I often review the OSHRC decisions to learn better the “legal” side of OSHA compliance and most of the time I find that the Review Commission is pretty much a straight shooter when it comes to applying OSHA standards. But there are times when I close my computer as if I just saw a ghost after reading some of their rationales! Sometimes it is OSHA’s fault for poorly explaining the intent of their standard, and sometimes the commission gets it wrong for legal reasons and sometimes I don’t know what the heck happened. In this case, I truly believe a judge who most likely has never been involved in evaluating or isolating a PRCS made a horrible decision based on parsing the definition of “isolation” in 1910.146…
This case involved linen launderer who uses industrial sized washing machines which were properly recognized as Permit-Required Confined Spaces (PRCS). The Secretary alleges that company’s written program must include a detailed description of its lockout verification process for entry into a continuous batch washer (CBW). She acknowledges that the company included a step to verify that the power has been successfully shut off; however, it did not specify the “means.” The Secretary refers to the preamble of the LOTO standard to support her assertion that the subject standard requires the employer to provide a written, detailed set of verification instructions. The Secretary did not explain how the LOTO standard’s preamble applies to the confined spaces standard cited here.
Additionally, the Secretary points to the CO’s testimony that the company’s maintenance manager told her that energy verification was not part of the procedure. However, this uncorroborated assertion is in direct conflict with the company’s written program, which requires confirmation of power shut-off. Further, the parties have stipulated that lockout can be verified by “pressing a ‘start series’ of buttons.” The Secretary has provided no persuasive evidence to support her position that the cited procedure is inadequate. This instance is vacated. The Secretary contends that company’s written program used an improper means to isolate the CBW’s water, steam, chemical, and
The Secretary contends that company’s written program used an improper means to isolate the CBW’s water, steam, chemical, and airlines. The company’s program specifies that a lockout system will be used to isolate the lines feeding the CBW. The Secretary asserts the only acceptable means of isolation are “blanking or blinding; misaligning or removing sections of the lines, pipes or ducts; or a double block and bleed system.” The Secretary refers to August 6, 2007, OSHA letter of interpretation to support her position. Commission precedent establishes that the plain meaning of regulation is given controlling weight. The Secretary’s interpretation is consulted only when the regulation is ambiguous, or its meaning is unclear. Here, the confined spaces standard defines “isolation.” This definition includes the “lockout or tagout of all sources of energy” as one way to isolate a space. See 29 C.F.R. § 1910.146(b). I find the Secretary’s position to be in direct conflict with the plain language of the standard since the lockout is explicitly included as a means of isolation. This instance is vacated.
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