Some personal identifiers have been redacted for privacy purposes

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

THOMAS E. PEREZ, Secretary of Labor, 

United States Department of Labor,

Complainant,

v. OSHRC DOCKET No. 13-1623

JACOBS FIELD SERVICES OF NORTH

AMERICA, INC., And its Successors,

Respondent.

DECISION AND ORDER 

COUNSEL: M. Patricia Smith, Solicitor of Labor, James E. Culp, Regional Solicitor, Madeleine 

T. Le, Counsel, Jennifer J. Johnson, Trial Attorney, for Complainant. 

Darren S. Harrington, Esq., Key Harrington Barnes, P.C., for Respondent. 

JUDGE: John B. Gatto. 

I. INTRODUCTION 

The above-styled action comes before the Court pursuant to a Complaint filed by Thomas 

E. Perez, Secretary of Labor, United States Department of Labor (Secretary) pursuant to section 

10(c) of the Occupational Safety and Health Act of 1970 (the Act)1 and Commission Rule 34(a)2

against Jacobs Field Services North America, Inc. (Jacobs).3

 The Complaint incorporated by 

reference a Citation and Notification of Penalty (the Citation) issued on August 27, 2013, by the 

 

1

 See 29 U.S.C. § 659(c); 29 U.S.C. §§ 651–678. 

2

See 29 C.F.R. § 2200.34(a). 

3

 The parties stipulate the Commission has jurisdiction of this proceeding under § 10(c) of the Act and that Jacobs is 

a covered business under § 3(5) of the Act. The parties also stipulate Jacobs filed a timely notice of contest in 

accordance with § 10(c) of the Act (Jt. Pretrial Order, Ex. E, Stipulations (Stip.) ¶¶ 1, 2, 4). 
2 

Houston, Texas Area Director4 of the Occupational Safety and Health Administration (OSHA) 

pursuant to section 9(a) of the Act,5 which alleged six serious6 violations involving the Process 

Safety Management (PSM) Standard7

, the Lockout/Tagout Standard,8 and the General 

Requirements section of the Personal Protective Equipment (PPE) Standard,9 with proposed 

penalties totaling $33,000.00. (Compl., Ex. A, pp. 6-13.) 

On March 5, 2013, Richard Nickerson, an OSHA Compliance Safety and Health Officer 

initiated an inspection of the chemical facility owned by AkzoNobel Polymer Chemicals (Akzo 

or AkzoNobel) in La Porte, Texas, the chemical plant at issue in this case. Jacobs is the onsite 

maintenance contractor for AkzoNobel (Stip. ¶ 5). The inspection was in response to media 

reports that [redacted], a Jacobs employee, had been injured as a result of a chemical release on 

March 4, 2013 (Exs. C-2, C-3). The Secretary cited both Jacobs and AkzoNobel for violations of 

the cited standards. 

In response to the Secretary’s allegations, Jacobs asserts that because AkzoNobel is the 

owner and operator of the plant, “Akzo is the appropriate ‘employer’ for purposes of fulfilling 

the responsibilities set forth in the cited standards[,]” and therefore, “the [cited standards] 

 

4

 By regulation, the Secretary has authorized OSHA’s Area Directors to issue citations and proposed penalties. See

29 C.F.R. §§ 1903.14(a) and 1903.15(a). 

5

See 29 U.S.C. § 658(a). 

6

 With respect to alleged serious violations, “a serious violation shall be deemed to exist in a place of employment if 

there is a substantial probability that death or serious physical harm could result from a condition which exists, or 

from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such 

place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of 

the presence of the violation.” 29 U.S.C. § 666(k). 

7

See 29 C.F.R. § 1910.119. 

8

See 29 C.F.R. § 1910.147. 

9

See 29 C.F.R. § 1910.132. 
3 

identified in the Citation [did] not apply to Jacobs.” (Resp’t’s Br., p.3.) Jacobs also argues that 

the lockout/tagout standard [did] not apply to the cited activity. Jacobs further contends that 

[redacted] was wearing appropriated PPE. Finally, should the Court find a violation existed for 

any of the cited items, Jacobs assert the affirmative defense of unpreventable employee 

misconduct. 

In Item 1 of the Citation, the Secretary alleged a serious violation of 29 C.F.R. § 

1910.119(d)(3) for failing to make information available to employees pertaining to equipment 

in the process. The Secretary proposed a penalty of $6,000.00 for Item 1. (Compl., Ex. A, p. 6.) 

Item 2a alleged a serious violation of 29 C.F.R. § 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 29 C.F.R. § 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. The Secretary proposed a grouped penalty of 

$7,000.00 for Items 2a and 2b. (Id. at pp. 7-8.) 

Item 3 alleged a serious violation of 29 C.F.R. § 1910.119(j)(2) for failing to establish 

and implement written procedures for maintaining the on-going integrity of process equipment. 

The Secretary proposed a penalty of $7,000.00 for Item 3. (Id. at p. 9.) 

Item 4 alleged a serious violation of 29 C.F.R. § 1910.119(j)(3) for failing to train each 

employee involved in maintaining the on-going integrity of process equipment in an overview of 

that process and its hazards and in the procedures applicable to the employee’s job tasks to 

assure that the employee can perform the job tasks in a safe manner. The Secretary proposed a 

penalty of $7,000.00 for Item 4. (Id. at p. 10.) 
4 

Item 5 alleged a serious violation of 29 C.F.R. § 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. The Secretary proposed a penalty of $6,000.00 for Item 5. (Id. at p. 11.) 

The Court held a trial in this matter on April 16 and 17, 2014, in Houston, Texas.10 On 

September 4, 2014, the Secretary withdrew Item 1 of the Citation. The Court thereafter issued 

an order on September 8, 2014, vacating Item 1. The parties filed post-trial briefs and the 

Secretary also filed a reply brief. For the reasons indicated infra, the Court VACATES Items 

2a, 2b, and 5 of the Citation, AFFIRMS Items 3 and 4 of the Citation, and assesses a penalty of 

$7,000.00 for Item 3 and $7,000.00 for Item 4 of the Citation.

II. BACKGROUND 

AkzoNobel is a Dutch company headquartered in Amsterdam. It manufactures paint and 

coatings, as well as specialty chemicals. AkzoNobel operates the facility at issue, located in La 

Porte, Texas, which sits on 25 acres (Tr. 34). The La Porte facility11 manufactures 

organometallic specialty chemicals used as catalysts and co-catalysts for the plastics industry 

(Tr. 29-30). Jacobs was the resident maintenance contractor for AkzoNobel and had held that 

position for at least a decade at the time of trial (Tr. 36, 38). Jacobs employed 27 to 35 

employees at the La Porte facility (Tr. 381). Its most senior employee onsite was Thomas Pettus, 

 

10 Commission Rule 52(e)(7) provides, “In connection with any discovery procedures and where a showing of good 

cause has been made, the Commission or Judge may make any order including . . . [t]hat a trade secret or other 

confidential research, development, or commercial information not be disclosed or be disclosed only in a designated 

way.” On March 21, 2014, the Court issued a Stipulated Protective Order ruling that certain documents produced by 

AkzoNobel during the instant proceeding “contain trade secrets or other information that requires protection to 

prevent the loss of AkzoNobel’s competitive advantage.” (Stipulated Protective Order, ¶ 4.) The parties agreed to 

mark such documents as Confidential. Confidential documents adduced as exhibits at trial were placed under seal. 

Jacobs “agrees that it will destroy all original copies and later copies, if any, of the Confidential documents at the 

conclusion of litigation of the contest proceedings.” (Stipulated Protective Order, ¶ 6) (Tr. 22, 90).

11 In addition to being called the La Port facility, the site is also referred to as the Deer Park facility and the 

Battleground facility (Tr. 32-33). 
5 

Jacobs’s site manager over the AkzoNobel contract (Tr. 355). David Atcheson was Jacobs’s 

instrument and electrical supervisor and supervised [redacted] (Tr. 174). 

The equipment at issue is located in the facility’s settling tank area, which contains one 

reactor and six settling tanks. A reactor is a pressure-rated process vessel that transforms raw 

materials into a different product by controlling the temperature and pressure inside the reactor. 

A settler tank, or decanter, is a pressure-rated process vessel used to separate chemicals into 

heavier and lighter compounds. It is a vertical structure with six decant valves running up its 

side. Employees use the valves to regulate and direct the flow of the fluid by opening and 

closing the various passageways. The valves are mounted to the settling tank and are connected 

to the pipes. The capacity of each settling tank is 15,000 gallons. AkzoNobel normally works 

with approximately 8,000 gallons of a butylethylmagnesium (BEM) mixture inside a tank. The 

equipment at issue was a settling tank for BEM and was designated as the T-802 BEM settler 

tank. (Ex. C-52, pp. 72-74, 85-86, 92, 117-118, 241; Tr. 31-32). 

In order to process the chemical product, employees place the raw materials in the 

reactor. After the materials have been changed, the resulting product is transferred to the various 

settling tanks for settling and decanting. The settling process takes place generally over two days 

(Ex. C-52, pp. 86, 120). Once the chemicals have separated, employees open and close the 

decant valves at the different levels and move the separated chemicals to the next stage in the 

process (Ex. C-52, pp. 85-87). In order to open and close the valves, AkzoNobel uses automated 

devices known as actuators, which are mounted on top of each valve using bolts (Ex. C-52, p. 

128). 

AkzoNobel used two different methods to mount the actuators to the valves. The “old 

style” was to use a bracket to mount the actuator to the valve bonnet. The bracket functioned 
6 

only to assist with the mounting of the actuator. The same bolts that hold the bonnet and valve 

body together also connect the actuator to the valve (Tr. 80-86). The “new style” does not 

require the use of the same bolts connected to the bonnet and valve body to mount the actuator 

and the bolts do not go through the bonnet (Ex. C-52, pp. 291-293, Tr. 88). The new style of 

mounting the actuators allows an employee to remove all of the bolts without causing a loss of 

containment of the tank’s contents (Tr. 88, 160, 223). AkzoNobel had used the old style to 

mount the actuator to the valves on the T-802 BEM tank (Tr. 81, 83-86). Employees activate the 

actuators using RO-2 switches, which are operated by a local hand switch in the field. When an 

employee turns on the hand switch, it opens an air supply to the RO-2 switch. The RO-2 switch 

activates the actuator, which turns the valve and allows the product to decant into the pipelines 

(Tr. 281). 

On March 4, 2013, David Atcheson, instrument and electrical supervisor for Jacobs, 

instructed [redacted] to repair the actuated valves of the T-802 BEM tank (Ex. C-15; Tr. 282). 

[redacted] had previously assisted Atcheson with the removal and troubleshooting of an actuator 

mounted (Tr. 208-209). Although it is possible to remove an actuator mounted in the old style 

without causing a loss of containment, one of the brackets connected to the valve had rusted to 

such an extent that [redacted] was unable to remove it (Tr. 263). [redacted] stood on a ladder 

and attempted to pry off the rusted bracket, but was unable to do so. [redacted] elected to 

remove the four bolts that connected the actuator to the valve bonnet. 

When he did so, the BEM mixture released from the valve and splashed onto [redacted], 

causing 1st and 2nd degree burns to his face, wrists, and neck (Tr. 229-231). On that day, the T802 BEM tank held approximately 9,500 gallons of a BEM/heptane mixture (80% heptane and 

20 % BEM) (Ex. 52, p. 300). Approximately 57,000 pounds were released during the incident 
7 

(Ex. C-52, pp. 299-300). [redacted] attempted to run to the safety shower but was unable to open 

his eyes. He eventually was able to follow the sound of another employee’s voice to the safety 

shower where he was able to strip off his coveralls and wash away the BEM mixture (Tr. 229-

230). [redacted] was taken by ambulance to the hospital. He was not able to work for three or 

four months after the accident (Tr. 230). [redacted] testified, however, that although he was 

neither disciplined nor terminated by Jacobs, he never returned to work for the company because 

“[t]hey never called me back.” (Tr. 231). At the time of trial, [redacted] was working for a 

different company (Tr. 166). 

BEM is pyrophoric, meaning it will catch fire when exposed to air. It also reacts to water 

(Exs. C-40, C-52, p. 58). In addition to splashing [redacted] and causing him injury, the 

chemical release also resulted in a fire that caused extensive damage to the exposed pipe rack, 

piping, wiring, instrumentation, and process equipment (Exs. C-21, C-52, pp. 233-234, 251). 

III. THE CITATION

“To prove a violation of an OSHA standard, the Secretary must show by a preponderance 

of the evidence that (1) the cited standard applies; (2) [Jacobs] failed to comply with the terms of 

the cited standard; (3) employees had access to the violative condition; and (4) [Jacobs] either 

knew or could have known with the exercise of reasonable diligence of the violative condition.” 

JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). 

Item 2a: Alleged Serious Violation of 29 C.F.R. § 1910.119(f)(4) 

 In Item 2a of the Citation the Secretary alleged that Jacobs violated 29 CFR §

1910.119(f)(4) because it “did not develop and implement safe work practices to provide for the 

control of hazards during operations such as lockout/tagout; confined space entry; opening 
8 

process equipment or piping; and control over entrance into a facility by maintenance, 

contractor, laboratory, or other support personnel.” (Cit., p. 7.) More specifically, the Secretary 

asserted that Jacobs “did not implement safe work practices to provide for the control of hazards 

during repair of valves in the BEM Settler area of the AkzoNobel facility in La Porte, Texas.” 

(Id.) The Secretary asserted that “[t]his most recently occurred on/around March 4, 2013, when 

[Jacobs] did not implement its Hazardous Energy Control Procedure or another 

program/procedure or method to prevent workers being injured while troubleshooting and 

repairing the valves in the decant piping from the T-802 Settler.” (Id.) 

Cited Subsection 

 Section 1910.119(f)(4) mandates that: “[t]he employer shall develop and implement safe 

work practices to provide for the control of hazards during operations such as lockout/tagout; 

confined space entry; opening process equipment or piping; and control over entrance into a 

facility by maintenance, contractor, laboratory, or other support personnel. These safe work 

practices shall apply to employees and contractor employees.” 29 C.F.R. § 1910.119(f)(4). 

Applicability of Section 1910.119(f)(4) 

As indicated supra, the first element the Secretary must establish to meet his burden of 

proof is that “the cited standard applies[.]” JPC Group Inc., 22 BNA OSHC at 1861. Section 

1910.119 is a part of the PSM standard found in Subpart H (Hazardous Materials) of OSHA’s 

general industry standards and addresses “[p]rocess safety management of highly hazardous 

chemicals” and “contains requirements for preventing or minimizing the consequences of 

catastrophic releases of toxic, reactive, flammable, or explosive chemicals. These releases may 

result in toxic, fire or explosion hazards.” 29 CFR § 1910.119(f)(4). The PSM standard applies 

to a “process which involves a flammable liquid or gas . . . on site in one location, in a quantity 
9 

of 10,000 pounds (4535.9 kg) or more[.]”12 29 CFR § 1910.119(a)(1)(ii). The parties stipulated 

that the BEM settling process at the La Porte facility involved a flammable liquid 

(BEM/heptane) with a flashpoint below 100o F (37.8o C) on site in one location, in a quantity of 

10,000 pounds (4534.9 kg) or more (Stip. ¶ 6). Thus, the PSM standard applied to the BEM 

settling process at the La Porte facility. The issue, however, is whether the cited PSM standard, 

subsection 1910.119(f)(4), applied to Jacobs in its capacity as contractor to the facility’s owner, 

AkzoNobel. 

Jacobs argues the term employer used throughout the PSM standard refers solely to the 

owner/operator of the equipment (in this case AkzoNobel) except for paragraph (h), which is 

captioned Contractors.

13

 Section 1910.119(h)(2) is captioned Employer responsibilities and sets 

 

12 A “process” is “any activity involving a highly hazardous chemical including any use, storage, manufacturing, 

handling, or the on-site movement of such chemicals, or combination of these activities. For purposes of this 

definition, any group of vessels which are interconnected and separate vessels which are located such that a highly 

hazardous chemical could be involved in a potential release shall be considered a single process.” 29 CFR §

1910.119(b). 

13 Section 1910.119(h) in its entirety provides the following: 

(h) Contractors--(1) Application. This paragraph applies to contractors performing maintenance or 

repair, turnaround, major renovation, or specialty work on or adjacent to a covered process. It does not 

apply to contractors providing incidental services which do not influence process safety, such as janitorial 

work, food and drink services, laundry, delivery or other supply services. 

 (2) Employer responsibilities. (i) The employer, when selecting a contractor, shall obtain and evaluate 

information regarding the contract employer's safety performance and programs. 

 (ii) The employer shall inform contract employers of the known potential fire, explosion, or toxic 

release hazards related to the contractor's work and the process. 

 (iii) The employer shall explain to contract employers the applicable provisions of the emergency 

action plan required by paragraph (n) of this section. 

 (iv) The employer shall develop and implement safe work practices consistent with paragraph (f)(4) of 

this section, to control the entrance, presence and exit of contract employers and contract employees in 

covered process areas. 

 (v) The employer shall periodically evaluate the performance of contract employers in fulfilling their 

obligations as specified in paragraph (h)(3) of this section. 

 (vi) The employer shall maintain a contract employee injury and illness log related to the contractor's 

work in process areas. 

 (3) Contract employer responsibilities. (i) The contract employer shall assure that each contract 

employee is trained in the work practices necessary to safely perform his/her job. 

 (ii) The contract employer shall assure that each contract employee is instructed in the known potential 

fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable 

provisions of the emergency action plan. 
10

out the obligations of the owner/operator vis-a-vis contractors. Section 1910.119(h)(3) is 

captioned Contract employer responsibilities and lists the duties of the contract employer, 

always referring to it with the two-word label contract employer. 

Based on section 1910.119(h), Jacobs argues it is not required to comply with the other 

subsections of the PSM standard for which it was cited, because Jacobs contends, “[t]he plain 

reading of the PSM standard requires the responsibilities to be delineated between the host 

employer and the contractor employer.” (Resp’t’s Br., p. 20) (emphasis omitted). The Court 

agrees with Jacobs that the wording of section 1910.119(h) seems to imply that contract 

employers are required to comply only with the subsections of the PSM standard that explicitly 

refer to contract employers. The subsections cited by the Secretary refer to the employer, and not 

the contract employer, so it would appear at first blush that the cited subsections do not apply to 

Jacobs in its capacity as a contract employer. However, the preamble to the final rule of the 

PSM standard, in addressing section 1910.119(h), states in relevant part that “[t]his is not to say, 

however, that paragraph (h) is the only section of the process safety rule that applies to 

contractors. . . . In determining who to hold responsible, OSHA will look at who created the 

hazard, who controlled the hazard and whether all reasonable means were taken to deal with the 

hazard.” Process Safety Management of Highly Hazardous Chemicals; Explosives and Blasting 

Agents, 57 Fed. Reg. 6356, 6384-6385 (February 24, 1992) (emphasis added). 

 

 (iii) The contract employer shall document that each contract employee has received and understood 

the training required by this paragraph. The contract employer shall prepare a record which contains the 

identity of the contract employee, the date of training, and the means used to verify that the employee 

understood the training. 

 (iv) The contract employer shall assure that each contract employee follows the safety rules of the 

facility including the safe work practices required by paragraph (f)(4) of this section. 

 (v) The contract employer shall advise the employer of any unique hazards presented by the contract 

employer's work, or of any hazards found by the contract employer's work. 

29 C.F.R. § 1910.119(h). 
11

More importantly, the Commission has recently issued an opinion that is contrary to 

Jacobs’s position. In Southern Pan Services Co., 2014 WL 7338403 (No. 08-0866, Dec. 18, 

2014), Southern Pan was subcontracted to perform concrete formwork on a six-story concrete 

parking deck, which was part of a construction project known as the Berkman project. Part of 

the structure collapsed during a concrete pour, resulting in the death of a Southern Pan employee, 

serious injuries to another Southern Pan employee, and injuries to more than twenty employees 

employed by various subcontractors. Southern Pan was cited for several violations of the Act, 

including a willful violation of section 1926.701(a), which provides: 

No construction loads shall be placed on a concrete structure or portion of a 

concrete structure unless the employer determines, based on information received 

from a person who is qualified in structural design, that the structure or portion of 

the structure is capable of supporting the loads.

29 CFR §1926.701(a). 

In the underlying decision, former Commission Judge Ken S. Welsch cited the preamble 

to the final rule for the concrete and masonry construction standard, which states, 

OSHA is requiring that the employer make the determination that the structure or 

portion of the structure is capable of supporting the construction loads. The 

employer must make this determination on the basis of information received from 

a person qualified in structural design. This revision also places responsibility for 

employee safety with the person directly responsible for the concrete operations.

Concrete and Masonry Construction Safety Standards, 53 Fed. Reg. 22612, 22617 (June 16, 

1988) (emphasis added). Judge Welsch vacated this item, finding that based on the plain 

language of the cited standard and the preamble to the final rule, the requirements of the standard 

apply only to “the employers directly responsible for the concrete operation”—in this case 

Choate, the general contractor, and Pittman, the concrete finishing subcontractor. Id. at *4.
12

The Commission reversed Judge Welsch’s decision since, 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.” Id. (emphasis added) (citing e.g. Ryder Transp. 

Servs., 24 BNA OSHC 2061, 2064, 2014 CCH OSHD ¶ 33,412, p. 57,383 (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, 

2004-08 CCH OSHD ¶ 32,958, p. 53,924 (No. 06-1416, 2008) (finding “the cited ... provision 

was applicable to the conditions in KS Energy's traffic control zone”), aff'd, 701 F.3d 367 (7th 

Cir. 2012); Active Oil Serv., Inc., 21 BNA OSHC 1092, 1094, 2004-09 CCH OSHD ¶ 32,802, 

pp. 52,486-7 (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, 

2002-04 CCH OSHD ¶ 32,728, p. 51,896 (No. 99-1707, 2004) (“In order to establish a violation, 

the Secretary must show that the standards applied to the cited conditions.”). 

The Commission ultimately concluded that Southern Pan was an “exposing employer” 

because its own employees were exposed to the cited hazard. As an exposing employer, 

Southern Pan was required to “do what [was] ‘realistic’ under the circumstances to protect its 

employees from the hazard to which a particular standard is addressed, even though literal 

compliance with the standard may [have been] unrealistic.” Id. at *5 (citations omitted). Thus, 

the Commission held that “[w]hat remains at issue is determining the nature of Southern Pan's 

compliance obligations under the cited provision given the circumstances of this case.” Id. at *4. 

“Thus, the issue for consideration is whether, under applicable precedent, Southern Pan made 

reasonable efforts to protect the two employees exposed to the violative condition.” Id. at *7 

(citation omitted). 
13

Therefore, the Court finds no merit in Jacobs’s assertion that it had no obligation to 

comply with the cited subsections of the PSM standard because they did not specifically refer to 

the contract employer. [redacted] was seriously injured while working at the La Porte facility, a 

multi-employer worksite. As the exposing employer, Jacobs was responsible for all violative 

conditions to which its employee had access. Thus, the issue for consideration is whether, under 

applicable precedent, Jacobs made reasonable efforts to protect [redacted]. 

As the Commission emphatically held in Southern Pan, the Secretary must establish that 

the cited standard applies to the cited conditions, not to the cited employer. Jacobs does not 

dispute that “the BEM settling process at the La Porte facility involved a flammable liquid 

(BEM/heptane) with a flashpoint below 100o F (37.8o C) on site in one location, in a quantity of 

10,000 pounds (4534.9 kg) or more.” (Stip. ¶ 6). The Court therefore concludes that the 

Secretary has established that section 1910.119(f)(4) applies to the cited conditions. 

Compliance with the Terms of the Cited Standard 

The Secretary must establish that Jacobs failed to comply with the terms of section 

1910.119(f)(4) by proving Jacobs failed to “develop and implement safe work practices to 

provide for the control of hazards during operations such as lockout/tagout . . . by . . . contractor . 

. . personnel.” The Citation asserts that the task that Jacobs assigned [redacted] to perform was 

the “repair of valves in the BEM Settler area.” The Secretary argues that Jacobs failed “to 

properly detail the procedures necessary to complete the [[redacted]’s] assigned work . . . [and] 

thus failed to identify the hazards and guard against the foreseeable hazards associated with the 

work [[redacted]] was performing on March 4, 2013. Respondent failed to implement its line 
14

break procedures when [[redacted]] opened the process equipment on March 4, 213, resulting in 

an unexpected release of [BEM].” (Compl’t’s Br., p. 20). 

However, Jacobs contends Item 2a should be vacated because the task assigned to 

[redacted] “did not require a line break or any other action that involved potential exposure to a 

hazard. Given the assigned task, Jacobs was not required to implement Akzo’s hazard control 

procedure.” (Resp’t’s Br., p. 30). For the reasons indicated infra, the Court finds no merit in 

Jacobs’s contention. 

The Court qualified James Johnstone, the Secretary’s witness, as an expert in chemical 

engineering and process safety management in accordance with F.R.Evid. 702.14 Johnstone is 

the president of Contec Solutions, a company that provides safety and environmental engineering 

services, with an emphasis on process safety management, and he has a degree in mechanical 

engineering from Washington State University (Ex. C-54; Tr. 396-397). Johnstone opined “that 

the safe work practices were not documented for this valve” and that such documentation is 

important because the actuator attached in the old style was “a very unusual device out there for 

somebody to go work on. And so because it’s so unusual and obviously the risk was quite high 

of something happening, it would have been very important to have a procedure set up for doing 

this type of work.” (Tr. 438) (emphasis added). 

In his post-trial brief the Secretary also argued that Jacobs had actual and constructive 

knowledge that it had failed to comply with the terms of the standard because it “was aware for 

years that it had no written procedures detailing the job tasks of troubleshooting actuators and 

also knew that the “old style” mounting existed at the Battleground site, but . . . had conducted 

no assessment of the associated hazards.” (Compl’t’s Br., p. 22) (emphasis added). The Court 

 

14 At trial, the parties stipulated to the qualifications of their respective experts (Tr. 405). 
15

finds no merit in the Secretary’s position since he is imposing a requirement on Jacobs that is not 

required in the standard. 

The Commission has already addressed the issue of whether section 1910.119(f)(4) 

requires the employer’s safe work practices to be in writing and has determined that it does not. 

“It is well settled that the test for the applicability of any statutory or regulatory provision looks 

first to the text and structure of the statute or regulations whose application is questioned.” 

Unarco Commercial Prod., 16 BNA OSHC 1499, 1502, 1993–95 CCH OSHD ¶ 30,294 at p. 

41,732 (No. 89–1555, 1993). Thus, in Albemarle Corp., 18 BNA OSHC 1730, 1732 (Nos. 93-

0848 & 93-1715, 1999), the Commission noted that section 1910.119(f)(4) does not use the word 

“written,” or otherwise require that procedures be in writing. For example, “written” operating 

procedures must be developed and implemented under section 1910.119(f)(1); “readily 

accessible” to the employees under section 1910.119(f)(2); and “reviewed” to ensure that they 

reflect “current operating practice” under section 1910.119(f)(3). In contrast, while section 

1910.119(f)(4) requires the development and implementation of safe work practices, it neither 

expressly nor by implication requires that they be in writing. Accordingly, the Commission 

concluded that no writing was intended to be required. 

The Secretary nonetheless alleges Jacobs violated section 1926.119(f)(4) in part because 

it did not have written safe work practices. Under Albemarle Corp., safe work practices are not 

required to be in writing. Further, to the extent that the Secretary alleges Jacobs failed to 

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

as LOTO, he has failed to prove that allegation. The phrase safe work practices is not defined in 

the PSM standard. The Secretary has not offered a definition of what he would consider 
16

acceptable as safe work practices. Instead, the Secretary appears to equate safe work practices 

with compliance with section 1910.147(c)(4)(i). 

In his discussion of Jacobs’s alleged failure to develop and implement safe work 

practices, the Secretary focuses on [redacted]’s failure to implement LOTO procedures before 

attempting to troubleshoot the actuator. The Secretary argues that “[h]ad [Jacobs] complied with 

any of the standards for which it was cited, [Jacobs] would have known that LOTO was needed. . 

. . [Jacobs] was required to execute internal lockout tagout policies and procedures to ensure that 

a loss of containment would not occur while [[redacted]] was working on the valves and 

troubleshooting the actuators.” (Compl’t’s Br., pp. 21-22.) 

Item 2b alleges Jacobs failed to ensure its employee used LOTO procedures when 

troubleshooting the actuator on March 4, 2013. The “safe work practices” the Secretary alleges 

in Item 2a that Jacobs failed to implement appear to be the LOTO procedures for troubleshooting 

the actuators that the Secretary also alleged Jacobs failed to implement in Item 2b. The 

Secretary has shown no significant difference between his requirements for compliance with the 

subsections cited in Items 2a and 2b. Violations may be found duplicative where the standards 

cited require the same abatement measures, or where abatement of one citation item will 

necessarily result in abatement of the other item as well. Flint Eng. & Const. Co., 15 BNA 

OSHC 2052, 2056-2057 (No. 90-2873, 1997). Here, the abatement is the same for both cited 

subsections: Develop and implement procedures for the control of potentially hazardous energy. 

The Court therefore concludes that Item 2a is duplicative of Item 2b. Accordingly, the Court 

concludes that Item 2a must be VACATED. 
17

Item 2b: Alleged Serious Violation of 29 CFR § 1910.147(c)(4)(i) 

 The Secretary asserted in Item 2b of the Citation that Jacobs violated 29 CFR § 

1910.147(c)(4)(i) because it “did not ensure that procedures were developed, documented and 

utilized for the control of potentially hazardous energy when employees were engaged in 

maintenance activities.” More specifically, the Secretary asserted that “[o]n/around March 4, 

2013, at the AkzoNobel Facility in LaPorte, Texas, [Jacobs] did not implement an energy control 

procedure to control potentially hazardous energy to ensure that before any employee performed 

maintenance on the actuated valves in the decant line piping from the T-802 settler, where the 

unexpected release of stored energy could occur and cause injury, equipment shall be isolated 

from the energy source.” 

Cited Subsection

Section 1910.147(c)(4)(i) mandates that “[p]rocedures shall be developed, documented 

and utilized for the control of potentially hazardous energy when employees are engaged in the 

activities covered by this section.” 29 CFR § 1910.147(c)(4)(i). 

Applicability of Section 1910.147(c)(4)(i)

 The cited subsection appears in section 1910.147, which governs the control of hazardous 

energy (lockout/tagout) (LOTO). Section 1910.147(a)(i) defines the scope of the LOTO 

standard: 

This standard 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. This standard 

establishes minimum performance requirements for the control of such hazardous 

energy. 

(emphasis in original). Section 1910.147(b) defines servicing and/or maintenance as: 
18

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. 

(emphasis in original). That same subsection defines energy source as “[a]ny source of 

electrical, mechanical, hydraulic, pneumatic, chemical, thermal, or other energy.” 

The Secretary contends section 1910.147(c)(4)(i) applies to the cited conditions because 

[redacted]’s removal of the actuator was a servicing activity that exposed him to the release of 

stored chemical energy in the form of BEM. Jacobs argues the assigned task of troubleshooting 

the actuator did not involve any potential exposure to hazardous energy. “Had the employee 

properly performed the task assigned, there would have been no exposure to hazardous energy. 

Therefore, the requirement that the employer implement safe work practices to provide for the 

control of hazards during operation was not applicable.” (Resp’t’s Br., p. 5). 

The Court agrees with the Secretary that the cited standard applies to the cited conditions. 

Section 1910.147(c)(4)(i) provides that LOTO procedures be “developed, documented and 

utilized for the control of potentially hazardous energy when employees are engaged in the 

activities covered by this section.” [redacted] was engaged in a servicing activity covered by 

section 1910.147 and he was exposed to the potential release of hazardous chemical energy.” 

Section 1910.147(c)(4)(i) therefore applies to [redacted]’s troubleshooting task. 

Compliance with the Terms of the Cited Standard 

AkzoNobel has developed and documented LOTO procedures for planned line breaks at 

the La Porte facility. Jacobs follows AkzoNobel’s LOTO procedure and trains its employees to 
19

follow it (Exs. R-7 & R-8; Ex. C-52, pp. 297; Tr. 46). Jacobs's supervisor David Atcheson 

explained the process for implementing LOTO procedures: 

Atcheson: [A Jacobs employee] would realize that [the LOTO procedures are 

being implemented] because there's forms to be filled out. If it was going to make 

a line break, it's a totally different job than what – 

Q. Describe that procedure to me. 

Atcheson: Okay. If there's going to be a line break out there, the permitting is 

different. You're not in a category one. The operator would write it up putting it in 

a category two. 

Q. When you say that, what is category one and category two? 

Atcheson: Category one is your FRCs, basically your basic PPE, which is hard 

hat, safety glasses, flame retardant coveralls and steel-toed boots. Category two is 

silver suit we wear for line breaks, which consists of a shroud, a face shield, a 

silver suit top and bottom, PVC gloves. 

Q. And you said there are a number of documents. What type of documents would 

be associated with a line break? 

Atcheson: Okay. Well, if you're going to make a line break, Jacobs has a line 

break check off sheet, which we'd have to fill out and that's got various things on 

it like, you know, where's your safety showers and bucket, load point, 

identification. 

(Tr. 285-286). 

Ronald Wilson, AkzoNobel’s health, safety, and security manager, testified that the 

LOTO procedure is implemented any time there is a line break. “Line breaking would by any 

time you open process piping . . . And with our material, you’ve got pyrophoric potential if you 

don’t prepare the equipment properly . . . [A]ny piping or equipment that is opened at our facility 

needs to be prepared properly before it’s opened” (Ex. C-52, p. 223). Atcheson admitted that 

Jacobs did not implement its LOTO procedures for the T-802 BEM Settler on March 4, 2013 (Tr. 

285). [redacted] also admitted he did not implement LOTO procedures on March 4, 2013, 

because “it is not a procedure to lockout if you’re working on [an] actuator.” (Tr. 249). It is 
20

undisputed that [redacted], in removing the bolts that connected the actuator bracket to the valve 

bonnet on March 4, 2013, broke the line. Wilson testified that removing the valve bonnet is line 

breaking (Ex. C-52, p. 225). Therefore, the Court concludes that the Secretary has established 

that Jacobs failed to comply with section 1910.147(c)(4)(i) on March 4, 2014, when [redacted] 

was troubleshooting the actuator. 

Employee Access to the Violative Condition 

Jacob’s failure to implement LOTO procedures on March 4, 2013, on the T-802 BEM 

Settler exposed [redacted] to the hazard of the release of stored chemical energy. BEM splashed 

on [redacted], causing 1st and 2nd degree burns to his face, wrists, and neck (Tr. 229-231). 

Therefore, the Court concludes that the Secretary has established employee access to the 

violative condition. 

Employer Knowledge 

“As part of the Secretary's prima facie case, [he] must show that the employer had actual 

knowledge of the violation or could have discovered it with the exercise of reasonable 

diligence.” Otis Elevator Co., 21 BNA OSHC 2205, 2207 (No. 03-1344, 2007). Thus, the 

Secretary must establish that Jacobs had either actual or constructive knowledge that it had failed 

to implement LOTO procedures when its employee had access to the hazard of the release of 

stored chemical energy. The record does not establish Jacobs had actual knowledge of such 

access. Atcheson testified he did not anticipate that [redacted]’s assignment on March 4, 2013, 

would require a line break that would trigger the implementation of the LOTO procedures (Tr. 

291). 
21

The Secretary also failed to establish Jacobs had constructive knowledge of [redacted]’s 

line break. “The test is whether the Secretary established that [Jacobs] could have discovered the 

violative condition through the exercise of reasonable diligence.” Otis Elevator Co., 21 BNA 

OSHC at 2210 (citing Pride Oil Well Serv., 15 BNA OSHC 1809, 1814, 1991-93 CCH OSHD ¶ 

29,807, p. 40,583 (No. 87-692, 1992)). “An inquiry into whether an employer was reasonably 

diligent involves several factors, including the employer's obligation to have adequate work rules 

and training programs, to adequately supervise employees, to anticipate hazards to which 

employees may be exposed, and to take measures to prevent the occurrence of violations.” Stahl 

Roofing Inc., 19 BNA OSHC 2179, 2181 (No. 00-1268, 2003). 

Atcheson testified the task he assigned [redacted] of troubleshooting the actuator did not 

require [redacted] to cause a line break. 

Q. How do you remove an actuator? 

Atcheson: The bolts that attach it to a bracket. 

Q. And what do you do with those bolts? 

Atcheson: Okay. You remove the bolts and take the actuator off. 

Q. So there's no need then to remove the bracket? 

Atcheson: No. 

* * *

Q. And if you have to replace an RO2, or an actuator for that matter, does that 

involve a line break? 

Atcheson: No. 

Q. Are you required to lockout or tagout the RO2 or the actuator? 

Atcheson: No. 
22

Q. Why not? 

Atcheson: Because like in this particular -- well, you've got control of the 

instrument area. It's in your vicinity right there at it, so you just simply block in 

the air and remove the RO2. 

* * *

Q. And once that tubing is removed, is it possible for the RO2 to become 

energized? 

Atcheson: No. 

Q. Are there any moving parts that might injure the employee if the RO2 were to 

become energized? 

Atcheson: It's all internal movement. 

Q. What about the actuator? Are there any moving parts that might injure the 

employee if it becomes – 

Atcheson: No. It's just turning the stem so it's in the middle of it. It's not out in 

the open. 

Q. All the moving parts are internal to the component, to the inside of the 

actuator? 

Atcheson: No, it's not internal on that. There's internal moving parts on an 

actuator but it's tied to the stem. 

Q. And so if the actuator were to unexpectedly become energized, would an 

employee be exposed to a hazard by the actuator operating? 

Atcheson: No. 

(Tr. 292-295). 

AkzoNobel’s safety manager Wilson agreed with Atcheson that [redacted]’s assigned 

task did not trigger the LOTO procedure: 

Wilson: Troubleshooting an actuator does not require breaking into a line, doing 

a line-break. It doesn't require opening any piece of equipment. The only energy 

source involved with troubleshooting an actuator is moving a quarter-inch 

instrument airline, which poses no hazard to anybody. 

Q. Okay. Well, does 1910.147 apply to troubleshooting an actuator? 
23

Wilson: No, it does not. 

Q. Is that for the same reason? 

Wilson: For the same reason. There's no hazardous energy source that's going to 

hurt anyone by disconnecting a quarter-inch instrument airline that's shooting out 

a very low pressure. 

Q. Is it possible to remove the actuator from the bracket without disassembling 

the valve? 

Wilson: Yes, there is. That's -- yes. 

Q. Okay. Would that be your expectation? 

Wilson: That's what we expected March 4th. 

(Tr. 131). 

Jacobs followed the LOTO procedure that AkzoNobel had developed and documented. It 

trained its employees in the LOTO procedure. It utilized the LOTO procedure when its 

employees engaged in activities that involved line breaks in the process equipment. In the 

instant case, Jacobs did not anticipate its employee would initiate a line break. The task assigned 

to the employee did not require the employee to cause a line break. Thus, Jacobs was unaware 

that the LOTO procedure would need to be utilized. 

 Therefore, the Court concludes that the Secretary has failed to establish Jacobs had actual 

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

chemical energy. Accordingly, the Court concluded that Item 2b must be VACATED. 

Items 3 and 4: Alleged Serious Violations of 29 CFR §§ 1910.119(j)(2) and (3) 

In Item 3 of the Citation the Secretary alleges that Jacobs violated 29 CFR §§

1910.119(j)(2) because it “did not establish and implement written procedures for maintaining 
24

the on-going integrity of critical components of the process piping[.]” (Compl., Ex. A, p. 9.) 

More specifically, the Secretary alleges that Jacobs “did not establish and implement written 

procedures for the non-routine task of separating the valve and actuator to repair the valves in the 

piping of the BEM Settlers.” (Id.) According to the Secretary this occurred when Jacobs “did not 

provide written procedures to guide the maintenance technician in repairing the valves in the 

decant piping from the T-8-2 Settler on/around March 4, 2013.” (Id.) 

In Item 4 of the Citation the Secretary alleges that Jacobs violated 29 CFR § 

1910.119(j)(3) because it “did not train each employee involved in maintaining the on-going 

integrity of process equipment in the procedures applicable to the employee’s job tasks to ensure 

that the employee can perform the job tasks in a safe manner[.]” (Id. at 10.) More specifically, 

the Secretary alleges that Jacobs “did not train maintenance technicians in procedures required to 

safely troubleshoot and repair the decant valves in the BEM Settler area of the AkzoNobel 

facility in LaPorte, Texas.” (Id.) Again, according to the Secretary this most recently occurred 

“on/around March 4, 2013, when Work Order # 153530 was assigned and executed to repair 

valves that were hung up in the decant piping from the T-802 settler.” (Id.) 

Cited Subsections 

Subsections 1910.119(j)(2) and (3) provide: 

(2) Written procedures. The employer shall establish and implement written 

procedures to maintain the on-going integrity of process equipment.

(3) Training for process maintenance activities. The employer shall train each 

employee involved in maintaining the on-going integrity of process equipment in 

an overview of that process and its hazards and in the procedures applicable to the 

employee's job tasks to assure that the employee can perform the job tasks in a 

safe manner.

29 CFR § 1910.119(j)(2) and (3).
25

Applicability of Sections 1910.119(j)(2) and (3)

In addition to arguing it is not required to comply with the PSM standard except for those 

subsections in paragraph (h) that specifically apply to contract employers, Jacobs contends the 

actuator, bracket, and bolts at issue are not part of the process equipment and, therefore, sections 

1910.119(j)(2) and (3) do not apply to the conditions cited in Items 3 and 4. (See e.g. Resp’t’s’ 

Br., p. 26.) As set out under Item 2a, the Court concludes that Jacobs was required to comply 

with the PSM standard in general. Nonetheless, the Court must still determine whether the cited 

standard applies to the actuator, bracket, and bolts at issue. 

Section 1910.119(j)(1) provides that paragraphs (j)(2) through (j)(6) of the PSM standard 

apply to the following process equipment: 

(i) Pressure vessels and storage tanks; 

(ii) Piping systems (including piping components such as valves); 

(iii) Relief and vent systems and devices; 

(iv) Emergency shutdown systems; 

(v) Controls (including monitoring devices and sensors, alarms, and interlocks) 

and,

(vi) Pumps. 

29 CFR § 1910.119(j)(1). The preamble to the Final Rule also indicates that “[t]he Agency 

believes that there is certain equipment, critical to process safety, that is common to all 

processes. . . . [I]f an employer deems additional equipment to be critical to a particular process, 

that employer should consider that equipment to be covered by this paragraph and treat it 

accordingly.” 57 Fed. Reg. at 6389. 

Jacobs argues that “to establish the applicability of subparagraphs (j)(2) and (j)(3), it is 

necessary for the Secretary to establish that the actuator is on the enumerated list of process 

equipment identified in paragraph (j)(1).” (Resp’t’s’ Br., p. 26.) Jacobs also asserts that “the 
26

“RO2 and actuator at issue are not process-containing equipment and are, therefore, not subject 

to the mechanical integrity program of Akzo” and therefore “[n]either component qualifies as 

covered process equipment under 1910.119(j)(1).” (Jacobs Br., p. 5.) The Secretary contends the 

components are part of the process equipment (ii) “[p]iping systems (including piping 

components such as valves)” and (v) “[c]ontrols (including monitoring devices and sensors, 

alarms, and interlocks).” The Secretary argues that “all pieces of equipment that [[redacted]] 

worked on—RO-2 switch, actuator, bracket, bolts, and valves—constitute process equipment 

because they are part of the piping systems and controls.” (Compl’t’s Br., p. 29). The Court 

agrees with the Secretary. 

AkzoNobel’s safety manager Wilson testified AkzoNobel considers the actuator to be 

part of the process. Wilson stated that, in general, AkzoNobel assumes the entire facility is 

subject to the PSM standard. He stated, “[i]nternally, we treat our whole site as covered by 

PSM. Even though we have a few processes that aren't covered by PSM, we think it's a good 

safety management practice. It's a good way to make sure things don't get mixed. So even if the 

process is not covered by PSM, we go ahead and treat it as if it would.” (Tr. 66). 

Wilson also testified AkzoNobel classifies the components at issue as part of the process 

equipment (Tr. 50). He stated that he considers the actuator and the mounting bracket to be 

classified as critical equipment (Tr. 127, 137). Wilson acknowledged that if the actuator alone 

broke, it would not result in a loss of containment (Tr. 136-137), but he believes the BEM 

settlers as a whole are process equipment because settler tanks have “got flammable chemicals in 

there greater than 10,000 pounds and you've also got the reactive chemicals in the BEM.” (Tr. 

67). 
27

The Court qualified Tony Cornwell, Jacob’s proffered expert, as an expert in chemical 

engineering and process safety management, including process safety management (Ex. R-11; 

Tr. 405) in accordance with F.R.Evid. 702. It is Cornwell’s opinion that section 1910.119(j) 

does not apply to the actuator “as the actuator operates a valve that is not requried to limit the 

uncontrolled release of a highly hazardous chemical and thus no written procedure is required to 

be developed under 1910.119(j)(2) for replacing this actuator. This interpretation is typical 

within the industry.” (Ex. R-11, p.4). Cornwell also opined that section 1910.119(j)(3) does not 

apply to troubleshooting the actuator “because an actuator is not the type of equipment identified 

in” section 1910.119(j)(1) (Id). In his opinion, [redacted] “was properly trained, per the typical 

industry practice, to isolate and test the plunger on the RO2 valve before isolating and testing the 

actuator. Neither of these external components is considered within industry practice to be part 

of the wquipment addressed under 1910.119(j).” (Id.) 

James Johnstone, the Secretary’s expert, disagreed. He cited the American Petroleum 

Institute (API) 570, Piping Inspection Code: In-service Inspection, Rating, Repair, and 

Alteration of Piping Systems (Ex. C-48) and API 553, Refinery Valves and Accessories for 

Control and Safety Instrumented Systems (Ex. C-46). Ronald Wilson testified that API sets 

“standards that are generally accepted in the industry.” (Ex. C-52, p. 146). Johnstone quoted 

from API 570’s definition of pressure boundary: 

The portion of the piping that contains the pressure retaining piping elements 

joined or assembled into pressure tight fluid-containing systems. Pressure 

boundary components included pipe, tubing, fittings, flanges, gaskets, bolting, 

valves, and other such as expansion joints and flexible joints. 

(Ex. C-48, p. 11). According to Johnstone, 

In this case, the bolts in the bonnet of the valve would be included inside of the 

pressure boundary as they help to contain the pressure. Therefore, these bolts are 
28

process equipment as defined by API 570. These same bolts also held the 

bracket, between the Tufline valve and the XAct actuator, to the Tufline valve. 

The bolts in the bonnet were removed by the technician causing the release of 

hazardous materials. 

(Ex. C-51, p. 3). 

Johnstone also quoted from API 553, which defines control valve as consisting “of two 

major subassemblies: a valve body and an actuator,” (Ex. C-46, p. 8), and opined, “The API’s 

definition of a control valve includes the valve body, actuator and the bracket as XV-454 [the old 

style valve] was designed.” (Ex. C-51, p. 4). Johnstone concluded, 

In summary, the standard (1910.119(j)) requires that the mechanical integrity 

shall apply to process equipment including: piping systems (including piping 

components such as valves), emergency shutdown systems, and controls. The 

Tufline valve, XAct actuator and the mounting bracket comprising XV-454 are 

subject to this requirement for two reasons: 1) the XV-454 assembly (including 

the valve, mounting bracket and actuator) is integral to the process at the facility 

and 2) the XV-454 assembly is part of the safety system needed to close the valve 

in the event of fire. 

(Id.). 

Cornwell disputes Johnstone’s characteriazation of the actuator. According to Cornwell, 

[T]he actuator is not required for mechanical integrity. The actuator is required 

for operability. So the operability of this valve could fail and there's no risk of 

loss of containment. . . . Again it goes to operability versus safety. There's 

nothing about this valve, whether it goes wide open or fully closed, there's 

nothing about this valve that can lead to -- unless the valve itself fails, the 

pressure boundary of the valve body, but as far as the operability of the valve, 

there's nothing about that that's going to lead to a release of a high hazardous 

chemical. 

(Tr. 556-557). 

The Court concludes that Jacobs’s focus on the actuator as the component to which 

sections 1910.119(j)(2) and (3) apply is too narrow. The Citation did not allege the actuator 

alone was part of the process equipment. Rather, the Citation alleged that Jacobs failed to have 
29

written procedures and failed to provide training 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.” It is undisputed that the old style of mounting the actuator to the valve is to 

use a bracket which is bolted to the valve bonnet. The same bolts that hold the bonnet and valve 

body together also connect the actuator to the valve (Tr. 80-86). Once the valve bonnet is 

removed, the BEM mixture is released from the BEM settler. According to API 570, the 

pressure boundary includes bolting. Here, [redacted] removed the bolts that attached the bracket 

to the valve bonnet. Their removal resulted in the catastrophic release of the BEM mixture. The 

Court therefore concludes that sections 1910.119(j)(2) and (3) apply to the bracket and bolts used 

to mount the actuator to the valve bonnet. Thus, the Court concludes that the cited standard 

applies to the cited condition.

Compliance with the Terms of the Standard

It is undisputed Jacobs did not “establish and implement written procedures to maintain 

the on-going integrity of” the components used to mount the actuator to the valve in the old style. 

Thomas Pettus, Jacobs’s site manager at the La Porte facility, admitted that Jacobs did not have a 

written procedure for the T-802 BEM settler because Jacobs is “not responsible for developing 

those work procedures for those pieces of equipment. That equipment's owned by the owner of 

the facility, and it would be their responsibility to develop those.” (Tr. 371). As discussed under 

Item 2a, the Court concludes that it is also Jacobs’s responsibility to comply with the cited 

subsections of the PSM standard.

Atcheson testified that the old style method of mounting the actuator to the valve 

involved “an unusual bracket. . . From my recollection, that’s probably the third one that I’ve 
30

encountered in 11 years.” (Tr. 307). [redacted] testified he was not adequately trained to 

troubleshoot the actuator mounted in the old style.

Q. At any time prior to you beginning your work task on March the 4th, did 

anybody give you any documents about the actuator or the valve? 

[redacted]: No. 

Q. Did you discuss the configuration of the valve, whether it was old style, new 

style, anything along those lines? 

[redacted]: No. 

Q. Were there any documents given to you about the settler tank? 

[redacted]: No. 

Q. Was there any discussion or documents given to you about the proper 

procedures to follow when you're troubleshooting an actuator? 

[redacted]: No. 

Q. Was there any discussion about the type of assembly that this actuator had on 

this valve? 

[redacted]: No. 

Q. How it was mounted? 

[redacted]: No. 

Q. Was there any instruction given to you about do's and don’ts regarding this 

particular -- the particular valves that you were going to work on? 

[redacted]: No. 

Q. For instance, did anybody tell you that certain bolts connected the bracket to 

the valve so, you know, you can't loosen or take those off? 

[redacted]: No. 

(Tr. 213-214). 
31

The Court concludes that the Secretary has established Jacobs failed to comply with the 

terms of sections 1910.119(j) (2) and (3). Jacobs did not establish and implement written 

procedures to maintain the on-going integrity of process equipment and it did not train its 

employees involved in maintaining the on-going integrity of process equipment in an overview 

of that process and its hazards and in the procedures applicable to the employee's job tasks to 

assure that the employee can perform the job tasks in a safe manner.

Employee Access to the Violative Condition 

Jacob’s failure to comply with the terms of the cited subsections of the PSM standard 

regarding the T-802 BEM Settler exposed [redacted] to the hazard of the release of stored 

chemical energy on March 4, 2013. The BEM mixture splashed on [redacted], causing 1st and 

2

nd degree burns to his face, wrists, and neck (Tr. 229-231). Therefore, the Court concludes that 

the Secretary has established employee access to the violative condition. 

Employer Knowledge 

Jacobs was aware that no written procedures existed for the task assigned to [redacted]. 

Jacobs’s site manager Pettus testified:

Q. As a former maintenance training coordinator, were you surprised that

AkzoNobel did not have written maintenance procedures?

Pettus: Yes.

Q. How long have you been aware that AkzoNobel doesn’t have written

maintenance procedures?

Pettus: Since the day I started.

(Tr. 383).

Pettus had been the site manager of the AkzoNobel site for several years prior to the 

March 4, 2013 incident and had been aware that Jacobs’ employees performed maintenance tasks 
32

without written maintenance procedures. (Tr. 360, 383). Jacobs was aware that [redacted] was 

scheduled to perform the work on March 4, 2013 since the work was provided to him by his 

Atcheson, who signed off on the required ISPA. (Tr. at 282, 332– 333). 

Therefore, the Court concludes that the Secretary has established Jacobs had actual 

knowledge that it had not established and implemented written procedures to maintain the ongoing integrity of the process equipment associated with the T-802 BEM settler and that it did 

not train its employees involved in maintaining the on-going integrity of that process. 

Jacobs contends any violations the Court finds are the result of employee misconduct on 

the part of [redacted]. “To establish the unpreventable employee misconduct defense, an 

employer must show that it established a work rule to prevent the violation; adequately 

communicated the rule to its employees, including supervisors; took reasonable steps to discover 

violations of the rule; and effectively enforced the rule.” Schuler-Haas Electric Corp., 21 BNA 

OSHC 1489, 1494 (No. 03-0322, 2006). Given the cited subsections at issue, Jacobs’s defense 

necessarily must fail. 

The first element of the defense the employer must show is that it established a work rule

designed to prevent the violation. Here, the violations were not having a written procedure for 

the T-802 BEM settler and not training its employees in maintaining the on-going integrity of 

that equipment. [redacted]’s actions in purportedly going outside the scope of his work 

assignment have no bearing on Jacobs’s compliance with the cited standards. Even if there had 

not been the loss of containment that gave rise to this proceeding, Jacobs still failed to establish 

and implement the required written procedure and failed to provide the required training. 

Therefore, the Court finds no merit in Jacobs’s employee misconduct defense. Thus, the Court 
33

concludes that the Secretary has established that Jacobs violated sections 1910.119(j)(2) and (3). 

Therefore, the Court concludes that Items 3 and 4 must be AFFIRMED. 

Classification

The Secretary classified these items as serious. As indicated in footnote 6 supra, under 

section 17(k) of the Act, a violation is serious “if there is a substantial probability that death or 

serious physical harm could result from a condition which exists, or from one or more practices, 

means, methods, operations, or processes which have been adopted or are in use, in such place of 

employment unless the employer did not, and could not with the exercise of reasonable 

diligence, know of the presence of the violation.” (Emphasis added.) 29 U.S.C. § 666(k). Here, 

as indicated supra, Jacobs did not establish and implement written procedures to maintain the 

on-going integrity of process equipment and it did not train [redacted] in an overview of that 

process and its hazards and in the procedures applicable to [redacted]’s job tasks to assure that he 

could perform the job tasks in a safe manner. Jacobs’s failure to have written procedures on the 

troubleshooting task assigned to [redacted] was instrumental in the incident that occurred on 

March 4, 2103, the fire at the Battleground site, and the serious injury suffered by [redacted] (Tr. 

at 229 – 230, 383). Therefore the Court concludes that Items 3 and 4 were properly classified as 

serious.

Item 5: Alleged Serious Violation of 29 CFR § 1910.132(d)(1)(i) 

The Secretary asserts in Item 5 of the Citation that Jacobs violated 29 CFR 

§1910.132(d)(1)(i) because it “did not select and have each affected employee use the types of 

[PPE] that would protect the affected employee(s) from the hazards identified in the hazard 

assessment[.]” (Compl., Ex. A, p. 11.) More specifically, the Secretary argues that “[o]n/around 
34

March 4, 2013, [Jacobs] did not require the technician working on components of the decant 

piping in the BEM Settler area of the AkzoNobel facility in La Porte, Texas, to use the required 

PPE identified on the AkzoNobel’s MSDS to protect against the hazards of Magala BEM 20% in 

Heptane.” (Id.) 

Cited Subsection 

Section 1910.132(d)(1)(i) mandates that “[t]he employer shall assess the workplace to 

determine if hazards are present, or are likely to be present, which necessitate the use of personal 

protective equipment (PPE). If such hazards are present, or likely to be present, the employer 

shall: (i) Select, and have each affected employee use, the types of PPE that will protect the 

affected employee from the hazards identified in the hazard assessment[.]” 29 CFR 

§1910.132(d)(1)(i). 

Applicability of Section 1910.132(d)(1)(i) 

 Section 1910.132(a) provides: 

Protective equipment, including personal protective equipment for eyes, face, 

head, and extremities, protective clothing, respiratory devices, and protective 

shields and barriers, shall be provided, used, and maintained in a sanitary and 

reliable condition wherever it is necessary by reason of hazards of processes or 

environment, chemical hazards, radiological hazards, or mechanical irritants 

encountered in a manner capable of causing injury or impairment in the function 

of any part of the body through absorption, inhalation or physical contact. 

29 CFR §1910.132(a). Here, [redacted] was working in an area where he possible could 

encounter hazards of processes or environment. Jacobs does not dispute the applicability of 

section 1910.132(d)(1)(i) to the cited conditions, but contends [redacted] was wearing the 

appropriate PPE for the task assigned. The Court concludes that the Secretary has established 

section 1910.132(d)(1)(i) applies to the cited condition. 
35

Compliance with the Terms of the Standard 

The Secretary contends Jacobs violated the cited standard because [redacted] “wore no 

protective equipment such as an aluminized suit and/or category II PPE required for potential 

exposure to BEM.” (Compl’t’s Br., p. 41). Jacobs argues the Secretary did not cite the company 

for failing to make a hazard assessment, but rather, cited it because he disagrees with Jacob’s 

hazard assessment. The Court agrees with Jacobs. 

Jacobs works with AkzoNobel to assess the hazards of different areas of the facility (Tr. 

346). Prior to starting on an assigned task, Jacobs’s employees fill out an individual safety plan 

of action (ISPA), in which they detail the assigned tasks and assess the hazard. The second page 

of the ISPA is a checklist of categories including required permits and required PPE, with 

subcategories for eye, hand, foot, and respiratory protection, as well as for special clothing. The 

supervisor assigning the task signs off on the ISPA after reviewing it. (Ex. R-4). [redacted] 

completed an ISPA for the task of removing the actuator on March 4, 2013. Supervisor 

Atcheson also signed the ISPA (Ex. R-6). 

Thus, the Court agrees with Jacobs that Item 5 questions the adequacy of the PPE used by 

[redacted], not the lack of a hazard assessment. OSHA cited Jacobs for a violation of section 

1910.132(d)(1)(i) because the employee was not wearing the PPE OSHA believed should be 

worn. OSHA’s disagreement with the result of an employer's hazard assessment is not a basis for 

a finding that no assessment was conducted. Therefore, the Court concludes that Item 5 must be 

VACATED. 

IV. PENALTY DETERMINATION 
36

Under section 17(j) of the Act, the Commission must give “due consideration to the 

appropriateness of the penalty with respect to the size of the business of the employer being 

charged, the gravity of the violation, the good faith of the employer, and the history of previous 

violations.” 29 U.S.C. § 666(j). The principal factor in a penalty determination is gravity, which 

“is based on the number of employees exposed, duration of exposure, likelihood of injuries, and 

precautions against injuries.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 

(No. 00-1052, 2005). 

Jacobs employs more than 60,000 employees (Tr. 529–530). Jacobs has a history of 

violations ( Ex. C-3; Tr. 530). The Secretary did not establish Jacobs demonstrated anything less 

than good faith in this proceeding. The gravity of Items 3 and 4 is high. Jacobs’s violation of 

sections 1910.119(j)(2) and (3) resulted in an employee assigned to troubleshoot a piece of 

equipment for which he lacked complete information. As a result, the employee inadvertently 

engaged in line breaking without having taken the appropriate precautionary measures, resulting 

in a catastrophic loss of containment of a hazardous chemical. The loss of containment resulted 

in serious injuries to the employee and extensive property damage to the La Porte facility. The 

Court concludes that an appropriate penalty is $7,000.00 for Item 3 and $7,000.00 for Item 4 of 

the Citation. 

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

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. Accordingly, 
37

VI. ORDER 

IT IS HEREBY ORDERED THAT: 

Item 2a of the Citation, alleging a serious violation of § 1910.119(f)(4), is VACATED

and no penalty is assessed; 

Item 2b of the Citation, alleging a serious violation of § 1910.147(c)(4), is VACATED

and no penalty is assessed; 

Item 3 of the Citation, alleging a serious violation of § 1910.119(j)(2), is AFFIRMED

and a penalty of $7,000.00 is assessed; 

Items 4 of the Citation, alleging a serious violation of § 1910.119(j)(3), is AFFIRMED

and a penalty of $7,000.00 is assessed; and 

Item 5 of the Citation, alleging a serious violation of § 1910.132(d)(1)(i), is VACATED

and no penalty is assessed. 

SO ORDERED THIS 5

th day of February, 2015.

/s/ 

JOHN B. GATTO, Judge 

U.S. Occupational Safety And 

Health Review Commission