Action Electric Company

Read the official release (oshrc.gov)

Plain-English summary

An Action Electric apprentice was fatally struck by a steel mill cooling-bed counterweight before the facility's lockout process was complete. The judge vacated the group lockout citation after finding the cited rule did not apply to the fan-replacement work. The two Commission members disagreed on that issue and vacated the direction for review. As a result, the judge's decision became the final appealable order, with the nonprecedential status of an unreviewed ALJ decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.147(f)(3)(ii)(D).
• Outcome: The direction for review was vacated, leaving the judge's vacatur of the lockout citation as the final order.
• Key point: When the participating Commissioners are evenly divided and discontinue review, the ALJ decision becomes final without gaining Commission-precedent status.

Full text (OSHRC public release)

Action Electric Company, Docket No. 12-1496

Walter, J. David
Normal
Walter, J. David
2
1
2018-08-03T15:59:00Z
2018-08-03T15:59:00Z
1
16723
95323
794
223
111823
16.00

Clean
Clean
false

false
false
false

EN-US
X-NONE
X-NONE

United States of America

OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION

1120 20 th   Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF
LABOR,

Complainant,

v.

OSHRC Docket No. 12-1496

ACTION ELECTRIC COMPANY,

Respondent.

ON BRIEFS:

Steven
W. Gardiner, Attorney; Charles F. James, Counsel for Appellate Litigation;
Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety and
Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor,
Washington, DC

For the Complainant

J.
Larry Stine, Esq.; Mark A. Waschak , Esq.; Wimberly,
Lawson, Steckel, Schneider & Stine, P.C., Atlanta, GA

For the Respondent

DECISION

Before:
ATTWOOD, Chairman; and M ac DOUGALL ,
Commissioner.

BY
THE COMMISSION:

After
an employee was fatally struck by a several-ton counterweight at a steel mill,
the Occupational Safety and Health Administration issued Action Electric
Company a serious citation alleging a violation of the lockout/tagout (LOTO)
standard, 29 C.F.R.

§ 1910.147(f)(3)(ii)(D). 1 The judge vacated the citation, concluding
that the requirements of the cited LOTO standard did not apply.

On
review, the two Commission members are divided regarding the applicability of
the LOTO standard—the only remaining issue in this case. 2 To resolve this
impasse, the members agree to vacate the direction for review, thereby allowing
the judge’s decision to become the final appealable order of the Commission,
with the precedential value of an unreviewed administrative law judge’s
decision. See, e.g., Texaco, Inc. , 8 BNA OSHC 1758, 1760 (No. 77-3040,
1980) (consolidated); Rust Eng’g Co. , 11 BNA OSHC 2203, 2205 (No.
79-2090, 1984); Safeway, Inc. , 20 BNA OSHC 1021, 1023 (No. 99-0316,
2003); Timken Co. , 20 BNA OSHC 1070, 1072 (No. 97-0970, 2003). See
also 29 U.S.C. §§ 659(c), 660(a)-(b), 661( i ).
Accordingly, the direction for review is vacated. The separate opinions of the
two participating Commission members follow.

SO ORDERED.

/s/                                                         

Cynthia
L. Attwood

Chairman

/s/                                                         

Dated: July 6, 2016                                                     Heather
L. MacDougall

Commissioner

Separate Opinion
of Chairman Attwood

ATTWOOD, Chairman.

This
case is not novel. It rests on well-established legal principles underlying an
employer’s obligation to follow the requirements of OSHA’s lock-out/tag-out
(LOTO) standard to protect its own servicing and maintenance employees from the
hazards of unexpected energization.

Factual Background

At
the Gerdau Ameristeel mill in Cartersville, Georgia,
a several-ton counterweight fatally struck an employee of contractor Action
Electric Company. The Occupational Safety and Health Administration issued
Action Electric a serious citation under a provision of the LOTO standard, 29
C.F.R. § 1910.147(f)(3)(ii)(D), based on the company’s alleged failure to
ensure that its employees affixed their lockout devices to a group lockbox
before performing maintenance work.

The
Gerdau mill processes scrap metal into steel components used in construction.
It melts and recasts the metal and sends it through a rolling mill, which
produces individual pieces of steel called “billets.” The billets, which have
been heated to 1600 degrees, are then sent across a 325-foot-long and
100-foot-wide “cooling bed.” 3 A series of grooved metal rakes move up
and down to “walk” the billets across the bed while 110 rotary fans—bolted to a
rail 4 to 6 inches below the rakes—blow air across the billets to cool them.
The rakes are moved by counterweights (attached to rotating shafts, drive
chains, gear boxes, and large drive motors) weighing several tons each. The
counterweights make 360-degree, clockwise revolutions and are located on the
underside of the cooling bed in an area known as the “basement,” along with the
fans, drive motors, chains, rotating shafts, gear boxes, and other cooling bed
components. The cooling bed basement has a lighted, designated walkway down its
center—demarcated by chains strung along both sides—that Gerdau uses when it
inspects the underside of the cooling bed. The walkway is the only safe place
in the basement when the cooling bed is operating.

On
the day of the accident, the cooling bed had been shut down, and Action was
planning to replace the final three of the seventeen fans Gerdau hired it to
service. The other fans had been replaced by Action on two previous occasions.
That morning, Gerdau’s cooling bed maintenance technician told the Action leadman on the project that he would—pursuant to Gerdau’s
mandatory LOTO procedure and consistent with his actions on the two prior
occasions—lock out the cooling bed and meet the leadman
near the basement’s north entrance where the group lockout box was located.
According to the administrative law judge, the maintenance technician was gone
for less than 40 minutes. During that time, the leadman
complied with Gerdau’s contractor requirement to fill out a Gerdau work
authorization permit. But he failed to wait, as required, for Gerdau’s
technician to complete the lockout process—lock out the cooling bed; place
key(s) to the locked-out cooling bed components in the lock box; place personal
lock on the box; and sign the form verifying that the lockout procedure was complete and Action’s work could begin. And neither the leadman , nor any of the Action employees he supervised that
day, affixed a personal lock to the group lock box—another step Gerdau
required. 4
The leadman , who knew lockout had not been completed,
and an Action apprentice then entered the basement, left the designated
walkway, and walked about 24 feet into the workings of the cooling bed to the
area where the fans were located. Unaware that the two Action employees were in
the basement, Gerdau’s technician started the cooling bed lockout procedure,
which required relieving the stored energy in the counterweights by moving them
to their deenergized position. When he did so, one of the counterweights fell
from its resting position of one o’clock to its de-energized position of
six o’clock, fatally striking the apprentice and coming within inches of
hitting the leadman .

The
judge vacated the citation, concluding that the requirements of the cited LOTO
standard, 29 C.F.R. § 1910.147(a)(1)( i ), do not apply
because “Action’s servicing and maintenance work was only on the fans,” the
“injury . . . resulted from an . . . adjacent counterweight,” and “[t]here [ wa ]s no .  . . expos[ ure ] to the unexpected energization or release of hazardous
energy from the fans.” In addition, the judge found that the “Action employees
were not engaged in servicing and maintenance work” at the time of the accident
because they were simply “in the basement [to] discuss[ ]
their . . . work on the fans.”

Discussion

This
case poses a simple question—what “machine” was being serviced? The
LOTO standard applies 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 C.F.R. § 1910.147(a)(1)( i ).
Its purpose is to protect those employees who are engaged in servicing and
maintenance and others who are in the vicinity. The factual record in this case
demonstrates that Action’s employees were servicing a complex machine—the cooling
bed—that necessarily contains many component parts, including fans, rakes,
drive chains, motors, rotating shafts, and counterweights. 5 Thus, contrary
to the judge’s analysis and that of my colleague, before servicing of the
cooling bed’s fans could begin, lockout was required of all cooling bed
components because the cooling bed posed LOTO hazards to the workers performing
the servicing. 6 And this included the several-ton
counterweight at issue—which no one disputes contained stored energy that, when
released, caused it to fall and fatally strike Action’s apprentice employee. 7

“Machine” is commonly defined as “an
apparatus, made of organized, interacting parts, which takes in some form of
energy, modifies it, and delivers it in a more suitable form for a desired
function.” The New Lexicon Webster’s Dictionary of the English Language
595 (1987). Consistent with this definition, the LOTO standard’s preamble
contemplates that “machines” will have myriad “parts,” and recognizes that “[o] nce [a] machine . . . has been stopped, there remains the
potential for employee injury from the unanticipated movement of a component
of the machine . . . . ” Control of Hazardous Energy
Sources (Lockout/Tagout), 54 Fed. Reg. 36,644, 36,647 (Sept. 1, 1989) (final
rule) (emphasis added). This fundamental concept of a machine being made up of
component parts is also reflected in one of the preamble’s examples of
accidents “typical of these [LOTO] hazards and demonstrat [ es ] the applicability of the pertinent provisions in the
final standard”:

The
hogger had been shut down, but the conveyor feeding
the hogger had not been. The employee climbed onto
the machine, fell onto the conveyor, was pulled into the hogger
opening, and was fatally crushed.

54 Fed. Reg at
36,646. In this example, an employee was working on one machine component—a hogger —when another component—a conveyer, which could
independently move materials without the hogger
operating—caused the injury. OSHA considered these components part of a single
“machine” for LOTO purposes. 8

As
noted above, the cooling bed also has a number of
component parts, and they are even more interconnected than those in the
preamble’s example. These include rakes, counterweights, and fans that are not
only physically connected to the cooling bed but are also functionally
integrated to simultaneously interact and accomplish a single goal—the cooling
and moving of steel billets. Indeed, the cooling bed cannot achieve its
function unless the rakes, motors, drive chains, rotating shafts,
counterweights, and fans are operating simultaneously. These components serve
no useful purpose if operated independently of one another—there is no point in
moving hot steel billets with the rakes, counterweights, and other component
parts if the fans are off, and likewise no point in running the fans if the
counterweights are not rotating to move billets across the rakes. 9
This fact is echoed by Chad Hughes, Gerdau’s cooling bed maintenance
technician, who described the machine as follows:

Basically,
you have the hot [metal] bars [billets] leaving the rolling mill. [The metal]
comes down on a series of rolls. Then, it’s kicked down onto what we call the
rakes. The rakes, as the bars progressively add up to the cooling bed, it walks
them across the bed, cools them underneath with air [from the fans], and then
they go to the transfer chains on the other side of the bed and transfer it
off, and then another roller conveyor into the straightener where they’re
straightened.

Additionally,
Gerdau safety manager Ecky Hall testified that the
cooling bed components “act as one unit” and were “all part of one big system,”
and Hughes further stated that “[t]he [other cooling bed] equipment overlaps in
so many different ways with the fans,” such that “[b] asically the equipment acts as one.” As one machine, it
comes as no surprise that Gerdau’s practice—which Action was required to
follow—is to lock out the entire cooling bed whenever maintenance is
performed on any one of its components. 10   In fact, the fatality here occurred when
Hughes was in the process of de-energizing/locking out the cooling bed’s
counterweights and other components so that the Action employees could safely
enter the cooling bed basement, leave its designated walkway (the only safe
place in the basement), and access the cooling bed’s fans. 11
Both the testimony of Gerdau’s employees and its own lockout procedure plainly
demonstrate that the cooling bed is a single “machine[].”

Action—noting
the cooling bed’s size and complexity—would have the Commission hold that the
bed is nothing more than a collection of many “machines,” when, in fact, the
size and complexity of the cooling bed counsels in favor of it being one
“machine.” Applying the LOTO standard only to small machines with few parts
would have the absurd result of precluding its application where the hazard of
unexpected energization may be greatest. See Unarco
Commercial Prods. , 16 BNA OSHC 1499, 1502 (No. 89-1555, 1993) (“It is well
established that a . . . standard must be construed so as to
avoid an absurd result.”). As the Commission has consistently acknowledged, the
LOTO standard addresses “complex equipment . . . serviced and maintained by
numerous employees extending across multiple workshifts ,”
particularly in the group LOTO context, as was the case here. 12
Exelon Generating Corp. , 21 BNA OSHC 1087, 1089 (No. 00-1198, 2005). In
other words, the “more complex” the machine, the “more comprehensive [the LOTO]
procedures may need to be.” 29 C.F.R. § 1910.147 app. A. See also Gen.
Motors Corp ., 22 BNA OSHC 1019, 1027 (No. 91-2834E, 2007) (consolidated)
(noting inadequacy of LOTO procedure for “the plant’s more complex equipment,”
which included “very complex machines” one of which—the “machine” at issue—
“contained ‘15 or 16 automatics, 165 weld guns, probably 300 limit switches
[and] over 150 disconnects,’ and for which at least four safety locks were
necessary to lock it out.”) (quoting case record); Dayton Tire,
Bridgestone/Firestone , 23 BNA OSHC 1247, 1258-59 (No. 94-1374, 2010), aff’d
in relevant part , 671 F.3d 1249 (D.C. Cir. 2012) (noting the extraordinary
complexity of the machines to which LOTO applied, which were various sizes and
configurations and contained different combinations of energy sources).

A
fundamental purpose of the LOTO standard is to eliminate the unexpected
energization or release of stored energy that results when one employee is
unaware of another employee’s presence within a machine—a circumstance OSHA has
determined to be more likely to occur with machines that are larger and more
complex:

An
accident can . . . occur when another person who is not necessarily involved
with the maintenance or servicing operation causes the activation of the
machine or equipment being serviced. This can occur when a person . . . starts
it, without knowing someone else is performing maintenance or service on it. This
. . . type of accident is more apt to occur when the machine or equipment is
large and/or complex , and the employee who is conducting the servicing
activity is at a part of the system which is some distance from or not visible
from the controls.

54 Fed. Reg. at
36,647-48 (emphasis added); see also 54 Fed. Reg. at 36,648, 36,679
(stating that “when the machine or equipment is large and/or complex, . . .
[t]he 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 further referencing “large machine[s] or complex
system[s] of equipment”). Here the size, configuration, and complexity of the
cooling bed required Action’s employees to enter the basement and leave the
designated walkway to access the fans. This put them out of sight of Hughes,
who was preparing to lock out the counterweights and other component parts. As
the record shows, Hughes, “couldn’t . . . keep [his] eye” on the cooling bed
while performing the lockout procedure in various locations in and around it.
And he did not know where the Action employees were during this time, thus
exposing them to the hazards posed by the stored energy in the counterweights,
as well as the hazards posed by the possible activation of the other cooling
bed component parts for which the LOTO process had not yet been completed.

Action,
along with my colleague, also argues that characterizing the cooling bed as one
machine for LOTO purposes would “wreak havoc” by “reducing entire factories to
fictional ‘single units,’ . . . [under] a stretch-to-fit ‘gotcha’ theory.”
This, frankly, is preposterous. The cooling bed rakes, motors, drive chains,
rotating shafts, counterweights, and fans are physically and functionally
integrated in the same sense as the components of an engine or any other device
traditionally understood to be a “machine.” To properly cool steel billets, the
rakes must move up and down in a coordinated fashion, which they cannot do
unless the counterweights move beneath them.
At the same time, the fans—of which there are more than 100 interspersed among
these other components—must blow the requisite volume of air through the rakes
and across the billets to facilitate cooling. 13
By contrast, the mere fact that the contents of a factory all contribute in
some way to the manufacture of products is hardly sufficient to make them a
single “machine” for LOTO purposes. Dayton Tire , 23 BNA OSHC at 1258-59
(affirming citation for failure to have machine-specific LOTO procedures for
each of the types of extraordinarily complex yet distinctly different machines
located in employer’s tire manufacturing plant). Indeed, in a factory with
lathes, milling machines, and drill presses, each machine is neither physically
nor functionally integrated with the others—in fact, one can be used while
others are idle. And it is by no means (as my colleague puts it) “impossible to
discern where a machine begins and ends”—Gerdau had no problem discerning the
beginning and end of the cooling bed when it required lockout of the entire
machine in order to service the fans; nor did Gerdau find it necessary to shut
down and lockout the entire mill in order to perform maintenance on the cooling
bed.

Finally,
the Secretary’s interpretation of what constitutes a “machine” under the LOTO
standard has been entirely consistent over time. An OSHA memorandum from 1999
distinguishes between an “interconnected . . . machine”—to which LOTO
applies—and “adjacent machine[s] . . . in the normal production mode of
operation”—to which the machine guarding standard applies. 14
Memorandum from Richard E. Fairfax, Director of Compliance Programs, to Michael
Connors, Regional Administrator (Oct. 5, 1999). OSHA’s enforcement directive
for the LOTO standard makes the same distinction, stating that the “standard
does not apply to equipment or machinery that is not the subject of the
servicing and maintenance activity and that functions independently
from, and is not a sub-system of, the machine/equipment being serviced
or maintained.” OSHA Instruction CPL 02-00-147, Feb. 11, 2008, Chap. 1 at 10
(emphasis added). Here, as discussed, the counterweights, rakes, rotating
shafts, drive chains, gear boxes, large drive motors, and fans serve no useful
purpose if operated independently of one another. 15
They all operate as sub-systems of the cooling bed.

In light of the foregoing, I would conclude that the
Secretary’s interpretation of § 1910.147(a)(1)( i )
here—that the cooling bed was the pertinent “machine”—is reasonable and
entitled to deference. See Martin v. OSHRC [“CF&I Steel Corp.”] , 499
U.S. 144 (1991) (holding that deference is accorded to Secretary’s reasonable
interpretation of ambiguous OSHA regulation); Union Tank Car Co. , 18 BNA
OSHC 1067, 1069 (No. 96-0563, 1997) (stating that the Commission “must defer to
the Secretary’s reasonable interpretation of an ambiguous regulation that
otherwise sensibly conforms to the purpose and wording of the regulation,
taking into account whether the Secretary has consistently applied the
interpretation embodied in the citation . . . .”) (internal quotation marks and
citation omitted).

The only remaining question is
whether Action’s work at the time of the alleged violation constituted
“servicing and maintenance.” 29 C.F.R. § 1910.147(a)(1)( i ).
The standard defines “[s] ervicing and/or maintenance”
as follows:

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.

29 C.F.R. §
1910.147(b). Action acknowledges in its brief on review that its employees were
“view[ ing ] the fans they were going to replace . . .
to see where the last worker had stopped working on the fan wiring so [they]
could know where to start.” And the Action leadman
agreed that looking at the fans to see where the last worker had left off was a
“necessary” and “integral part of the job.” Thus, Action’s employees were
“inspecting”—that is, “view[ ing ] closely in critical
appraisal,” and “ examin [ ing ]
formally, e.g. for completeness or quality”—the cooling bed. Webster’s New
Collegiate Dictionary 592 (1979); The New Lexicon Webster’s Dictionary
of the English Language 501 (1987); Gen. Motors Corp ., 22 BNA OSHC
at 1041-42 (holding that “observing or inspecting equipment when it is
stationary” is a servicing and maintenance activity to which LOTO applies, and
affirming violation for failure to utilize LOTO when exposed employee was
performing servicing and maintenance activity while equipment was stationary
and for which deenergization and use of LOTO were
possible but not used). I agree with the Secretary’s statement in his brief on
review that this type of “visual observation of equipment that is reasonably
related to hands-on servicing and maintenance, and puts employees within the
zone of danger . . . constitutes ‘inspecting’ activity within the meaning of”
the LOTO standard. 16

In these circumstances, the LOTO
standard requires following a mandated sequence of “elements and actions”:
machine shutdown, energy isolation; application of the necessary lockout
devices; restraint and rendering safe any hazardous stored or residual energy;
and verification that the isolation and deenergization
of the machine is complete. 29 C.F.R.

§ 1910.147(d)(2)-(6); s ee Gen. Motors Corp ., 22 BNA OSHC at 1040-41. As
noted, however, Action’s leadman did not obtain
Gerdau’s required verification that the lockout procedure was complete, nor did
he affix his lock to the group lockbox, as the standard requires. Accordingly,
Action was in violation of the standard’s requirements.

For
all of the foregoing reasons, I would find that the
LOTO standard applies here, and I would affirm the serious citation item at
issue and assess the $7,000 proposed penalty. 17

/s/                                                         

Cynthia
L. Attwood

Dated: July
6, 2016                                                     Chairman

Attachment:
Exhibit C-1L

Separate Opinion
of Commissioner MacDougall

M ac DOUGALL,
Commissioner:

My
colleague’s separate opinion misreads the LOTO standard to the extent new
obligations would be created for employers that the standard does not impose or
contemplate. By her assertion right from the start that “Action’s employees
were servicing a complex machine—the cooling bed—that necessarily
contains many component parts,” the opinion charts a pathway to a pre-ordained
result. Its fundamental flaw is that Action’s employees were not servicing the
cooling bed; indeed, another contractor was hired to do so at the same time
Action was engaged in its work—on the fans only. For the reasons detailed
below, I would agree with the judge that the cited standard is inapplicable
and, thus, vacate this citation item.

Factual Background

Gerdau
operates a steel rolling mill in Cartersville, Georgia, where scrap metal is
recast into structurally useful forms. Action was working as a contractor at
the mill when a fatal accident involving one of its employees occurred. As part
of the recasting process at the Gerdau mill, steel is melted and formed into
“billets”—lengths of metal—which then travel across a “cooling bed.” The
cooling bed is approximately 325 feet long and 100 feet wide with a series of
grooved metal rakes that move up and down to “walk” the billets across the bed.
The rakes are moved by counterweights, spaced about every 15 feet along the
length of the cooling bed, which weigh several tons each. The rake
counterweights make 360-degree, clockwise revolutions and are located beneath
the cooling bed in an area known as the “basement,” along with drive motors,
rotating shafts, gear boxes, and other devices. When production is shut down,
the counterweights will be raised to a one o’clock position ,
but when the cooling bed machines are de-energized for lockout, the
counterweights rotate down to the six o’clock position. Spread out along the
west side of the cooling bed and bolted to a rail four to six inches below the
rakes, are 110 rotary fans, which blow air across the billets to expedite
cooling. Gerdau hired Action to service and replace the fans, as needed.

The
basement has a designated walkway down its center—partially demarcated by rope
chains strung along both sides—that Gerdau normally uses when it inspects the
underside of the cooling bed. The walkway is accessed by proceeding through an
unlocked gate. Gerdau had no machine guarding on the counterweights, and while
it sought to limit exposure by restricting access to the area beneath the
cooling bed, 18 its written LOTO procedure for the
cooling bed does not require verifying that no one is in the zone of danger
presented when the counterweights drop during the lockout process. 19
Nor does the written procedure mention the fans.

When
the plant is shut down for large scheduled repairs and maintenance, as it was
on the day of the accident, Gerdau locks out the cooling bed. Gerdau’s LOTO
procedure permits only its own “authorized” employees to lock out the cooling
bed because, according to Gerdau’s Safety Manager, contractors “are not
familiar with the equipment.” Gerdau did, however, permit contractors,
including Action, to lock and unlock a single power source on equipment on
which they were working, such as the fans. For example, on previous days during
the course of this project, 20 Action did not lockout the cooling bed
per Gerdau’s policy prohibiting it from doing so, and Gerdau locked out
everything but the fans, leaving those unlocked so that Action could test the
repairs as its work progressed.

On
the morning of the accident, Gerdau’s cooling bed maintenance technician told
the Action leadman on the project that he would meet
the leadman at the basement’s entrance after locking
out the cooling bed. Gerdau’s maintenance technician, however, got diverted on
unrelated matters for about 50 minutes and then began the lockout procedure for
the cooling bed, which normally takes about 20 minutes. 21
When the maintenance technician began the lockout, he did not know where the
Action employees were and admitted that he could not have seen them if they
were underneath the cooling bed; nor did he require the Action employees to be
present for the lockout so that they could witness the shutdown and isolation
of necessary energies and the verification process. After meeting with the
Gerdau maintenance technician, the Action leadman and
an apprentice proceeded to the basement to view the area where the remaining
fans were to be replaced. Prior to entering the basement, the Action leadman filled out a Gerdau work authorization permit, a
form required of all Gerdau contractors. 22

However,
because its leadman , Action contends, did not believe
that they had begun work on the fans by viewing them from the basement, he did
not have Gerdau’s maintenance technician sign the work permit to verify that
the lockout procedure was complete and Action’s work could begin, nor did he or
the apprentice affix their locks to the group lockbox 23 —both
steps Gerdau also required before work could begin. Once in the basement, the
Action leadman and apprentice left the walkway, as
the leadman had previously done with the Gerdau
technician, 24 and walked to the area where the fans
were located. The Action leadman and apprentice had
no tools or equipment with them. Unaware that the two Action employees were in
the basement, Gerdau’s technician started the cooling bed lockout procedure.
When he did so, one of the counterweights fell from its resting position of one
o’clock to its de-energized position of six o’clock, fatally striking the
Action apprentice and coming within inches of hitting the leadman .
Action does not dispute that while the employees were discussing their work on
the fans, the counterweights fell because of the release of stored energy
during the process of locking out the cooling bed.

Discussion

The
Secretary issued Action a citation alleging that it violated 29 C.F.R.

§ 1910.147(f)(3)(ii)(D) by failing to affix personal lockout or tagout devices
on the group lockbox before its employees began servicing work on the fans. 25
While there is no dispute that the work Action was engaged to do—repairing
and/or replacing the fans—constitutes servicing and maintenance work, see
§ 1910.147(b) (definition of “servicing and/or maintenance” includes
“constructing” and “installing”), what is in dispute is the LOTO standard’s
application to the activities of Action’s employees at the time of the
accident.

On
review, Action reiterates the argument it made before the judge—that the LOTO
standard is inapplicable here because the cooling bed was not the “machine or equipment”
that Action was to service. Further, Action contends that even if the cooling
bed and fans were viewed as one machine, its employees were performing no
covered work—service or maintenance—when the accident occurred but were only
viewing the area where the work was to be performed. It is the Secretary’s
position that under the LOTO standard the cooling bed includes not only
component parts, such as the rakes, motors, rotating shafts, gear boxes, and
counterweights, but also the fans—constituting a single, integrated operating
system. The Secretary asserts, under this theory, that the cooling bed and fans
are components of a single machine; thus, because Action was to work on the
fans, its “authorized” employees were responsible for affixing their locks to
the group lockbox of the entire cooling bed, including the counterweights and
fans. On the second issue, the Secretary contends that, given his theory that
the cooling bed and fans are a single machine, Action’s activities at the time
of the alleged violation constituted “servicing and maintenance” work because
“visual observation of equipment that is reasonably related to hands-on
servicing and maintenance, and puts employees within the zone of danger . . .
constitutes ‘inspecting’ activity” within the meaning of the LOTO standard.

The
judge rejected the Secretary’s argument that the cooling bed and fans operated
as a single, integrated system; rather, he found that they operated
independently and were subject to separate lockouts. Further, he found that
Action had not violated the LOTO standard with respect to the fans to be
serviced on the day in question because service or maintenance work on these
fans had not begun when the accident occurred; so, Action’s employees could not
have been exposed to the unexpected energization or release of hazardous energy
from the fans. Therefore, the judge concluded that the Secretary had failed to
prove that the cited standard applied and vacated the citation.

I.The LOTO Standard
Applied Only to Action’s Work on the Fans.

The
scope provision of the LOTO standard states that “[t]his 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
C.F.R. § 1910.147(a)(1)( i ). The LOTO standard further
provides in

§ 1910.147(a)(2) that “[t]his standard applies to the control of energy during
servicing and/or maintenance of machines and equipment.” Thus, the predicate issue
for determining applicability is whether the cooling bed and fans constitute
one machine. 26 My colleague’s desire to reach a
preordained result is evident by her constant and not-so-subtle references to
the “machine” in question as the cooling bed . Repeatedly signaling her
conclusion before conducting the necessary analysis is the epitome of putting
the cart before the horse.

The
LOTO standard does not define “machine.” The dictionary definition of “machine”
is “an apparatus, made of organized, interacting parts, which takes in some
form of energy, modifies it, and delivers it in a more suitable form for a
desired function.” The New Lexicon Webster’s Dictionary of the English
Language 595 (1987). In order to meet the
“machine” requirement for applicability, the Secretary bundles an entire
process—the cooling and transporting of hot steel, using a series of machines
and procedures—into a “single integrated system.” However, this novel “single
integrated system” theory is not found anywhere in the LOTO standard, its
preamble, or subsequent publications related to the standard. 27

The
Commission previously faced the issue of what constitutes a “machine” under the
LOTO standard in Timken Co. , 20 BNA OSHC 1070 (No. 97-970, 2003).
In Timken , a steel plant employee was repairing a drive bar on a teeming
car, which is a railroad type of car. The teeming car was designed to transport
steel from various points in the plant with the assistance of a traverser, an
independent motorized unit with railroad tracks on top of it that allowed
teeming cars to move from slots onto the traverser. The Timken employee was
injured while servicing the teeming car when a traverser moved past the slot
where the employee was working and amputated her right foot and the toes of her
left foot. The teeming car was locked out but the
traverser was not. The Secretary cited Timken for a serious violation of the
LOTO standard for failing to require lockout of the traverser while repairs
were made to teeming cars. The Secretary argued that the traverser and the
teeming car were part of the same piece of equipment. The judge and Commission
disagreed. While two Commissioners agreed in Timken that the LOTO
standard did not apply, they could not agree on the appropriate disposition of
the case on the merits. Thus, the Commission vacated the direction for review,
leaving the judge’s decision as unreviewed, with no precedential effect. 28

Still,
the separate opinions in Timken are instructive regarding what
constitutes a “machine” within the meaning of the LOTO standard. In Timken ,
in finding the Secretary’s interpretation unreasonable, then-Commissioner
Rogers highlighted a 1999 OSHA memorandum based on a factual scenario
substantially similar to those present in Timken ,
which cast doubt on the consistency of the Secretary’s interpretation in that
case regarding the LOTO standard’s applicability. 20 BNA OSHA at 1073 (citing
Memorandum from Richard E. Fairfax, Director, OSHA Directorate of Compliance
Programs, to Michael Connors, Regional Administrator (Oct. 5, 1999), available
at http://www.osha.gov). Specifically, the memorandum stated: “[T]he machine guarding Subpart O requirements would apply in the
scenario where an authorized employee is performing servicing or maintenance
activities on one machine and is exposed to machine hazards from an adjacent
machine or piece of equipment in the normal production mode of operation.” Id.
Then-Chairman Railton similarly reasoned that the
LOTO standard was inapplicable because the traverser and teeming cars
“functioned independently” and were “not part of the same equipment.” Id.
at 1072, 1076.

Both
Chairman Railton and Commissioner Rogers determined
that the traverser and the teeming cars operated independently, highlighting
that the traverser was not fixed nor permanently attached to the teeming car
and that the sole function of the traverser was to transport the teeming cars.
In sum, in Timken , both Commission members drew an important distinction
between the function of an entire plant, in which many components may work
together or in a series to produce a product, and systems within a plant that
function independently and can be separately locked out for service and
maintenance.

Following
Timken , OSHA issued Directive CPL 02-00-147, which states, in relevant
part:

BB.       Servicing
and/or maintenance . Workplace activities such as constructing,
installing, setting up, adjusting, inspecting, modifying, maintaining and/or
servicing machines or equipment. These activities include lubrication, cleaning
or un-jamming of machines or equipment and making adjustments or tool changes,
where the employee may be exposed to the unexpected energization or start-up of
the equipment or release of hazardous energy . . . .

NOTE:
Activities where servicing and/or maintenance activities are not being
performed on the associated machines or equipment are not covered by the LOTO
standard. For example, some rescue activities may basically involve the removal
of persons (e.g., elevator rescue) without any equipment disassembly or
servicing . . . .

Also,
the standard requires employers to establish an energy control program to
control hazardous energy that otherwise might injure or kill employees who
service or maintain machines/equipment. However, the LOTO standard does
not apply to equipment or machinery that is not the subject of the servicing or
maintenance activity and that functions independently from, and is not a
sub-system of, the machine/equipment being serviced or maintained. If
authorized employees are exposed to hazardous energy associated with such an
adjacent machine/piece of equipment while performing servicing/maintenance work
on an independent, unrelated machine/piece of equipment, an employer’s
obligations are established by Section 5(a)(1) of the OSH Act or other relevant
standards, such as the Machine guarding (Subpart O) requirements. See
The Timken Company (OSHRC Docket No. 97-0970,
2003).

OSHA Instruction
CPL 02-00-147, Feb. 11, 2008, Chap. 1 at 10 (emphasis added). Thus, in light of
Timken , OSHA’s directive clarifies that maintenance or servicing of
“associated machines or equipment” is not covered by the LOTO standard. 29
The directive specifically cites Timken and unambiguously states that
“the LOTO standard does not apply to equipment or machinery that is not the
subject of the servicing and maintenance activity and that functions
independently from, and is not a sub-system of, the machine/equipment being
serviced or maintained.” Id . OSHA also reiterates that the LOTO standard
is intended to supplement the guarding standards. Id.

Despite
what OSHA states in its directive, the Secretary repeats the errors of Timken
here and again attempts to blur the line between a “single piece of equipment”
and an “adjacent, independent machine” by coining a new phrase for his theory—a
“single integrated system.” Like the judge, I would find that relying on this
theory for the application of the LOTO standard in this case is unreasonable. Similar to the traverser and teeming cars in Timken ,
the fans and counterweights at issue here operate independently and are not
directly connected or attached to each other. The fans have no electrical or
hydraulic connection with the rakes, counterweights, drive shaft, drive motors,
or chains of the cooling bed. 30 For example, there are no electrical
connections between the drive chains that move the rakes up and down and the
heated metal across the bed and the fans—connections that, for example, turn
the fans on when the drive chains turn on. To lock out the fans, according to Gerdau’s cooling bed
maintenance technician, “[a] ll you’ve got to do to
turn the power off on the fans is to throw those knife switches and lock them
out.” 31
At the fan’s disconnect, there is a place to put the lock. Unsurprisingly, this
step is not included in Gerdau’s written procedure for locking out the cooling
bed. Indeed, the fans and counterweights serve very different purposes: the
sole function of the counterweights is to move the rakes, which in turn move
the billets; the sole function of the fans is to circulate air. 32
In sum, the fans and counterweights cannot be interconnected components
constituting a single machine, 33 and so I would conclude that the
Secretary’s interpretation of “machine” in this case is not reasonable and,
therefore, not entitled to deference. 34

The
preamble to the LOTO standard further supports the conclusion that the LOTO
standard is not a one-size-fits-all solution for citing hazards from energized
machinery. 35
The preamble provides:

With regard to servicing and/or
maintenance which takes place during “normal production operations,” it is
important to note that this standard is intended to work together with existing
machine guarding provisions of Subpart O of part 1910, primarily §§ 1910.212
(general machine guarding) and 1910.219 (guarding of power transmission
apparatus). When a machine is used for production,

§ 1910.212 requires that the point of operation be guarded. For example, when
an employee is using a table saw to cut wooden parts, the employee would be
protected by guards around the blade of the saw. If the employee needs to reach
into the point of operation in order to adjust the
work piece as part of the production process, § 1910.212 requires that the
guarding protection be maintained. As long as guarding
is not removed or bypassed, the lockout/tagout standard is not intended to
apply to these types of situations. By contrast, using the same table saw, it
may be necessary for the employee to remove a piece of wood which has become
jammed against the blade of the saw. In doing so, the employee might need to
bypass or remove the guard on the saw and reach into the point of operation.
Although this action takes place “during” normal production operations, it is
not actually production, but is servicing of the equipment to perform its
production function. When such servicing may expose the employee to the
unexpected activation of the machinery or equipment, or to the release of
stored energy, this Final Rule will apply. If the servicing is performed in a
way which prevents such exposure, such as by the use of
special tools and/or alternative procedures which keep the employee’s body out
of the areas of potential contact with machine components or which otherwise
maintain effective guarding, this standard will not apply. Thus, lockout or
tagout is not required by this standard if the employer can demonstrate that
the alternative means enables the servicing employee to clean or unjam or
otherwise service the machine without being exposed to unexpected energization
or activation of the equipment or release of stored energy.

Control of
Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36,644, 36,647 (Sept.
1, 1989). The preamble emphasizes that the LOTO standard was not intended to
cover every situation where there is a risk of unanticipated release of stored
energy and did not repeal, but rather was intended to supplement, the machine
guarding standard and the general duty clause. 36
Extending the language of the LOTO standard to a “single, integrated system,”
when there are separate, independent pieces of equipment or machines, is
contrary not only to the language of the standard but to the intent of the
standard as expressed in its preamble.

In
this case, “the LOTO standard does not apply to equipment or machinery that is
not the subject of the servicing and maintenance activity and that functions
independently from, and is not a sub-system of, the machine/equipment being
serviced or maintained.” See OSHA Instruction CPL 02-00-149,
Chap. 1 at 10. The counterweights were not the “subject of the servicing and
maintenance activity” undertaken by Action, and they “function[ ed ] independently from, and [were] not a subsystem of, the
machine/equipment [the fans] being serviced or maintained.” I would therefore
find that the cited LOTO standard did not apply.

It
is true that overlapping hazards can arise from adjacent, but independent,
pieces of machinery. Indeed, the LOTO standard contemplates numerous
protections, including guarding and multiple lockouts that may need to occur to
safely perform work—without turning complex, albeit separate machines, into a
single machine. 37 See 54 Fed. Reg. at 36,682
(discussing 29 C.F.R. § 1910.147(f)(4) and recognizing that “servicing of some
complex equipment may take days or weeks, and that in some cases, hundreds of
lockout or tagout devices may be necessary”); cf. Drexel , 17 BNA OSHC at
1913 (“Because the standard requires the lockout procedures for each type of
machine to be specifically defined, and because there are different types of
machines at the plant, [respondent] must have more than one lockout
procedure.”). This case is not about the indisputable proposition that an
employer has a duty to protect employees under all applicable standards;
rather, it is about whether a specific standard applies in the first place. 38
See Se. Contractors, Inc ., 1 BNA OSHC 1713, 1716 (No. 1445, 1974)
(Moran, Chairman, dissenting) (“[T]here can be no violation of the Act by a
respondent for failure to comply with a standard which charges some other
employer with the duty of implementing the standard.”), dissent adopted on
appeal , 512 F.2d 675 (5th Cir. 1975) (per curiam );
see also Unarco Commercial Prods. , 16 BNA OSHC
1499, 1499 (No. 89-1555, 1993) (vacating citation based on plain language of
standard, and stating that “the test for the applicability of any statutory or
regulatory provision looks first to the text and structure of the statute or
regulations whose applicability is questioned”) (citations omitted).

Moreover,
the notion that separate machines—like the fans and counterweights, which
completely lack any physical, hydraulic, or electrical connection—should be
considered one machine for LOTO purposes obliterates the language of the LOTO
standard, as well as the interplay between LOTO and the guarding of adjacent
machines, which the standard already considered and
the Secretary addressed in his post- Timken guidance. Additionally, this
notion is unworkable. For example, an automobile plant consists of hundreds of
machines. Like the cooling bed and fans in this case, many of those machines
have no physical, hydraulic, or electrical inter-connection. However, they are
all used to produce car components and, ultimately, cars. Under the Secretary’s
single integrated system theory, it is impossible to discern where a machine
begins and ends. 39 Are all the machines connected by a
conveyor system that builds the car a single integrated system? Or are the
machines connected by a conveyor system that builds just the doors of a car a
single integrated system? Under the Secretary’s theory, any of these could be a
single integrated system as, according to the Secretary, “they’re all part of
one big system.”

Action
rightly states that this approach would “wreak havoc . . . by reducing entire
factories to fictional ‘single units,’ dumping the existing [regulatory] scheme
which pairs specific hazards with specific requirements in favor of a
stretch-to-fit ‘gotcha’ theory.” In this case, the Secretary chose to issue a
single LOTO citation for all the machines he claims made up the cooling bed.
However, in Dayton Tire , 23 BNA OSHC 1247 (No. 94-1374, 2010) , aff’d
in part, rev’d in part , 671 F.3d 1249 (D.C. Cir.
2012), the Secretary cited Dayton on a per-machine-type basis under §
1910.147(c)(4)( i ), the LOTO standard’s energy control
procedure provision, because the separate machines were “differently
configured, ha[d] multiple energy sources, or [were] particularly complex.” Id.
at 1258 (noting that Dayton’s single LOTO procedure “was particularly
ineffective for employees attempting to utilize LOTO before servicing the
particular piece of equipment at issue” and noting seven different complex
machines that were differently configured). Utilizing his new single integrated
system theory, the Secretary now wants to claim that multiple pieces of
equipment at a worksite constitute either a single-integrated machine or
separate types of machines, leaving the regulated community with no way of
knowing what the Secretary will identify as a machine.

An
employer lacking fair notice of a standard cannot be found in violation of the
Act for failure to comply with that standard. See, e.g., S.G. Loewendick & Sons, Inc. v. Sec’y of Labor , 70 F.3d
1291, 1297 (D.C. Cir. 1995) (“Congress and the courts require that agency
action reflect clear, rational decision making that gives regulated members of
the public adequate notice of their obligations.”); Diebold, Inc. v.
Marshall , 585 F.2d 1327, 1335-39 (6th Cir. 1978) (“[S] tatutes
and regulations which purport to govern conduct must give an adequate warning
of what they command or forbid.”); Cardinal Indus. , 14 BNA OSHC 1008,
1011, (No. 82-427, 1989); Lisbon Contractors, Inc ., 11 BNA OSHC 1971,
1974 (No. 80-97, 1984) (“A construction of a standard that bears no reasonable
relationship to the standard’s plain words cannot be expected to guide
employers in their conduct.”). In my view, the Secretary’s “single integrated
system” theory does nothing to guide employers or employees through the lockout
process. In light of its dubious legal foundation, if
the citation had been affirmed here, the single integrated system theory would
have far reaching consequences that could afford the Secretary almost
unfettered discretion as to the breadth of the LOTO standard, thereby
eliminating fair notice to the regulated community.

II.Action’s Employees Were
Not Engaged in Servicing or Maintenance

Because
I would agree with the judge that the fans were not part of a single “machine
or equipment” that includes the cooling bed, there is no need to reach the
issue of whether Action employees were engaged in service or maintenance work
at the time of the accident. However, even if I were to disagree with the judge
on the predicate issue, I would find that viewing the fans from basement was
not “servicing or maintenance” work covered by the LOTO standard. The
irrationality of the first part of the Secretary’s analysis—determining what is
a machine—figures prominently in assessing whether such work occurred. Because
of the Secretary’s unreasonably broad view of “machine,” simply looking at a
fan becomes servicing or maintenance—or as the Secretary posits, “visually
observing.” Again, using the auto assembly line as an example, when does
“visually observing” a line become service or maintenance? Under the Secretary’s
theory, anytime an employee is looking at the line, he or she is in the zone of
danger sought to be protected by the LOTO standard.

Rather,
the LOTO standard “covers the servicing and maintenance of machines and
equipment,” 29 C.F.R. § 1910.147(a)(1)( i ), and
defines “[s] ervicing and/or maintenance” as follows:

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.

29 C.F.R. §
1910.147(b) (emphasis in original). Nowhere can “visually observing” be found
in the definition of “servicing and/or maintenance.” In attempting to fit
within one of the examples included in the definition, the Secretary contends
that the activities of Action’s employees constituted “inspecting” activities
within the meaning of section 1910.147(b). Although “inspect” is not defined in
the LOTO standard, “inspect” means “to view closely in critical appraisal,” or
“to examine formally, e.g. for completeness or quality.” Webster’s New Collegiate
Dictionary 592 (1979); The New Lexicon Webster’s Dictionary of the
English Language 501 (1987).

The
judge concluded that “the two Action employees were not engaged in servicing
and maintenance work when in the basement discussing their replacement work on
the fans,” because “[t]here is no showing that [they] were exposed to the
unexpected energization or release of hazardous energy from the fans while
engaged in their viewing and discussing activities.” I would agree. The
critical issue contemplated by OSHA’s definition of “servicing and/or
maintenance” is whether the employee is exposed to an “unexpected energization
or start up of the machines or equipment, or release
of hazardous energy.” In this case, Action’s employees were not in contact with
the fans, nor were they even within eight feet of them. 40
The Secretary has made no showing that Action’s leadman
or apprentice was exposed to the unexpected energization or release of
hazardous energy from the fans while engaged in viewing or discussing the work
to be done on the fans. Again, any other interpretation would lead to absurd
consequences, as it would lead to the safe activity of looking at a piece of
equipment (even from across the room or through a window) as being “inspecting”
subject to the LOTO standard. Therefore, I would conclude that Action’s work on
the fans at the time of the alleged violation does not constitute “servicing
and maintenance.”

For
all the foregoing reasons, I would affirm the judge’s decision and vacate the
citation.

/s/                                                         

Heather
L. MacDougall

Dated: July
6, 2016                                                     Commissioner

Attachment:
Exhibit C-1R

United States of
America

OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION

1924 Building -
Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia
30303-3104

Secretary of Labor,

Complainant,

v.

OSHRC Docket No. 12-1496

Action Electric Company,

Respondent.

Appearances:

Melanie L. Paul,
Esq.

Office of the
Solicitor, U. S. Department of Labor, Atlanta, Georgia

For the
Complainant

J. Larry Stine,
Esq., and Mark A. Waschak , Esq.

Wimberly, Lawson, Steckel, Schneider
& Stine, Atlanta, Georgia

For the Respondent

Before:            Administrative Law Judge Ken S. Welsch            

DECISION AND ORDER

Action Electric Co., Inc. (Action)
provides electrical services to businesses. On December 7, 2011, under a
contract with a steel mill in Cartersville, Georgia, to replace seventeen fans
at the cooling bed during a shutdown, an Action leadman /electrician
and an apprentice went into the cooling bed basement to discuss replacing the
last three fans. While discussing their work, a counterweight which provided
movement to the racks on the cooling bed fell from an upright position to the
down position when the steel mill maintenance technician initiated the mill
lockout procedures. When the counterweight fell, the apprentice was fatally
struck from behind and it narrowly missed the leadman .
As a result of an inspection by the Occupational
Safety and Health Administration (OSHA), Action was issued a serious citation
on May 31, 2012. Action timely contested the citation.

The
serious citation alleges that Action violated 29 C.F.R. § 1910.147(c)(7)( i ) (item 1) by failing to train its employees on the
purpose and function of an energy control program and 29 C.F.R. §
1910.147(f)(3)(ii)(D) (item 2) by failing to affix personal lockout or tagout
(LOTO) devices on the group lockbox before the employees began servicing work
on the fans. The serious citation proposes a $7,000.00 penalty for the alleged
item 2 violation.

The
hearing was held on December 18-19, 2012, in Atlanta, Georgia. The parties
stipulated jurisdiction and coverage (Tr. 4). The Secretary withdrew item 1,
alleged violation of 29 C.F.R. § 1910.147(c)(7)( i )
(Tr. 3). The post-hearing briefs were filed on February 22, 2013.

Action
denies the applicability of § 1910.147, the LOTO standards, because at the time
of the accident the employees were not servicing the fans and the counterweight
was not connected to or associated with the operation of the fans. Also, Action
claims the steel mill technician failed to ensure that the Action employees
were free from hazard before locking out the cooling bed. 41

For
the reasons discussed, § 1910.147(f)(3)(ii)(D) is found not applicable. The
citation item 2 is vacated and no penalty is assessed.

The Accident

Action
is in business to provide electrical services to commercial and industrial
companies. Action employs more than 100 employees. Its office is located in Smyrna, Georgia (Tr. 185, 456).

Since
2004, Action, as an approved contractor, has provided electrical service and
repair work to the Gerdau Ameristeel US steel mill in
Cartersville, Georgia. The steel mill operates 24/7 in melting scrap metal,
casting it, and rolling it into angles, channels, flats, and I-beams for
structural uses. When the metal is heated and rolled, it is hot, approximately
1600 degrees, and must be cooled before it goes through the straightener (Tr.
24, 39).

To
cool the heated metal, the mill moves the metal by conveyor onto the cooling
bed from the east side and rakes with grooves “walk” the metal across the bed
as the bed moves up and down until it reaches the conveyor which carries the
metal to the straightener. The cooling bed is approximately 325 feet long and
100 feet wide. The heated metal is on the cooling bed for approximately one
hour. Along the west side of the cooling bed, there are one hundred ten, 3-foot
by 3-foot, rotary fans which blow air across the cooling bed. The fans are
bolted to a rail underneath the cooling bed, approximately 8 feet above the
basement floor. The fans are powered by electricity and there are four
disconnects to disconnect all the fans ( Exhs . C-1,
C-9; Tr. 25, 82, 191, 229, 241, 250, 252, 285).

The
basement under the cooling bed houses numerous mechanical devices including
drive motors, rotating shafts, counterweights, chains, drive pulleys, gear
boxes, walking beams, and other equipment which lift the cooling bed and move
the rakes. There are four access points to the basement; the main ones at the
north and south ends, and two others at entrances on the east and west sides
that are used infrequently. From the north/south entrances, there is a
designated walkway through the basement demarcated by overhead lights, faded
yellow paint on the floor, and chain ropes on both sides wrapped from column to
column extending almost the entire length of the basement. The designated
walkway is the only safe place to walk in the basement when the cooling bed is
in operation. Signs at the entrances to the basement state “authorized
personnel only.” There are other signs around the cooling bed which state “Do
not enter without lockout/tagout.” No mill employees work in the basement.
While the cooling bed is in operation, the designated walkway is occasionally
used by quality control employees to observe the metal on the cooling bed (Tr.
83, 209-210, 230-232).

The
counterweights, which move the rakes, make one to three, 360
degree revolutions in a clockwise direction during operation and are
located in three rows approximately every 15 feet in a north/south direction
throughout the cooling bed basement. As with other mechanical devices in the
basement, there are no guards around the counterweights other than the chain at
the designated walkway. During operation, the counterweights’ resting position
is at one o’clock. When the cooling bed is de-energized and locked out, the
counterweights which weigh “tons of pounds” each, fall from gravity to the six
o’clock position (Tr. 84-85, 215, 230).

During
shutdown, when servicing and maintenance work is scheduled in the cooling bed
basement, the steel mill requires that the machines and equipment be locked
out. The lock out is performed by the mill’s cooling bed maintenance technician
and takes approximately 20 minutes. It involves locking out the machines and
equipment at various locations around the bed (Tr. 233, 247).

In
October 2011, the steel mill requested Action to service and replace, as
needed, the approximate one hundred ten fans at the cooling bed. An Action leadman and the mill technician responsible for the cooling
bed made an evaluation of the fans and determined that seventeen fans needed to
be replaced. To replace the fans, Action needed access to the basement (Tr.
243).

On
December 9, 2011, during the mill shut down, the Action leadman
and an apprentice met at the technician’s office at 7:15 a.m. to prepare to
replace three fans. Action had already replaced fourteen of the fans on two
earlier occasions. The Action leadman , a journeyman
electrician, had worked at the steel mill since 2005. The technician told the leadman that he would lockout the cooling bed and meet him
later. The leadman understood that they were to meet
at the north end entrance to the basement. After the conversation, the mill
technician moved the three new fans by forklift to the north end of the cooling
bed before initiating the mill’s cooling bed lockout procedures ( Exhs . C-12A, R-3; Tr. 74, 290, 292-293, 388, 413).

In
the meantime, the Action leadman filled out the
mill’s work permit without the technician’s signature and left it at the north
end of the cooling bed with the group lockbox. He then sent the helpers to
retrieve the tools and took the apprentice into the cooling bed basement by the
north entrance. The leadman and apprentice walked
through the basement, not on the designated walkway but over conduit, pipes,
air lines, and under beams, to the location of the three fans. They were
approximately 24 feet off the designated walkway. The cooling bed was shutdown so none of the machines and equipment was running.
The apprentice had not worked on the fans and the leadman
was discussing with him what work they were going to be doing. They did not
physically touch or start any work on replacing the fans. The leadman knew the mill technician had not completed locking
out the cooling bed (Tr. 116, 146-147, 197, 255, 369, 373, 376, 397, 423).

The
technician did not know and could not see the Action employees were in the
basement when he began the lockout procedure. When he initiated the
counterweight lockout, the counterweight behind the leadman
and apprentice fell from its resting position to the down position. As it fell,
it fatally struck the apprentice from behind and missed the leadman
by inches. The accident occurred at approximately 7:53 a.m. (Tr. 245, 294, 375,
383).

A
compliance safety officer and her supervisor initiated an OSHA inspection at
9:30 a.m. She took photographs/video of the cooling bed and basement, observed
the cooling bed in operation on another date, reviewed documents involving the
steel mill lockout procedures, and interviewed employees of the steel mill and
Action. As a result of the inspection, Action was
issued the serious citation. The steel mill was not issued a citation (Tr. 420,
424, 455).

The
steel mill investigation into the accident determined that the cooling bed
equipment was not locked out and the leadman did not
verify that it was locked out although signing the work permit before entering
the basement. The steel mill placed Action on conditional approval status as a
contractor requiring Action to submit written specific safety plans for each
job and hire a third party consultant to oversee its
employees for two years. The leadman was removed from
working at the steel mill but remains employed by Action. He was retrained on
Action’s LOTO procedures ( Exh . C-10; Tr. 142-143,
378, 381, 405).

Discussion

Alleged Violations

In order to establish a violation of a safety
standard as in this case,

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 or reasonable diligence could
have known, of the violative conditions). Atlantic Battery Co., 16 BNA
OSHC 2131, 2138 (No. 90-1747, 1994).

There
is no significant factual dispute. Although the Secretary has the burden of
proof to establish a prima facie case, the only issue argued in Action’s
post-hearing brief is the application of the LOTO standards at § 1910.147
to the work its employees were performing at the time of the accident.

Citation No. 1

Alleged Violation
of § 1910.147(f)(3)(ii)(D) (Item 2)

The
citation alleges that at “Rolling Mill Area: The employer (outside employer)
did not ensure that each employee performing servicing and maintenance
activities were in control of the hazardous energy throughout the entire period
of exposure. Employees did not affix their personal lockout device to
physically secure the isolating device(s) during the servicing or maintenance
work performed as specified in the requirements of the group LOTO procedure nor
did they avoid working in this area until the lockout process was completed by
the host employer, exposing themselves to struck-by hazards.”

Section
1910.147(f)(3)(ii)(D) provides:

Each
authorized employee shall affix a personal lockout or tagout device to the
group lockout device, group lockbox, or comparable mechanism when he or she
begins work, and shall remove those devices when he or she stops working on the
machine or equipment being serviced or maintained.”

The
alleged violation relates to the failure of the Action employees to affix their
locks on the group lockbox before entering the basement and beginning their
servicing and maintenance work. The Action employees were part of a group
lockout and were authorized employees who were there to replace three fans. 42   There is no dispute that the employees did not
affix their locks on the group lockout box prior to entering the basement (Tr.
367-368). The leadman acknowledges that “putting
locks on group lock box is a necessary step to protect from unexpected
energization of equipment” (Tr. 358). Also, replacing the fans constitutes
servicing and maintenance work. See § 1910.147(b) definition of Servicing and/or
maintenance which includes “constructing, installing.”

Action
does not dispute that while the employees were discussing their work on the
fans, the counterweight fell because of stored energy when being locked out. As
stated in the steel mill’s Cooling Bed LOTO Steps , “2. Proceed to the 4 crank local station. Rotate rake counter weights to down
position by using the E-stop for the cooling bed rake which trips the rake
drive and allows counter weights to fall to the zero energy
state (down)” ( Exh . C-12). Such stored energy, as
described by the Secretary, is kinetic energy (motion) which is caused by the
conversion of potential energy to kinetic energy after shutting down the
machine or equipment. 54 FR 36644, 36647 (September 1, 1989).

Also,
there is no issue that the two Action employees were exposed to the hazard of
the counterweight falling from stored energy. The employees were standing
within the swing radius (zone of danger) of the counterweight discussing their
work on the fans. The apprentice was fatally struck by the counterweight and
the leadman was within inches of being struck (Tr.
383, 412, 421).

With regard to employer knowledge, the leadman knew the cooling bed was not locked out when he
entered the basement. He admitted that he had neither verified lockout nor
affixed his lock to the group lockout box. The lockout was not complete because
the technician had not returned to perform verification and sign the work
permit ( Exh . C-11; Tr. 375-376). Also, the dangers of
the cooling bed were visible and obvious. As the mill safety manager testified,
“anybody with common sense watching it run will say all this stuff has to be
turned off and shut down and locked out before you go down there” (Tr. 200).
The leadman had worked at the mill since 2005. There
was signage around the bed area warning employees not to enter the basement
without locking it out and restricting access to only authorized personnel.

The
leadman’s knowledge is imputed to Action because as a
supervisor, he was in charge of and supervised the
apprentice and other Action employees. He assigned and directed the work. He
conducted the job safety analyses, led safety meetings, had authority to issue
verbal warnings, was responsible for crew safety, and could stop work (Tr.
343-345).

In
terms of failing to place their locks on the group lockbox, there is no dispute
regarding the lack of compliance with the terms of the cited standard,
employees’ exposure to the falling counterweight, and Action’s knowledge of the
failure to lockout the fans and counterweight.

The issue in
dispute is the application of the LOTO standards to the counterweights and the
work being performed by the Action employees at the time of the accident.
Action argues that the standard does not apply because (1) OSHA’s LOTO
requirements apply to the “servicing and maintenance” of the fans and did not
apply to the counterweights, and (2) the employees were not performing
“servicing and maintenance” work on the fans when the accident occurred. The
court agrees with Action that the cited LOTO standard did not apply under the
circumstances in this case.

Application
of LOTO

The
scope of the LOTO standards provides that “[t]his standard covers the servicing
and maintenance of machines and equipment in which the unexpected energization
or startup of the machines or equipment, or release of stored energy could
cause injury to employees.” 29 C.F.R. § 1910.147(a)(1)( i ).
There is no dispute that servicing and maintenance work on the fans would
require compliance with LOTO. The issue is whether the LOTO requirements apply
to the counterweights if the servicing and maintenance work is only on the
fans.

The
application of the LOTO standards as described in § 1910.147(a)(2) provides, in
part:

( i ) This
standard applies to the control of energy during servicing and/or maintenance
of machines and equipment.          

It
is the Secretary’s position that under the application of the LOTO standards,
all the machines and equipment in the cooling bed including the counterweights
and fans constituted an operating system that posed a hazard during servicing
and maintenance work. The Secretary argues that the fans and counterweights
functioned together to move and cool the heated metal on the cooling bed before
conveyed to the straightener. In order to safely
replace the fans, the other machines and equipment including the
counterweights, needed to be locked out to prevent the unexpected energization,
startup, or release of stored energy from the machines and equipment around the
fans and within the zone of danger of the work. The mill’s lockout procedures
required locking out all the machines and equipment under the cooling bed
before servicing and maintenance work was to be performed in the basement ( Exh . C-12A; Tr. 247). As described by the technician responsible
for implementing the lockout procedure, “[T]he equipment overlaps in so many different ways with the fans. You have chains that
overlap with the fans, brakes. Basically the equipment
acts as one, and if you were to go in and try to work on the fan, you would be
directly in harm’s way by several different pinch points” (Tr. 276).

1. OSHA’s LOTO
   Applied Only To The Fans

The cooling bed consists of various
machines and equipment such as rakes, chains, counterweights, drive shafts,
motors, pulleys and fans which function separately to move and cool the heated
metal across the bed. The cooling bed is not itself a machine or piece of
equipment. It is a process that contains separate and distinct machines and
equipment. The cooling bed is a system of rakes which move the heated metal by
counterweights, drive shafts, motors, and chains (Tr. 288). The rakes are
jagged so that the metal is caught inside the grooves, picked up and moved over
the bed (Tr. 81). The rakes are powered by a system of gear boxes, chains,
drive motors, walking beams, and counterweights (Tr. 83).

The
counterweights rotate on drive shafts and are powered by drive motors which
move the rakes up and down and move the heated metal across the cooling bed
(Tr. 230). The counterweights are in three rows approximately every 15 feet in
a north/south direction. At least one row of counterweights is near the row of
fans.

The
function and purpose of the fans is independent of the counterweights. The fans
are not fixed nor permanently attached to the counterweights and rakes. The
fans provide air movement to assist in cooling the heated metal as it moves
across the bed. The fans are bolted to a beam or rail running the length of the
bed below the rakes, approximately 8 feet above the basement floor (Tr. 120,
252). There are four disconnects that control the electric power to all
one hundred ten fans (Tr. 276, 285).

The mill’s written cooling bed
lockout procedure shows that the various machines and equipment need to be
separately locked out. The written procedure in place at the time of the
accident did not include locking out the fans, which was the only equipment
Action was authorized to work on and the only equipment Action could lockout
when replacing/repairing the fans ( Exh . C-12A;
Tr. 392). 43   The
omission of the fans from the written lockout procedures underscores the fact
the fans operated independently of the cooling bed.

The
record shows that the counterweights and fans are not connected or attached.
The rakes, counterweights, drive shaft, drive motors, and chains were not the
subject of Action’s servicing and maintenance work nor were the fans a
component of or secured to the rakes and counterweights. The fans and
counterweights serve different purposes and function differently, although part
of the cooling bed process. The fans and counterweights are not interconnected
components and have separate lockouts.

According
to the steel mill technician, there is no interconnection or sensor to make the
fans operate when the counterweights are operating. There are no electrical
connections between the fans and drive chains that tells the fans to turn on
when the chain drives are on (Tr. 287). The fans are not part of a single
integrated system such as the counterweights, drive shafts, drive motors, and
chains which move the cooling bed up and down and the heated metal across the
bed. The fans operated independently of the counterweights.

Despite the Secretary’s attempt to
characterize the cooling bed as one system, it is not “material” based on the
language in OSHA’s directive CPL 02-00-147 (November 11, 2008) ( Exh . R-5). As shown by the directive, the LOTO
standards do not apply to the counterweights because it was not the subject of
Action’s servicing of the fans and it functioned independently from and was not
a sub-system of the fans being serviced. Chapter 1, IX. BB (p. 1-10) of the CPL
which cites The Timken Company , 20 BNA OSHC 1070 (No. 97-0970, 2003) as
a reference, 44   provides that:

the LOTO standard does not apply to
equipment or machinery that is not the subject of the servicing and maintenance
activity and that functions independently from, and is not a sub-system of, the
machine/equipment being serviced or maintained. If authorized employees are
exposed hazardous energy associated with such an adjacent machine/piece of
equipment while performing servicing/maintenance work on an independent,
unrelated machine/piece of equipment, an employer’s obligations are established
by Section 5(a)(1) of the OSH Act or other relevant standards, such as the
Machine guarding (Subpart O) requirements” ( Exh .
R-5).

By
its own language, OSHA’s CPL limits the application of LOTO to a “subsystem of,
the machine/equipment being serviced or maintained.” The counterweights were
not a sub-system of the fans. The fans were not an operating component of the
counterweights.

In
the Timken case, an employee was repairing a drive bar on the teeming
car in a slot adjacent to the traverser pit. Timken Co. , 1998 CCH OSHD
31,688, p. 43,956-43,957 (No. 97-0970, 1998, ALJ). The traverser and the
teeming car were designed to transport the steel from points in the plant. The
employee was injured while servicing the teeming car when the traverser car, an
independent motorized unit that assisted in moving the teeming car, moved past
the slot in which the employee was working and amputated his feet. The teeming
car was locked out but the traverser car was not. The
ALJ found that LOTO did not apply because the traverser was not a component of
the teeming car. They were not interconnected or appurtenant components of a
machine or equipment. They functioned independently; the traverser only moved
the teaming cars, which held the ingot molds, from station to station for
various processes. Once the traverser had moved the teeming car into a slot, it
moved on to another assignment. In the case at issue, the fans also functioned
independently of the counterweights.

Also,
it is noted that the Secretary in the LOTO standards uses the prepositions “on”
or “of” when addressing the application of servicing and maintenance. See i.e.
§ 1910.147(a) and § 1910.147(c). The standard at issue, §
1910.147(f)(3)(ii)(D), prohibits employees from “working on the machine or
equipment being serviced or maintained” before putting their locks on the gang
lockbox. The use of such prepositions connote
“belonging to or connected with” and “in contact with” the machine and
equipment. The Secretary’s definition of “servicing and maintenance” and her
language throughout the LOTO standards make it clear that the equipment must be connected with , or in contact with, the machine and
equipment being serviced and maintained.

The
preamble to the LOTO standard identifies seven typical accidents/hazards
covered by LOTO and also shows the Secretary’s intent
in applying LOTO. 54 FR 36644, 36,646 (September 1, 1989). The examples used by
the Secretary are distinguishable from the circumstances in this case. For
example, the conveyor in #2 was an operating component of the hogger upon which the work was being performed i.e.
the adjacent conveyor fed the hogger during its
operation. The hogger had been shut down, but the conveyor
feeding the hogger had not been when the accident
occurred. Similarly, the other examples show the servicing and maintenance work
being performed on the machine and equipment when it was unexpectedly energized
or started up. In the Secretary’s examples, the machines and equipment were
more permanently interconnected in a single, integrated system distinctly
different from the independently functioning fans and counterweights in this
case.

The
injury here resulted from an unguarded, adjacent counterweight and does not
support a LOTO citation. The fans and counterweights operated separately with
separate lockouts procedures. Action’s servicing and maintenance work was only
on the fans, not the counterweights. The release of stored energy hazard from the
counterweight may be covered, but was not alleged, by § 5(a)(1) of the
Occupational Safety and Health Act (Act) or the machine guarding standards at
29 C.F.R. § 1910.211 et seq .

1.The
Employees Were Not Servicing the Fans

It
is undisputed that the Action employees were in the basement visually observing
the fans to be replaced and discussing the work to be performed (Tr. 374, 397).
The employees were no closer to the fans than 8 feet. The leadman
testified that visual observation was an important part of replacing the fans
(Tr. 416). The two employees were not working on or touching the fans. They
were not exposed to the hazard of an unexpected energization, startup, or
release of stored energy from the fans.

The
Secretary argues that the Action employees were working. Their discussion about
the fans to be replaced was “servicing and maintenance” work. OSHA defines
“servicing and/or maintenance” in § 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.

Viewing
a machine and equipment such as a fan may be considered an inspecting or
setting up activity contemplated by the definition of “servicing and/or
maintenance.” Such activities encompass preparation work. “Setting up” is
defined as “any work performed to prepare a machine or equipment to perform its
normal production operation.” § 1910.147(b). “Inspecting” is not defined by
OSHA and, therefore, reference to a common definition is appropriate. Action
does not dispute that its employees were authorized employees and replacing the
fans is servicing and maintenance for the purpose of
LOTO.

However,
the critical part of the activity contemplated by OSHA’s definition of
“servicing and/or maintenance” is whether the employee is exposed to an
“unexpected energization, start up or equipment release of hazardous energy”
from the machine and equipment. In this case, the Action employees were not in
contact with the fans or within 8 feet of the fans. There is no showing that
the leadman and apprentice were exposed to the
unexpected energization or release of hazardous energy from the fans while
engaged in their viewing and discussing activities.

Therefore,
the two Action employees were not engaged in servicing and maintenance work
when in the basement discussing their replacement work on the fans.

3.Action’s
Claim that the Steel Mill Violated LOTO

According
to steel mill procedure, only the steel mill technician had the authority to
lock out the machines and equipment for the cooling bed. He was the LOTO
authorized employee. The OSHA standard on group lockout procedure requires the
authorized employee to “ascertain the exposure status of individual group
members with regard to the lockout or tagout of the machine
or equipment.” § 1910.147(f)(3)(ii)(B). The technician testified that when
he initiated the mill lockout procedure, he did not know where the Action
employees were located (Tr. 294-295).

Although
the mill technician should not have locked out the counterweight without
verifying the location of the employees, it was clearly his understanding that
no employees would be in the basement in a zone of danger. Regardless, Action
is not relieved of its responsibility to ensure its employees were safe from hazard.
The leadman should not have gone into the basement
without ensuring the cooling bed was locked out in accordance with the mills’
procedures.

The
Secretary failed to prove the applicability of the cited LOTO standard to the
facts in this case. Even if the fans had been properly locked out before the
accident occurred, it would not have prevented the counterweight’s release of
stored energy that fatally injured the apprentice. Although the court agrees
that the Action employees were exposed to hazardous energy associated with the
counterweight, the Secretary did not allege a violation under § 5(a)(1) of the
Act or the machine guarding standards at 29 C.F.R. § 1910.211 et seq .
Action’s violation of §1910.147(f)(3)(ii)(D) is not established.

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 hereby ORDERED:

1.Citation
No. 1, Item 1, alleged serious violation of § 1910.147(c)(7)( i ), is withdrawn by the Secretary; and

2.Citation
No. 1, Item 2, alleged serious violation of § 1910.147(f)(3)(ii)(D), is vacated
and no penalty is assessed.

/s/          Ken S. Welsch                                    

KEN
S. WELSCH

Date:    May 10, 2013                                       Judge

Atlanta, Georgia

"

1
The cited provision requires “[e] ach
authorized employee” to “affix a personal lockout . . . device to the group
lockout device . . . when he or she begins work, and . . . remove those devices
when he or she stops working on the machine or equipment being serviced or
maintained.” 29 C.F.R. § 1910.147(f)(3)(ii)(D). The citation included a
second item that was withdrawn by the Secretary.

2
The judge found that there was no dispute regarding
the noncompliance, exposure, and knowledge elements of the Secretary’s prima
facie case. See Safeway Store No. 914 , 16 BNA OSHC 1504, 1508 (No.
91-373, 1993) (“A violation . . . is established whenever the following four
elements exist: (1) the standard applies to the cited conditions, (2) the
employer’s conduct does not conform to the requirements of the standard, (3)
employees are exposed to the cited conditions, and (4) the employer knew or
could have known of those conditions.”). Action does not challenge this finding
on review.

3 The mill also
contains equipment that is not part of the cooling bed, including the rolling
mill, a reheating furnace, rougher, straightener, and stacker- piler .

4
Under the LOTO standard, when performing group
servicing or maintenance, group lockout devices shall be used as specified in
1910.147(c)(4). 29 C.F.R. § 1910.147(f)(3)(ii).

5
My colleague suggests that by identifying the cooling
bed as the machine being serviced, I have “pre-ordained” the result in this
case. On the contrary, it is the overwhelming factual evidence contained in the
record—and detailed below—that ordains the conclusion that the fans are,
indeed, part of the cooling bed.

6
Gerdau, however, left to Action the task of locking
out the fans themselves simply because Action needed to lock and unlock them as
work progressed, so it could check if repairs were successful.

7
Although this case is focused on the hazard posed by
the counterweights, the other components of the cooling bed also posed hazards
that required LOTO procedures. Thus, as the attached Exhibit C-1L illustrates,
the fans were within a few inches of the rakes, above the counterweights, and
proximate to the chains that turned the drive shafts on which the
counterweights were mounted. Moreover, the fact that these other components had
been shut down, and, unlike the counterweights, did not contain any residual or
stored energy, is irrelevant to the LOTO analysis. If a machine poses LOTO
hazards, it must be shut down, the machine isolated from all energy sources,
lockout or tagout devices applied, residual energy released, and lockout
verified. 29 C.F.R. § 1910.147(d).

8
My colleague attempts to distinguish the waste hogger example on two grounds. First, she asserts that
“[t]he final rule [preamble] does not identify” the waste hogger
“as an example of a complex, integrated machine made up of several parts.” But
the example itself explicitly identifies two discrete parts of one machine to
which the final rule specifically makes the LOTO standard applicable. 54 Fed.
Reg. at 36,646. Second, she points out that the hogger
in the example was operating, whereas the cooling bed here was not. But this is
immaterial; the critical point illustrated by the waste hogger
example is that one component—the conveyor—needed to be locked out in order to protect the employee who was working on another
component—the hogger . See id. (identifying the
waste hogger example as a “[f] ailure
to document and implement an effective control procedure”).

9
The judge completely misapprehends the meaning of
“machine” in this context, and his characterization of the cooling bed as a
“process that contains separate and distinct machines and equipment” that
“function separately to move and cool the heated metal across the bed” is
belied by the evidence.

10
In attempting to show that the fans and counterweights
are different machines, my colleague notes that Gerdau’s “written [LOTO]
procedure [for the cooling bed does not] mention the fans.” Nonetheless,
Gerdau’s consistent practice of locking out the entire cooling bed in order to service the fans shows that the company
considered these components to be part of one machine.

11
It is irrelevant whether, as my colleague puts it,
Hughes “contemplated the hazard presented by the lowering of the counterweights
during the lockout process.” His employer clearly “contemplated” that hazard
because Gerdau included the lowering of the counterweights in its LOTO
procedure—a procedure that it developed in part to protect employees
specifically from the movement of the counterweights. Gerdau also contemplated
that this was a hazard to anyone who deviated from the designated walkway
beneath the cooling bed, as evidenced by its warning sign at the basement
entrance: “Authorized Personnel Only.”

12
My colleague—in asserting that Action’s “work [was] on
the fans only”—notes that “another contractor” was “servicing the cooling bed.”
Aside from the fact that the record does not establish what the employee from
this other contractor was doing, his presence would not preclude Action from
being required to comply with the LOTO standard. On the contrary, it would be
an additional basis for finding applicability. Even under my colleague’s
conception of the “cooling bed” as a separate machine from the fans, the two
Action employees would have been “affected employee[s] . . . whose job[s]
require[d] [them] to work in an area in which such servicing or maintenance is
being performed,” thus requiring Action to comply with the LOTO standard to
protect its employees from the LOTO hazards posed by the other contractor’s
work. 29 C.F.R. § 1910.147(b).

13
My colleague makes much of the fact that the fans and
counterweights “are not connected or attached to each other” and have separate
electrical connections and lockouts. In a large, complex machine, a lack of
such direct connections between components is hardly surprising and does
not provide a meaningful basis for determining whether something is part of the
same “machine” for LOTO purposes. In fact, the close physical proximity and
need for simultaneous operation of the fans, rakes, drive motors, chains, and
counterweights plainly reflects their complete
functional integration. Indeed, when Hughes described Action’s work on the
fans, he stated that “you’ve got rakes above you, you’ve got the job shafts
behind you, and the counterweights are directly right there by you. You
physically have to crawl up in between the rakes in order to
remove the fans.” Additionally, given the size and complexity of the cooling
bed, it is similarly unsurprising that the fans, counterweights, and other
components would have separate electrical connections and lockouts—one cannot
reasonably expect such a machine to have one, all-encompassing lockout switch. See,
e.g., Gen. Motors Corp ., 22 BNA OSHC at 1027 (applying LOTO to “machine”
that contained numerous automatics, weld guns, limit switches and disconnects,
and required at least four safety locks to lock it out); Dayton Tire , 23
BNA OSHC at 1258-59 (applying LOTO to “extraordinarily complex” machines with
“different combinations of energy sources”).

14
I disagree with my colleague’s suggestion that the
machine guarding standard, rather than LOTO, applies here. Like the machine
components in the LOTO preamble’s waste hogger
example—which OSHA presented as an illustration of the need for LOTO, not
guarding—the fans and counterweights in this case are physically and
functionally intertwined. Thus, the hazard posed by the movement of the
counterweights or any of the other components of the cooling bed is precisely
the hazard the LOTO standard was designed to address. Moreover, the portion of
the LOTO standard preamble that my colleague quotes at length has nothing to do
with situations such as we have here, when servicing
and maintenance is performed while the machine is shut down . The quoted
discussion quite explicitly relates to “servicing and/or maintenance which
takes place during ‘normal production operations. ’ ” 54 Fed. Reg. at 36,646. The
quoted section makes clear that in those circumstances the guarding and LOTO
standards dovetail to assure that employees are protected by one or the other
standard. It relates not at all to the circumstances of this case.

15
My colleague devotes considerable attention to a
non-precedential decision in which the two participating commissioners—in
separate opinions—agreed that the cited “traverser” and “teeming cars” were not
subject to the LOTO standard because they operated independently,
yet vacated the direction for review because they could not agree on the
disposition of an alternative charge. See Timken Co. , 20 BNA OSHC 1070
(97-970, 2003) (“ Timken I ”). But there is a later, also non-precedential
decision— Timken II —in which one of the two sitting commissioners
distinguished the two Timken cases, noting that in Timken I the
“traverser” was completely independent of railcar repairs performed on a
separate track and therefore not covered by LOTO, while in Timken II
“all of the machinery and equipment worked together to produce tubes from steel
billets [and] [ i ]t is undisputed that it all should
have been locked out . . . .” Timken Co. , 20 BNA OSHC 2034, 2045 n.4
(No. 97-1457, 2004). And the OSHA Directive on which my colleague also relies
merely distinguishes between interconnected and adjacent equipment—the former
requiring application of LOTO and the latter not. See CPL 02-00-147. This only
begs, rather than answers, the question.

16
My colleague’s contention that the activity here was
not servicing and maintenance because “the Action leadman
was pointing out the three remaining fans that needed to be replaced . . . and
said ‘that one, that one, and that one ’ ” is
inaccurate. The transcript reveals that the quoted statement was made by
Action’s counsel during his opening remarks at the hearing, which is not
evidence. Moreover, according to the leadman , just
prior to the accident he was discussing the scope of work he and the apprentice
would be performing, which fans would be replaced, and how the replacement
would be done, and agreed that they “couldn’t actually perform the replacement
of the fans without having done that activity first.”

17
Action did not dispute characterization or penalty
before the judge, nor does the company do so on review. See KS Energy Servs ., Inc. , 22 BNA OSHC 1261, 1268 n.11 (No. 06-1416,
2008) (affirming alleged characterization and assessing proposed penalty where
characterization and penalty were not in dispute).

18
After the accident, Gerdau replaced the rope chains
with a chain link fence. It appears that Gerdau generally recognized the hazard
presented beneath the cooling bed by its written rule that authorized personnel
were only allowed to enter the basement during normal operations if they stayed
on the designated walkway. Action’s leadman testified
that Action employees were never told that they were not “authorized personnel”
who could not go under the cooling bed. Further, he testified that Gerdau’s
maintenance technician had previously led him to a portion of the basement
without following the designated walkway when the machines in the cooling bed
were not locked out. In addition, it is not clear, based on the hearing
testimony, whether Gerdau’s maintenance technician contemplated the hazard
presented by the lowering of the counterweights during the lockout process.
According to Action’s leadman , Gerdau never informed
him about the hazard or the step in the lockout process that releases the
counterweights.

19
Gerdau written lockout procedure for the cooling bed
provides as follows:

1. Start—Lockout cooling bed hydraulic unit[.]

2. Proceed to the 4 crank local
   station. Rotate rake counter weights to down position by using the E-stop for
   the cooling bed rake which trips the rake drive and allows counter weights to
   fall to the zero energy state (down).

3. Proceed to #1 chain disconnect, under the cooling bed,
   lockout chain 1 motor disconnect.

4. Proceed to #2 chain disconnect, under the cooling bed,
   lockout chain 2 motor disconnect.

5. Proceed to #2 chain lift disconnect, under the cooling
   bed, lockout the chain 2 lift motor disconnect.

6. Proceed to East side of cooling bed and lockout run
   out roll line disconnects on East wall.

7. Proceed to the North mezz
   and rack out the cooling bed rake drive and lock it in the open position.

8. Proceed to the cooling bed wiper (deflector) drive and
   lockout the drive disconnect .

9. Proceed to the cooling bed run in roll drives (two
   drives) and lock out the drives disconnects.

10. Tryout cooling bed equipment by call mill operations
    members to try each piece of equipment.

20
Action had already replaced 14 of the 17 fans deemed
as needing replacement.

21
Regarding his notice to the Action employees, the
maintenance technician stated:

Q:And , at no time did
you ever tell anybody in Action Electric, “Hey, I'm doing this lockout/tagout.
I'm releasing stored energy down there”?

A:Correct .

22
The work permit states that “[t]he following
sections . . . shall be filled out in full by the Contractor prior to any work
being performed.” According to Action’s leadman , “ as long as we weren’t physically working on the equipment or
whatever, you didn’t have to have a work permit.” Nevertheless, the portion of
the work permit that was completed indicated that the work to be performed was
“replace fans.” In addition, the permit indicated that lockout was to be
performed. However, there is no indication as to what machine or equipment
required lockout.

23
The group lockbox is a portable box generally kept in
the area north of the cooling bed.

24
As previously noted, according to Action’s leadman , the Gerdau maintenance technician had, on other
occasions in order to survey and identify the fans,
led the Action leadman to a portion of the basement
without following the designated walkway and without locking out the machines
in the cooling bed.

25
This provision states that “[e] ach
authorized employee shall affix a personal lockout or tagout device to
the group lockout device, group lockbox, or comparable mechanism when he or she
begins work, and shall remove those devices when he or she stops working on the
machine or equipment being serviced or maintained.” 29 C.F.R. §
1910.147(f)(3)(ii)(D) (emphasis added). The LOTO standard defines an
“authorized employee” as “[a] person who locks out or tags out machines or
equipment in order to perform servicing or maintenance
on that machine or equipment.” 29 C.F.R. § 1910.147(b).

26
The second issue before the Commission is whether a
covered machine was being serviced. See 29 C.F.R. § 1910.147(a)(2)
(requiring “servicing and/or maintenance” of “machine” in
order for LOTO to apply).

27
My colleague states that this case is not novel.
However, apart from the separate opinions in Timken Co. , 20 BNA OSHC
1070 (No. 97-970, 2003), the Commission has not addressed the issue of what
“machine” was being serviced. Additionally, as the discussion that follows
demonstrates, the Timken separate opinions do not even support my
colleague’s conclusion that the result she would reach is based on
“well-established legal principles.” Instead, my colleague makes liberal use of
foreshadowing phrases such as “useful purpose,” “functionally integrated,”
“single goal,” and “coordinated fashion” when describing the relationship
between the fans and the cooling bed to suggest that separate machines or
equipment became one and thus fit within the scope provision of the LOTO
standard. Such catch-phrases have not been, and are not, the proper test. It
remains: what was the machine being serviced?

28
Timken is not precedent because while the
participating Commission members did “ agree[ ] that the
LOTO standard [did] not apply,” they were “divided on the . . . merits
regarding the section 5(a)(1) alternative charge. Timken Co. , 20 BNA
OSHC at 1072. I am not certain why my colleague points to another case
involving the same employer, because it is clear that this
later Timken case did not involve the issue of what constitutes a
“machine” under the LOTO standard. The issue in Timken Co. , 20 BNA OSHRC
2034 (No. 97-1457, 2004), was whether the employer had met the LOTO standard’s
training requirements. Again, the two Commission members could not agree on the
disposition of the case, and the direction for review was vacated. My colleague
highlights a footnote in this later, non-precedential decision in which
former-Commissioner Rogers states, regarding the machines and equipment at
issue, “It is undisputed that it all should have been locked out . . . . ” Id. at 2045 n.4. However, it does not appear
that former-Chairman Railton agreed in his separate
opinion that this was undisputed. In any event, I do not find the later Timken
case to be instructive here. If anything, “ Timken II ” reiterates that
the two participating Commission members agreed that the LOTO standard did not
cover the separate machines in the earlier case. See id. (then-Commissioner
Rogers’s footnote stating, while describing the earlier Timken case,
that “both sitting Commissioners affirmed [the judge’s] finding that movement
of [the traverser] . . . was completely independent of employee repairs
performed on railcar . . . and thus [LOTO] standard did not apply . . . . ”).

29
I note that the CPL is not binding on the Secretary.
However, the Commission has relied on CPLs to support an interpretation of a
standard in the past. See, e.g., Drexel Chem. Co. , 17 BNA OSHC 1908,
1910 n.3 (No. 94-1460, 1997).

30
My colleague attaches an exhibit—a photo of the
cooling bed area—to her separate opinion. I have attached another exhibit,
Exhibit C-1R, a photo of the basement, which shows
the support structure for the cooling bed. Concrete pillars support the steel
cross-beams, on top of which the rake frame sits. Depicted in the far left corner of the photograph are the fans, which are
simply attached to a rail by four bolts.

31
Gerdau’s cooling bed maintenance technician testified
that he believed, “if [he was] not mistaken” there might be heat sensors that
read the temperature and turn the fans off and on. It is not clear whether the
judge credited this equivocal statement. In any event, if credited, I would not
find that such a fact means the fans are connected to the cooling bed,
rendering this a single machine.

32
In fact, on the day of the accident, while four Action
employees were scheduled to work on the fans, an employee of another contractor
was present to work on the cooling bed. As my colleague points out, the record
is not developed as to whether this contractor had commenced work—or “servicing
and/or maintenance”—necessitating lockout of the cooling bed at the time of the
accident. We only know that this contractor was there to perform maintenance on
the “grease system” for the cooling bed. Therefore, given the scarcity of the
record on this point, the presence of this other contractor’s employee cannot
be, as my colleague contends, “an additional basis for finding applicability.”

33
As noted, the counterweights are included in Gerdau’s
written lockout procedure for the cooling bed; the fans are not. Thus, even if
the cooling bed were locked out pursuant to the written procedure, each Action
“authorized employee” performing service or maintenance on the fans—the job the
company was hired to do—still would have needed to lock out the fans in order to repair/replace them.

34
The Commission defers to the Secretary’s reasonable
interpretation of an ambiguous regulation if it “sensibly conforms to the
purpose and wording of the regulation” taking into account “whether the
Secretary has consistently applied the interpretation embodied in the
citation,” “the adequacy of notice to regulated parties,” and “the quality of
the Secretary’s elaboration of pertinent policy considerations.” Martin v.
OSHRC , 499 U.S. 144, 150-51, 157-58 (1991). While the definition of
“machine and equipment” under the LOTO standard is ambiguous, as discussed, I
would conclude that the Secretary’s novel “single integrated system” theory is
not reasonable and is not entitled to deference.

35
See Martin v. Am. Cyanamid Co. , 5 F.3d 140, 145
(6th Cir. 1993) (holding preamble to regulation may be consulted in determining
administrative construction and meaning of regulation); Phelps Dodge Corp .,
11 BNA OSHC 1441, 1444 (No. 80-3203, 1983) (stating standard’s “preamble is the
best and most authoritative statement of the Secretary’s . . . intent”), aff'd ,
725 F.2d 1237 (9th Cir. 1984).

36
The Secretary (and my colleague) points to the waste hogger example in the preamble to the LOTO standard as an
example of a complex, integrated machine made up of several parts. The final
rule does not identify it as such, stating only that it is an example of a “[f] ailure to document and implement an effective control
procedure.” 54 Fed. Reg. at 36,646. The example is not preceded or followed by
any discussion supporting the conclusion that this is an example of a complex,
integrated machine made up of several parts. In the waste hogger
example, the conveyor was an operating component of the hogger
upon which the work was being performed—in other words, the conveyor fed the hogger during its operation. The hogger
had been shut down, but the conveyor feeding the hogger
had not been when the accident occurred. Thus, as noted by the judge, this
example is distinguishable from the facts in this case.

37
As the introduction to the standard's Appendix—which
contains a “typical minimum lockout procedure”—states: “For more complex
systems, more comprehensive procedures may need to be developed, documented and
utilized.” 29 C.F.R. §1910.147 app. A. My colleague, in asserting that the
fans’ “close physical proximity” to the other pieces of equipment translates
into “complete functional integration” with them (and thereby rationalizing the
leap to one “machine” under the LOTO standard), makes much of the Gerdau
maintenance technician’s testimony regarding the need to be “between the rakes in order to remove the fans.” However, immediately following
the maintenance technician’s referenced testimony, was this exchange:

Q:So , when you’re referring
to the words, “cooling bed equipment,” you’re referring to a multiple number of
pieces of equipment and machines?

A:         Yes.

38
My colleague claims that the judge failed to recognize
the hazard faced by the Action leadman and
apprentice, but this is not true. There is no doubt that the two Action
employees were exposed to the hazard of the counterweights falling from the
release of stored energy. However, this does not make the cited standard
applicable. To the extent that the Secretary’s choice of language does not
effectuate what the Secretary may have intended, the remedy lies in further
rulemaking by the Secretary, not asking for deference to an unreasonable
interpretation that is not supported by the standard and its preamble as
promulgated. See Diamond Roofing v. OSHRC , 528 F.2d 645, 650 (5th Cir.
1976) (regulations cannot be construed to mean what an agency intended but did
not adequately express).

39
My colleague takes issue with this point. Her broad
claim that the cooling bed cannot achieve its function without the operation of
the fans merely amplifies my concerns. As with many production lines, the
manufacturing process will include equipment and systems that control factors
such as temperature, humidity, air, and moisture. The very nature of an
assembly or production line requires separate machines or pieces of equipment
to work together to achieve a single goal—whether that is turning scrap metal
into structurally useful forms, curing a baked coating to “paint” a car,
extruding a plastic film on a food packaging line, or assembling a car door or
an entire car. That equipment controlling such factors is critical to the
output or quality of a finished product does not make everything that
contributes to the process one collective “machine.”

40
The preposterousness of the contention that such
activities are “servicing and/or maintenance” is more apparent when considering
that, while in the basement, the Action leadman
merely pointed out the three remaining fans —“ that one,
that one, and that one”—they were going to replace. According to his
testimony, “we [were] looking at the fans,” because the Action apprentice had
not worked on this project previously, and so “I had to show [him] because he .
. . wouldn’t know which ones to replace.”

41 Issues that are not briefed are deemed
waived. See Georgia-Pacific
Corp ., 15 BNA OSHC 1127 (No. 89-2713, 1991). At the hearing, Action
withdrew its employee misconduct defense and represented that it is not
claiming “the employees did anything wrong” (Tr. 7).

42 “An affected employee becomes an authorized
employee when the employees’ duties include performing servicing or maintenance
covered under this section.” 29 C.F.R. § 1910.147(b) definition of authorized
employee .

43
The steel mill
written procedure showing the lockout of the fans was rejected at the hearing
because it could not be authenticated. The date of the document was after the
accident and the technician could not remember seeing or using the document ( Exh . C-21B; Tr. 277, 327).

44 The Review Commissioners disagreed on the
appropriate disposition of the case and vacated the direction for review,
allowing the ALJ decision to become a final order with no precedential value as
an un-reviewed ALJ decision. Timken
Co ., 20 BNA OSHC 1070, 1072 (No. 97-0970, 2003).