Just in case you missed the news today… OSHA will NOT finalize its proposal to remove the word “UNEXPECTED” from the control of hazardous energy (LOTO) standard but will further consider this issue in light of the overall standard. Here is their rationale for this decision at this time…
OSHA proposed making changes to subpart J of part 1910—General Environmental Controls, The control of hazardous energy (lockout/tagout) in 29 CFR 1910.147. According to its terms, the lockout/tagout standard applies to servicing and maintenance operations “in which the unexpected energization or startup of the machines or equipment, or the release of stored energy could cause injury to employees” (§ 1910.147(a)(1)(i) (emphasis in original)). Because OSHA believes the word “unexpected” has been misinterpreted to exclude some operations where employees are subject to injury from startup or the release of stored energy, the agency proposed removing the word “unexpected” from § 1910.147(a)(1) and several other places it appears in the standard. OSHA made this proposal as a result of a ruling made by the Occupational Safety and Health Review Commission (OSHRC), which was affirmed by the United States Court of Appeals for the Sixth Circuit. Reich v. General Motors Corp., Delco Chassis Div. (GMC Delco). Those decisions found that the lockout/tagout standard did not apply where a startup procedure for a machine provided a warning to a worker servicing it that it was about to start. In that case, workers were servicing machines that used an eight-to-twelve-step startup procedure, including time delays, and audible or visual warnings. The court and OSHRC held that, because of these as part of a mass mailing campaign. All but seven of the comments opposed removing the word “unexpected.
As an example, Davies Molding, LCC, a firm that makes moldings, commented (as part of a mass mail campaign) that:
This proposed rule would adversely impact a company’s ability to utilize certain advances in technology such as automated controls that can eliminate the potential for unexpected energization and therefore eliminate the need for LOTO. It also contradicts recent legal precedent (Reich v. General Motors Corp., Delco Chassis Div., GMC Delco). In removing the ability of employers to demonstrate the absence of exposure to unexpected energization, lockout would become a requirement for all energy sources. … Regulatory certainty is strongly desired, but not every machine is the same and a singular, generic fix applied to all equipment is not the solution. OSHA’s LOTO rule (29 CFR 1910.147) is complex and outdated. A better solution to concerns about LOTO and the scope of requirements around energization is for OSHA to
move forward with its plans to review and potentially update the entire rule in a complete and independent rulemaking. OSHA has noted review of technological advancements with computer-based controls, greater acceptance of such methods internationally, increased requests for variances for these devices, the utility of understanding new technology and potential hazards to workers, and the appropriateness of a potential rulemaking process is necessary.
(OSHA-2012-0007-0581).
Apogee Designs, a manufacturer, commented:
Removing “unexpected” from the term “unexpected energization” broadens the scope of the rule adding only confusion to what is already understood and
implemented. We agree with the Plastics Industry Association (PIA) in that OSHA should pursue a separate rule relating to 29 CFR 1910.147 that would
NOT adversely impact automated controls that eliminate potential unexpected energization. . . . If changes are made to the LOTO rule they should be
reviewed in their totality in the context of modern manufacturing techniques and technology. Much has been said of ‘Advanced Manufacturing’ and its
ability to provide jobs for employees and opportunities for firms who wish to embrace what is no longer the future but is ‘the now’. We submit that OSHA
focus on how to minimize risk of personnel harm without placing undue burden on employees, companies, and regulators. It is not possible to eliminate accidents, it is possible to minimize their impact.
(OSHA-2012-0007-0733).
The American National Standards Institute Accredited Z244 Committee for the Control of Hazardous Energy – Lockout, Tagout and Alternative Methods also commented that the removal of the word “unexpected” would be inconsistent with its standard ANSI/ASSE Z244.1 (OSHA-2012-0007-0714).
In favor of removal, the AFL-CIO commented:
This decision [GMC Delco] totally undermines the original intent of the standard and allows warning systems to be used instead of following the requirements of the standard. As OSHA points out in the preamble of the proposed rule, the exclusive use of warning systems subverts the intent of the standard by removing the control of the hazardous energy from the individual authorized employee and instead placing the burden on exposed employees to recognize warnings so they can escape danger zones . . . . Moreover, this decision requires OSHA to make a case-by-case determination of whether or not such warning systems provide adequate and reliable warnings to workers again undermining the application of the rule and the protection of workers.
….
If OSHA choses[sic] to maintain the term “unexpected” in the standard, we urge OSHA to include a definition of the term “unexpected” in the final version of this rule similar to the definition that is included in the OSHA Lockout-Tagout compliance directive. That directive states that “the term unexpected refers to any energization or start-up that is not sanctioned (through the removal of personal LOTO devices) by each authorized employee engaged in the servicing and maintenance activity.” (CPL 02-00- 147)
(OSHA-2012-0007-0761).
OSHA continues to believe that the GMC Delco decisions misconstrued the “unexpected” language of the lockout/tagout standard. However, OSHA also acknowledges the overwhelming opposition to this change and agrees with the many comments that cited complications with this issue due to technological advancements. Further, the AFL-CIO included in its comment a proposal of a path OSHA could follow to uphold the rigor of the proposed rule. In light of the information provided by the comments, OSHA is not in a position at this time to make a final decision on this issue.