IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60342

JACOBS FIELD SERVICES NORTH AMERICA, INCORPORATED, 

 Petitioner

v.

THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR, 

 Respondent

Petition for Review of an Order of the 

Occupational Safety and Health Review Commission

Before BENAVIDES, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Jacobs Field Services North America, Inc., petitions for review of an 

order of the Occupational Safety and Health Review Commission citing Jacobs 

for violations of the process safety management standards, 29 CFR 

§§ 1910.119(j)(2) and (3). The petition for review is DENIED.

I

Jacobs Field Services North America, Inc. (Jacobs) is a maintenance 

contractor that provides skilled labor to perform electrical and 

instrumentation work, pipe-fitting work, millwright work, material handling, 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 19, 2016

Lyle W. Cayce

Clerk

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and warehouse work. Jacobs is the resident maintenance contractor at a 

chemical plant in La Porte, Texas, owned and operated by Akzo Nobel Polymer 

Chemicals (Akzo). Akzo’s La Porte facility manufactures organometallic 

specialty chemicals used in the plastics industry. To transform raw materials 

into new products, Akzo uses a pressure-rated process vessel called a reactor. 

The reactor is connected to six settler tanks, pressure-rated process vessels 

that are used to separate chemicals into heavier and lighter compounds. Each 

tank is a vertical structure with six “decant valves” mounted to its side and 

connected to pipes. Employees use the valves to regulate and direct the flow 

of chemical fluid. To open and close the valves, Akzo uses automated devices 

known as actuators, which are mounted to brackets on top of each valve. 

Actuators at the La Porte facility are mounted using two different methods: in 

the “old style,” four bolts connect the actuator to the top of the bracket and four 

additional, longer bolts hold the bottom of the bracket, the valve bonnet, and 

the valve body together; in the “new style,” the bottom four bolts connect the 

bottom of the bracket to the flange of the valve, a rim that projects from the 

valve body. All eight of the bolts can be removed from a new style mounting 

system, but removing the bottom four bolts from an old-style mounting system 

causes a loss of containment. 

On March 4, 2013, David Atcheson, Jacobs’s instrument and electrical 

supervisor, instructed Jacobs employee Toyo Gonzalez to troubleshoot four 

actuated decant valves on the T-802 BEM settler tank, which contained 

approximately 9,500 gallons of butylethylmagnesium-heptane mixture (BEM). 

BEM is pyrophoric, meaning that it ignites when exposed to air. Gonzalez 

checked the air flow on the malfunctioning actuators and replaced the fittings 

and air lines, which resolved the problem with three of the four. When 

replacing these components did not resolve the problem with the fourth valve, 

Gonzalez attempted to remove the actuator from the bracket mounting it to 

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valve. This actuator was mounted in the old style. After removing several of

the bolts that attached the actuator to the top part of the bracket, Gonzalez 

was still unable to remove the actuator. He then attempted to remove the 

actuator bracket by loosening the bottom four bolts. This caused a loss of 

containment: BEM was released from valve and splashed onto Gonzalez, 

causing first- and second-degree burns to his face, wrists, and neck. 

The following day, the Occupational Safety and Health Administration 

(OSHA) conducted an inspection of the La Porte facility. OSHA issued Jacobs 

a citation alleging six violations of the Occupational Safety and Health Act 

(OSH Act) and its process safety management (PSM) standards:

- Item 1 alleged a serious violations of 29 C.F.R. § 1910.119(d)(3) for 

failing to make information available to employees pertaining to 

equipment in the process;

- Item 2a alleged a serious violation of § 1910.119(f)(4) for failing to 

develop and implement safe work practices to provide for the control of 

hazards;

- Item 2b alleged a serious violation of § 1910.147(c)(4)(i) for failing to 

ensure procedures were developed, documented, and utilized for the 

control of potentially hazardous energy when employees were engaged 

in maintenance activities;

- Item 3 alleged a serious violation of § 1910.119(j)(2) for failing to

establish and implement written procedures for maintaining the ongoing 

integrity of process equipment;

- Item 4 alleged a serious violation of § 1910.119(j)(3) for failing to train 

Gonzalez in an overview of the process and its hazards and in the 

procedures applicable to his tasks; and

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- Item 5 alleged a serious violation of § 1910.132(d)(1)(i) for failing to 

assess hazards in the workplace and select and require affected 

employees to use appropriate personal protective equipment.

Proposed penalties totaled $33,000.00.

Jacobs contested the citation and a hearing was held before an 

administrative law judge (ALJ) on April 16-17, 2014. Jacobs asserted that as 

the owner and operator of the plant, Akzo was the appropriate “employer” 

responsible for fulfilling the requirements set forth in the cited PSM standards 

and that the cited standards did not apply to Jacobs. Jacobs also argued that 

the lockout/tagout standard, § 1910.147(c)(4)(i), did not apply to the cited 

activity, and that Gonzalez was wearing appropriate personal protective 

equipment under § 1910.132(d)(1)(i). Finally, Jacobs asserted the affirmative 

defense of unpreventable employee misconduct. On September 4, 2013, the 

Secretary of Labor (Secretary) withdrew Item 1 of the Citation. 

On February 5, 2015, the ALJ issued an order vacating Items 2a, 2b, and 

5 of the citation,1 affirming Items 3 and 4, and assessing a penalty of $7,000 

for each affirmed violation. In affirming Items 3 and 4, the ALJ expressly 

rejected Jacobs’s argument that §§ 1910.119(j)(2) and (3) do not apply to 

contract employers, finding that, under OSHA’s multi-employer policy, the 

cited standard applied “to the cited conditions, not to the cited employer.” 

Because Jacobs was the “exposing employer,” it was responsible “for all 

violative conditions to which its employee had access.” The ALJ also expressly 

rejected Jacobs’s argument that standard did not apply because the actuator 

 

1 The ALJ found that Items 2a and 2b were duplicative and therefore struck Item 2a. 

After analyzing Item 2b, he determined that the Secretary had failed to establish that Jacobs 

had actual or constructive knowledge that its employee would have access to the release of 

chemical energy and thus failed to prove a violation of § 1910.147(c)(4)(i). The ALJ vacated 

Item 5 after determining that the Secretary’s citation incorrectly focused on “the adequacy of 

the PEE used by Gonzalez, [rather than] the lack of a hazard assessment.”

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was not a part of the “process equipment” covered by §§ 1910.119(j)(2) and (3). 

Finding that “Jacobs’s focus on the actuator as the component to which sections 

1910.119(j)(2) and (3) apply is too narrow,” the ALJ concluded that the 

standard applied “to the bracket and bolts used to mount to actuator to the 

valve bonnet,” and thus to the cited condition. 

On March 2, 2015, Jacobs filed a petition for discretionary review with 

the Occupational Safety and Health Review Commission (OSHRC or 

Commission). In its petition, Jacobs argued that the ALJ erred in affirming 

Items 3 and 4 because “Jacobs was not tasked by Akzo Novel with performing 

mechanical integrity work, and Jacobs did not otherwise task its employee to 

perform mechanical integrity work.” The Commission did not direct the case 

for review, and the ALJ decision became the final order of the Commission on 

March 23, 2015. On May 12, 2015, Jacobs filed a timely petition for review 

with this court.

II

The Commission’s factual findings are conclusive on review if they are

supported by substantial evidence in the record as a whole. 29 U.S.C. § 660(a);

MICA Corp. v. OSHRC, 295 F.3d 447, 449 (5th Cir. 2002). We will uphold the 

Commission’s legal conclusions unless they are arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law. MICA Corp., 295 F.3d 

449. We apply these same standards to an unreviewed ALJ decision. Austin 

Indus. Specialty Servs., L.P. v. OSHRC, 765 F.3d 434, 438-39 (5th Cir. 2014). 

The Secretary’s interpretation of his own standard must be upheld if it is 

reasonable, that is, if it “sensibly conforms to the purpose and wording of the” 

standard. Martin v. OSHRC (CF&I Steel Corp.), 499 U.S. 144, 150-52 (1991); 

MICA Corp., 295 F.3d at 449. The Secretary’s reasonable interpretation of the 

OSH Act is likewise entitled to deference. National Ass’n of Home Builders v.

OSHA, 602 F.3d 464, 468 (D.C. Cir. 2010).

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III

Jacobs raises three challenges to the Commission’s final order. First, it 

argues that the ALJ erred in applying the requirements of §§ 1910.119(j)(2) 

and (3) to it, a contract employer. Second, it argues that, even if it were subject 

to the requirements of §§ 1910.119(j)(2) and (3), the ALJ erred in determining 

that the injured employee was tasked with performing “mechanical integrity” 

work such that those requirements applied. Finally, in its reply brief, Jacobs

argues that the ALJ erred in determining that it knew or should have known 

of the hazardous condition. We find that the first and third arguments are 

forfeited, and we reject the second.

A

Section 11(a) of the OSH Act states that “[n]o 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.” 29 U.S.C. § 660(a). “The language of section 

660(a) indicates that proceedings targeted towards the Commission, not those 

before the administrative law judges, are the predicate to judicial review.” 

McGowan v. Marshall, 604 F.2d 885, 890 (5th Cir. 1979). “While great 

specificity is not required in a review petition, this court 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. 1981) reh’g granted, opinion modified on other 

grounds, 673 F.2d 111 (5th Cir. 1982). Our sister circuits have explained that 

to preserve an argument for appellate review, the employer’s petition for 

discretionary review must “offer a modicum of developed argumentation in 

support of” the objection, P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100, 107 

(1st Cir. 1997), and that an employer’s “abbreviated mention of its challenge 

to the validity of the [cited] Standard is ‘wholly inadequate to satisfy the 

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requirement of § 660(a) that an objection be urged before the Commission,’” 

Durez Div. of Occidental Chem. Corp. v. OSHA, 906 F.2d 1, 5 (D.C. Cir. 1990) 

(quoting Brown & Root, 659 F.2d at 1293).

In its petition for discretionary review, Jacobs did not urge an objection 

to the ALJ’s finding that 29 C.F.R. §§ 1910.119(j)(2) and (3) properly applied 

to it as a contract employer. The petition expressly “takes exception” to only 

two portions of the ALJ’s Decision and Order: (1) that “wherein the [ALJ] finds 

as a fact that ‘the same bolts hold the valve bonnet and valve together also 

connect the actuator to the valve,” and (2) that “wherein the [ALJ] concluded 

that the actuator is ‘process equipment.’” Jacobs’s only mention of the ALJ’s 

finding that the standard is applicable to it as a contract employer occurred in 

the context of the second objection. The company wrote:

The ALJ rejected Jacobs’ argument that under the circumstances, 

the requirements of paragraph (j) were intended to apply to Akzo 

Nobel as the host employer, and not to Jacbos, a contract[] 

employer. Even assuming the ALJ is correct and the requirements 

of paragraph (j) are applicable to Jacobs under the circumstances, 

then Jacobs’ determination that the actuator was not critical 

process equipment controls.

At best, this is an “abbreviated mention” of Jacobs’s challenge to the 

application of the standard; plainly read, the objection fails to contest the ALJ’s

determination. 

In its reply brief, Jacobs asserts that “[t]he issue is the applicability of 

(j)(1) and (j)(3) to Jacobs, a contractor” and that “[i]n supporting its position 

that those provisions do not apply, Jacobs is not precluded from arguing each 

of the multiple reasons these requirements do not apply to Jacobs under the 

circumstances of this case.” But this argument proves too much; extending its 

logic, the issue in any petition for discretionary review could be framed as “the 

impropriety of the OSHA citation” and any reason could then be presented as 

an objection in a petition for appellate review. Furthermore, Jacobs’s attempt 

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to distinguish an “issue” from a “reason” is inconsistent with the language of 

29 U.S.C. § 660(a), which speaks of “objections,” and with this court’s 

precedent. See Brown & Root, 659 F.2d at 1294 (finding the petition for 

discretionary review “insufficient to alert the Commission to the arguments it 

now seeks to raise”) (emphasis added).

Because the contention that 29 C.F.R. §§ 1910.119(j)(2) and (3) were not 

properly applicable to Jacobs as a contract employer was not urged before the 

Commission in a petition for discretionary review, we find that this argument

was forfeited and thus hold that this court lacks jurisdiction to consider it. See 

McGowan, 604 F.2d at 889 (characterizing the requirements of 29 U.S.C. 

§ 660(a) as jurisdictional in nature). 

B

Jacobs argues that, even if §§ 1910.119(j)(2) and (3) do apply to contract 

employers, the ALJ erred in applying them in this case because the actuator 

was not “process equipment” within the meaning of § 1910.119(j)(1). In its 

Compliance Guidelines and Recommendations for Process Safety 

Management, OSHA observes that “[e]quipment used to process, store, or 

handle highly hazardous chemicals needs to be designed, constructed, installed 

and maintained to minimize the risk of releases of such chemicals.” § 1910.119 

App’x C (Feb. 8, 2013). The preamble to the final PSM rule explains: 

[T]he goal of the mechanical integrity provisions is to ensure that 

highly hazardous chemicals covered by the standard are contained 

within the process and not released in an uncontrolled manner. 

The equipment OSHA has listed in proposed paragraph (j)(1) 

constitutes process equipment that the Agency considers critical in 

achieving this goal.

57 FR at 6389. Section 1910.119(j)(1) lists six types of process equipment to 

which the mechanical integrity requirements apply: pressure vessels and 

storage tanks; piping systems (including piping components such as valves); 

relief and vent systems and devices; emergency shutdown systems; controls 

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(including monitoring devices and sensors, alarms, and interlocks); and

pumps. 

The citation alleged that Jacobs failed to have written procedures, in 

violation of § 1910.119(j)(2), and failed to provide training, in violation of 

§ 1910.119(j)(3), to maintain the on-going integrity of process equipment with 

regard to “separating the valve and actuator to repair the valves in the piping 

of the BEM Settlers.” After hearing testimony on the issue from Ronald 

Wilson, Akzo’s safety manager; Tony Cornwell, Jacobs’s expert in chemical 

engineering and process safety management; and James Johnstone, the 

Secretary’s expert, the ALJ agreed with the Secretary and found that 

§ 1910.119(j)(2) and (3) “apply to the bracket and bolts used to mount the 

actuator to the valve bonnet.” He therefore concluded that the cited standards 

applied to the cited condition.

Jacobs argues that the Secretary failed to establish that the mechanical 

integrity standards applied to Gonzalez’s work on the actuated valves. It 

argues that the actuator is not covered process equipment. However, in 

making its argument, Jacobs misinterprets the regulation and misreads the 

ALJ’s decision. Jacobs asserts that “to establish the applicability of 

subparagraphs (j)(2) and (j)(3), the Secretary must establish that the actuator 

is on the enumerated list of process equipment identified in paragraph (j)(1).” 

This is not strictly accurate; in fact, the Secretary must establish that Gonzalez 

was “involved in maintaining the on-going integrity of process equipment.” 

§ 1910.119(j)(3). And the regulatory definition of piping systems, one of the 

listed types of process equipment, is expressly open-ended: “piping systems 

(including piping components such as valves).” § 1910.119(j)(1)(ii) (emphasis 

added). As previously noted, the ALJ observed that “Jacobs’s focus on the 

actuator as the component to which sections 1910.119(j)(2) and (3) apply is too 

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narrow,” and concluded that the standard in fact applied to the actuator’s 

mounting system. 

Jacobs also attacks the ALJ’s observation that “[t]he same bolts that hold 

the [valve] bonnet and valve together also connect the actuator to the valve.” 

According to testimony at the hearing, the four bolts attaching the actuator to 

its bracket were distinct from the four bolts that attached the bracket, the 

valve, and the valve bonnet. Jacobs contends that the ALJ’s suggestion 

otherwise is “a critical error of fact that contributed to the ALJ’s erroneous 

conclusions of law.” However, the ALJ’s observation is not clearly inaccurate. 

The actuator bracket is designed to hold the actuator in place, and the bottom 

four bolts were necessary to hold the bracket to the valve. Furthermore, this 

finding is not critical to the ALJ’s conclusion that the § 1910.119(j)(2) and (3) 

apply to the actuator’s mounting system. The same bolts connect the bracket, 

the valve, and the valve bonnet, and removing the bracket would both remove 

the actuator and “break the line.” And Johnstone testified that “the bracket is 

as much of the piping system as the bonnet is on the valve . . . it has to be there 

for that valve to work.” The conclusion that the bracket and bolts used to 

mount the actuator to the valve bonnet are process equipment within the 

meaning of § 1910.199(j)(1) was thus not arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.

Finally, Jacobs argues that the standard should not apply because 

Gonzalez went beyond his assigned task when he removed the bottom four 

bolts.2 Jacobs contends that “[t]he release resulted when the employee went 

 

2 Jacobs’s argument is based on the ALJ’s dismissal of Item 2(b) on the grounds that 

“[t]he task assigned to the employee did not require the employee to cause a line break.” But 

this observation was related to the conclusion that the Secretary failed to establish that 

Jacobs had actual or constructive knowledge of the need to use energy control procedures. 

The mechanical integrity standards do not apply only to situations in which a line break is 

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beyond the scope of troubleshooting the actuator, the task to which he was 

assigned, and attempted to remove the bottom four bolts securing the bracket 

to the valve.” As a result, Jacobs argues, Gonzalez was not “involved in 

maintaining the on-going integrity of process equipment.” § 1910.119(j)(3). 

But Jacobs admits that Gonzalez “was tasked with troubleshooting an actuator 

that may have required [him] to remove the actuator from the top of the 

bracket.” His assignment therefore required him to work on the actuator’s 

mounting system, which the ALJ fairly considered to be covered process 

equipment. And his alleged deviation from his assigned task, although 

disastrous, was understandable. When he could not remove the actuator from 

the bracket, he tried to remove the bracket from the valve; this would have 

been safe on an actuator mounted in the new style, the system with which 

Gonzalez had more experience. The fact that the accident occurred while 

Gonzalez was trying to fulfill his work order demonstrates that the Secretary’s 

interpretation of the regulations and issuance of the citation “sensibly 

conform[ed] to the purpose and wording of the” standard. CF&I Steel Corp., 

499 U.S. at 150-52.

The definition of covered piping systems is open-ended: “piping systems 

(including piping components such as valves).” § 1910.119(j)(1)(ii) (emphasis 

added). Because one set of bolts connects the actuator bracket, the valve, and 

the valve bonnet, and because removing the bracket would “break the line,” 

the ALJ’s conclusion that the bracket and bolts used to mount the actuator to 

the valve bonnet are process equipment within the meaning of § 1910.119(j)(1) 

was not arbitrary, capricious, an abuse of discretion, or otherwise not in 

 

anticipated, but rather where a line break is possible. See Process Safety Management of 

Highly Hazardous Chemicals; Explosives and Blasting Agents 57 FR at 6389. 

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accordance with law. Neither, consequently, was the ALJ’s determination that 

§§ 1910.119(j)(2) and (3) applied to Jacobs.

C

To support a citation, the Secretary must show by a preponderance of 

the evidence that: (1) the OSHA standard invoked applies to the cited 

conditions; (2) the requirements of the standard were not met; (3) employees 

were exposed to or had access to the hazardous condition; and (4) the employer 

knew or should have known of the hazardous condition with the exercise of 

reasonable diligence. Secretary of Labor v. Icarus Industrial Painting and 

Contracting Co., 19 O.S.H. Cas. (BNA) 2101, 2102 (2002). In its reply brief, 

Jacobs argues that the Secretary failed to carry his burden under Icarus

because “Jacobs did not know, and could not have known through the exercise 

of reasonable diligence, that Mr. Gonzales would disassemble the valve while 

troubleshooting the actuator and thereby be exposed to hazard of a release.” 

This argument was not raised before the Commission and was not addressed 

in Jacobs’s opening brief. As a result, the argument is forfeited. 29 U.S.C. 

§ 660(a); Fed. R. App. P. 28(a)(8)(A).

IV

In summary, we hold that the Commission’s final order affirming 

violations of §§ 1910.119(j)(2) and (3) and assessing violations was not

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law. Jacob’s petition for review is therefore DENIED. 

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