← OSHA 30/30 with Manesh Rath
OSHA 30/30 with Manesh Rath
D.C. Circuit Ruled on Exposing Employer Defenses in Multi-Employer Worksite Case
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- [00:00]
A
In East Texas, Far East Texas, an area known as the Piney woods region of Texas, at an oil well in San Augustine County, a highly pressurized pipe burst terribly, striking three workers, hospitalizing one and killing the other two. There were several different employers at the work site. As is often the case for oil well sites, OSHA issued a citation against TCP Specialists, a wireline specialist. TCP Specialists contested the citation, arguing that it did not own the well, did not pressurize the pipe that burst, and could not have depressurized the pipe. And as to the company that could depressurize the pipe, TCP Specialists informed that company that the pipe needed to be depressurized before TCP Specialists could perform its services. OSHA cited TCP Specialists nevertheless stating that TCP permitted workers to be exposed to the hazard. Heard by the U.S. court of Appeals for the District of Columbia, they decided the case recently and we're going to talk about OSHA's claims, TCP specialists defenses, the court's opinion and why this matters to you in the OSHA 3030 community. I'm Manish Rath and this is the July 2026 edition of the OSHA 3030. Well, hello everyone. I'm Manish Raff and welcome to the OSHA 3030. I'm an attorney at the law firm Keller and Heckman here in Washington D.C. i'm very fortunate today. I'm joined by my good friend and colleague Ben Idzik. Ben, good to see you again.
- [01:45]
B
Likewise, Manish. Thank you for having me.
- [01:47]
A
You've been, you've been away for a while. You've been on the road traveling to visit clients, giving talks in front of the professional safety and health community across the country. So it's good to have you back in the Washington D.C. office. We've got a great topic band picked today. I think this is really important for our community.
- [02:00]
B
Yeah, absolutely. I'm excited to get into it.
- [02:02]
A
Well, let's go ahead and get into it then. Let's talk about what we're going to talk about today. To start off with, just to give you all a roadmap of today's program, I think first we should get into then the facts of the case in a case called TCP Specialists versus the Secretary of Labor.
- [02:16]
B
That's absolutely right. And then we're going to cover what's important to this case in particular is the multi employer citation Policy. We'll just get about into the background of the policy and how it applies in this case.
- [02:26]
A
Right. And then I think we should talk about both sides arguments, OSHA's claims as to why OSHA believed that TCP specialists should be held liable for this accident and what TCP's defenses were.
- [02:38]
B
Right. I'm going to conclude with the D.C. circuit's decision.
- [02:42]
A
And then as we always end, Ben, we should wrap up with some practical takeaway items for y' all in the OSHA 3030 community, the slide that we always refer to as what employers should do. This is the important stuff that you can go back to your practices and make your programs a little bit stronger. As with all of our prior editions of the OSHA 3030, this program will be not only this is prerecorded, we'll post it live as a webinar, but we'll also post it on our website and as a podcast. So please feel free to pass this on to colleagues within your organization, both in house, counsel and safety and health professionals, so that you can spread the good word about the program and and help others learn about it. And hopefully that'll strengthen the program for years to come. Let's talk, Ben, about the case, about the facts of the case. Let's start with the background of describing the work site.
- [03:34]
B
Yeah. So we find ourselves Mohnish, like you mentioned, we're in east Texas in St. Augustine county, and we have a operator of a well known as C6 Operating, and it hired contractors to perform a workover on the well. And a workover in simplest terms is a maintenance operation on a well to improve its production capacity. So C6 hired several contractors and included within those contractors were three that are important to this case. We have Jaguar, Reliance, and tcp. So Jaguar was charged, in the simplest terms with operating a machine known as a frac stack. And then we have Reliance, who was in charge with operating the pump stack. And collectively both Jaguar and Reliance were the work that they did was critical to maintain maintaining the pressure within the well. And Reliance also provided the piping that was used for the activity. And tcp, which is the the party in this case, provided the the wireline services for the operation. Mohnish, like you mentioned, and wire lining, again, in simplest terms, is just the process of lowering equipment into the well to perform maintenance on the well, equipment
- [04:44]
A
that either performs the maintenance or does the surveillance of the health of the well. And this is in the simplest terms, obviously, in order to lower equipment, it involves first the setting up of complex rigging systems.
- [04:57]
B
Yeah, it's a very complicated process. But so as we see on December 5, 2022, a TCP crew, consisting of three employees arrived at the well to perform the wire line. And they performed the first part of. They had to do two wireline operations. They performed the first one without incident, no problems. But as they began to perform the second operation, the supervisor of TCP noticed that the well's pressure had increased. As TCP continued with the operation, the supervisor then realized it had nearly doubled. So in response, the supervisor sent another TCP employee to alert the general contractor safety supervisor on site to come up and assess the situation. The general contractor did come out, and during this process, several employees gather around at the well site to observe the situation. And by the time the supervisor arrived, he directed the supervisor of Jaguar to begin lowering the pressure of the well. And this involved opening a flap on the frac stack. But as the Jaguar supervisor started doing this, there was some kind of an issue with the supervisor not closing fully another valve in the process. So as he started lowering the well, the open valve allowed a flood of pressure to rush into the piping system. And this caused. Caused a explosion. And several employees were hurt and two were actually killed.
- [06:22]
A
This process, terrible incident. Something to understand, first of all, the pipe in question they had procured, used. It was not a new pipe for this particular task. And so it had some service life already on it and some corrosion. And that was a weak spot. And so when they fully pressurized that pipe spontaneously by opening up one valve, the pipe was pressurized spontaneously, and the weak spot that was weakened through corrosion from prior use failed. And when you have these kinds of failures, they, they form fissure like failures. And that is essentially asymmetrical in its release of pressure. And so what happens with an asymmetrical spontaneous release of a massive amount of pressure is the pipe has a tendency now to whip around, maybe like a balloon that's been inflated and spontaneously released. The whipping around is inherently unpredictable, almost random seeming. And that massive and very heavy steel pipe is now whipping around in an area where at least three employees were present. Finally, the pipe fails entirely and fragments blow out at a great distance. And those fragments are also potentially hazardous as well. This flying, flying metal fragments are potentially hazardous as well.
- [07:46]
B
And to your point, Myers, just to illustrate the strength of the pipe playing around, one of the folks who was injured or perhaps killed in this case was flung more than 60ft away from where he was standing. So massive amount of pressure that we're
- [07:58]
A
dealing with here, so terrible events, three people struck by this flailing pipe that has a lot of thrust pressure from the released pressure that caused by that failure, materials failure. And one of those employees was sent to hospital. That was a TCP employee. The other two who were killed were not TCP specialists employees. One was actually a supervisor for the general contractor, if I believe, if I recollect correctly. So those are the facts relating to the incident. What happens next is OSHA conducts an investigation, issues a citation, and TCP contested the citation. The citation was issued under the general duty clause.
- [08:40]
B
Yep. Was issued in the general duty clause and the like you mentioned, Manish. The, the process was heard first before an ALJ and then after the ALJ did indeed find in favor of OSHA in this case. And TCP attempted to appeal to the full Occupational Safety and Health Review Commission,
- [08:57]
A
which there's no such thing as at the moment.
- [08:59]
B
Right, right. So this, its review is denied. So the next, the next option under the OSH act is you can seek judicial review within the D.C. circuit lacking a quorum.
- [09:09]
A
Review Commission declined and TCP had to take this directly to the Circuit Court, the U.S. court of Appeals for the District of Columbia Circuit. So now we have an evaluation by the U.S. court of Appeals of the opinion issued by the administrative law judge. To be clear, one thing that the U.S. court of Appeals, Ben, never really articulates or analyzes fully is this idea that TCP advanced that it wasn't, it didn't own the well, it didn't pressurize the well or create the hazard, and it couldn't control the hazard, it didn't have control of the frac stack or any of the pump stack. And so it shouldn't have been held liable. And OSHA's counter contention that nevertheless TCP should be held liable because it was indeed what OSHA calls an exposing employer. Implicit in this back and forth of arguments is the multi employer worksite doctrine, although it's not specifically and expressly analyzed that way by the D.C. u.S. Court of Appeals.
- [10:07]
B
Yeah, I think you're absolutely right. And I think it's important to go over with the community of what exactly the doctrine is and what it implicates.
- [10:15]
A
So the multi employer worksite doctrine is an interpretation created by the agency years ago. And it essentially never went through rulemaking, by the way, the rulemaking procedures called for by the Administrative Procedures act or the Occupational Safety and Health act, which procedures are set up and designed for fairness. And so OSHA never went through those processes. They went straight to issuing an interpretation, a compliance directive, and they basically opined from the headquarters to the area directors that they could issue a citation against any employer, not necessarily the One who created a hazard, but also those employers who had the possibility of correcting hazardous, had the possibility of controlling a hazard, and had the possibility finally of exposing an employee to a hazard, even if that exposing employer didn't create the hazard, control hazard or had any opportunity to correct the hazard. And this is, this is the multi employer worksite doctrine. It has been upheld by several courts, almost all of which or all of which were in the Chevron era of jurisprudence. In other words, an era where courts believed that they needed to pay deference to interpretations that were uttered by an agency, provided those interpretations were filling an ambiguity and were ingenuous, sincere interpretations of what they thought an ambiguity in the statute or regulation might be. But in a post Chevron era, where now the modern, supreme, current Supreme Court had opined that a court has a duty to evaluate for themselves whether or not an interpretation is indeed a bona fide interpretation of the statute, the multi work employer worksite doctrine has not had a full hearing amongst all of those courts that had heard it before. So now what we have is an agency interpretation that even though an employer didn't create a hazard, couldn't possibly correct or control the hazard, they may still be liable if they allowed exposure to employees is theoretically up for debate. And interestingly, the District of Columbia U.S. court of Appeals did not actually analyze that doctrine here.
- [12:32]
B
Yeah, it seems like they might have avoided that issue for one reason or another.
- [12:36]
A
Okay, so let's talk about OSHA's arguments in brief to better understand why OSHA took the position the TCP specialists should have nevertheless been held liable. Yeah.
- [12:45]
B
So osha's argument began with claiming that TCP exposed employees to explosion and struck biohazards by permitting them to stand unnecessarily close to the frac stack and the pressurized pipes during the depressurization activity. And I think a lot of this was relying on testimony of TCP supervisors who stated that during the depressurization, the well created a serious risk. There was a serious risk that was present that employees nearby were exposed to. So this was imputed to TCP as showing that they had knowledge that folks were in fact at risk during this operation.
- [13:23]
A
Right. And again, two out of the three employees that were nearby to the wellhead were not TCP employees and that TCP specialists had no control over those employees. So OSHA also brought in an expert witness. Yeah.
- [13:37]
B
And the expert wisdom was, was, I think, critical to OSHA's case because the expert testified that what TCP should have done was create a. What was a Proper industry practice was establishing a buffer zone around the wellhead, which essentially would excluded any embodiment employees, any workers within 100ft distance from being around the well during the operation to avoid the risk of that was posed by the depressurization activity.
- [14:05]
A
And he testified that he thought that creating a buffer zone of 100ft would have been feasible for TCP specialists. This expert witness is a professional expert witness. You would probably refer to it as a restricted area or a regulated area. And he had proposed essentially to create a restricted or regulated area of 100ft around that pressurized pipe while depressurization activity was taking place. Right.
- [14:30]
B
And to your point, Manish, he cited in his testimony that this was a common practice within the oil and gas industry. So TCP in this respect, the expert testified, was an outlier in how they're doing this.
- [14:41]
A
This assertion by the OSHA's expert witness that it was a common practice in the industry goes to really two critical points under the General Duty Clause, at least. First, that it was a generally recognized hazard, and second, that there are feasible means of abatement can both be established by the fact that other members of the oil and gas community were using these restricted area type practices.
- [15:04]
B
And lastly, OSHA did point out that TCP did not have any relevant safety and health policies and procedures to address how employees should conduct themselves during depressurization activities.
- [15:16]
A
If it were true, then it would certainly be a significant opportunity for TCP specialists or any other employer to improve their safety practices by developing that standard operating procedure that included, in part, stopping and marking off the restricted area. Okay, so that's OSHA's arguments. Let's talk about TCP's arguments.
- [15:36]
B
Right. So TCP had a couple of arguments, the first of which being it claimed that OSHA improperly defined the underlying hazard here that underpinned the General Duty Clause citation. And it said that under Commission precedent, Commission of the Occupational Safety and Health Review Commission, OSHA must define the hazard in terms of physical agents that could injure employees. It can't define them as an absence of a proposed abatement. So what TCP was saying here is that by identifying the hazard as standing too close to the wellhead, OSHA was just reframing the proposed abatement, which is impermissible under Commission precedent.
- [16:15]
A
Yeah, I think that's a good argument. It didn't work here. The US Court of Appeals did not accept that argument. But for other reasons, I think the argument itself is a sound one. The failure to keep people 100ft away from the pressurized pipe is an abatement measure and not the identification of a generally recognized hazard. But, but the court addressed that by saying in other documentation the agency had identified the hazard as hazards associated with highly pressurized pipes. So while the complaint may not have properly stated the hazard, OSHA had articulated what it believed the hazard to be in other documents. I think the citation.
- [16:58]
B
And next tcp, and this goes back to some points that we alluded to earlier. They. They went back to the fact that they did not create the hazard. They were not in control of the depolarization process. As we covered in the facts, it was Jaguar's supervisor that performed the actual depressurization. It was the C6 super safety supervisor who instructed the Jaguar supervisor on how to do the pressurization. And it was likely the pipe that was provided by reliance that was corroded that led to the explosion. The rupture of the pipe, surely.
- [17:30]
A
Yeah, you're right. A failure to inspect the pipe before putting it into service was a contributor. It seems the one thing that TCP did right that none of the other employers in the fact pattern of the case were alleged to have done was to communicate to identify the hazard that pressure was building up. The gauges were showing that this was a highly pressurized pipe and that the pressure continued to increase, as you noted, Ben, doubling during their time that they were examining the pressure levels and that they notified the general contractor and the frac stack operator and the pump operator. They notified them that this has to be depressurized. And they notified them the pressure is still going up. So they're the one organization in all the organizations co located there that identified the hazard and tried to get the right people to do something about it. And yet they were issued a citation basically that they permitted other employers employees to be standing too close along with one of their own employees. So, so that's TCP's arguments and I think those are fair arguments. The D.C. circuit, the U.S. court of Appeals for the Circuit of the District of Columbia evaluated both sides arguments and came to a conclusion that first, as we talked about before, OSHA had properly stated that the hazard was pressurized pipe and that pressurized pipes are known to be hazardous in the industry. The other thing I'd say, and the court of appeals relied heavily on the testimony of this one expert witness. Yeah.
- [18:55]
B
Now the Court also dismissed TCP's argument that it did not have control of the process. What the court emphasized is that even though TCP might not have had control over the depressurization process. What it did have control is the location, the proximity of the employees around the well site. They said that regardless of whether or not the control of the process was there, TPC could have indeed ordered the employees to have moved away from the wellhead to abate the dangers posed by the depressurization.
- [19:25]
A
Court believed that they could have marked off 100ft radius and marked off that area and restricted it and then monitored, had a monitor keep employees out of that area while operations were going on. The other thing that the court relied on heavily for the expert's testimony, expert witnesses testimony, was that assertion by TCP that they had done everything they could and were not going to be ultimately responsible for the depressurization. The court rejected that idea and said that since the exposing employee category of the multi employer worksite doctrine, which they didn't actually articulate that theory, was the one under question that TCP was the last employer to have an opportunity to demarcate that area and keep employees out of the, of any employer out of that area. And that TCP had failed to establish, as we talked about, applicable safety and health protocols for doing so.
- [20:22]
B
The, the court also ruled on the issue of the 100 foot buffer zone and it found that the ALJ was indeed entitled to weigh conflicting evidence. Because as recall what OSHA was saying is that you'd have to have a 100 foot buffer zone. This is common in industry, supported by the expert. And, and TCP had an argument of saying that there were fragments of the pipe that were found more than 100ft away from the site after the explosion. So what their argument was that even if we had this buffer zone in place, it still would have not abated the hazard, wouldn't have prevented the employees from being exposed to the hazard. And on this issue, and I think this goes to the standard by which courts look at ALJ decisions on appeal, the court said that the ALJ was entitled to weigh conflicting evidence. And the standard that, and I think it might be important to mention a little bit, is that on appeal, the standard that courts look at of ALJ decisions is the arbitrary and capricious standard which is deferential to the lower courts of the ALJ in this case decision when it comes to facts especially.
- [21:23]
A
So that's the D.C. circuit's opinion. Let's go ahead and talk about what employers should do in light of this decision. Well, I think to begin with, employers have to, when they operate in a multi employer worksite doctrine type setting where there's multiple employers on site have to recognize that there may be instances where they're not creating any hazards and have no control over a hazard. But they, they have only one power in that circumstance and that might be to keep employees from being exposed to that hazard. That applies not only to their own employees, but to the other co located employees. That's difficult because I think a lot of employers are sensitive to the idea that if they're managing or directing some other employer's employees, then they've become. That is one element of establishing co employment or joint employment. And I think that that is a problematic scenario. But I think when it comes to potential hazards that are imminent and have the potential for severe injuries or fatalities, that every employer has a duty to stop the work immediately and order any employee off of a hazardous area. So I think that's the first challenge that an employer at a multi employer work site is going to face is to understand that they, especially when it comes to eminent and potentially severe hazards, that they have the opportunity to immediately clear the area.
- [22:48]
B
I think another point to take away from this one is to try strive to remove employees from hazards that they do not need to be near. We see in this case that the buffer zone is discussed at the restricted area, like you mentioned, Manesch. So having these practices is important to effectuating that demand. If TCP had indeed a record of disciplining, there could have been an unavoidable employee misconduct defense that they might have raised here.
- [23:16]
A
So I think to go through the steps in order, the first thing that TCP specialists could have done would have been to create a standard operating procedure that sets up their safety practices. And one of which would have been to demarcate a restricted area. Then I think that they need to train their employees and make sure that the employees know what to do and when to do it with respect to the restricted area. And I think that's the communication plan you're describing. Then the third is that I think that every restricted area has to have somebody responsible for being a monitor. And without a monitor, a restricted area, unless it's completely roped off, is going to be very difficult for employees to identify. So marking it off as well as having a monitor I think is a critical element of a restricted area. And then finally, as you say, Ben, I think that people who violate the restricted area, especially with respect to employees that belong to that employer, in this case tcp, they need to be disciplined, they need to be reminded, corrected, and there needs to be a record of those corrections or reminders, even if they don't lead to what we traditionally think of as formal disciplinary procedures. There needs to be notations that people were reminded, remonstrated, coached or instructed to move off of the restricted area. If they're not, if they don't have a reason to be there with that record, as you say Ben, of a disciplinary record and monitoring system, there is a potential that a employer in TCP specialists position could raise an unpreventable employee misconduct offense. That still leaves open the question of employees of other employers. And again, if it's a hazard that has the potential for imminent and severe outcomes, then I think that you have to do the right thing and move employees of other employers out of the hazard zone immediately. Stop work if you have to, but certainly move them out immediately if you have to. And if that's all that it takes, that I think is the first step that employers can do even with respect to other employees. So those are some of the critical steps that I think any employer can take and to keep records of those measures, then I think when you work with other employers on the same work site and they're closely interwoven, their activities and tasks are closely interwoven, there's a coordinated task amongst multiple employers, then I think that those other employers employees have to be trained as well. May not have to be training by your employer, by you, but it may have to be something that you've received assurance that other co located employers have done their training so that you know that your employees are safe and vice versa. That's what we think employers should do in light of the TCP specialist case. That's today's OSHA 3030. We'll be back again next month. In the meantime, please keep an eye out for from our sister programs the Reach 3030 and the Tosca 3030 on August 26th at 10am Eastern for the Reach 3030 and August 12th at 1pm for the TSCA 3030. Our program, the OSHA 3030 will be back on August 19th at 1pm Eastern. So when you get the invitation for that next OSHA3030, please remember to forward it on to at least three others, safety and health professionals or in house counsel responsible for safety and health compliance both in your organization and at other organizations. Thank you all for participating in this month's OSHA 3030. I want to thank the staff here at Keller Heckman for helping put this program together. And Ben Idzik, thank you very much for joining us. We appreciate it and we look forward to seeing you again next month. Until then, stay safe.