United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC Docket No. 19-1498 

PETROPLEX PIPE AND CONSTRUCTION, INC., 

Respondent. 

FINAL ORDER 

The parties have submitted a Joint Notification of Full Settlement pursuant to Commission 

Rule 100, 29 C.F.R. § 2200.100, informing the Commission that they have resolved all the 

contested citation items in this case. Since the parties have agreed to terminate the proceeding 

before the Commission, the case is hereby DISMISSED. 

SO ORDERED. 

 

BY DIRECTION OF THE COMMISSION

Dated: August 26, 2022 /s/ 

 John X. Cerveny 

Executive Secretary 

 
Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

OSHRC Docket No. 19-1498 

 

Appearances:

Amy S. Hairston, Esq., Department of Labor, Office of Solicitor, Dallas, Texas

 For Complainant 

Aaron J. Burke, Esq., and Kathleen M. Cruz, Esq., Burke Bogdanowicz PLLC, Dallas, 

Texas

 For Respondent 

Before: Judge Christopher D. Helms– U. S. Administrative Law Judge 

DECISION AND ORDER

 

I. Procedural History

On March 4, 2019, Petroplex Pipe and Construction, Inc. (“Respondent”) performed work 

at a jobsite located at Sale Ranch 17, Stanton, Texas (“worksite” or “site”). On that date, three of 

Respondent’s employees, [redacted] (“[redacted]”), [redacted] (“[redacted]”), and [redacted], 

(“[redacted]”), entered the worksite in order to perform maintenance work. (Joint Stip. at 6, 7). 

While performing the maintenance work, [redacted] heard a loud pop. (Joint Stip. at 7). A large 

fire ensued, resulting in the deaths of Respondent’s employees, [redacted] and [redacted]. (Joint 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

PETROPLEX PIPE AND CONSTRUCTION, 

INC.,

 

 Respondent. 
3

Stip. at 31). In response to the employees’ worksite deaths, the Occupational Safety and Health 

Administration (“OSHA”) began an inspection of the worksite that same day, on March 4, 2019. 

As a result of OSHA’s inspection, the Secretary of Labor (“Secretary”) issued a Citation and 

Notification of Penalty (“Citation”) on August 30, 2019, to Respondent. The Citation consisted 

of eleven serious items. Prior to the hearing, the Secretary withdrew several items. The remaining 

items and Citation, as amended,1 alleged a serious violation of the general industry standard 29 

C.F.R. § 1910.147(c)(4)(ii), a serious violation of 29 C.F.R. § 1910.147(c)(6)(ii), a serious 

violation of 29 C.F.R. § 1910.147(c)(7)(i)(A), a serious violation of 29 C.F.R. § 1910.147(8), and 

a serious violation of 29 C.F.R. § 1910.147(f)(2)(i).

2

 The Citation, as amended, proposed a penalty 

of $59,670. 

 Petroplex filed a timely notice of contest bringing the matter before the Occupational 

Safety and Health Review Commission (the “Commission”).3

 The matter was designated for 

Conventional Proceedings by the Chief Administrative Law Judge and assigned to this Court on 

December 6, 2019. A trial was held on September 21-23, 2021, via videoconference. The 

following individuals testified: (1) [redacted], a former crew supervisor for Respondent; (2) 

1 On June 4, 2020, the Secretary’s Motion to Amend the Complaint and Citation was granted. The 

amendment set forth citation 1, item 5 be amended to allege a serious violation of 29 C.F.R. § 

1910.147(c)(4)(ii). 

2 On August 10, 2020, pursuant to Rule 102 of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.102, 

the Secretary withdrew citation 1, items 1, 2, 3a, 3b, 4, 10, 11a, and 11b and the penalties associated with 

each of those items in the Citation and Notification of Proposed Penalty. Prior to the hearing, Respondent 

filed a Motion for Summary Judgment contending that the Complaint should be dismissed. Among other 

arguments, Respondent argued that no material disputed facts existed as to whether the violations as alleged

applied to Respondent and/or Respondent had complied with the cited standards. 

Following review and consideration of Respondent’s Summary Judgment Motion, the undersigned denied 

the motion finding material facts existed which prevented summary judgment from being entered against 

the Secretary. 

3 The Commission is an independent adjudicatory agency and is not part of the Department of Labor or

OSHA. 29 U.S.C. § 661. It was established to resolve disputes arising out of enforcement actions brought 

by the Secretary of Labor under the OSH Act and has no regulatory functions. 29 U.S.C. § 659(c).
4

Thomas Bridges, the President of Respondent; (3) Benjamin Muller, a safety specialist for Pioneer 

Natural Resources USA, Inc.; (4) Jesse Nevarez, Jr., a former lease operator for Pioneer Natural 

Resources USA, Inc.; (5) Compliance Safety and Health Officer (“CSHO”) Patricia Smothermon; 

(6) Curtis Chambers, the President of OSHA Training Services, Inc.; (7) John Douglas Campbell,

a safety manager for Respondent; and (8) Jason London, a foreman for Respondent. 

Both parties submitted timely post-trial briefs.4 Pursuant to Commission Rule 90, after 

hearing and carefully considering all the evidence and the arguments of counsel, the Court issues 

this Decision and Order as its findings of fact and conclusions of law. 

For the reasons discussed, citation 1, item 5, as amended, citation 1, item 6, and citation 1, 

item 8 are AFFIRMED. Citation 1, items 7 and 9 are VACATED. 

II. Stipulations & Jurisdiction

The parties stipulated to various facts, including several jurisdictional details.

5

 (Joint 

Stipulation Statement). Based on the Joint Stipulations, the Court finds the Commission has 

jurisdiction over this action pursuant to Section 10(c) of the Act, 29 U.S.C. § 659(c). Further, the 

Court obtained jurisdiction over this matter under section 10(c) of the Occupational Safety and 

Health Act (“Act”) upon Respondent’s timely filing of a notice of contest. 29 U.S.C. § 659(c). 

The Court also finds Respondent was an employer engaged in a business and industry affecting 

interstate commerce within the meaning of sections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3), 

(5). 

4 Affirmative defenses not raised at the hearing are deemed waived and abandoned by Respondent. 

Corbesco, Inc. v. Dole, 926 F.2d 422, 428–29 (5th Cir. 1991). Any affirmative defenses not raised at the 

hearing are deemed waived by Respondent. Corbesco, Inc. v. Dole, 926 F.2d 422, 428–29 (5th Cir. 1991). 

Respondent did not raise any affirmative defenses at the hearing or in its post-trial brief. 

5 The Joint Stipulations were received and admitted as a Joint Stipulation Statement and read into the record.
5

III. Factual Background6

A. The Company 

Respondent is a general oil field service company, which provides construction and 

maintenance services for host employers. (Joint Stip. at 3). It is an oil and gas services company 

headquartered in Midland, Texas, with approximately 140 employees at the time of the incident. 

(Tr. 111-113). In 2019, Respondent was engaged in maintenance repair work at a worksite located 

in Stanton, Texas. (Citation; Joint Stip. at 5, 6). On March 4, 2019, Pioneer Natural Resources 

USA, Inc., (“Pioneer”) had hired Respondent to perform the maintenance work. (Joint Stip. at 6). 

Specifically, Respondent was hired to perform maintenance work to replace a level controller and 

peanut valve and to ensure stainless steel air supply lines were clear on the oil boot of Heater 

Number 7. (Joint Stip. at 6).

Respondent’s worksite management consisted of crew supervisor, alternatively known as 

a pusher, [redacted]. (Joint Stip. at 7). Respondent’s maintenance crew further consisted of 

[redacted] and [redacted] (Joint Stip. at 7, 9). Pioneer’s lease operator for the worksite was Jesse 

Nevarez. (Joint Stip. at 22). 

B. The Tank Battery

On March 4, 2019, Respondent’s crew arrived at the worksite to perform maintenance work

on one of Pioneer’s tank batteries located at Sale Ranch 17. (Tr. 114-115; Joint Stip. at 6). The 

tank battery consists of several heater treaters, which apply heat to the emulsion from wells to 

separate the oil, gas, and water. (Tr. 121-125). An oil boot, alternatively discussed as an oil pot, 

is part of the heater treater, which is a reservoir for oil after it has been separated. (Tr. 124-125). 

The oil boot has a top level controller and a bottom level controller, which screw into the side of 

6 The factual background is based on the credible record evidence, as discussed below, and consideration 

of the record as a whole. Contrary evidence is not credited.
6

the oil boot. (Tr. 160-161). A peanut valve is also part of the oil boot, which acts as a control 

valve that opens and closes the dump valve for the oil boot. (Tr. 160). 

When Respondent’s crew arrived, they performed a Job Safety Analysis before they began 

performing any maintenance work. (Joint Stip. at 20). Jesse Nevarez, Pioneer’s lease operator,

was not present at the site, and the oil boot had not yet been isolated and locked out or tagged out. 

(Joint Stip. at 23). Mr. [redacted] contacted his supervisor, Jason London, and asked him to contact 

the Pioneer lease operator. (Tr. 67-68; Joint Stip. at 24). 

When Mr. Nevarez arrived, Mr. [redacted] instructed him to isolate and lock out the vessel 

so Respondent’s crew could begin their work. (Tr. 67-69). Mr. [redacted] specifically instructed 

Mr. Nevarez to lock out the inlet and the outlet valves on the oil boot. (Tr. 68-69). Mr. Nevarez 

shut off the valves and placed his own locks on the inlet valve for the heater and the discharge 

valve for the oil boot. (Tr. 69; Joint Stip. at 25). Mr. Nevarez and Mr. [redacted] at no time 

discussed any of the potential hazards that could be associated with the lockout. (Tr. 69-70). In 

addition, there was no discussion between the individuals on what specific methods could be used 

to lock out and tag out energy sources. (Tr. 69-70, 372-373). However, Mr. [redacted] did inform 

Mr. Nevarez what needed to be isolated and locked out on the vessel before Respondent’s crew 

could begin their work. (Tr. 67-69). 

C. The Incident

Mr. Nevarez placed his own locks on the inlet valve for the heater and the discharge valve 

for the oil boot. (Joint Stip. at 25). Mr. [redacted] realized that two additional valves on the top 

of the oil boot needed to be closed to prevent product from going into the oil boot while 

Respondent’s crew performed maintenance. (Tr. 70). Mr. [redacted] then sent Mr. [redacted] and 

Mr. [redacted] to the top of Heater Treater 7 in a manlift to close the valves to the gas line and 
7

boot fill line, which could not be reached from the ground as it was over 20 feet high. (Tr. 70-73, 

93, 172-173; Joint Stip. at 26). Mr. [redacted] and Mr. [redacted] proceeded to close the valves 

but did not apply any locks to them. (Tr. 72-73). Mr. [redacted], Mr. [redacted], and Mr. [redacted]

did not place any of their own locks on any valves while at the worksite. (Joint Stip. at 27). 

Mr. [redacted] then instructed Mr. Nevarez to reopen the outlet valve on the oil boot 

because he believed excess fluid and pressure needed to be removed. (Tr. 70-72). Mr. Nevarez 

opened the outlet valve and only heard gas coming out, which indicated to him that the oil was 

cleared out from the oil boot. (Tr. 72-73, 415). He then re-closed the outlet valve for the oil boot 

and reapplied his lock before leaving the worksite. (Tr. 72-73; Joint Stip. at 28). 

Once Mr. Nevarez left, Mr. [redacted] opened the 1-inch valve on the top sight-glass 

assembly to check for pressure on the boot and make sure the boot was drained. (Tr. 73-74, 96; 

Joint Stip. at 29). When nothing came out of the valve, Mr. [redacted] became unsure whether all 

the pressure was relieved. (Tr. 73-74; Joint Stip. at 29). Mr. [redacted] then instructed Mr. 

[redacted] and Mr. [redacted] to take the stainless-steel air supply lines off the top float while they 

were still in the manlift. (Tr. 74; Joint Stip. at 30). Mr. [redacted] noticed that Mr. [redacted] was 

starting to remove the float from the oil boot and directed him not to because it was not ready to 

be removed. (Tr. 74-75). While Mr. [redacted] worked to remove the stainless-steel air supply 

lines to the peanut valve and remove the peanut valve, he heard a loud pop. (Tr. 74-75; Joint Stip. 

at 30, 31). A large fire ensued, causing the deaths of both Mr. [redacted] and Mr. [redacted]. (Tr. 

75-76; Joint Stip. at 31). 

D. The Incident Inspection

Following the incident, CSHO Patricia Smothermon was assigned to conduct an 

inspection. (Joint Stip. at 32). CSHO Smothermon traveled to the worksite and conducted an 
8

inspection the following day. (Tr. 471-472; Ex. C-4). Through the course of her investigation, 

she spoke with various representatives of Respondent. (Tr. 471-473; Ex. C-5). As a result of the 

CSHO’s investigation, she determined the victims were exposed to uncontrolled hazardous energy

sources. (Tr. 479-480, 500-503; Exs. C-4, C-5). CSHO Smothermon found, inter alia, that three 

employees were exposed to hazardous energy hazards for approximately two hours, the severity 

of the violations was high due to the possibility of serious injury or death, and the probability of 

serious injury or death from uncontrolled hazardous energy was greater because work was being 

performed near uncontrolled hazardous energy for nearly two hours. (Tr. 478-488; Exs. C-4, C-5, 

C-7). Through her investigation, CSHO Smothermon determined that Respondent had violated 

the requirements covered under 29 C.F.R Part 1910 and recommended OSHA issue a citation. (Tr. 

478-488; Exs. C-3, C-4, C-5, C-7). On August 30, 2019, OSHA issued the Citation that is at issue 

in this case. On September 24, 2019, Respondent timely contested the Citation.

IV. Discussion

A. Law Applicable to Alleged Violations

 In order to establish a violation of a safety standard under the Act, in this case 29 

C.F.R. § 1910.147(c)(4)(ii), 29 C.F.R. § 1910.147(c)(6)(ii), 29 C.F.R. § 1910.147(c)(7)(i)(A), 29 

C.F.R. § 1910.147(8), and 29 C.F.R. § 1910.147(f)(2)(i), Complainant must prove by a 

preponderance of the evidence: (1) the cited standard applies; (2) the employer failed to comply 

with the terms of that standard; (3) employees had access to the hazardous condition covered by 

the standard; and (4) the employer knew, or with the exercise of reasonable diligence could have 

known, of the violative condition. Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 

1994); Ormet Corp., 14 BNA OSHC 2134 (No. 85-531, 1991) (citation omitted); Sal Masonry 

Contractors, Inc., 15 BNA OSHC 1609 (No. 87-2007, 1992) (citation omitted). 
9

The Secretary has the burden of establishing each element by a preponderance of the 

evidence. See Hartford Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance 

of the evidence” has been defined as: 

The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free the 

mind wholly from all reasonable doubt, is still sufficient to incline a fair and 

impartial mind to one side of the issue rather than the other. 

Black’s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014) (emphasis 

added). 

1. Citation 1, Item 5 

Complainant alleged a serious violation of the Act in Citation 1, Item 5, as amended, as 

follows: 

29 C.F.R. 1910.147(c)(4)(ii): Specific procedures shall clearly and specifically 

outline the scope, purpose, authority, and techniques to be utilized for the control 

of hazardous energy: 

 On or about March 4, 2019, and at times prior thereto, at the tank battery 

train #7, employees performed maintenance and/or repairs to a level 

controller/float on the heater treater oil boot and peanut valve. The employer 

did not develop or document specific procedures for this equipment for the 

control of hazardous energy. Specific procedures were not provided. 

See Citation as amended. 

a. The Standard Applies. 

 Under Commission precedent, “the focus of the Secretary’s burden of proving that 

the cited standard applies pertains to the cited conditions, not the particular cited employer.” Ryder 

Transp. Servs., 24 BNA OSHC 2061, 2064 (No. 10-0551, 2014) (concluding “that the Secretary 

has failed to establish that the cited general industry standard applies to the working conditions 

here”); KS Energy Servs., Inc., 22 BNA OSHC 1261, 1267 (No. 06-1416, 2008) (finding “the 

cited ... provision was applicable to the conditions in KS Energy’s traffic control zone”), aff'd, 701 
10

F.3d 367 (7th Cir. 2012); Active Oil Serv., Inc., 21 BNA OSHC 1092, 1094 (No. 00-0482, 2005)

(finding “that the confined space standard applies to the cited conditions” because “the vault was 

a confined space”); Arcon, Inc., 20 BNA OSHC 1760, 1763 (No. 99-1707, 2004) (“In order to 

establish a violation, the Secretary must show that the standards applied to the cited conditions.”) 

Respondent is a general oil field service company, which provides construction and 

maintenance services for host employers. (Joint Stip. at 3). It is undisputed that Respondent was 

hired to perform maintenance work on Pioneer’s equipment at the worksite. (Tr. 161-163; Joint 

Stip. at 6; Resp’t Br. at 15). Therefore, the maintenance work Respondent performed would fall 

under the purview of Part 1910. The scope of the general industry Control of Hazardous Energy 

Sources (Lockout/Tagout) (“LOTO”) standard 29 C.F.R. § 1910.147 covers the “servicing and 

maintenance of machines and equipment in which the unexpected energization or start up of the 

machines or equipment, or release of stored energy could cause injury to employees...” 

Maintenance is defined in the general industry LOTO standard 29 C.F.R. § 1910.147(b) as: 

Workplace activities such as constructing, installing, setting up, adjusting, 

inspecting, modifying, and maintaining and/or servicing machines or equipment. 

These activities include lubrication, cleaning or unjamming of machines or 

equipment and making adjustments or tool changes, where the employee may be 

exposed to the unexpected energization or startup of the equipment or release of 

hazardous energy. 

Any hazards involving general industry maintenance and the control of hazardous energy 

during maintenance would fall within the scope of the aforementioned Subpart including its 

relevant sections. 

The Court finds 29 C.F.R. § 1910.147(c)(4)(ii) applies. 

b. The Standard was Violated. 

 Respondent does not dispute that its employees were performing maintenance and 

servicing at the time of the incident. (See Resp’t Br. at 15-16). Respondent argues that it did not 
11

violate the standard because it has a general LOTO program which applies when the host employer, 

Pioneer, did not have a LOTO program or if it was less stringent. (Resp’t Br. at 15-16). 

Here, the cited standard required Respondent to have specific procedures that clearly and 

specifically outlined the scope, purpose, authority, and techniques to be utilized for the control of 

hazardous energy. See 29 C.F.R. § 1910.147(c)(4)(ii). The standard further requires the means to 

enforce compliance including, but not limited to: 

(A) A specific statement of the intended use of the procedure; 

(B) Specific procedural steps for shutting down, isolating, blocking and securing 

machines or equipment to control hazardous energy; 

(C) Specific procedural steps for the placement, removal and transfer of lockout 

devices or tagout devices and the responsibility for them; and 

(D) Specific requirements for testing a machine or equipment to determine and 

verify the effectiveness of lockout devices, tagout devices, and other energy control 

measures.

29 C.F.R. § 1910.147(c)(4)(ii). 

The record reveals that Respondent did not have a specific procedure for controlling 

hazardous energy during the maintenance conducted at the worksite. (Tr. 182-183). Instead, when 

working on the heater treater in question, Respondent’s procedure was to rely on Pioneer to lock 

out and tag out hazardous energy. (Tr. 182-183). Although Respondent relied on Pioneer to have 

a specific energy control procedure when Respondent was performing maintenance on the heater 

treater, Respondent had never actually seen a copy of Pioneer’s procedure. (Tr. 187-189). The 

record shows that Respondent did not even know if Pioneer had a specific energy control procedure 

for the heater treater Respondent’s employee were working on. (Tr. 188-190). Although 

Respondent claims it relied on Pioneer’s LOTO procedures, the record shows that Respondent 

never asked Pioneer to provide it with the procedures. (Tr. 196-198). When asked why 

Respondent never asked Pioneer for its LOTO procedures, Respondent’s president, Mr. Bridges, 
12

admitted he never asked Pioneer for its procedures because it would be unreasonable for 

Respondent to have thousands of procedures. (Tr. 196-198). 

Respondent mistakenly relies on Basic Grain Prods, Inc., 24 BNA OSHC 2024, 2032 (No. 

12-0725, 2013) in support of its unreasonableness argument.7 In Basic Grain Prods, Inc., the 

employer had drafted LOTO procedures based on sample LOTO procedures found in Appendix A 

of § 1910.147. See Basic Grain Prods, Inc., 24 BNA OSHC 2024, 2032 (No. 12-0725, 2013). 

The Commission in Basic Grain Prods, Inc., found that “the overgeneralized LOTO procedures 

utilized by [r]espondent were insufficient to adequately apprise [r]espondent’s employees of the 

types of energy associated with a particular machine” and thus violated the standard. Basic Grain 

Prods, Inc., 24 BNA OSHC 2024, 2032 (No. 12-0725, 2013). 

Here, Respondent did not have any specific LOTO procedures for the heater treater. (Tr. 

182-183). Instead, Respondent claims it had a general policy of relying on Pioneer for LOTO 

procedures pertaining to the heater treater. (Tr. 182-183). However, Respondent did not even 

know if Pioneer had LOTO procedures and never asked if they did. (Tr. 187-190, 196-198). 

What is even more troublesome is Pioneer’s safety representative testified that it was 

Respondent’s responsibility to lock out and tag out equipment. (Tr. 306-312; Ex. C-27). Both the 

Master Services Agreement between Respondent and Pioneer and the Contractor Handbook 

provided to Respondent from Pioneer show that Respondent was responsible for its employees’ 

safety and LOTO procedures. (Tr. 198-206; Exs. C-12, C-23; Joint Stip. at 16, 18). Further, 

Respondent indicated to Pioneer, during the contractor onboarding process, that Respondent would 

7 Respondent mistakenly cites to Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283, 2287 (No. 97-1073, 2007) in 

further support of its unreasonableness argument. (Resp.t Br. at 17). Although Respondent is correct that 

performance standards “do not identify specific obligations” and “are interpreted in light of what is reasonable,” it is 

unreasonable to rely on a LOTO procedure that one has never seen nor knows if it even exists. Thomas Indus. 

Coatings, Inc., 21 BNA OSHC 2283, 2287 (No. 97-1073, 2007). 
13

be responsible for LOTO when performing maintenance for Pioneer. (Tr. 306-312; Ex. C-27; Joint 

Stip. at 16, 18). The weight of the evidence establishes that Respondent should have but did not 

have specific procedures to be utilized for the control of hazardous energy from the heater treater 

at the tank battery.

Accordingly, in light of the abovementioned, this Court finds Respondent violated the 

terms of the standard. 

c. Employees were Exposed to a Hazardous Condition. 

 “The Secretary always bears the burden of proving employee exposure to the 

violative conditions.” Fabricated Metal Products, Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 

1997) (citations and footnotes omitted). The Commission’s longstanding test for hazard exposure 

requires the Secretary to “show that it is reasonably predictable either by operational necessity or 

otherwise (including inadvertence), that employees have been, are, or will be in the zone of 

danger.” Delek Ref., Ltd., 25 BNA OSHC 1365, 1376 (No. 08-1386, 2015) (citing id.). See also 

Rockwell Intl. Corp., 9 BNA OSHC 1092 (No. 12470, 1980); Gilles & Cotting, 3 BNA OSHC 

2002 (No. 504, 1976).8

The zone of danger is the “area surrounding the violative condition that presents the danger 

to employees.” Boh Bros. Constr. Co., LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 2013)

(citing RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). The zone of danger 

is determined by the hazard presented by the violative condition and is normally the area 

surrounding the violative condition that presents the danger to employees which the standard is 

8 In Gilles & Cotting, Inc., the Commission rejected the “actual exposure” test, which required evidence 

that someone observed the violative conduct, in favor of the concept of “access”, which focuses on the 

possibility of exposure under the conditions. See Gilles & Cotting, Inc., 3 BNA OSHC at 2002 (holding 

“that a rule of access based on reasonable predictability is more likely to further the purposes of the Act 

than is a rule requiring proof of actual exposure”). 
14

intended to prevent. RGM Construction, Co., 17 BNA OSHC at 1234; Gilles & Cotting, Inc., 3 

BNA OSHC at 2003.

Respondent’s employees were directly exposed to a hazardous condition when they worked

on one of Pioneer’s tank batteries located at Sale Ranch 17 without any specific LOTO procedures 

in place. (Tr. 75-76, 114-115; Joint Stip. at 6, 7, 26, 27, 31). Courts have long held that exposure 

is met by an employee’s mere access to a hazardous situation. Gilles & Cotting, Inc., 3 BNA 

OSHC 2002, 2003 (No. 504, 1976); Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 812 (3d 

Cir. 1985); S. Hens, Inc. v. Occupational Safety & Health Review Comm'n, 930 F.3d 667, 681 (5th 

Cir. 2019). Here it is undisputed, Respondent’s employees had access to and were performing 

servicing and maintenance on one of Pioneer’s tank batteries. (Tr. 75-76, 114-115; Joint Stip. at 

6, 7, 26). 

Furthermore, it is undisputed that two of Respondent’s employees died while performing 

servicing and maintenance on one of Pioneer’s tank batteries. (Tr. 75-76, 114-115; Joint Stip. at 

6, 7, 31). The victims’ actual exposure to uncontrolled hazardous energy and deaths from their 

injuries also establish exposure. See S & G Packaging, Co., LLC (S&G), 19 BNA OSHC 1503, 

1506 (No. 98-1107, 2001) (injuries establish actual exposure to the violative condition). As 

such, this Court finds Respondent’s employees were exposed to a hazardous condition. 

d. Knowledge 

Respondent’s knowledge of the violation may be established by showing the employer 

knew, or with reasonable diligence could have known of the violative condition. 29 U.S.C. 

§ 666(k); Ormet Corp., 14 BNA OSHC 2134 (No. 85-531, 1991). When determining whether an 

employer has been reasonably diligent, the Commission considers “several factors, including the 

employer’s obligation to have adequate work rules and training programs, to adequately supervise 
15

employees, to anticipate hazards to which employees may be exposed, and to take measures to 

prevent the occurrence of violations.” Precision Concrete Constr., 19 BNA OSHC 1404 

(No. 99-0707, 2001). An employer’s awareness of the violation may be shown through actual or 

constructive knowledge of said violation. It is not necessary to show the employer knew or 

understood the condition was hazardous. Phoenix Roofing, Inc., 17 BNA OSHC at 1079-1080 

(citations omitted). “[An] employer’s duty is to take reasonably diligent measures to inspect its 

worksite and discover hazardous conditions; so long as the employer does so, it is not in violation 

simply because it has not detected or become aware of every instance of a hazard.” Ragnar 

Benson, Inc., No. 97-1676, 1999 WL 770809, at *3 (OSHRC Sept. 27, 1999). An employer is not 

automatically aware of a hazard in plain view, especially if not observed by a supervisory 

employee. Cranesville Block Co., Inc./Clark Division, Nos. 08-0316 & 08-0317, 2012 WL 

2365498, at *10 (OSHRC June 12, 2012). 

The Secretary contends that Respondent failed to exercise reasonable diligence to discover 

and to prevent violative conditions and that Respondent therefore had constructive knowledge of 

those conditions. According to the Secretary, Respondent, inter alia, lacked a specific energy 

control procedure and failed to provide the appropriate LOTO training to its employees. (Sec’y 

Br. at 25-26). The Secretary further argues that Respondent failed to ensure that lockout was 

performed by the authorized employees who were performing the maintenance. (Sec’y Br. at 

25-26). Additionally, the Secretary argues that Respondent failed to effectively communicate 

LOTO procedures amongst its employees and Pioneer. (Sec’y Br. at 25-27). The Secretary 

contends that Respondent’s crew supervisor, Mr. [redacted], and Respondent’s foreman, Mr. 

London, knew or, with the exercise of reasonable diligence, should have known of the violative 

conditions at the worksite. (Sec’y Br. at 25-26).
16

 Further, the Secretary makes the argument that Mr. [redacted]’s, Mr. London’s, Mr. 

Bridges’, and Mr. Campbell’s knowledge of the violative conditions should be imputed to 

Respondent. (Sec’y Br. at 26). The Secretary claims that Mr. London should have had knowledge 

of the violative conditions because he knew Respondent’s crew was performing maintenance at 

the worksite and knew the heater treater had not been isolated and locked out when Respondent’s 

crew had arrived. (Sec’y Br. at 26). Mr. Bridges knew or should have known of the violative 

conditions because he admitted that Respondent did not have a specific procedure for controlling 

hazardous energy on the heater treater. (Tr. 182-183; Sec’y Br. at 26). Additionally, Mr. Bridges 

signed the Master Services Agreement between Respondent and Pioneer, which said Respondent 

was responsible for its employees’ safety and complying with OSHA requirements while 

performing maintenance for Pioneer. (Tr. 198-206; Exs. C-23; Joint Stip. at 16; Sec’y Br. at 26). 

Lastly, the Secretary argues that, as Respondent’s safety manager, Mr. Campbell knew or should 

have known of the violative conditions because Respondent lacked a specific energy control 

procedure, failed to provide the appropriate LOTO training to its employees, and failed to 

effectively communicate LOTO procedures amongst its employees and Pioneer. (Sec’y Br. at 

25-26). 

The credible record evidence reveals that Respondent had knowledge of the violative 

condition of not having specific procedures for the control of hazardous energy while employees 

performed maintenance at the tank battery. (Tr. 182-183). Respondent had been involved in the 

construction of hundreds of tank batteries, including the tank battery at question in this case. (Tr. 

114-119). Respondent’s president, Mr. Bridges, oversaw the construction of the Pioneer battery 

at the worksite and was present for most of the construction process. (Tr. 114-119). Respondent 
17

was intimately familiar with the battery, as it even set up and installed the heater treater. (Tr. 116-

118). 

Respondent’s crews routinely performed maintenance on Pioneer’s tank batteries, 

changing level controllers and oil boots several times per month. (Tr. 161-163). Respondent was 

familiar with the type of maintenance required on Pioneer’s tank batteries like the one involved in 

this case. (Tr. 161-163). Management specifically knew the importance of controlling hazardous 

energy during maintenance and servicing to prevent the release of stored energy. (Tr. 162-163). 

Mr. Bridges testified that he was familiar with the type of maintenance Respondent’s crew was 

performing on the day of the incident, that hazardous energy needed to be controlled during the 

maintenance, and that if it was not, it could cause serious death or injury to Respondent’s 

employees. (Tr. 161-163). 

Knowledge of the violative condition is established. The Secretary has proven all elements 

of his prima facie case.

2. Citation 1, Item 6

Complainant alleged a serious violation of the Act in Citation 1, Item 6 as follows: 

29 C.F.R. 1910.147(c)(6)(ii): The employer shall certify that the periodic 

inspections have been performed. The certification shall identify the machine or 

equipment on which the energy control procedure was being utilized, the date of 

the inspection, the employees included in the inspection, and the person performing 

the inspection: 

 On or about March 4, 2019, and at times prior thereto, at the tank battery 

train #7, employees performed maintenance and/or repairs to a level 

controller/float on the heater treater oil boot and peanut valve. The employer 

did not ensure periodic inspections were performed on the energy control 

procedures to ensure they were being followed. 

Citation. 
18

a. The Standard Applies and was Violated. 

As previously addressed, the maintenance work Respondent performed would fall under 

the purview of Part 1910. The scope of the general industry Control of Hazardous Energy Sources 

(Lockout/Tagout) standard 29 C.F.R. § 1910.147 covers the “servicing and maintenance of 

machines and equipment in which the unexpected energization or start up of the machines or 

equipment, or release of stored energy could cause injury to employees...” Any hazards involving 

general industry maintenance and the control of hazardous energy during maintenance would fall 

within the scope of the aforementioned Subpart including its relevant sections. 

Here, the standard requires employers to certify the periodic inspections of the energy 

control procedure have been performed. See 29 C.F.R. § 1910.147(c)(6)(ii). The certification 

shall identify and include the machine or equipment on which the energy control procedure was 

being utilized, the date of the inspection, the employees included in the inspection, and the person 

performing the inspection. 29 C.F.R. § 1910.147(c)(6)(ii). 

Respondent argues that the cited standard does not apply because Respondent was 

following Pioneer’s LOTO procedure. (Resp.t Br. at 17-18). However, the record reveals a 

different story. Mr. Bridges admitted that Respondent did not certify that periodic inspections of 

the energy control procedure for maintenance on the heater treater were performed. (Tr. 184-187). 

Mr. Bridges further testified that Respondent would defer to Pioneer to certify inspections of the 

specific procedure because it was Pioneer’s procedure they were using. (Tr. 185-186). However, 

Respondent’s own safety manager, Mr. Campbell, testified that he was unaware of Pioneer 

certifying any inspections of the energy control procedure in this case. (Tr. 759-760). 

Respondent cites to an OSHA standards interpretation letter in support of its argument that 

it would be unreasonable to audit the procedures of another company. (Resp’t Br. at 17-18). 
19

Although the letter does state, “[a] contractor employee would not be obligated under the OSH 

Act to independently audit the host employer’s energy control procedures,” it further clarifies by 

saying, “[h]owever, the contractor employee must take reasonable steps consistent with its 

authority to protect its employees if the contractor knows, or has reason to know, that the host 

employer’s energy control procedures are deficient or otherwise insufficient to provide the 

requisite protection to its employees.” Applicability of OSHA’s LOTO standards; isolation and 

verification procedures, OSHA Std. Interp. 1910.147 (D.O.L.), Nov. 16, 2000. The interpretation 

letter further explains that the host employer and contract employer are required to inform each 

other about their respective LOTO procedures as such coordination is necessary to protect all 

employees from hazardous energy. Id. Interestingly, the letter additionally states “[a]n ‘affected 

employee’ becomes an ‘authorized employee’ when that employee’s duties include the 

performance of servicing or maintenance as defined under 1910.147(b)... When employees are 

working on machines or equipment in which the uncontrolled hazardous energy could cause injury 

to employees, both the host employer and the contractor employer have independent obligations 

to provide the protection under the standard for their respective employees.” Id.

Here, Respondent did not have any independent LOTO procedures for the heater treater. 

(Tr. 182-183). Instead, Respondent claims it had a general policy of simply relying on Pioneer for 

LOTO procedures. (Tr. 182-183). However, Respondent did not even know if Pioneer had LOTO 

procedures, never asked if they did, and was completely unaware of Pioneer certifying any 

inspections of energy control procedures. (Tr. 187-190, 196-198, 759-760). Respondent took no 

reasonable steps, consistent with its authority to protect its employees, to ascertain if Pioneer’s 

energy control procedures were deficient or otherwise insufficient. 

The Court finds 29 C.F.R. § 1910.147(c)(6)(ii) applies and was violated. 
20

b. Employees were Exposed to a Hazardous Condition. 

 The discussion and rationale addressed in Part IV(A)(1)(c), supra, likewise applies 

to employee exposure to a hazardous condition here and is incorporated herein. Respondent’s 

employees were directly exposed to a hazardous condition when they worked on Pioneer’s tank 

battery without any specific LOTO procedures in place and did not ensure periodic inspections 

were performed on energy control procedures to ensure they were being followed. (Tr. 75-76, 

114-115, 182-183, 187-190, 196-198, 759-760; Joint Stip. at 6, 7, 26, 27, 31). As such, this Court 

finds Respondent’s employees were exposed employees. 

c. Knowledge

The discussion and rationale addressed in Part IV(A)(1)(d), supra, likewise applies to 

knowledge here and is incorporated herein. The Secretary contends that Respondent failed to 

exercise reasonable diligence to discover and to prevent violative conditions and that Respondent 

therefore had knowledge of those conditions. The Secretary argues that Respondent failed to 

certify that it performed periodic inspections of its energy control procedures. (Sec’y Br. at 16). 

The Secretary further argues Respondent knew or should have known of the violative conditions 

because Respondent lacked a specific energy control procedure, failed to provide the appropriate 

LOTO training to its employees, and failed to effectively communicate LOTO procedures amongst 

its employees and Pioneer. (Sec’y Br. at 25-26). 

The record shows Respondent did not certify periodic inspections of the energy control 

procedure for maintenance on the heater treater were performed. (Tr. 184-187). Respondent 

claims it would defer to Pioneer to certify inspections of the specific procedure because it was 

Pioneer’s procedure they were using. (Tr. 185-186). However, Respondent’s own safety manager, 

Mr. Campbell, testified that he was unaware of Pioneer certifying any inspections of the energy 
21

control procedure in this case. (Tr. 759-760). Respondent did not know if Pioneer had LOTO 

procedures, never asked if they did, and was completely unaware of Pioneer certifying any 

inspections of energy control procedures. (Tr. 187-190, 196-198, 759-760). 

 The record evidence reveals that Respondent had knowledge of the violative condition. 

3. Citation 1, Item 7 

Complainant alleged a serious violation of the Act in Citation 1, Item 7 as follows: 

29 C.F.R. 1910.147(c)(7)(i)(A): Each authorized employee shall receive training 

in the recognition of applicable hazardous energy sources, the type and magnitude 

of the energy available in the workplace, and the methods and means necessary for 

energy isolation and control: 

 On or about March 4, 2019, and at times prior thereto, at the tank battery 

train #7, employees performed maintenance and/or repairs to heater treater 

oil boot level controller/float and peanut valve, and had not been provided 

adequate training in the recognition and control of hazardous energy sources, 

such as, but not limited to, chemical and thermal energy with the potential to 

result in a fire and/or explosion. 

Citation. 

a. The Standard Applies. 

The discussion and rationale addressed in Part IV(A)(1)(a), supra, likewise applies 

to the applicability of the standard here and is incorporated herein. As such, the Court finds 29 

C.F.R. § 1910.147(c)(7)(i)(A) applies. 

b. The Standard was Not Violated. 

Respondent does not dispute that its employees were performing maintenance and 

servicing at the time of the incident. (See Resp’t Br. at 15-16). However, Respondent argues that 

it did not violate the standard because it trained its employees on LOTO. (Resp.t Br. at 19-21).

The cited standard requires authorized employees receive training in the recognition of 

applicable hazardous energy sources, the type and magnitude of the energy available in the 
22

workplace, and the methods and means necessary for energy isolation and control. 29 C.F.R. 

§ 1910.147(c)(7)(i)(A). 

Here, the record reveals that Respondent provided some training on LOTO procedures. 

Mr. Campbell, Respondent’s safety manager, testified that Respondent’s employees complete an 

8-hour course on SafeLand orientation training when they are hired. (Tr. 742-744).9

 The record 

corroborates that Respondent provided this training to both decedents. (Tr. 145-147; Exs. C-20, 

C-21; Joint Stip. at 11). The SafeLand training was a safety awareness orientation training, which 

covered many topics in addition to an overview of LOTO and hazardous energy control. (Exs. 

C-17, C-32; Joint Stip. at 11, 12). 

Additionally, Mr. Campbell testified that he provided “BLR” training to Mr. [redacted] and 

both decedents, which included an hour of training on LOTO and hazardous energy control. (Tr. 

716-720, 729-730, 765-770; Ex. R-91). Respondent’s employees received training cards from Mr. 

Campbell to certify that they were trained specifically in LOTO. (Tr. 716-720, 765-770; Ex. R91).10 Mr. Campbell testified that he recalled training Mr. [redacted] and both decedents. (Tr. 716-

720, 749). 

Respondent further provided training to its employees through field training, tailgate 

meetings, and a mentorship program. (Tr. 83, 134, 233-234, 714-715, 779-781). Mr. Bridges 

testified that Mr. [redacted] went through additional field training with a mentor named Diego 

Franco. (Tr. 134, 233-234, 240-241). 

9 Although [redacted] was only provided SafeLand training from a previous employer, the weight of the evidence 

shows Mr. [redacted] received some LOTO training from Respondent. (Tr. 83, 134, 233-234, 714-720, 729-730, 

749, 765-770, 779-781; Ex. R-91). 

10 Mr. Campbell claims to have discovered a stack of training cards from the BLR training he provided on the 

afternoon prior to his trial testimony. (Tr. 752, 765-770; Ex. R-91). Mr. Campbell’s testimony as to what was on 

the cards is given more weight than the actual stack of cards found on the eve of trial. 
23

The record shows Respondent provided some training to its employees in the recognition 

of applicable hazardous energy sources, the type and magnitude of the energy available in the 

workplace, and the methods and means necessary for energy isolation and control. (Tr. 721-727, 

731-737). 

 Accordingly, considering the abovementioned, this Court finds the Secretary failed to 

prove Respondent violated the terms of the standard. 

4. Citation 1, Item 8

 Complainant alleged a serious violation of the Act in Citation 1, Item 8 as follows: 

29 C.F.R. 1910.147(c)(8): Lockout or tagout shall be performed only by the 

authorized employees who are performing the servicing or maintenance: 

 On or about March 4, 2019, and at times prior thereto, at the tank battery 

train #7, employer did not ensure that employees Locked out and Tagged out 

all lines and valves leading into heater treater and oil boot. 

Citation. 

a. The Standard Applies. 

The discussion and rationale addressed in Part IV(A)(1)(a), supra, likewise applies 

to the applicability of the standard here and is incorporated herein. The Court finds 29 C.F.R. 

§ 1910.147(c)(8) applies. 

b. The Standard was Violated. 

Respondent argues that it did not violate the standard because it was not authorized to 

operate Pioneer equipment. (Resp’t Br. at 21). Respondent continues by arguing that Mr. Nevarez 

was the only authorized individual to perform LOTO as an employee for Pioneer. (Resp’t Br. at 

21). 

The cited standard requires that LOTO be performed only by authorized employees who 

are performing servicing or maintenance. 29 C.F.R. § 1910.147(c)(8). The Preamble to OSHA’s 

LOTO standard further explains the authorized employee requirement when it says:
24

The new paragraph(c)(8) requires that lockout or tagout be performed only by 

authorized employees. These are the only employees who are required to be trained 

to know in detail about the types of energy available in the workplace and how to 

control the hazards of that energy. Only properly trained and qualified employees 

can be relied on to deenergize and to properly lockout or tagout machines or 

equipment which are being serviced or maintained, in order to ensure that the work 

will be accomplished safely.

4 FR 36644-01, *36676, 1989 WL 287855 (F.R.). 

 Further, 29 C.F.R. § 1910.147(b) defines “authorized employee” as: 

A person who locks out or tags out machines or equipment in order to perform 

servicing or maintenance on that machine or equipment. An affected employee 

becomes an authorized employee when that employee’s duties include performing 

servicing or maintenance covered under this section. 

29 C.F.R. § 1910.147(b). 

It is undisputed that Respondent’s crew was performing maintenance on the heater treater 

and oil boot. (Joint Stip. at 6, 30, 31). Since Respondent’s crew was performing maintenance and 

servicing on equipment covered under the above-mentioned section, Respondent’s employees 

meet the definition of an “authorized employee.” As authorized employees, Respondent’s crew 

was required to put their locks on energy isolating devices during the LOTO procedure. It is 

undisputed that Respondent’s crew failed to place locks on any valves at the worksite. (Joint Stip. 

at 27). As authorized employees performing the maintenance, Respondent’s employees were 

required to place their own locks on the energy lockout devices so they could maintain lockout 

control as they performed the maintenance. See OSHA Instruction, Directive Number CPL 

02-00-147 at 3-57. 

 Accordingly, this Court finds Respondent violated the terms of the standard. 

c. Employees were Exposed to a Hazardous Condition. 

The discussion and rationale addressed in Part IV(A)(1)(c), supra, likewise applies to 

employee exposure to a hazardous condition here and is incorporated herein. Respondent’s 
25

employees were directly exposed to a hazardous condition when they performed maintenance on

Pioneer’s tank battery without performing LOTO. (Tr. 75-76, 114-115; Joint Stip. at 6, 7, 26, 27, 

31). It is undisputed, Respondent’s employees had access to and were performing servicing and 

maintenance on one of Pioneer’s tank batteries. (Tr. 75-76, 114-115; Joint Stip. at 6, 7, 26). 

Further, it is undisputed that two of Respondent’s employees died while performing the servicing 

and maintenance. (Tr. 75-76, 114-115; Joint Stip. at 6, 7, 31). 

This Court finds Respondent’s employees were exposed to a hazardous condition. 

d. Knowledge 

The Court incorporates the discussion and rationale in Part IV(A)(1)(d), supra. It is 

undisputed that Respondent’s employees were performing maintenance on the heater treater and 

oil boot. (Joint Stip. at 6, 30, 31). As authorized employees, Respondent’s employees were

required to put their own locks on energy isolating devices during the LOTO procedure. It is also 

undisputed that Respondent’s employees failed to place locks on any energy isolating devices at 

the worksite. (Joint Stip. at 27). 

 Further, the Court finds that Mr. London should have had knowledge of the violative 

conditions because he knew Respondent’s crew was performing maintenance at the worksite and 

knew the heater treater had not been isolated and locked out when Respondent’s crew had arrived. 

(Sec’y Br. at 26). The record shows that when Mr. [redacted] arrived at the worksite, he contacted 

his supervisor, Jason London, because the oil boot had not yet been isolated and locked out and 

tagged out. (Tr. 67-68; Joint Stip. at 23, 24). 

The record reveals that Respondent had knowledge of the violative condition while 

employees performed maintenance at the tank battery. (Tr. 182-183). 

5. Citation 1, Item 9

Complainant alleged a serious violation of the Act in Citation 1, Item 9 as follows: 
26

29 C.F.R. 1910.147(f)(2)(i): Whenever outside servicing personnel are to be 

engaged in activities covered by the scope and application of this standard, the onsite employer and the outside employer shall inform each other of their respective 

lockout or tagout procedures: 

 On or about March 4, 2019, and at times prior thereto, at the tank battery 

train #7, employer did not ensure that the on-site employer and the contracted 

employees did not inform each other of their specific Lock Out Tag Out 

procedures, exposing employees to chemical and thermal energy hazards. 

Citation. 

a. The Standard Applies. 

The Court incorporates and adopts the rationale and discussion in Part IV(A)(1)(a), 

supra, and accordingly finds that 29 C.F.R. § 1910.147(f)(2)(i) applies. 

b. The Standard was Not Violated. 

Respondent argues that it did not violate the standard because communication of 

procedures between Respondent and Pioneer occurred when Mr. Nevarez arrived at the worksite. 

(Resp’t Br. at 23). Respondent further argues that the oral communications between Respondent 

and Pioneer comply with the cited standard. (Resp’t Br. at 23). Moreover, Respondent argues that 

the cited standard was not violated as evidenced by Respondent’s understanding that it could not 

operate Pioneer’s equipment and through Pioneer’s “Rules To Live By” shared with Respondent. 

(Resp’t Br. at 22-23). The Secretary argues that Respondent and Pioneer failed to inform each 

other of their respective LOTO procedures, as no specific procedures were exchanged between the 

parties. (Sec’y Br. at 23-24). 

The cited standard required Respondent to inform Pioneer of its respective LOTO 

procedures. 29 C.F.R. § 1910.147(f)(2)(i). The record reveals that some communication of LOTO

occurred between Respondent and Pioneer. On the morning of the incident, Mr. Campbell had 

called Mr. Nevarez to inform him that Respondent’s crew was waiting for Mr. Nevarez to lock out 

the equipment before they could begin work. (Tr. 362-363). When Mr. Nevarez arrived at the 
27

worksite, he communicated with Mr. [redacted] about what needed to be completed for the job. 

(Tr. 68-69, 361-366). Additionally, Mr. [redacted] had instructed Mr. Nevarez what needed to be 

isolated and locked out on the vessel before Respondent’s crew could begin their work. (Tr. 

67-69). Mr. [redacted] had specifically informed Mr. Nevarez what inlet and outlet valves needed 

to be locked out on the oil boot. (Tr. 68-69). Mr. Nevarez had then spoken with and came to an 

understanding with Mr. [redacted] over which valves needed to be locked out and tagged out and 

which ones were already. (Tr. 365-366). 

The record further shows that communication was had between Pioneer and Respondent, 

concerning LOTO procedures, through Pioneer’s “Rules To Live By” and Safety Handbook. 

Pioneer had provided Respondent with its Safety Handbook and “Rules To Live By,” which both 

address LOTO procedures. (Tr. 190-195, 283; Exs. C-12, R-20). 

The record reveals there were multiple instances of communication between Respondent 

and Pioneer concerning LOTO. (Tr. 68-69, 362-366, 370-371). Accordingly, the Secretary has 

failed to meet its burden of showing that Respondent did not inform Pioneer of its LOTO 

procedures. 

V. Serious Classifications

The Secretary classified the alleged violations in Citation 1, items 5-9 as serious. 

Respondent contends that none of the violations should be classified as serious. (Resp’t Br. 23-24). 

A violation is classified as serious under the Act if “there is substantial probability that 

death or serious physical harm could result.” 29 U.S.C. § 666(k). The Secretary need not show 

there was a substantial probability an accident would occur, only that if an accident did occur, 

death or serious physical harm could result. Mosser Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 

08-0631, 2010); Wal-Mart Stores, Inc., v. Sec’y of Labor, 406 F.3d 731, 735 (D.C. Cir. 2005);
28

Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1388 (D.C. Cir. 1985). 

In determining whether a hazard is “causing or likely to cause death or serious physical 

harm,” the Commission does not look to the likelihood of an accident or injury occurring, but, 

instead, looks to whether, if an accident occurs, the results are likely to cause death or serious 

harm. See Babcock, 622 F.2d at 1164; Beverly, 19 BNA OSHC at 1188; Waldon, 16 BNA OSHC 

at 1060; R.L. Sanders Roofing Co., 7 BNA OSHC 1566, 1569 (No. 76–2690, 1979), rev’d on other 

grounds, 620 F.2d 97 (5th Cir. 1980). 

Here, the record is clear that potentially hazardous conditions existed at the worksite and 

resulted in serious harm and death to Respondent’s employees. Mr. Bridges testified that it was 

important for hazardous energy to be controlled while Respondent’s crew performed maintenance 

at the worksite. (Tr. 163). Mr. Bridges further testified that the release of stored energy would be 

dangerous. (Tr. 163). The record shows that the release of this stored energy could, and did, cause 

the risk of fire resulting in severe injury or death of Respondent’s employees. (Tr. 162-164; Joint 

Stip. at 31). 

Each of the alleged violations address Respondent’s failure to comply with OSHA’s 

standards for controlling hazardous energy. Here, the record is clear that the failure to control 

hazardous energy, while performing maintenance, from the heater treater could cause a risk of fire 

and severely injure employees. (Tr. 163; Joint Stip. at 31). 

These violations were capable of causing serious injury or death. The Secretary established 

that uncontrolled hazardous energy from the heater treater was likely to cause death or serious 

physical harm. Thus, the violations were appropriately characterized. 

VI. Penalty
29

Under section 17(j) of the Act, the Commission has the authority to assess civil penalties 

for the violation of citations. 29 U.S.C. § 666(j). In assessing penalties, the Commission is 

instructed to give due consideration to the size of the employer’s business, the gravity of the 

violation, the employer’s good faith, and its history of previous violations. Compass Envtl., Inc., 

23 BNA OSHC 1132, 1137 (No. 06-1036, 2010), aff’d, 663 F.3d 1164 (10th Cir. 2011). The 

gravity of the violation is generally afforded greater weight in assessing an appropriate penalty. 

Trinity Indus., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). A violation’s gravity is 

determined by weighing the number of employees exposed, the duration of their hazard exposure, 

preventative measures taken against injury, and the possibility that an injury would occur. J. A. 

Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993); Kus-Tum Builders, Inc., 10 

BNA OSHC 1128, 1132 (No. 76-2644, 1981). 

The Secretary, in assessing the penalties for items 5, 6, 7, 8, and 9, proposed a penalty of 

$11,934 for each violation of the cited standards. (Citation; See Ex. C-7). The Citation proposed 

a total penalty of $59,670. 

Looking first at gravity, the CSHO explained that OSHA believed the violation’s gravity 

was high because of the high likelihood of severe injury, permanent disability, or death. (Tr. 

478-480). The record supports finding that the gravity of the violations warrants a high penalty as 

serious injury and death occurred. (Joint Stip. at 31). The CSHO noted that three employees were 

exposed to the violative conditions on the day of the accident. (Tr. 479-480). Additionally, she 

testified that the three employees were exposed to the hazard for approximately two hours. 

(Tr. 479-480). 

The Secretary proposed that the penalty should not be reduced for good faith because of 

the severe nature of the violations. (Tr. 481; Sec’y Br. at 30). Respondent had a general policy of 
30

relying on Pioneer for LOTO procedures pertaining to the heater treater. (Tr. 182-183). However, 

Respondent did not even know if Pioneer had LOTO procedures and never asked if they did. 

(Tr. 187-190, 196-198). Although the record shows Respondent provided some training to its 

employees in the recognition of applicable hazardous energy sources, the type and magnitude of 

the energy available in the workplace, and the methods and means necessary for energy isolation 

and control, it lacked any specific LOTO procedures for the heater treater. (Tr. 182-183, 721-727, 

731-737). 

Turning to history, although Respondent did not have any recent citations, it had not been 

inspected by OSHA within the previous five years of this current inspection. (Tr. 481). Therefore, 

the Secretary proposed no increase or decrease for history. (Tr. 481). 

As for size, at the time of OSHA’s investigation, Respondent employed between 125 and 

140 employees. (Tr. Tr. 111-113, 480-481). The Secretary proposed that Respondent receive a 

10 percent reduction for the employer’s size. (Tr. 480-481; Sec’y Br. at 30).

Upon due consideration of section 17(j) of the Act, with regard given to the penalty 

calculation factors, the undersigned finds a penalty for each serious citation 1, item 5, serious 

citation 1, item 6, and serious citation 1, item 8 of $11,934 is appropriate, resulting in a total 

combined penalty of $35,802. 
31

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 5, as amended, is AFFIRMED, and a penalty of $11,934 is ASSESSED.

2. Citation 1, Item 6 is AFFIRMED, and a penalty of $11,934 is ASSESSED.

3. Citation 1, Item 7 is VACATED, and no penalty is ASSESSED.

4. Citation 1, Item 8 is AFFIRMED, and a penalty of $11,934 is ASSESSED.

5. Citation 1, Item 9 is VACATED, and no penalty is ASSESSED.

/s/ Christopher D. Helms 

Dated: May 23, 2022

Denver, Colorado

Christopher D. Helms

Judge, OSHRC