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. 10-2659

JACOBS FIELD SERVICES NORTH 

AMERICA,

Respondent.

ON BRIEFS: 

Scott Glabman, Senior Appellate Attorney; Charles F. James, Counsel for Appellate Litigation; 

Joseph M. Woodward, Associate Solicitor; M. Patricia Smith, Solicitor; U.S. Department of 

Labor, Washington, DC 

 For the Complainant 

Darren S. Harrington, Esq.; Key Harrington Barnes, P.C., Dallas, TX 

 For the Respondent 

DECISION 

Before: ROGERS, Chairman; ATTWOOD and MACDOUGALL, Commissioners.

BY THE COMMISSION:

Jacobs Field Services North America is a contractor that was engaged to perform 

maintenance in Conroe, Texas, at a chemical production plant owned and operated by Huntsman 

Petro-Chemical, LLC. In May 2010, Jacobs and Huntsman were engaged in a process known as 

a “Test and Inspect turnaround” (“T&I”), which required the shutdown of certain equipment for 

maintenance purposes. As part of the T&I, a Jacobs crew was assigned to remove eight 

emergency shutdown devices (“ESDs”) on some chemical lines and replace them with new 

ESDs. This required that the ESDs first be isolated pursuant to the plant’s energy control 

procedures. 
2

During the isolation process, a gate valve on a butylene oxide line was found to be 

leaking and had to be replaced before the ESD work could continue. Huntsman did not assign 

this particular work to Jacobs and indicated that Huntsman would perform the work itself. 

Nevertheless, after a Huntsman operator mentioned the job task over the radio, a Jacobs 

employee offered to assist. Before removing the leaking valve, the Huntsman operator 

disconnected utility hoses from the butylene oxide line and began to depressurize the line, at 

which time the Jacobs employee arrived. As the two employees started removing bolts from the 

top of the leaking valve a flange either separated or broke, and approximately 750 liquid pounds 

of butylene oxide sprayed into the air in an area where employees were working. A video of the 

incident shows that the release lasted twelve to fifteen minutes. 

Following an inspection of the plant, the Occupational Safety and Health Administration 

issued Jacobs a five-item serious citation, alleging violations of the lockout/tagout (“LOTO”) 

standard, 29 C.F.R. § 1910.147, and proposed a penalty of $7,000 for each item. Administrative 

Law Judge Sharon D. Calhoun vacated one of the citation items and affirmed the four remaining 

items as serious, assessing a total penalty of $13,000. Only the four affirmed items are at issue 

on review. For the reasons that follow, we vacate all four items. 

DISCUSSION

I. Serious Citation 1, Items 1, 3, and 4 

To prove that Jacobs violated the LOTO provisions at issue under these citation items,1

the Secretary must show that the LOTO standard applies, Jacobs failed to comply with the cited 

LOTO provisions, Jacobs employees had access to the violative conditions, and Jacobs either 

knew or should have known of these conditions with the exercise of reasonable diligence. See 

Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899-

900 (No. 78-6247, 1981), aff’d in pertinent part, 681 F.2d 69 (1st Cir. 1982). The only issues in 

dispute on review are whether the LOTO standard applies to the cited conditions and whether 

Jacobs knew or should have known of those conditions. 

 

1

 The provisions cited under these items are 29 C.F.R. § 1910.147(c)(4)(i) (document, develop, 

and utilize an energy control procedure), 29 C.F.R. § 1910.147(d)(3) (locate and operate 

isolation devices), and 29 C.F.R. § 1910.147(d)(4)(i) (affix lockout devices). 
3

Applicability 

The LOTO 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.” 29 C.F.R. § 1910.147(a)(1)(i). Here, there is no 

dispute that the attempted valve replacement was a maintenance activity, and that there was an 

unexpected release of stored energy resulting in the discharge of a large quantity of butylene 

oxide. On review, the parties offer differing theories regarding whether this was a “release of 

stored energy” that “could cause injury to employees.” Id. But these theories unnecessarily 

complicate an issue that is readily resolved by the record before us. 

The evidence shows that when the flange failed during the performance of the 

maintenance activity and butylene oxide discharged from the line, stored energy was released.2

 

This release caused chemical burns and chemical pneumonia to several employees. The butylene 

oxide produced a burning sensation on the skin of the Jacobs employee until he was able to wash 

it off in the plant’s safety shower. Likewise, the Huntsman operator testified that after his skin 

was exposed to the butylene oxide, he felt “like [he] was literally on fire burning” and that the 

burning sensation lasted until approximately the next day. See Dayton Tire, 

Bridgestone/Firestone, 23 BNA OSHC 1247, 1256, 2009-12 CCH OSHD ¶ 33,098, p. 54,820 

(No. 94-1374, 2010) (rejecting infeasibility defense and finding LOTO standard applicable to 

certain machinery because unexpected release during servicing activity could have caused burns 

to employees), aff’d in relevant part, 671 F.3d 1249 (D.C. Cir. 2012). Further, a Jacobs crane 

operator, who was working about 65 to 75 feet from the release, breathed in butylene oxide 

vapors and was taken to the hospital where he was diagnosed with chemical pneumonia. 

Jacobs employees were also exposed to fire and explosion hazards as a result of the 

release. The OSHA mechanical engineer who conducted the inspection of the worksite testified 

that given the flashpoint and lower explosive limit of butylene oxide, and the concentrations of 

the chemical in the plant’s environment, “it was very likely” a catastrophic fire or explosion 

 

2

 Butylene oxide is “[a] clear colorless volatile liquid with an ethereal odor” that is highly 

reactive and highly flammable. Database of Hazardous Chemicals, CAMEO Chemicals, 

National Oceanic and Atmospheric Administration, http://cameochemicals.noaa.gov/chemical/ 

2689; see 29 C.F.R. § 1910.147(b) (broadly defining “energy source” as including “[a]ny source 

of . . . chemical, thermal, or other energy”). 
4

could have occurred.3 The mechanical engineer further testified that potential ignition sources 

for an explosion included a running engine, a dropped wrench, or anything else that could cause 

a spark. Indeed, both the Jacobs employee and the Huntsman operator admitted to being 

concerned at the time of the accident that the release would result in an explosion. Additionally, 

immediately following the release, other Huntsman employees “ran around” telling workers to 

evacuate the area, then turned on a fire monitor and opened a fire water deluge located near the 

crane’s motor to drown it and eliminate it as an ignition source.4

Based on these facts, we conclude that the LOTO standard applies to the valve 

replacement work at issue under these citation items.5 See 29 C.F.R. § 1910.147(a)(1)(i) (scope 

provision). 

 

3

 The preamble to the LOTO standard addresses circumstances similar to those at issue in the 

instant case. Specifically, in discussing the requirement that employers verify energy control 

procedures, OSHA provided the following analysis concerning “leakage or drainage of energy or 

energy containing substances”: 

In the case of one of those substances being present in a piping, containment or 

transport system, a certain amount of leakage may occur without endangering 

employees. However, if servicing or maintenance must be performed on such a 

system, the standard requires the employer to continue to verify the isolation of 

energy sources which may be hazardous, in order to assure that such leakage does 

not approach a dangerous level. This may involve means such as continuous 

monitoring for the displacement of oxygen or the buildup of the concentration of 

the substance toward the lower explosive limit of the substance, such as could 

occur with a hydrogen system. 

Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36,644, 36,678 (Sept. 1, 

1989) (emphasis added). 

4 Commissioner MacDougall does not join in the decision with regard to the release of the 

chemical resulting in Jacobs employees’ exposure to fire and explosion hazards. In her opinion, 

Jacobs employees’ exposure to and inhalation of butylene oxide is a sufficient basis to find a 

“release of stored energy” that “could cause injury to employees.”

5

 Jacobs argues on review that the process safety management (“PSM”) standard is more 

specifically applicable to the cited conditions than the LOTO standard. We do not address this 

issue because the PSM standard applies to butylene oxide only when it is present in quantities at 

or above 10,000 pounds, and there is no evidence to establish that the 10,000-pound threshold 

quantity was present at the Huntsman plant. 29 C.F.R. § 1910.119(a)(1); Motiva Enters., LLC, 

21 BNA OSHC 1696, 1700, 2004-09 CCH OSHD ¶ 32,849, p. 52,895 (No. 02-2160, 2006) 

(holding that “given the record in this case, there is simply no way the Commission can 

determine whether the PSM standard applies”).
5

Knowledge 

To establish knowledge, the Secretary must prove that the employer knew or, with the 

exercise of reasonable diligence, should have known of the conditions constituting the violation. 

Contour Erection & Siding Sys., Inc., 22 BNA OSHC 1072, 1073, 2004-09 CCH OSHD 

¶ 32,943, p. 53,787 (No. 06-0792, 2007). Reasonable diligence is based on several factors, 

including an employer’s obligation to inspect the work area, anticipate hazards, take measures to 

prevent violations from occurring, adequately supervise employees, and implement adequate 

work rules and training programs. See General Motors Corp., 22 BNA OSHC 1019, 1030, 

2004-09 CCH OSHD ¶ 32,928, pp. 53,611-12 (No. 91-2834E, 2007) (consolidated); N. Landing 

Line Constr. Co., 19 BNA OSHC 1465, 1472, 2001 CCH OSHD ¶ 32,391, p. 49,814 (No. 96-

0721, 2001). 

The actual or constructive knowledge of a supervisor is imputable to the employer. 

Rawson Contractors Inc., 20 BNA OSHC 1078, 1080-81, 2002-04 CCH OSHD ¶ 32,657, p. 

51,326 (No. 99-0018, 2003); Dover Elevator Co., 16 BNA OSHC 1281, 1286, 1993-95 CCH 

OSHD ¶ 30,148, p. 41,480 (No. 91-862, 1993). Here, the judge concluded that Jacobs had 

knowledge of the violative conditions through three of its supervisors working at the plant: the 

Site Safety Manager, who the judge found had actual knowledge, and the General Foreman and 

another supervisor, who the judge found had constructive knowledge. For the following reasons, 

we find that the record does not support the judge’s findings. 

The record does not establish that any of the Jacobs supervisors knew or had reason to 

know the Jacobs employee would assist the Huntsman operator with replacing the gate valve. 

The judge concluded that the Site Safety Manager had actual knowledge, finding that he was 

present when the Jacobs employee checked out a respirator from the plant’s safety office and that 

the employee told the Site Safety Manager at that time that he was going to help the Huntsman 

operator replace the valve. On review, Jacobs contends that the judge erred in finding that the 

employee told the Site Safety Manager the specific nature of the tasks he would be performing. 

We agree with Jacobs that the judge mischaracterized the testimony. As Jacobs notes, the 

record shows that the Jacobs employee told the Site Safety Manager simply that he “was getting 

a respirator to help” the Huntsman operator—he never specified what work he was going to help 

the Huntsman operator perform. There is nothing in the record to show that the Site Safety 

Manager knew what task the Huntsman operator was engaged in at that time or even what the 
6

Jacobs employee’s duties were that day. In addition, there is no evidence to support the 

Secretary’s assertion that reasonable diligence required that the Site Safety Manager ask the 

Jacobs employee what work he would be performing. 

With regard to the General Foreman and the other Jacobs supervisor, the judge found 

what she characterized as constructive knowledge of the cited conditions because both 

supervisors had radios in their possession and all Jacobs maintenance employees used the same 

radio channel. Therefore, the judge concluded, the supervisors were able to hear a radio 

conversation in which the Huntsman employee said he intended to replace the valve and the 

Jacobs employee radioed back to offer his assistance. In reaching this conclusion, the judge 

relied on testimony from the Huntsman operator, who speculated that “anybody that has a radio” 

in maintenance, including the two Jacobs supervisors, “would have heard” the conversation he 

had with the Jacobs employee. 

We disagree with the judge’s conclusion. There is no evidence that either supervisor 

actually heard the conversation. The General Foreman, whose testimony is unrebutted, stated 

that although his radio was on, he was “in [his] office doing some paperwork” and did not hear 

the conversation. The other supervisor did not testify at all.6 Thus, the record does not establish 

that these supervisors had actual knowledge of the violative conditions, nor does it show that 

they should have known of those conditions under the circumstances.7

 

We also find no merit to the Secretary’s contention on review that the General Foreman 

should have made further inquiries when the Jacobs employee told him that he was going to get 

some tools for the Huntsman operator to do some work. We find it was reasonable for the 

General Foreman to believe, as he testified, that the employee’s assistance would be limited to 

providing the Huntsman operator with tools, particularly after the Huntsman operator told both 

supervisors that morning that he was going to replace the leaking valve himself. In these 

 

6

 The Secretary asserts that Jacobs points to no evidence proving that the other supervisor did not

hear the radio exchange. However, it is the Secretary’s burden to prove that the other supervisor 

did hear the exchange, which he failed to do. We also reject the Secretary’s request that we 

uphold the judge’s “implicit” credibility determination regarding this testimony, as the judge’s 

determination is contrary to the record evidence and not demeanor-based. 

7

 Although the judge described her knowledge finding based on the radio conversation as 

constructive knowledge, her conclusion might instead be viewed as a finding of circumstantial 

evidence of actual knowledge. However, this distinction is of no consequence here as we 

conclude that the record is insufficient to establish either actual or constructive knowledge. 
7

circumstances, we conclude the judge erred in finding that Jacobs had both actual and 

constructive knowledge of the violative conditions. Accordingly, we vacate Items 1, 3, and 4. 

II. Serious Citation 1, Item 5 

Under this item, the Secretary alleges a violation of 29 C.F.R. § 1910.147(d)(5)(i), which 

states: “Following the application of lockout or tagout devices to energy isolating devices, all 

potentially hazardous stored or residual energy shall be relieved, disconnected, restrained, and 

otherwise rendered safe.” According to the Secretary, stored hazardous energy was not properly 

relieved on four occasions when different energy control procedures were used to allow Jacobs 

employees to “engage[] in maintenance and servicing activities.” The judge affirmed the 

violation as to three of these four alleged instances.8

To establish a violation of the cited provision, the Secretary must first show that Jacobs 

was performing a servicing or maintenance activity covered by the LOTO standard. See 29 

C.F.R. § 1910.147(a)(1)(i) (scope requirement). The Secretary has failed to meet this burden. 

As Jacobs argued before the judge, the Secretary has provided no evidence identifying what 

work tasks were being performed when these energy control procedures allegedly failed to 

properly relieve stored hazardous energy.9 Regarding Instance 1, while it is undisputed that the 

identified energy control procedure was used to isolate a particular vessel in the plant, there is 

insufficient evidence to find a covered activity. A Jacobs supervisor stated only that the 

procedure covered Jacobs’ entry into the vessel to make repairs inside of it—he did not explain, 

and the Secretary did not ask, what those repairs entailed. Regarding Instances 2 and 3, the 

record shows nothing more than the energy control procedure in question and the job location; 

there is no other information regarding the tasks performed by Jacobs. 

Without such information, we cannot determine whether any one of the three energy 

control procedures at issue pertained to covered servicing or maintenance activities. 

 

8

The judge vacated the fourth instance, which is not at issue on review. 

9 On review, the Secretary asserts for the first time that the energy control procedures at issue 

relate to the Jacobs employee’s work on the leaking gate valve. But as the judge found, the 

record shows that neither Jacobs nor Huntsman had an energy control procedure for the work 

performed on the leaking gate valve. Indeed, the Huntsman operator testified that he did not 

develop an energy control procedure specific to changing this valve until after the release had 

occurred. 
8

Accordingly, we find that the Secretary has failed to establish that the LOTO standard applied in 

any of the alleged instances and therefore, vacate this citation item. 

ORDER 

 We vacate Serious Citation 1, Items 1, 3, 4, and 5. 

SO ORDERED. 

/s/ 

 Thomasina V. Rogers

 Chairman 

/s/ 

Cynthia L. Attwood 

 Commissioner 

 /s/ 

Heather L. MacDougall 

Dated: March 4, 2015 Commissioner 
“Some personal identifiers have been redacted for privacy purpose”

Secretary of Labor,

 Complainant

 v. OSHRC Docket No. 10-2659

Jacobs Field Services North America,

 Respondent.

Appearances: 

Tina D. Juarez, Esq., and Elizabeth Kruse, Esq., U. S. Department of Labor, 

Office of the Solicitor, Dallas, Texas 

For Complainant 

Darren Harrington, Esq., Key Harrington Barnes, P.C., Dallas, Texas 

For Respondent 

Before: Administrative Law Judge Sharon D. Calhoun 

 DECISION AND ORDER 

Jacobs Field Services North America (Jacobs) was a maintenance contractor at a facility 

owned by Huntsman Petro-Chemical, LLC, in Conroe, Texas. Huntsman produces specialty 

chemicals. On May 31, 2010, Jacobs employees [redacted] and [redacted] were injured by an 

accidental release of butylene oxide while [redacted] was assisting a Huntsman employee. 

 As a result of the butylene oxide release, Occupational Safety and Health Administration 

(OSHA) representative Richard Hartung conducted an inspection of Huntsman’s facility from 

June 7 to November 29, 2010. On November 30, 2010, the Secretary issued a Citation to Jacobs 

alleging five serious violations of the lockout/tagout (LOTO) standard, 29 C. F. R. § 1910.147. 

The Secretary proposed a penalty of $7,000.00 for each of the five items, for a total penalty of 

$35,000.00. 

 Jacobs timely contested the Citation. A hearing was held in this matter on April 27 and 

28, 2011, in Houston, Texas. Jacobs stipulates the Commission has jurisdiction over the 

proceeding under § 10(c) of the Occupational Safety and Health Act of 1970 (Act), and that it is 

a covered business under § 3(5) of the Act. The parties have filed post-hearing briefs. 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104
2 

 Jacobs argues that LOTO standard does not apply to the cited conditions. The company 

contends the process safety management of highly hazardous chemicals standard (PSM 

standard), 29 C. F. R. § 1910.119, is the applicable standard. If the LOTO standard does apply, 

Jacobs argues the Secretary failed to establish Jacobs violated the terms of the cited sections, or 

knew of the violative activity. Jacobs also asserts the affirmative defense of employee 

misconduct, arguing that [redacted] was engaged in an unauthorized activity when the chemical 

release occurred. 

 For the reasons discussed below, the undersigned affirms Items 1, 3, 4, and 5 of the 

Citation, and vacates Item 2. A penalty of $3,500.00 each is assessed for Items 1, 3, and 4. A 

penalty of $2,500.00 is assessed for Item 5. 

Background 

 Jacobs was a maintenance contractor at Huntsman’s facility in Conroe, Texas, where 

Huntsman produces specialty chemicals.1

 To do this, Huntsman processes, among other 

chemicals, ethylene oxide, propylene oxide, butylene oxide, ammonia, and isopropyl alcohol. 

The facility consists of several different units. The unit at issue in this case is the G-Kettles Unit 

(Tr. 348-350). 

 In May of 2010, Huntsman implemented a Test and Inspect (T & I) turnaround, during 

which a unit is shut down for maintenance and for inspection to check the mechanical integrity 

of the unit. It was Jacobs’s job to replace eight emergency shutdown device (ESD) valves in the 

G-Kettles Unit during the turnaround. 

On May 25 or 26, 2010, a leak was discovered in one of the valves on the butylene oxide 

line. (The leaky valve was a gate valve, not one of the eight ESD valves that Jacobs was 

assigned to replace.) Jacobs postponed its replacement of the ESD valve on the butylene oxide 

line until Huntsman could replace the faulty valve (Tr. 117-118, 124-126). At the time of the 

hearing, Huntsman employee [redacted] had worked at the Huntsman facility for 26 years. He 

was an operator specialist, whose duties included backing up the production supervisor, 

maintaining the LOTO database, and trouble-shooting (Tr. 190). [redacted] was overseeing the 

May 2010 turnaround and was acting as the operator liaison for Huntsman (Tr. 191, 293). 

[redacted] decided to replace the leaking valve himself, and chose to do it on Memorial Day, 

Monday, May 31, when fewer workers would be in the plant (Tr. 226). 

 

1 At the time of the hearing, Jacobs no longer had a contract with Huntsman at its Conroe facility (Tr. 595). 
3 

Butylene oxide is highly flammable, with a flashpoint of approximately 10 degrees 

Fahrenheit and a Lower Explosive Limit (LEL) of approximately 1.5 % in the air. It can ignite 

in liquid or vapor form. Butylene oxide can catch fire or explode when exposed to ignition 

sources such as running engines or a metal tool falling and creating a spark (Tr. 180-183, 

352-353). 

[redacted] enlisted the help of Huntsman employees Charles James and Loretta Kelly. 

James, a chemical operator, and Kelly, a G-Kettle operator, worked together to purge and isolate 

the butylene oxide line. Kelly hooked up the nitrogen to blow out the line to the tank. It was 

James’s job to place the block at the tank once the line blew through with the nitrogen (Tr. 293-

294, 326-328). 

Huntsman did not intend for Jacobs to participate in the replacement of the leaky valve. 

No one from Jacobs walked the line with James and Kelly. James saw no locks or tags 

belonging to Jacobs on the valves he isolated. Kelly did not follow an emergency control 

procedure (ECP) for the work she was doing. Neither [redacted] nor James had an ECP for the 

valve replacement (Tr. 221, 296, 327-328). 

The defective valve weighed approximately 25 pounds. [redacted] needed help lifting the 

line up to pull out the valve without damaging the valve flanges (Tr. 229, 232). All Huntsman 

and Jacobs maintenance personnel carried radios. [redacted] requested help over the open 

channel of the radio. Although Jacobs’s employees were not supposed to participate in the valve 

replacement, Jacobs employee [redacted] radioed back to volunteer his assistance (Tr. 227). 

[redacted] was hoping to obtain a position at Huntsman, and [redacted] had given him “a 

recommendation to get his foot in the door to at least get him an interview” (Tr. 281). 

Before assisting [redacted], [redacted] checked out a respirator from the safety office, 

telling James Eric Fisher, site safety manager for Jacobs, that he needed it while helping 

[redacted] with the valve replacement (Tr. 130-132). [redacted] also brought his tools, including 

wrenches, a gaseous scraper, and channel locks with him (Tr. 135). 

 When [redacted] arrived at the G-Kettles Unit, [redacted] was in the process of 

depressurizing the line. [redacted] then disconnected the valve from the pipe by removing the 

bolts on the down stream side. As [redacted] loosened the bolts, butylene oxide released from 

the line, spraying both [redacted] and [redacted]. [redacted] and [redacted] were momentarily 

stunned. [redacted] grabbed [redacted] by the arm and pulled him toward the safety showers so 
4 

they could wash off the chemical. [redacted] also used his radio to alert others in the building of 

the release. (Exh. C-3; Tr. 149-150, 241). [redacted] and [redacted] both felt a burning 

sensation where they were sprayed with the butylene oxide. They continued to feel the effects 

the next day (Tr. 246). Emergency care attendants arrived by ambulance, and treated [redacted] 

and [redacted]. They did not go to the hospital (Tr. 272). 

 At the time of the release, Jacobs equipment supervisor [redacted] was running a crane 

approximately 75 feet from the site of the release. As he was sitting in the crane cab filling out 

his daily paperwork, he smelled something similar to the smell of high octane paint thinner. 

When he looked around, he saw people rushing out of the G-Kettle unit, and his rigger yelled at 

him to shut the crane down, to eliminate it as an ignition source (Tr. 171-172). [redacted] shut 

down the crane, took a deep breath, and climbed down from the crane’s cab. [redacted] held his 

breath for 30 to 40 seconds as he walked approximately 200 feet before he could get another 

breath. [redacted] showered at the facility. He was taken by ambulance to a hospital, where he 

was diagnosed with “chemical pneumonia” (Tr. 176-180). 

 At the time of the release, Kelly was spotting [redacted]. When she saw the butylene 

oxide spray, she shouted to people in the area to get out, and she triggered the fire monitor. She 

then doused the motor of an 80-ton crane, using the fire water deluge (Tr. 241-242, 296-298). 

It was later determined that James failed to isolate the line at the tank (Tr. 280). The 

release of the butylene oxide lasted for approximately 12 minutes. Approximately 750 liquid 

pounds of butylene oxide sprayed out before the release was contained (Exh. C-3; Tr. 347). 

[redacted] was terminated by Jacobs several days after the May 31 release (Tr. 116). Huntsman 

terminated [redacted] a few days later (Tr. 548). 

Richard Hartung is a mechanical engineer on OSHA’s Houston North Office PSM team 

(Tr. 335). OSHA hired him, based on his specialized knowledge in the chemical industry, to 

work on process safety management inspections (Tr. 335). Hartung’s supervisor asked him to 

accompany the two OSHA compliance officers originally assigned to do the inspection at 

Huntsman’s facility following the May 31, 2010, incident. Hartung eventually took over the 

inspection (Tr. 345). 
5 

The Citation 

The Secretary has the burden of establishing the employer violated the cited standard. 

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) the employer 

failed to comply with the terms of the cited standard; (3) employees had access to 

the violative condition; and (4) the cited employer 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). 

Applicability of the Cited LOTO Standard 

 The Secretary cited Jacobs under § 1910.147, the LOTO standard. Jacobs argues 

§ 1910.119, the PSM standard, is the correct standard, and the cited LOTO standard does not 

apply to the cited conditions. 

Section 1910.147(a)(i) of the LOTO standard provides (emphasis in original): 

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. 

 The PSM standard at § 1910.119 states: 

This section 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. 

 Jacobs points out that the Citation alleges that each of the five charged violations exposed 

employees to “chemical burns, fire and explosion hazards.” Jacobs contends that these hazards 

arise from the characteristics of the butylene oxide itself, and are not a function of unexpected 

energization or stored energy in machines or equipment. 

 In support of its position, Jacobs quotes from the Preamble to the final rule for 

§ 1910.147: 

The identification of “energy sources,” as defined in this proposal, is complicated 

by three very important considerations: (1) Energy is always present in 

machinery, equipment or processes; (2) energy is not necessarily dangerous; and 

(3) danger is only present when energy may be released in quantities or at rates 

that would harm an employee. 

54 Fed. Reg. 36,664 (Sept. 1, 1989). 

 In quoting this language, Jacobs omits the sentence immediately following it, which is 

relevant here: “Generally speaking, however, potentially hazardous energy sources are defined 
6 

as those that can cause injury to employees working in, on, or around machines or equipment.” 

Id.

 In the present case, the release of the butylene oxide did cause injuries to [redacted], 

[redacted], and [redacted]. [redacted] and [redacted] were working on the butylene oxide line, 

and [redacted] was working around it. The LOTO includes chemicals as potentially hazardous 

energy sources in its definitions. Section 1910.147(b) defines “energy sources” as: 

Any source of electrical, mechanical, hydraulic, pneumatic, chemical, thermal, or 

other energy. 

It is undisputed that the release of butylene oxide was unexpected. Exhibit C-3 is a 

video of the May 31, 2010, incident. The butylene oxide spews from the line suddenly, 

momentarily stunning [redacted] and [redacted]. A total of 750 liquid pounds of the chemical 

was released. The chemical energy of the butylene oxide was released in a quantity that 

harmed the exposed employees. 

 The Secretary has established that she cited the correct standard. The LOTO standard 

applies to the cited conditions. 

Item 1: Alleged Serious Violation of § 1910.147(c)(4)(i) 

The Citation alleges: 

G-Kettles unit; a procedure for controlling the hazardous energy in the 1-2 

Butylene Oxide2 line was not developed and utilized where employees were 

exposed to the unexpected release of the chemicals while engaged in the removal 

of a valve. This condition exposed employees to chemical burns, fire and 

explosion hazards. 

 Section 1910.147(c)(4)(i) provides: 

Procedures shall be developed, documented and utilized for the control of 

potentially hazardous energy when employees are engaged in the activities 

covered by this subsection. 

Noncompliance with the Terms of the Standard 

 [redacted] was engaged in assisting [redacted] replace a valve on the butylene oxide line, 

a maintenance activity. This activity is covered by § 1910.147(c), which requires energy control 

procedures to be implemented “before any employee performs any servicing or maintenance on a 

 

2

Butylene oxide and 1-2 Butylene Oxide are the same chemical. 1-2 Butylene Oxide is a trade name (Tr. 366). 
7 

machine or equipment where the unexpected energizing, start up or release of stored energy 

could occur and cause injury.” 

 Huntsman and Jacobs had developed a system implementing energy control procedures 

as required by §1910.147(c)(4). When assigning a project to Jacobs that required isolation of 

valves or pipes, Huntsman created an emergency control procedure (ECP). Jacobs would verify 

the ECP, meaning Jacobs would physically check to see that Huntsman’s locks were in place and 

that Jacobs’s locks had been installed (Tr. 120). 

The ECP has tag numbers so that the tag in the field can be matched directly to the ECP 

(Exh. C-1; Tr. 206). The ECP is dated and it lists the unit location and the number of printings. 

For example, in ECP tag GKET05-22-2010-00003-24, “GKET” stands for the G-Kettles unit, 

“05-22-2010” is May 22, 2010, “00003” is the third printing of the tag, and “24” indicates it is 

tag 24 (Tr. 206-208). With this information, an employee can verify he or she is in the correct 

place and has the correct LOTO procedure for the project. 

Neither Huntsman nor Jacobs created an ECP for replacing the valve on the butylene 

oxide line (Tr. 291, 296, 327-328). [redacted], who made the decision to replace the valve, 

testified he did not create an ECP before he began replacing the leaky valve (Tr. 221). After the 

incident, another Huntsman operator “reminded” [redacted] that an ECP was required for the 

valve replacement. [redacted] printed up and approved, post hoc, an ECP (Tr. 247-248). 

Jacobs does not dispute the failure to create an ECP, but argues that Jacobs did not have 

“authorized employees” on the job under the LOTO standard, but only “affected employees.” 

Section 1910.147(b) defines the relevant categories: 

Affected employee. An employee whose job requires him/her to operate or 

use a machine or equipment on which servicing or maintenance is being 

performed under lockout or tagout, or whose job requires him/her to work in an 

area in which such servicing or maintenance is being performed. 

Authorized employee. 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. 

Jacobs contends that because it “only had ‘affected employees’ and had no ‘authorized 

employees’ on this particular job, each and every citation item should be vacated” (Jacobs’s 

brief, p. 11). This argument is rejected. [redacted] volunteered to assist [redacted] in replacing 
8 

the leaking valve. Jacobs’s supervisors knew he was assisting [redacted], and tacitly consented 

to his assumption of this duty (as analyzed in the “Knowledge” section below). Replacing a 

defective valve is maintenance covered by § 1910.147. Once [redacted] assumed the duty of 

assisting [redacted] with maintenance of the butylene oxide line, his status changed to that of an 

authorized employee. (“An affected employee becomes an authorized employee when that 

employee’s duties include performing service or maintenance covered under this section.”) 

Jacobs failed to create an ECP for replacing the leaky valve. The Secretary has 

established Jacobs violated the terms of § 1910.147(c)(4)(i) 

Employee Access to the Violative Condition 

[redacted] and [redacted] were exposed to two different hazards created by the release of 

the butylene oxide. The chemical sprayed on [redacted] in liquid form, causing burning and 

irritation to his skin (Tr. 149). [redacted] testified the butylene oxide on his skin “felt like I was 

literally on fire burning” (Tr. 241). [redacted] inhaled butylene oxide in vapor form, and 

suffered from chemical pneumonia (Tr. 179-180). In addition to [redacted] and [redacted], there 

were approximately four other Jacobs employees in the G-Kettles unit. The employees were also 

exposed to an explosion hazard. Butylene oxide vapors are highly flammable, and they were 

working in an area that contained several ignition sources (Tr. 143, 241). The Secretary has 

established Jacobs’s employees had access to the unexpected release of butylene oxide. 

Knowledge 

Jacobs contends it had neither actual nor constructive knowledge that [redacted] was 

assisting [redacted] replace the leaky valve on the butylene oxide line. The record, however, 

establishes that two of Jacobs’s supervisors had constructive knowledge of [redacted] activity, 

and one supervisor had actual knowledge. Their knowledge is imputed to Jacobs. Dover 

Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993) (“[W]hen a supervisory employer 

has actual or constructive knowledge of the violative conditions, that knowledge is imputed to 

the employer, and the Secretary satisfies [her] burden of proof without having to demonstrate 

any inadequacy or defect in the employer’s safety program.”) 

Jose Garcia was Jacobs’s maintenance general foreman on May 31, 2010 (he no longer 

worked for Jacobs at the time of the hearing) (Tr. 555). Garcia testified he was not aware 

[redacted] was planning to assist [redacted]. Garcia stated [redacted] told him “he was going to 

get some tools for [redacted] to do some work. . . . To me I understood he was going to take 
9 

some tools to [redacted] to do work. That’s all” (Tr. 571). Garcia was in his office completing 

paperwork during the time [redacted] was assisting [redacted] (Tr. 572). He testified he had his 

radio with him that day, stating, “I always try to keep my radio on” (Tr. 583). 

G. W. McBride was also a supervisor for Jacobs, and Jacobs’s liaison with Huntsman for 

the turnaround.3 McBride was also listening to the open radio channel during the time [redacted] 

and [redacted] were communicating over it. [redacted] testified regarding his communications 

with [redactged]: 

Q. At any point did you have anybody help you with that process for 

changing out the valve? 

[redacted]: [redacted] volunteered to give me hand. 

Q. Okay. How did that come about? 

[redacted]: I mentioned on the radio, I think it was channel 8 at the time. 

I’m not sure if it is to this day. I talked to him via radio and told him that this—

that before we removed this exchange overhead, which is EG44, I wanted to 

replace that valve first. So he said, “Okay.” 

. . . 

Q. Now, when you had that conversation with Mr. [redacted] over the 

radio, who else uses that channel that you were talking with him on? 

 [redacted]: Anybody that’s been issued a radio in maintenance. So that’d 

be G. W. [McBride]. He would have heard it. Joe Garcia and anybody that has a 

radio. 

 Q. Okay. And from that conversation that you had with Mr. [redacted] on 

the radio, did you understand he was going to give you a hand with changing out 

the valve? 

 [redacted]: He was going to assist me. As for as actually changing out the 

valve himself, no. 

 Q. What does that mean to you that he was going to assist you? What—

what did you think he was going to help you with? 

 

3

Jacobs disputes McBride’s status as a supervisor, claiming he was a leadman without supervisory authority. 

Brian Redmond, Jacobs’s area safety manager, stated McBride was a leadman (Tr. 647). He admitted, however, that 

his boss, Nick Anagnostou (Jacobs’s regional health and safety director) unequivocally identified McBride as a 

supervisor in an email sent to OSHA representative Richard Hartung: “GW [McBride] is currently a supervisor and 

was a supervisor at the time of the incident” (Exh. C-21). Garcia also identified McBride as a fellow supervisor 

(Tr. 575). 
10

 [redacted]: With that valve and the line sitting on there, I knew I was 

going to need some help lifting that line up to be able to pull that valve out 

because you don’t want to mess up the valve flange on the line side upstream or 

downstream, the flange surface. 

. . . 

When I went up there I told [redacted] on the radio that I’m getting ready to go in 

and replace that valve. He said that—“just a minute.” He’s going to go get a full 

face respirator. I said, “Okay.” I told him I still had to get mine. 

(Tr. 227-230). 

 In addition to the conversation broadcast over the radio, [redacted] personally told James 

Eric Fisher, Jacobs’s site safety manager, that he was going to assist [redacted]. [redacted] went 

to the safety office to check out a respirator. In order to check out a respirator, an employee 

must sign a checkout sheet listing the number of the respirator and verify he or she has a fit card. 

Fisher was in the safety office, sitting at his desk and doing paperwork when [redacted] went in. 

[redacted] told Fisher he “was getting a respirator to help [redacted]” (Tr. 133). Fisher did not 

ask [redacted] any questions about his statement (Tr. 133). 

 Despite Jacobs’s protestations that it was not aware [redacted] was assisting [redacted] 

with the valve replacement, the evidence establishes that the conversation between [redacted] 

and [redacted] was broadcast over the open channel of the maintenance radios, which 

maintenance personnel kept on at all times. Furthermore, [redacted] actually told Fisher that he 

was going to help [redacted]. The Secretary has established knowledge. 

Employee Misconduct Defense 

“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). 

 In addition, the employer has the burden of showing “that the violative conduct of the 

employee was idiosyncratic and unforeseeable.” L. E. Myers Co., 16 BNA OSHC 1037, 1040 

(No. 90-945, 1993). Jacobs had established work rules covering LOTO procedures (Exh. C-13). 

The company communicated the LOTO rules to its employees. There was some evidence of 

[redacted]’s safety training (Exh. R-9; Tr. 175). Jacobs has failed, however to establish that it 

took reasonable steps to discover violations of the LOTO rules or effectively enforced the rules, 

and that [redacted]’s assistance to [redacted] was idiosyncratic or unforeseeable. 
11

Jacobs’s safety program requires it to receive a “start work permit” for jobs at 

Huntsman’s facility. Jacobs is not supposed to engage in certain kinds of work without a permit 

(Tr. 565).4 Garcia admitted that it had been Jacobs’s practice to sign work permits in advance, 

verifying that isolation had been done, and only later check to see if isolation had been 

completed (Tr. 579-581). Exh. C-19 is a copy of a start work permit to remove an ESD, dated 

May 28, 2010, and signed by McBride, [redacted], and two other Jacobs employees. The 

employees have checked off the boxes verifying the isolation was completed for that job. Garcia 

testified, “There was no work done on this job. So the ESD was never removed. They never 

worked on this system”(Tr. 580). When asked if the Jacobs’s procedure was to sign off on 

permits before verifying the isolation, Garcia replied, “Yeah. At that time, yes” (Tr. 581). If the 

permits verifying isolation cannot be relied upon as accurate, Jacobs’s ability to takes steps to 

discover violations is compromised. 

[redacted] testified he had assisted Huntsman operators without getting a permit, and 

knew of other Jacobs employees doing the same thing. Jacobs never reprimanded [redacted] for 

working without a required permit (Tr. 163). [redacted] testified numerous Jacobs employees 

had assisted him without a permit. When asked who helped him, [redacted] stated, “ [redacted] 

has helped me before. G. W. McBride, [Jacobs supervisor] Bobby Joe Franklin, Donald Salters, 

. . . Martin Taylor. There’s another guy named B[redacted] and I can’t remember his last name” 

(Tr. 288). 

 None of the supervisors who knew or should have known that [redacted] was assisting 

[redacted] intervened. Fisher allowed [redacted] to walk out of his office with a respirator after 

he told Fisher he was getting ready to help [redacted]. Jacobs’s enforcement of its safety 

program was lax. It was commonplace, and not unforeseeable, that a Jacobs employee would 

assist a Huntsman employee without obtaining the required ECP or permit. It was part of the 

companies’ shared culture to bypass paperwork when a quick hand was needed. [redacted] 

admitted to manufacturing the ECP for the leaky valve replacement after the butylene oxide 

release occurred. As [redacted] testified, “[Jacobs employees] don’t mind helping me and I don’t 

mind helping them. We—we—we work together. That was my idea of—of what Huntsman was 

preaching. Working together” (Tr. 289). 

The company has failed to establish [redacted] engaged in employee misconduct. 

 

4 A start work permit was not required for minor clean-ups or working around the ponds (Tr. 640). 
12

Item 2: Alleged Serious Violation of § 1910.147(c)(4)(ii) 

 The Citation alleges: 

G-Kettles unit; the energy control procedures written for activities including, but 

not limited to, the change out of emergency shut down valves did not include 

specific steps for employees to follow in shutting down and isolating the process 

equipment. This condition exposed employees to chemical burns, fire, and 

explosion hazards. 

 Section 1910.147(c)(4)(ii) provides: 

The procedures shall clearly and specifically outline the scope, purpose, 

authorization, rules, and techniques to be utilized for the control of hazardous 

energy, and the means to enforce compliance[.] 

Noncompliance with the Terms of the Standard 

 Item 1 of the Citation addressed Jacobs’s failure to have any ECP for the replacement of 

the leaky valve. Item 2 addresses alleged deficiencies in various ECPs that did exist for the 

turnaround being performed in May 2010. Item 2 is, therefore, not duplicative of Item 1, as 

Jacobs claims. 

 Exhibit C-1 is a copy of ECP GKET 05-22-2010-00003. The Secretary contends this is 

the ECP issued for the replacement of the eight ESD valves. Hartung testified he based this 

information on interviews he conducted with Huntsman personnel following the incident. 

 Jacobs argues the Exhibit C-1 ECP was not issued for the ESD valves. [redacted], 

[redacted], and Garcia were consistent and straightforward in insisting that Exhibit C-1 is not an 

ECP for the May turnaround ESD valve replacement. [redacted] testified Exhibit C-1 had 

“nothing to do” with either the ESD valves or the leaking gate valve (Tr. 124-125). [redacted] 

stated that Exhibit C-1 was not intended to cover the eight ESD valves, but rather was for the FG 

reactor. [redacted] actually completed the ECP (Tr. 210, 270). Garcia testified Exhibit C-1 was 

“for tank entry to do some repairs inside the tank” (Tr. 557). 

 Hartung’s testimony on this point was less certain: 

 Hartung: [W]e were told that this [Exhibit C-1] ECP was also used to do 

some of the –the ESDs that were actually replaced. 

Q. Who told you that? 

 Hartung: We were told that by the production supervisor. We were also 

told—Heather Braren and then the operations manager I think was Patrick 

Fleming told us—and—and the S&H manager, Bill Swain, told us this was it. 
13

And we pursued that several times because we were told by different employees 

this isn’t the ECP that was used, but they insisted that it was the one that was 

used. 

(Tr. 380-381). 

 On its face, Exhibit C-1 appears to cover the FG51 reactor. [redacted], [redacted], and 

Garcia were matter-of-fact and assured when they stated the ECP did not relate to the 

replacement of the ESDs. They were the witnesses who were in the best position to know what 

Exhibit C-1 covered. There is no obvious reason why [redacted] and [redacted], who were both 

terminated over the May incident, would mislead the court on this issue. The Huntsman 

personnel whom Hartung spoke with were not signatories on the ECP, and were not assigned the 

task of completing it. Their statements to Hartung are not as reliable as the sworn testimony of 

[redacted], [redacted], and Garcia. It is determined Exhibit C-1 is not an ECP for the ESD valve 

replacement, and is, therefore, not evidence supporting the Secretary’s proof of noncompliance. 

 Although the alleged violation description refers to “emergency shutdown valves” in the 

plural, Hartung acknowledged Item 2 actually deals only with the one ESD located near the 

leaking gate valve involved in the May 31 incident (Tr. 477, 479). The Secretary in her posthearing brief points to other ECPs (Exhs. C-7, C-9, and C-11) that are purportedly deficient. 

Hartung, however, had trouble recalling which ESDs these ECPs referred to, or whether they 

even referred to ESDs or to some other pieces of equipment (Tr. 476). 

 The Secretary has failed to establish Jacobs was in noncompliance with the terms of the 

standard. She failed to adduce an ECP directly related to the replacement of a specific ESD 

valve. Item 2 is vacated. 

Item 3: Alleged Serious Violation of § 1910.147(d)(3) 

 The Citation alleges: 

G-Kettles unit; the employer did not ensure that each isolation device was located 

and operated to isolate the process equipment prior to employees removing a 

leaking valve in the 1-2 Butylene Oxide line. This condition exposed employees 

to fire and explosion hazards. 

 Section 1910.147(d)(3) provides: 

All energy isolating devices that are needed to control the energy to the machine 

or equipment shall be physically located and operated in such a manner as to 

isolate the machine or equipment from the energy source(s). 
14

Noncompliance with the Terms of the Standard 

 [redacted] did not physically locate all of the energy isolating devices that were required 

to be locked or blocked in order to replace the valve (Tr. 131, 414). [redacted] testified he did 

not “walk the line.” He stated “walking the line” means, “[Y]ou start from where you’re 

working at and follow the line back to make sure you point tags into it to see if it’s locked out or 

tagged out or no other chemicals can get to you” (Tr. 131-132). [redacted] stated he failed to 

perform this step (Tr. 131). [redacted] testified that when a Jacobs employee was assigned a 

maintenance job, it was Huntsman’s policy to take the employee out and show him or her how 

the isolation points are set up. The Jacobs employee then signs off on a form, “saying they agree 

with the isolation” (Tr. 252). When asked if he followed this procedure with [redacted] on 

May 31, [redacted] replied, “No, he trusted me” (Tr. 247). 

The Secretary has established Jacobs failed to comply with § 1910.147(d)(3). 

Employee Access to the Violative Condition 

 As discussed above, [redacted], [redacted], and the other Jacobs employees located in the 

G-Kettles unit were exposed to the hazards created by the violative condition, which included 

chemical burns, lung damage caused by inhaling chemical vapors, and explosions. The 

Secretary has established employee access to the violation of § 1910.147(d)(3). 

Knowledge 

It has been established [redacted]’s supervisors knew [redacted] was assisting [redacted] 

in replacing the leaky valve. Garcia testified he would have walked the line himself if he had 

received a start work permit and an ECP for the replacement. Garcia did not do so (Tr. 573). 

With reasonable diligence, Garcia would have followed up on [redacted]’s statement that he was 

going to assist [redacted]. Garcia’s constructive knowledge is imputed to Jacobs. 

 The Secretary has established a violation of § 1910.147(d)(3). 

Item 4: Alleged Serious Violation of § 1910.147(d)(4)(i) 

 The Citation alleges: 

G-Kettles unit; a lockout device was not affixed to the isolation devices to isolate 

process equipment including, but not limited to, the 1-2 Butylene Oxide line 

where employees were removing a leaking valve. This condition exposed 

employees to chemical burns, fire, and explosion hazards. 
15

 Section 1910.147(d)(4)(i) provides: 

Lockout or tagout devices shall be affixed to each energy isolating device by 

authorized employees. 

Noncompliance with the Terms of the Standard 

 It has been established that neither [redacted] nor Garcia placed any locks on the isolation 

points for the replacement of the leaking gate valve (Tr. 132). Jacobs was required to lock out 

the devices even if Huntsman had already done so (Tr. 420). 

 Jacobs also failed to lock out another device. As previously noted, Exhibit C-1 is an ECP 

for the FG51 reactor. Under this ECP, Jacobs was required to lock out the valve identified by tag 

number 16. Jacobs failed to do so. Garcia told Hartung that he had placed a lock on another 

butylene oxide line. Hartung speculated Garcia may have mistakenly put the lock on the wrong 

line (Tr. 424). 

 The valve tagged with number 16 was the leaky valve at issue in this case. Hartung 

explained that if plans to lock out a valve change due to circumstances, then the ECP should 

reflect that change: 

[T]heir energy control procedure defined that valve as part of the energy control 

plan for FG51. And so therefore I would expect to see a lock on—on all of these 

devices that were on the energy control procedure. [If a valve cannot be isolated], 

there is a mechanism and it would be to—to not do any work until it was properly 

isolated, blocked in, etc. The other option could have been to change the energy 

control procedure to go back further where there wasn’t a –a leaking valve, to 

block it there. 

(Tr. 425). 

 The Secretary has established Jacobs was in noncompliance with 

§ 1910.147(d)(4)(i). 

Employee Access to the Violative Condition 

 Jacobs’s employees located in the G-Kettles unit were exposed to the hazards created by 

the violative conditions, which included chemical burns, lung damage caused by inhaling 

chemical vapors, and explosions. The Secretary has established employee access to the violation 

of § 1910.147(d)(4)(i). 
16

Knowledge 

 Garcia had constructive knowledge the isolation devices with which [redacted] was 

working were not locked out, and he had actual knowledge of his failure to lock out the valve 

identified by tag 16. Garcia’s knowledge is imputed to Jacobs. 

 The Secretary has established a violation of § 1910.147(d)(4)(i). 

Item 5: Alleged Serious Violation of § 1910.147(d)(5)(i) 

 The Citation alleges: 

In the following instances stored energy was not relieved, disconnected, restrained 

or otherwise rendered safe potential hazardous energy while employees were 

engaged in maintenance and servicing activities. The conditions exposed 

employees to chemical burns, fire and explosion hazards: 

1. Energy Control Procedure GKET-05-22-2010-00003, the energy was not 

relieved between HVG274 (Solenoid Valve) and the block valve item #16 

2. Energy Control Procedure GKET-05-21-2010-00007, the energy was not 

relieved between XVG93 (Solenoid Valve) and the block valve item #1 

3. Energy Control Procedure GKET-05-22-2010-0001, the energy was not 

relieved between HVG273 (Solenoid Valve) and the block valve item # 15 

4. Energy Control Procedure JAU-06-26-2010-00001, the energy was not 

relieved inside E-G-56 resulting in exposure to maintenance employees while 

opening equipment. 

Section 1910.147(d)(5)(i) provides: 

Following the application of lockout or tagout devices to energy isolating devices, 

all potentially hazardous stored or restricted energy shall be relieved, 

disconnected, restrained, and otherwise rendered safe. 

Noncompliance with the Terms of the Standard 

Instance 1—Exhibit C-6 is a copy of a drawing referred to as a “P&ID,” which shows the 

G-Kettles unit. A highlighted segment marked “1” shows the area of the butylene oxide line 

referred to in Instance 1. Jacobs did not ensure the segment of the line between the solenoid 

valve (tag 16) and the ESD was relieved. The ESD valve was fail closed, which means when the 

power to the system is shut down, the ESD valve would go into a closed position as its safe 

position. There is no bleed valve that would allow that portion of the line to be bled. If a 

chemical substance was left in the line, there would be no way to flush the material. If the ESD 

valve were opened, employees in the area could be exposed to an unexpected hazardous release 

(Tr. 285, 430-435). 
17

Instance 2—Highlighted segment “2” of Exhibit C-6 shows the area between the blocked 

valve and another ESD valve that would fail close. Jacobs did not ensure this segment was 

relieved (Tr. 285, 430-435). 

Instance 3—Highlighted segment “3” of Exhibit C-6 shows the area of the line between 

the blocked valve and the ESD valve, as well as the portion of the line between the control valve 

and a second block valve. Jacobs did not ensure this segment was relieved (435-437). 

 The Secretary has established Jacobs failed to comply with § 1910.147(d)(5)(i) with 

respect to Instances 1through 3 of Item 5. 

Instance 4—This instance refers to an incident that occurred on June 26, 2010. Exhibit 

C-15 is a copy of a P&ID where Jacobs was performing work on an exchanger. Jacobs’s 

employees believed the highlighted line had been isolated and started to open the line. When 

they opened the flanges between the exchanger (EG56) and the connecting pipe, the material 

inside sprayed out with pressure (Tr. 451-452). The Secretary contends Jacobs failed to fully 

relieve the line. 

 Garcia testified that neither he nor Huntsman missed any isolation points when he 

verified the ECP (Exh. C-14). Garcia stated, “Everything was isolated, locked out, and tagged 

out. I had my safety men and myself. We walked it out. My guy, before he started to work, he 

walked it out. And then we did the work. We barricaded the area where we worked” (Tr. 566). 

It is Garcia’s theory that the release was due to a plug in the line. Although Huntsman purged 

and flushed the line, the plug prevented all of the material from bleeding out. Hartung testified 

that he was not certain that Garcia missed an isolation point (Tr. 544). 

 With respect to Instance 4, the Secretary has failed to establish Jacobs failed to comply 

with the cited standard. The evidence is insufficient to establish Jacobs missed an isolation point 

or points. 

Employee Access to the Violative Condition 

 Jacobs’s employees located in the G-Kettles unit were exposed to the hazards created by 

the violative conditions, which included chemical burns, lung damage caused by inhaling 

chemical vapors, and explosions. The Secretary has established employee access to the violation 

of § 1910.147(d)(5)(i). 
18

Knowledge 

Garcia testified he reviewed the ECPs and walked the lines. With reasonable diligence, 

he could have detected the deficiencies in the lines. Garcia’s knowledge is imputed to Jacobs. 

 The Secretary has established a violation of § 1910.147(d)(4)(i). 

Penalty Determination 

 The Commission is the final arbiter of penalties in all contested cases. “In assessing 

penalties, section 17(j) of the OSH Act, 29 U. S. C. § 666(j), requires the Commission to give 

due consideration to the gravity of the violation and the employer’s size, history of violation, and 

good faith.” Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). 

“Gravity is a principal factor in a penalty determination and is based on the number of employees 

exposed, duration of exposure, likelihood of injury, and precautions taken against injury.” 

Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005). 

 Jacobs employs approximately 30,000 people worldwide. It had been cited for OSHA 

violations within the three years previous to the May 31, 2010, incident. Jacobs demonstrated 

good faith during this proceeding (Tr. 369-370). 

 The gravity of the violations affirmed in Items 1, 2, 4, and 5 is high. At least six Jacobs 

employees were exposed to hazards of skin irritation, lung damage, and explosions. The 

May 31, 2010, incident resulted in injuries to three employees. The toll could have been much 

worse had it not been for the combined efforts of Huntsman and Jacob employees in sounding 

the alarm for employees to evacuate and in dousing the ignition points. The gravity is somewhat 

mitigated by the conscientious use of personal protective equipment worn by the employees. 

Jacobs employees are required to wear fire retardant clothing at work. [redacted] and [redacted] 

were both wearing gloves and were using respirators. Significantly, they suffered no lung 

damage even though they were at ground zero for the butylene oxide release. 

 It is determined that a penalty of $3,500.00 is appropriate for each of Items 1, 3, and 4. A 

penalty of $2,500.00 is appropriate for Item 5. 

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. 
19

ORDER

 Based upon the foregoing decision, it is ORDERED that: 

1. Item 1 of the Citation, alleging a serious violation of § 1910.147(c)(4)(i), is affirmed, 

and a penalty of $3,500.00 is assessed; 

2. Item 2 of the Citation, alleging a serious violation of § 1910.147(c)(4)(ii), is vacated, 

and no penalty is assessed; 

3. Item 3 of the Citation, alleging a serious violation of § 1910.147(d)(3), is affirmed, 

and a penalty of $3,500.00 is assessed; 

4. Item 4 of the Citation, alleging a serious violation of § 1910.147(d)(4)(i), is affirmed, 

and a penalty of $3,500.00 is assessed; and 

5. Item 5 of the Citation, alleging a serious violation of § 1910.147(d)(5)(i), is affirmed, 

and a penalty of $2,500.00 is assessed. 

 SO ORDERED. 

 /s/ Sharon D. Calhoun 

 Sharon D. Calhoun 

 Judge 

 

Date: September 20, 2011 

Atlanta, Georgia