UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|HILDA L. SOLIS, Secretary
Department of Labor,
OSHRC Docket No.
|PIONEERS NATURAL RESOURCES USA, INC.
and its Successors,
Come now Complainant and Respondent and submit the following settlement agreement pursuant to Rule 2200.100 of the Commission's Rules of Procedure:
This settlement agreement specifies the terms of settlement as set out below for each contested item and disposes of all issues in the case.
Affected employees have not filed objections to the reasonableness of any abatement time.
- Complainant amends the Citation as follows:
||Amend to state:
Citation 1 Item 2. Type of Violation: Serious
1910.132(d)(2): The employer shall verify that the required workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated; identifies the person certifying that the evaluation has been performed; identifies the date of the hazard assessment; and which, identifies the document as a certification of hazard assessment:
Pioneer Natural Resources, Shackelford 24-F, Midkiff, Texas. For the period of time up to and including 11/8/08, the employer's workplace hazard assessment failed to identify the person certifying that the evaluation assessing PPE, such as flame-resistant clothing, hard hats, eye protection, etc., had been performed.
Proposed Penalty: $7,000.00
The withdrawal of Citation 1, Item 1 is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.
- Pioneer Natural Resources USA, Inc. (referred to herein as Respondent and Pioneer) agrees to implement a flame-resistant clothing (FRC) program in accordance with the information and directives described in Paragraph 3 infra by March 30, 2011.
- To the extent FRC is not available from the supplier by March 30, 2011, Respondent may request a modification of the abatement deadline.
- Respondent will train all affected employees on the FRC program by March 30, 2011 or within thirty (30) days of the date Respondent hires the affected employee.
- Respondent will provide documentation of the implementation of the FRC program and the training of affected employees to the Lubbock District Office by April 14, 2011.
- For the purposes of Pioneer's FRC Program, FRC includes both flame-resistant and fire retardant treated clothing. Pioneer shall require the use of FRC under the following circumstances:
- Pioneer shall require the use of FRC during drilling operations where the potential for flash fire exists, such as when active gas or hydrocarbon zones are reached or when other activities warrant the use of FRC; e.g. fracing a previously drilled well while rigging a well in close proximity.
- Pioneer shall require that appropriate FRC be worn by exposed employees working on the well site prior to drilling into identified gas or hydrocarbon zones. Employees shall wear FRC in advance of reaching such zones.
- Pioneer shall require that appropriate FRC be worn when there is a history of fluid or gas kicks from underground producing zones.
- Once FRC is identified for use as provided above, employees shall wear appropriate FRC until the final casing is cemented and the well is effectively closed.
- Pioneer shall require the use of FRC during well servicing operations on oil or gas wells that are active or in production which involve the accessing and extraction of oil and gas. Servicing operations shall also include work on inactive wells, such as stimulating, plugging or capping. FRC shall be provided and worn during well servicing or workover operations, such as:
- Pulling wet string tubing;
- Snubbing tubing;
- Swabbing operations;
- Fracturing or perforating the well;
- Using bridge plugs or packers;
- Open hole work;
- Flow testing, blowing down or venting the well;
- Plugging an abandoned well;
- Flowback operations;
- Wireline operations; and
- Any operation working with wellhead or wellbore under pressure.
- Pioneer shall require the use of FRC during production-related operations that present the potential for flash fires, including those operations that bring the well fluids to the surface, separate, store, gauge, and otherwise prepare the product for delivery. This phase occurs after a well has been drilled, completed, and placed into operation, or after it has been returned to operation following workover or servicing. FRC shall be provided and worn during production-related operations, such as:
- Equipment openings (e.g., line breaking or valve changes);
- Transfer of hydrocarbons;
- Maintenance operations on production equipment;
- Hot work operations;
- Tank heating;
- Using open flame; and
- Start-up operations;
- Should OSHA's enforcement policies and/or enforcement guidelines with regard to FRC change during the term of this Agreement, Pioneer may request a meeting with OSHA to discuss the changes as it affects this Agreement. Upon receiving this request, the Lubbock OSHA District Office will designate personnel to meet with Pioneer. An agreement to amend the Agreement to more closely conform to OSHA's FRC enforcement policies/guidelines, as amended, shall not be unreasonably withheld.
- The abatement requirements as described in this Agreement are intended to apply to all of Respondent's existing and new worksites under federal OSHA jurisdiction but excludes those worksites located in states that administer state plans approved under Section 18 of the Occupational Safety and Health Act of 1970, 29 CFR U.S.C. § 651, et seq. (the "Act" . Use of the word "worksites" hereinafter in this Agreement shall refer only to Pioneer Natural Resources worksites under federal jurisdiction. Respondent currently has covered worksites in the following states: Alaska, Colorado, Kansas, New Mexico, Oklahoma, and Texas.
- Respondent promises to pay the $7,000.00 in assessed penalties no later than ten (10) days after the date of this Agreement, which shall be the date of the last signature hereto. Respondent shall tender payment to: Lubbock District Office, 1205 Texas Avenue, Room 806, Lubbock, Texas 79401-4039. The check shall be made payable to "U. S. Department of Labor - OSHA."
- Respondent states that the specific conditions described in the citations have been corrected.
- Respondent will comply with all applicable abatement verification provisions of 29 C.F.R. § 1903.19, including but not limited to, all certification, documentation, and posting requirements. Abatement certification shall be accomplished by April 14, 2011, by mailing a letter to Occupational Safety and Health Administration, Lubbock District Office, 1205 Texas Avenue, Room 806, Lubbock, Texas 79401-4039, stating that abatement has been completed, the date and method of abatement, and that affected employees and their representatives have been informed of the abatement. Any required abatement documentation shall be submitted along with the abatement certification.
- The parties agree that the citation as amended and the specific abatement measures set forth in paragraph 3 this Agreement shall be considered required abatement of the cited conditions and that the failure to perform any measures required in the Agreement may be cited as failure to abate under Section 10(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. ("the Act"), 29 U.S.C. § 659(b), to the same extent as if these abatement measures had been set forth from the outset in the Citations issued in this matter.
- Respondent agrees that failure to implement the abatement measures set forth in paragraph 3 of this Agreement may be subject to an enforcement action brought by Complainant pursuant to Section 11(b) of the Act, 29 U.S.C. § 660(b), to the same extent as if these abatement measures had been set forth from the outset in the Citations issued in this matter. Respondent agrees that it will not oppose the entry of such an order of enforcement by the United States Court of Appeals to which Complainant presents this Agreement and supporting documents.
- Respondent withdraws its notice of contest.
- Neither this settlement agreement nor Respondent's consent to entry of a final order by the Commission pursuant to this agreement constitutes any admission by Respondent of violation of the Occupational Safety and Health Act or regulations or standards promulgated there under. Neither this settlement agreement nor any order of the Commission entered pursuant to this agreement shall be offered, used or admitted in evidence in any proceeding or litigation, whether civil or criminal, except for proceedings and matters brought by the United States Government. Respondent is entering into said agreement without any prejudice to its rights to raise any defense or argument in any future or pending cases before this Commission. By entering into this Agreement Respondent does not admit the truth of any alleged facts, any of the characterizations of Respondent's alleged conduct or any of the conclusions set forth in the citation or amended citations issued in this matter.
- Respondent promises to permit Complainant access to the workplace at issue herein subsequent to the date fixed for abatement for the specific and limited purpose of determining if the conditions described in the citations at issue herein have been corrected.
- This Agreement shall expire two (2) years from the date it becomes a final order of the OSHRC. Respondent expressly agrees that all duties and obligations relating to its specific abatement actions required herein shall be fully completed and implemented prior to the expiration of this Agreement. In the event Respondent fails to timely abate and comply with the terms of this Agreement, Respondent will not assert that this expiration date in any way affects Respondent's duty to fully comply with the Agreement.
- Respondent certifies that the affected employees in the above-style case are not represented by an authorized employee representative.
- Respondent certifies that a copy of this settlement agreement has been served upon the unrepresented affected employees in the manner set forth in Rule 2200.100 of the Commission's Rules of Procedure, by posting same on the ____ day of _____________, 2010.
- Each party agrees to bear its own attorney's fees, costs and other expenses incurred by such party in connection with any stage of the above-referenced proceeding including, but not limited to, attorney's fees which may be available under the Equal Access to Justice Act, as amended.
PIONEER NATURAL RESOURCES USA, INC.
Signed this __________ day of
Attorneys for Respondent
Rader & Campbell
2777 Stemmons Freeway, Suite 1125
ODallas, Texas 75207
Telephone: (214) 630-4700
Facsimile: (214) 630-9996
M. PATRICIA SMITH
Solicitor of Labor
JAMES E. CULP
MADELEINE T. LE
Counsel for Occupational Safety & Health
KARLA S. JACKSON
Signed this __________ day of
Attorneys for Complainant
U. S. Department of Labor
Office of the Solicitor
525 Griffin Street, Suite 501
Dallas, Texas 75202
Telephone: (972) 850-3100
Facsimile: (972) 850-3101
NOTICE TO AFFECTED EMPLOYEES NOT
REPRESENTED BY A LABOR ORGANIZATION
EACH AFFECTED EMPLOYEE WHO IS NOT REPRESENTED BY A LABOR ORGANIZATION HEREBY IS GIVEN NOTICE THAT ANY OBJECTIONS TO THE ENTRY OF AN ORDER APPROVING THIS SETTLEMENT AGREEMENT MUST BE FILED WITHIN TEN (10) DAYS FROM THE DATE THAT THIS SETTLEMENT AGREEMENT IS POSTED. SUCH OBJECTIONS MUST BE SET FORTH IN WRITING AND MAILED TO BENJAMIN R. LOYE, ADMINISTRATIVE LAW JUDGE, OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, 721 19TH STREET, SUITE 407, DENVER, COLORADO, 80202 WITH COPIES TO COMPLAINANT AND RESPONDENT.