In September 2013, a five-man crew was operating a mobile well-servicing rig in Hawkins, Texas.  An inspector for the Occupational Safety & Health Administration (“OSHA”) observed the crew pulling pipe out of a well and photographed the activity.  The photographs demonstrated that the crew had placed guardrails only around the upper part of the rig’s platform.  Further, the investigator 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 these observations, OSHA cited the rig operator for the missing stairs and missing guardrail.  The matter was tried before an administrative law judge, who affirmed both citations.  In affirming the citations, the ALJ rejected the rig operator’s defenses that compliance with the guard rail regulation was “infeasible” and would have presented a greater hazard.  Further, the ALJ also found that the fixed stairs violation was serious and that the guardrail violation was a repeat violation.  The rig operator was fined penalties of $5,500.00 for the fixed stairs violation and $38,500.00 guardrail infraction.  The rig operator appealed for discretionary review to the Occupational Safety & Health Review Commission as to the fixed stairs violation (which upheld the ALJ’s findings and conclusions), but not as to the guardrail citation.

On appeal to the Fifth Circuit, the rig operator argued that the “fixed stairs” requirement did not apply to a mobile rig because the rig itself was not “fixed.”  Further, the rig fell into the “articulated stairs” exception that would apply to structures such as floating roof tanks, dock facilities, or other rigs containing several sections that independently articulated.  In interpreting the word “fixed,” the Fifth Circuit rejected the rig operator’s definition of “fixed” as “permanently attached.”  Citing prior application of the fixed stairs requirement to mobile rigs, the Fifth Circuit held that OSHA’s definition of “fixed” as being “attached in some way to prevent movement” was much more reasonable.  As to the “articulated stairs” exception, the Fifth Circuit held that that exception applied only to stairs that rest on water.  Thus, the citation as to the fixed stairs was affirmed.

With respect to the guardrail citation, the Fifth Circuit found that the rig operator had waived its argument that attachment of the guardrail was infeasible because the rig operator had not raised that argument with the OSHRC.

Basic Energy Services v. Occupational Safety and Health Administration