Siemens Energy & Automation, Inc.

Plain-English summary

Siemens performed monthly inspections of 23 mechanical power presses but limited them to visible parts and operating checks. After a press component broke and injured an operator, a repair company found missing springs, loose anchors, oily brakes, and improper adjustments in concealed areas. The Commission held that the performance-based inspection standard requires a program capable of ensuring that all press parts are in safe operating condition, including periodic inspection of concealed components when a reasonable employer would recognize the need. Manufacturer guidance, an OSHA checklist, National Safety Council guidance, and undisputed expert testimony all supported that duty. The serious violation was affirmed with a $3,000 penalty. Chairman Railton dissented, concluding that the interpretation improperly added substantive duties and lacked fair notice.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.217(e)(1)(i)
• Outcome: The serious power-press inspection violation was affirmed, with a $3,000 penalty.
• Key point: A periodic inspection program must be broad enough to find dangerous latent defects, not merely confirm that visible press parts appear to operate.

Full text (OSHRC public release)

Seimens Energy & Automation, Inc., Docket No. 00-1052

SECRETARY OF LABOR,

Complainant,

v.  

OSHRC Docket No. 00-1052

SEIMENS ENERGY & AUTOMATION, INC.,

Respondent.

DECISION

Before: RAILTON, Chairman; STEPHENS and ROGERS, Commissioners.

At issue before the Commission is whether Siemens Energy & Automation,
Inc. (Siemens) violated 29 C.F.R. § 1910.217(e)(1)(i), which requires employers to
establish and follow a periodic and regular press inspection program and to
maintain certification records of its inspections.

Siemens operates 23 presses at
its Urbana, Ohio, plant. The presses are used in metal stamping to manufacture
components for electrical circuit breakers and switches. On May 2, 2000, a metal
piece from a Johnson OBI mechanical power press broke and struck a Siemens
employee in the head and face.

After an inspection of the plant by James Washam, the machine guarding
and lockout coordinator for Region V of the Occupational Safety and Health
Administration (“OSHA”), the Secretary issued Siemens a citation alleging a
serious violation of section 1910.217(e)(1)(i). The citation alleged that Siemens
failed to conduct adequate press inspections to ensure that all press parts, auxiliary
equipment, and safeguards were in safe operating condition and adjustment.
According to the Secretary, Siemens should have inspected concealed areas of the
press, such as “wear on friction discs; air brake linings, shoes, casting cracks;
rotary limit switches, chains and sprockets; loose nuts, bolts, gib adjustment,
flywheel bearings, ball nut adjustment, drive gears and keys, and additional items
described in the maintenance manuals, such as for the Johnson OBI press.”

The
Secretary proposed a penalty of $5,000. Administrative Law Judge Ken S. Welsch
affirmed the violation and assessed a penalty of $3,000. For the reasons that
follow, we affirm the violation.

Discussion

Siemens conducted and recorded its monthly press inspections based on a
checklist designed by Siemens’ safety director, Rex Blevins, entitled “Mechanical
Power Press Certification Record of Regular Inspection.” Neither the checklist nor
the inspections involved an inspection of the parts identified in the citation or any
other concealed press parts.

In affirming the violation, the judge found that it was reasonable to require
Siemens to inspect certain concealed parts in order to achieve compliance with the
standard.

Siemens argues, however, that the judge’s finding creates “additional”
and “unique” requirements that are “beyond the plain words of the standard and
any previous interpretation of the standard.” We disagree.

Section 1910.217(e)(1)(i) requires employers to establish a press inspection
program that achieves the standard’s objective of ensuring that all press parts are
in safe operating condition and adjustment.

As a broad, performance-oriented
standard, section 1910.217(e)(1)(i) provides employers with a certain degree of
discretion in determining what type of inspection is appropriate to ensure that its
program meets the standard’s stated objective. It does not identify each specific
part of every type of mechanical press that must be inspected. Such broad
standards may be given meaning in particular situations by reference to objective
criteria, including the knowledge of reasonable persons familiar with the industry.
See Brooks Well Servicing, Inc. , 20 BNA OSHC 1286, 1291, 2002 CCH OSHD ¶
32,675, p. 51,475 (No. 99-0849, 2003); American Bridge Co. , 17 BNA OSHC
1169, 1172, 1993-95 CCH OSHD ¶ 30,731, p. 42,668 (No. 92-0959, 1995).
Because “specific regulations cannot begin to cover all of the infinite variety of
hazardous conditions [that] employees must face,” Ray Evers Welding Co. v.
OSAHRC , 625 F.2d 726, 730 (6th Cir. 1980), “general regulations are not
constitutionally infirm on due process grounds so long as a reasonableness
requirement is read into them.” W. G. Fairfield Co. v. OSHRC , 285 F.3d 499, 507
(6th Cir. 2002). See also Diebold, Inc. v. Marshall , 585 F.2d 1327, 1336 (6th Cir.
1978) (“due process clause does not impose drafting requirements of mathematical
precision or impossible specificity”).

Applying these principles, we find that this record establishes that a
reasonable employer in the metal stamping industry would have recognized a duty
here to periodically inspect certain concealed press parts in order to comply with
section 1910.217(e)(1)(i). Washam, the OSHA official in charge of the inspection
and an expert witness in mechanical power press safety, testified that Siemens’
limited inspection of unconcealed press parts did not meet the standard’s objective.
He pointed out that such inspections would not reveal the presence of
deterioration, casting cracks, improper adjustment, and other problems associated
with concealed parts that could, when left unchecked, lead to press failure.
Siemens points to nothing in the record to dispute his expert testimony.

Washam’s testimony is corroborated by reports from World Press Repair
(“World Press”), documenting the press inspections that World Press conducted
for Siemens six and a half weeks after the Johnson press accident.

These reports
identify a number of problems with the concealed parts that Siemens did not
inspect, including missing brake springs and bolts; loose brake anchors; oily clutch
brakes; and improper adjustments of gib clearances, ball box bushings, and slide
parallelisms. Washam specifically testified that the problem of an improper gib
adjustment, which World Press documented on all the presses, could, if left
unchecked, create a casting crack leading to a breakage of a crankshaft or pitman
screw and causing the entire press to collapse.

Under Siemens’ reading of section 1910.217(e)(1)(i), an employer would be
permitted to ignore serious latent defects – such as those revealed by the World
Press inspections – that might arise in the cited concealed areas, and limit its
inspections to only the visible parts of a press. This simplistic view of the
standard’s requirements ignores the complexity of a mechanical power press and
the dangers associated with its operation. Siemens’ claim that it lacked notice of
any obligation under section 1910.217(e)(1)(i) to inspect the concealed parts of its
presses is also without merit. Indeed, Siemens’ safety director, Blevins, testified
that he was aware of OSHA’s CPL 2-1.24, National Emphasis Program on
Mechanical Power Presses , when he developed Siemens’ mechanical power press
safety program. That instruction provides a sample checklist expressly stating that
“[t]he employer is responsible for consulting the manufacturer’s recommendations
on each power press in operation and fully complying with the letter and intent of
1910.217(e).”

The manufacturer’s manual for the press involved in the accident,
the Johnson OBI Power Press Operation and Maintenance Manual , which the
Secretary submitted into evidence, recommends periodic inspections of concealed
parts, including all of those identified in the citation.

A third publication, entitled
Inspection and Maintenance of Mechanical Power Presses , by the National Safety
Council (NSC), states that “to prevent costly accidents … it is essential that the
entire machine be inspected and that necessary adjustments be made periodically.”
The NSC’s publication specifically recommends that inspections of concealed
press parts, including those identified in the subject citation, be conducted
periodically, with the frequency of inspection determined on the basis of usage, the
type of press, or the type of associated critical equipment. Blevins even listed the
NSC publication as a reference in Siemens’ written press safety program.

Under these circumstances, we cannot find that Siemens’ press inspection
program complies with the objective of this broad standard. Accordingly, we
affirm the violation of section 1910.217(e)(1)(i).

Characterization and Penalty

Section 17(k), 29 U.S.C. § 666(k), of the Occupational Safety and Health
Act of 1970 (the "Act"), 29 U.S.C. §§ 651-678, provides that a violation is serious
if there is a substantial probability that death or serious physical harm could result
from the violation. It is undisputed that failing to conduct adequate press
inspections could cause serious injury to operators. We therefore affirm the
violation as serious.

The Secretary’s proposed penalty of $5,000 was based on high gravity for
the type of injuries that could occur, such as amputations, with no reductions for
size, good faith, or history in light of a previous inspection and serious citations for
machine guarding more than three years prior to the subject citation.

The judge
assessed a lower penalty of $3,000 based on high gravity with a credit for history
and good faith. His credit for history was based on Siemens’ lack of prior citations
for several years prior to the subject violation. The good faith credit was based on
Siemens’ efforts to implement a regular and periodic press program, which,
although inadequate, was characterized as “good” by Washam.

The judge further
credited Siemens’ participation in OSHA’s Voluntary Protection Program and
noted that the evidence did not show that the deficiencies in Siemens’ press
inspection program were the cause of the Johnson press accident.

In assessing penalties, section 17(j) of the Act requires the Commission to
give due consideration to the gravity of the violation and the employer’s size,
history of violation, and good faith. 29 U.S.C. § 666(j). Gravity is a principal
factor in a penalty determination and is based on the number of employees
exposed, duration of exposure, likelihood of injury, and precautions taken against
injury. J. A. Jones Construction Co ., 15 BNA OSHC 2201, 2214, 1991-93 CCH
OSHD ¶ 29,964, p. 41,033 (No. 87-2059, 1993). We find Washam’s undisputed
testimony that an inadequate inspection program could result in serious injuries
sufficient to warrant the judge’s finding of high gravity. We also find no reason to
disturb the judge’s credit for history. In addition, the record supports the judge’s
finding that Siemens made some good faith efforts to establish and follow a
regular and periodic inspection program. Therefore, we see no basis for modifying
the judge’s penalty assessment.

Order

The citation for a serious violation of 29 C.F.R § 1910.217(e)(1)(i) is affirmed and
a penalty of $3,000 is assessed.

SO ORDERED.

/s/ ______

James M. Stephens

Commissioner

/s/ _______

Thomasina V. Rogers

Commissioner

Dated: February 25, 2005

RAILTON, Chairman, Dissenting:

The essential error my colleagues commit is that they would amend the
substantive requirements of section 1910.217(e)(1)(i) by interpreting the standard
to include duties not found within the original version of the standard. They err
because the standard was originally adopted by the Secretary under the authority
granted by section 6(a) of the Occupational Safety and Health Act (“Act”), 29
U.S.C. 655(a). The Secretary was authorized by section 6(a) to adopt, inter alia,
safety standards promulgated by consensus organizations like the American
National Standards Institute (“ANSI”) without subjecting those standards to
rulemaking under the Administrative Procedure Act, 5 U.S.C. 551 et seq ., or the
rulemaking provisions of section 6(b) of the Act, 29 U.S.C. 655(b). The price to
be paid was that the Secretary could not substantively amend a standard adopted as
an OSHA standard under section 6(a) of the Act. See, e.g., Diebold, Inc. v.
Marshall , 585 F.2d 1327 (6th Cir. 1978) (“ Diebold ”); Usery v. Kennecott Copper
Corp. 577 F.2d 1113 (10th Cir. 1977). As the reviewing courts indicated, the
Secretary could amend a standard in a substantive manner only by resorting to the
rulemaking provisions of section 6(b).

Section 1910.217(e)(1)(i) was derived from ANSI B11.1-1971 and
promulgated as a section 6(a) standard in 1971. The specific language adopted
from the ANSI standard states as follows:

4.1.3 Inspection and Maintenance Records. It shall be the
responsibility of the employer to establish and follow a program of
periodic and regular inspections of his power presses to ensure that
all their parts, auxiliary equipment and safeguards are in safe
operating condition and adjustment. The employer shall maintain
records of these inspections and the maintenance work performed.

The first sentence of this provision is precisely the language employed in the first
sentence of section 1910.217(e)(1)(i). On its face, the ANSI standard states that
inspections must ensure that “all…parts” of power presses are in safe operating
condition and adjustment. The Secretary’s brief to the Commission argues that
this language means that parts that are hidden from view by covers are to be
inspected. She also tells us that “[t]his case does not present the stark requirement
that literally every nut and bolt of the press be taken apart.” Instead, she interprets
section 1910.217(e)(1)(i), and therefore the ANSI standard, to require something
less in the way of an inspection than “all…parts” of the press. She would have the
employer remove covers to expose “ major components” of its presses. But that is
not what the original source ANSI standard said. Moreover, she fails to define
what she means by the words “major components” other than by way of reference
to her own compliance instruction, CPL 2-1.24, which was issued on February 27,
1997, almost twenty-six years after the ANSI standard was adopted.

According to the Secretary, OSHA issued the CPL to assist employers in
complying with section 1910.217. The CPL states that an employer like Siemens
“is responsible for consulting” the recommendations in the press manufacturer’s
manual in order to determine the kind of inspections they must perform. Of course
this requirement is not stated in the ANSI standard but, like a “major components
inspection,” it imposes a substantive duty on the employer. In effect, the Secretary,
with the majority’s approval, is interpreting section 1910.217 to require employers
to comply with the recommendations set forth in press manufacturers’ manuals.

In doing this, the Secretary has exceeded her authority under the Act to improperly
delegate the authority to set OSHA standards to private organizations by
substantively changing the source ANSI standard without following the
rulemaking provisions of section 6(b) of the Act. See Towne Construction Co. v.
OSHRC , 847 F.2d 1187 (6th Cir. 1987) (permissible delegation where
manufacturer’s requirements reflect without modification the “national consensus
standard” that Congress authorized the Secretary to adopt under 6a); Rockwell Intl.
Corp. , 9 BNA OSHC 1092, 1096-1097, 1980 CCH OSHD ¶ 24,979, p.30, 845
(No. 12470, 1980), citing  Deering Milliken, Inc. v. OSAHRC , 630 F.2d 1094 (5th
Cir.1980) (substantive changes to national consensus standards require formal
rulemaking procedures).

Remarkably enough, the Secretary has had two opportunities to amend
section 1910.217 to include the substantive requirements she seeks to impose here

• that employers must consult press manufacturer’s manuals and inspect major
  press components in order to meet the compliance objective of the standard. She
  held rulemakings to amend the standard in both 1974 and 1986, s ee 39 Fed. Reg.
  41841 (1974); 51 Fed. Reg. 34,552 (1986), but failed to address these issues on
  either occasion. The Commission should not substitute its interpretation of the
  standard to make up for the Secretary’s failure to engage in rulemaking. That,
  however, is precisely what my colleagues have done.

Looking at the original source ANSI standard provides guidance to what its
authors intended under section 4.1.3. An explanatory paragraph adjacent to the
standard states:

To meet the requirements of this section, it is recommended that a
visual inspection of operations, safeguards and auxiliary equipment
be made at least once per shift. At weekly, or perhaps monthly
intervals, each machine should be examined, and so indicated on
individual press forms. Some machine features may require even
less frequent attention.

Nothing is said about being responsible for consulting the manufacturer’s
instructions to determine what should be inspected nor are any “major
components” identified. The explanation is vague and moreover it is precatory. It
does not even command the employer to make inspections but only “recommends”
that they be performed. It also does not command that weekly “or perhaps
monthly” inspections be performed but only that they “should” be performed.

What may be gleaned from the explanation ANSI provided is that its
authors did not mean that employers must inspect “all…parts” of their presses. To
that extent I would agree that the “stark requirement” mentioned by the Secretary
must be rejected. However, that leaves us with a standard that appears to let
employers devise their own press inspection programs, which is precisely what
Siemens did. Indeed, the Secretary must have had the same belief for almost 26
years from when she adopted the ANSI standard until she issued the CPL.

I must add, given the vague nature of the ANSI standard and of section
1910.217(e)(1)(i), this employer cannot be said to have had notice that it should do
more than it did when inspecting its presses. See, e.g., Diebold , 585 F.2d at 1335-1339 (due process requires that regulations provide “an adequate warning of what
they command or forbid”). Siemens established and followed a program of
periodic press inspections. It had its corporate safety director design a press
inspection checklist, and it hired an outside consultant to conduct monthly
inspections of each press. Siemens’ program complied with the literal
requirements of the ANSI standard, and it therefore complied with the
requirements of the OSHA standard. I would vacate the citation on this ground as
well.

/s/ _______

W. Scott Railton

Chairman

Dated: February 25, 2005

Secretary of Labor,

Complainant,

v.

OSHRC Docket No. 00-1052

Siemens Energy & Automation, Inc.

Respondent.

APPEARANCES

Janice L. Thompson, Esq.                                               Robert A. Minor, Esq.

Office of the Solicitor                                                  Vorys, Sater, Seymour & Pease,
LLP

U. S. Department of Labor                               Columbus, Ohio

Cleveland, Ohio                                                                          For Respondent

For Complainant

Before: Administrative Law Judge Ken S. Welsch

DECISION AND ORDER

Siemens Energy and Automation, Inc. (SEA), manufactures parts and components
for electrical circuit breakers and disconnect switches at a plant in Urbana, Ohio, for
assembly at another plant. On May 2, 2000, the metal casting on the slide of the Johnson
OBI power press broke apart, causing serious head lacerations and contusions to the
operator. After an inspection of SEA’s power press program by the Occupational Safety
and Health Administration (OSHA), SEA received a serious citation on May 12, 2000.
SEA timely contested the citation.

The citation alleges that SEA violated 29 C.F.R. § 1910.217(e)(1)(i) for failing to
adequately perform periodic and regular inspections of its mechanical power presses at
the Urbana plant. The citation was amended to plead in the alternative that SEA failed to
maintain proper certified records of press inspections as also required by 29 C.F.R. §
1910.217(e)(1)(i). The citation proposes a penalty of $5,000.

The hearing was held on March 29-30, 2001, in Columbus, Ohio. The parties
stipulated jurisdiction and coverage (Tr. 5). The parties filed post-hearing briefs.

SEA denies the alleged violation and asserts that its monthly press inspection
program complied with the requirements of § 1910.217(e)(1)(i).

For the reasons discussed, a serious violation of § 1910.217(e)(1)(i) for failing to
conduct adequate press inspections is affirmed and a penalty of $3,000 is assessed.

The Inspection

SEA is a large manufacturing company with a plant in Urbana, Ohio. The Urbana
plant makes parts and components for electrical circuit breakers and electrical disconnect
switches assembled at a plant in Bellefontaine, Ohio. SEA employs approximately
75,000 employees nationwide. The Urbana plant has approximately 350 employees. The
safety director for the Urbana plant is Rex Blevins, a former OSHA compliance officer
(Tr. 17, 114-115). Between 1991 to 1995, Blevins had been a compliance officer with
OSHA (Tr. 16, 340).

The Urbana plant has approximately 23 presses used to stamp metal and mold
plastic. There are approximately 25 press operators working the plant’s two shifts (Tr.
17, 116). Ninety percent of the presses are manufactured by Minster or Bliss. There is
only one Johnson OBI press manufactured by South Bend (Tr. 34, 41, 117).

Upon starting work with SEA in 1995, safety director Blevins developed a
monthly press inspection program for the Urbana plant (Exh. C-1, pp. 13; Tr. 16, 344).
In developing the inspection program and an inspection checklist, Blevins consulted a
variety of sources including the OSHA’s National Emphasis Program On Mechanical
Power Presses, CPL 2.1-24, dated February 27, 1997 (Exh. C-6; Tr. 32). The inspection
program began in 1997 (Tr. 36).

SEA contracted Joseph Hammond, a private safety consultant, to conduct the
monthly press inspections. Hammond observed each press in accordance with the
checklist developed by Blevins and was generally accompanied by SEA repairman John
Howell. While Hammond observed the press, Howell operated the controls and cycled
the press. Hammond spent less than 15 minutes at each press and recorded his
observations on the checklist (Exhs. C-15, R-1; Tr. 215, 349, 385-390). Hammond took
no measurements, used no tools, and did not remove any covers from the press while
conducting his inspections.

On May 2, 2000, press operator Melody Gatchel was working at the Johnson OBI
press when the metal casting on the slide at the ball seat failed, breaking loose, and
striking her in the head and face (Exhs. C-8, C-10; Tr. 234-235). She has not returned to
work (Tr. 39). SEA described the cause as metal fatigue (Exh. C-8). Testing by an
outside company of the press determined that a prior stress fracture had given way (Tr.
236).

After receiving a complaint about the accident, OSHA Region IV machine
guarding/lockout coordinator James Washam inspected SEA’s press program on May 3,
2000 (Exh. C-18). Washam decided that SEA’s monthly press inspections were
inadequate and recommended the citation.

Discussion

The Secretary has the burden of proving a violation.

In order to establish a violation of an occupational safety or
health standard, the Secretary has the burden of proving:
(a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c)
employee access to the violative conditions, and (d) the
employer’s actual or constructive knowledge of the
violation ( i.e., the employer either knew or, with the
exercise of reasonable diligence could have known, of the
violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

SEA does not dispute that its presses at the Urbana plant are mechanical power
presses within the application of § 1910.217(e)(1)(i). SEA also does not dispute that it
knew of the requirements for regular and periodic inspections of mechanical power
presses and that press operators were exposed to a hazard if the presses were not
inspected.

OSHA does not dispute that SEA’s monthly inspections were regular and periodic
and that Hammond was qualified to conduct the inspections (Tr. 246, 319).

The issue in dispute is whether SEA’s monthly press inspections were adequate.
OSHA maintains that as part of Hammond’s inspection, covers need to be removed and
measurements made in order to check all parts.

Alleged Violation of § 1910.217(e)(1)(i)

The citation alleges that SEA’s mechanical power press inspection program was
not adequate because it failed to include items such as wear on friction discs, air brake
linings, shoes, casting cracks, rotary limit switches, chains and sprockets, loose nuts,
bolts, gib adjustments, flywheel bearings, ball nut adjustments, drive gears and keys and
additional items described in the maintenance manuals. In the alternative, the citation, as
amended, also alleges that such items were not recorded on SEA’s certified record of
inspections.

Section 1910.217(e)(1)(i) provides

It shall be the responsibility of the employer to establish
and follow a program of periodic and regular inspections of
his power presses to ensure that all their parts, auxiliary
equipment, and safeguards are in safe operating condition
and adjustment. The employer shall maintain a
certification record of inspections which includes the date
of inspection, the signature of the person who performed
the inspection and the serial number, or other identifier, of
the power press that was inspected.

The issue in dispute is whether SEA’s press inspections were adequate to comply
with the requirement of § 1910.217(e)(1)(i) “to ensure that all their parts, auxiliary
equipment, and safeguards are in safe operating condition and adjustment.” SEA’s
monthly press inspections involved observing each press and testing the stopping and
cycling functions of the press. It did not involve removing covers or taking
measurements.

SEA argues that OSHA is requiring SEA to be held to a standard beyond the plain
meaning of § 1910.217(e)(1)(i). SEA argues that § 1910.217(e)(1)(i) does not require
removing covers to check a part’s condition (Tr. 257-258). SEA maintains that OSHA is
imposing an additional obligation to check the condition of the press for troubleshooting
or maintenance which is imposed by § 1910.217(e)(1)(ii) but not by § 1910.217(e)(1)(i).
SEA’s safety consultants Hammond and Robert Brockmeyer testified that they knew of
no companies who inspected presses in the manner suggested by OSHA (Tr. 384, 413-414).

Although Washam considered SEA’s inspection “good,” he did not think it went
far enough because Hammond’s inspection did not include the parts of the press not
readily visible from walking around the press (Tr. 317). While Hammond visibly
inspected the parts on SEA’s checklist, repairman John Howell cycled the press.
Hammond did not remove covers, use wrenches or other tools, or take measurements.
Hammond recorded his observations as “satisfactory” or “unsatisfactory” on the
checklist. After completing the inspection, Hammond signed the checklist (Exh. C-15).
Each inspection of the 23 presses took from five to fifteen minutes (Tr. 67, 164, 215).              SEA agrees that the parts identified in OSHA’s citation (wear on friction discs, air
brake linings, shoes, casting cracks, rotary limit switches, chains, sprockets, loose nuts,
bolts, gib adjustment, flywheel bearings, ball nut adjustment, drive gears and keys) were
not specific items on the SEA checklist. Also, the parts were not inspected if concealed
nor were they measured to ensure adjustment (Tr. 71-72, 75-82, 169-177, 219-221, 223-227). Washam testified that the press parts listed in the citation were taken from the
Johnson OBI Power Press Operation and Maintenance Manual

(Exh. C-7; Tr. 245-246).

In determining compliance with § 1910.217(e)(1)(i), it is noted that there are no
OSHA interpretative bulletins and the standards do not define “inspection” (Tr. 293-294,
317-318). Also, decisions by Commission judges provide little guidance as to the scope
of the inspection envisioned by § 1910.217(e)(1)(i). Broward Hurricane Panel Co. , 6
BNA OSHC 1307, 1308 (No. 77-0677, 1977) (Judge Burroughs found that the
employer’s inspection and testing before each use of mechanical power presses that
operated on a sporadic basis substantially complies with requirements as to frequency of
inspection and testing); Spaulding Lighting, Inc ., 13 BNA OSHC 1412 (No. 86-1193,
1987) (Judge Sparks vacated a failure to abate citation because the employer conducted
weekly inspections of the clutch, brake mechanism, anti-repeat feature and single slide
mechanism which, although not as extensive as requirements of § 1910.217(e)(1)(i),
complied with the parties’ earlier settlement agreement); Turnbull Metal Products Co.,
Inc ., 18 BNA OSHC 1555, 1558 (No. 96-1463, 1998) (Judge Welsch affirmed a violation
of § 1910.217(e)(1)(i) because employer’s lack of inspection was shown by the number
of items on presses found in disrepair and the employer’s checklist did not identify the
parts inspected); and SK Wellman Friction Co., 18 BNA OSHC 1878, 1882 (No. 98-648,
1999) (Judge Cook observed that the set up man’s inspections were not periodic, not
documented, and were done incidental to other work).

Therefore, to determine compliance with standards such as § 1910.217(e)(1)(i),
the Review Commission interprets such broad standards in light of the conduct to which
it is being applied and external objective criteria, including the knowledge and
perceptions of a reasonable person, is used to give it meaning. American Bridge
Company, 17 BNA OSHC 1169, 1172 (No. 92-0959, 1995). The wording is construed in
a reasonable manner consistent with a common sense understanding. The words are
viewed in context, not in isolation. Ormet Corp., 14 BNA OSHC 2134, 2135 (No. 85-531, 1991). The standard must be interpreted as a whole, giving effect to each word and
making every effort not to interpret a provision in a manner that renders other provisions
of the same standard inconsistent, meaningless, or superfluous. Boise Cascade Corp. v
U. S. Environmental Protection Agency, 942 F.2d 1427, 1432 (9th Cir. 1991). It is not
necessary to impose drafting requirements of mathematical precision or impossible
specificity. Ormet, supra, at 2135. The Secretary’s reasonable interpretation is entitled
to substantial deference. However, employers are entitled to fair warning of what a
standard requires.

Section 1910.217(e) is entitled “ inspection, maintenance, and modification of
presses .” Section 1910.217(e)(1)(i) requires regular and periodic inspections of presses.
The standards do not define what constitutes an inspection. Also, the cited standard does
not involve requirements for maintenance or modification of presses. Such requirements
are provided in subsequent subsections of § 1910.217(e)(1). Also, the cited standard
does not require testing. Otherwise, the Secretary would have included testing in the
standard like she did in § 1910.217(e)(1)(ii). “[W]here a term is carefully employed in
one place and excluded in another, it should not be implied where excluded.” Diamond
Roofing Co., Inc. v OSHRC , 528 F.2d 645, 648 (5th Cir. 1976).

In contrast to the cited standard, § 1910.217(e)(1)(ii) requires, in part:

Each press shall be inspected and tested no less than
weekly to determine the condition of the clutch/brake
mechanism, anti-repeat feature and single stroke
mechanism. Necessary maintenance or repair or both shall
be performed and completed before the press is operated.

The presses at SEA are equipped with control reliability systems and brake system
monitoring which exempts them from the requirement of § 1910.217(e)(1)(ii) (Tr. 22).
However, the standard’s language demonstrates the difference between an inspection
designed to ensure that parts, auxiliary equipment and safeguards are in safe operating
condition under § 1910.217(e)(1)(i) and an inspection designed to determine the
“condition of the clutch/brake mechanism, anti-repeat feature and single stroke
mechanism under § 1910.217(e)(1)(ii) (Tr. 323-325).

It is reasonable to conclude that “inspection,” as used in § 1910.217(e)(1)(i), does
not require testing, maintenance, or modifications; although it is also reasonable to imply
that defects found during any inspection be corrected when found. According to the
dictionary, an inspection means “to view closely in critical appraisal: look over, to
examine officially.” Webster’s Seventh New Collegiate Dictionary.

An inspection as contemplated by § 1910.217(e)(1)(i) involves visible
observations. Section 1910.217(e)(1)(i) is stated in the present tense. The purpose of the
periodic press inspection is “to ensure that all their parts, auxiliary equipment, and
safeguards are in safe operating condition and adjustment.” The standard contemplates
an inspection sufficient to check if all parts and safeguards are in safe operation and
adjustment.

In order to accomplish the periodic inspection, it is reasonable to require that
covers be removed and measurements made to ensure that all parts are free of visible
wear or cracks and are in proper adjustment. Cycling the press does not disclose the
possibility of worn, cracked, loose or out-of-adjustment parts which may be discovered
during a visual inspection. To assist employers in implementing a press inspection
program, OSHA issued OSHA instruction CPL 2-1.24 on February 27, 1997, and
attached a sample inspection checklist (Exh. C-6). The sample checklist identifies for
inspection the components common to most presses. Also, the checklist advises the
employer that it is responsible for consulting the manufacturer’s recommendations
because of the differences between presses. The manufacturers recommendations must
be used because there are numerous press manufacturers of different presses (Tr. 252).
At SEA, the 23 presses were manufactured by South Bend, Minster and Bliss. Safety
Director Blevins acknowledges knowing of the CPL when he implemented SEA’s
inspection program.

Based on a review of the record, SEA’s inspection program was inadequate.
Without removing covers, SEA’s press inspection program did not inspect “all their
parts” for safe operation and adjustment. The standard uses the term “all parts” to
describe the scope of the visual inspection. As stated by OSHA inspector Washam,
“[T]he fact that it’s operating today just through a visual observation operational test, it
does not tell you if we’ve got some bad parts that might fail” (Tr. 241-242). SEA safety
director Blevins conceded that Hammond’s visible inspection could not verify the proper
adjustments of the parts such as the gib slide. However, he stated that too much oil was a
way of checking gib adjustment (Tr. 78, 88). Washam testified that at the point there is
too much oil, a press could be far out of adjustment and a problem already created (Tr.
424). According to Washam, an employer who follows the manufacturer’s
recommendations would be in compliance (Tr. 300).

As evidence of deficiencies in SEA’s press inspection program, World Press
Repair Co. inspected all of SEA’s presses on June 27, 2000 (Exh. C-16; Tr. 355). World
Press was asked by SEA to check the gib adjustments and clearances, the slide
parallelism and the clutch brake mechanism. The report by World Press found problems,
such as four missing clutch springs, which should have been detected during SEA’s
periodic inspection. Howell agreed that the broken springs should have been found
during Hammond’s inspection (Tr. 182, 186). Hammond testified that he would check
for missing or broken springs if they were visible. However, most of the springs are
contained under the flywheel cover (Tr. 398). Hammond agreed that missing springs
could have existed “for awhile” (Tr. 400). World Press Repair also found, among other
things, gib adjustments out of clearance, brakes very oily, ball box bushings needing
adjustment, and clutch pins needing replacement (Exh. C-16; Tr. 265-266). Prior to the
accident, SEA’s prior inspection was on April 25, 2000 (Exh. C-15).

OSHA’s interpretation that SEA remove covers and check adjustments as part of
its periodic press inspection program is reasonable “to ensure that all their parts, auxiliary
equipment, and safeguards are in safe operating condition and adjustment.” A violation
of § 1910.217(e)(1)(i) is established.

Serious Classification

The violation of § 1910.217(e)(1)(i) was serious. A violation is serious under §
17(k) of the Act (29 U.S.C. § 666(k)), if it creates a substantial probability of death or
serious physical harm and the employer knew or should have known of the violative
condition. The issue is not whether an accident is likely to occur; it is rather, whether the
result would likely be death or serious harm if an accident should occur. Whiting-Turner
Contracting Co ., 13 BNA OSHC 2155, 2157 (No. 87-1238, 1989).

SEA does not dispute that failing to conduct proper press inspections could cause
serious injury to operators. Although the cause of the May 2 accident was not shown to
be the result of an inadequate inspection, it does show the hazards associated with
working with mechanical power presses. The World Press Repair Co. report found that
22 of SEA’s 23 presses required repair and/or adjustment (Exh. C-16).

Knowledge of the condition is shown by SEA’s awareness of the need for
periodic press inspections. The knowledge element is directed to the physical conditions
that constitute a violation, and the Secretary need not show that the employer understood
or acknowledged that the physical conditions were actually hazardous. Phoenix Roofing,
Inc ., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) aff’d. without published opinion ,
79 F.3d 1146 (5th Cir. 1996). SEA was aware that its inspections did not check all parts,
as required by § 1910.217(e)(1)(i). There does not need to be a showing that SEA knew
that it violated the standard.

Penalty Consideration

The Commission is the final arbiter of penalties in all contested cases. In
determining an appropriate penalty, the Commission is required to consider the size of
the employer’s business, history of previous violations, the employer’s good faith, and
the gravity of the violation. Gravity is the principal factor to be considered.

SEA is a large employer with approximately 350 employees at the Urbana plant.
The Secretary failed to give SEA credit for history. However, the record shows that SEA
had not received a previous citation since 1995 (Tr. 279-280, 286). SEA, therefore, is
entitled to credit for history. Also, SEA is entitled to good faith credit. SEA did
implement a regular and periodic press inspection program which OSHA inspector
Washam considered good. Although not adequate, SEA attempted to comply. The May
2 accident was not shown to be the result of deficiencies in SEA’s press inspection
program. Also, SEA is in OSHA’s Voluntary Protection Program (Tr. 364-365).

A penalty of $3,000 is reasonable for violation of § 1910.217(e)(1)(i). Although
SEA conducted monthly inspections of all presses, the inspections failed to adequately
inspect all parts to ensure safe operating conditions and adjustments. The Urbana plant
has approximately 23 presses and 25 press operators. The program was developed by
Blevins, a former OSHA compliance officer, and Brockmeyer, who has trained
compliance officers (Tr. 405-406). Brockmeyer characterized SEA’s press inspection
program as above average (Tr. 413). The inspections were performed by Hammond who
the CO described as well qualified.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is ORDERED that:

Citation No. 1, Item 1, alleged serious violation of § 1910.217(e)(1)(i) is affirmed
and a penalty of $3,000 is assessed.

/s/

KEN S. WELSCH

Judge

Date: December 14, 2001