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• Occupational Safety and Health Review Commission and Administrative Law Judge Decisions - Drexel Chemical Co. (03-03-1997) (94-1460) (OSHA) (51K PDF)

03/21/1996 - 93-2230 - Caterpillar, Inc.(3)

• Docket Number: 93-2230
• Standard Number: 1910.147
• Case Citation: 17 BNA OSHC 1584
• Company: Caterpillar, Inc.(3)
• Information Date: 03/21/1996

BEFORE: WEISBERG, Chairman, MONTOYA, Commissioner.

BY THE COMMISSION:

Following an inspection of Caterpillar, Inc.'s York, Pennsylvania plant by a Compliance officer of the Occupational Safety and Health Administration ("OSHA"), the Secretary of Labor issued a citation alleging that Caterpillar had violated the OSHA standard at 29 C.F.R. 1910.147(c)(7)(iii)(A) by not giving Lockout/Tagout retraining to all employees who had been given new job assignments. The cited standard requires employers to provide Lockout/Tagout retraining to any employee who undergoes a change in job assignment that presents an energization hazard about which the employee has not previously been trained.(1) Caterpillar contested that citation, and a hearing was held before Administrative Law Judge John H. Frye, III. The judge considered the issue before him to be whether the Secretary had established that all Maintenance mechanics were required to be retrained based on the incidents related by a number of employees. Although he found that the evidence established the need to give Lockout/Tagout retraining to two of these employees, the judge found the evidence insufficient to establish that all the maintenance mechanics had to be given retraining. He therefore vacated the citation. For the reasons below, we agree with the judge that the evidence establishes that two of Caterpillar's maintenance mechanics should have been given Lockout/Tagout retraining. To that extent, however, we set aside his vacation of the citation and find that Caterpillar was in violation.

FOOTNOTE(1) That section provides: 1910.147 The control of Hazardous Energy (Lockout/Tagout). .... (c) General-- .... (7) Training and communication. .... (iii) Employee retraining. (A) Retraining shall be provided for all authorized and affected employees whenever there is a change in their job assignments, a change in machines, equipment or processes that present a new hazard, or when there is a change in the energy control procedures.

On or about January 1, 1993, the York plant underwent a reorganization. As a result, several skilled trades, including pipefitters, millwrights, welders, machine repairmen, and automotive equipment repairmen, were assigned the single job title of Maintenance mechanic. The record establishes that, although many of the maintenance mechanics continued performing the same duties they carried out before the reclassification, some of them were given different job assignments, and they were all, at least theoretically, available to perform any job within that classification.

The first employee the judge found should have been retrained, Messersmith, had been a pipefitter for 20 years before his reclassification as a Maintenance mechanic. On March 21, 1993, Messersmith was assigned to replace a broken cable on a sliding door on a Kearney and Trucker machine, a large computer-operated machine that performs several operations to transform a rough-cast part into a finished part. At the front of the machine, there are two pair of sliding doors that operate in tandem. The outer doors are pneumatically operated. Two feet beyond them is a second pair of doors, which open and close in conjunction with the outer doors but are cable-operated.

Messersmith discussed the problem with the machine's operator. When the machine had completed its cycle, the operator pushed the button or buttons to open the four doors and pushed the emergency stop button. When Messersmith approached the doors, for some unexplained reason, one of them remained in the closed position. Although the operator had told him which door had the broken cable, Messersmith assumed that the door that had not opened was the one in need of repair. Accordingly, he attempted to push it into the open position, where he could more easily work on it. As he was pushing against it, the door suddenly opened, causing Messersmith to fall and suffer minor injuries. Messersmith later learned that the door had opened because there was stored air pressure in the pneumatic cylinder, and said that he was unaware of this because he had not been trained about the Lockout/Tagout hazards associated with this machine before he was assigned to repair it.

The second employee, Durham, had been an automotive equipment repairman before the reclassification. Shortly after the reclassification, Durham was assigned to unclog a jam on the conveyor system that carries materials throughout the plant. There are over three miles of conveyors in the York plant, with numerous belts and motors. When a parcel on one belt reaches the end of that belt, it is moved onto another belt by "air actuators" or "pushers" so that it may continue on its way.(2) The pushers exert approximately 20 to 22 pounds per square inch of force.

FOOTNOTE(2) A "pusher" is a four-inch air cylinder that pushes horizontally through an 18-inch stroke to push a package from one belt to the next, similar to a pin-sweeper in a bowling alley.

Durham determined that the jam was at one of the pushers and removed the jammed parcels. The pusher was stopped in mid-stroke, and Durham testified that he believed the pusher was in neutral because it did not move after the packages had been removed. Because the parcels on the conveyor could not get past the protruding pusher, Durham attempted to push it back, out of the way. He could not reach it with his hand, so he used his foot. When he pushed on it, the pusher unexpectedly completed its cycle and pushed Durham backward. He fell down but was not injured. Durham had repaired conveyors before and had seen the pushers operating, but he had not been trained about how they operate or on deenergizing them.

This evidence establishes that Caterpillar did not comply with section 1910.147(c)(7)(iii)(A) because two employees were required to perform new jobs that exposed them to possible energization hazards about which they had not been trained. Contrary to the judge, we find that these two instances of noncompliance with the standard are sufficient to support a finding that a violation exists. See, e.g., Falcon Steel Co., 16 BNA OSHC 1179, 1183-87, 1993-95 CCH OSHD paragraph 30,059, p. 41,331-36 (No. 89-2883, 1993) (consolidated) (citation affirmed although two of four instances cited were found not to be violations). The Secretary has therefore established that Caterpillar was in violation.(3)

FOOTNOTE(3) Chairman Weisberg notes that the Secretary did not state a position on whether the retraining requirement under the standard is triggered by giving employees a new job title or by actually assigning an employee to work on an unfamiliar piece of equipment. Nevertheless, the Secretary has established that Caterpillar was in violation of the standard as to these two employees under either interpretation of the standard. Given the Secretary's failure to articulate his interpretation of the standard, and given that the record does not establish that any other employees were assigned to perform work on new machines for which they had not received appropriate training, the Chairman cannot find on this record a broader violation of the standard.

The Secretary alleged that the violation was serious and proposed a penalty of $1,125. On review, neither party has addressed either the characterization or the appropriateness of the proposed penalty. Since the penalty is not in dispute, we affirm the violation as serious, and assess a penalty of $1,125.(4)

FOOTNOTE(4) Caterpillar argues that the judge erred in granting the Secretary's post-hearing motion to amend the citation to allege that the violation occurred during a period different from the dates alleged in the citation. Assuming, without deciding whether this issue was directed for review, we affirm the judge's granting of the amendment.

Although Caterpillar objected at the hearing to the Secretary's introduction of evidence about occurences on dates other than those specified in the citation, the company apparently cross-examined fully on those events and even presented a rebuttal witness to some of that testimony. Under the second part of Rule 15(b) of the Federal Rules of Civil Procedure, even though a party has objected to evidence, amendment shall be freely allowed when it furthers presentation of the merits at trial and the objecting party does not show that it would be prejudiced by the amendment. Neither at the hearing nor on review has Caterpillar alleged, much less demonstrated, that it was prejudiced in the presentation of its case by the amendment. The company has not pointed to any evidence that it could have presented that it was not able to present at the hearing. Under these circumstances, the judge did not err in granting the amendment.

Dated: March 21, 1996

05/05/1996 - 95-2779 - DCS Sanitation Management, Inc.

DCS Sanitation Management, Inc. (DCS) appeals the final decision of the Occupational Safety and Health Review Commission (Commission) affirming three citations for willful violation of federal safety regulations. We affirm.

In April 1993, Salvador Hernandez was killed when he became caught in a loin saddle table that he was cleaning at the IBP, Inc. meat-packing facility in Madison, Nebraska.. Hernandez was an employee of DCS, a contract cleaner at the IBP plant. The loin saddle table, which was in operation while it was being cleaned, struck Hernandez in the head and killed him. The table had not been Isolated from its power source, "locked out," as is required by federal regulations. In response to the accident, the Occupational Safety and Health Administration (OSHA) investigated the working conditions at the Madison plant.

During the investigation, OSHA Compliance Officer Frank Winingham visited the plant and took statements from several employees. When interviewing Spanish-speaking employees, a DCS supervisor acted as interpreter. Because he was suspect of the translations given by the supervisor, Winingham contacted DCS management and requested that the employees be made available to him again at an outside location. On May 3, 1993, the DCS regional manager and national operations manager brought six individuals to a hotel for interviews with Winingham. This time Winingham brought his own professional translator. The translator interpreted Winingham's questions into Spanish, interpreted the employees' responses into English, which Winingham then wrote down, and then translated what Winingham had written back into Spanish for the employees to verify.

At the conclusion of the investigation, DCS was cited for five willful violations of OSHA regulations regarding Lockout Procedures. DCS appealed the decision to an Administrative Law Judge. At the hearing, the Secretary of Labor's evidence included the six written employee statements prepared by Winingham. DCS objected to the statements as hearsay, but the objection was overruled. The ALJ affirmed three of the citations: 1) willful failure to train employees in Lockout Procedures; 2) willful failure to follow Lockout Procedures; and 3) willful failure to issue lockout equipment. The ALJ assessed DCS a $70,000 penalty for each affirmed citation. The Commission denied DCS's petition for discretionary review, and the ALJ's decision became a final order of the Commission on May 15, 1995. See 29 U.S.C. ' 661(j) (1994). DCS now appeals that decision.

DCS appeals the decision on two grounds: 1) the written statements were erroneously admitted into evidence, resulting in prejudice to the appellant; and 2) the citations for willful violation of federal regulations are not supported by substantial evidence. We address each point.

I. Hearsay

DCS contends that the written statements taken by Investigator Winingham should have been excluded from evidence because they contain three different levels of impermissible hearsay: 1) the initial employee statements, 2) the interpreter's translation of those statements into English, and 3) the written recording of that translation. The Federal Rules of Evidence are applicable in Review Commission hearings, OSHRC R. Pro. 2200.71 (1992), and therefore, govern our analysis.

A. The Employee Statements

The initial issue is whether the introduction of the employees' oral statements through Investigator Winingham constituted impermissible hearsay. Clearly, they fall under the general definition of hearsay: an out-of-court statement offered to prove the truth of the matter asserted. Fed. R. Evid. 801 (1995). The Secretary argues that the statements, with the exception of the statement by Thomas Luna, fall within the carve-out provided by Rule 801(d) (2) (D) for admissions of employees concerning the matters within the scope of their employment.

To admit a statement under the employee admission exception, a party must establish that the statement was made by an employee of the opposing party during the existence of that employment relationship. Fed. R. Evid. 801(d) (2) (D) (1995). With the exception of Luna, each out-of-court declarant asserted that he was employed by DCS at the time of the statement. DCS argues that this foundation is insufficient. In support of its position, DCS cites a 1970 decision by this court requiring that the foundation establishing the grounds of a hearsay statement's exception must consist of something other than the statement itself, i.e., a hearsay statement cannot "bootstrap" itself into admission by asserting that it qualifies as a hearsay exception. United States v. Bensinger Co., 430 F.2d 584, 593 (8th Cir. 1970).

The Supreme Court has subsequently held, however, that the 1975 congressional enactment of the Rules of Evidence, in which Rule 104 permits courts to consider all evidence when determining admissibility, overruled this prohibition on "bootstrapping." Bourjaily v. United States, 483 U.S. 171, 177-81 (1987) (considering Rule 801(d) (2) (E) regarding co-conspirator statements). While this court has not applied Bourjaily to the employee admissions context, the Ninth Circuit has held that the same Bourjaily logic applies to

801 (d) (2) (D) as well as to 801 (d) (2) (E). In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 906 F.2d 432, 458 (9th Cir. 1990), cert. denied, 500 U.S. 959 (1991). We agree.

In addition, even without considering the foundation asserted within these statements, DCS management brought these individuals to be interviewed in response to the OSHA investigator's request for employees. The logical inference from this fact is sufficient to establish the necessary foundation that the declarants were employed by DCS at the time the statements were made. Therefore, in light of these two adequate bases of foundation, we hold that the ALJ did not abuse his discretion by admitting the statements under the Rule 801 (d) (2) (D) employee admission hearsay carve-out.

B. Translation of the Statements

DCS next argues that even if the statements qualify as employee admissions, the translations of the employee's original statements from Spanish constitute another level of impermissible hearsay. When presented with a similar issue involving the translation of a declarant's statement, the Second Circuit has held that "an interpreter is 'no more than a language conduit' and therefore his translation [does] not create an additional level of hearsay." United States v. Koskerides, 877 F. 2d 1129, 1135 (2d Cir. 1989). By comparison, the Ninth Circuit has chosen a more guarded approach under which the interpreter's biases and qualifications are examined to determine whether the translated statements can fairly be considered to be those of the speaker. See United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991), cert. denied, 113 S. Ct. 107 (1992).

Under either approach, the translations in this case can be attributed directly to the declarant. At the hearing, DCS raised no questions regarding the ability or biases of the interpreter, who was available at the hearing. Even on appeal, the only relevant contention made by DCS is that the interpreter was paid by OSHA, hardly sufficient by itself to require a judge not to attribute the statements directly to the declarant.

DCS's real objection is that it did not have an opportunity to question the employees regarding what DCS characterizes as contradictions between the statements made at the plant and those made at the second interview. DCS misidentifies its concerns regarding this issue of reliability as being "robbed . . . of any opportunity to question the accuracy of the translation." DCS was not so robbed: the translator was available at the hearing for inquiry into her skill, any bias, or the accuracy of the translation. With respect to the reliability of out-of-court statements, such concerns would exist whether the declarant made the statements in English or in Spanish. Faced with a clear rule permitting out-of-court statements made by party employees, DCS now merely attempts to relabel its argument in terms of the accuracy of the translation. The English translations were appropriately attributed directly to the employees.

C. Written Statements

Finally, DCS argues that the writings prepared by Winingham represent yet another level of inadmissible hearsay. This argument is without merit. See Fed. R. Evid. 803 (5) (recorded recollection) and 803 (6) (records of regularly conducted activity).

In sum, we hold that the admission of the written recording of the translated employee statements was not error.

II. Sufficiency of the Evidence

The next issue raised by DCS is whether there was substantial evidence to sustain the citations for willful violation of OSHA Regulations, 29 C. F. R. '' 1910.147 (c) (7) (i),

1910.147 (c) (5) (i), and 1910.147 (d) (3) (1993). The finding of a willful violation will be upheld if supported by substantial evidence of the record as a whole. 29 U.S.C. ' 660 (a) (1994); Western Waterproofing Co. v. Marshall, 576 F.2d 139, 142 (8th Cir.), cert. denied, 439 U.S. 965 (1978). This court has held that a violation is willfully committed if the defendant's actions demonstrate an intentional disregard of or plain indifference to the act's requirements. Valdek Corp. v. OSHA, No. 95-2194, slip op. at 4 (8th Cir. Jan. 22, 1996).

A. Violation of Section 1910.147 (c) (7) (i): Failure to Provide Training

Section 1910.147 (c) (7) (i) requires employers to "provide training to ensure that the purpose and function of the Energy Control Program are understood by the employees and that the knowledge and skills required for the safe application, usage, and removal of the energy controls are acquired by employees." 29 C.F.R. ' 1910.147 (c) (7) (i) (1993). In support of the citation, the Secretary offered the testimony of Manuel Hernandez, brother and co-worker of the deceased, as well as the statements taken by Winingham. Each asserted that he had not been trained in Lockout Procedures before the accident. Although DCS claims that Hernandez is not credible because of his relationship to the decedent, the issue of credibility is a matter for the trier of fact who, in this case, credited the testimony.

In addition to the statements made by DCS employees, IBP employees testified that they observed numerous safety violations and informed DCS supervisors. DCS argues that such testimony only proves that the employees failed to practice the appropriate safety procedures, not that DCS did not provide adequate training. Even if DCS were to have provided some safety instruction, if DCS supervisors encouraged employees to disregard procedures to increase efficiency, such safety instruction would be meaningless and insufficient. See National Indus. Constructors, Inc. v. O.S.H.R.C., 583 F.2d 1048, 1056 (8th Cir. 1978) (holding that condoning violations of safety rules constitutes a violation of OSHA safety program requirement). Thus, the testimony of the IBP employees permits a reasonable inference that DCS managers promoted a work environment that ignored and neutralized any safety training received by DCS employees.

Therefore, the testimony of DCS employees asserting the absence of training and the evidence demonstrating an indifference on the part of DCS managers to Compliance with federally-required, safety procedures substantially support the Commission's decision to cite DCS for a willful violation of 29 C.F.R. ' 1910.147 (c) (7) (i) (1993).

B. Violation of Section 1910.147 (d) (3): Failure to Follow Procedures.

Section 1910.147 (d) (3) requires that "[a] ll energy isolating devices that are needed to control the energy to the machine or equipment shall be physically located and operated in such a manner as to isolate the machine or equipment from the Energy Source(s)." 29 C.F.R. ' 1910.147 (d) (3) (1993). The ALJ affirmed the citation for the violation that occurred when Salvador Hernandez was killed by the unlocked loin saddle table. In its defense, DCS argues that the violation was a result of unforeseeable employee misconduct. "To establish the defense of unforeseeable employee misconduct, [the defendant] must prove that it had a work rule in place which implemented the standard, and that it communicated and enforced the rule." Valdek Corp., No. 95-2194, slip op. at 4 (emphasis added). As discussed above, there was substantial evidence that DCS managers permitted, if not promoted, an atmosphere that ignored safety procedures. Specifically, Manuel Hernandez testified that his supervisor showed him how to clean machines that were still operating. The written statements taken from the DCS employees asserted that it was commonplace for employees to climb over and reach into running machines. IBP managers testified that they reported their observations of employee safety violations to DCS managers, but received little assurance. Accordingly, DCS is unable to establish its defense, and the Commission's decision is affirmed.

C. Violation of Section 1910.147 (c) (5) (i): Providing Lockout Equipment.

Finally, DCS appeals the citation for a willful failure to provide Lockout equipment. Although DCS offered some documentation that employees, including the decedent, were issued locks, the Secretary offered the testimony of Manuel Hernandez and the statements of Jose Hernandez and Eusebio Moreles that asserted that they were not issued locks as part of their training. This testimony provides a sufficient basis to sustain the decision of the Commission.

For the above-stated reasons, we affirm the decision of the Commission finding that DCS willfully violated federal safety regulations.

03/03/1997 - 94-2527 - Tops Markets, Inc.

• Docket Number: 94-2527
• Standard Number: 1910.147
• Case Citation: 17 BNA OSHC 1935, 1997 CCH OSHD paragraph 31,257, Aff'd, 132F.3d1482 (D.C. Cir. 1997)(Tabl
• Company: Tops Markets, Inc.
• Information Date: 03/03/1997

BEFORE: WEISBERG, Chairman; MONTOYA and GUTTMAN, Commissioners.

BY THE COMMISSION:

Tops Markets, Inc., operates a supermarket and specialty bakery in Amherst, New York. The Occupational Safety and Health Administration ("OSHA") inspected the bakery in May of 1994 after a Tops' employee seriously injured his finger on a Benier Kaiser Roll machine that started up unexpectedly while he was changing a die. The machine had not been unplugged. The OSHA inspection also revealed that Tops' employees did not unplug a Benderc Overhead Proofer machine before unjamming dough from it. The unexpected energization or start up of this machine could crush, severely bruise, or lacerate the employees' fingers or hands.

OSHA contends that Tops violated three Lockout/Tagout ("LOTO") standards that require employers to make periodic evaluations of the LOTO procedures in use in their plants, to train their employees in the LOTO requirements, and to ensure that all LOTO devices on their machines are operated or used to isolate the machines from their energy sources.(1) Tops counters that the two machines were exempt from the LOTO standards pursuant to an exemption at 1910.147(a)(2)(iii)(A):

This [LOTO] standard does not apply to ... [w]ork on cord and plug connected electric equipment for which exposure to hazards of unexpected energization or start up of the equipment is controlled by the unplugging of the equipment from the Energy Source and by the plug being under the exclusive control of the employee performing the Servicing or Maintenance.

FOOTNOTE(1) The pertinent parts of 29 CFR 1910.147 are:

(c) General- ....

(6) Periodic inspection. (i) The employer shall conduct a periodic inspection of the Energy Control Procedure at least annually to ensure that the procedure and the requirements of this standard are being followed. ....

(7) Training and communication. (i) The employer shall provide training to ensure that the purpose and function of the Energy Control Program are understood by employees and that the knowledge and skills required for the safe application, usage, and removal of the energy controls are acquired by employees.... ....

(d) Application of control ....

(3) Machine or equipment isolation. All energy isolating devices that are needed to control the energy to the machine or equipment shall be physically located and operated in such a manner as to isolate the machine or equipment from the Energy Source(s).

Tops reads the exemption to mean that a cord and plug connected machine is not covered by the LOTO standards if unplugging it would prevent its unexpected energization and the employee can retain exclusive control of the plug during his work. Tops does not read the exemption to hinge on whether the machine is actually unplugged and controlled during machine Servicing and Maintenance.

OSHA's position, however, is that the exemption only applies to machines that are actually unplugged with the plug under the exclusive control of the Servicing and Maintenance employees. Administrative Law Judge Robert A. Yetman found in favor of OSHA and therefore affirmed the three serious citation items. He assessed penalties in the amounts of $900, $2,250, and $2,250.

The language of the exemption to the LOTO standard is ambiguous. The Secretary argues that "[w]ork ... for which exposure to hazards ... is controlled by the unplugging" suggests not only that unplugging be possible but also that it must be done during the work.(2) However, the complete wording of the exemption refers to "[w]ork on cord and plug connected electric equipment for which exposure ... is controlled by the unplugging" (emphasis added). As Tops points out, the verb form "is controlled by" more usually refers to "an examination of an ongoing status" or "a characteristic" that is "unchanging." This reading suggests that "is controlled by the unplugging" points to an existing safety feature of the cord and plug equipment.(3)

FOOTNOTE(2) The Secretary notes that the exemption might implicity require employers to undertake some minimal and simple program, training, and inspection duties in order to ensure that their employees actually unplug the equipment and retain control of the plugs, but if these two things are accomplished, the employers have none of the more formal and detailed LOTO program, training and inspection duties.

FOOTNOTE(3) Tops also points out that some cord and plug machines are not controlled by simply unplugging them, i.e., there are some machines that store energy and that can still operate after being unplugged. In Tops' view, this explains the exemption's language specifying "cord and plug connected electric equipment for which exposure to hazards of unexpected energization or start up of the equipment is controlled by the unplugging of the equipment" (emphasis added).

When a standard is ambiguous, we turn to the legislative history. See, e.g., Nooter Constr. Co., 16 BNA OSHC 1572, 1574, 1993-95 CCH OSHD paragraph 30,345, pp. 41,837-38 (No. 91-237, 1994). The preamble to the Secretary's LOTO standard plainly states: "OSHA has decided that the Lockout/Tagout requirements of the standard will not apply to cord and plug connected equipment if the equipment is unplugged and the plug is in the exclusive control of the employee who is performing the Servicing or Maintenance of that equipment." 54 Fed.Reg. 36663 (1989) (emphasis added). This shows that the Secretary intended to limit the exemption's applicability to situations where the cord and plug equipment is unplugged. As we have previously stated, we find the preamble to be persuasive evidence of the intent of the regulation.(4) See American Sterilizer Co., 15 BNA OSHC 1476, 1478, 1991-93 CCH OSHD paragraph 29,575, p. 40,015-16 (No. 86-1179, 1992) (preamble as "best and most authoritative statement of the Secretary's legislative intent" for standard susceptible to different interpretations).

FOOTNOTE(4) Given the clarity with which the Secretary stated this rule in the preamble, Commissioner Montoya is perplexed that the standard as issued is so open to interpretation.

Accordingly, we find the LOTO exemption to be inapplicable to Tops' operations because its machines were not unplugged. Thus we affirm the judge's decision.(5)

FOOTNOTE(5) Tops asserts that "it is entirely possible" that the plugged-in machines had safety devices to prevent or warn of possible start-up, and that the Secretary therefore failed to prove that the machines presented a hazard of "unexpected" start up. See General Motors Corp., 17 BNA OSHC 1217, 1993-95 CCH OSHD paragraph 30,793 (No. 91-2973, 1995), aff'd, 89 F.3d 313 (6th Cir. 1996). We find otherwise, however. One machine actually caused an injury by unexpectedly starting up while plugged in, and on review Tops does not specifically assert that there were safety devices on either machine. Moreover, Tops stipulated that "the unexpected energization or start up" of plugged-in machines "could cause injury to employees during Servicing or Maintenance."

The parties have stipulated that, if the exemption is inapplicable, the three citation items should be affirmed as serious violations and penalties in the amounts of $900, $2,250, and $2,250 should be assessed. Accordingly, we affirm the citation items as serious violations and assess the stipulated penalties.

Dated: March 3, 1997

07/18/1996 - NO. 95-3660 - General Motors Corporation, Delco Chassis Division.

ON PETITION for Review of a Final Order of the Occupational Safety and Health Review Commission

Decided and Filed July 18, 1996

Before: NORRIS, SILER, and GODBOLD, Circuit Judges.

The Honorable John C. Godbold, Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, sitting by designation.

ALAN E. NORRIS, Circuit Judge. The Secretary of Labor petitions for review of a final order of the Occupational Safety and Health Review Commission ("OSHRC") affirming an administrative law judge's decision to vacate three citations issued to respondent General Motors Corporation ("GM") for violating 29 CFR Section 1910.147. We agree with OSHRC that the citations should be vacated.

I. Facts and Proceedings Below

Over the course of several visits to GM manufacturing plants, Occupational Safety and Health Administration ("OSHA") Compliance officers observed GM workers Servicing three machines that remained connected to their power supplies throughout the servicing operation. OSHA cited GM for violating OSHA ' s Lockout/Tagout safety standard, 29 CFR Section 1910.147. This standard requires that certain industrial machines be shut down and disconnected from their power source for the duration of servicing or repair operations. The standard's scope provision limits the applicability of the standard to 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 CFR Section 1910.147(a)(1)(i). The standard does not define "unexpected."

GM appealed the citations to one of OSHRC's administrative law judges, who vacated the citations.

The Secretary petitioned OSHRC to reinstate the citations, arguing that the standard applies where injury "could occur in the event of an unintended" start up of a machine. However, OSHRC considered the standard's scope provision and concluded that the term "unexpected" renders the Lockout Standard inapplicable to machines that give Servicing employees sufficient advance notice or warning of machine start up to allow them to vacate the zone of danger. OSHRC then reviewed the workings of the three machines and held that the Secretary's evidence failed to establish that the machines could have started up without first warning the servicing employec. In particular, OSHRC found that to service any of the three machines, an employee had to pass through electronically inter-locked gates that immediately deactivated the machines when opened. OSHRC further found that once deactivated, an eight to twelve step process had to be followed to restart each of the machines and that, either by audible or visual signals or the presence of company workers in the immediate area, this multi-step process would have alerted servicing employees that the machines were about to start up. Given the advance notice provided by the start-up warning sequences, OSHRC held that the standard did not apply to GM's machines because they could not be subjct to "unexpected" energization.

On appeal, the Secretary does not dispute OSHRC's factual findings but argues that OSHRC erred in failing to apply his interpretation of the scope provision's reference to "unexpected" energizations. Shifting course a bit from his argument before the Commission, the Secretary now argues that "unexpected" means "unanticipated" or "unplanned-for. "

II. Analysis

By its terms, the Lockout Standard's scope provision limits the applicability of the regulation to machines that could cause injury if they were to start up unexpectedly. The Secretary argues that the standard applies "whenever equipment could injure employees if it becomes activated before the Servicing employee plans for it to be activated."

The Administrative Procedure Act requires this court to set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Section 706 (2) (A). This court accords substantial deference to the Secretary's construction of an OSHA standard if it is ambiguous and the Secretary's interpretation of it is reasonable. Martin v. OSHRC, 499 U.S. 144, 156 (1991); Martin v. American Cyanamid Co., 5 F. 3d 140, 144 (6th Cir. 1993). However, we need not defer to the Secretary's interpretation where an "alternative reading is compelled by the regulation's plain language or by other indications of the Secretary's intent at the time of the regulation's promulgation." Gardebring v. Jenkins, 485 U.S. 415, 430 (1988).

We conclude that the plain language of the Lockout Standard unambiguously renders the rule inapplicable where an employee is alerted or warned that the machine being serviced is about to activate. In such a situation, "energization" of the machine cannot be said to be "unexpected" since the employee knows in advance that machine startup is imminent and can safely evacuate the area. The standard is meant to apply where a service employee is endangered by a machine that can start up without the employee's foreknowledge. In the context of the regulation, use of the word "unexpected" connotes an element of surprise, and there can be no surprise when a machine is designed and constructed so that it cannot start up without giving a Servicing employee notice of what is about to happen.

Even if the standard were ambiguous so as to lend itself to interpretation, it does not follow that the Secretary's interpretation is reasonable. As noted above, the Secretary construes the word "unexpected" to mean unintended, unanticipated, or un-planned for. This interpretation so significantly narrows the meaning of "unexpected" as to make it meaningless, because it would expand the standard's application to cover virtually all machines whether or not the Servicing employee knows ahead of time that start up is imminent and has ample time leave the area before machine movement can become hazardous. All the synonyms urged on us and the Commission by the Secretary appear to argue for a standard essentially limited to situations where a machine can start up only if the servicing employee starts it up or directs someone else to do so. Surely that is an impermissibly narrow reading of "unexpected" - Of the many terms the drafters could have selected-- including "unintended," "unanticipated," and "unplanned-for"-- they chose "unexpected."

The Secretary argues that the "employer need only determine whether employees could be injured if the equipment is Energized, starts up, or releases Stored Energy during the Servicing operation." This test expressly omits the word "unexpected." An interpretation that ignores the import of the word is plainly unreasonable when one considers that the rule repeats the word "unexpected" throughout the standard and twice emphasizes it by placing it in italics. 29 CFR Section 1910.147(a)(1)(i) and (b). The drafters of the language obviously assigned importance to the word, and it is unreasonable for the Secretary to ignore it. If the Secretary wishes to broaden application of the standard, the rulemaking process affords him a ready opportunity to do so.

III: Conclusion

In sum, the Lockout/Tagout Standard covers only those machines that do not provide Servicing workers sufficient advance notice of start up to avoid injury. Because the Secretary does not appeal the factual findings of the administrative law judge or OSHRC, and because we agree that OSHRC correctly applied the terms of the standard's scope provisions, the final order of OSHRC is affirmed.

04/26/1995 - 91-2973 - General Motors Corporation, Delco Chassis Division.

• Docket Number: 91-2973
• Standard Number: 1910.147
• Case Citation: 17 BNA OSHC 1217
• Company: General Motors Corporation, Delco Chassis Division
• Information Date: 04/26/1995

BEFORE: WEISBERG, Chairman; FOULKE and MONTOYA,
Commissioners.

BY THE COMMISSION:

At issue is whether former Commission Judge Edwin G. Salyers erred in vacating citations that alleged failure by General Motors Corp., Delco Chassis Div. ("GM") to deenergize and Lockout machines under the Lockout/Tagout Standard, 29 CFR 1910.147.(1) We find that, by its plain meaning, the standard applies only to those machines and pieces of equipment for which energization or start up would be unexpected by employees. The Secretary has argued for an interpretation that would have the Commission ignore this requirement. We agree with the judge, however, that the standard requires the Secretary to establish that a cited piece of equipment or machinery presents the hazard of unexpected energization, and that he failed to do so in each of the three cases here. We thus affirm the judge's decision.(2)

FOOTNOTE(1) In each of these cases, GM was cited for failure to require its employees to Lockout electrically-powered machines prior to Servicing or Maintenance. The machines were used to manufacture automotive parts at GM's plants at Vandalia and Dayton, Ohio. In Docket No. 91-2973, the cited standard is section 1910.147(d)(4)(i). That section provides:

• (d) Application of control. The established procedures for the application of energy control (the Lockout or Tagout procedures) shall the cover the following elements and actions and shall be done in the following sequence:
  ....
• (4) Lockout or tagout device application. (i) Lockout or tagout devices shall be affixed to each energy isolating device by authorized employees.

Section 1910.147(b) defines an "energy isolating device" as a "mechanical device that physically prevents the transmission or release of energy." Examples are "a manually operated circuit breaker [or] a disconnect switch." That definition also provides that "[p]ush buttons, selector switches and other control circuit type devices are not energy isolating devices." A "Lockout Device" is a lock or other positive means that holds an energy isolating device in a safe position so that a deenergized machine or equipment remains deenergized. Id. In Docket Nos. 91-3116 & 91-3117, the cited standard is section 1910.147(c)(4)(i).

That section provides:

• (c) General--(1) Energy Control Program....
  ....
• (4) Energy Control Procedure. (i) Procedures
  [including a Lockout Procedure] shall be developed, documented and utilized for the control of potentially hazardous energy when employees are engaged in the activities covered by this section.

The Secretary has withdrawn the other alleged violations that were directed for review. Those items alleged deficiencies in GM's written Lockout program under section 1910.147(c)(4)(ii), in Docket Nos. 91-3116 and 91-3117. We accept the Secretary's withdrawel of those items.

FOOTNOTE(2) The pre-enforcement challenges to the validity of the Lockout/Tagout Standard recently were rejected. International Union, UAW v. OSHA, 37 F.3d 665 (D. C. Cir. 1994) ("UAW v. OSHA II"). The court found "that OSHA's current interpretation of its statutory authority to issue safety standards is consistent with the nondelegation doctrine and that its explanations of the other disputed decisions are adequate[.]" Id. at 668. In 1991, the court had remanded the standard to OSHA for a supplemental statement of supporting reasons, on the ground that the agency's interpretation of its authority was not consistent with the nondelegation doctrine. International Union, UAW v. OSHA, 938 F.2d 1310 (D. C. Cir. 1991) ("UAW v. OSHA I").

I. The application of the standard

The Lockout/Tagout Standard begins with a scope provision, the first sentence of which reads as follows:

This standard 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 CFR 1910.147(a)(1)(i) (emphasis in original). The Secretary's case is premised upon his "official interpretation" of this sentence. Transposing the operative language, the Secretary frames the applicability inquiry as follows: "whether injury could occur in the event of an unintended energization, start up, or release of Stored Energy." Having thus interpreted the scope provision, the Secretary reasons that the Lockout/Tagout Standard applies regardless of "how likely or remote the chances of" unexpected energization are and argues that any other conclusion "constitutes nothing less than a prohibited challenge to the wisdom of the standard."

Like all other Commission judges whose decisions have been cited to us,(3) Judge Salyers concluded that the language in question renders the standard inapplicable whenever employees are given sufficient notice of energization to allow them to vacate the zone of danger. In situations where the meaning of regulatory language is "not free from doubt," the Commission, like any reviewing court, must give effect to the Secretary's reasonable interpretations of his regulatory language. Cf., e.g., Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144, 150 (1991).

FOOTNOTE(3) Armco Steel Co., OSHRC Docket No. 93-641 (December 20, 1993) (ALJ Loye); Caterpillar, Inc., 92 OSAHRC 67/C8 (Docket No. 92-127, 1992) (ALJ Barkley). See also Metal Shredders, Inc. 92 OSAHRC 17/A2 (Docket No. 90-2273, 1992) (ALJ Burroughs) (work that was not performed under Lockout in that case was not Servicing or Maintenance, and all affected employees expected equipment to start up).

In determining whether the language of a standard is ambiguous, we first look to its text and structure. When the statute speaks with clarity, in all but the most extraordinary circumstances, judicial inquiry is ended. E.g., Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2594 (1992). Only if we can make no initial determination need we refer to contemporaneous legislative histories of the standard. If the question remains unsettled, we look to the reasonableness of the interpretation of the agency that administers the challenged standard. Kiewit Western Co., 16 BNA OSHC 1689, 1693, 1993 CCH OSHD paragraph 30,396, p. 41,940 (No. 91-2578, 1994) (citing Unarco Commercial Prods., 16 BNA OSHC 1499, 1502-03, 1993 CCH OSHD paragraph 30,294, p. 41,732 (No. 89-1555, 1993)).

Examining further the text of the standard, not only does the very first provision emphasize that its scope is limited to "unexpected" energization, startup, or release of Stored Energy, but the definition of covered Maintenance and Servicing contains the same limitation:

Servicing and/or Maintenance. Workplace activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and maintaining and/or servicing machines or equipment. These activities include lubrication, cleaning or unjamming of machines or equipment and making adjustments or tool changes, where the employee may be exposed to the unexpected energization or startup of the equipment or release of Hazardous Energy.

Section 1910.147(b) (emphasis in original).(4) OSHA literally underscored the importance of the standard's limitation to "unexpected" energization, etc., by italicizing that word in those two provisions--a form of emphasis that OSHA rarely uses. The same limitation is restated in the general requirement for an energy program, section 1910.147(c)(1), which the Secretary describes as "[p]erhaps the clearest summary of the requirements of 1910.147."

FOOTNOTE(4) GM has not conceded that its employees were engaged in "Servicing and/or Maintenance within the meaning 1910.147(b), because in its view that definition is limited to activities where inadvertent activation of the machine or equipment could occur and cause injury.

The employer shall establish a program consisting of energy control procedures, employee training and periodic inspections 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.

(Emphasis added.)(5)

FOOTNOTE(5) Other provisions are to the same effect. The stated purpose of the standard is as follows:

This section requires employers to establish a program and utilize procedures for affixing appropriate Lockout Devices or tagout devices to energy isolating devices, and to otherwise disable machines or equipment to prevent unexpected energization, start-up or release of stored energy in order to prevent injury to employees.

Section 1910.147(a)(3)(i) (emphasis added). Similar language appears in certain other provisions: sections 1910.147(a)(2)(iii)(A), (c)(4)(i) (exception to requirement of Energy Control Procedure), (f)(4), and Appendix A.

We find that the standard clearly and unambiguously applies only where the Secretary shows that unexpected energizing, start-up or release of Stored Energy could occur and cause injury. Under these circumstances, we find it unnecessary to look outside the standard itself for guidance as to its meaning. E.g., Brown v. Gardner, 115 S. Ct. 552, 556 (1994) (long-standing Veterans' Affairs Department interpretation of statute overruled--"the text [of the statute] and reasonable inferences from it give a clear answer against the Government, and that, as we have said, is `the end of the matter"') (quoting Good Samaritan Hosp. v. Shalala, 113 S.Ct. 2151, 2157 (1993)); Unarco, 16 BNA OSHC at 1503 & n.3, 1993 CCH OSHD at p. 41,732 & n.3. See generally 2A Singer, Sutherland Stat. Const. 46.01 (5th ed. 1992) (citing Caminetti v. United States, 242 U.S. 470 (1917) ("[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain [and if the statute is constitutional], the sole function of the courts is to enforce it according to its terms")).

However, even if we were to look beyond the standard's terms, we find any ambiguity is clarified in the legislative history and that the Secretary's interpretation is unreasonable. The preamble to the standard expressly limited its applicability to situations where "unexpected energization," etc.,(6) is a hazard. For example, the opening summary of the preamble states:

FOOTNOTE(6) The term "energization, etc.," is our shorthand for the separate concepts of "energization, startup, or release of Stored Energy."

This standard addresses practices and procedures that are necessary to disable machinery or equipment and to prevent the release of potentially Hazardous Energy while Maintenance and Servicing activities are being performed.

Control of Hazardous Energy Sources (Lockout/Tagout): Final Rule, 54 Fed. Reg. 36,644 (1989), as corrected by 55 Fed. Reg. 38,677 (1990) (emphasis added). The preamble explains the standard's scope as follows:

The standard covers Servicing and Maintenance in general industry where the unexpected energization or start-up of machines or equipment or the release of Stored Energy could cause injury to employees.

54 Fed. Reg. at 36,659. There are many other statements to the same effect in the preamble. As we read it, the preamble can only support the plain language of the standard that limits its application to machines or equipment where an unexpected energization could cause injury to employees.

In addition to the preamble, other contemporaneous documents make clear that the standard is limited to risks of unexpected energization, etc. For example, OSHA Publication No. 3120, Control of Hazardous Energy (Lockout/Tagout) 2 (1991), states that if employees are performing Servicing or Maintenance tasks that do not expose them to the unexpected release of hazardous energy, the standard does not apply. The 1994 edition of that publication makes the same statement. OSHA's internal instructions for administering section 1910.147 use comparable language. OSHA Instruction STD 1-7.3, Control of Hazardous Energy Lockout-Tagout)--Inspection Procedures and Interpretive Guidance, I.1.b., d., e. (September 11, 1990). Thus, the Secretary's contemporaneous publications and the statements therein consistently reaffirm that the Secretary meant what he said in the standard--it applies only where unexpected energization, etc., could occur and cause injury to employees.

The plain and unambiguous terms of the standard, and the support of the legislative history, is so overwhelming that the Commission need not even consider the Secretary's current interpretation. We note, however, that the Secretary's interpretation is inconsistent with the standard's terms. He interprets it to apply to every piece of machinery and equipment regardless of whether it could start up unexpectedly. The Secretary would require Lockout/Tagout even if the record shows there is no possibility of "unexpected" energization, etc. As GM states, the Secretary would "inquire only into whether an employee could be injured if unexpected energization [etc.] were to occur (even if, in fact, it could not)."

This interpretation fails to give effect to the entire clause that defines the standard's application. We cannot ignore the term "unexpected" as a limitation on the application of the standard. Regulations are to be read so as to give effect to all their terms, if possible. E.g., United States v. Menasche, 348 U.S. 528, 538-39 (1955). See Brown v. Gardner, 115 S. Ct. at 556 (maxim of statutory interpretation held relevant to whether agency had properly interpreted its governing statute) (citing Russello v. United States, 464 U.S. 16, 23 (1983)). Again, the Secretary not only emphasized that limitation, but wrote it in repeatedly and purposely.

The Secretary may change his standard, but his interpretation of his current standard could only be "reasonable" if it "sensibly conforms to the purpose and wording of the regulations." CF & I, 499 U.S. at 151 (citing Northern Indiana Pub. Serv. Co. v. Porter County Chapter of Izaak Walton League of America, Inc., 423 U.S. 12, 15 (1975)); Martin v. American Cyanamid Co., 5 F.3d 140, 144 (6th Cir. 1993). Here, the Secretary's interpretation is plainly inconsistent with the wording of the regulations. His reading would essentially remove all limits to the standard's applicability.

The Secretary's interpretation in this case also contrasts sharply with portions of his supplemental statement of reasons supporting the standard. In that document, which the D.C. Circuit required during the pre-enforcement challenge to the standard, see supra note 2, the Secretary sought to reassure the court that he interpreted the standard to contain a common-sense limit to situations where unexpected energization, etc., could cause injury to employees.

The standard [does not apply] to Servicing and Maintenance that present minimal and readily controlled risk .... [E]ach covered employer's burden is determined by the frequency and complexity of servicing actually undertaken.... Machines and equipment that present no hazard are excluded from coverage.

Final rule: supplemental statement of reasons, 58 Fed. Reg. 16,612, 16,621 (1993) (emphasis added). The Secretary further emphasized before the D. C. Circuit that the standard applies only to machines and equipment that pose a significant risk of harm and to employees exposed to that risk. See UAW v. OSHA II, supra note 2, 37 F.3d at 670 ("[i]f, as OSHA asserts and NAM [the National Association of Manufacturers] appears not to dispute, the regulation applies simply to machines that pose a significant risk and to workers subjected to that risk, we see no reason why OSHA should be concerned with industry classifications that appear essentially irrelevant to its task") (emphasis in original).

Yet, in this enforcement action the Secretary contends that GM should not be allowed to prove that its machines and equipment present no hazard or no significant risk of harm. The Secretary essentially argues that he alone may decide whether such machines and equipment present a hazard of unexpected energization, etc., or a significant risk of harm, and that employers and the Commission may not question that determination. We again do not believe that the standard can be reasonably read to require the result the Secretary seeks.

Finally, we find no merit in the Secretary's claim that Judge Salyers's reading of the standard: (1) violates the requirement that the Authorized Employee have exclusive control over his/her safety, and (2) rewrites the definition of "energy isolating device." That claim presumes that there always is a hazard of unexpected energization, etc., on every industrial machine and piece of equipment during Servicing and Maintenance. The terms of the standard clearly place the burden on the Secretary to show that there is such a hazard as to the cited machines and equipment. The Secretary must show that there is some way in which the particular machine could energize, start up, or release Stored Energy without sufficient advance warning to the employee. However, the Secretary seeks to disallow reliance on even the most failsafe control circuit devices--even where the employees as well as employers favor them. We find that this unreasonable approach is flatly inconsistent with the unambiguous terms of the standard, as well as the preamble and the Secretary's other contemporaneous explanations of the standard.(7)

FOOTNOTE(7) The standard contains certain specific exceptions to Lockout/Tagout requirements, as the dissent notes. However, the Secretary must show that the standard applies before the exceptions become relevant. Because the Secretary failed to show that unexpected energization, etc., could occur on the cited machines, he has not shown that the standard applies, and thus we need not consider the exceptions.

II. Whether the Secretary proved that unexpected activation could occur and cause injury

It is undisputed that the machines had extensive precautions to protect Servicing and Maintenance employees. An electronically interlocked gate surrounded the machine area in each case. Once an employee opened that gate or pushed an emergency stop button, a time-consuming series of eight to twelve steps were required before any hazardous movement of the machine could occur. The evidence indicated that the restart procedures would provide plenty of warning to the employees, in the form of alarms and visible motions, so that they could avoid any hazardous movement of the machinery.

The Secretary presented testimony at the hearing, however, that unexpected activation (startup or release of Stored Energy) actually could occur on GM's machines because they were not routinely deenergized or locked out. The judge found the Secretary's evidence insufficient. On review, the Secretary does not specifically contest the judge's factual findings or present an argument for finding unexpected activation on the particular facts of these cases. In fact, the Secretary does not dispute GM's assertion that he has abandoned any objections to the judge's factual findings. On the other hand, the Secretary summarizes the facts and relies on the injury described in Docket No. 91-3116 as evidence of the general risk of injury from failure to Lockout.

We affirm the judge's factual findings and his conclusions. GM's expert witness, engineer Richard Parry, testified convincingly that unexpected activation could not occur on any of the machines under GM's procedures. The judge properly relied on Parry's testimony. He did not discredit the contrary testimony of OSHA's Compliance officers ("CO's"), but found that Parry had "superior knowledge and experience" regarding the machines at issue. Thus, he concluded that in each case, "Parry's testimony is entitled to greater weight."

Parry testified that the machine involved in each case would shut down immediately if the employee first: (1) opened the interlocked barrier gate around it, as the employees were trained to do, or (2) pushed an emergency stop button. In either event, there could be no unexpected activation. The basic reason is that a time-consuming startup procedure of at least eight steps, most of them obvious to the Servicing or Maintenance employee, would be required before any hazardous activation of the equipment could occur.

The restart procedures could be performed by an employee other than the one performing Servicing or Maintenance, but the latter could not help being aware that they were taking place. In Docket No. 91-2973, eight to eleven startup steps were required, and numerous warning bells would sound during the process. In Docket No. 91-3116, twelve startup steps were required and were all performed within 4 feet of the servicing or maintenance employee. In Docket No. 91-3117, eight startup steps, including many movements by the robot arm that would be obvious to the servicing or maintenance employee, would be required before any hazardous movement could occur.(8) As a result, the servicing or maintenance employee would know of, and have plenty of time to avoid, the hazards. Parry's testimony about the multi-step startup procedure completely disposes of the alleged hazards in Docket No. 91-2973. We vacate the citation in that case accordingly.

FOOTNOTE(8) The startup process in Docket No. 91-3117 was typical of the others. The judge summarized it as follows:

1. All interlock gates would have to be closed;
2. The start button on the control console would have to be pushed, which activates the robot system and instructs it to orient itself as to location. This takes some time and, if not in the home position, the robot returns to the home position;
3. The robot then proceeds to the conveyor area where the bushings are located and picks one up;
4. The robot then rotates to the press area;
5. The robot places a bushing into a funnel;
6. The robot next picks up a dog bone [metal piece into which bushings are inserted] and the other bushing;
7. The robot returns to the funnel, drops a bushing, and places the dog bone into a fixture; and
8. Only after the above sequence of tasks is completed will the solenoid valve be signaled to activate the compressed air power to initiate movement of the press.

The CO's testified in Docket Nos. 91-3116 & 91-3117 that one of the hazards was inadvertent activation of the equipment in the event of a short circuit or ground. However, Parry contradicted that testimony. He testified that the electrical model on which the CO's relied, a 2-wire, 110-volt system, was not used by GM. He further testified that a short circuit or ground in GM's system (using 3-wire, 220-volt connections) would result in shutting the machinery down, not starting it up. Parry's testimony establishes that no hazard existed in either case due to possible electrical failure. We vacate the citation in Docket No. 91-3117 based on Parry's testimony regarding that issue and regarding the multi-step startup procedure in that case.

Finally, in Docket No. 91-3116, the Secretary relies on the fact that an employee actually was injured while Servicing the machine.(9) The union safety and health representative at the plant, Thomas Ashburn, testified that based on his investigation of the incident, the employee had followed proper procedures. However, Parry testified that the employee could not have followed proper procedures and must have entered the machine area without using the interlocked barrier gate as required. He testified that GM thoroughly investigated and that its engineers could not cause any movement of the machinery to occur once the barrier gate was opened. Parry testified that once that gate was opened or an emergency stop button was hit, there could be no startup of any equipment until another time-consuming, multi-step startup procedure was completed, which inevitably would alert the servicing or Maintenance employee.

FOOTNOTE(9) GM employee Kaye Lowe was injured by a robot while Servicing the A-7 module. It is undisputed that Lowe's injury happened when she was at the dial table servicing the machinery. She was attempting to release a ball joint that had become jammed at the point where they are greased. Apparently her movement triggered the grease unit on the dial table and it cycled. Lowe was struck on the back of her forearm with grease and had to be taken to the hospital to have it all removed.

Again, the judge credited Parry's expert testimony about the machine. The judge found that a preponderance of the evidence failed to show that there was a hazard of unexpected energization, etc., in Docket No. 91-3116 because: (1) if the employee had used the barrier gate as required, the 12-step restart procedure would be necessary and would alert the employee in time to avoid any activation of machinery, and (2) if the employee did not use the barrier gate as required, he or she would know that activation could occur at any time--hence, it could not be unexpected. We find that the evidence supports the judge's finding and thus we vacate the citation in Docket No. 91-3116.

Accordingly, we vacate the citations to GM in each of these cases.

Dated: April 26, 1995

Weisberg, Chairman, dissenting:

My quarrel with my colleagues in this case is fundamental. After extensive research, review and comment, OSHA promulgated a standard reflecting its finding that, with certain enumerated exceptions, it is necessary to deenergize machinery and equipment, and to lock or tag it out, prior to Servicing or Maintenance to effectively protect employees from the hazards of the unexpected energization, startup, or release of Stored Energy. Locking or tagging out the machinery or equipment is mandatory under the standard if the energy involved is strong enough to result in injury if released unexpectedly. It is undisputed that the energy involved here was sufficient to be considered hazardous if released. Further, GM acknowledges that in the cited instances it has not adhered to the Lockout or Tagout procedures required under the standard but claims such devices are unnecessary because it has devised a better way of protecting employees. GM does not claim that Compliance with the standard would have been infeasible. Nor does GM claim that it lacked fair notice of the Secretary's interpretation of the standard.

In vacating the instant citations my colleagues, through myopic reliance on the so-called "plain meaning" of the term "unexpected" energization, reject the Secretary's interpretation of his own standard in favor of their own interpretation, one that negates the required use of Lockout/Tagout Procedures where the employer has devised an alternative means of protection.(1) Additionally, my colleagues would require that the Secretary prove a negative in every case for each cited machine or equipment, i.e., that in myriad circumstances alternative measures fashioned by the employer would not be completely effective in preventing unexpected energization. The majority's action will encourage a lack of conformity with this important standard, which Elizabeth Dole, President Bush's Secretary of Labor, considered "one of my top safety and health priorities."(2) This will place more workers in danger for, as my colleagues well know, OSHA lacks the resources to inspect even a respectable fraction of the workplaces subject to this standard much less to evaluate all of the alternative measures employers may devise under the exception to the standard the majority creates today. Accordingly, I must dissent.

FOOTNOTE(1) Nothing in the standard, however, prevents an employer from adding whatever warning mechanisms it feels will further protect employees. Nor does the standard discourage employers from doing so.

FOOTNOTE(2) BNA Occupational Safety and Health Reporter, Sept. 6, 1989, at 620.

I find the Secretary's interpretation of his standard to be reasonable and consistent with the protective intent of the standard as explained in the preamble. The Secretary's reasonable interpretations of his standards are entitled to deference. E.g., Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144, 150 (1991)), cited in Hackney, Inc., 16 BNA OSHC 1806, 1808, 1994 CCH OSHD paragraph 30,486, p. 42,113 (No. 91-2490, 1994); Martin v. American Cyanamid Co., 5 F.3d 140, 144 (6th Cir. 1993) (reviewing court is to uphold Secretary's interpretation of his standard "unless it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.") Therefore, I would find a violation in each of the three cases. In addition, the facts surrounding the serious injury to the employee who was performing Servicing on the Energized machinery in Docket No. 91-3116 demonstrate to me that unexpected activation is a hazard in such operations.

The intent of this standard is to reduce, so far as possible, the severe toll of death and injury to Servicing and Maintenance employees by requiring the most complete control of Hazardous Energy that is feasible. Some 7.1 percent of all fatalities occurring in general industry relate to failures to adequately control hazardous energy, according to the standard's preamble. Control of Hazardous Energy Sources (Lockout/Tagout): Final Rule, 54 Fed. Reg. 36,644, 36,652, as corrected by 55 Fed. Reg. 38,677 (1990).

The required level of control includes, at a minimum, deenergizing the machine or equipment whenever feasible and locking or tagging it out, before Servicing or Maintenance work begins:(3)

FOOTNOTE(3) The term "control of Hazardous Energy" in the standard means Lockout or Tagout. The very title of the standard is "[t]he control of hazardous energy (Lockout/Tagout)." The preamble states:

• It should be noted that locks and tags by themselves do not control hazardous energy. It is the isolation of the equipment from the energy source and the following of the established procedures for deenergization and reenergization of the equipment that actually controls the energy.
• 54 Fed. Reg. at 36,655. Control circuit devices, on which GM relied here, do not control hazardous energy as the Secretary requires, because they do not isolate the equipment from the energy source. See 1910.147(b), which defines "energy isolating device" and states that "control circuit type devices are not energy isolating devices."

OSHA believes that the safe performance of activities such as repair, Maintenance and Servicing, requires the deenergization of machines or equipment whenever feasible. Further, in order to ensure that maintenance or servicing activities are conducted [safely], a Lockout or Tagout procedure must be utilized.

Id. at 36,654 (emphasis added).(4) Where the energy is insufficient to result in injury if released unexpectedly, the energy is not considered hazardous and the machine or equipment need not be locked out or tagged out. Otherwise, Lockout/Tagout is mandatory, absent the specific exceptions set forth in the standard.

FOOTNOTE(4) The Secretary's intent is clearly stated in the opening summary of the standard:

This standard addresses practices and procedures that are necessary to disable machinery or equipment and to prevent the release of potentially Hazardous Energy while Maintenance and Servicing activities are being performed. The standard requires that Lockout be utilized for equipment which is designed with a lockout capability except when the employer can demonstrate that utilization of Tagout provides full employee protection.

54 Fed. Reg. at 36,644. See also, e.g., 54 Fed. Reg. at 36,656:

[This standard] requires that the employer develop and implement an energy control program and procedure for servicing and maintenance of machinery and equipment, using lockout or its equivalent on the great majority of energy isolating devices, namely those which are currently capable of being locked out.

Reliance on push buttons and other control circuit devices, however ingenious, is not acceptable under the standard. The reason is that the electrical or other power circuits remain connected (or can be reconnected by someone other than the Servicing or Maintenance employee). Such circuits are capable of transferring power and causing machine movement, however remote the possibility may seem. As the preamble to the standard makes clear,

OSHA believes that the least desirable situation is to allow employees to perform Maintenance, repair, or service activities while the machine or equipment is Energized and capable of performing its normal production function....

The vast majority of Servicing or Maintenance activities can safely be done only when the machine or equipment is not operating and is deenergized; therefore, these activities are covered by this standard.

.... [S]hutting down a machine or equipment usually is not the total solution to the problem. Once the machine or equipment has been stopped, there remains the potential for employee injury from the unanticipated movement of a component of the machine or equipment, or from movement of the material being handled.

.... The generally accepted best means to minimize the potential for inadvertent activation is to ensure that all power to the machine or equipment is Isolated, locked or Blocked and Dissipated at points of control, using a method that cannot readily be removed, bypassed, overridden or otherwise defeated.

54 Fed. Reg. at 36,647-48 (emphasis added).

GM's machines were neither deenergized nor locked out, although it would have been feasible to do both. Thus, the machines remained capable of performing their normal production function while employees performed Servicing or Maintenance. That is a situation the Secretary seeks to avoid. The serious injury to the employee who was servicing the robot module in Docket No. 91-3116, due to unexpected activation of a robot illustrates the problem and shows that GM's control circuit devices and procedures were not failsafe.

The majority decision is based almost exclusively on the so-called plain meaning of the term "unexpected" energization as used in the standard. The majority appears to read the word "unexpected" as meaning "without warning." Yet Roget's Thesaurus lists the following words as synonyms for "unexpected": unusual, sudden, chance, unanticipated, and unforeseen. R. Chapman, ed., Roget's Intl. Thesaurus (4th ed. 1977). The majority fails to explain how it arrived at its meaning of "unexpected" and why that interpretation is not free from doubt. I do not view the terms "unexpected" and "without warning" as being the same. In the instant cases, for example, while the employees may receive a warning, nevertheless they are exposed to an unanticipated or chance startup. While the employees may be given a momentary "heads up" or warning, they are not necessarily protected against the hazards that the standard is aimed at.

To the extent that a literal reading of the standard by itself suggests that an employer can forego Lockout/Tagout on a particular machine unless "unexpected energization," as my colleagues define that term, appears to be a realistic possibility, such an interpretation is squarely at odds with OSHA's intent as expressed in the preamble. "[D]efects in ... a regulatory warning may be cured by authoritative judicial or administrative interpretations which clarify obscurities or resolve ambiguities." Diebold, Inc. v. Marshall, 585 F.2d 1327, 1338 (6th Cir. 1978). A standard's preamble "is the best and most authoritative statement of the Secretary's legislative intent." E.g., American Sterilizer Co., 15 BNA OSHC 1476, 1478, 1991-93 CCH OSHD paragraph 29,575, p. 40,016 (No. 86-1179, 1992).

The preamble passages quoted above illustrate the Secretary's rulemaking finding that unexpected energization, etc., always is a hazard in Servicing and Maintenance work on power machinery and equipment unless employees follow Lockout/Tagout Procedures. The Secretary's supplemental statement of reasons supporting the standard makes the same basic point. It states that "workers face a significant risk of material harm every time they perform service or maintenance work on powered industrial equipment." Final Rule: supplemental statement of reasons, 58 Fed. Reg. 16,612, 16,620 (1993) (citing 54 Fed. Reg. at 36,647-48, 36,652-53).

Thus, that supplemental statement is consistent with the preamble. They both find a significant risk of harm where the employer fails to use the Energy Control Procedure the standard requires. Machines and equipment that in the Secretary's view present no hazard are not regulated, and risks that in the Secretary's view are "minimal and readily controlled" are not subject to Lockout/Tagout requirements. Numerous specific exceptions to the Lockout/Tagout requirements are provided in the standard. Examples are:

1. certain routine, minor tool changes and adjustments during normal production operations, where effective alternative protection is used (section 1910.147(a)(2)(B)--exception); and
2. work on cord- and plug-related equipment, where the protections mentioned in section 1910.147(a)(2)(iii)(A) exist. Thus, the Secretary's approach does not "essentially remove all limits to the standard's applicability," as the majority states. Rather, it provides a general requirement of lockout or tagout protection with specific, prudent exceptions.

All employees in occupations that perform Servicing or Maintenance on powered industrial equipment in general industry must use Lockout/Tagout. E.g., 54 Fed. Reg. at 36,684 ("OSHA classified `at-risk' occupations in the Final Rule as those being held by individuals who would actually perform Lockout or Tagout") (emphasis added). OSHA estimates that about 3 million employees in the affected industries will service or maintain powered industrial equipment (2 million in high-impact industries and 1 million in low-impact industries).(5) The decision whether to follow Lockout/Tagout Procedures does not rest on whether the employee, supervisor, or Compliance officer can think of a way that the particular machine could activate unexpectedly. The only question is whether the energy is strong enough to cause injury if released.

FOOTNOTE(5) The Secretary's complete analysis, on which his comments in the preamble are based, so states.

OSHA has estimated that about 2 million workers in 340,451 high-impact establishments and almost 1 million workers in 291,034 low-impact establishments are employed in occupations that are at risk when equipment servicing and maintenance tasks are performed. This risk appears to be the greatest for those workers employed as craft workers, machine operators, and laborers. Moreover, packaging and wrapping equipment, along with printing presses and conveyor belts, are associated with a high proportion of accidents.

OSHA, Regulatory Impact and Regulatory Flexibility Analysis of 29 CFR 1910.147, II-13, II-15 (August, 1989) (emphasis added). That document also states flatly that "[u]nder the final rule, an employee must lock or tag machinery and equipment during Servicing operations and equipment Maintenance." Id. at III-20.

The majority would allow GM to forego Lockout/Tagout in favor of control circuit devices, even though the Secretary has made clear that those devices do not actually control energy as he requires. See supra note 3. Furthermore, GM's reliance on control circuit devices meant that the safety of the Servicing employee was not fully in his or her own control, contrary to the purpose of the standard. The protections provided by those control circuit devices could be removed by another employee, whereas "[l]ockout or Tagout shall be performed only by the authorized employees who are performing the servicing or Maintenance:" section 1910.147(c)(8).(6)

FOOTNOTE(6) The term "Authorized Employee" is defined as follows:

A person who locks out or tags out machines or equipment in order to perform servicing or maintenance on that machine or equipment. An affected employee becomes an authorized employee when that employee's duties include performing servicing or maintenance covered under this section.

Section 1910.147(b). The term "Affected Employee" is defined in that section as follows:

An employee whose job requires him/her to operate or use a machine or equipment on which servicing or maintenance is being performed under lockout or tagout, or whose job requires him/her to work in an area in which such servicing or maintenance is being performed.

These [authorized employees] are the only employees who are required to be trained to know in detail about the types of energy available in the workplace and how to control the hazards of that energy. Only properly trained and qualified employees can be relied on to deenergize and to properly Lockout or Tagout machines or equipment which are being serviced or maintained, in order to ensure that the work will be accomplished safely.

54 Fed. Reg. at 36,676. Thus, the standard did not contemplate that the Servicing employee would be subject to having to get out of the way because another employee could begin a restart procedure.

The majority states, however, that "we find it unnecessary to look outside the standard itself for guidance as to its meaning." I believe that the majority errs in that regard. First, the standard's meaning is "not free from doubt," especially in light of the preamble. See, e.g., CF & I, 499 U.S. at 150 (where meaning of regulatory language is "not free from doubt," reviewing court should give effect to Secretary's interpretation so long as it is reasonable) (citing Ehlert v. United States, 402 U.S. 99, 105 (1971)).

Second, even if the standard's language seemed "free from doubt," the Supreme Court has made clear numerous times recently that, particularly where, as here, the employer cannot claim lack of fair notice of the agency's interpretation, it is the actual intent of the regulator that controls, not necessarily the common meaning of the words used. "The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect." Watt v. Alaska, 451 U.S. 259, 266 (1981).

That the regulator's intent controls is clear from the following summary of the Supreme Court's requirements--relied on by the Commission in Unarco Commercial Prod., 16 BNA OSHC 1499, 1502-03, 1993 CCH OSHD paragraph 30,294, p. 41,732 (No. 89-1555, 1993).

Under the familiar principles enunciated by Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 842, 104 S. Ct. 2778, 2781, 81 L.Ed. 2d 694 (1984), we first ask "whether Congress has directly spoken to the precise question at issue." We independently examine the language and, if necessary, the legislative history to determine whether the intent of Congress is clear. If congressional intent is unclear, we then inquire whether the agency's interpretation is "permissible," id. at 843, 104 S. Ct. at 2782, i.e., "rational and consistent with the statute." NLRB v. United Food & Commercial Workers Union, Local 23, [484 U.S. 112, 123], 108 S. Ct. 413, 421 [(1987).]

Securities Indus. Ass'n v. Federal Reserve Sys., 847 F.2d 890, 893-94 (D.C. Cir. 1988) (emphasis added). The analytical steps for interpreting an OSHA standard are the same as for a Congressional statute, as Unarco noted. 16 BNA OSHC at 1502-03, 1993 CCH OSHD at p.41,732. Thus, the Commission's job is to discern the intent of the Secretary in issuing the standard, not to decide independently what the language means. The Court cautioned judges "not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Public Citizen v. Department of Justice, 491 U.S. 440, 454-55 (1989), (citing Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404 (1945)).

Third, the legislative history of a standard always may be consulted to determine its meaning. "When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no `rule of law' which forbids its use, however clear the words may appear on `superficial examination." Public Citizen (quoting United States v. American Trucking Assn., 310 U.S. 534, 543-44 (1940) (citations omitted)). Thus, reference to the preamble is always appropriate where the meaning of a standard is in dispute.(7) In my view the preamble here shows clearly that the Secretary intended to avoid, wherever feasible, having employees perform Servicing or Maintenance on powered industrial machinery while it is Energized.

FOOTNOTE(7) The cases the majority cites do not warrant a different result. Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2594 (1992), acknowledges that in certain circumstances the inquiry goes beyond the text of a statute despite its seemingly plain meaning. Cowart and the other recent Supreme Court cases modify the effect of the statement the majority quotes from Caminetti v. United States, 242 U.S. 470 (1917).

Brown v. Gardner, 115 S. Ct. 552, 556 (1994), involved no positive legislative history on the disputed interpretation issue. That case did not mention, much less overrule, the Court's oft-repeated precedent that legislative history always may be consulted if it is available. Further, Brown concerned the meaning of a veterans benefit statute, and the Court noted that interpretive doubt is to be resolved in the veteran's favor, not the Government's, in such cases. Id. at 555 (citing King v. St. Vincent's Hosp., 502 U.S. 215, 220-21 n.9 (1991)).

The quotation in Brown from Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151, 2157 (1991), which the majority notes, supports my position strongly. The Court's full statement actually was, "[t]he starting point in interpreting a statute is its language, for `[i]f the intent of Congress is clear, that is the end of the matter," quoting Chevron, 467 U.S. at 842 (emphasis added). The intent of the Lockout/Tagout Standard is what the Secretary says it is. The preamble clarifies that intent.

The treatise which the majority cites also supports my position. 2A Singer, Sutherland Stat. Const., 48.01 (5th ed. 1992) (citing Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 9-10, 23-24 (1976) (plain meaning rule is not to be used to thwart or distort intent of Congress by excluding from consideration enlightening material from legislative history)).

The burden the majority places on the Secretary by superimposing its own interpretation on the standard likely will prove quite difficult and burdensome to meet. Putting aside the evidence of a recent injury on one of the machines during Servicing (discussed below), two experienced OSHA Compliance officers ("CO's") testified to specific ways in which they believed GM's machines could activate unexpectedly. They testified that the machines in question in Docket Nos. 91-3116 and 91-3117 could activate if a short circuit occurred in the line. The CO further testified in Docket No. 91-3117 that the press could stroke if an employee manually tripped the solenoid, or if the solenoid failed.

The judge did not discredit that testimony. Still, he found it insufficient based on strong expert testimony to the contrary by GM's engineer, Richard Parry. As the majority notes, the judge found that Parry had "superior knowledge and experience" regarding the equipment in question and thus that his testimony is entitled to greater weight. Parry testified that these particular machines were not subject to the specific hazards that the CO's raised. The majority fully affirms the judge's findings. There is no gainsaying that it will be difficult for the Secretary to prevail in hotly contested cases such as these involving sophisticated control circuit devices. In effect, the Commission is requiring the Secretary to reestablish in every case his reasonable rulemaking finding--that with the specific exceptions spelled out in the standard, unexpected energization, etc., poses a significant risk of harm if powered industrial machinery is not deenergized and locked out before Servicing or Maintenance is performed on it.

The evidence clearly shows that a hazard of unexpected startup was present on the machinery involved in Docket No. 91-3116, no matter which version of the accident one accepts. That injury occurred while an employee was performing Servicing inside a robot module. She was attempting to unjam a ball joint when the adjacent grease unit cycled and struck her arm, injecting grease into it which had to be removed at a hospital.

The CO and the union's safety and health representative testified that, based on their investigations, the employee had followed proper procedures, including opening the electronically interlocked barrier gate before entering the module. GM's expert witness Parry testified, however, that based on his investigation, the employee must have circumvented that gate because when opened, it would shut down the power to the machinery in the module, and would necessitate a time-consuming, 12-step restart procedure before the machinery could activate again.

Even assuming Parry was correct, the employee's injury resulted from "unexpected" activation. The gate could be circumvented--an employee could readily climb through its horizontal rails without opening it. There is no basis in the record to conclude that the employee expected the machine to activate, even if she failed to follow GM's procedures by circumventing the gate. Nor did GM expect the machine to activate.

Employees do not forfeit the protection of the standard merely by making a mistake (such as failing to follow a set procedure). The standard clearly aims to protect such employees by requiring the deenergization of machines or equipment wherever feasible and locking or tagging them out, before the Servicing or Maintenance is performed. Commission and court precedent recognizes that employees sometimes attempt to circumvent control circuit devices on industrial machinery, and it holds that such employees do not thereby forfeit the protections of the standards. E.g., MRS Printing, Inc., 6 BNA OSHC 2025, 2026, 1978 CCH OSHD paragraph 23,102, p. 27,920 (No. 76-3113, 1978) (to comply with section 1910.212(a)(3), the general point of operation guarding requirement for machines, "an employer must install a guarding device that cannot be easily circumvented by his employees.") See also, e.g., Long Mfg. Co., N. C., Inc. v. OSHRC, 554 F.2d 903 (8th Cir. 1977) (Commission finding of machine guarding violation upheld where employer had installed recognized control circuit safety device (dual hand controls) but it could be and was being circumvented). Thus, I would find a violation in Docket No. 91-3116, even under the majority's interpretation of the standard.

Accordingly, I respectfully dissent.

Dated: April 26, 1995

09/14/1993 - 90-1341 - Westvaco Corporation

• Docket Number: 90-1341
• Standard Number: 1910.147
• Case Citation: 16 BNA OSHC 1374
• Company: Westvaco Corporation
• Information Date: 09/14/1993

BEFORE: FOULKE, Chairman; and MONTOYA, Commissioner.

BY THE COMMISSION:

The Occupational Safety and Health Administration ("OSHA") issued to Westvaco Corporation ("Westvaco") a citation alleging a serious violation of the Lockout/Tagout Standard at 29 CFR 1910.147(c)(1).(1) In this citation, OSHA charged that Westvaco failed to Lockout(2) the slotter section of a printer/slotter machine to protect its employee from the unexpected energizing of the entire machine.(3) At the time of the inspection, the employee, whose job title is "the helper," was making adjustments to the slotter section between production runs. The Secretary does not dispute that the low level of energy that the helper uses in making these adjustments does not pose a hazard. Westvaco argues that the standard does not apply because the helper's adjustments come within the specific exception to the Lockout/Tagout Standard found at the end of 29 CFR 1910.147(a)(2)(ii).

FOOTNOTE(1) Section 1910.147(c)(1) provided at the time of the inspection and the issuance of the citation as follows:

1910.147 The control of Hazardous Energy (Lockout/Tagout).

...

(c) General--

(1) Energy control program. The employer shall establish a program consisting of an energy control procedure and employee training 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, and rendered inoperative....

This standard was amended about six months after the citation was issued, see 55 Fed. Reg. 38,685-86 (1990), but Westvaco does not claim that any of those changes affect this case.

FOOTNOTE(2) The term "Lockout" is defined at 29 CFR 1910.147(b) as:

The placement of a Lockout device on an energy isolating device, in accordance with an established procedure, ensuring that the energy isolating device and the equipment being controlled cannot be operated until the Lockout Device is removed.

The definition of "Lockout device" in that same section provided at the time of the inspection and citation as follows:

A device that utilizes a positive means such as a lock, either key or combination type, to hold an energy isolating device in the safe position and prevent the energizing of a machine or equipment.

Although it does not affect this case, that definition was amended in 55 Fed. Reg. 38,685 (1990).

FOOTNOTE(3) The record in this case concerns only Lockout as a means of controlling Hazardous Energy. However, as its name implies, the Lockout/Tagout Standard permits employers to control hazardous energy by using a Tagout system in certain circumstances. Under 29 CFR 1910.147(c)(2)(i), an employer shall use a tagout system "[i]f an energy isolating device is not Capable of Being Locked Out." If an energy isolating device is capable of being locked out, the employer must use lockout "unless the employer can demonstrate that the utilization of a tagout system will provide full employee protection as set forth in paragraph (c)(3) of this section." 29 CFR 1910.147(c)(2)(ii). See 29 CFR 1910.147(c)(3)(i) and (ii).

Review Commission Administrative Law Judge Edwin G. Salyers concluded that Westvaco did not prove that it comes under the exception. He affirmed the citation item (4) and characterized it as serious. He assessed a penalty of $560, as OSHA had proposed. The issues before the Commission are: (1) whether the judge erred in concluding that Westvaco did not establish that the helper's adjustments fall under the exception in the standard; (2) whether Westvaco proved that Compliance was infeasible; and (3) whether the judge properly characterized the violation as serious.

FOOTNOTE(4) The judge noted that, in response to challenges to the Lockout/Tagout Standard filed by labor and industry, the D.C. Circuit remanded the case to OSHA to further consider certain aspects of the standard's promulgation. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991). The judge correctly stated that the court decision has no effect on the outcome of the present case because, in its subsequent order on September 16, 1991, the D.C. Circuit refused to stay application of the standard during the remand period. Since the judge's decision was issued, the Secretary published his "Supplemental Statement of Reasons" in response to the court's remand order. 58 Fed. Reg. 16,612-23 (March 30, 1992).

On May 27, 1993, an industry party filed a motion with the D.C. Circuit seeking vacation of the standard or suspension of enforcement. National Association of Manufacturers v. Reich, Docket Nos. 89-1559, 89-1657, & 90-1553. 23 BNA OSHR 4-5 (June 2, 1993). On June 17, 1993, the Secretary filed a response with the court in which he defended his rulemaking and asked the court to dismiss the motion. 23 BNA OSHR 86-67 (June 23, 1993).

I. Background

A. Facts

Westvaco manufactures corrugated paperboard containers at its plant in Eaton, Ohio. The printer/slotter machine prints on, scores, and slots sheets of corrugated paperboard that can then be folded into trays for holding cans. Two Westvaco employees work at the machine, the operator and the helper. During a production run, the helper feeds sheets of corrugated paperboard into the machine. The machine moves the sheets to the "printing section," where graphics of one color are printed at the first print station, and, if required, graphics of another color are printed at the second station.

Then, at the "slotter section" sheets move through a series of upper and lower shaft heads fitted with corresponding knives and slots that cut them into smaller sheets, inscribe scoring lines, and cut slots on the sides of the sheets. After the sheets have moved through the machine, the operator inspects the finished product at the stacking area.

Because each order for cartons from Westvaco's customers is unique in terms of printed matter and size, adjustments to both the printer section and the slotter section must be made for each order. The typical order ranges from 10,000 to 100,000 trays. The machine completes an order for 10,000 trays in approximately two hours. Because the average number of orders run per day is three or four, and adjustments to the slotter and printer sections are necessary before each order, adjustments are made three or four times a day. The adjustments, which take between 15 and 45 minutes to complete, are made by the operator and the helper between production runs. The operator adjusts the printer section, while the helper adjusts the slotter section.

Before the helper adjusts the slotter section, he activates the twist lock stop at the feed (opposite) end of the machine, presses one of the two mushroom stop buttons located at each side of the slotting section, and then raises the "layboy arms" used in transporting the corrugated sheets.(5) The helper then adjusts the shaft heads in the slotting section by positioning the six knife heads on each upper shaft, and their corresponding slotted heads on the lower shaft. The helper uses a T-wrench, or Allen wrench, to work in between the shafts and adjust the heads about one-eighth to three-sixteenths of an inch to meet customer specifications. Each time an adjustment to a head is made, the helper must visually determine whether the slot and knife are lined up properly by activating the jog control button, which causes the heads to move at a slow speed.

FOOTNOTE(5) This is the procedure that the helper followed at the time of the OSHA Compliance officer's complaint investigation; it represents the cited condition. After that investigation, a hinged barrier guard was installed that covers the slotter section. When the helper raises this barrier guard to reach the area requiring adjustments, the metal on the guard is detected by a sensing device that activates another stop control, which is on the same circuit as the stop buttons. According to the Secretary's expert witness, William Murphy, whose qualifications are discussed later, see infra note 15, this guard is not "interlocked" because there is no electrical device that actually locks the guard in place.

In order to provide an opening for access to the area where he will change the ink and printing plates, the operator separates the machine by sliding the printer section, which moves on rails, away from the slotter section.(6) When the machine is separated, the slotter section is disconnected from the printer, and the flow of energy to both sections is cut off except for a small amount of power that allows the helper to jog the heads at a slow speed at the slotter section and permits the ink at the printing section to continually circulate to keep it from drying out.

FOOTNOTE(6) After the Compliance officer's investigation, Westvaco installed a key-operated switch at the location where the machine separates. After separating the machine, the operator maintains exclusive control of the key until the machine is once again together.

B. Main Contentions of the Parties

According to the Secretary, Westvaco violated section 1910.147(c) because the helper was making adjustments to the slotter section of the printer/slotter machine, where unexpected energizing of the entire machine could occur, without the protection of an Energy Control Program that would isolate the machine and thereby render it inoperative. More specifically, the Secretary bases the alleged violation on Westvaco's failure to Lockout the slotting section while the helper made his adjustments.

Westvaco claims that it was not required to provide an Energy Control Program to protect the helper because it is covered by the exception to the requirements of the Lockout/Tagout Standard at the end of 29 CFR

1910.147(a)(2)(ii), which provides:

• (ii) Normal production operations are not covered by this standard.... Servicing and/or maintenance which takes place during normal production operations is covered by this standard only if:
• (A) An employee is required to remove or bypass a guard or other safety device; or (B) An employee is required to place any part of his or her body into an area on a machine...where work is actually performed upon the material being processed ...or where an associated danger zone exists during a machine operating cycle.

NOTE: Exception to paragraph (a)(2)(ii):

Minor tool changes and adjustments, and other minor Servicing activities, which take place during normal production operations, are not covered by this standard if they are routine, repetitive, and integral to the use of the equipment for production, provided that the work is performed using alternative measures which provide effective protection (See subpart O ["Machinery and Machine Guarding"] of this part).

(Emphasis added).

II. Did Westvaco Prove that the Helper's Adjustments
Fall Within the Exception?

The party claiming the benefit of an exception bears the burden of proving that it comes within that exception. E.g., Falcon Steel Co., 16 BNA OSHC 1179, 1181, 1993 CCH OSHD 30,059, p. 41,329 (No. 89-2883, 1993) (consolidated); Dover Elevator Co., 15 BNA OSHC 1378, 1381, 1991 CCH OSHD 29,524, p. 39,849 (No. 88- 2642, 1991).

A. What the Exception Requires

According to the Secretary, "the Lockout/Tagout Standard excepts from coverage certain types of minor Servicing during normal production operations so long as the employee is adequately protected from the hazard by effective alternative means." Under the language of the exception, the types of minor servicing excepted are "routine, repetitive, and integral to the use of the equipment for production." These characteristics are not in dispute in this case.

Westvaco does not agree with the Secretary's reading of the exception's requirements quoted above. Its interpretation would substantially reduce what must be proven to come under the exception. It argues that "there are two exceptions to the Lockout requirements that govern this case," citing 53 Fed. Reg. 15,498 (1988) (preamble to proposed rule)(7) and 54 Fed. Reg. 36,661-62 (1989) (preamble to final rule).(8) However, there is nothing in the record to support this claim. We have reviewed the referenced pages of the preambles to the proposed rule and final rule and conclude that the language Westvaco relies on does not describe a separate exception, but rather different aspects of the rationale for what became a single exception at the end of section 1910.147(a)(2)(ii). Westvaco also claims that, according to its reading of the preamble at 55 Fed. Reg. 38,679, amending 54 Fed. Reg. 36,662, Servicing and Maintenance activities are divided into two categories, which Westvaco describes as:

FOOTNOTE(7) The preamble to the proposed rule, 53 Fed. Reg. 15,498 (1988), reads as follows:

The Agency recognizes that there are certain Servicing operations which, by their very nature, must take place without deenergization, such as the testing of Energized equipment or processes. Additionally, certain normal production operations, which are not intended for coverage by this standard, such as repetitive minor adjustments, can sometimes safely be done wi[th]out the machine, equipment or process being deenergized and locked out and/or tagged out, with the use of specific control devices, work practices, employee training and other measures.

The proposed rule designated as 29 CFR 1910.147(a)(2)(iii)(B) provided:

Servicing...which takes place during normal production operations, such as...making minor adjustments...are not covered by the standard, if it is necessary to perform such servicing...with the machine...Energized, and if such servicing...is performed using alternative measures which the employer can demonstrate will provide effective protection.

FOOTNOTE(8) In the preamble to the final standard, 54 Fed. Reg. 36,661 (1989), OSHA recognized that "the proposed provision was not clear enough" concerning the types of operations meeting, or not meeting, the exception and the criteria to be applied in each situation. The preamble clarified that:

Minor tool adjustments and changes or other minor Servicing activities performed during normal production operations, are not covered by Lockout or Tagout requirements if the activities are routine, repetitive and integral to the production operation, provided that there is an alternative means being used...which will provide effective protection to employees.

54 Fed. Reg. 66,661-62. OSHA also noted the problems that arose from the proposed rule's requirement that the employer demonstrate that it was necessary to perform the operation with the machine Energized. After recognizing that "some Servicing operations must be performed with the power on," OSHA did not deem it necessary in the final exception to require that demonstration by the employer. 54 Fed. Reg. 36,661.

1. those that must be performed with the machine locked out...and
2. those minor servicing activities that can be performed when the machine is not locked out as long as the employee doing the work is protected by either control switches under his/her exclusive control, local disconnects, interlocked barrier guards or other alternative protective measures.

Westvaco's category (1) consists of the requirement in the proposed exception that was deemed unnecessary in the final exception. See supra notes 7 and 8. While Westvaco's category (2) purports to present the exception at issue, in that it refers to the requirements that the Servicing be "minor" and that effective alternative protection be used, this assertion ignores the remaining element of the exception, the requirement that the servicing must be done "during normal production operations."(9) Westvaco also contends that "[t]he real question in this case is whether Westvaco utilizes an alternative procedure to Lockout that prevents unintended activation of the machine when the helper is in a machine danger zone." We agree with Westvaco that a showing that effective alternative protection is provided is necessary to meet the exception. However, it is but one of three elements that must be proven to satisfy the exception.

FOOTNOTE(9) The sentence in the preamble to the amendments to the final rule at 55 Fed. Reg. 38,679, upon which Westvaco particularly relies for its category (2), specifically recognizes this requirement: "Safeguarding for minor Servicing during normal production operations may include, for example, interlocked barrier guards, local disconnects or control switches which are under the exclusive control of the employee performing the minor servicing...." (emphasis added).

Having found no support for Westvaco's view of the exception, we must agree with the Secretary's reading of the exception. Therefore, we conclude that, in order to show that the helper's adjustments come within the exception, Westvaco has the burden of proving that the helper's adjustments are (1) minor, (2) take place during normal production operations, and that (3) effective alternative protection is provided.

B. Did Westvaco Prove that the Adjustments Were Made "During Normal Production Operations"?

To determine whether Westvaco has met its burden of proving that the helper's adjustments come within the exception, we first consider whether it established that the helper's adjustments to the slotter section "take place during normal production operations."

In his decision, the judge noted that "normal production operations" is defined in 29 CFR 1910.147(b) as "[t]he utilization of a machine or equipment to perform its intended production function." Finding this definition rather vague, he focused on the definition of setting up" in 29 CFR 1910.147(b), which reads: "[a]ny work performed to prepare a machine or equipment to perform its normal production operation." The judge noted that "setting up" is listed as an activity under the definition of "Servicing and/or Maintenance" in section 1910.147(b), (10) and that servicing and maintenance activities are expressly covered by the Lockout Standard, under 29 CFR 1910.147(a)(2)(i). He stated that, based on the plain meaning of the exception and these definitions, "work performed on the machine while the machine is not being operated to actually produce its product is either servicing or maintenance."

The judge further stated that work that is performed before the normal production operation in order to prepare the machine for production is a specific service activity, called setting up. Setting up does not occur during normal production operations. Therefore, setting up cannot, by definition, fall within the exception to 1910.147(a)(2)(ii).

(Emphases added).

FOOTNOTE(10) "Servicing and/or Maintenance" is defined in section 1910.147(b) as:

Workplace activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and maintaining and/or Servicing machines or equipment. These activities include lubrication, cleaning or unjamming of machines or equipment and making adjustments or tool changes, where the employee may be exposed to the unexpected energization or startup of the equipment or release of Hazardous Energy.

(First emphasis added).

He concluded that the helper's adjustments come under the definition of "setting up" because they "were made to customize each individual order; the adjustments prepared, or set up, the machine for the next order, or production operation. " He relied on the preamble at 55 Fed. Reg. 38,680 (1990), amending the final rule's preamble at 54 Fed. Reg. 36,667 (1989) to read:

Anything that is done to prepare a machine or equipment to perform its normal production operation, such as changing a machine part (e.g., changing the blade of a power saw), is not considered utilization of a machine or equipment and is classified as Servicing or Maintenance rather than normal production operations.

The judge stated that "[h]aving determined that the helper's adjustments fall within the definition of `setting up,' a service activity that is not a part of normal production operation[s], it is concluded that the helper's adjustments are not covered by the exception...."

Westvaco contends that the judge erred in interpreting the standard when he held that the exception could not apply to activity that he characterized as setting up, and that the exception applies only to Servicing that is performed while the machine is actually making a product.(11) It maintains that "[a]ny type of servicing, including set up, could fall within" the exception as long as the exception's other criteria are met. It argues that, contrary to the judge's narrow interpretation, the language in the exception "focuses on the nature of the work being performed, not on the moment in time when the work occurs." Westvaco asserts that the helper's adjustments affect the size of the product and "are made when production moves from one customer order to another." It likens the helper's adjustments to "chang[ing] the speed of the machine by adjusting belt drives or other components which are normally guarded" or "adjust[ing] the movement of a long-bed milling machine worktable," which are recognized in the amended preamble as meeting the exception where effective alternative safeguarding is provided. 55 Fed. Reg. 38,680 (1990), amending 54 Fed. Reg. 36,666 (1989). Westvaco argues that machine speed changes and worktable adjustments are activities that could be performed either between orders, like the helper's adjustments, or while a particular order is running.

FOOTNOTE(11) Westvaco does not discuss separately each of the three elements of the exception at issue (whether the adjustments are minor, made during normal production operations, and whether effective alternative protection was provided). Rather it presents most of its contentions by combining its discussion of all three factors in the exception at issue in this case, and sometimes including factors not in dispute (whether the adjustments are routine, repetitive, and integral to the use of the machine).

Thomas Seagraves, Westvaco's production manager, testified that the production cycle consists of the time it takes to make the adjustments to the slotter and printer sections together with the time to actually process the order through the press. Westvaco asserts, as Seagraves testified, that the inclusion of the adjustments in the normal production operations is underscored by the fact that the adjustments are performed by production employees, not Maintenance personnel.

The judge found that the helper's adjustments of the shaft heads to accommodate each customer's specifications in anticipation of the next production run is "setting up," or, as defined in the standard, "work performed to prepare a machine or equipment to perform its normal production operation." (emphasis added). We agree with this determination. We reject Westvaco's claim that this element of the exception focuses only on the nature of the work being performed and not on the moment in time when the work occurs. While the nature of the work is important to consider, in this case the fact that the work is done prior to production runs is critical in determining if the adjustments are made during normal production operations.

The plain meaning of the word "prepare" as it is used to define "setting up" in section 1910.147(b) includes the idea of activity before some event. One dictionary defines "prepare" as "to make ready beforehand for some purpose." Webster's Third New International Dictionary 1790 (1986 unabridged). Under this definition, the helper's adjustments to the shaft heads are clearly done to "prepare" the printer/slotter machine for normal production operations.

Furthermore, adjustments made to prepare for normal production operations cannot, at the same point in time, be adjustments that are made "during normal production operations." (emphasis added). Work performed "during" is defined as work "at some point in the course of." Id. at 703. Such work occurs at a different time than adjustments made "beforehand," or while setting up. Based on this definitional distinction, we reject Westvaco's argument that the judge erred in finding that the exception cannot apply to setting up.(12) Therefore, we conclude that because the helper's adjustments constituted setting up," they cannot, based on the standard's definition of that term, be considered to take place "during normal production operations."(13) See, e.g., Globe Industries, Inc., 10 BNA OSHC 1596, 1598, 1982 CCH OSHD 26,048, p. 32,718 (No. 77-4313, 1982)(Commission should give reasonable, common-sense interpretations to standards), and cases cited therein. In light of this disposition, we need not reach Westvaco's argument concerning the judge's further finding that the exception applies only to work performed on the machine while the machine is actually making its product.

FOOTNOTE(12) The judge further suggested, in reliance on the quoted portion of the preamble at 55 Fed. Reg. 38,680, that setting up automatically falls outside the exception because it is "Servicing," a type of activity to which the standard applies. We agree with Westvaco that this reasoning is inappropriate. While it is true that the Lockout/Tagout Standard is generally applicable to servicing and Maintenance, not to normal production operations, what is at issue here is an exception to the standard's general applicability provisions. The exception provision at issue here recognizes that there are certain types of servicing that must be done during normal production operations, and, for those activities, the standard does not apply if the other requirements of the exception are established.

FOOTNOTE(13) We note that our ruling here is limited to the definitional distinction that prevents an activity that qualifies as "setting up" from also being an activity that takes place "during normal production operations." Other types of "Servicing and/or Maintenance" work listed in that term's definition, see supra note 10, such as unjamming of machines," could, depending on their respective definitions, be done during normal production operations.

To prove that its case comes within the exception, the employer must show that the adjustments are minor and made during normal production operations, and that effective alternative protection is provided. In light of our determination above that Westvaco failed to prove that the helper's adjustments were made during normal production operations, we conclude that Westvaco has not proven that its case falls within the exception at the end of section 1910.147(a)(2)(ii). Therefore, we need not reach the other factors in dispute, whether the adjustments are "minor" and whether they are made "using alternative measures which provide effective protection."

Based on the above, we conclude that Westvaco has failed to prove that the helper's adjustments fall within the exception at the end of section 1910.147(a)(2)(ii). Accordingly, we find that the cited standard, section 1910.147(c)(1) applies, and that, as Westvaco acknowledges, its terms were not met because the slotter section was not locked out.

III. Did Westvaco Prove the Infeasibility Defense?

To prove the affirmative defense of infeasibility, the employer must show that "(1) literal Compliance with the terms of the cited standard was infeasible under the existing circumstances and (2) an alternative protective measure was used or there was no feasible alternative measure."(14) Mosser Constr. Co., 15 BNA OSHC 1408, 1416, 1992 CCH OSHD 29,546, p. 39,907 (No. 89-1027, 1991), citing Seibel Modern Mfg. & Welding Corp. 15 BNA OSHC 1218, 1226, 1228, 1991 CCH OSHD 29,442, pp. 39,682 & 39,685 (No. 88-821, 1991).

FOOTNOTE(14) An affirmative defense ordinarily must be initially pleaded by the employer in its answer, according to Rule 36(b) of the Commission's Rules of Procedure, 29 CFR 2200.36(b). Westvaco did not specifically raise the particular affirmative defense of infeasibility in its answer. However, the Secretary does not take issue with its inclusion as an issue in the direction for review. Because the issue has been briefed by the parties, we will consider it. See generally Bill C. Carroll Co., 7 BNA OSHC 1806, 1810, 1979 CCH OSHD 23,940, pp. 29,032-33 (No. 76-2748, 1979)(Secretary on notice about unpreventable employee misconduct contention). See Rule 107 of the Commission's Rules of Procedure, 29 CFR 2200.107.

Westvaco generally contends that Compliance would not be feasible because energy was required to jog the heads in the slotter section and to keep the ink circulating in the printer section. However, as discussed above, the Secretary does not contend that the energy required for the jog mode posed a hazard to the helper, or that the energy required for ink circulation posed a hazard to the operator. Rather, the Secretary asserts that the energy against which the helper needs protection is the energization of the entire machine.

Westvaco also argues that it would be infeasible to implement the abatement measures suggested by the Secretary's witnesses Compliance officer Jack Peterson, who conducted the complaint investigation, and expert William Murphy, the Area Director for the OSHA Cincinnati Office, who conducted the discovery inspection.

William Murphy, who was qualified by the judge as an expert in the Lockout/Tagout field,(15) testified that Westvaco could abate the violative condition by installing a hasp and small lock on the slotter gear at the point where the machine separates. He stated that, with the hasp installed, the machine could not be accidentally closed up once the separation had been accomplished.

FOOTNOTE(15) Murphy had been Area Director of the OSHA Cincinnati Office since 1979. He testified as follows concerning his background and experience in Lockout. He had worked as an OSHA Compliance officer from 1973 until 1977, when he became a supervisor of compliance officers. Prior to his OSHA jobs, he worked on machines that performed the same functions as the printer/slotter machine at issue here. At OSHA Murphy developed a sheet on lockout policy under section 5(a)(1) of the Act, 29 U.S.C. 654, the general duty clause, that was used by his own as well as other OSHA offices within OSHA's Region V. He also conducted numerous training sessions and seminars on lockout for such organizations as the National Safety Council and the General Motors UAW Training Center. He also had been an instructor in machine guarding, including lockout, at OSHA's training institute in Illinois. When the draft Lockout/Tagout Standard was issued, he provided comments on it for his own office, which were submitted as the Region's comments. In those comments, he focused on the exception at issue here, when minor adjustments take place during normal production operations.

After the Secretary moved at the hearing to have Murphy qualified as an expert, Westvaco's counsel conducted a short voir dire, during which Murphy stated that the Lockout cases in which he had been previously qualified as an expert were brought under section 5(a)(1) because they preceded the issuance of the standard at section 1910.147. Westvaco did not object to having Murphy certified as a lockout expert.

Westvaco's production manager Seagraves acknowledged in his testimony that installation of the hasp and lock would "prevent the drive train from activating itself." However, he expressed the view that "clos[ing] one section of the press onto the other with this bulky item in between" could possibly break the gears. When asked on cross-examination about his testimony that the hasp and lock would wreck the gears, Seagraves responded that "we've had discussions about it. We have not gone to the extent of putting that particular type of guard on the machine."

The judge found that Murphy's suggestion was "both simple and expedient." He determined that there was "nothing in the record that would preclude" use of the small lock and hasp on the slotter gear to protect the helper.

Although Seagraves speculated that the gears could be wrecked if the machine were closed with the hasp and lock between the sections, this would seem to occur only if the sections were accidentally pushed back together. Without further explanation, Seagraves' speculation does not rebut Murphy's testimony that the hasp and lock would be a feasible means to abate in Compliance with the standard.(16) We therefore agree with the judge and conclude that, based on the testimony above, Westvaco has not proven by a preponderance of the evidence that Murphy's suggested abatement measure would be infeasible.

FOOTNOTE(16) As noted above, following the Compliance officer's investigation, the basis for the citation item at issue here, Westvaco installed a key-operated switch at the separation point of the printer/slotter machine. See supra note 6. Murphy observed that switch during his discovery inspection, noting that the operator kept the key after separating the machine. He opined that, although it would not technically satisfy the standard, Westvaco could provide the helper with effective alternative protection from the hazard of unexpected energization under these changed conditions by entrusting the key to the exclusive control of the helper, who generally takes more time to make his adjustments than the operator.

In addition to Murphy, the Compliance officer offered testimony concerning a suggested means of abatement. However, because we find that Westvaco has not established that Murphy's suggestion was infeasible, we need not reach Westvaco's argument that the separate disconnect feature proposed by the compliance officer was infeasible. Nor do we need to consider whether Westvaco established the second element of the defense, that it provided an alternative protective measure.

Having concluded that Westvaco failed to prove that at least one of the suggested means of abatement was infeasible, we determine that Westvaco has not proven the affirmative defense. We therefore find that Westvaco violated section 1910.147(c)(1).

IV. Was the Violation Properly Characterized as Serious?

The judge rejected Westvaco's claim that, if a violation were found, it should be characterized as de minimis. He stated that such a characterization is proper only where there is a negligible relationship to safety and health and abatement would be inappropriate. The judge stated that the helper was left unprotected while making his adjustments to the shaft heads, and his hands were in the immediate area of the slotting, scoring, and trim knives. Finding that the helper faced the hazard of his hands being crushed or amputated, the judge determined that the violation had more than a negligible relationship to safety; he classified it as serious.

Westvaco argues that the judge erred in characterizing the violation as serious, thereby rejecting its argument that the violation was de minimis.

A de minimis violation is one having no direct or immediate relationship to employee safety, where "the hazard is so trifling that an abatement order would not significantly promote the objectives of the Act." Dover Elevator Co., 15 BNA OSHC at 1382, 1991 CCH OSHD at p. 39,850. Here the hazard is not a trifling one. The unexpected energization of the machine could injure the helper, even causing amputation. Because an abatement order would eliminate this hazard, we conclude that the violation is not de minimis. We also conclude that the judge properly characterized the violation as serious under section 17(k) of the Act, 29 U.S.C. 666(k), because there is a substantial probability that serious physical harm could result if unexpected energization occurred.

V. Order

For the reasons stated above, we conclude that Westvaco committed a serious violation of the Lockout/Tagout Standard at section 1910.147(c)(1). Having considered the penalty factors in section 17(j) of the Act, 29 U.S.C. 666(j), we find the penalty of $560 proposed by OSHA and assessed by the judge to be appropriate. We therefore assess a penalty of $560 for the violation of section 1910.147(c)(1).

It is so ordered.

Dated: September 14 1993