This is a follow-up to a previously posted case. An electrical contractor at a steel mill was in a danger zone when the mill technician began locking out the equipment. The LOTO procedure required some counterweights to be lowered to the ground (i.e., ZES). When the mill technician released the counterweight, an apprentice with the electrical contractor was standing underneath it and was killed. OSHA cited the contractor for being in the danger zone without having the energy sources locked out.
On May 31, 2012, the Secretary of Labor (Secretary) issued a two-item serious Citation and Notification of Penalty (Citation) to an Electric contractor. The Citation was issued following an inspection of a steel facility conducted by OSHA on December 9, 2011. The Citation alleged a serious violation of 29 C.F.R. § 1910.147(c)(7)(i) (Item 1) for failing to train its employees on the purpose and function of an energy control program. Item 1 was withdrawn by the Secretary as confirmed during the hearing held on December 18 and 19, 2012, before Administrative Law Judge Ken S. Welsch, now retired from the Commission. The Citation also alleged a serious violation of 29 C.F.R. § 1910.147(f)(3)(ii)(D) (Item 2) for failing to affix personal lockout or tagout (LOTO) devices on the group lockbox before the employees began maintenance and service work on the fans. The Secretary proposed a penalty of $7,000.00 for Citation 1, Item 2.
The electrical contractor denied the applicability of § 1910.147(f)(3)(ii)(D) on the basis that at the time of the accident, the employees were not servicing the fans, and the counterweight was not connected to or associated with the operation of the fans. Following the hearing, on May 10, 2013, Judge Welsch issued a decision vacating Citation 1, Item 2 and its proposed penalty, finding that § 1910.147(f)(3)(ii)(D) was not applicable. As outlined in the procedural history below, the United States Court of Appeals for the Eleventh Circuit found the cited standard was applicable and remanded the decision to the Commission with instructions to reinstate the Citation. Pursuant to the instructions on remand, the Court reinstates Citation 1, Item 2, affirms it as serious, and assesses a $7,000.00 penalty.
The electrical contractor has not challenged the findings of the Eleventh Circuit on the reinstatement of the Secretary’s Citation. The Citation included a proposed penalty of $7,000.00, which the Eleventh Circuit did not address. Therefore, only that $7,000.00 proposed penalty is at issue. The undersigned held a conference call with the parties’ counsel on November 1, 2017, to determine whether the parties would like a hearing and the opportunity to brief on the penalty issue. The undersigned also inquired whether they would like an opportunity to confer regarding the settlement of the penalty issue. Counsel for the parties advised that neither a hearing nor further briefing was necessary, and they would rely on the briefs previously filed in this matter. They did not agree to confer regarding the settlement. Accordingly, the undersigned advised the parties that a decision would be rendered on the record already developed.
The electrical contractor provides electrical service and repair support and has worked as a contractor for the steel plant. The facility is a structured mill that operates twenty-four hours a day, melting and casting scrap metal into billets to form structural materials, including angles, channels, flats, and I-beams. The process involves the use of a cooling bed system, through which the billet goes into a reheating furnace, where it exits upon the cooling bed for the fan to cool the structural form in several cycles. This cooling bed process alone takes approximately forty-five minutes to an hour to bring the structural form from one side of the cooling bed to the other before the form is introduced into a straightener.
In approximately September or October of 2011, the mill requested that the electrical contractor service and replace, as needed, the approximately one hundred cooling bed fans at the facility. The electrical contractor determined seventeen fans needed to be replaced. The electrical contractor needed access to the cooling bed basement to replace the fans. When servicing and maintenance work is scheduled in the cooling bed basement, the mill requires that the machine and equipment be locked out by a mill’s cooling bed maintenance technician. The process takes approximately twenty minutes and involves locking out the machines and equipment at various locations around the bed. On December 9, 2011, at approximately 7:00-7:15 a.m., the electrical contractor’s leadman and an apprentice met with the cooling bed maintenance technician to prepare to replace the final three fans. The maintenance technician told the lead man he would lock out the cooling bed and meet him later. The leadman understood they were to meet at the north end entrance to the cooling basement. The leadman and apprentice then proceeded into the cooling bed basement from the north entrance to conduct an inspection before the fan replacement. Once they left the meeting with him, the maintenance technician moved the three new fans by forklift to the north end of the cooling bed before initiating the mill’s cooling bed lockout procedures. While the leadman and apprentice were in the cooling bed basement, the maintenance technician initiated the LOTO procedure to first activate the cooling bed rake E-stop, which allows counterweights to rotate to a zero energy state, moving the counterweights from a one o’clock position to a de-energized six o’clock position. As a result, the counterweight struck and killed the apprentice and barely missed the lead supervisor.
Penalty Assessment
The Commission is the final arbiter of penalties in all contested cases. The Commission has wide discretion in the penalty assessment. Under § 17(j) of the Act, the Commission must give “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.” The principal factor in a penalty determination is gravity, which “is based on the number of employees exposed, duration of exposure, the likelihood of injuries, and precautions against injuries.”
Although the record does not provide specific evidence of the electrical contractor’s size, the CSHO testified the number of employees employed by the electrical contractor at the time of the incident was “[p]robably in the hundreds.” The purpose of considering employer size in a penalty determination is “to avoid destructive penalties” due to the size of a company and its financial status. There is no evidence in the record that the electrical contractor would face undue hardship should the full proposed penalty be assessed.
The gravity of the violation alleged in Citation 1, Item 2 is high. An the electrical contractor employee died from the failure of the electrical contractor to properly implement LOTO procedures for inspection of the cooling machine and counterweight components. The leadman and apprentice were directly exposed to the hazard of counterweight de-energization through their service and maintenance on the fans for approximately forty-five minutes. In addition, two other the electrical contractor crew members were present on site to complete the fan installation and potentially were at risk. Although only a few employees were exposed for a relatively short period of time, the violation warrants a higher penalty in consideration of the strong likelihood of injury and few precautions taken by the electrical contractor to prevent injury. Exposure to counterweights in completing the fan inspection was inevitable. In inspecting the fans from the cooling bed basement, the CSHO testified that the severity and probability of injury were both high, warranting the gravity-based penalty of $7,000.00.
The LOTO procedures had not been performed, so the counterweights to which the employees were exposed had not been de-energized. With the LOTO procedures not implemented, the counterweights would and did fall to a zero-degree position, making the likelihood of injury very high for any individual present and of the designated walkway during the counterweight de-energization process. Although the fans and counterweights had separate lockouts, the mill’s safety manager testified the cooling bed needed to be locked out before working on the fans and, more generally, that there was “not any place underneath the cooling bed that you [could] go off of that designated walkway without locking everything out”. The maintenance technician similarly explained that pieces of cooling bed equipment “overlap so much that you can’t work on one specific piece without locking out other equipment as well,” and that employees must “physically…crawl up in between the rakes in order to remove the fans”. Even in the event the counterweights were de-energized, the maintenance technician testified “several hazards” existed away from the designated walkway, including numerous pinch points, moving chains, turning sprockets, rotating equipment, and dim lighting. The electrical contractor took few precautions against injury, necessitating a higher penalty.
Nothing in the record reflects a prior history of OSHA violations by the electrical contractor. And although the electrical contractor took several post-accident measures implemented in response to this Citation, such as placing “Danger” tape on the north side gate basement entrance that previously only featured an “Authorized Personnel Only” sign, erecting a chain link fence over the previous chains lining the designated basement walkway to further deter individuals from straying from the designated walkway, modifying its work permit language and re-training leadman.
CSHO testified that the apprentice was found 20-25 feet from the designated walkway per her investigation.
Citation 1, Item 2 is affirmed as serious, and the proposed penalty of $7,000.00 is assessed.
CLICK HERE for the OSHRC decision