This 2018 decision is a MUST read for all safety professionals who wish to question the requirement for “machine specific” isolation procedures for “complex processes” AND for those who want to understand the isolation expectation for entry into a PRCS. This business made two mistakes that run rampant in businesses when it comes to the “details” of our LOTO procedures and the LOTO for entry into a PRCS. The OSHRC confirmed both of the citations after an ALJ had vacated them.
On September 30, 2008, following an inspection of a commercial laundry facility, OSHA issued a citation that as amended, alleged violations under ten serious and four repeat items. Former Administrative Law Judge John H. Schumacher issued a decision affirming two of the serious items (Citation 1, Items 3 and 11) and vacating the remaining twelve items. The judge assessed a total penalty of $3,825 for the two affirmed items. A fifth repeat item, as well as a second citation alleging an other-than-serious violation, were withdrawn by the Secretary.
Pursuant to Commission Rule 61, the parties stipulated to the record and agreed to have the judge decide the case without a hearing. On review are two of the vacated citation items: Instances (b) and (c) of Item 2b, which allege repeat violations under 29 C.F.R. § 1910.146(d)(3) concerning the adequacy of isolation and verification procedures for a permit-required confined space (PRCS); and Item 8, which alleges a repeat violation under 29 C.F.R. § 1910.147(c)(4)(ii) concerning the specificity of lockout/tagout (LOTO) procedures. For the reasons that follow, we affirm both citation items, characterize them as serious, and assess a single grouped penalty of $7,000.
I. Background
Employees clean linens by operating a series of interconnected machines in an area of the facility called the “wash alley.” The largest of these machines, the combined batch washer (CBW), consists of a long, cylindrical tunnel with eight washer modules. There are two CBWs at the facility. One of the CBWs discharges washed linens into a “press.” The press squeezes water out of the wet linens and forms them into a compressed clump known as a “cake.” Conveyor then sends these linen cakes to the “cake shuttle,” which travels along a track to deliver the cakes to one of five dryers in the wash alley.
The other CBW discharges washed linens into the “co-bucket,” which is a large hopper mounted on a shuttle that also travels back and forth along a track. The co-bucket then deposits wet linens into an “extractor,” which expels water from the linens and dumps them onto a conveyor. The conveyor moves the linens onto the “loose goods shuttle,” which travels along another track. These linens are either loaded directly into one of two dryers in the wash alley or deposited into a cart and loaded manually into other dryers.
Citation 1, Item 8 — LOTO Procedures
The LOTO standard “covers the servicing and maintenance of machines and equipment in which the unexpected energization or startup of the machines or equipment, or release of stored energy could cause injury to employees.” 29 C.F.R. § 1910.147(a)(1)(i) (emphasis in original).
Section 1910.147(c)(4)(i) requires that “[p]rocedures… be developed, documented and utilized for the control of potentially hazardous energy when employees are engaged in the activities covered by this section.” The provision cited in Item 8, § 1910.147(c)(4)(ii), requires that LOTO procedures “clearly and specifically outline the scope, purpose, authorization, rules, and techniques to be utilized for the control of hazardous energy and the means to enforce compliance”; as relevant here, this includes procedures for locking out a machine and verifying the effectiveness of that lockout.
To be compliant with this provision, the procedures must “inform the employee of the specific procedural steps to shut down and lock out a machine.” (reviewing preamble’s discussion of “specific”). The purpose of these procedures “is to guide an employee through the lockout process . . .” Drexel Chem. Co., 17 BNA OSHC 1908, 1913 (No. 94-1460, 1997). Determining whether a LOTO procedure is sufficient is a fact-specific inquiry that focuses on “ ‘the complexity of the equipment and the control measures to be utilized.’ ” GM, 22 BNA OSHC at 1026 (citing Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36,644, 36,670 (Sept. 1, 1989) (final rule)); see 29 C.F.R. § 1910.147, App. A—Typical Minimal Lockout Procedure (“For more complex systems, more comprehensive procedures may need to be developed, documented and utilized.”).
The parties here have stipulated that the facility’s written LOTO procedures for the machines consist of several documents, including a section in its general safety manual, a general LOTO program, and machine-specific “surveys.” According to the Secretary, the facility violated § 1910.147(c)(4)(ii) because these procedures “fail to clearly identify all of the specific steps to be followed by employees . . . to control hazardous energy.” The judge disagreed, concluding that the record does not show that the complexity of the machines at issue—both CBWs, seven dryers, the press, and three types of shuttles—require anything more detailed than what is already included in the company’s procedures.
On review, the Secretary argues that the facility’s LOTO procedures for the cited machines are deficient in two respects:
(1) they do not clearly identify all of the specific steps to be followed by employees to control hazardous energy, including the operation and location of lockout controls, and thus fail to guide the employees through the lockout process; and
(2) they lack specific procedures for verifying de-energization.
In response, the facility argues that the Secretary failed to put forth any evidence that its procedures are not sufficient under § 1910.147(c)(4)(ii). We affirm the violation but on narrower grounds than argued by the Secretary.
Specificity of Lockout Procedures
An employer’s LOTO procedures must include, among other things, “[s]pecific procedural steps for shutting down, isolating, blocking and securing machines or equipment to control hazardous energy,” and “for the placement . . . of lockout devices.” 29 C.F.R. § 1910.147(c)(4)(ii)(B), (C). The facility’s general safety manual states that “[a]ll energy control devices that are needed to control energy to the machine or equipment will be physically located and operated in such a manner as to isolate the machine or equipment from the energy source.” Although the manual provides some general information on how to operate controls and locks, none of this information is machine-specific, and the location of controls on the machines at issue is not specifically identified. The manual does require, however, that a machine-specific “lockout-tagout survey” be conducted “to locate and identify all energy sources to verify which switches or valves supply energy to machinery and equipment.” The facility conducted surveys for all the machines at issue.
The question, therefore, is whether these machine-specific surveys, when read in tandem with the other documents that make up the facility’s LOTO procedures, inform the employee of the “[s]pecific procedural steps” necessary to perform the lockout process for a cited machine. The Secretary maintains that the facility’s procedures are not specific enough because they neither list “the location of the energy sources” nor explain “the steps the employee is required to take” to lock them out. We agree, but only with respect to certain aspects of the LOTO procedures as they relate to the CBWs and dryers.
As to the CBWs, each machine’s cylindrical tunnel has an auger-like device that turns during the laundering process, spinning water and linens through the CBW’s eight washer modules. The tunnel itself is turned by a chain and sprocket driven by an electric motor, and “delivered steam” is controlled by compressed air-operated (pneumatic) valves. To protect against a release of thermal energy, the facility’s procedures require employees to “lock out all valves… including steam [and] water.” The LOTO surveys (one for each CBW) include certain descriptive information about the CBWs’ valves—the valve size for “steam and water” lockout and the pipe size for the pneumatic lockout. The number of valves and their location on the CBWs, however, are NOT specified in the surveys or in any other document that is part of the facility’s LOTO procedures. Indeed, although the “pneumatic energy” part of each CBW survey has a line for “Location” (such a line is not included for any other valve type), this line was left blank on both surveys.
Whether the absence of this information renders, the LOTO procedures deficient depends on the complexity of the CBWs. We find that the record establishes such complexity. Feeding the CBWs are the main steam line, four steam sublines, and a hot water line. There are also numerous valves— a manually-actuated main steam valve, a pneumatically-actuated main steam valve, valves for each steam subline, a hot water valve, and valves for dispensing chemical wash during the laundering process.
The environmental safety and health manager (“safety manager”) for the facility conceded that none of the valves on the CBWs were labeled. In short, each machine—which is large enough to allow a person, depending on stature, to stand upright inside each of the eight modules—has various unlabeled valves incorporated into its extensive piping system with varied energy sources. Given these circumstances, we find that the facility’s LOTO procedures for the CBWs are deficient based on the procedures’ failure to specify the number and locations of the valves that employees are required to lock out. See id. at 1027 (noting inadequacy of LOTO procedures for “the plant’s more complex equipment”).
As to the dryers, each one is equipped with a rotating drum, which poses a mechanical hazard if the electricity energizing the drum’s motor is not locked out. Gas-fired flames heat the air surrounding the dryer drum. The safety manager testified that both electrical energy and natural gas are involved in creating a dryer’s thermal hazard; this means that both energy sources must be locked out. The LOTO survey for each dryer requires lockout or tagout of an electrical disconnect switch and pneumatic and gas valves. For the natural gas used to heat the dryers, the safety manager testified that the gas valve is located on the back of each dryer and that it is locked out by engaging a “keyway,” closing the valve, and then applying a chain. Each dryer LOTO survey identifies the size of the gas valve but not its location on the dryer. Based on the relatively small size of the dryers—the drum for each measure about four feet in diameter—and the few valves located on these machines, we conclude that the Secretary has not shown that employees would be unable to locate these valves using the information provided in the procedures.
SAFTENG NOTE: I have no idea what a “keyway” lockout device is. The best I could find is https://www.keyways.co.uk/locksmiths/lock-out-boxes.html
The same cannot be said, however, for the LOTO procedures concerning the operation of the gas valve’s keyway. The surveys for four of the cited dryers state that use of a 9-inch chain is required for the lockout, but these surveys (and all other LOTO documents) fail to specify which energy sources’ lockout devices require the use of a chain. In addition, the LOTO procedures do not explain how to use the keyway and apply the chain. Under these circumstances, including the apparent complexity of the keyway used on the gas valves, we find that the procedures concerning the operation of these devices are insufficient under the cited standard.
Finally, as to other controls on the CBWs and the dryers, as well as the various controls on the press and the three types of shuttles, the procedures in several instances do not specify the location of the valves and electrical disconnect switches or the operation of the locking devices used to isolate the machines’ various energy sources. We find that in these instances, however, the record does not show that the circumstances require the inclusion of additional details in the procedures. The electrical disconnect switches on some of the machines, for example, are conspicuous—large, red buttons—and labeled. Additionally, the evidence does not show that employees would have difficulty locating the machines’ different valves (in contrast to the valves on the CBWs) or need further instruction, beyond that provided in the LOTO procedures, to operate the various locking devices (in contrast to the keyway for the dryers’ gas valves).
Specificity of Verification Procedures
An employer’s LOTO procedures must also include “[s]pecific requirements for testing a machine or equipment to determine and verify the effectiveness of lockout devices, tagout devices, and other energy control measures.” 29 C.F.R. § 1910.147(c)(4)(ii)(D).
Before “starting work on machines or equipment that have been locked or tagged out,” authorized employees use these procedures to “verify that isolation and de-energization of the machine or equipment have been accomplished.” 29 C.F.R. § 1910.147(d)(6).
The facility’s general LOTO program directs employees to “attempt[] to reenergize the machine or equipment with all potential energy sources to verify that [it] is free from all potentially hazardous energy sources.” Similarly, in its general safety manual, the facility instructs that after locking or tagging out machinery or equipment, employees must “verify that isolation or de-energization of the machine or equipment has been accomplished… by following the normal startup procedures (depress ‘Start’ button, etc.).”
In addition to the facility’s general verification procedures, the company’s PRCS procedures specific to the CBW apply prior to entry “to either clear a jam (rope) or conduct maintenance,” and require that entrants “verify that the power to all related equipment has been successfully locked out.”
While the safety manager testified that specific instructions for a restart attempt on the CBW are relayed through job training, §1910.147(c)(4) requires that LOTO procedures be “documented.” There are no documented instructions, however, specifying how such an attempt should be made to verify electrical lockout for the CBW. Indeed, the general safety manual instruction does not explain how to operate what the safety manager described as “the start series control buttons at the [CBW] control panel” or identify the codes that, according to the record, must be entered to verify that the machine will not start back up. We find, therefore, that the facility’s LOTO procedures are lacking the necessary specificity to enable an employee to verify that the CBW has been successfully locked out.
For the three types of shuttles at issue, both the general LOTO program and the shuttle safety procedures direct employees to attempt a restart after turning the power off and applying a “lock and/or tag.” These procedures contain no specific information on what controls to activate when attempting to reenergize the shuttles. The safety manager testified, however, that located on the co-bucket shuttle is a “series of switches” that includes a large, red electrical disconnect switch and the control switch for energizing the equipment. There is nothing in the record to show that this “series” includes anything more than just these two switches on each shuttle. Absent evidence that the electrical disconnect switch is inconspicuous or unlabeled, the Secretary has failed to show that the purpose of the other switch—to reenergize the shuttle—was not apparent to the employees attempting to utilize the verification procedure. Furthermore, in contrast to the CBWs, there is no evidence to show that attempting to reenergize each shuttle requires more than merely flipping a switch. The evidence also fails to show if this same series of switches is on the other two shuttles. Given these gaps in the record, we find that the Secretary has not established that the verification procedures are deficient as to the shuttles’ electrical energy sources.
With respect to the remaining machines, each dryer’s LOTO survey requires lockout of valves for “main air” and natural gas and of an electrical disconnect switch; the press’ LOTO survey requires lockout of “main air” valves, use of mechanical blocks to prevent a “bell” (a heavy component) from falling, and lockout of an electrical disconnect switch. These surveys, like those for the CBWs, do not address verification. The Secretary, however, has presented no evidence to show that locating and engaging the start button on each machine, to attempt a restart for verification procedure for the CBW is sufficiently specific. Seeing that common sense dictates that an employee would understand the written instruction— “No one will be allowed to enter into a chamber that is over 120 degrees F”— applies to each chamber’s interior and a thermometer is needed to verify temperature.
While engaging the start button might be sufficient to verify that the electrical energy is locked out, it is not sufficient to verify that other sources of energy for the dryer and press are also locked out. With respect to each dryer, during normal operations when the dryer is idle—in other words, when the electrical components of the dryer are not energized—the natural gas valve is not closed and gas continues to feed the dryer’s pilot light. During lockout, therefore, pushing the start button for verification purposes would not verify that the flow of gas to the dryers has been adequately blocked. Further, with respect to the press, the page of the operating manual attached to the press’ LOTO survey specifically states that the bell, which poses a crushing hazard, could descend even if the power is off. Here, too, attempting to restart the machine would not verify that the bell on the press has been properly blocked. Accordingly, we find that the procedures for verifying lockout of energy sources associated with each dryer’s natural gas valve and the press’ bell are deficient.
Based on these deficiencies in the specificity of the facility’s LOTO procedures for lockout and verification of lockout, we conclude that the company’s procedures do not comply with § 1910.147(c)(4)(ii). We therefore affirm Item 8.
Citation 1, Item 2b — PRCS Procedures
There is no dispute that the CBWs’ washer modules are PRCSs that employees sometimes enter. In recognition of this fact, the facility developed and implemented a written permit space program, as required by 29 C.F.R. § 1910.146(c)(4). Such programs must comply with the PRCS standard’s requirements, which as relevant here, mandate that the employer develop and implement “the means, procedures, and practices necessary for safe permit space entry operations,” including those for “[v]erifying that conditions in the permit space are acceptable for entry throughout the duration of an authorized entry,” and for “[i]solating the permit space.” 29 C.F.R. § 1910.146(c)(4), (d)(3)(iii), (d)(3)(vi).
The Secretary’s allegations in Instances (b) (Verification) and (c) (Isolation) of Item 2b concern the sufficiency of the facility’s procedures for the CBWs.
Instance (b) (electrical energy verification)
The Secretary alleges that the facility violated § 1910.146(d)(3)(vi) because the company’s PRCS procedures do not include step-by-step, written instructions on how to verify that electrical energy sources to the CBW have been shut off. The judge vacated this instance, rejecting the Secretary’s argument that the PRCS standard requires such detailed procedures. On review, the Secretary asserts that the cited PRCS provision requires instructions to be clear and specific and to provide as much specificity as the procedures required by the LOTO standard.
He argues that his reading of the cited provision “sensibly conforms to the purpose and wording of § 1910.146(d)(3),” because “the LOTO standard prescribes the minimum level of protection… against the energization hazard” and the PRCS program, when implemented cannot “effectively isolate the space” unless it provides at least the same level of protection. The Secretary claims, therefore, that the cited standard’s meaning is plain, but, “[t]o the extent… the complexity of the PRCS standard renders some terms and requirements ambiguous,” his interpretation is reasonable and should be given deference.
We conclude that the PRCS standard is ambiguous with regard to the degree of specificity the required verification instructions must include. Although the standard has criteria that specify the type of information that must be included in the “means, procedures, and practices necessary for safe permit space entry operations”—“verifying that conditions in the permit space are acceptable for entry,” among other categories of information—it is ambiguous as to the degree of specificity required. 29 C.F.R. § 1910.146(d)(3)(i)-(vi)
We must therefore consider the reasonableness of the Secretary’s interpretation that the standard requires the PRCS verification instructions to have the same degree of specificity required by the LOTO standard.
In the PRCS standard’s preamble, OSHA addresses the standard’s requirement to isolate the permit space before entry, stating:
“The permit space must be isolated from serious hazards. For example, . . . [m]echanical equipment posing a hazard within the space must be locked out or tagged in accordance with § 1910.147,… .” Permit-Required Confined Spaces, 58 Fed. Reg. 4462, 4497 (Jan. 14, 1993) (final rule) (emphasis added).
In addition, in discussing what information must be included in a PRCS permit, OSHA explains that it is sufficient for such permits to simply refer to the § 1910.146(d)(3) procedures, rather than to include the procedures’ details in the permit itself, because OSHA contemplated that “detailed procedures for making the permit space safe for entry”—which some commenters referred to as “highly specific in nature”—“are required to be established[] under paragraph (d)(3).” In light of these statements, we find that the PRCS standard’s history supports the Secretary’s position that the procedures mandated by § 1910.146(d)(3), including those for verification, must contain the type of step-by-step details that the Secretary asserts are required here.
The facility emphasizes that the PRCS standard’s text neither references nor incorporates the LOTO standard, and it instead “contains its own express requirements for a written program”; it argues that, under the Secretary’s position, these requirements would be “nullif[ied] and render[ed]… superfluous.” This argument is unavailing. The PRCS standard requires procedures to be applied at different times and in different circumstances than the LOTO standard. Specifically, the PRCS standard generally requires that procedures be utilized before an employee enters a confined space, irrespective of that entry’s purpose, whereas the LOTO standard requires that procedures be utilized before a servicing or maintenance activity begins, regardless of whether an employee must enter a confined space.
Compare 29 C.F.R. § 1910.146(c)(5)(ii)(C), (c)(5)(ii)(H), (d)(2), (d)(5)(i), (e)(1), (f)(8) (detailing measures that must be completed before entry into PRCS), with 29 C.F.R. § 1910.147(c)(1) (stating that purpose of energy control program is “to ensure that before any employee performs any servicing or maintenance on a machine or equipment where the unexpected energizing, start up or release of stored energy could occur and cause injury, the machine or equipment shall be isolated from the energy source, and rendered inoperative”).
Additionally, the PRCS procedures are intended to “protect[] against the release of energy and material into the [confined] space,” 29 C.F.R. § 1910.146(b) (definition of “[i]solation”), (d)(3)(iii); they are also directed at other safety concerns unique to a confined space, such as close proximity and restricted means of egress, 29 C.F.R. § 1910.146(b) (definition of “[c]onfined space”). In contrast, LOTO procedures are focused on protecting employees from injuries that could result from “the unexpected energization or start up of the machines or equipment, or release of stored energy,” 29 C.F.R. § 1910.147(a)(1)(i) (emphasis in original). Given these differences, compliance with LOTO requirements is not sufficient to comply with the PRCS standard—such LOTO procedures must be incorporated into the written confined space program so that employees will implement them as part of the confined space entry protocol and in the correct sequence.
Accordingly, we conclude that the Secretary’s interpretation of the PRCS standard’s requirement for verification procedures is reasonable and, thus, entitled to deference. As we have already found, the facility’s LOTO procedures for verifying the lockout of the CBWs’ electrical energy sources lack the specificity required under § 1910.147(c)(4)(ii). Thus, we find that the facility’s PRCS procedures, which incorporate its LOTO procedures, are similarly deficient.
Instance (c) (isolation of water, steam, liquid chemicals, and compressed air)
The Secretary alleges that the facility violated § 1910.146(d)(3)(iii) by failing to “[d]evelop and implement the means, procedures, and practices” for “[i]solating the [CBW as a] permit space” from water, steam, liquid chemicals, and compressed air. According to the Secretary, the facility’s procedures are deficient because they require only that the CBWs’ valves be closed and locked out and that this fails to constitute “isolation” from materials. The judge vacated this instance, rejecting the Secretary’s argument that LOTO alone is insufficient here; the judge noted that LOTO is explicitly included as a means of “isolation” in the PRCS standard’s definition of the term.
On review, the Secretary argues that LOTO may only be used as a means of isolation from a release of energy, while other means—such as blanking or blinding—must be used when (as here) it is necessary to protect against a release of material. We conclude that the Secretary’s reading of the PRCS standard is supported by its plain language. As the judge pointed out, “lockout or tagout” is indeed included in the standard’s definition of “isolation”:
[T]he process by which a permit space is removed from service and completely protected against the release of energy and material into the space by such means as: blanking or blinding; misaligning or removing sections of lines, pipes, or ducts; a double block and bleed system; lockout or tagout of all sources of energy; or blocking or disconnecting all mechanical linkages. 29 C.F.R. § 1910.146(b).
According to the facility, this shows that LOTO, alone, may be used as an isolation procedure to comply with § 1910.146(d)(3)(iii). The definition, however, ties LOTO only to “all sources of energy,” while the space as a whole must be “completely protected against the release of energy and material.” 29 C.F.R. § 1910.146(b) (emphasis added).
None of the other means of isolation included as examples in the definition are modified by the phrase “sources of energy”; it is, therefore, these other means—not “lockout or tagout”—that may be used for protecting against “the release… of material.” 29 C.F.R. § 1910.146(b).
The standard’s text thus plainly shows that LOTO is appropriate only for isolating energy.
The facility concedes that it does not use any method other than LOTO to isolate the valves that feed chemicals, compressed air, hot water, and steam into the CBWs’ washer modules—spaces the facility has designated as PRCSs. Given that the plain language of the PRCS standard lists “lockout or tagout” as a means for isolating only energy, we conclude that the facility’s procedures are deficient in that they provide no other means for protecting “against the release of… material” into the CBWs’ modules.
We therefore affirm both Instances (b) and (c) of Item 2b.
CLICK HERE for the decision
NOTE: the decision include a debate about the citations being REPEATs or not and includes a distenting opinion from one of the Commissioners over the REPEAT debate.