Alabama River Pulp Co., Inc.

Plain-English summary

Alabama River Pulp runs a large pulp mill in Perdue Hill, Alabama. During the
plant's annual maintenance outage in April 1995, a subcontractor employee fell
at a manlift in the digester building and died; the parties stipulated that the
death was not caused by any of the violations later cited. OSHA inspected the
digester building afterward and issued a serious citation for a ladderway floor
opening without a swing gate or offset (§ 1910.23(a)(2)) and for a manlift
condition (§ 1910.68(b)(8)(i)), plus an other-than-serious citation for a
lockout/tagout violation (§ 1910.147(d)). The company tried the case under the
Commission's simplified E-Z Trial procedure.

Judge Ken S. Welsch affirmed all three items. The company's "greater hazard"
defense to the floor-opening item did not succeed, and both serious items were
sustained given the parties' stipulation that a fall in the manlift area could
cause serious injury or death. The judge assessed a reduced penalty of $500 for
each serious item, down from the $1,875 proposed for each, and no penalty for
the other-than-serious lockout/tagout item. Total penalty: $1,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.23(a)(2), § 1910.68(b)(8)(i) (serious); § 1910.147(d) (other than serious)
• Outcome: All three items affirmed; serious penalties reduced from $1,875 to $500 each; no penalty on the other-than-serious item; total $1,000
• Key point: Violations are judged on their own terms even after an unrelated fatality, and the "greater hazard" defense requires proof that compliance is more dangerous and that no alternative protection or variance is available.

Full text (OSHRC public release)

```text
United States of America
OCCUPATIONAL SAFETY AND ElEALTEi REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

                                                                                 Phone:(202)606-5400
                                                                                  Fax:(202)606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 954533
ALABAMA RIVER PULP COMPANY, INC.
Respondent.

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

docketed with the Commission on Marc K 8, 1996. The decision of the Judge
will become a final order of the Commission on April 8, 1996 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
March 28, 1996 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C. I?.R. 2200.91.
All 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 ‘Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
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
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

                                               fly          p6      u+/             9-/-s~

Date: March 8, 1996 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 95-1533
NOTICE IS GIVEN TO THE FOLLOWING:

Associate Regional Solicitor
Office of the Solicitor
Chambers Bldg., Highpoint Office
Center, Suite 150
100 Centerview Drive
Birmingham, AL 35216

John R. Nix, Es .
Reams, Phili s, ‘Brooks, Schell,
Gaston & R udson, P.C.
P.O. Box 8158
Mobile, AL 36608

Ken S. Welsch
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00106095029:04
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 Peachtree Street, N.E., Suite 240
Atlanta, Georgia 30309-3 119

Phone: (404) 347-4 197 Fax: (404) 347-O113

SECRETARY OF LABOR,
Complainant,
.

                v.                                          ..       OSHRC Docket No. 954533

ALABAMA RIVER PULP CO., INC.,
Respondent.
.

      Kathleen G. Henderson, Esquire                                            John R. Nix, Esquire
         Office of the Solicitor                                                   Reams, Phillip& Brooks, Schell,
         U. S. Department of Labor                                                   Gaston & Hebson, P.C.
         Birmingham, Alabama                                                       Mobile, Alabama
              For Complainant                                                           For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                       DECISION AND ORDER

      Alabma River Pulp Company (ARP) maintains a place of business on Highway 39, Perdue

Hill, Alabama where it produces pulp for sale to manufacturers of paper and paper products. The

plant facility is eighteen years old and employs approximately 350 employees. It covers 1,200 acres
and was described as the world’s largest single line pulp mill. It houses five million square feet
under roof (Tr. 2070208,210). ARP stipulates that it is an employer engaged in a business affecting
commerce within the meaning of the Occupational Safety and Health Act of 1970 (29 U.S.C. $65 1,
et seq.), hereafter referred to as the Act.
In April 1995, ARP was conducting its annual outage where all processes and equipment are
shut down for maintenance. The annual outage takes approximately five to eight days (Tr. 138).
In addition to ARP’s maintenance employees, subcontractors are hired to assist. Overall, there are
approximately 1,550 workers involved in the maintenance work (Tr. 138). During the outage on
April 25 1995, William Cobb, an employee of a subcontractor, Alabama River Capital Projects, fell
at the manlift in the #ESCO digester building and died.
As a result of the accident, compliance safety and health officer David Smith conducted a
walkaround inspection of ARP’s digester building on April 26 through 27, 1995. Based on his
inspection, ARP received a serious citation alleging violations of the ladderway floor opening
standard at $1910.23(a)(2) and the manlift standard at $1910.68(b)(8)(i). A penalty of $1,875 was
proposed for each violation. Additionally, ARP received an “other” than serious citation for alleged:
violation of the lockout/tagout standard at 6 1910.147(d). ARP timely contested the citations and the
case was docketed with the Review Commission.
On October 3 1,1995, the case was designated for E-Z Trial pursuant to Commission Rule
200-2 11,29 C.F.R. $5 2200.200-211. E-Z trial is a pilot program designed to provide simplified
proceedings for resolving contests expeditiously. On December 8, 1995, the E-Z Trial Prehearing
Conference Order was entered which set forth the parties’ agreed facts and statement of issues.
The E-Z Trial hearing was held on January 16.17,1996 in Mobile, Alabama. At hearing,
ARP withdrew its objection to the validity of the walkaround inspection (Tr. 7). Also, the parties
agreed that “serious bodily injury or death could result from someone falling in the manlift area at
the #l ESCO Digester. However, it is stipulated that the death of William Cobb, on April 25,1995,
was not caused by any of the alleged violations in this case” (Joint Exh. 1).

                                ALLEGED VIOLATIONS

Elements Necessarv to Prove a Violation

    In general, to prove a violation of a standard, the Secretary of Labor must prove by a

preponderance of the evidence that (1) the cited standard applies, (2) there was noncompliance with
the terms of the standard, (3) there was employee exposure or access to the hazard created by the
noncompliance, and (4) the employer knew or with the exercise of reasonable diligence could have
known of the condition. Ksper Electroplating Corp., 16 BNA OSHC, 15 17, 1521, 1994 CCH
OSHD 730,303, p. 41,757 (NO. 90-2866, 1993); Seibel Modern Manufacturing & Welding Corp.,
15 BNA OSHC 1218, 1221, 1991-93 CCH OSHD 729,442, p. 39,678 (No. 88-821, 1991).

                                              2

Additionally, in order to establish a “serious” violation under $17(k) of the Act, 29 U.S.C.
$666(k), the Secretary must prove that there is a substantial probability that death or serious physical
harm could result from a hazardous condition. In determining substantial probability, the issue is
not whether the accident is likely to occur. Rather, the Secretary must show that an accident is
possible and the result of an accident would likely be death or serious physical injury. Spancrete
Northeast Inc., 15 BNA OSHC 1020, 1024, 1991 CCH OSHD 729,313, p. 39,358 (No. 86-521,
1991); Consolidated Freightways Corp., 15 BNA OSHC 13 17,1324,1991 CCH OSHD 729,498
p. 39,804 (No. 89-2253, 1991).
Once the Secretary has presented sufficient evidence on each element to establish aprima
facie case, the employer has the burden of either rebutting the Secretary’s case or proving one of the
affirmative defenses recognized by the Review Commission. In this case, the greater hazard defense
is alleged for the 5 1910.23(a)(2) violation. In order to establish a greater hazard, ARP must show
that (1) the hazards of compliance exceed the hazards of noncompliance, (2) ahernative means of
protecting employees are unavailable; and (3) a variance is unavailable or inappropriate. Lauhof
Grain Corp., 13 BNA OSHC 1084,1088,1986-87 CCH OSHD 7 27,814, p. 36,397.98 (No. 81-984,
1987).
In determining an-appropriate penalty if a violation is found, $17(j) of the Act, 29 U.S.C.
666(j), directs the Commission to consider the gravity of the violation, the good faith of the
employer, the size of the employer, and the employer’s history of violations. In determining
gravity, consideration is given to the number of employees exposed, the duration of the exposure,
the precautions taken against injury, and the degree of probability that any injury would occur.
J. A. Jones Const. Co., 15 BNA OSHC 2201,2214, 1991-93 CCH OSHD 7 29,964, p. 41,033 (No.
87.2059,1993); Caterpillar, Inc., 15 BNA OSHC 2 153,2178,1993 CCH OSHD 7 29,962, p. 41 ,011
(No. 87-922, 1993).
 SERIOUS CITATION NO. 1

I. Item 1 - Alleged Violation of 5 1910.23(a)(2)

     The citation alleges that at the west corner of the chip bin #l Esco digester “employees

welding on the wood chip chute were exposed to a fall hazard when a swing gate or offset was not
provided.”
FACTS
The #l Esco digester is a building approximately 150 feet high with eight levels, in which
various processes are performed in the production of pulp (Exh. C-7; Tr. 148, 165). It is a self
continuous digester operated from a control room in another building (Tr. 175). Generally, one
employee (helper) per shift works in the digester building monitoring the equipment and processes
(Tr. 175-176). Also, maintenance employees are in the digester building and on the roof inspecting
the equipment once or twice a week. On the roof level (eighth floor), there is a raised platform, a
metal building, and equipment such as the wood chip conveyor used deliver wood chips into the
digester (Tr. 15 1, 158, 173-74, 193).
The raised platform is approximately 35 to 40 feet above the roof level and is located 25
yards from the metal building (Tr. 193). On the platform, the wood chip chute and chip diverter gate
are located (Tr. 197,248). To access to the platiorm, employees climb a caged ladder or a stairway
(Tr 173). The caged ladder is attached to one side of the platform (Tr. 330,333). The side rails of
the ladder extend 36 inches above the platform’s landing (Tr. 259).
Compliance officer Smith testified that the ladderway opening onto the platform was not
guarded by an offset of railing or a swing gate. There was nothing to prevent employees from
inadvertently walking into the opening (Exh. C-8; Tr. 256). Smith observed two employees of a
subcontractor working 3% to 4 feet from the opening. Also, it was Smith’s understanding that
ARP’s maintenance employees make weekly inspections of the equipment on the platform (Tr.
269) .
Thomas Lindsey, fiber line manager, acknowledged that prior to the OSHA inspection, there
was no guard in front of the opening to the ladder cage (Tr. 174). If a person was not paying
attention, it was possible for him to accidently fall through the opening (Tr. 555). Lindsey also

                                              4

agreed that maintenance employees work periodically on the equipment on the platform and do
routine inspections once or twice a week. The inspection take approximately five minutes (Tr. 196).
After the OSHA inspection, Lindsey testified that a swing gate was installed at the ladderway
opening (Tr. 191).
Since installing the swing gate, a maintenance mechanic testified that in his opinion, it was
safer to use the ladder without the gate. He now has to use one hand to open the gate while standing
on the ladder (Tr. 502). With only one hand on the ladder’s railing, his balance on the ladder was
affected (Tr. 502). Also, since the gate automatically closes, he expressed concern about the
employees behind him on the ladder (Tr. 506). It was safer holding onto the ladder’s side rails with
both hands. The mechanic testified that in his eighteen years with ARP, he regularly climbed the
ladder and was not aware of any accidents before the gate was installed (Tr. 500-501). Also,
Lindsey testified about similar complaints from other employees (Tr. 191). Further, he was not
aware of any accident involving the ladder (Tr. 190). ARP attached the swing gate to the side railing
of the ladder (Exhs. R-l, R-la). When asked whether the gate could be moved away from the ladder,
Lindsey speculated that such an installation would depend on the location of supports and might
involve re-engineering the platform. (Exh. C-9; Tr. 219,222). However, he agreed that this would
alleviate the employees’ complaints (Tr.217). He did not know if other gate configurations were
considered or attempted by ARP (Tr. 223).
DISCUSSION

       Section 1910.23(a)(2) provides that:

       Every ladderway floor opening or platform shall be guarded by a standard railing
       with standard toeboard on all exposed sides (except at entrance to opening), with the
       passage through the railing either provided with a swinging gate or so offset that a
       person cannot walk directly into the opening.

       It is uncontroverted that at the time of the inspection, the ladderway opening onto the

platform was not protected by a swinging gate or railing offset to prevent employees from walking
directly into the opening. Also, there is no dispute that ARP was aware of the condition and that
employees work on the platform near the ladderway opening. Thus, noncompliance with the terms
of $1910.23(a)(2), employees’ exposure, and employer’s knowledge is established. The two issues

                                                 5

raised by ARP are whether the standard is applicable and whether the installation offhe swinging
gate created a greater hazard to employees (Tr. 552,555).
Section 1910.23(a)(2) applies to a “ladderway floor opening” which is not specifically
defined. However, ARP points to 6 1910.21(a)(2) which defines a “floor opening” as “an opening
measuring 12 inches or more in its least dimension, in any floor, pZa@rm, pavement, or yard
through which persons may fdl” (emphasis added). While not disputing that this is a platform, AN?
argues that the cited ladderway opening is not “in” the platform. The ladder is attached to the side Is
of the platform. Based on the court’s reading of the standard, ARP’s interpretation of the word “in”
is to narrow. The court finds that in considering the language and purpose of the standard and the
physical conditions to which the standard applies, the cited ladderway floor opening is “in” the
platform. As a preposition, “in’ is used as a function word to indicate location or position in space
or in some materially bound object. Webster’s Third New International Dictionary, pg. 1139
(unabridged, 1971). The caged ladder is attached to the platform and over seventeen years has
become a permanent part of the platform. Therefore, the ladderway opening is ‘W’ the platform.
“In” applies to any part of the platform including the caged ladderway which provides access to the
platform. Thus, 6 1910.23(a)(2) is applicable to the cited ladderway opening.
Based on employees’ complaints, ARP also asserts a greater hazard defense. Although the
complaints involving the swing gate are significant, they fail to establish a greater hazard in this
case. The complaints generally concern the spring in the gate and the gate’s location to the ladder.
ARI? ftiled to show that these concerns could not have been satisfied. The mechanic described the
gate as swinging “back awfully hard” with a great deal of force (Tr. 501,507). However, he did not
know if the spring could be adjusted (Tr. 507). Also, using one hand to open the gate is not shown
as necessary. Smith described seeing employees at other plants using their bodies to swing open
the gate (Tr. 261). The mechanic has never tried using his body (Tr. 506).
However, and more significantly, even if the swing gate as installed is a problem to
employees, ARP ftiled to show that the gate could not be installed farther from the opening. This
would allow employees to stand on the platform before opening the gate (Exh. C-9). Such
alternative methods were not considered or attempted (Tr. 223). Lindsay’s testimony about possibly
requiring re-engineering of the platform is speculative. He offered no evidence in support.

                                              6

Additionally, the standard permits offsetting the railing to prevent an employee fitxn waking

directly into the opening. There is no evidence that offset railing could not have been installed.
Finally, ARP ftiled to show that a variance was requested or inappropriate. Therefore, a greater
hazard defense is not established by the record.
In determining whether the violation is serious, the record shows that there was a possible
fall hazard of 35 feet. Such a fall clearly could cause death or serious physical injury. Also,
Lindsey, as plant manager, admitted that an employee not paying attention could fall through the
opening (Tr. 174). Thus, the record supports a serious classification.
In considering an appropriate penalty, the record shows that ARP has not received any
citations since 1982. Also, according to Smith, ARP maintained good safety programs and the
employees appeared well trained in safety. He found ARP generally cooperative during the
inspection (Tr. 265,3 19). Also, a swing gate was immediately installed. In addition, ARP has spent
$65,000 installing over sixty swing gates at other locations’ since the inspection (Exh. R-18; Tr. 403,
556). Therefore, credit is given for history and good faith. No credit is given for size in that ARP
employs over 350 employees. As for gravity, the record reflects that employee exposure is once or
twice a week for a short duration and during maintenance work on the equipment. There are
generally one or two maintenance employees exposed. Smith considered exposure as seldom and,
thus, the probability of an accident was low.
Accordingly, a serious violation of § 1910.23(a)(2) is affirmed. A penalty of $500 is
assessed.

II . Item 2 - Alleged Violation of 5 1910.68(b)(8)(i)

    The citation alleges that the “top level of manlift building for #l Esco digester” did not have

a maze or self closing gate guarding the entrance and exit at the floor landing affording access to
the manlift. As noted by ARP’s attorney, the manlift violation is the most important violation to
ARP (Tr. 558).

    1 Smith observed several other unprotected ladderway openings during his inspection, but he could not

document employee exposure (Tr. 273).
 FACTS

   The layout of the metal building on the top level (roof) of the digester building is not in

apparent dispute. It is an enclosed metal building containing the manlifi and a stairway. Other than
the motor and gear box that drives the manlift, there are no other machines, equipment or work
processes inside the building (Tr. 150). Between the manlift and stairway there is a railing, 13 feet
3 inches long, which runs Tom the one wall to within 67 inches of the opposite wall. The manlift
opening, which is approximately five feet long and two feet wide, is protected on three sides by the
railing and two of the building’s walls. The only access to the manlift once inside the building is
the area in front of the manlift which is 67 inches wide from where the railing ends and 87 inches
long between the railing and the wall (Exh. R-5). At the time of the inspection, there was no
staggered railing or handrail with self closing gate in the area in front of the manlift opening. The
floor is grating. On the wall across from the manlifi opening, there is an electric outlet and switch,
some pipes, and two fire extinguishers (Exhs. C-3, R=7,7a). There is nothing else of significance
in the building. At the comer of the building across from the stairway, there is a door to the roof area
where equipment, machinery and the platform discussed in Item 1 above are located. ARP
acknowledges that the equipment and machinery on the roof require periodic maintenance,
particularly during the annual outage and inspection once or twice a week (Tr. 150-l 5 1, 179,196).
Employees use the manlift or stairway to get to the roof.
Smith testified that at the time of his inspection of the building, he observed extension cords
plugged into the electric outlet on the wall across from the manlift opening. The cords were
wrapped around the pipes closer to manlift and ran through the door to the roof. Employees were
using the extension cords to work on equipment on the roof (Exh. C-3, Tr. 239,359). He testified
that the purpose of the standard is to prevent an employee from inadvertently walking into the
opening (Tr. 346).
 Greg Hauber, manager for Perma Tron Elevator, Inc., testified as an expert* that he has
inspected ARP’s manlifts for compliance with ANSI manlift standards for over seven years (l&h.
R-6; Tr. 411, 413). In his professional opinion, he considered the metal building as a manlift
enclosure providing no direct access to the manlift opening (Tr. 415). Based on his inspection, he
testified that employees were only in the building to use the stairway or manlift. The placement of
the door to the roof and the railing between the stairway and manlift provided employees no direct
access to the manlift opening. Therefore, he opined that ARP was in compliance with the standard
(Tr. 420). He testified that during his inspections of the manlift, he never saw employees working
in the building or using the electrical outlet to run extension cords outside to the roof. He only
observed the outlet being used for work on the manlift (Tr. 439-440).
After the OSHA inspection, ARP installed a railing and self-closing gate in front of the
manlift (Exh. R-7; Tr. 343).

                                                DISCUSSION

    Section 1910.68@(8)(i) provides that:

    The entrances and exits at all floor landings affording access to the manlift shall be
    guarded by a maze (staggered railing) or a handrail equipped with self-closing gates.

    It is unconverted that at the time of the OSHA inspection, there was no self-closing gate

inside the building in front of the manlift opening and that after eighteen years ARP was aware of
the condition. Also, ARP does not dispute that 6 1910.68@(8)(i) is the applicable standard.
Therefore, the issues in contention are whether ARP’s manlift building satisfied the requirements
of $1910.68@)(8)(i) and whether employees were exposed to a hazard.

     2 Penna Tron Elevator, Inc.‘s business is exclusively manlifts (Tr. 411). Smith considered Hauber an expert

in manlifts and contacted him during his inspection (Tr. 272,305).

     3 ARP has five manlifts at its facility (Tr. 66).

ARP argues that at other levels in the ESCO digester building there are equipment and work
processes being performed.4 The top level is unique in that the manlift at the top level is completely
enclosed in a metal building. Employees working on the equipment on the roof are prevented direct
access to the manlift by the enclosed metal building. Inside the building, there are no work processes
being performed and there is a railing separating the stairway and manlift. Employees coming into
the building from the roof have to diagonally cross in front of the stairway to reach the manlift.
Employees coming up the stairway have to make a 180-degree turn around the railing to access the
manlift. Finally, ARP argues that employees riding the manlift or working on the manlift are not
the employees intended to be protected by the standard. Therefore, ARP maintains that its manlift
enclosure. satisfies the requirements of $19 10.68@(8)(i).
Based on the record, the court concludes that 0 1910.68@(8)(i) does require ARP to provide
guarding in front of the manlift opening either by a maze (staggered railing) or handrail with self-
closing gate. The building houses more than the manlift. It contains a stairway regularly used by
employees. Also, as evident by the use of the extension cords plugged into the electric outlet across
from the manlift, employees enter the building for purposes other than riding the manlift. Further,
the building is inspected once or twice a week. As noted by Hauber, ARP’s manlift expert, the
purpose of having protection by a handrail or maze is to avoid someone from inadvertently walking
into the manlift opening. He did not consider it a frivolous requirement, a person could be seriously
injured or killed (Tr. 432-433). Hauber’s opinion that the building protected employees was based
on there being no reason for employees to be inside the building other than riding the manlift or
using the stairway (Tr. 434,438). However, he acknowledged that if the electric outlet inside the
building was being used, a maze or handrail may be necessary depending on the frequency of use
(Tr. 439). The record does establish that employees use the electric outlet, as well as inspect the
inside of the building. Therefore, the building itself does not provide sufficient protection to
employees as contemplated by the standard.

     4 ARP had self-closing gates and handrails in front of the manlift openings at all other levels in the digester

building (Tr. 154).

                                                       10

Thus, the issue becomes whether the employees once inside the building are protected by
a “maze” which prevents direct access to the manlift. As defmed at 5 1910.68(b)(8)(iv), “maze or
staggered openings shall offer no direct passage between enclosure and outer floor space.”
Therefore, once inside, the employees are to be denied direct access to the manlift opening. The
purpose of the standard is to prevent an inattentive employee from falling into the manlift opening.
This could include an employee intending to use the manlift. The only railing inside the building
is the railing separating the manlift and the stairway. However, this railing has an opening of 67
inches through which employees travel to use the electric outlet and the manlift. It does not deny
employees direct access to the manlift opening. As admitted by ARP, an employee at the door of
the building can travel directly to the manlift opening without interference from the railing (Tr. 574).
Also, there is no protection for an inattentive employee using the electric outlet directly across from
the manlift. The outlet is less than 8 feet from the manlift. However, as noted by Smith, employees
wrapped the extension cord around pipes closer to the manlift (Exh. C-3; Tr. 358). ARP presented
no evidence that the use of the outlet was isolated or in violation of its work rules. Further, the
weekly inspection of the building involve more than the manlift. It includes the illumination in the
building and signs (Exh. C-5). Thus, based on employee activities inside the building and their
exposure to the manlift opening, the record establishes noncompliance with 6 1910.68(b)(8)(i).
The violation is properly classified as serious. The parties stipulated that a fall into the
manlift opening could result in death or serious physical injury (Joint Exh -1). The fall is at least
30 feet to the next level. The condition of the manlift without a self-closing gate existed for eighteen
years. Although based on inspections of the manlift by Perma Tron, ARP may have believed that
amaze or gate was not necessary, knowledge of the condition existed. There does not have to be
a showing that ARP knew that it violated a standard. U S. Steel Corp., 12 BNA OSHC 1692, 1699,
1986-87 CCH OSHD T[27,517, p. 36,671 (No. 79-1998, 1986).
For penalty consideration, as previously discussed, credit is given for good faith based on
having good safety programs, a full-time safety director, and the immediate abatement of the
violation. Also, credit is given for history in that ARP has not received a citation since 1982. No
credit is given for size. In considering the gravity of the violation, severity is high in that death is
the most likely result from a fall of at least 30 feet. However, the probability of an accident is

                                               11

considered low based on the infrequent and short duration of employee exposure. Any employee
exposure is limited to times inside the metal building.
Accordingly, a serious violation of 6 1910.68(b)(8)(i) is affirmed. A penalty of $500 is
assessed.
OTHER THAN SERIOUS CITATION NO. 2

I. Item 1 - Alleged Violation of 5 1910.147(d)

       The
        d citation alleges that “the Job Safety Analysis referenced in the employer’s Lock-out

procedure did not include the magnitude of energy.” ARP stipulates ‘Wnatits written lockout/tagout
procedure in place at the time of the inspection did not contain the written magnitude of energy”
(Tr. 9).
FACTS
Compliance Officer Smith testified that ARP’s lockout program identified the sources of
energy but not the magnitude (Exhs. R-4a, 4b, 4~). He testified that AIW was cited because
employees need to know the magnitude of energy. Different voltages require different equipment,
including personal protective equipment to perform a proper lockout (Tr. 275,379,397). Smith did
not identify any other deficiencies in ARP’s written lockout/tagout program.
Kenneth Ramion, an electrician with ARP for eighteen years, testified that ARP uses
electricity, air pressure and hydraulic power to run its machinery and equipment (Tr. 491,493).
Such equipment and machinery include pumps, motors, escalators, saws, pneumatic belts and
K-Mere digesters (Tr. 493). He described ARP as having “thousands” such pieces of equipment (Tr.
489). Ramion testified that although all employees are involved in ARP’s lockout procedures, only
employees of the electrical and instrumentation department (E&I) actually perform the lockout (Tr.
470,490.491). Ramion who is involved in electrical training stated that the employees of E&I are
trained to make sure there is no magnitude of energy within the source before performing any work
(Tr. 452). He noted that at the numerous motor control centers (“circuit breaker” for all motors),
the magnitude of energy for each motor is generally labeled. Also, he stated that there are
manufacturers’ identification tags on each piece of equipment identifying the magnitude of energy
(Tr. 461). If the magnitude of energy is not identified and even when there is an identification tag,

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E&I employees also use an amp probe to determine the magnitude of energy (Tr. 465). He described
ARP’s lockout procedure as involving E&I and maintenance employees. The program requires each
employee to separately attach their lockout devices at the motor control room. Then, the E&I
employee goes to the equipment to verify that it will not start. Also, he removes the housing, and
he checks the motor to make sure there is no stored energy (Tr. 490). Based on the training, the
identification tags at the control room and on the equipment, and the use of the amp probe, Ramion
testified that employees know the magnitude of energy (Tr. 452). However, he agreed that ARP’s
written program does not identify the magnitude of energy or its location. Also, ARP’s program
does not state that employees need to know the energy before performing a lockout (Exhs. 4a, 4b,

                                      DISCUSSION

   Section § 19 10.147(d) provides that:
           The established procedures for the application of energy control (lockout or
   tagout procedures) shall cover the following elements and actions and shall be done
   in the following sequence:

            (1) Preparation for shutdown. Before an authorized or affected
            employee turns off a machine or equipment, the authorized employee
            shall have knowledge of the type and magnitude of the energy, the
            hazards of the energy to be controlled, and the method or means to
            control the energy.

    It is uncontroverted that ARP’s employees are engaged in the servicing and maintenance of

machines and equipment in which unexpected energization or release of stored energy could cause
injury to employees (Exhs. R-4a, R-4b, R-4~). Thus, the lockout/tagout standards at 6 19 10.147
apply. Also, the record reflects that ARP has a written lockout program and provides training. ARP
argues that its employees did have knowledge of the magnitude of energy based on their training and
the identification tags at the motor control room and on the equipment. However, ARP
acknowledges that the magnitude of energy is not written in its lockout procedures (Exhs. 4a, 4b,
4c; Tr. 551).

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While both parties agree as to the importance of knowing the magnitude of energy, the issue
is whether the standard requires that it be written as part of the lockout program. The court agrees
with the Secretary. Section 19 10.147(c)(4)(i) specifically requires a written energy control
procedure. As part of the written control procedure, $ 1910.147(d) mandates that such established
procedures for energy control need to provide that “authorized employees” have knowledge of the
magnitude of energy. Therefore, as part of the written energy control procedure contemplated by
5 1910.147(c)(4)(i), knowledge of the magnitude of energy as required by 5 1910.147(d) needs to
be in the written procedures. By having such information in its written lockout program, employees
are notified of its importance in performing a proper lockout.
The violation is correctly classified as other than serious. Compliance Officer Smith testified
that employees appeared well trained. Also, Smith did not identify any other deficiencies in M’s
lockout program.
Accordingly, an other than serious violation of 6 1910.147(d) is affirmed.

                               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

SERIOUS CITATION NO. 1

   1. Item 1, serious violation of $1910.23(a)(2), is affirmed. A penalty of $500 is assessed.
   2. Item 2, serious violation of 6 1910=68(b)(8)(i),is affirmed. A penalty of $500 is assessed.

OTHER THAN SERIOUS CITATION NO. 2

    1. Item 1, other than serious violation of $1910.147(d), is affirmed. No penalty is assessed.



                                          Judge

Date: February 26,1996

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