This only one part of a case, but it is about the “minor servicing” exception and how it can be applied. It is also critical in that the case revolves doing servicing and maintenance on presses using only the “safety blocks” in lieu of LOTO.
Item 1, Alleged Violation of Section 1910.147(c)(4)(i) of the LOTO Standard
The Secretary alleges in Item 1 the business committed a serious violation of section 1910.147(c)(4)(i) of the LOTO standard, which requires 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 C.F.R. § 1910.147(c)(4)(i). More specifically, the Secretary asserts on or about May 16, 2013, in the Press Line Room on Press Numbers 1 through 11, the business violated the LOTO standard when its tool and die shop employees “were performing maintenance and servicing activities on dies in the danger zone area without presses being locked and tagged out.”
In order to prove that the business violated the LOTO provision at issue, the Commission has held “the Secretary must show that the LOTO standard applies, [the business] failed to comply with the cited LOTO provision, employees had access to the violative conditions, and [the business] either knew or should have known of these conditions with the exercise of reasonable diligence.”
Application of LOTO standard
“The LOTO standard, which became effective January 2, 1990, was promulgated to prevent industrial accidents during servicing of machines that remain in an operational mode, are turned off but connected to a power source, retain stored energy, or are reactivated by another worker unaware that servicing is in progress.” “Specifically, 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).” “Servicing and/or maintenance” is defined as “[w]orkplace activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and maintaining and/or servicing machines or equipment,” including “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.” 29 C.F.R. § 1910.147(b). Under the LOTO standard, “energized” means “connected to an energy source or containing residual or stored energy.”
However, servicing or maintenance that takes place “during normal production operations” is covered by the LOTO standard only if:
(1) “[a]n employee is required to remove or bypass a guard or other safety device,” or
(2) “[a]n employee is required to place any part of his or her body into an area on a machine or piece of equipment where work is actually performed upon the material being processed… or where an associated danger zone exists during a machine operating cycle.” 29 C.F.R. § 1910.147(a)(2)(ii).
“Normal production operations” means “the utilization of a machine or equipment to perform its intended production function.” An additional exception to this particular provision, known as the “minor servicing exception,” provides: Minor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations, are not covered by this standard if they are routine, repetitive, and integral to the use of the equipment for production, provided that the work is performed using alternative measures which provide effective protection (See subpart O of this part). 29 C.F.R. § 1910.147(a)(2)(ii) (note).
The business asserts the Secretary “failed to establish that any work was performed on dies in presses that [did] not fall within an exception to the standard.” However, it is the business, not the Secretary, which “carries the burden of proof on this issue.” (“The Commission has repeatedly held… that ‘the party claiming the benefit of an exception to the requirements of a standard has the burden of proof of its claim.”’) (noting that employer bears burden of proving minor servicing exception’s applicability)
To prove that its case comes within the exception, the business “must show that the adjustments are minor and made during normal production operations, and that effective alternative protection is provided”. Significantly, the Commission has held “adjustments made to prepare for normal production operations cannot, at the same point in time, be adjustments that are made ‘during normal production operations.’” Here, there is no dispute the mechanical presses are shut down while work was performed on dies in the presses.
A facility tool and die maker testified his job requires him to troubleshoot and repair dies. The business’s tool and die makers periodically perform a number of adjustments and repairs to mechanical presses, including changing the dates stamped onto the manufactured parts, repairing broken punches, replacing springs, and sharpening punches. These adjustments and repairs take from 10 to 45 minutes. When a repair or adjustment was required on a mechanical press, the tool and die shop received a call over the intercom system stating, for example, “Press 1, date change.” The tool and die maker responding to the call would gather his or her tool box and whatever equipment was indicated as needed for the repair or adjustment. The tool and die maker stated he entered the press at least once a day to make adjustments, which took between 15 to 45 minutes. Sometimes the tool and die maker pulls a damaged part from the press and takes it to the tool shop for repair, but “the majority of the time” the tool and die makers “work with the dies still in the presses.” While the tool and die maker is inside the press adjusting or repairing the dies, “the machine is shut down” and the press operator stayed “on lookout for anyone else around the area to let them know what’s going on. They [were] basically the lookout for the tool makers.” (“the business procedure prescribes that the die . . . has completely cut power to the press upon its removal”).
Therefore, the Court concludes the business has NOT proven that this case falls within the exception at the end of section 1910.147(a)(2)(ii) since it’s “tool changes and adjustments” and other “servicing activities” were NOT made “during normal production operations.” Clearly, they could not have been since the machines were shut down and were not being utilized to perform their intended production function. Thus, since the safety blocks were still subject to unexpected energization or start up, the LOTO standard provision contained in section 1910.147(c)(4)(i) applied to the cited conditions.
Compliance with the Terms of the Standard
In Gen. Motors Corp., Delco Chassis Div. (GM-Delco), the Commission held the applicability of the LOTO standard is predicated on a showing “that unexpected energizing, start up or release of stored energy could occur and cause injury.” Although the phrase “unexpected energization” is not defined in the standard, the Commission has held that “[e]nergization is “unexpected” in the absence of some mechanism to provide adequate advance notice of machine activation.” Dayton Tire, 23 BNA OSHC at 1251 (citing General Motors Corp., 22 BNA OSHC at 1023; accord Burkes Mech., Inc., 21 BNA OSHC 2136, 2139 n.4 (No. 04-1475, 2007)).
Relying on the plain language of section 1910.147(a)(1)(i), and specifically emphasizing the standard’s inclusion of the phrase “unexpected energization,” the Commission has held that the “Secretary must show that there is some way in which the particular machine could energize, start up, or release stored energy without sufficient advance warning to the employee.” GM-Delco, 17 BNA OSHC at 1219-20, aff’d, 89 F.3d 313, 315 (6th Cir. 1996) (affirming Commission and noting that, in context of LOTO standard, “use of the word ‘unexpected’ connotes an element of surprise, and there can be no surprise when a machine is designed and constructed so that it cannot start up without giving a servicing employee notice of what is about to happen”).
Under this Commission precedent, therefore, the LOTO standard’s use of the term “unexpected” unambiguously refers to the potential of a machine or equipment to “energize, start up, or release stored energy without sufficient advance notice to the employee.” And the term does not require the Secretary to quantify the specific risk level associated with such an event. As the Commission noted in General Motors Corp., “[a]s evidenced by the fatality that prompted OSHA’s inspection here, even momentary exposure to equipment that has not been fully deenergized and locked out poses a significant risk of serious harm or death.” 22 BNA OSHC at 1048; accord Burkes Mech., 21 BNA OSHC at 2142 (finding significant risk of serious injury or death to laborers working under conveyor that was not locked out, as illustrated by fatality); (rejecting pre-enforcement challenge to OSHA LOTO standard, and noting that in its supplemental statement of reasons to its rulemaking OSHA stated that “workers face a significant risk of material harm every time they perform service or maintenance work on powered industrial equipment” (citing 58 Fed. Reg. 16,612, 16,620 (Mar. 30, 1993)).
There is no dispute the business did not issue locks and tags to its tool and die makers and did not require them to lockout or tagout mechanical presses when they worked on them. Nonetheless, the business argues “OSHA’s own rules acknowledge that die blocks are the most effective means for the control of hazardous energy on mechanical power presses.” The Court does not agree. To the extent the business claims that use of safety blocks were “alternative measures,” the Court finds that those measures were ineffective. Turning off the machine would not prevent its unexpected energization or startup. A former tool and die maker for approximately two years, testified that pulling the die block did not shut down the press completely since the flywheel motor was still on. Therefore, the presses were still energized even when the die block was pulled.
Significantly, the safety blocks were not under the exclusive control of the tool and die makers. Therefore, the business did not prevent employee access to the point of operation of a press since an operator or other employees could remove the safety block without the tool and die maker’s knowledge. The former tool and die maker testified about an instance when he pulled the safety block on a mechanical press in order to repair a broken punch. He left the mechanical press area and went to the tool and die shop to retrieve a tool he needed. He returned to the press and began working inside of it to replace the punch. His supervisor and the business’s Tool Room Supervisor, approached him and told him he was going to suspend him because he was working inside a press without using a safety block. He went to the other side of the press and noticed someone had removed the safety block and placed it in its storage space. Upon further inquiry, the two learned the press operator had returned to the press, observed the unlocked and untagged safety block in place and, not seeing a tool and die maker in the immediate area, the press operator removed the safety block in order to continue operating the press.
The former tool and die maker was clearly exposed to the potential of unexpected energization of this press by the operator. He stated he “would consider that a near miss” when he was working inside the press after the operator had removed the safety block he had set in place. He also testified that anybody could remove a safety block pulled by a tool and die maker and the tool and die maker had no control over it while he was working. His testimony on this issue regarding the removed safety block was undisputed. He testified the first day of trial on July 15, 2014. The trial continued the next day and then resumed in November, four months later. At no time did the business call anyone to the stand to rebut his testimony or offer other evidence contradicting his testimony that an operator had removed the safety block without his knowledge, exposing him to crushing and amputation hazards. Therefore, the business “has not demonstrated that the cited activities were ‘performed using alternative measures which provide effective protection.’” Thus, the Secretary has established the business failed to require its tool and die makers to use proper LOTO procedures when adjusting or repairing dies on mechanical presses in violation of the cited standard.
Employee Access to the Violative Condition
The Secretary contends when a tool and die operator is required to make adjustments or repairs to the dies of a press, the operator has access to its danger zone and is exposed to amputation or crushing injuries. CSHO photographed the tool and die team leader placing his hands and arms between the dies of a mechanical press. The CSHO observed the press’s safety block had been pulled but that LOTO procedures had not been implemented. The business argues that since the CSHO admitted he did not know whether the tool and die team leader was engaged in a die-setting operation at the time he was photographed, the Secretary failed to prove the tool and die team leader was performing maintenance or servicing within the meaning of the LOTO standard. The Court does not agree with the business.
The photographs clearly show the tool and die team leader with his hands and arms inside the point of operation of the press on which he was working. The press is not engaged in normal production operations because the safety block had been pulled and placed in the press. Similarly, the former tool and die team leader also testified that when making adjustments and repairs to dies while they were still in the presses, he was required to lean into the die, entering the point of operation. Likewise, a tool and die operator also testified he used a hand or surface grinder to sharpen punches on the mechanical presses and described the manner in which he changed a broken spring on a component of the die. Both tasks required him to place his hands and arms within the danger zone of the press. “[T]he Commission may draw reasonable inferences from the evidence[.]” The Court concludes the reasonable inference from the evidence is that the CSHO observed a tool and die team leader engaged in servicing or maintenance on the dies of the press when LOTO procedures had not been implemented.
The business nonetheless argues its procedure of pulling the safety block and placing it between the ram and the bolster “forecloses employee exposure.” The Court finds no merit in the business’s argument. As indicated supra, the safety blocks were not under the exclusive control of the tool and die makers and did not prevent employee access to the point of operation of a press since an operator or other employee could remove the safety block without the tool and die maker’s knowledge. Even the tool and die team leader’s momentary exposure to equipment that has not been fully deenergized and locked out posed a significant risk of serious harm or death. Thus, the Court concludes the Secretary has established the business’s tool and die makers had access to the danger zone and were exposed to amputation or crushing injuries at the point of operation when working in the presses.
Employer Knowledge
The business does not dispute that its policy prevented tool and die makers from locking or tagging out its mechanical presses when they worked inside the presses making adjustments and repairs, but rather, argues it lacked fair notice because the Secretary did not cite it for violating the LOTO standard following a 2010 OSHA inspection and “OSHA inspectors must cite violations they find.” The Court does not agree.
It is well-established that “an employer cannot rely on the failure of the Secretary to issue a citation for a particular condition during an earlier inspection as the basis for later arguing lack of knowledge of the same hazardous condition.” Wheeling-Pittsburgh Steel Corp., 16 BNA OSHC 1780, 1782 (No. 91-2524, 1994). “In essence, the mere fact of prior inspections does not give rise to an inference that OSHA made an earlier decision that there was no hazard, and does not preclude the Secretary from pursuing a later citation.”
In the Seibel case, the Commission noted it had previously “cautioned employers against freely drawing such inferences from uneventful inspections” since “an employer is required to comply with a standard regardless of whether it has previously been informed that a violation exists.” “These cases implicitly rule against deducing from uneventful prior inspections that particular operations are nonhazardous.” The Court concludes the Secretary has established the business had actual knowledge of the cited condition since, in lieu of using the LOTO procedures, the company’s own policy required the use of die blocks with its mechanical presses when tool and die makers worked inside the presses.
Preemption Claim
The business contends the LOTO standard does not apply to the cited mechanical presses because the “standard governing mechanical press die adjustment and repair displaces it.” The standard referred to by the business is the Mechanical Power Presses standard, which in relevant part mandates employers shall provide and enforce the use of safety blocks “whenever dies are being adjusted or repaired in the press.” 29 C.F.R. § 1910.217(d)(9)(iv). Therefore, the business argues “[t]he mechanical power press standard requires only pulling die blocks, and not § 1910.147 lockout, before making die adjustments and repairs inside presses.” In the Eleventh Circuit, a “general standard setting forth measures that an employer must take to protect employees from a particular hazard is not preempted by a specific standard unless that specific standard addresses the same particular hazard as the general standard.” The Court concludes the LOTO standard is not preempted by the Mechanical Power Presses standard.
An energy isolating device is “capable of being locked out if it has a hasp or other means of attachment to which, or through which, a lock can be affixed, or it has a locking mechanism built into it.” 29 C.F.R. § 1910.147(b).
An “affected employee” is “[a]n 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.”
An “authorized employee” is “[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.”
As the Commission as held, the language of the LOTO standard is ambiguous as to whether it applies to the cited mechanical presses, which are also governed by the Mechanical Power Presses standard. When the language of the standard fails to provide an unambiguous meaning, we look to the standard’s legislative history. The preamble to a standard is the most authoritative evidence of the meaning of the standard. The preamble to the LOTO standard states, “this standard focuses primarily on procedures — procedures that are necessary to provide effective control when dealing with potentially hazardous energy sources. Where current standards require the use of specific measures, those standards are supplemented and not replaced by the procedures and training requirements of this Final Rule.” 54 Fed. Reg. 36665 (emphasis added). “With regard to servicing and/or maintenance which takes place during ‘normal production operations,’ it is important to note that this standard is intended to work together with the existing machine guarding provisions of Subpart O of part 1910[.]” 54 FR 36644-01 (emphasis added). The preamble also states that it “supplements and supports the existing lockout related provisions contained elsewhere in the general industry standards by providing that comprehensive and uniform procedures be used for complying with those provisions” and further, it “does not conflict with their requirements” since those standards “provide limited coverage of machinery, equipment and industries and do not address lockout or tagout issues or methodology in any detail.” (emphasis added).
Significantly, the Commission has also held “that the LOTO standard protections prescribed for servicing and maintenance activities were designed to seamlessly dovetail with the machine guarding protections that apply during normal production operations under 29 C.F.R. Part 1910, subpart O.” Dayton Tire, 23 BNA OSHC at 1254. Thus, the Mechanical Power Presses standard provides more limited coverage than does the LOTO standard since the Mechanical Power Presses standard is silent on lockout or tagout methodology and the hazard or requirements for the utilization of specific procedures to control the unexpected start-up of the power presses. The Court therefore finds the LOTO standard provides meaningful employee protection beyond that afforded by the Mechanical Power Presses standard. Accordingly, the preemption argument is rejected, the LOTO standard applies, and the Secretary properly resorted to the LOTO standard to attempt to safeguard employees from the hazard of an unexpected start-up of the power presses not covered in the Mechanical Power Presses standard.
Fair Notice Claim
“Generally speaking, an employer cannot be held in violation of the Act if it fails to receive prior fair notice of the conduct required of it.” Thus, the business argues the Secretary failed to provide the business with fair notice the LOTO standard applied to its mechanical presses. Because it “was not given sufficient notice of the standard’s applicability to die adjustment and repair.” The Court does not agree. The Secretary’s intent to apply the LOTO standard to die changing is reflected in two Standard Interpretation Letters.
In a Standard Interpretation Letter issued April 22, 2005, the Secretary put employers on notice that “setting up” activities “by definition, involve work[s] that prepares a press to perform its intended normal production operation; therefore, this [minor servicing] exception generally would not apply to hydraulic and mechanical power press die-setting because the servicing activity is not taking place during NPOs.”
In another Standard Interpretation Letter issued December 28, 2006, the Secretary reiterated that “die-setting activities constitute servicing activities and are covered by the LOTO standard, i.e., pursuant to the definitions of “setting up” and “servicing and/or maintenance” contained in 1910.147(b).”
The Court concludes the Secretary’s interpretation of the LOTO Standard is consistent with the regulatory language and is reasonable. Therefore, the Court concludes the LOTO standard and the definitions therein indicate “servicing and maintenance” include die setting and adjusting within the setting up activities on the presses. Moreover, when the business received the citation, the Commission was in agreement with the Secretary’s interpretation.
The business clearly had notice since it developed and documented procedures for mechanical power presses at its facility. As the Secretary notes in his brief, and the Court agrees, in developing the procedures “it is evident that [the business] appreciated and recognized the hazards of stored energy sources with its mechanical power presses and the need to protect its employees from the hazard.” The business’s “Lockout Posted Procedure” stated that the purpose of the procedures was to establish “the minimum requirements for lockout whenever maintenance or servicing is done on equipment.”
The business’s LOTO procedures mirror the intent of OSHA’s regulation and require its procedures “be used to ensure that the machine or equipment is stopped, isolated from all potentially hazardous energy sources and locked out.” The business’s LOTO procedures also identified the different sources of energy and detailed the methods to be used to lockout and tagout each source of energy on the power presses. For example, in order to isolate power at the primary electrical disconnect for the power press, the knife switch was required to be placed in the “off” position and required a lock and tag be applied to the switch. Therefore, the business had sufficient notice of the application of the LOTO standard to the cited conditions prior to the instant inspection.
Vagueness Claim
The business also asserts if the LOTO standard does apply, it is “unconstitutionally vague as applied. It is overbroad. It exceeds the scope of statutory authority.” However, “a claim that a standard is vague is assessed not in the abstract, but in the particular factual context.” “Moreover, the [standard] will pass constitutional muster even though [it is] not drafted with the utmost precision; all that due process requires is a fair and reasonable warning.” Thus, the Commission has held “the challenged elements of the minor servicing exception are necessarily broad enough to cover the myriad servicing activities to which the LOTO standard might apply.
Moreover, the Court concludes, as the Commission did in Dayton Tire, that a reasonable employer “could determine what constitutes ‘effective’ alternative protection, given that the stated purpose of the LOTO standard is to prevent injury that could result from ‘unexpected energization or startup of the machines or equipment, or release of stored energy.” 29 C.F.R. § 1910.147(a)(1)(i).” Dayton Tire, 23 BNA OSHC at 1252. “This link to the standard’s purpose is reinforced by the exception’s cross-reference to ‘subpart O of this part,’ which prescribes machine guarding requirements… . As such, a reasonable employer could determine, based on knowledge of its employees’ specific servicing activities and the machines upon which they work, what alternative measures would achieve this purpose and, thus, provide effective protection.” Id. Therefore, the Court rejects the business’s vagueness challenge.
Classification
Finally, the Secretary classified the violation as serious. As indicated supra, a serious violation is one that carries a substantial probability that death or serious physical harm could result. Here, employees were exposed to the hazard of crushing and amputation injuries due to the business’s failure to require the use of LOTO procedures for its tool and die makers adjusting or repairing dies in its mechanical presses. Therefore, the violation was properly classified as serious. Thus, the Court concludes Item 1 should be affirmed.
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