Holy cow batman, have we really come to this in the safety profession?!?!?! An apprentice is crushed to death while standing inside (or technically under) a “machine” looking at some fans he was going to be working on, while the facility technician was performing the LOTO on “the machine”. To get this “machine” to the zero energy state, the technician had to release counter weights (e.g. release stored energy) which in turn killed the apprentice who happen to be standing under one of the counter weights when the energy was released. The ALJ found that since the contractor was intending to work on “the fans” inside/under “the machine” and since the apprentice was not killed by the fans he was inspecting at the time, that LOTO did not apply to the contractor being inside/under “the machine” and vacated the citation. The decision made it to the full commission review and the commission was split in their position so it defaulted back to the ALJ’s decision and the citation was vacated. How anyone could come to the conclusion that 1910.147 did not apply here is just amazing! Here is the case info – LESSON to be learned… Legal does equate to something being SAFE! I have posted BOTH decisions from the two commissioners, which one do you think was right?
After an employee was fatally struck by a several-ton counterweight at a steel mill, OSHA issued an Electrical Contractor a serious citation alleging a violation of the lockout/tagout (LOTO) standard, 29 C.F.R. § 1910.147(f)(3)(ii)(D). The judge vacated the citation, concluding that the requirements of the cited LOTO standard did not apply. On review, the two Commission members are divided regarding the applicability of the LOTO standard—the only remaining issue in this case. To resolve this impasse, the members agree to vacate the direction for review, thereby allowing the judge’s decision to become the final appealable order of the Commission, with the precedential value of an unreviewed administrative law judge’s decision. The separate opinions of the two participating Commission members follow.
Separate Opinion of Chairman Attwood that states LOTO (1910.147) does apply
This case is not novel. It rests on well-established legal principles underlying an employer’s obligation to follow the requirements of OSHA’s lock-out/tag-out (LOTO) standard to protect its own servicing and maintenance employees from the hazards of unexpected energization.
Factual Background
At the steel mill, a several-ton counterweight fatally struck an employee of the electrical contractor company. OSHA issued the electrical contractor company a serious citation under a provision of the LOTO standard, 29 C.F.R. § 1910.147(f)(3)(ii)(D), based on the company’s alleged failure to ensure that its employees affixed their lockout devices to a group lockbox before performing maintenance work.
The mill processes scrap metal into steel components used in construction. It melts and recasts the metal and sends it through a rolling mill, which produces individual pieces of steel called “billets.” The billets, which have been heated to 1600 degrees, are then sent across a 325-foot-long and 100-foot-wide “cooling bed.” A series of grooved metal rakes move up and down to “walk” the billets across the bed while 110 rotary fans—bolted to a rail 4 to 6 inches below the rakes—blow air across the billets to cool them. The rakes are moved by counterweights (attached to rotating shafts, drive chains, gear boxes, and large drive motors) weighing several tons each. The counterweights make 360-degree, clockwise revolutions and are located on the underside of the cooling bed in an area known as the “basement,” along with the fans, drive motors, chains, rotating shafts, gear boxes, and other cooling bed components. The cooling bed basement has a lighted, designated walkway down its center, demarcated by chains strung along both sides, that the mill uses when it inspects the underside of the cooling bed. The walkway is the only safe place in the basement when the cooling bed is operating.
On the day of the accident, the cooling bed had been shut down, and the electrical contractor company was planning to replace the final three of the seventeen fans the mill hired it to service. The other fans had been replaced by the same electrical contractor company on two previous occasions. That morning, one of the mill’s cooling bed maintenance technician told the contractor leadman on the project that he would, pursuant to the mill’s mandatory LOTO procedure and consistent with his actions on the two prior occasions, lock out the cooling bed and meet the contractor leadman near the basement’s north entrance where the group lockout box was located. According to the administrative law judge, the maintenance technician was gone for less than 40 minutes. During that time, the contractor leadman complied with the mill’s contractor requirement to fill out a mill work authorization permit. But he failed to wait, as required, for the mill’s technician to complete the lockout process — lock out the cooling bed; place key(s) to the locked-out cooling bed components in the lock box; place personal lock on the box; and sign the form verifying that the lockout procedure was complete and the contractor’s work could begin. And neither the contractor leadman, nor any of the contractor employees he supervised that day, affixed a personal lock to the group lock box, another step the mill required. The contractor leadman, who knew lockout had not been completed, and a contractor apprentice then entered the basement, left the designated walkway, and walked about 24 feet into the workings of the cooling bed to the area where the fans were located. Unaware that the two contractor employees were in the basement, the mill’s technician started the cooling bed lockout procedure, which required relieving the stored energy in the counterweights by moving them to their deenergized position. When he did so, one of the counterweights fell from its resting position of one o’clock to its de-energized position of six o’clock, fatally striking the apprentice and coming within inches of hitting the contractor leadman.
The judge vacated the citation, concluding that the requirements of the cited LOTO standard, 29 C.F.R. § 1910.147(a)(1)(i), do not apply because “[contractor’s] servicing and maintenance work was only on the fans,” the “injury… resulted from an… adjacent counterweight,” and “[t]here [wa]s no… expos[ure] to the unexpected energization or release of hazardous energy from the fans.” In addition, the judge found that the “[contractor] employees were not engaged in servicing and maintenance work” at the time of the accident because they were simply “in the basement [to] discuss[] their… work on the fans.”
Discussion
This case poses a simple question — what “machine” was being serviced?
The LOTO standard applies to “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). Its purpose is to protect those employees who are engaged in servicing and maintenance and others who are in the vicinity. The factual record in this case demonstrates that the electrical contractor company employees were servicing a complex machine, the cooling bed, that necessarily contains many component parts, including fans, rakes, drive chains, motors, rotating shafts, and counterweights. Thus, contrary to the judge’s analysis and that of my colleague, before servicing of the cooling bed’s fans could begin, lockout was required of all cooling bed components because the cooling bed posed LOTO hazards to the workers performing the servicing. And this included the several-ton counterweight at issue—which no one disputes contained stored energy that, when released, caused it to fall and fatally strike the electrical contractor company apprentice employee.
“Machine” is commonly defined as “an apparatus, made of organized, interacting parts, which takes in some form of energy, modifies it, and delivers it in a more suitable form for a desired function.” The New Lexicon Webster’s Dictionary of the English Language 595 (1987). Consistent with this definition, the LOTO standard’s preamble contemplates that “machines” will have myriad “parts,” and recognizes that “[o]nce [a] machine… has been stopped, there remains the potential for employee injury from the unanticipated movement of a component of the machine…” Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36,644, 36,647 (Sept. 1, 1989) (final rule) (emphasis added).
This fundamental concept of a machine being made up of component parts is also reflected in one of the preamble’s examples of accidents “typical of these [LOTO] hazards and demonstrat[es] the applicability of the pertinent provisions in the final standard”:
The hogger had been shut down, but the conveyor feeding the hogger had not been. The employee climbed onto the machine, fell onto the conveyor, was pulled into the hogger opening, and was fatally crushed. 54 Fed. Reg at 36,646. In this example, an employee was working on one machine component, a hogger, when another component, a conveyer, which could independently move materials without the hogger operating, caused the injury. OSHA considered these components part of a single “machine” for LOTO purposes.
As noted above, the cooling bed also has a number of component parts, and they are even more interconnected than those in the preamble’s example. These include rakes, counterweights, and fans that are not only physically connected to the cooling bed but are also functionally integrated to simultaneously interact and accomplish a single goal, the cooling and moving of steel billets. Indeed, the cooling bed cannot achieve its function unless the rakes, motors, drive chains, rotating shafts, counterweights, and fans are operating simultaneously. These components serve no useful purpose if operated independently of one another, there is no point in moving hot steel billets with the rakes, counterweights, and other component parts if the fans are off, and likewise no point in running the fans if the counterweights are not rotating to move billets across the rakes. This fact is echoed by the mill’s cooling bed maintenance technician, who described the machine as follows:
“Basically, you have the hot [metal] bars [billets] leaving the rolling mill. [The metal] comes down on a series of rolls. Then, it’s kicked down onto what we call the rakes. The rakes, as the bars progressively add up to the cooling bed, it walks them across the bed, cools them underneath with air [from the fans], and then they go to the transfer chains on the other side of the bed and transfer it off, and then another roller conveyor into the straightener where they’re straightened.”
Additionally, the mill’s safety manager testified that the cooling bed components “act as one unit” and were “all part of one big system,” and he further stated that “[t]he [other cooling bed] equipment overlaps in so many different ways with the fans,” such that “[b]asically the equipment acts as one.” As one machine, it comes as no surprise that the mill’s practice, which the electrical contractor company was required to follow, is to lock out the entire cooling bed whenever maintenance is performed on any one of its components. In fact, the fatality here occurred when the mill’s cooling bed maintenance technician was in the process of de-energizing/locking out the cooling bed’s counterweights and other components so that the contractor employees could safely enter the cooling bed basement, leave its designated walkway (the only safe place in the basement), and access the cooling bed’s fans. Both the testimony of the mill’s employees and its own lockout procedure plainly demonstrate that the cooling bed is a single “machine[].”
The contractor, noting the cooling bed’s size and complexity, would have the Commission hold that the bed is nothing more than a collection of many “machines,” when, in fact, the size and complexity of the cooling bed counsels in favor of it being one “machine.” Applying the LOTO standard only to small machines with few parts would have the absurd result of precluding its application where the hazard of unexpected energization may be greatest. See Unarco Commercial Prods., 16 BNA OSHC 1499, 1502 (No. 89-1555, 1993) (“It is well established that a . . . standard must be construed so as to avoid an absurd result.”). As the Commission has consistently acknowledged, the LOTO standard addresses “complex equipment… serviced and maintained by numerous employees extending across multiple workshifts,” particularly in the group LOTO context, as was the case here. Exelon Generating Corp., 21 BNA OSHC 1087, 1089 (No. 00-1198, 2005). In other words, the “more complex” the machine, the “more comprehensive [the LOTO] procedures may need to be.” 29 C.F.R. § 1910.147 app. A. See also Gen. Motors Corp., 22 BNA OSHC 1019, 1027 (No. 91-2834E, 2007) (consolidated) (noting inadequacy of LOTO procedure for “the plant’s more complex equipment,” which included “very complex machines” one of which—the “machine” at issue— “contained ‘15 or 16 automatics, 165 weld guns, probably 300 limit switches [and] over 150 disconnects,’ and for which at least four safety locks were necessary to lock it out.”) (quoting case record); Dayton Tire, Bridgestone/Firestone, 23 BNA OSHC 1247, 1258-59 (No. 94-1374, 2010), aff’d in relevant part, 671 F.3d 1249 (D.C. Cir. 2012) (noting the extraordinary complexity of the machines to which LOTO applied, which were various sizes and configurations and contained different combinations of energy sources).
A fundamental purpose of the LOTO standard is to eliminate the unexpected energization or release of stored energy that results when one employee is unaware of another employee’s presence within a machine, a circumstance OSHA has determined to be more likely to occur with machines that are larger and more complex:
An accident can… occur when another person who is not necessarily involved with the maintenance or servicing operation causes the activation of the machine or equipment being serviced. This can occur when a person… starts it, without knowing someone else is performing maintenance or service on it. This… type of accident is more apt to occur when the machine or equipment is large and/or complex, and the employee who is conducting the servicing activity is at a part of the system which is some distance from or not visible from the controls. 54 Fed. Reg. at 36,647-48 (emphasis added); see also 54 Fed. Reg. at 36,648, 36,679 (stating that “when the machine or equipment is large and/or complex,… [t]he generally accepted best means to minimize the potential for inadvertent activation is to ensure that all power to the machine or equipment is isolated, locked or blocked,” and further referencing “large machine[s] or complex system[s] of equipment”). Here the size, configuration, and complexity of the cooling bed required the contractor’s employees to enter the basement and leave the designated walkway to access the fans. This put them out of sight of mill technician, who was preparing to lock out the counterweights and other component parts. As the record shows, the mill technician, “couldn’t . . . keep [his] eye” on the cooling bed while performing the lockout procedure in various locations in and around it. And he did not know where the contractor employees were during this time, thus exposing them to the hazards posed by the stored energy in the counterweights, as well as the hazards posed by the possible activation of the other cooling bed component parts for which the LOTO process had not yet been completed.
The contractor, along with my colleague, also argues that characterizing the cooling bed as one machine for LOTO purposes would “wreak havoc” by “reducing entire factories to fictional ‘single units,’ …[under] a stretch-to-fit ‘gotcha’ theory.” This, frankly, is preposterous. The cooling bed rakes, motors, drive chains, rotating shafts, counterweights, and fans are physically and functionally integrated in the same sense as the components of an engine or any other device traditionally understood to be a “machine.” To properly cool steel billets, the rakes must move up and down in a coordinated fashion, which they cannot do unless the counterweights move beneath them. At the same time, the fans—of which there are more than 100 interspersed among these other components—must blow the requisite volume of air through the rakes and across the billets to facilitate cooling. By contrast, the mere fact that the contents of a factory all contribute in some way to the manufacture of products is hardly sufficient to make them a single “machine” for LOTO purposes. Dayton Tire, 23 BNA OSHC at 1258-59 (affirming citation for failure to have machine-specific LOTO procedures for each of the types of extraordinarily complex yet distinctly different machines located in employer’s tire manufacturing plant). Indeed, in a factory with lathes, milling machines, and drill presses, each machine is neither physically nor functionally integrated with the others, in fact, one can be used while others are idle. And it is by no means (as my colleague puts it) “impossible to discern where a machine begins and ends”— the mill had no problem discerning the beginning and end of the cooling bed when it required lockout of the entire machine in order to service the fans; nor did the mill find it necessary to shut down and lockout the entire mill in order to perform maintenance on the cooling bed.
Finally, the Secretary’s interpretation of what constitutes a “machine” under the LOTO standard has been entirely consistent over time. An OSHA memorandum from 1999 distinguishes between an “interconnected… machine”, to which LOTO applies, and “adjacent machine[s]… in the normal production mode of operation”, to which the machine guarding standard applies. Memorandum from Richard E. Fairfax, Director of Compliance Programs, to Michael Connors, Regional Administrator (Oct. 5, 1999). OSHA’s enforcement directive for the LOTO standard makes the same distinction, stating that the “standard does not apply to equipment or machinery that is not the subject of the servicing and maintenance activity and that functions independently from, and is not a sub-system of, the machine/equipment being serviced or maintained.” OSHA Instruction CPL 02-00-147, Feb. 11, 2008, Chap. 1 at 10 (emphasis added).
Here, as discussed, the counterweights, rakes, rotating shafts, drive chains, gear boxes, large drive motors, and fans serve no useful purpose if operated independently of one another. They all operate as sub-systems of the cooling bed.
In light of the foregoing, I would conclude that the Secretary’s interpretation of § 1910.147(a)(1)(i) here, that the cooling bed was the pertinent “machine”, is reasonable and entitled to deference. See Martin v. OSHRC [“CF&I Steel Corp.”], 499 U.S. 144 (1991) (holding that deference is accorded to Secretary’s reasonable interpretation of ambiguous OSHA regulation); Union Tank Car Co., 18 BNA OSHC 1067, 1069 (No. 96-0563, 1997) (stating that the Commission “must defer to the Secretary’s reasonable interpretation of an ambiguous regulation that otherwise sensibly conforms to the purpose and wording of the regulation, taking into account whether the Secretary has consistently applied the interpretation embodied in the citation . . . .”) (internal quotation marks and citation omitted).
The only remaining question is whether the contractor’s work at the time of the alleged violation constituted “servicing and maintenance.” 29 C.F.R. § 1910.147(a)(1)(i). The standard defines “[s]ervicing and/or maintenance” as follows:
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. 29 C.F.R. § 1910.147(b).
The contractor acknowledges in its brief on review that its employees were “view[ing] the fans they were going to replace… to see where the last worker had stopped working on the fan wiring so [they] could know where to start.” And the contractor leadman agreed that looking at the fans to see where the last worker had left off was a “necessary” and “integral part of the job.” Thus, the contractor’s employees were “inspecting”, that is, “view[ing] closely in critical appraisal,” and “examin[ing] formally, e.g. for completeness or quality”, the cooling bed. Webster’s New Collegiate Dictionary 592 (1979); The New Lexicon Webster’s Dictionary of the English Language 501 (1987); Gen. Motors Corp., 22 BNA OSHC at 1041-42 (holding that “observing or inspecting equipment when it is stationary” is a servicing and maintenance activity to which LOTO applies, and affirming violation for failure to utilize LOTO when exposed employee was performing servicing and maintenance activity while equipment was stationary and for which deenergization and use of LOTO were possible but not used). I agree with the Secretary’s statement in his brief on review that this type of “visual observation of equipment that is reasonably related to hands-on servicing and maintenance, and puts employees within the zone of danger… constitutes ‘inspecting’ activity within the meaning of” the LOTO standard.
In these circumstances, the LOTO standard requires following a mandated sequence of “elements and actions”: machine shutdown, energy isolation; application of the necessary lockout devices; restraint and rendering safe any hazardous stored or residual energy; and verification that the isolation and deenergization of the machine is complete. 29 C.F.R. §1910.147(d)(2)-(6); see Gen. Motors Corp., 22 BNA OSHC at 1040-41. As noted, however, the contractor’s leadman did not obtain the mill’s required verification that the lockout procedure was complete, nor did he affix his lock to the group lockbox, as the standard requires. Accordingly, the contractor was in violation of the standard’s requirements.
For all of the foregoing reasons, I would find that the LOTO standard applies here, and I would affirm the serious citation item at issue and assess the $7,000 proposed penalty.
Separate Opinion of Commissioner MacDougall
My colleague’s separate opinion misreads the LOTO standard to the extent new obligations would be created for employers that the standard does not impose or contemplate. By her assertion right from the start that “Action’s employees were servicing a complex machine, the cooling bed, that necessarily contains many component parts,” the opinion charts a pathway to a pre-ordained result. Its fundamental flaw is that Action’s employees were not servicing the cooling bed; indeed, another contractor was hired to do so at the same time Action was engaged in its work—on the fans only. For the reasons detailed below, I would agree with the judge that the cited standard is inapplicable and, thus, vacate this citation item.
Factual Background
The mill operates a steel rolling mill where scrap metal is recast into structurally useful forms. The contractor was working as a contractor at the mill when a fatal accident involving one of its employees occurred. As part of the recasting process at the mill, steel is melted and formed into “billets”, lengths of metal, which then travel across a “cooling bed.” The cooling bed is approximately 325 feet long and 100 feet wide with a series of grooved metal rakes that move up and down to “walk” the billets across the bed. The rakes are moved by counterweights, spaced about every 15 feet along the length of the cooling bed, which weigh several tons each. The rake counterweights make 360-degree, clockwise revolutions and are located beneath the cooling bed in an area known as the “basement,” along with drive motors, rotating shafts, gear boxes, and other devices. When production is shut down, the counterweights will be raised to a one o’clock position, but when the cooling bed machines are de-energized for lockout, the counterweights rotate down to the six o’clock position. Spread out along the west side of the cooling bed and bolted to a rail four to six inches below the rakes, are 110 rotary fans, which blow air across the billets to expedite cooling. The mill hired the electrical contractor to service and replace the fans, as needed.
The basement has a designated walkway down its center, partially demarcated by rope chains strung along both sides, that the mill normally uses when it inspects the underside of the cooling bed. The walkway is accessed by proceeding through an unlocked gate. Gerdau had no machine guarding on the counterweights, and while it sought to limit exposure by restricting access to the area beneath the cooling bed, its written LOTO procedure for the cooling bed does not require verifying that no one is in the zone of danger presented when the counterweights drop during the lockout process. Nor does the written procedure mention the fans.
When the plant is shut down for large scheduled repairs and maintenance, as it was on the day of the accident, the mill locks out the cooling bed. The mill’s LOTO procedure permits only its own “authorized” employees to lock out the cooling bed because, according to the mill’s Safety Manager, contractors “are not familiar with the equipment.” The mill did, however, permit contractors, including the contractor involved in this fatality, to lock and unlock a single power source on equipment on which they were working, such as the fans. For example, on previous days during the course of this project, the contractor did not lockout the cooling bed per the mill’s policy prohibiting it from doing so, and the mill locked out everything but the fans, leaving those unlocked so that the contractor could test the repairs as its work progressed.
On the morning of the accident, the mill’s cooling bed maintenance technician told the contractor leadman on the project that he would meet the leadman at the basement’s entrance after locking out the cooling bed. The mill’s maintenance technician, however, got diverted on unrelated matters for about 50 minutes and then began the lockout procedure for the cooling bed, which normally takes about 20 minutes. When the maintenance technician began the lockout, he did not know where the contractor employees were and admitted that he could not have seen them if they were underneath the cooling bed; nor did he require the contractor employees to be present for the lockout so that they could witness the shutdown and isolation of necessary energies and the verification process. After meeting with the mill’s maintenance technician, the contractor leadman and an apprentice proceeded to the basement to view the area where the remaining fans were to be replaced. Prior to entering the basement, the contractor leadman filled out a mil work authorization permit, a form required of all mill contractors. However, because its leadman, the contractor contends, did not believe that they had begun work on the fans by viewing them from the basement, he did not have the mill’s maintenance technician sign the work permit to verify that the lockout procedure was complete and the contractor’s work could begin, nor did he or the apprentice affix their locks to the group lockbox, both steps the mill also required before work could begin. Once in the basement, the contractor leadman and apprentice left the walkway, as the contractor leadman had previously done with the mill’s technician, and walked to the area where the fans were located. The contractor leadman and apprentice had no tools or equipment with them. Unaware that the two contractor employees were in the basement, the mill’s technician started the cooling bed lockout procedure. When he did so, one of the counterweights fell from its resting position of one o’clock to its de-energized position of six o’clock, fatally striking the contractor apprentice and coming within inches of hitting the contractor leadman. The contractor does not dispute that while the employees were discussing their work on the fans, the counterweights fell because of the release of stored energy during the process of locking out the cooling bed.
Discussion
The Secretary issued the contractor a citation alleging that it violated 29 C.F.R. § 1910.147(f)(3)(ii)(D) by failing to affix personal lockout or tagout devices on the group lockbox before its employees began servicing work on the fans. While there is no dispute that the work the contractor was engaged to do—repairing and/or replacing the fans—constitutes servicing and maintenance work, see § 1910.147(b) (definition of “servicing and/or maintenance” includes “constructing” and “installing”), what is in dispute is the LOTO standard’s application to the activities of Action’s employees at the time of the accident.
On review, the contractor reiterates the argument it made before the judge, that the LOTO standard is inapplicable here because the cooling bed was not the “machine or equipment” that the contractor was to service. Further, the contractor contends that even if the cooling bed and fans were viewed as one machine, its employees were performing no covered work, service or maintenance, when the accident occurred but were only viewing the area where the work was to be performed. It is the Secretary’s position that under the LOTO standard the cooling bed includes not only component parts, such as the rakes, motors, rotating shafts, gear boxes, and counterweights, but also the fans, constituting a single, integrated operating system. The Secretary asserts, under this theory, that the cooling bed and fans are components of a single machine; thus, because the contractor was to work on the fans, its “authorized” employees were responsible for affixing their locks to the group lockbox of the entire cooling bed, including the counterweights and fans. On the second issue, the Secretary contends that, given his theory that the cooling bed and fans are a single machine, the contractor’s activities at the time of the alleged violation constituted “servicing and maintenance” work because “visual observation of equipment that is reasonably related to hands-on servicing and maintenance, and puts employees within the zone of danger… constitutes ‘inspecting’ activity” within the meaning of the LOTO standard.
The judge rejected the Secretary’s argument that the cooling bed and fans operated as a single, integrated system; rather, he found that they operated independently and were subject to separate lockouts. Further, he found that the contractor had not violated the LOTO standard with respect to the fans to be serviced on the day in question because service or maintenance work on these fans had not begun when the accident occurred; so, the contractor’s employees could not have been exposed to the unexpected energization or release of hazardous energy from the fans. Therefore, the judge concluded that the Secretary had failed to prove that the cited standard applied and vacated the citation.
I. The LOTO Standard Applied Only to [the contractor’s] Work on the Fans.
The scope provision of the LOTO standard states that “[t]his 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). The LOTO standard further provides in § 1910.147(a)(2) that “[t]his standard applies to the control of energy during servicing and/or maintenance of machines and equipment.” Thus, the predicate issue for determining applicability is whether the cooling bed and fans constitute one machine. My colleague’s desire to reach a preordained result is evident by her constant and not-so-subtle references to the “machine” in question as the cooling bed. Repeatedly signaling her conclusion before conducting the necessary analysis is the epitome of putting the cart before the horse.
The LOTO standard does not define “machine.” The dictionary definition of “machine” is “an apparatus, made of organized, interacting parts, which takes in some form of energy, modifies it, and delivers it in a more suitable form for a desired function.” The New Lexicon Webster’s Dictionary of the English Language 595 (1987). In order to meet the “machine” requirement for applicability, the Secretary bundles an entire process, the cooling and transporting of hot steel, using a series of machines and procedures, into a “single integrated system.” However, this novel “single integrated system” theory is not found anywhere in the LOTO standard, its preamble, or subsequent publications related to the standard.
The Commission previously faced the issue of what constitutes a “machine” under the LOTO standard in Timken Co., 20 BNA OSHC 1070 (No. 97-970, 2003). In Timken, a steel plant employee was repairing a drive bar on a teeming car, which is a railroad type of car. The teeming car was designed to transport steel from various points in the plant with the assistance of a traverser, an independent motorized unit with railroad tracks on top of it that allowed teeming cars to move from slots onto the traverser. The Timken employee was injured while servicing the teeming car when a traverser moved past the slot where the employee was working and amputated her right foot and the toes of her left foot. The teeming car was locked out but the traverser was not. The Secretary cited Timken for a serious violation of the LOTO standard for failing to require lockout of the traverser while repairs were made to teeming cars. The Secretary argued that the traverser and the teeming car were part of the same piece of equipment. The judge and Commission disagreed. While two Commissioners agreed in Timken that the LOTO standard did not apply, they could not agree on the appropriate disposition of the case on the merits. Thus, the Commission vacated the direction for review, leaving the judge’s decision as unreviewed, with no precedential effect.
Still, the separate opinions in Timken are instructive regarding what constitutes a “machine” within the meaning of the LOTO standard. In Timken, in finding the Secretary’s interpretation unreasonable, then-Commissioner Rogers highlighted a 1999 OSHA memorandum based on a factual scenario substantially similar to those present in Timken, which cast doubt on the consistency of the Secretary’s interpretation in that case regarding the LOTO standard’s applicability. 20 BNA OSHA at 1073 (citing Memorandum from Richard E. Fairfax, Director, OSHA Directorate of Compliance Programs, to Michael Connors, Regional Administrator (Oct. 5, 1999), available at http://www.osha.gov). Specifically, the memorandum stated: “[T]he machine guarding Subpart O requirements would apply in the scenario where an authorized employee is performing servicing or maintenance activities on one machine and is exposed to machine hazards from an adjacent machine or piece of equipment in the normal production mode of operation.” Id. Then-Chairman Railton similarly reasoned that the LOTO standard was inapplicable because the traverser and teeming cars “functioned independently” and were “not part of the same equipment.” Id. at 1072, 1076. Both Chairman Railton and Commissioner Rogers determined that the traverser and the teeming cars operated independently, highlighting that the traverser was not fixed nor permanently attached to the teeming car and that the sole function of the traverser was to transport the teeming cars. In sum, in Timken, both Commission members drew an important distinction between the function of an entire plant, in which many components may work together or in a series to produce a product, and systems within a plant that function independently and can be separately locked out for service and maintenance.
Following Timken, OSHA issued Directive CPL 02-00-147, which states, in relevant part:
BB. Servicing and/or maintenance. Workplace activities such as constructing, installing, setting up, adjusting, inspecting, modifying, maintaining and/or servicing machines or equipment. These activities include lubrication, cleaning or un-jamming of machines or equipment and making adjustments or tool changes, where the employee may be exposed to the unexpected energization or start-up of the equipment or release of hazardous energy… .
NOTE: Activities where servicing and/or maintenance activities are not being performed on the associated machines or equipment are not covered by the LOTO standard. For example, some rescue activities may basically involve the removal of persons (e.g., elevator rescue) without any equipment disassembly or servicing… .
Also, the standard requires employers to establish an energy control program to control hazardous energy that otherwise might injure or kill employees who service or maintain machines/equipment. However, the LOTO standard does not apply to equipment or machinery that is not the subject of the servicing or maintenance activity and that functions independently from, and is not a sub-system of, the machine/equipment being serviced or maintained. If authorized employees are exposed to hazardous energy associated with such an adjacent machine/piece of equipment while performing servicing/maintenance work on an independent, unrelated machine/piece of equipment, an employer’s obligations are established by Section 5(a)(1) of the OSH Act or other relevant standards, such as the Machine guarding (Subpart O) requirements. See The Timken Company (OSHRC Docket No. 97-0970, 2003).
OSHA Instruction CPL 02-00-147, Feb. 11, 2008, Chap. 1 at 10 (emphasis added). Thus, in light of Timken, OSHA’s directive clarifies that maintenance or servicing of “associated machines or equipment” is not covered by the LOTO standard.29 The directive specifically cites Timken and unambiguously states that “the LOTO standard does not apply to equipment or machinery that is not the subject of the servicing and maintenance activity and that functions independently from, and is not a sub-system of, the machine/equipment being serviced or maintained.” Id. OSHA also reiterates that the LOTO standard is intended to supplement the guarding standards. Id.
Despite what OSHA states in its directive, the Secretary repeats the errors of Timken here and again attempts to blur the line between a “single piece of equipment” and an “adjacent, independent machine” by coining a new phrase for his theory—a “single integrated system.” Like the judge, I would find that relying on this theory for the application of the LOTO standard in this case is unreasonable. Similar to the traverser and teeming cars in Timken, the fans and counterweights at issue here operate independently and are not directly connected or attached to each other. The fans have no electrical or hydraulic connection with the rakes, counterweights, drive shaft, drive motors, or chains of the cooling bed. For example, there are no electrical connections between the drive chains that move the rakes up and down and the heated metal across the bed and the fans—connections that, for example, turn the fans on when the drive chains turn on. To lock out the fans, according to the mill’s cooling bed maintenance technician, “[a]ll you’ve got to do to turn the power off on the fans is to throw those knife switches and lock them out.”
At the fan’s disconnect, there is a place to put the lock. Unsurprisingly, this step is not included in mill’s written procedure for locking out the cooling bed. Indeed, the fans and counterweights serve very different purposes: the sole function of the counterweights is to move the rakes, which in turn move the billets; the sole function of the fans is to circulate air.32 In sum, the fans and counterweights cannot be interconnected components constituting a single machine, and so I would conclude that the Secretary’s interpretation of “machine” in this case is not reasonable and, therefore, not entitled to deference.
The preamble to the LOTO standard further supports the conclusion that the LOTO standard is not a one-size-fits-all solution for citing hazards from energized machinery. The preamble provides:
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 existing machine guarding provisions of Subpart O of part 1910, primarily §§ 1910.212 (general machine guarding) and 1910.219 (guarding of power transmission apparatus). When a machine is used for production, § 1910.212 requires that the point of operation be guarded. For example, when an employee is using a table saw to cut wooden parts, the employee would be protected by guards around the blade of the saw. If the employee needs to reach into the point of operation in order to adjust the work piece as part of the production process, § 1910.212 requires that the guarding protection be maintained. As long as guarding is not removed or bypassed, the lockout/tagout standard is not intended to apply to these types of situations. By contrast, using the same table saw, it may be necessary for the employee to remove a piece of wood which has become jammed against the blade of the saw. In doing so, the employee might need to bypass or remove the guard on the saw and reach into the point of operation. Although this action takes place “during” normal production operations, it is not actually production, but is servicing of the equipment to perform its production function. When such servicing may expose the employee to the unexpected activation of the machinery or equipment, or to the release of stored energy, this Final Rule will apply. If the servicing is performed in a way which prevents such exposure, such as by the use of special tools and/or alternative procedures which keep the employee’s body out of the areas of potential contact with machine components or which otherwise maintain effective guarding, this standard will not apply. Thus, lockout or tagout is not required by this standard if the employer can demonstrate that the alternative means enables the servicing employee to clean or unjam or otherwise service the machine without being exposed to unexpected energization or activation of the equipment or release of stored energy. Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36,644, 36,647 (Sept. 1, 1989).
The preamble emphasizes that the LOTO standard was not intended to cover every situation where there is a risk of unanticipated release of stored energy and did not repeal, but rather was intended to supplement, the machine guarding standard and the general duty clause. Extending the language of the LOTO standard to a “single, integrated system,” when there are separate, independent pieces of equipment or machines, is contrary not only to the language of the standard but to the intent of the standard as expressed in its preamble.
In this case, “the LOTO standard does not apply to equipment or machinery that is not the subject of the servicing and maintenance activity and that functions independently from, and is not a sub-system of, the machine/equipment being serviced or maintained.” See OSHA Instruction CPL 02-00-149, Chap. 1 at 10. The counterweights were not the “subject of the servicing and maintenance activity” undertaken by Action, and they “function[ed] independently from, and [were] not a subsystem of, the machine/equipment [the fans] being serviced or maintained.” I would therefore find that the cited LOTO standard did not apply.
It is true that overlapping hazards can arise from adjacent, but independent, pieces of machinery. Indeed, the LOTO standard contemplates numerous protections, including guarding and multiple lockouts that may need to occur to safely perform work—without turning complex, albeit separate machines, into a single machine. See 54 Fed. Reg. at 36,682 (discussing 29 C.F.R. § 1910.147(f)(4) and recognizing that “servicing of some complex equipment may take days or weeks, and that in some cases, hundreds of lockout or tagout devices may be necessary”); cf. Drexel, 17 BNA OSHC at 1913 (“Because the standard requires the lockout procedures for each type of machine to be specifically defined, and because there are different types of machines at the plant, [respondent] must have more than one lockout procedure.”). This case is not about the indisputable proposition that an employer has a duty to protect employees under all applicable standards; rather, it is about whether a specific standard applies in the first place. See Se. Contractors, Inc., 1 BNA OSHC 1713, 1716 (No. 1445, 1974) (Moran, Chairman, dissenting) (“[T]here can be no violation of the Act by a respondent for failure to comply with a standard which charges some other employer with the duty of implementing the standard.”), dissent adopted on appeal, 512 F.2d 675 (5th Cir. 1975) (per curiam); see also Unarco Commercial Prods., 16 BNA OSHC 1499, 1499 (No. 89-1555, 1993) (vacating citation based on plain language of standard, and stating 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 applicability is questioned”) (citations omitted).
Moreover, the notion that separate machines, like the fans and counterweights, which completely lack any physical, hydraulic, or electrical connection, should be considered one machine for LOTO purposes obliterates the language of the LOTO standard, as well as the interplay between LOTO and the guarding of adjacent machines, which the standard already considered and the Secretary addressed in his post-Timken guidance. Additionally, this notion is unworkable. For example, an automobile plant consists of hundreds of machines. Like the cooling bed and fans in this case, many of those machines have no physical, hydraulic, or electrical inter-connection. However, they are all used to produce car components and, ultimately, cars. Under the Secretary’s single integrated system theory, it is impossible to discern where a machine begins and ends. Are all the machines connected by a conveyor system that builds the car a single integrated system? Or are the machines connected by a conveyor system that builds just the doors of a car a single integrated system? Under the Secretary’s theory, any of these could be a single integrated system as, according to the Secretary, “they’re all part of one big system.”
Action rightly states that this approach would “wreak havoc… by reducing entire factories to fictional ‘single units,’ dumping the existing [regulatory] scheme which pairs specific hazards with specific requirements in favor of a stretch-to-fit ‘gotcha’ theory.” In this case, the Secretary chose to issue a single LOTO citation for all the machines he claims made up the cooling bed. However, in Dayton Tire, 23 BNA OSHC 1247 (No. 94-1374, 2010), aff’d in part, rev’d in part, 671 F.3d 1249 (D.C. Cir. 2012), the Secretary cited Dayton on a per-machine-type basis under § 1910.147(c)(4)(i), the LOTO standard’s energy control procedure provision, because the separate machines were “differently configured, ha[d] multiple energy sources, or [were] particularly complex.” Id. at 1258 (noting that Dayton’s single LOTO procedure “was particularly ineffective for employees attempting to utilize LOTO before servicing the particular piece of equipment at issue” and noting seven different complex machines that were differently configured). Utilizing his new single integrated system theory, the Secretary now wants to claim that multiple pieces of equipment at a worksite constitute either a single-integrated machine or separate types of machines, leaving the regulated community with no way of knowing what the Secretary will identify as a machine.
An employer lacking fair notice of a standard cannot be found in violation of the Act for failure to comply with that standard. See, e.g., S.G. Loewendick & Sons, Inc. v. Sec’y of Labor, 70 F.3d 1291, 1297 (D.C. Cir. 1995) (“Congress and the courts require that agency action reflect clear, rational decision making that gives regulated members of the public adequate notice of their obligations.”); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-39 (6th Cir. 1978) (“[S]tatutes and regulations which purport to govern conduct must give an adequate warning of what they command or forbid.”); Cardinal Indus., 14 BNA OSHC 1008, 1011, (No. 82-427, 1989); Lisbon Contractors, Inc., 11 BNA OSHC 1971, 1974 (No. 80-97, 1984) (“A construction of a standard that bears no reasonable relationship to the standard’s plain words cannot be expected to guide employers in their conduct.”). In my view, the Secretary’s “single integrated system” theory does nothing to guide employers or employees through the lockout process. In light of its dubious legal foundation, if the citation had been affirmed here, the single integrated system theory would have far reaching consequences that could afford the Secretary almost unfettered discretion as to the breadth of the LOTO standard, thereby eliminating fair notice to the regulated community.
II. [The contractor’s] Employees Were Not Engaged in Servicing or Maintenance
Because I would agree with the judge that the fans were not part of a single “machine or equipment” that includes the cooling bed, there is no need to reach the issue of whether the contractor employees were engaged in service or maintenance work at the time of the accident. However, even if I were to disagree with the judge on the predicate issue, I would find that viewing the fans from basement was not “servicing or maintenance” work covered by the LOTO standard. The irrationality of the first part of the Secretary’s analysis, determining what is a machine, figures prominently in assessing whether such work occurred. Because of the Secretary’s unreasonably broad view of “machine,” simply looking at a fan becomes servicing or maintenance—or as the Secretary posits, “visually observing.” Again, using the auto assembly line as an example, when does “visually observing” a line become service or maintenance? Under the Secretary’s theory, anytime an employee is looking at the line, he or she is in the zone of danger sought to be protected by the LOTO standard.
Rather, the LOTO standard “covers the servicing and maintenance of machines and equipment,” 29 C.F.R. § 1910.147(a)(1)(i), and defines “[s]ervicing and/or maintenance” as follows:
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.
29 C.F.R. § 1910.147(b) (emphasis in original). Nowhere can “visually observing” be found in the definition of “servicing and/or maintenance.” In attempting to fit within one of the examples included in the definition, the Secretary contends that the activities of the contractor’s employees constituted “inspecting” activities within the meaning of section 1910.147(b). Although “inspect” is not defined in the LOTO standard, “inspect” means “to view closely in critical appraisal,” or “to examine formally, e.g. for completeness or quality.” Webster’s New Collegiate Dictionary 592 (1979); The New Lexicon Webster’s Dictionary of the English Language 501 (1987).
The judge concluded that “the two [contractor] employees were not engaged in servicing and maintenance work when in the basement discussing their replacement work on the fans,” because “[t]here is no showing that [they] were exposed to the unexpected energization or release of hazardous energy from the fans while engaged in their viewing and discussing activities.” I would agree. The critical issue contemplated by OSHA’s definition of “servicing and/or maintenance” is whether the employee is exposed to an “unexpected energization or start up of the machines or equipment, or release of hazardous energy.” In this case, the contractor’s employees were not in contact with the fans, nor were they even within eight feet of them. The Secretary has made no showing that the contractor’s leadman or apprentice was exposed to the unexpected energization or release of hazardous energy from the fans while engaged in viewing or discussing the work to be done on the fans. Again, any other interpretation would lead to absurd consequences, as it would lead to the safe activity of looking at a piece of equipment (even from across the room or through a window) as being “inspecting” subject to the LOTO standard. Therefore, I would conclude that contractor’s work on the fans at the time of the alleged violation does not constitute “servicing and maintenance.”
For all the foregoing reasons, I would affirm the judge’s decision and vacate the citation.
CLICK HERE for the full decision.