stairs violation and
$38,500 for the guardrail violation.
Basic then petitioned the Commission for discretionary review. Basic
raised five arguments before the Commission: (1) Section 1910.24(b) did not
apply to Basic’s mobile rig; (2) the term “fixed stairs” used in § 1910.24(b)
requires permanent attachment, clearly inappropriate for a mobile rig;
(3) compliance with the guardrail requirement would have been infeasible or
more hazardous than noncompliance; (4) Basic was not a repeat violator; and
(5) insufficient evidence supported the ALJ’s decision. The Commission denied
review, and the ALJ’s order became a final order of the Commission under 29
U.S.C. § 661(j). This petition for review followed.
II. DISCUSSION
Under 29 U.S.C. § 660(a), a party may seek review of a Commission order
in the “court of appeals for the circuit in which the violation is alleged to have
occurred.” Because the alleged violations took place in Texas, this Court has
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jurisdiction. We review the Commission’s legal conclusions “for whether they
are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with the law.’” Sanderson Farms, Inc. v. Perez, 811 F.3d 730, 734–35 (5th Cir.
2016) (quoting Austin Indus. Specialty Servs., L.P. v. Occupational Safety &
Health Review Comm’n, 765 F.3d 434, 438–39 (5th Cir. 2014) (per curiam)).
The Commission’s factual findings are conclusive if they are supported by
substantial evidence. 29 U.S.C. § 660(a). We defer to the Secretary of Labor’s
interpretation of OSHA regulations, reviewing the interpretation only “to
assure that it is consistent with the regulatory language and is otherwise
reasonable.” Trinity Marine Nashville, Inc. v. Occupational Safety & Health
Review Comm’n, 275 F.3d 423, 427 (5th Cir. 2001) (quoting Martin v.
Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991)).
A. Application of the Fixed Stairs Regulation
Basic makes two arguments on appeal for why the fixed stairs regulation
does not apply to its mobile rig: (1) applying this regulation to mobile rigs
creates an absurd result; and (2) the rig falls into the exception for “articulated
stairs,” 29 C.F.R. § 1910.24(a).
1. Absurd Result
According to Basic, the word “fixed” in the fixed stairs regulation means
“permanently attached.” Because stairs cannot be permanently attached to
Basic’s mobile rig, the company argues, it would be absurd to apply the
regulation in this context. The Secretary interprets “fixed” as “attached in
some way to prevent movement.” According to Angel Guerrero, who worked on
the rig in question, Basic’s stairs are hooked onto the rig platform and are
stable enough to walk on. Thus, the Secretary’s interpretation of “fixed” does
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not lead to an absurd result; it merely describes the stairs Basic already uses.
The merits of Basic’s argument depends on which interpretation controls.
This Court must defer to the Secretary’s interpretation of “fixed stairs”
as long as “it is consistent with the regulatory language and is otherwise
reasonable.” Trinity Marine, 275 F.3d at 427 (quoting Martin, 499 U.S. at 156).
Interpreting “fixed” in § 1910.24(b) as “attached in some way to prevent
movement” is reasonable for several reasons. First, the Secretary’s
interpretation of “fixed” accords with its plain meaning. See, e.g., Fixed,
Webster’s New Collegiate Dictionary (1975) (defining “fixed” as “1 a: securely
placed or fastened”); Fixed, Random House Webster’s Unabridged Dictionary
(2d ed. 2001) (defining “fixed” as “1. fastened, attached, or placed so as to be
firm and not readily movable; firmly implanted; stationary; rigid”). 2
Second, the Secretary’s interpretation serves the purpose of the
Occupational Safety and Health Act: “to assure so far as possible every working
man and woman in the Nation safe and healthful working conditions.” 29
U.S.C. § 651(b). It does so by ensuring that § 1910.24(b) protects workers on
well-servicing rigs from the hazards of jumping between platforms. Basic’s
preferred interpretation, by contrast, would not require any stairs or ladders
on mobile rigs, notwithstanding their safety benefits.
Third, the Secretary has applied the fixed stairs regulation to mobile
well-servicing rigs before. See, e.g., Poole Co. Tex. Ltd., 19 BNA OSHC 1317
(No. 99-0815, 2000) (ALJ); Well Sols., Inc., 15 BNA OSHC 1718 (No. 89-1559,
1992). In Poole, for example, the Secretary cited a rig for featuring stairs
without handrails, also required by the fixed stairs regulation. 19 BNA OSHC
1317. Like Basic, Poole argued that the regulation should not apply because
2Basic’s interpretation also appears in the dictionary: the fourth definition of “fixed”
in Random House Webster’s Unabridged Dictionary is “definitely and permanently placed.”
Fixed, Random House Webster’s Unabridged Dictionary, supra.
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“the stairs were not permanently attached to the mobile rig.” Id. The ALJ
rejected this argument, finding that the stairs only need to be “secured to the
platform to prevent their movement while in [use].” Id. Likewise, in Delta
Drilling Co. v. Occupational Safety & Health Review Commission, this Court
affirmed the Commission’s application of the fixed stairs regulation to mobile
well-servicing rigs. 91 F.3d 139 (5th Cir. 1996) (per curiam) (unpublished table
decision). Thus, Basic had notice that § 1910.24(b) applied to its rig.
Basic’s arguments against the Secretary’s interpretation are unavailing.
Basic primarily argues in favor of its own interpretation of “fixed” as
“permanently attached.” This interpretation draws from the Walking-Working
Surfaces standard’s definition of “fixed ladder”: “a ladder permanently attached
to a structure, building, or equipment.” 29 C.F.R. § 1910.21(e)(2) (emphasis
added). Basic’s argument on this point comports with the canon of statutory
interpretation that “identical words used in different parts of the same act are
intended to have the same meaning.” Sullivan v. Stroop, 496 U.S. 478, 484
(1990) (quoting Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860 (1986)).
Admittedly, the Secretary’s interpretation appears inconsistent with the
standard’s definition of “fixed ladder.” But the “fixed ladder” definition itself
does not even apply to the section pertaining to the fixed stairs regulation. See
29 C.F.R. § 1910.21(e) (“As used in § 1910.27, unless the context requires
otherwise, fixed ladder terms shall have the meanings ascribed in this
paragraph.” (emphasis added)). Moreover, Basic fails to explain why its
inconsistency argument renders the Secretary’s plain meaning unreasonable.
If the Court were interpreting “fixed stairs” on a blank slate, Basic’s argument
would carry more weight. But the Court must defer to the Secretary’s
reasonable interpretation, even if it is not the best interpretation.
Basic also points to a Commission case affirming an ALJ who dismissed
a fixed stairs citation of a tool trailer. Jess Howard Elec. Co., 1976–1977 CCH
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OSHD ¶ 20,809 (No. 15546, 1976) (ALJ). The ALJ in Jess Howard explained
that the tool trailer “was a mobile vehicle. For that reason an allegation of
violation of a standard which requires ‘fixed industrial stairs’ as a means of
access to a ‘structure’ cannot be sustained. Something that is fixed is not
movable.” Id. (citation omitted). Jess Howard is easily distinguishable: tool
trailers are a far cry from multi-platform structures like mobile well-servicing
rigs. Longhorn Service Co., a case cited by the Secretary, is more on point:
there, an ALJ essentially adopted Basic’s interpretation of “fixed stairs” and
held that § 1910.24(b) was therefore inapplicable to mobile well-servicing rigs.
25 BNA OSHC 1572 (No. 13-1458, 2015) (ALJ), rev’d in part on other grounds,
652 F. App’x 678 (10th Cir. 2016). We need not defer to that ALJ decision,
however; it is the Secretary’s interpretations that warrant deference, not the
Commission’s or an ALJ’s. Martin, 499 U.S. at 156.
Because the Secretary’s interpretation of “fixed” is reasonable, we must
defer to it. Under the Secretary’s interpretation, it is not absurd to apply the
fixed stairs regulation to mobile well-servicing rigs. Accordingly, we reject
Basic’s argument that applying § 1910.24(b) to Basic’s rig yields an absurd
result.
2. Articulated Stairs Exception
The fixed stairs regulation “does not apply . . . to articulated stairs, such
as may be installed on floating roof tanks or on dock facilities, the angle of
which changes with the rise and fall of the base support.” 29 C.F.R.
§ 1910.24(a). Basic argues for this exception because its “well-servicing rig has
several sections that independently articulate.” The ALJ rejected this
argument, noting that “it seems clear that [the stairs] are rigid.”
Basic and the Secretary advance different interpretations of the
exception: Basic suggests that articulated platforms trigger the exception,
while the Secretary argues that the stairs themselves must articulate. It is
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clear from the text that the exception only applies to stairs that move in
relation to platforms, such as stairs that rest on water. Thus, the Secretary’s
interpretation “sensibly conforms to the purpose and wording” of the fixed
stairs regulation. Martin, 499 U.S. at 151 (quoting N. Ind. Pub. Serv. Co. v.
Porter Cty. Chapter of Izaak Walton League of Am., Inc., 423 U.S. 12, 15 (1975)).
Under the Secretary’s reasonable interpretation, the articulated stairs
exception does not cover Basic’s mobile rig. Therefore, we agree with the ALJ’s
conclusion that the fixed stairs regulation applies to Basic’s rig.
B. Application of the Guardrail Regulation
Basic next argues that the guardrail regulation does not apply to its
mobile rig. Basic did not raise this argument before the Commission; it merely
argued that compliance with § 1910.23(c)(1) was infeasible and presented a
greater hazard. For this reason, the Secretary contends that the argument is
waived under 29 U.S.C. § 660(a), which states: “No objection that has not been
urged before the Commission shall be considered by the court, unless the
failure or neglect to urge such objection shall be excused because of
extraordinary circumstances.” While we do not require “great specificity” in a
petition for review before the Commission, we may “not consider an argument
unless the Commission has been ‘alerted to the issues.’” Power Plant Div.,
Brown & Root, Inc. v. Occupational Safety & Health Review Comm’n, 659 F.2d
1291, 1294 (5th Cir. Unit B Oct. 1981), reh’g granted, opinion modified, 673
F.2d 111 (5th Cir. Unit B 1982); see also P. Gioioso & Sons, Inc. v. Occupational
Safety & Health Review Comm’n, 115 F.3d 100, 107 (1st Cir. 1997) (“In an
OSHA case, an objection is not ‘urged’ in the requisite sense (and will not be
deemed preserved for judicial review) unless the [petition for discretionary
review] conveys the substance of the objection face up and squarely, in a
manner reasonably calculated to alert the Commission to the crux of the
perceived problem.”). Basic failed to alert the Commission to the argument it
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raises on appeal: that the guardrail regulation does not apply to its mobile rig.
Nor does the company plead extraordinary circumstances. Therefore, under 29
U.S.C. § 660(a), we cannot consider this argument.
III. CONCLUSION
For the foregoing reasons, the petition for review is DENIED.
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