Louisiana-Pacific Company

Plain-English summary

Louisiana-Pacific Company operated a particle-board plant where a jammed wide-belt sander ejected a board that struck an employee and caused severe internal injuries. The judge found that kickback was a recognized woodworking hazard and that manufacturer-recommended anti-kickback fingers would materially reduce it, affirming a general duty clause item for $5,000. He also held that the lockout standard applied when workers cleared sander jams because accidental restart was possible. The company's generic training did not explain machine-specific lockout or require lockout during unjamming, but its good-faith interpretation prevented a willful classification; two training items were affirmed as serious for $3,500 combined. The judge affirmed repeat items for missing machine-specific procedures, missing annual inspections, and failure to lock out during unjamming, assessing $50,000 for each based on prior similar citations at another company plant. Two additional inspection-detail items were vacated because the underlying annual inspection program did not exist. Total penalties were $158,500.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1910.147(c)(7)(i), 1910.147(c)(7)(iii)(A), 1910.147(c)(4)(i), 1910.147(c)(6)(i), 1910.147(c)(6)(i)(C), 1910.147(c)(6)(ii), and 1910.147(d)(4)(i).
• Outcome: Mixed. The general-duty and two serious training items were affirmed, three repeat lockout items were affirmed at $50,000 each, and two inspection-detail items were vacated; total penalties were $158,500.
• Key point: Clearing a machine jam is covered servicing when accidental restart can injure employees, so generic lockout training is insufficient without procedures and instruction for that equipment and task.

Full text (OSHRC public release)

                                 United States of America
      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                          1120 20th Street, N.W., Ninth Floor
                              Washington, DC 20036-3419



                                                                        Phone: (202) 6065400
                                                                         Fax: (202) 6064050

SECRETARY OF LABOR
Complainant
V. OSHRC DOCKET
NO. 93-0872
LOUISIANA PACIFIC CORP.
Respondent.

                  NOTICE OF DOCKETING
            OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on June 7, 1995. The decision of the Judge
will become a final order of the Commission on July 7, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
June 27. 1995 in order to permit sufficient time for its review. See
Commksion Rule 91, 29 C.F.R. 2200.91.
AU further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOB.
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210 I
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMBBSSION

Date: June 7, 1995
DOCKET NO. 93-0872
NOTICE IS GIVEN TO THE FOUOWING:

Tedrick Housh, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
1210 City Center &p&e
1100 Main Street
Kansas City, MO 64105

Greg R. Tichy, Esquire
Interstate Professional Center
15407 E. Mission, Suite 425
Verdale, WA 99037

Benjamin R. Lo e
Administrative t w Jud e
Occupational Safety an f Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO f 0204 3582

00116125014:08
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. Spew Boulevard
Room 250
Denver, Colorado 802044582

                                                    I

SECRETARY OF LABOR, I
I
Complainant, I
I
v. I OS& DOCKET
I NO. 93-0872
LOUISIANA-PACIFIC COMPANY, I
I
Respondent. I

     APPEARANCES:

            For the Complainant:

                   Elizabeth C Lawrence, Esq., Office of the Solicitor,
                    U.S. Department of Labor, Kansas City, MO

            For the Respondent:

 ,                 Gregory Tichy, Esq., Veradale, WA


                                  DECISION AND ORDER

Loye, Judge:
This proceeding arises under the Occupationzil Safety and Health Act of 1970 (29
U.S.C., Section 651, et. seq, hereafter referred to as the Act).
Respondent, Louisiana-Pacific Company (L-P), at all times relevant to this action,
maintained a worksite at 3300 Raser Road, Missoula, Montana, where it was primarily
engaged in particle board manufacturing. Respondent admits it is an employer engaged in
a business affecting commerce and is subject to the requirements of the Act.
On February 11, 1993, pursuant to an August 1992 inspection of LP’s Missoula
worksite (Tr. 112), the Occupational Safety and Health Administration (OSHA) issued three
citations, together with proposed penalties, alleging violations of the Act. By filing a timely
notice of contest Respondent brought this proceeding before the Occupational Safety and
Health Review Commission (Commission).
On August 2-4, 1994 a hearing was held in Missoula, Montana. At the hearing,
Complainant’s motion to amend “Repeat” citation 1, item l(c) to allege a “serious” violation
was granted (Tr. 21). The parties have submitted briefs on the issues, as amended, and this
matter is ready for disposition.
Allened Violation of 55(a)(l).

   Serious citation 1, item 1 alleges:

Section 5(a)(l) of the Occupational Safety and Health Act of 1970: The employer did not
furnish employment and a place of employment which were free from recognized hazards
that were causing or likely to cause death or serious physical harm to employees in that
employees were exposed to:

(a) The hazard of being struck by a particle board kicking back on the #1 sander in Reman
when a jam-up occurred on or about August 15, 1992 and at times prior thereto, at
Louisiana Pacific Corporation, Missoula, Montana.

Among other methods, one feasible and acceptable abatement method to correct this hazard
is to provide kickback fingers which would prevent the material from kicking back.

FlZCtbS
On August 15, 1992, Ronald Huston, a member of the LP “bullnose” crew, was
observing the 764-2 sander on LP’s paint line (Tr. 272). As Huston watched, he saw two
boards double feed into the sander (Tr. 272). The operator shut down the sander belts, and
began to raise the sander heads to release the jammed boards (Tr. 211,273,344). The feed
belt to the sander began to move forward (Tr. 349-50, 379), and a sheet of plywood was
ejected from the sander, striking Mr. Huston and resulting in severe internal injuries (Tr.
119, 284).
Cecil Brotherton, assistant chief engineer with Timesavers, Inc., testified that
Timesavers, Inc. designs, manufactures and services wide-belt sanding equipment (Tr. 28-
29). Brotherton stated that Timesavers has supplied LP with twenty sanders; four of which,

                                             2

including the model 764-2 dual head sander which is the subject of this action, are found at
the LP facility in Missoula (Tr. 28-33).
Brother-ton testified that there is a recognized danger of the wood stock being kicked
back, or ejected from the 764-2 sander, in the event the sander is double fed (Tr. 44,54-S&
91). Timesavers first became aware of certain hazards associated with its sanders as the
result of a number of (approximately 20) lawsuits (‘I?. 59). In 1987, Timesaver’s began
mailing out pamphlets to its customers, advising them of the hazards associated with its
sanders (Tr. 45-46). The mailings warned users never to allow stock to overlap, “kickout or
product jam may be experienced;” never to stand in line with the product flow, in the “path
of a product kickout;” and that where pieces are not firmly held by the pinch rolls, “kickout
may be experienced.” (Tr. 52-54; Exh. C-15, p. 3, No. 10, 11, 13).
Brotherton testified that mailings went out to each of the LP facilities owning
Timesavers equipment (Tr. 46-47). Two L-P facilities, Sagola, Michigan, and Newberry,
Michigan, acknowledged receipt of the mailing (Tr. 49; Exh. C-16). Four mailings went to
the Missoula LP facility, one addressed to P.O. Drawer C, Missoula, 59801, the others to
Highway Ten West, Missoula, 59806 (Tr. 50).
John Coston, LP’s Reman supervisor (Tr. 634), testified that Highway Ten West was
a truck delivery address for Evans Products, LP’s precursor (Tr. 678). Coston stated that
LP’s mailing address is P.O. Box 4007, Missoula 59801; its street address, 3300 Raser Drive,
Missoula (Tr. 653, 678). Coston maintained that, to his knowledge, L-P never received
Timesavers’ pamphlet warning them of a kickout hazard (Tr. 653).
Coston stated that in his 22 years with LP, he had never known the 764-2 sander to
eject a board (Tr. 639, 763). Coston admitted, however, that he heard of a kickback on a
six head sander on the production line shortly after he began to work at L-P (Tr. 674). Arlin
D. Sharbono, t-P’s lead man on the Reman line where the 764-2 sander was located,
testified that although he was not aware of any kickouts on the 764-2 sander prior to Ron
Huston’s accident, he knew that kickback was a possibility (Tr. 461-62). Compliance Officer
Thomas Wild testified that the sander operators told him that approximately 10 years ago,
a kickback incident similar to the August 15 accident had occurred on the same piece of
equipment (Tr. 178-79). Thomas McConaughy testified that he witnessed that kickback

                                             3

while operating the 764-2 sander ten to fifteen years ago (Tr. 729-30). That incident
involved a jam, but occurred prior to McConaughy’s shutting down the sander (Tr. 731).
Other types of sanders in the LP facility are equipped with antikickback devices and “bang-
boards” to address the kickback hazard (Tr. 576-77).
In its 1987 mailing, Timesavers advised its customers to update their equipment with
operator safety features, including an “[alntikickback device. . . To eliminate the kickback
of the product being sanded (Exh. C-15, p. 5, No. 7). An antikickback device consists of a
set of fingers which drag along the top of the product being sanded. In the event of a
reverse in motion, the fingers dig into the top of the stock,restricting that backward
movement (Tr. 55-56). Brotherton testified that such a device is available for sander model
764-2, and would eliminate kickbacks in a double feed or jam up (Tr. 56-57).
Discussion
The Commission has held that:
In order to prove a violation of section 5(a)(l) of the Act, the Secretary must show
that: (1) a condition or activity in the workplace presented a hazard to an employee,
(2) the hazard was recognized, (3) the hazard was likely to cause death or serious
physical harm, and (4) a feasible means existed to eliminate or materially reduce the
hazard. The evidence must show that the employer knew, or with the exercise of
reasonable diligence could have known, of the violative conditions. (citationr omitted)

Secretaryof Laborv, Tampa Shipyarcls, Inc., 15 BNA OSHC 1533,lm Cm OSm 929,617
(Docket Nos. 86-360, 86469, 1992).
The accident involving Ron Huston establishes the first and third elements of the
violation; Le., that there is a kickback hazard associated with double feeding the 764-2
sander, and that that hazard is likely to cause serious physical harm. Respondent argues,
however, that the kickback hazard was not recognized, and that it had no reason to know
that its sander posed a safety hazard. Respondent also maintains that the suggested
abatement would not materially reduce that hazard.
Recognized Hazard
It is well settled that:
This element. . [is] shown by proving that the condition is generally known
l

   to be hazardous in the industry. Thus, whether or not a hazard is “recognized”


                                           4
      is a matter for objective determination.  It does not depend on whether the
      particular employer appreciated the nature of the hazard. (citations omitted)

Georgia Electric Co., 5 BNA OSHC 1112, 1977 CCH OSHD lI21,613 (No. 9339, 1977).
Under Commission precedent, Complainant need not prove that Respondent had actual
knowledge of a hazard generally recognized within its industry. In this case, however, the
record establishes both industry recognition of a kickback hazard and LP’s constructive
knowledge of the hazard.
The record establishes that the kickback hazard associated with belt fed sanders is
well recognized in the woodworking industry. A number of lawsuits led the manufacturer
of LP’s sanding machinery to issue warnings to prior purchasers about the possrbility of
kickbacks as early as 1987, warnings which were received by at least two other L-P facilities.
Warnings concerning kickbacks are now included with all the sanding equipment Timesavers
sells (Tr. 49).
Moreover, LP supervisory personnel had at least constructive knowledge of a generic
kickback hazard in that they were or should have been aware that kickbacks had occurred
on other LP sanding equipment, and that kickouts were at least a poss~Mity on the 764-2
sander.
Complainant has established this element.
Feasibility
In order to show an abatement measure’s feasl%ility, the Complainant must show that
its recommended precautions are recognized by ‘knowledgeable persons familiar with the
industry as necessary and valuable steps for a sound safety program in the particular
circumstances existing at the employer’s worksite.” Cemo Metal products Divisimt,Mizmon
Group, Inc., 12 BNA OSHC 1821, 1986 CCH OSHD a 27,579, (No. 78-5159, 1986).
Brother-ton, an engineer representing the manufacturer,
se testified that installation of
a kickback device is a valuable safety precaution which should be taken for the 764-2 sander.
Brother-ton was knowledgeable about the mechanics of Timesavers’ sanders, and the under-
signed finds his testimony credible.
L-P argues that the antikickback device would be ineffective in preventing kickbacks
where the sander heads are opened up while the machine is still running (Tr. 642,646,650).

                                              5

The evidence establishes, however, that kickout may also result from a double feed, without
loosening the pressure on the heads to unjam the sander (Tr. 44,54-55, 731; Exh. C-15, p.
3, No. 10). Antikickback fingers would, therefore, materially reduce the kickout danger
which exists prior to unjamming operations being undertaken.’
The additional hazard identified by GP., Le., that of kickbacks during unjamming
operations, is addressed by the remaining citations.
Pena@
The Secretary has proposed a penalty of $5,000.00 for this item.
Louisiana-Pacific is a large company, with approximately 200 employees at its
Missoula plant alone. CO Wild testified that GP, Missoula had been cited by OSHA within
the three year period immediately preceding the issuance of the instant citation (Tr. 116,
239) .
The gravity of the cited hazard is high. The accident involving Mr. Huston
demonstrates that a kickback accident would most likely result in severe injuries, possibly
leading to death. The paint line sander operator and his assistant were exposed to the
kickback hazard, as well as form operators, millwrights and supeMory personnel using
the walkway alongside the sander (Tr. 123-26, 243).
Taking into account the relevant factors, the undersigned finds the proposed penalty
appropriate, and $5,000.00 will be assessed.
Alleged Violations of 61910.147 et sea.

Facts
It is uncontroverted that prior to the instant citation, operators of the ‘764-2 sander
were not required to lock out that piece of equipment to clear out jammed boards (Tr. 154,
332-33, 441). Brown testified that the accepted procedure was to shut the machine off by
pressing the emergency stop or the off button, raise the pressure rolls to release the jammed
boards, and restart the machine (T’r. 154, 159, 172, 334). Pressing the off button stopped

the sander drums; pressing the E-stop shut down both the sander drums and the conveyor

’ The undersigned notes that L-P could also have reduced the cited hazard by replacing t.heoriginal “no
go” bar on the sander, which was intended to prevent double feeds.

                                                   6

feed (Tr. 349, 355-56, 463). Sharbono testified that it was improper to push only the off
button, and that the operator should push the E-stop or the brakes, to get the heads shut
down as fast as possrble (Tr. 470). Randy Elliot testified that he generally used the brakes
to stop the sander heads in the event of a jam-up (Tr. 488).
The sander could be restarted by pressing the start button if only the off button had
been pressed; or if the E-stop had been pressed, by pulling out the E-stop, pushing the off
button to recycle, and then pressing the start button (Tr. 338, 464, 492, -g.
John Mikkelson, LP’s safety director, conducted plant wide annual training sessions
on energy control (Tr. 538, 655-56). L-P’s energy control program consisted of handouts,
a video presentation, and a physical demonstration, which was conducted in house (Tr. 120,
155, 192,541; Exh. R-2, R-3, R-7). Mikkelson stated that the program was generic, in that
it attempted to address the major hazardous energy sources, electrical, compressed air and
hydraulic (Tr. 543,575.76). Training on specific pieces of machinery, including the paint line
sander, was not provided (Tr. 126, 130, 134, 329-330). Mikkelson testified that there were
procedures established for each machine, though they had not been reduced to writing (Tr.
563, 567, 657).
Amlicabilitv of 81910.147 et sq
Respondent argues that the cited standard is not applicable to unjamming operations.
Section 1910.147(a)(l) Scope, states that the standard “covers the servicing and maintenance
of machines and equipment in which the unexpected energbation or start up of the
machines or equipment, or release of stored energy could cause injury to employees.. . .”
Unjamming of machines or equipment is specifically named in 91910.147(b) Dejhitions, as
a maintenance activity. Respondent ma&a&s, however, that there is no posbility of
unexpected energization during unjamming operations.
The evidence establishes that the 764-2 sander could be energized by accidentally
pressing a single start button if the machine’s operation had been halted without using the
E-stop. Accidental activation is speci&ally named in the preamble to 51910.147 as a hazard
to which employees who work with or are otherwise in the immediate area of covered equip
ment are exposed. 54 F.R. 36646, 36653 (9/l/89).

                                                    7
      In addition, it is clear from the preamble that the Secretary considered the failure to

ensure that equipment is actually shut down, the immediate cause of the August 15 incident,
and deemed it a significant factor to be addressed by any energy control program. Jii. The
lockout/tagout standard specifically addresses procedures for equipment shutdown at
$1910.147(d)(2).
The undersigned finds, therefore, that the lockout/tagout standards at 51910.147 are
applicable to UIIJ‘amming operations on the 764-2 sander.
Respondent nonetheless argues that unjamming the 764-2 sander is an exempted
production operation under the terms of the standard. Section 1910.147(a)(2) Appkation
states:
(i) This standard applies to the control of energy during servicing and/or maintenance
of machines and equipment. (ii) Normal production operations are not covered by
this standard. l Servicing and maintenance which takes place during normal
l e

      production operations is covered by this standard only if:

      (A) An employee is required to remove or bypass a guard or other safety device; or
      (B) An employee is required to place any part of his or her body into an area on a
      machine or piece of equipment where work is actually performed upon the material
      being processed (point of operation) or where an associated danger zone exists
      during a machine operating cycle,
      Respondent      bears the burden of proving that the claimed exception provided in

§1910e147(a)(2)(ii) applies in the cited CbCuIIMaIICeSe Falcon Steel CO.916 BNA OSHC 1179,
1993 CCH OSHD 129,426 (No. 8992883,8903444,1993); StanBestInc., 11 BNA OSHC 1222,
1983-84 CCH OSHD 126,455 (No. 764355, 1983). Specifically, the preamble to the
Jockout/tagout standard states that to establish the claimed exemption the employer must
demonstrate that the means of performing unj amming operations do not expose employees
to greater or different hazards than those encountered during normal production operations.
54 FeR. 36647 (9/l/89)*
Respondent LP here failed to show that un~‘amming operations are routine, repetitive
tasks which are part of the normal production. Nor did ‘LP establish that the hazards
associated with un~‘amming are identical to the hazards involved normal production.

                                                        8
     Sharbono testified that jam-ups are “not a normal situation” (Tr. 470). Billy Brown,

the 764-2 sander operator, testified that jams may occur up to three or four times a day, but
only when they run quarter inch board (Tr. 333). John Coston testified that jams may occur
only two or three times a month (Tr. 689).
Moreover, the hazards to LP employees are different when a jam occurs than the
hazards encountered during normal production. When the pressure rolls are raised, to
release pressure from jammed boards on the feed belt, the boards may move forward, hit
a still moving sander head, and be ejected from the sander (Tr. 349-350, 508). After the
sander heads have been turned off, they continue to rotate for between 5 and 30 seconds,
depending on whether or not there is a board in the sander providing fiction (Tr. 337,463,
519, 644). Brown estimated the wind down time at as long as l-1/2 to 2 minutes (Tr. 337).
As noted by CP, even the installation of an anti-kickback device would be ineffective in
preventing a kickback where the pressure rolls are raised.
The described kickback hazard is created solely during unjamming operations.
Respondent failed to demonstrate that unjamming the 764-2 sander is an’ exempted
routine maintenance operation involving the same hazards encountered during normal
production. The provisions of 51910.147 et seqe are, therefore, applicable.
Willful citation 2, items la and lb

     The cited items allege, respectively:

29 CFR 1910.147(c)(7)(i): Th e employer did not provide adequate training to ensure that
the purpose and function of the energy control program was understood by employees:

(a) Paint Line: Employees exposed to the hazards of kickbacks on the sanchg machines.

29 CFR 1910(c)(7)@)(a): Retraining was not provided for authorized and affected
employees when there was a change in their job assignments, a change in machines,
equipment or processes that presented a new hazard, or when there was a change in the
energy control procedures:

(a) Paint Une: Affected employees exposed to the hazards of kickbacks on the sauding
lIlaChineSe

                                                9

Violation of the Standanis
LP admits that it did not provide training on lockout procedures for specific pieces
of machinery. LP’s generic training instructed employees that they needed to lock out
equipment only when they had to climb on top of or reach into the machinery (Tr. 327,330,
444). It is undisputed that employees were not instructed to lock out the 764-2 sander when
unjamming the machine.
CO Wild’s testimony that four new employees being trained on the paint line,
including Mr. Huston, were not provided energy control retraining upon their reassignment
to the bullnose area was also uncontested (Tr. 127, 161, 168).
Because LP provided no training, or retraining covering lockout procedures for
specific pieces of equipment, or the precise conditions under which lockout is required,
including unjamming the 764-2 sander, its training was inadequate. Complainant has
established the cited violations.
ldWh?SS

   The Commission has held that:

   A willful violation is one committed with intentional, knowing or voluntary disregard
   for the requirements of the Act, or with plain indifference to employee safety. It is
   differentiated from other types of violations by a “heightened awareness -- of the
   illegality of the conduct or conditions -- and by the state of mind - conscious
   disregard or plain indifference.
                                        ***

    A finding of willfulness is not justified if an employer has made a good faith effort
    to comply with a standard, even though the employer’s efforts are not entirely
    effective or complete.

Calang COP., 14 BNA OSHC 1789,1791,1987-90 CCH OSHD g29,080, pe 38,870 (No. 850
319, 1990).
The record establishes that L-P had an extensive lockout /tagout program including
written materials and a video presentation (Exh. R-l through R-5). Training was provided
(&he R-7); the employees involved in the 1992 incident, including Mr. Huston, understood
the purpose and function of the lockout/tagout rules in general terms (Tr. 271,290-91,498
99,509).

                                                10
    LP     believed that unjamming      the 764-2 sander was part of normal .production

operations, and did not expose employees to any additional dangers involving the unexpected
energization of the equipment. This judge concludes otherwise. However, LP’s conclusion
was not so unreasonable as to justify a finding of wi&.lness. The evidence establishes,
rather, that L-P’s interpretation of the standard was made in good faith. The cited standards
will be affirmed a~ “serious” violations of the Atie

    The Secretary proposes a combined penalty of $35,000.00 for these violations. Based

on the penalty factors discussed above, and on the reclassifTxation of these violations as
“serious,” a penalty of $3,500.00 is deemed appropriate and will be assessed.
Reseat citation 3, item la
The citation alleges:
29 CFR 1910.147(c)(4)(i): P rocedures were not developed, documented and utilized for the
control of potentially hazardous energy when employees were engaged in activities covered
by this section:

(a) Paint Line: Specific procedures were not developed for the #l sander and other
equipment with a potential for stored or residual energy where employees were required to
perform maintenance of machines and equipment.

Disczwion
It is admitted that LP did not document lockout,/tagout procedures for individual
pieces of equipment as required by the cited standard. In particular, no procedures were
developed or utilized for locking out the 764-2 sander prior to unjamming.
Complainant has established the cited violation.
Peru@
The violation is cited as a “repeat” violation. A penalty of $5QOOOeOO has been
proposed by the Complainant. LP argues that a repeat violation may be based on violations
occurring at distinct physical locations only if the corporation exerts day to day control of
the separate facilities.
The Commission has rejected the idea that “commonality of supervisory control”
bears upon whether a particular violation is repeated. PotkatchCorp., 7 BNA OSHC 1061,

                                             11

1979 CCH OSHD ll23,294 (NO. 16183, 1979). Here, the attorney and management
representative representing LP at a 1992 informal settlement conference between OSHA
and LP, where lockout/tagout citations at its Kremmling plant were discussed, also
represented LP in this matter (Tr. 398). Complainant’s position, that LP should be held
accountable for the knowledge of its corporate management and legal counsel is reasonable.
The violation is properly characterized as “repeat,” because L-P received citations under the
same standard based on similar violations in its Kremmling plant in 1992 (Tr. 397-402).
The gravity of the cited violation is high because of the danger to bystanders as well
as to the sander operator. The injuries sustained by Mr. Huston were severe and could have
resulted in death. In proposing its penalty, Complainant took into account L-P’s size, good
faith, and history of violations. The proposed penalty of $50,000.00 will be assessed.
Repeat citation 3, item lb

    The citation alleges:

29 CFR 1910.147(c)(6)(i): Th e employer did not conduct an annual or more frequent
inspection of the energy control procedure to ensure that the procedure and requirements
of this standard were followed:

(a) Paint Line: Employees exposed to the hazards of kickbacks on the sanding machines.

Dimssion

    The standard requires that energy control procedures be evaluated annually.
    Respondent      was able to produce written documentation         for only two inspections

involving energy control procedures (Tr. 131; Exh. R-27). In April and May, 1992, during
scheduled down day maintenance, Pat McGowan perfomed a “random lockout checks” on
“#2, S&W blowout” and on the “bag house air lock” (Tr. 13233; Exh. R-27). No other
evidence of energy control inspections was introduced (Tr. 133). Wild was told by McGowan
that he “hadn’t gotten around to” the rest of the equipment, including the equipment in the
Reman section (Tr. 189-191). NO down days were scheduled in Reman for 1992 (Tr. 548).
The random lockout checks performed by LP do not comply with the requirements
of the cited standard in that inspections involving all procedures did not occur at least
annually. The violation has been established.

                                                  12
   For the reasons discussed above, the violation is properly characterized as “,peat.”

A penalty of $SO,OOO.OO
will be assessed.
Serious citation 3, item lc and Id
The citations allege, respectively:
29 CFR 1910.174(c)(6)(i)(C): Wh ere lockout was used for energy control, the periodic
inspection did not include a review, between the inspector and each authorized employee,
of that employee’s responsl%ilities under the energy control procedure being inspected:

(a) Paint Line: Employees exposed to the hazards of kickbacks on the sanding machines.

29 CFR 1910.147(c)(6)(ii): Th e employer had not certified that periodic inspections of the
energy control procedures had been performed:

(a) Paint Lines: Employees exposed to the hazards of kickbacks on the sanding machines.

Discussion
Items lc and ld assert that the required periodic inspection of L-P’s sanding machines
did not include a review of procedures with employees, and were not certified, as required
by 01910.147(c)(6)(i)(C) and (c)(6)(@. Th e evidence establishes that annual inspections
were not performed. In item lb, LP was cited and found in violation of 51910.147, subsec-
tion (c)(6)(i) for its failure to perform such inspections. Because the two subsections at lc
and Id address inadequacies in an employer’s inspection plan, such a plan must exist before
those subsections become applicable. The undersigned declines to rule on the adequacy of
an inspection procedure which does not exist. Serious citation 3, items lc and Id will,
therefore, be dismissed.
Repeat citation 3, Item 2
The citation alleges:
29 CFR 1910.147(d)(4)(i): Lockout or tagout devices were not affixed to each energy
isolating device by authorized employees:

(a) Paint Line: Employees exposed to the hazards of kickbacks on the sanding machines.

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Discussion

     It is uncontroverted   that the 764-2 sander was not locked out during unjamming

operations. Such failure to lockout the machine was a high gravity “repeat” violation due
to L-P’s previous citation under the identical standard (Stipulations of Fact lI7-10). For the
reasons discussed above, the proposed penalty of $SO,OOO.OO
is deemed appropriate and will
be assessed.
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determination
of the contested issues have been found specially and appear in the decision above. See
Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER

1. Serious citation 1, item 1, alleging violation of 55(a)(l), is AFFIRMED and a penalty
   is ASSESSED.
   of $S,OOO.OO
2. Citation 2, item la and lb, alleging violations of 51910.147(c)(7)(i) and (c)(7)@)(a),
   are AFFIRMED as “serious” violations and a combined penalty of $3,500.00 is ASSESSED.
3. Repeat citation 3, items la and lb, alleging violations of $1910.147(c)(4)(i) and
   (c)(6)(i), are AFFIRMED and penalties of $SO,OOO.OO
   each are ASSESSED.
4. Repeat citation 3, items lc and Id, alleging violations of $1910.147(c)(6)(i)(C) and
   (c)(6)@), are VACATED.
   50 Repeat citation 3, item 2, alleging violation of 5191 ) is AFFIRMED and
   a penalty of $50,000.00 is ASSESSED.

Dated: May 26, 1995

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