World-class safety can be summed up in this manner…
The ability to recognize a serious hazard that can be controlled by an existing safe work practice that is in place for complying with a different OSHA standard.
If you’re a process safety engineer/practitioner you have dealt with “line break/process opening” for your Highly Hazardous Chemicals (HHC) and Extremely Hazardous Substances (EHS) within your “covered process(s)”. Truly world-class organizations have adopted their “line break/process opening safe work practices to “steam” as well. Heck some clients have even adopted the practice to manage even their “hot water”. Line Break and Process Opening is a LAYER of protection on top of the traditional LOTO practices.
In this OSHRC decision, two maintenance workers lost their lives when a feather rendering machine became plugged and an attempt to bleed off the steam was done by loosening some bolts on a flange. Take notice that they had closes the steam supply valve – the steam was a “stored energy”. The flange failed and the two workers died from their burns.
This case involves a tragic accident that occurred at a chicken-rendering facility, which resulted in the death of two employees. OSHA conducted an investigation and ultimately issued a citation on February 9, 2021, alleging repeated violations of 29 C.F.R. §1910.147(c)(4)(ii) and 29 C.F.R. §1910.147(c)(4)(ii)(B), the control of hazardous energy (lockout/tagout or LOTO) standard. These regulations address the types of steps that must be included in an employer’s LOTO procedures.
The court held a trial on February 2, 2022, and the parties filed post-trial briefs on April 22, 2022. Pursuant to Commission Rule 90, after hearing and carefully considering all the evidence and the arguments of counsel, the court issues this Decision and Order, which constitutes its final disposition of the proceedings under section 12(j) of the Act.
For the reasons indicated infra, the court holds the Secretary has proven his prima facie case with regard to the cited items, and therefore, the court AFFIRMS Items 1a and 1b of Citation 1 and ASSESSES a group penalty of $75,092.00.
II. BACKGROUND
The company is in the animal rendering industry. In 2010 the company bought the chicken-rendering facility (the “worksite”). Each of The company’s facilities maintains its own operations group management. At the Mississippi facility, the general manager oversees the management of the plant; the operations manager oversees daily operations and its personnel; and the maintenance manager oversees maintenance and its personnel. Plant management then reports up the corporate chain through either the eastern or western division. The Mississippi plant reports through the eastern division.
Hydrolizer A breaks down chicken feathers using pressurized steam, similar to a pressure cooker. Periodically, the material will start to collect and adhere to itself within the Hydrolizer, creating a blockage. When a blockage occurs, the pressure is unable to release through the inlet side of the Hydrolizer, causing the whole process to stop. When this occurs, the process operator will attempt to relieve the pressure by “shuttling the gates” and/or opening the pressure relief valve on the Hydrolizer itself.
On August 10, 2020, a Process Operator, was operating Hydrolizer A at the worksite. The Hydrolizer A apparently became clogged, and the pressure was not releasing inside the Hydrolizer. As part of the normal operating procedures, he tried “shuttling” the gates to release the pressure. “Shuttling the gates” refers to when an operator opens one gate (in a series of gates) to let part of the material come out, then closes that gate, and then opens another gate to let the material out. Unsuccessful in his attempts to release the pressure, he called his supervisor, the operations manager, to notify him of the issue with Hydrolizer A. The operations manager in turn contacted the maintenance team. The maintenance department sent a team of three maintenance workers – [redacted], [redacted], and [redacted] – to address the issue at Hydrolizer A.
The maintenance team double-checked the normal procedures followed by the process operator. First, the team opened the shuttle gate, with no decrease in pressure, and then opened the manual pressure relief valve, and there was still no decrease in pressure. Through his discussions with plant personnel, Corporate Safety Director XXXXXXXXX determined that the team then de-energized the electrical circuits and isolated the steam valve feeding into Hydrolizer A. At this point, because normal procedures did not clear the pressure in the Hydrolizer, the team should have waited for the Hydrolizer to cool down. The Corporate Safety Director XXXXXXXXX explained that you always do it the same way. He stated,
You always wait until it cools down. When the equipment cools down the steam condenses, the pressure goes away and you end up with zero pressure and then you take the bolts out of that flange and that allows you to get in and actually dig out the material that’s inside there and clear whatever blockage there was.
While the Hydrolizer is cooling down, maintenance can re-route the material to Hydrolizer B or vice versa. The Mississippi plant installed a duplicate Hydrolizer as a back-up system to continue to process the material if one is taken offline. However, even if both Hydrolizers are down, the product can sit for days because feathers do not go bad. The Corporate Safety Director XXXXXXXXX explained, “We still have some plants that only have one Hydrolizer. And that’s exactly what they do, they just stop processing and wait till it cools down and they fix it and get back into running.”
Unfortunately, one of the employees decided to loosen the bolts attached to a 4” flange on the side of the hydrolyzer to let the trapped steam escape. As the employees loosened the bolts, steam would flow out of the machine. This process continued for 10-15 minutes until the flange blew off, and steam and hot material from inside the hydrolyzer spewed out of the machine, covering the three maintenance employees. [redacted] and [redacted] were killed as a result of the injuries they sustained. No manager was aware that [redacted] and his crew were removing bolts from the flange on August 10, 2020. At no time did the employees stop work and insist that the proper procedures be utilized as taught in The company’s training.
III. ANALYSIS
Grouped Items 1a and 1b: Alleged Serious Violations of §1910.147(c)(4)(ii) and §1910.147(c)(4)(ii)(B)
Grouped Item 1a alleges that on or about August 10, 2020, The company violated 29 CFR 1910.147(c)(4)(ii), OSHA’s lockout-tagout (LOTO) standard, when “employees removing a clog were exposed to a serious burn hazard from trapped steam and condensation, in that the procedures did not clearly and specifically address appropriate lockout, tagout procedures for steam trapped in [Hydrolizer] during clog removal.” This provision of the LOTO standard mandates in relevant part that The company’s “procedures shall clearly and specifically outline the scope, purpose, authorization, rules, and techniques to be utilized for the control of hazardous energy[.]” 29 C.F.R. §1910.147(c)(4)(ii).
Grouped Item 1b alleges that on or about August 10, 2020, The company violated 29 CFR 1910.147(c)(4)(ii)(B), when its LOTO “procedures did not clearly and specifically outline the steps for shutting down, isolating, blocking and securing machines or equipment to control hazardous energy. This provision of the LOTO standard mandates, more specifically, that The company’s LOTO procedures shall include “[s]pecific procedural steps for shutting down, isolating, blocking and securing machines or equipment to control hazardous energy[.]” 29 C.F.R. §1910.147(c)(4)(ii)(B).
(1) The Cited Standards Apply
Section 147 “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).
“This standard applies to the control of energy during servicing and/or maintenance of machines and equipment.” 29 C.F.R. §1910.147(a)(2)(i).
“Normal production operations are not covered by this standard.” 29 C.F.R. §1910.147(a)(2)(ii).
The company admits that the procedure its employees subsequently undertook, taking the cover off the flange by removing its bolts, was service and/or maintenance work on Hydrolizer A.
Therefore, the Secretary has established the cited standards applied to the cited conditions.
(2) The company Has Not Complied With Cited Standards
There is no dispute that The company had a LOTO policy in place as well as a separate LOTO procedure specific to the Hydrolizer. The question is whether The company’s LOTO procedure met Section 147’s requirements that it “clearly and specifically outline the scope, purpose, authorization, rules, and techniques to be utilized for the control of hazardous energy,” including “[s]pecific procedural steps for shutting down, isolating, blocking and securing machines or equipment to control hazardous energy[.]” The Secretary asserts that it did not.
The company argues that its “LOTO Policy and Procedure must be read in conjunction with the hydrolizer manual and the training provided on how to isolate the thermal energy.”
The court finds no merit in The company’s position.
As indicated supra, the LOTO standard mandates that The company’s “procedures shall clearly and specifically outline the scope, purpose, authorization, rules, and techniques to be utilized for the control of hazardous energy[,]” including “[s]pecific procedural steps for shutting down, isolating, blocking and securing machines or equipment to control hazardous energy[.]” 29 C.F.R. §1910.147(c)(4)(ii), (B) (emphasis added).
The company also argues its LOTO Procedures “actually provide all needed information to safely and effectively lockout the Hydrolizer A.” Again, the court does not agree. The company’s LOTO procedure specific to the Hydrolizer A contained the following relevant Step:
6. Make all of the following sources of stored energy (capacitors, flywheels, springs, pressure lines of hydraulics/steam/air/water/grease) safe by relieving pressure, restraining, disconnecting, or discharging:
a. Relieve internal pressure
The Corporate Safety Director XXXXXXXXX explained:
If you’ve got internal pressure and you have already gone through the normal processes of shuttling the gates and trying the pressure relief valve, you cannot accomplish step number 6. There are no procedures that are applicable. So our people know for a fact there aren’t any procedures. If you get there and there’s still pressure there, you’re done. And you’ve got to wait for that thing to cool down and get rid of the pressure.
By The company’s own admission, step 6 is erroneous since, if there is still internal pressure when the employee gets to step 6, the employee cannot “relieve [the] internal pressure.” The company’s LOTO procedures must say more. The LOTO standard requires the employer’s LOTO procedure to “clearly and specifically outline the … techniques to be utilized.”
Step 6 of The company’s LOTO procedure instructs employees to relieve the internal pressure of Hydrolizer A. The company’s employees cannot accomplish this step, however, if the usual methods of pressure relief have not been successful and internal pressure remains. Therefore, at a minimum, The company could have, and should have, simply instructed employees at step 6 to stop and wait for Hydrolizer A to cool down until the pressure dissipates to a non-hazardous level before moving to the next step.
Thus, the Secretary has established The company did not comply with cited standard’s requirement that its LOTO “procedures shall clearly and specifically outline the scope, purpose, authorization, rules, and techniques to be utilized for the control of hazardous energy[,]” including “[s]pecific procedural steps for shutting down, isolating, blocking and securing machines or equipment to control hazardous energy[.]”
(3) The company Employees were Exposed to a Hazard
There is no question that at a minimum, the two employees that died as a result of the accident were exposed to a serious burn hazard. Therefore, the Secretary has established The company employees had access or exposure to the violative conditions.
(4) The company had Actual or Constructive Knowledge of the Conditions
To prove a serious violation of the Act, § 666(k) “imposes liability on the employer only if the employer knew, or ‘with the exercise of reasonable diligence, [should have known] of the presence of the violation.’ Therefore, “to impart liability to an employer for a violation of the special duty clause, the Secretary must prove that an employer had knowledge of the violation as part of its prima facie case.”
The Fifth Circuit has “dealt with employer knowledge as a fact-specific, practical inquiry, looking to company practice, the details of specific incidents, knowledge of supervisors imputable to the company, and commonsense inferences about what a company and its supervisors should know and do.”
“To prove the knowledge element, ‘the Secretary must show that the employer knew of, or with exercise of reasonable diligence could have known of the non-complying condition.’”
Thus, in this case, the Secretary must show that The company knew or should have known that its LOTO procedures did not “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 including, but not limited to, the following: (B) Specific procedural steps for shutting down, isolating, blocking and securing machines or equipment to control hazardous energy[.]”
The company asserts that it did not know the maintenance workers were going to remove the flange while the Hydrolyzer A was under pressure, nor would it have known so through the exercise of reasonable due diligence. The company’s assertion is a red herring. What is relevant is that The company knew or, with the exercise of reasonable diligence, should have known of the conditions constituting the violation, i.e., its failure to implement a LOTO procedure that met the requirements of the LOTO standard. The company knew of the contents of its own LOTO procedure, and also knew it had recently been cited for a similar LOTO violation, i.e., its failure to implement a LOTO procedure that met the requirements of the LOTO standard. Thus, The company knew or should have known that its procedure was deficient. Therefore, the Secretary has established The company had actual or constructive knowledge of the violation.
Characterization of the Violations
The Secretary characterized the violations as “serious” and “repeat” violations.
A violation is a “serious” one “if there is a substantial probability that death or serious physical harm could result from” the violative condition. “This means that the Secretary must show that death or serious physical harm is a probable consequence if an accident results from the violative condition—he is not required to show that an accident is itself likely.” Here, there is no question the violations were serious—death did occur and it was a probable consequence if an accident resulted from the violative condition. Item 1a and 1b were appropriately characterized as serious.
As to the “repeated” characterization, in the Fifth Circuit, a “violation is repeated if, at the time it occurred, ‘there was a Commission final order against the same employer for a substantially similar violation.’”
“The employer … would then have the burden of disproving the substantial similarity of the conditions, or proving any affirmative defenses such as the impossibility of complying with the prior citation, lack of notice of the prior violation, or lack of a reasonable time to comply with the prior citation.” “For violations of the same specific standard, ‘rebuttal may be difficult since the two violations almost have to be substantially similar in nature in order to constitute violations of the specific standard.’”
Here, the Secretary asserts the violations were properly characterized as repeated violations since The company was previously cited for violations of the same provisions of the LOTO standard, § 1910.147(c)(4)(ii) and § 1910.147(c)(4)(ii)(B), regarding OSHA Inspection Number 1471984, Citation 1, Item 1a and Item 1b, which were affirmed as a final order on June 18, 2020, with respect to a workplace located in Idaho. See Ex C-5. On its face the court concludes the two violations appear to be substantially similar in nature since they both deal with The company’s failure to implement a LOTO procedure that met the requirements of § 1910.147(c)(4)(ii) and § 1910.147(c)(4)(ii)(B). Therefore, the burden shifts to The company to disprove the substantial similarity of the conditions, or prove any affirmative defenses.
The company argues that in the present case, “the equipment-specific procedures for a highly specialized hydrolyzer that breaks down chicken feathers is very different from the equipment-specific procedures that applied in the [previous] case[,]” which dealt “with pneumatic air-powered equipment that pushes cow carcasses.” While it is true the equipment may have been different, the violations were substantially similar in nature — both violations were caused by the same hazard, i.e., The company’s failure to implement LOTO procedures that met the requirements of § 1910.147(c)(4)(ii) and § 1910.147(c)(4)(ii)(B). See Deep S. Crane, 535 F. App’x at 390 (even when prior violation involved a different type of equipment that caused a different injury, the violations were substantially similar in nature because “both violations were caused by the same hazard.”) Therefore, the Secretary has established the violations were properly characterized as repeated violations.
Affirmative Defenses
The company pleaded the affirmative defense of independent employee misconduct. “This affirmative defense isn’t found in a statute or regulation; it’s implied ‘by the scope of the Act’s prohibitions.’” “The affirmative defense of employee misconduct requires a showing that the employer
1) has established work rules designed to prevent the violation,
2) has adequately communicated these rules to its employees,
3) has taken steps to discover violations, and
4) has effectively enforced the rules when violations have been discovered.”
Here, The company failed to offer any evidence in support of the affirmative defense of employee misconduct at trial and did not mention it in its post-trial brief, let alone point to any evidence in the record showing it had met its burden. Therefore, the court concludes The company has waived this defense.
IV. PENALTY DETERMINATION
The Act provides that an employer who commits a “repeated” violation may be assessed a civil penalty in an amount not to exceed $70,000. However, the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, requires the Department of Labor to annually adjust its civil money penalty levels for inflation no later than January 15 of each year. Therefore, at the time of the issuance of the citation, the maximum penalty for a repeated violation was $136,532.00. See 29 CFR § 1903.15(d)(2) (2021); see also 86 FR 2969, Jan. 14, 2021. The Secretary proposed a group penalty of $75,092.00 for Item 1a and 1b.
The gravity of the violations was high. The company employs more than 250 people and is therefore not entitled to a reduction in the penalties based upon its size. The company is also not entitled to a reduction in the penalties based upon a lack of history, or a good faith reduction since it has a repeated violation of the same cited standards. Giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations, for grouped Item 1a and 1b, the court finds a penalty of $75,092.00 is appropriate. Accordingly,
V. ORDER
IT IS HEREBY ORDERED THAT Items 1a and 1b of the Citation are AFFIRMED and a group penalty of $75,092.00 is ASSESSED.
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