Jacobs Field Services of North America, Inc.
Two process-equipment integrity items affirmed after chemical release
Apply this to your situation
This order from 2015 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
A Jacobs maintenance technician was burned when removing bolts from an actuator assembly released a hazardous chemical from a settling tank at an AkzoNobel plant. The judge held that Jacobs could be responsible as the exposing contractor even though AkzoNobel owned and operated the process. Jacobs lacked written procedures and training for maintaining the unusual valve assembly, so two serious mechanical-integrity items were affirmed with $14,000 in penalties. The lockout item was vacated because the assigned troubleshooting task did not require a line break and Jacobs could not reasonably anticipate the employee's action. A duplicative safe-work-practice item and a PPE item that challenged the result of Jacobs's completed hazard assessment were also vacated, while another item had been withdrawn.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.119(d)(3); 29 C.F.R. § 1910.119(f)(4); 29 C.F.R. § 1910.119(j)(2); 29 C.F.R. § 1910.119(j)(3); 29 C.F.R. § 1910.132(d)(1)(i); 29 C.F.R. § 1910.147(c)(4)(i).
- Outcome: Process-information item withdrawn; two mechanical-integrity items affirmed for $14,000 total; safe-work-practice, lockout, and PPE items vacated.
- Key point: A maintenance contractor whose employee is exposed to a covered process hazard may have its own compliance duties, but OSHA must still prove the distinct terms and knowledge elements of each cited standard.
Full text (OSHRC public release)
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).
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.
2
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.)
3
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).
4
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
5
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 T-
802 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
6
(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
7
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
8
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.
9
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).
10
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.
11
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).
12
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
13
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).
14
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
15
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.
16
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:
17
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
18
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
19
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).
20
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.
21
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?
22
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
23
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).
24
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
25
“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).
26
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
27
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
28
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
29
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).
30
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
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
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
31
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 on-
going 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
32
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
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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.
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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
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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,
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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 5th day of February, 2015.
/s/
JOHN B. GATTO, Judge
U.S. Occupational Safety And
Health Review Commission
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