dse design safety engineering, inc.

P.O. Box 8109, Ann Arbor, MI 48107 • www.designsafe.com • Phone (734) 483-2033 • Fax (734) 483-9897

24 December 2013 Mr. Tim Boe Rose Law Firm 120 East Fourth Street Little Rock, Arkansas 72201

RE: Secretary of Labor vs NSCI

Dear Mr. Boe:

Assignment design safety engineering, inc. was asked to investigate an incident resulting in an alleged violation of certain OSHA standards. More specifically, dse was asked to evaluate the applicability and substance of the alleged violation of 29 CFR 1910.147 as related to the operations at Nucor Steel Connecticut (NSCI) and this incident.

My analysis of this incident has comprised the following areas described in detail herein: Applicability to this facility, Greater hazard, Alternative measures before the incident, Plain language, Minor servicing / adjustments, Awareness of compliance, and the Citations.

Opinions Based on my review of the materials available and my investigations to date, I have formed the following opinions to a reasonably degree of engineering certainty:

1. The NSCI rolling mill facility and equipment pre-date the adoption of the 1910.147 OSHA standard. 2. OSHA’s proposed solution of locking out the roll mill stands was not feasible at the time of the incident, could not be completed due to unauthorized access, could not be personally verified/tried out, increased the risk of harm to personnel, and would lead to a greater hazard to team members. 3. The alternative measures provided by NSCI for grinding the passes included: safe speed safeguarding, direct control of the jog speed, visual and verbal communications, skilled and trained team members, and documented procedures. These alternative measures:  were based on good engineering practices,  were within the reasonable application of the 1910.147 performance standard,  complied with the requirements of industry standard for lockout, and  were reasonably considered to provide effective protection. 4. Grinding the passes was a minor servicing / adjustment task performed during normal production operations and NSCI provided alternative measures which provided effective protection that met the requirements under the applicable minor servicing exception of 1910.147(a)(2)(ii). 5. Based on the “plain language” of the Scope of 1910.147(a)(1)(i), the standard does not apply to this incident and the citation is in error because there was no “unexpected energization or start-up of the machines or equipment, or release of stored energy.” 6. OSHA’s interpretation and application of 1910.147 is not consistent with the “plain language” of the standard. 7. Authorized NSCI employees did receive training in the recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the workplace, and the methods and means necessary for energy isolation for maintenance and servicing tasks.

The remainder of this report documents the basis for these opinions. I may revise or change these opinions as more information becomes known through discovery. 1 design safety engineering, inc.

BACKGROUND I am a professional engineer with licenses in three states. I have mechanical engineering degrees from the Massachusetts Institute of Technology and the University of Michigan. I have been working as an engineer for over 25 years. I am the chair of two safety standards addressing machinery safety: ANSI B11.0 (the U.S. standard) and ISO 12100 (the international standard). I am also a member of several other national and international safety standards committees that work to develop and write machinery safety standards. In addition, I regularly consult with machinery manufacturers and users on machinery safety and the risk assessment process. I design, specify and work with and use machine guarding and lockout/tagout procedures as risk reduction measures very regularly in my work with clients. A more detailed description of my experiences relevant to this matter appears in Annex A.

INVESTIGATION

Materials Reviewed I have reviewed the OSHA citations, OSHA reference materials, and litigation cases related to contesting OSHA citations on machine guarding and lockout/tagout. I have reviewed the parties’ pleadings in discovery. I have visited the NSCI roll mill on three occasions: 12 April 2012, 30 July 2012 and 13 June 2013. I viewed the operations, made certain measurements, and had discussions with team members. I have spoken with Mr. Garcia, Mr. Steve Cordova (rolling mill supervisor), Mr. Luis Lange (safety coordinator), and Mr. Dan Needham (general manager), and other NSCI team members about the incident & NSCOI OPS. I have also reviewed applicable industry standards and other pertinent information as included in my File Contents. My entire file will be produced at deposition or trial.

Understanding of the Incident I understand that a NSCI team member, Mr. Rene Garcia, had his forearm caught in a roll mill while he was grinding to prepare the roll surface for forming steel bars. The incident occurred at about 7:30am on 24 January 2012 at the facility located at 35 Toelles Rd, Wallingford Center, CT 06492. My understanding of this incident is based on the OSHA Compliance Officer’s investigative file and on my personal investigations into this incident as detailed in this report. At the time of the incident I understand that NSCI had submitted a VPP application.

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Photos of the rolling mill

Roll mill stand. Steel moves left to right and enters bull nose at center of photo.

Roll mill in action. Steel enters bullnose and is shaped on the pass at the far right of the roll. Water is used to cool the rolls, but also creates rust on passes not currently in use.

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Roll mill stand in use.

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Pass roughed/ground on left and ready for change. Pass on right of similar color has been used. Other passes show rust buildup.

Intermediate roll mill stands.

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View of pulpit from roll mill floor near stands. Line of sight viewing.

View of rougher roll mill stands from pulpit. Steel moves left to right. Reheat furnace shown in back, center, left of photo.

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Intermediate roll mill stands.

View of intermediate roll mill stands from the pulpit.

Subsequent changes Following this incident I understand NSCI, conducted an investigation into the matter and examined ways to improve their processes to prevent any reoccurrence of this incident. As a result, the company made the following changes to its operations after the incident:

 Modified the electrical controls to enable energy isolation of the roll mill stands at the pulpit  Installed new guards on the infeed/entry and outfeed/delivery sides of each roll mill stand  Installed a trapped key control that isolates the energy to the roll mill stands when removed  Installed a group lockout box for the trapped key on the roll mill floor  Revised lockout procedures for the trapped key and group lockout capability  Trained team members on the trapped key energy isolation and group lockout procedures  Now grinds the passes only under lockout conditions  Developed additional administrative controls and procedures to minimize the potential for a team member to enter between the mill stands when harm could occur

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Review of Alleged Violations of OSHA standards The alleged citations are as follows:

ITEM #1 - Serious Inspection Number 281076  29 CFR 1910.147 (c)(4)(i): Procedures were not developed, documented and utilized for the control of potentially hazardous energy when employees were engaged in activities covered by this section.  Roll Mill Area: The employer did not establish and implement step-by-step hazardous energy control lockout/tagout procedures in the site and machine specific as (but not limited to) the roller/passes contained within the roll stands.

ITEM #2 – Serious  29 CFR 1910.147(c)(7)(i)(A): Authorized employee(s) did not receive training in the recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the workplace, and the methods and means necessary for energy isolation.  Roll Mill Area: Each authorized employee did not receive training in the recognition of hazardous energy sources, the type and magnitude of the energy and the methods and means necessary to isolate and de-energize the roll mill and roll stands during the grinding work on the roller/passes during the changeover process.

The actual text from applicable portions of 1910.147 used in my analysis appear below:

Application. 1910.147(a)(2)(i) This standard applies to the control of energy during servicing and/or maintenance of machines and equipment. 1910.147(a)(2)(ii) Normal production operations are not covered by this standard (See Subpart O of this Part). Servicing and/or maintenance which takes place during normal production operations is covered by this standard only if: 1910.147(a)(2)(ii)(A) An employee is required to remove or bypass a guard or other safety device; or 1910.147(a)(2)(ii)(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.

Note: Exception to paragraph (a)(2)(ii): Minor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations, are not covered by this standard if they are routine, repetitive, and integral to the use of the equipment for production, provided that the work is performed using alternative measures which provide effective protection (See Subpart O of this Part). …

1910.147(c)(4) Energy control procedure. 1910.147(c)(4)(i) Procedures shall be developed, documented and utilized for the control of potentially hazardous energy when employees are engaged in the activities covered by this section.

Note: Exception: The employer need not document the required procedure for a particular machine or equipment, when all of the following elements exist: (1) The machine or equipment has no potential for stored or residual energy or reaccumulation of stored energy after shut down which could endanger employees; (2) the machine or equipment has a single energy source which can be readily identified and isolated; (3) the isolation and locking out of that energy source will completely deenergize and deactivate the machine or equipment; (4) the machine or equipment is isolated from that energy source 8 design safety engineering, inc.

and locked out during servicing or maintenance; (5) a single lockout device will achieve a locked-out condition; (6) the lockout device is under the exclusive control of the authorized employee performing the servicing or maintenance; (7) the servicing or maintenance does not create hazards for other employees; and (8) the employer, in utilizing this exception, has had no accidents involving the unexpected activation or reenergization of the machine or equipment during servicing or maintenance. …

1910.147(c)(7) Training and communication. 1910.147(c)(7)(i) The employer shall provide training to ensure that the purpose and function of the energy control program are understood by employees and that the knowledge and skills required for the safe application, usage, and removal of the energy controls are acquired by employees. The training shall include the following: 1910.147(c)(7)(i)(A) Each authorized employee shall receive training in the recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the workplace, and the methods and means necessary for energy isolation and control.

ANALYSIS My analysis of this incident has comprised the following areas: I. Applicability to this facility, II. Greater hazard, III. Alternative measures before the incident, IV. Plain language V. Minor servicing / adjustment, VI. Awareness of compliance, and VII. The Citations

I. Applicability of 1910.147 to this facility

A summary of the timeline of key events pertinent to my analysis is shown below.

Event Timeline Year ANSI Z244.1 standard approved 1982 Connecticut Steel mill produces welded 1984 reinforcement Wire rod mill production starts 1988 Wire rod production continues without major 1988 – 2012 changes OSHA 1910.147 standard becomes effective 1989 Lockout capability required for equipment installed 1990 after this date per OSHA 1910.147 ANSI Z244.1 revised 2003 Nucor Steel purchases the Connecticut mill 1 May 2006 ANSI Z244.1 reapproved (unchanged) 2008 Rene Garcia incident 24 January 2012

Work on the ANSI Z244.1 standard began in the late 1970s with the standard being approved in 1982. The initial work on the OSHA standard was based on the existing ANSI industry consensus safety 9 design safety engineering, inc.

standard. The OSHA 1910.147 standard used much of the ANSI standard as a basis for the requirements. OSHA deviated from the requirements of Z244.1 in several areas for reasons of its own choosing.

I understand that Connecticut Steel began manufactured steel reinforcing bars using Mesta Machinery roll mill stands in 1984. The Mesta roll mills were originally manufactured in the 1940-1950 time frame. I understand that this mill was converted to manufacturing steel wire in 1988. I understand that this mill has produced the same steel wire product using these Mesta stands since that time.

In 1989-1990, the 1910.147 OSHA safety standard did not include any obligation to retrofit existing facilities, machinery or equipment with local disconnect or lockout capability to comply with the new standard.

OSHA states in 1910.147 (c)(2)(iii):

After January 2, 1990, whenever replacement or major repair, renovation or modification of a machine or equipment is performed, and whenever new machines or equipment are installed, energy isolating devices for such machine or equipment shall be designed to accept a lockout device.

The standard did require that new facilities, machinery or equipment comply with 1910.147. It also required that any major modifications to existing facilities and equipment would result in the facilities, machinery or equipment to be able to be locked out in compliance with 1910.147.

The facility, machinery, operations and equipment of this roll mill at NSCI pre-date the adoption of the 29 CFR 1910.147 OSHA standard.

As a result, NSCI was under no obligation to retrofit the facility, machinery, equipment or operations to comply with the 1910.147 standard until a major modification was undertaken. No major modification occurred to the roll mill stands. Thus the roll mill stands did not have to have local disconnects.

Conclusions concerning the Applicability to this facility 1. The facility, machinery, operations and equipment of this roll mill at NSCI pre-date the adoption of the 29 CFR 1910.147 OSHA standard. 2. As a result, NSCI was under no obligation to retrofit the machinery with local disconnects to comply with the 1910.147 standard.

II. Greater hazard

In the citation, OSHA alleges that the roll mill stand should have been locked out prior to the work being performed, and that training should have been provided on the specific procedures to lockout the equipment.

As the roll mill was originally configured in 1988, the primary disconnects to the roll mill stands were located in the Motor Control Room (MCR). My analysis of OSHA’s proposed lockout method focuses on: Authorized access, Feasibility, Possibility of verification/tryout, and Risk of harm.

Authorized access

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The MCR is a restricted area. Only trained and authorized maintenance and/or electrical personnel are permitted within the MCR. Only trained and authorized maintenance and/or electrical personnel have a key to the locked MCR. These rules are strictly enforced for the safety of team members. During my visits to the facility I was permitted to step inside the doorway of the MCR to view the area, but was not permitted to walk any further beyond the designated space just inside the door. Even with the escort of a trained electrician team member, I was not permitted any further because I was neither trained nor qualified to enter the area.

Even if the roll mill operators or supervisors were to walk to the MCR, they could not personally lockout the equipment because they are neither authorized, trained nor have a key to enter the MCR.

Feasibility The MCR is located directly east of the roll mill stands. There is no direct east-west access due to the layout of the machinery and equipment. To access the disconnects requires walking south, then east then north over a distance of approximately 311 feet (one way). To lockout the equipment in this configuration would require the following steps:

Steps Necessary to Lockout Roll Mill Stands as of January 2012 per OSHA Proposed Method

1. Complete last run of steel / clear steel from stands 2. Mill stand team member closes valve(s) on water line(s). 3. Mill stand team members group lock out on water line(s). 4. Mill stand team member closes valve(s) on hydraulic lines. 5. Mill stand team members group lock out on hydraulic line(s). 6. Contact electrician over radio 7. Electrician stop or finish current task. 8. Electrician walks to Motor Control Room from where he is. 9. Electrician to don arc flash PPE 10. Electrician walks approximately 75 feet to electrical disconnect 11. Electrician stands to side, looks away, and throws disconnect 12. Electrician locks out electrical energy source. 13. Mill stand team members unable to group lock out electrical energy source because they are not authorized to access the Motor Control Room. 14. STOP! Unable to complete task as unable to execute lockout.

Under a classic lockout strategy, the process could only continue as follows: 15. Electrician walks approximately 311 ft to roll mill stand pulpit 16. Electrician places his key to the lock at the electrical disconnect in a group lock box 17. Mill stand personnel apply their personal locks to the group lock box

Only at this point could grinding occur on the exposed portions of the roll mill. Once the grinding had been completed the above process would be reversed, the roll mill energized, the roll mill jogged one or several attempts to expose the next portion of the roll mill, and then the lockout process repeated in full. To fully grind the passes on the roll mill stand requires 3 – 5 repetitions of the above process.

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Verification and tryout of lockout is an important part of the control of hazardous energy. OSHA requires verification or tryout as part of lockout procedures. In the procedures outlined above under the OSHA proposed approach, no roll mill team member could personally verify or tryout that the lockout had been performed since they cannot access the MCR.

Risk of harm The disconnects in the MCR are of an older design that requires opening the electrical panel to access the disconnect switch. As a result, arc flash procedures and appropriate arc flash PPE are required to open the panel.

In addition, the disconnects are not designed or intended for frequent On/Off cycling. They are intended for use during maintenance work when the entire line is down. The disconnects are not designed or intended for cycling as would occur during minor tool changes such as changing the passes on the roll mill stands (discussed in more detail in Section V). If the disconnects were to be used with this increased frequency, the additional wear and tear greatly increases the potential for an arc flash or electrical failure.

Arc flash constitutes a very significant hazard and risk of harm to personnel. The energy released in an arc flash event can be dramatic and cause serious injuries. One example is shown below.

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Examples of arc flash events demonstrating the significance of the hazard are included in Annex B to this report.

Conclusions concerning a greater hazard 3. At the time of the incident the roll mill stands were only capable of being locked out at the primary electrical disconnects located in the locked motor control room (MCR) accessible only by trained and qualified electricians approximately 311 ft walking distance from the roll mill stands. 4. Roll mill stand operators and supervisors are not authorized to access the MCR, thus they could not lockout the roll mill stands. 5. At the time of the incident, the rolling mill configuration made locking out the roll mill stands infeasible. 6. Under OSHA’s proposed solution of lockout, the roll mill stand operators and supervisors could not personally verify/tryout that the lockout had been achieved, an important part of the lockout process. 7. The primary electrical disconnects are not designed or intended for frequent cycling and if used accordingly would greatly increase the risk of arc flash hazards to the electricians.

III. Alternative measures before the incident

Risk reduction measures provided Based on my investigations, NSCI provided risk reduction measures and safety equivalency to protect team members from harm for the task of grinding the passes including:

 safe speed safeguarding,  safe-holding safeguarding,  direct control of the jog speed via a hold to run switch in the pulpit,  visual and verbal (radio) communications with pulpit operator 13 design safety engineering, inc.

 skilled and trained team members, and  documented procedures.

According to NSCI personnel, these risk reduction measures had been used with success and without incident since steel wire was first manufactured in 1988 through January 2012.

Speed Analysis During the grinding task the roll mill is briefly jogged at slow speed to permit grinding. A test was conducted of the roll speed at full jog for one minute as shown below. The roll rotated 16 times during the test. The diameters of a new and scrap roll are also noted below.

Attorney – Client privilege (NSCT)

Safe speed test (Jog)

Permanent mark

rpm mark

Continuous Safe test mode 1 minute: 16 rpm # 8 Roll diameter: New size = 14 5/8” Mid-range size approximately 14 9/64” Scrap size(final use) = 13 5/16”

The velocity of the roll at its outer edge can be calculated by dividing the distance traveled by the time. The distance is simply the circumference of the roll times the number of rotations. The time is 60 seconds (1 minute).

Velocity = [ (# rotations) x (π x diameter) ] / 60 seconds

The full jog speed velocities are thus:

12.25 inches/second (new size roll, full jog speed) 11.15 inches/second (scrap size roll, full jog speed)

The average full jog speed velocity would then be about 11.7 inches/second.

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A video clip of the roll being jogged shows that the roll makes one revolution in approximately 3.9 - 4.0 seconds. The roll also comes to a stop within about 1 ¼ rotation. Using the same calculation method as above, the velocity of the roll in this test comes out to be 10.97 inches/second.

However, the grinding task does not occur at full jog speed. Grinding occurs with the jog button depressed and released. Once the jog button is released the roll loses velocity and coasts to a stop. Grinding on the roll would decrease the velocity because it provides resistance to free rolling.

The exact speed of the roll mill at the time of the incident is unknown. According to the procedures described by the team members and documents, the jog button is momentarily pressed and released. Thus the speed of the roll can be expected to be less than the maximum jog full speed.

Safe speed / Jog / Slow speed The use of a reduced speed, jog or slow speed as a risk reduction measure to enable certain tasks to be performed is a recognized and established risk reduction measure in several industries and industry standards including, but not limited to, the following:

 ANSI B11.0 (2010) Safety of machinery  ANSI/PMMI B155.1 (2011) Safety requirements for packaging machinery, clause 7.2.6.1  ANSI B11.19 (2010) Performance Criteria for Safeguarding  ANSI B11.22-2002 (R2007), Clause 6.21.1.3 – Turning Centers & (C)NC Turning Machines  ANSI B11.23-2002 (R2007), Clause 6.21.1.3 – Machining Centers & (C)NC Milling, Drilling & Boring Machines  ANSI B11.3(2012), Clause 6.3.4.7 – Press Brakes  CSA Z142-10, Clause 9.6.3(a) – Press Brakes  EN 12622:2009, Clause 5.1.1.6 – Press Brakes  ANSI B65.1-2011, Clause 6.6, 6.3.2 – Printing  ANSI B65/NAPIM 177.1 (R2011) - Three roll printing ink mills  ISO 12643-1:2009, Clause 6.6, 6.3.2 – Printing  ANSI/RIA R15.06-1999 (R2009), Clauses 3.41 & 4.9 – Industrial Robots  CSA Z434-03, Clauses 3.2 & 4.9 – Industrial Robots  ISO 10218-1:2010, Clauses 3.23 & 5.6.2 – Industrial Robots  ISO 10218-2:2010, Clause 5.6.4.2 – Industrial Robots  ANSI B151.1 (2007) Safety requirements for horizontal injection molding machines, clauses 7.3.5.3, 9.3.7  ANSI B151.20 (2013) Safety requirements for plastic sheet production machinery, clause 7.3.1.13  ANSI B177.1 (2007 R2011) Safety standard – Three-roll printing ink mills

Sample excerpts from some of these standards are included in Annex C to this report.

One example of safe speed safeguarding is found in ANSI/RIA R15.06 (ISO 10218) where reduced speed is defined as follows:

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In some industries, personnel are expected to contact rotating rolls to perform certain tasks. In the plastics industry, SPI provides a “SPI Recommended Procedure - Polish Roll Cleaning Procedure” in Annex A3. Steps 9 and 11 of this procedure include the following:

9. Begin slowly rotating the rolls … 11. The operator then wipes the cleaning cloth across the roll face with appropriate amount of pressure to clean the roll. Several passes may be required to clean the roll to the desired level. The rotation speed of the rolls may need to be adjusted to optimize the cleaning process.

OSHA and slow / reduced speed Based on my analysis, OSHA has recognized safe speed / reduced speed as an effective risk reduction measure. OSHA has included slow speed in some of its documents and guidance to employers. Example documents include:

 29 CFR 1910.179 – Overhead and gantry cranes, (specifically (n)(4)(i))  OSHA Technical Manual (OTM), Section IV: Chapter 4 – Industrial Robots and Robot System Safety  Freeing Inoperable Semi-Automatic Twist Locks (SATLs) in Longshoring – OSHA Fact Sheet 3583 https://www.osha.gov/Publications/OSHA_FS-3583.pdf  Powered Industrial Trucks (Forklift) – eTools from www.osha.gov  Safety Standards for Steel Erection – Final Rules – Fed Register # 66:53175325

The above information is available online at:  https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id= 9830  https://www.osha.gov/dts/osta/otm/otm_iv/otm_iv_4.html  https://www.osha.gov/SLTC/etools/pit/operations/maneuvering.html  https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTE R&p_id=16290

Safe speed comparison Different industries consider different speeds as “reduced speed.” The speed of what would be considered normal operating speed is directly related to what is considered reduced speed for an application – with a higher operating speed correlating to a higher reduced speed.

Sample values for reduced speed include:

Table 1 Reduced speeds referenced in industry consensus standards

ANSI B11.22 (2002, R2007) – Turning Maximum rate of 2 m/min (6.5 ft/min) or maximum Centers & (C)NC Turning Machines increment of 6 mm (0.25 in) at full feed rate 16 design safety engineering, inc.

ANSI B11.23 (2002, R2007) – Machining Maximum rate of 2 m/min (6.5 ft/min) or maximum Centers & (C)NC Milling, Drilling & increment of 6 mm (0.25 in) at full feed rate Boring Machines ANSI B11.3 (2012) – Press Brakes 10 mm/sec (0.39 in/sec) ANSI B65/NAPIM 177.1 (2007) – Printing 10% of full speed (wash-up mode)

Lowest available speed (cleaning procedure) ISO 12643-1: 2009 – Printing a) With a displacement limited to a maximum of 25 mm or with a maximum operating (surface) speed of 1 m/min; or With displacement limited to a maximum of 75 mm or with a maximum operating speed of 5 m/min where the measures defined in a) would reduce the ability of the machine to perform its function and where there would be no substantial increase in hazard ANSI/RIA R 15.06 (1999, R2009) – b) ≤ 250mm/s Industrial Robots CSA Z434-03 – Industrial Robots ≤ 250mm/s ISO 10218-1: 2010 – Industrial Robots ≤ 250mm/s ISO 10218-2: 2010 – Industrial Robots ≤ 250mm/s ANSI B151.1 (2007) Horizontal injection 13 mm/sec (0.5 in/sec) molding machines ANSI B151.20 (2013) – Safety If movement of the roll is necessary during start- Requirements for Plastic Sheet Production up/thread-up, rotation and closing of the nip shall be Machinery permitted with the guard out of position, provided that a local hold-to-maintain-close control and a speed of 10 fpm or less are used. ANSI B177.1 (2007, R2011) – Safety 8.5.2 – less than 10% of full speed Standard – Three-roll Printing Ink Mills

For comparison purposes, the automatic closure of windows in passenger cars occurs at about 4 - 6 inches/second. This is a consumer application where children with small fingers could potentially be pinched thus lower closure speeds would be expected.

Safe-holding safeguarding ANSI B11.19 (2000) Performance Criteria for Safeguarding, defines the following:

3.62 safe-holding (workpiece) safeguarding method: A method of safeguarding in which the operator’s hands are maintained away from the hazardous portion of the machine cycle by requiring that both hands are used to hold or support the workpiece, or by requiring that one hand holds the workpiece while the other hand operates the machine.

During the grinding task, the team member must hold the grinder with both hands. One hand is not sufficient to hold and operate the grinder, and to apply sufficient force to effectively grind the roll. At the time of the incident Mr. Garcia had both hands on the grinder. NSCI employed safe-holding safeguarding for grinding the rolls.

Past experience The OSHA Compliance Officer (CO) Mr. Steve Biasi noted certain data concerning roll stand grinding during his interviews with team members (see the CO’s investigative file produced to 17 design safety engineering, inc.

employer including the Safety Narrative from the OSHA Compliance Officer). When the data are analyzed a total hours grinding can be calculated.

# roll rolls time to mill to grind stand stand grind/ (hours/ grinds/ weeks in hours/ # stand stand) week production/ year year 1 2 2 1 48 96 2 2 2 1 48 96 3 2 2 1 48 96 4 2 2 1 48 96 5 1 2 1 48 96 6 2 2 2 48 192 7 1 2 2 48 192 8 2 2 2 48 192 9 1 2 2 48 192 10 2 2 2 48 192 11 1 2 2 48 192 12 1 1.5 5 48 360 13 1 1.5 5 48 360 14 1 1.5 5 48 360 15 1 1.5 5 48 360

Subtotal 3,072 hours grinding/year

1988- # years in 2012 production 23.25

Total hours hours grinding since grinding 71,424 1988

Based on the data obtained by the Compliance Officer and my analysis, the roll mill grinding task would have been performed approximately 71,424 hours over the 23.25 years between 1988 and January 2012.

In discussing alternative measures, OSHA recognizes that past operating experience is a factor to be considered as noted in the OSHA Directive CPL 02-00-147:

NOTE: In order for the control measure to be considered an effective and properly applied technique, the selection and use of alternative method(s) must be based on generally accepted good engineering practices (e.g., applicable manufacturers' design, maintenance, inspection, testing and operation recommendations; prior operating experience; reliability data). p2-26 (highlighting added)

I also understand that the Courts have confirmed that past operating experience is a factor to be considered in evaluating the safety or compliance of systems. See Secretary of Labor v. Granite City

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Terminals Corporation; Secretary of Labor v. Inland Steel Company, United Steelworkers of America.

Performance standard As part of this analysis, dse researched the history of the 1910.147 standard and several legal decisions related to the standard. A summary of the cases reviewed and the significance thereof are attached in Annex D.

Based on my analysis, in drafting the standard for 1910.147 OSHA wrote a “performance standard” to explicitly provide employers with flexibility in how they met the lockout/tagout requirements. The OSHA Directive CPL-02-00-147 includes the following:

To a considerable extent, the OSHA Lockout/Tagout Standard is a performance standard, which establishes general employer obligations, but leaves employers latitude to develop and implement specific methods for meeting those obligations. Where this is the case, the detailed discussion in the ANSI Z244.1-2003 Standard often can assist employers in developing specific methods to meet their obligations under the OSHA Lockout/Tagout Standard. P2-23 (highlighting added)

…

Energy Control Program. The 29 CFR 1910.147 standard requires an employer to develop an energy control program that is tailored to the workplace and will protect employees performing servicing and maintenance tasks from the release of hazardous energy. The performance-oriented language allows employers flexibility to design and implement the required energy control procedures, employee training requirements, and inspection requirements to fit the individual conditions present in their workplaces. The selection of the specific method of control must reflect a thorough evaluation of the extent of exposure to the hazard; the risk of injury associated with the particular machine/equipment; and the feasibility of applying a particular method of control. P3-23 (highlighting added)

A performance standard, by definition, allows for alternate methods of achieving the stated performance requirement. In theory, alternate means of control are allowed as an exception to locking/tagging out equipment. This means, by definition, that personnel may be exposed to hazards that would not occur if a lockout/tagout approach were used.

Based on my analysis, OSHA seems to have interpreted the “performance standard” so narrowly as to provide employers essentially no flexibility in meeting the requirements. OSHA rarely if ever accepts an employer’s alternate means of control as meeting the “equivalent protection” requirement because it does not seem to accept that personnel may be exposed to hazards that would not occur under a lockout/tagout approach. For examples see OSHA’s Field Service Manual, Chapter 13 OSHA ADM_04_00_001, and OSHA Directive CPL 02-00-147. Thus in practice the only method to provide equivalent protection to lockout/tagout is to lockout/tagout.

OSHA’s inflexible interpretation is in essence a “specification standard” which directly conflicts with the explicit intent of the requirements.

Compliance with ANSI Z244.1

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In my consulting work with clients I use industry consensus standards and OSHA standards to help achieve acceptable risk levels in the design and use of machinery and equipment. I regularly advise clients to seek and use the most current information available from any reliable source.

As noted in the Event Timeline in this report, the 1910.147 standard dates to 1989. The OSHA standard is now 24 years old. It is based on knowledge and technology that was current at least 24 years ago.

In 2008 ANSI/ASSE reaffirmed the Z244.1 standard as a current industry consensus standard. The Z244.1 standard contains the most current information available on lockout and the control of hazardous energy.

My analysis of Z244.1 as related to this incident, reveals that:  The standard applies to this task based on the Scope of the standard (Clause 1.1)  The grinding task was routine, repetitive and integral to the production process. (Clause 1.2) (discussed further in section V of this report)  Alternate measures were provided to locking out the roll mill stand (Clause 5.4)  Those measures provided an effective level of protection based on past experiences (Clauses 1.2 and 5.4 (which specifically indicates that alternate methods apply for tool changes))  Applying the flow chart in ANSI Z244.1 Figure 1 Decision matrix for safeguarding hazardous energy leads to conclusion that the grinding task can be performed because compliance has been achieved. (Clause 5.3.1, Figure 1), (highlighting added)

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Based on my analysis, NSCI complied with the requirements of ANSI Z244.1, the most current lockout/tagout safety standard available.

Conclusions concerning Alternative measures before the incident 8. NSCI provided risk reduction measures for this grinding task in the form of safe speed safeguarding, direct control of the jog speed, visual and verbal communications, skilled and trained team members, and documented procedures. 9. Based on my analysis, the speed of the roll mill at the time of the incident was less than 11.7 inches per second. 10. Many industry consensus safety standards include slow/safe/reduced speed as a recognized risk reduction measure. 11. OSHA also includes slow/safe/reduced speed as a recognized risk reduction measure in documents it has published. 12. Based on my analyses, the jog speed of the roll mill is consistent with various industry safety standards for safe speed. 13. The collection of risk reduction measures implemented by NSCI had been used with success and without incident since the roll mill stands were commissioned for this wire making operation in 1988 (23.25 years of operations).

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14. In writing 1910.147 as a performance standard, alternate means of control are allowed instead of locking/tagging out equipment. By definition, this means that personnel may be exposed to some hazards that would not occur if a lockout/tagout approach were used. 15. The alternate measures provided by NSCI complied with the requirements of ANSI Z244.1.

IV. Plain language

In my experiences in industrial operations, there are a variety of hazards to which workers may be exposed in the performance of their tasks. Examples of potential hazards that exist in a steel rolling mill include:  Thermal burns from hot steel  Trip and fall  Moving equipment at floor level  Moving equipment overhead  Falling objects during crane movement/lifting  Electrical hazards from energized equipment  Unexpected start or energization of equipment not moving or not known to be energized

To address hazards in industrial operations, I use both OSHA and industry consensus standards to reduce risks to personnel. My consultations with clients are based on my reading, understanding, training and experience with the requirements as written in the standards.

Readers of safety standards must be able to understand the requirements based on the “plain language” used in order to properly comply with the requirements. If the requirements have different meaning than what is written, then readers have little ability to comply with the standard.

In terms of OSHA standards, I understand that the Courts have applied a similar logic. More specifically, I understand that the Courts have determined that OSHA standards must be interpreted based on the “plain language” of the standard including but not limited to: Secretary of Labor vs Dayton Tire, Bridgestone/Firestone, Secretary of Labor, v. Quebecor World, Secretary of Labor v. General Motors Corporation, Delco Chassis Division; and Occupational Safety and Health Review Commission.). See also Annex D of this report.

In particular, the 10th Circuit Court of Appeals ruled that:

Kennecott was not required to assume the burden of guessing what the Secretary intended plain and unambiguous words employed in the safety regulations to mean… A regulation cannot be construed to mean what an agency intended but did not adequately express. United States v. Ray, 488 F.2d 15 (10th Cir. 1973); Diamond Roofing Co. v. OSAHRC, 528 F.2d 645 (5th Cir. 1976).

The OSHRC has determined that if the potential hazard is not unexpected to the employee, then 1910.147 does not apply.

"Neither Ney nor McMahan were subject to the unexpected energization of the machine."... "The Secretary has failed to establish that TTS violated the terms of the standard by having its employees service a machine where its unexpected energization could result in injury to them." Secretary of Labor v. Townsend Tree Services Corp. OSHRC Docket No. 04-1157

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1910.147 The “plain language” of the standard appears in the Scope, Application and Purpose as follows (highlighting emphasis added):

1910.147(a) Scope, application, and purpose—

1910.147(a)(1) Scope

1910.147(a)(1)(i) This standard covers the servicing and maintenance of machines and equipment in which the unexpected energization or start up of the machines or equipment, or release of stored energy, could harm employees. This standard establishes minimum performance requirements for the control of such hazardous energy

Application. 1910.147(a)(2)(i) This standard applies to the control of energy during servicing and/or maintenance of machines and equipment. 1910.147(a)(2)(ii) Normal production operations are not covered by this standard (See Subpart O of this Part). Servicing and/or maintenance which takes place during normal production operations is covered by this standard only if: 1910.147(a)(2)(ii)(A) An employee is required to remove or bypass a guard or other safety device; or 1910.147(a)(2)(ii)(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.

Note: Exception to paragraph (a)(2)(ii): Minor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations, are not covered by this standard if they are routine, repetitive, and integral to the use of the equipment for production, provided that the work is performed using alternative measures which provide effective protection (See Subpart O of this Part).

1910.147(a)(3) Purpose. 1910.147(a)(3)(i) This section requires employers to establish a program and utilize procedures for affixing appropriate lockout devices or tagout devices to energy isolating devices, and to otherwise disable machines or equipment to prevent unexpected energization, start up or release of stored energy in order to prevent injury to employees.

Based on my analysis, the “plain language” of 1910.147 is written specifically to address only a subset of potential hazards associated with service or maintenance - the hazard of “unexpected energization, start up or release of stored energy.” From the “plain language” it does not apply to all or any other hazard(s).

In my experience, risk reduction measures should be developed for the particular hazard under consideration. Attempting to apply a risk reduction measure suitable for one hazard to another hazard usually leads to problems. For example, requiring lockout of the energy source in this matter would lead to a greater hazard of arc flash as previously discussed.

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Rule Making Process I understand that under the OSH Act Congress established a rule making process by which OSHA is able to revise or amend its safety standards. I also understand that to revise or amend a standard, OSHA is required to follow the rule making process. Congress specifically restricted OSHA’s ability to modify its standards without following this due process. To my knowledge OSHA has not opened the requirements of 1910.147 to the rule making process to revise or amend the standard.

Directive CPL 02-00-147 OSHA Directive CPL 02-00-147 OSHA Instructions – The control of hazardous energy – Enforcement policy and inspection procedures is written to OSHA’s Compliance Officers. In the Directive OSHA appears to explicitly instruct Compliance Officers to apply the standard beyond the requirements of the “plain language.” In the OSHA Directive CPL 02-00-147, OSHA states the following (highlighting emphasis added):

D. The standard contains definitive criteria for establishing an effective energy control program for the lockout or tagout of energy isolating devices. An energy control program includes energy control procedures, employee training, and periodic inspections to ensure that hazardous energy sources are isolated and rendered safe before and while any employee performs any servicing or maintenance on any machinery or piece of equipment. p1-4

dse Comment: (broadens application beyond unexpected startup or release) …

Compliance Officer Safety. OSHA prohibits Compliance Safety and Health Officers (CSHOs) from being exposed to hazards associated with the release of hazardous energy. P2-1

dse Comment: (omits mention of unexpected release) …

The three other ANSI B11.19 safeguarding methods (awareness devices, safeguarding (work) methods, safe work procedures), included in the 2003 standard, provide a lesser degree of employee protection and are considered to be secondary control measures during normal production operations. These methods, by design, do not prevent employees from placing or having any part of their bodies in the hazardous machine areas. Additionally, safeguarding devices, such as probe detection devices and safety edge devices (aka bump switches) provide a lesser degree of (secondary) protection as they do not, in all cases, eliminate employee exposure to injury from the machine hazardous energy. P2-26

dse Comment: (broadens application beyond unexpected startup or release)

The OSHA Directive CPL 02-00-147 also includes the following explanation for the Compliance Officers (highlighting added):

The standard’s scope, application, and purpose paragraphs [29 CFR §1910.147(a)] address a fundamental presumption underlying the standard -- that machines and equipment will be shutdown and disabled in accordance with the applicable energy control procedure before employees begin servicing and maintenance activities. Although some have contended that the standard does not apply when an employee is aware of the continuing presence of hazardous energy, this assertion is completely at odds with the language, purpose, and spirit of the standard. Quite simply, the LOTO standard is violated when an employee is, or may be, exposed to hazardous energy that has not been isolated, even if the employee knows that the energy has not been controlled and continues to constitute a hazard. Just as an employer cannot rely on an employee’s recognition of the hazard to avoid an obligation to guard machinery during normal operations, an employer cannot rely on an employee’s recognition of hazardous energy to avoid an obligation to shut down/disable the machine and isolate hazardous energy when employees service or maintain machinery. In both cases, reliance solely on employee awareness or knowledge of the presence of hazardous energy provides inadequate 24 design safety engineering, inc.

protection. Under no circumstances is any part of an employee’s body ever permitted to be exposed within a hazardous area, such as the point-of-operation or in-going nip point area, during servicing and/or maintenance activities while the machine is running or energized. Employers cannot evade their obligation under the LOTO standard by permitting or requiring employees to perform servicing and maintenance work on machines or equipment that are running or energized. See Burkes Mechanical, Inc., 21 BNA OSHC 2136, 2139 n.4 (Docket No. 04-0475, 2007) and General Motors Corp., CPCG Oklahoma City Plant (Docket Nos. 91-2834E and 91-2950). P3-1

dse Comment: (broadly expands scope, vaguely refers to the “spirit of the standard”) …

It is the control that each employee maintains over the hazardous energy through her personal LOTO device that prevents the unexpected energization or start-up of the machine on which she is working – i.e., the phrase unexpected energization reflects the perspective of authorized employees who control hazardous energy exposure through personal LOTO devices, and any re-energization or start-up is considered to be unexpected unless each authorized employee has authorized such re-energization and start-up by removing her personal LOTO device from the energy isolation device or equivalent energy control mechanism. Thus, the term unexpected refers to any energization or start-up that is not sanctioned (through the removal of personal LOTO devices) by each authorized employee engaged in the servicing/maintenance activity. P3-2 1

dse Comment: (expands scope and requirements) …

In addition, the GMC Delco decisions do not apply when an employer fails to turn the equipment off in the first place, and then claims that activation could not be unexpected because the employees knew the equipment was still operating. For example, in Secretary v. Burkes Mechanical, 21 BNA OSHC 2136, 2139 n.4 (Docket No. 04-0475, 2007), the Commission did not accept an employer's contention that the standard did not apply because the employees knew that the conveyor they were servicing was running. It explained that the standard specifically applies to servicing during normal production operations, and allowing the equipment to operate during servicing presented exactly the type of hazard the standard is intended to address. See Section II.B of this Chapter. P 3-3

dse Comment: (OSHA seems to not follow the Court decision, broadens the application well beyond the plain language requirements, and offers its own interpretation that is not found in the plain language)

Although these instructions may be well intended, they are completely inconsistent with the “plain language” requirements of the 1910.147 standard. The standard specifies the hazard of unexpected start or the release of stored energy. It does not address all “hazardous energy that has not been isolated.”

Runyan Letter In a letter to Mr. John Runyan (16 Sept 1992), OSHA details its interpretation of the requirements of 1910.147. Example excerpts include (Bold in original, highlighting emphasis added):

Generally speaking, "minor servicing" is considered to include those tasks involving operations which can be safely accomplished by employees and where extensive disassembly of equipment is not required…

dse Comment: (broadens application to involve level of disassembly) …

… lockout/tagout is not required, provided the employer uses alternative measures which enable an employee to perform minor servicing without being exposed to a hazard. Under no circumstances is an

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employee ever permitted to place any part of his or her body within a hazardous area, such as the point of operation, while the equipment is running or energized (and alternative measures have not been taken), or around power transmission apparatus.

dse Comment: (broadens application beyond unexpected startup or release) …

…During minor servicing, an employer is considered to have met the requirement for providing effective alternative protection by the use of special tools or techniques. Effective alternative protection may not include, by themselves, simple pushbuttons, selector switches, and other control circuit type devices which lack a control logic such as an interlocked arrangement which provides a single operator with exclusive control.

dse Comment: (extends to require special tools or techniques) …

…Servicing and/or maintenance as defined in 29 CFR 1910.147(b) must not be conducted when the components of the machine are moving.

dse Comment: (broadens requirement well beyond unexpected startup or release to include any motion) …

When more than one employee performs a particular servicing or maintenance operation on a machine or equipment, the servicing or maintenance generally is not considered minor in nature, and the machine or equipment must be locked out or tagged out in accordance with §1910.147.

dse Comment: (adds criteria of number of workers involved) …

Alternative effective protection means: 1. Servicing is conducted when the machine or equipment is stopped, and …

dse Comment: (adds criteria that equipment is stopped)

The above excerpts demonstrate that OSHA has extended the requirements well beyond what is written in the plain language requirements of 1910.147. Although this may be well intended to protect workers from harm, the interpretation extends well beyond the “plain language” of the standard as written.

Based on my analysis, OSHA has attempted to interpret the application of 1910.147 far more broadly than the “plain language” permits.

Instruction STD 01-05-019 Based on my analysis, OSHA has changed its position on the applicability of 1910.147 from years past. OSHA STD 01-05-019 -- STD 1-7.3 (now withdrawn) specifically states that:

The standard does not apply to servicing and maintenance when employees are not exposed to the unexpected release of hazardous energy… Generally... where the employee may be exposed to the UNEXPECTED energization of start-up of the equipment or release of hazardous energy, are covered by this standard. (emphasis in original)

In OSHA Instruction STD 01-05-019, OSHA knew about hazards other than unexpected start and the release of hazardous energy but did not include requirements for other hazards in 1910.147. To later interpret 1910.147 to apply to those other hazards conflicts with the “plain language of the standard.” 26 design safety engineering, inc.

The difference in OSHA’s past and current position is subtle but extremely significant. OSHA interpreted the standard in the past to be limited solely to the hazard stated in the “plain language” of the standard, which is consistent with the content and purpose of the ANSI Z244.1 standard on which it was originally based. Currently OSHA has expanded its interpretation to include any energy related hazard that could result in harm to employees. Under this broad interpretation, OSHA can and has engaged in enforcement activities and written citations for any energy related hazard that results in harm – which is a significant departure from the “plain language” of the 1910.147 requirements.

Letter from Director Fairfax On 5 October 1999, OSHA Director Richard Fairfax responded to a request from a Regional Administrator recommending that 1910.147 be revised due to the lack of clarity surrounding the “unexpected energization issue.” OSHA decided not to amend the standard at that time. One particular passage of the response is enlightening:

Under no circumstances is any part of an employee ever permitted to place any part of his or her body within a hazardous area, such as the point-of-operation or ingoing nip point area, while the equipment is running or energized (unless the employee is engaged in certain minor servicing activities performed during normal production operations and alternative measures which provide effective protection have been taken).

Our determination is not affected by the fact that the standard’s “scope, application and purpose” provision, 1910.147(a)(1), describes the standard as applying to “the servicing and maintenance of and machine and equipment of equipment [sic] in which the unexpected energization or startup up the machine or equipment, or the release of stored energy, could cause injury.” (bold emphasis in original, highlighting added)

In my experience working with both industry consensus and OSHA standards, the first step in any analysis is to determine if a particular standard applies to the machine, equipment or situation. To make this determination one turns to the scope, application and purpose of the standard. If the machine, equipment or situation falls within the scope, application and purpose of a standard, then the requirements of the standard apply. If they do not, then the standard does not apply.

I find Director Fairfax’s view on the limitations of the scope, purpose and application of 1910.147 disconcerting. Based on my analysis, the Courts require OSHA to enforce a standard based on its “plain language,” not as OSHA wishes the standard to read.

Application to this incident In Mr. Garcia’s incident, the roll mill was moving under a jog speed at the explicit request, direction and control of Mr. Garcia. Mr. Garcia authorized the motion to occur. Although his forearm being caught by the turning rolls was an unexpected occurrence, there was no unexpected energization or start up of the machinery or equipment, or release of stored energy.

In this matter, applying the requirements of 1910.147 to hazards other than the specific hazard of unexpected energization or start up as stated in the “plain language” of the standard would seem to stretch the requirements of 1910.147 beyond the plain language of the standard.

Based on my analysis, OSHA goes well beyond interpreting the standard. It is stretching and changing the meaning of the standard without following the required rule making process.

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Conclusions concerning the Plain language 16. Based on the “plain language” of the Scope of 1910.147(a)(1)(i), the standard applies only to the “unexpected energization or start-up of the machines or equipment, or release of stored energy.” 17. OSHA’s guidance and interpretation provided to its Compliance Officers differs from the “plain language” of the 1910.147 and ANSI Z244.1 and industry practices. 18. An employer reading the standard cannot know OSHA’s interpretation as conveyed only to OSHA personnel. 19. In the present matter, the roll mill stand did not unexpectedly energize or start up, or release stored energy. 20. As related to this incident, 1910.147 does not apply and the citation to 1910.147 is in error.

V. Minor servicing / adjustment

OSHA Definitions OSHA defines the following terms in 1910.147:

Normal production operations. The utilization of a machine or equipment to perform its intended production function.

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

Setting up. Any work performed to prepare a machine or equipment to perform its normal production operation. (italics in original, highlighting added)

A careful analysis of these definitions demonstrates that under OSHA’s interpretation, there are only two activities: 1) normal production operations and 2) servicing and maintenance. Although a separate definition is given for Setting up, setting up is included in the definition of servicing and maintenance. Note also that tool changes are included under the definition of servicing and maintenance.

OSHA has further interpreted “normal production operations” to apply only when the machine or equipment is actually making parts. Secretary of Labor v.Westvaco Corporation; CPL -2-00-147. Courts have applied OSHA’s narrow definition by concluding that if the machine was not making parts, it was not in normal production operations:

Moreover, the facts support the conclusion that the activities… do not fall within the exception to the standard for minor servicing performed during normal operations for the simple reason that the … machines are not engaged in producing anything while undergoing a size change. Secretary of Labor, v. Dayton Tire, Bridgestone/Firestone

However, no Court has yet adjudicated whether OSHA’s narrow definition is correct or appropriate.

Industry experiences, the minor servicing / adjustment exception, and the “plain language” of the requirements suggest that the narrow definition is incorrect.

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In the Runyan letter of Sept 1992, OSHA highlights the following:

…Servicing and/or maintenance as defined in 29 CFR 1910.147(b) must not be conducted when the components of the machine are moving. (emphasis in original)

Note that the above bolded requirement cannot be met in industry. In my experiences I have found that there are certain servicing and maintenance tasks that must be performed with the equipment moving such as but not limited to: belt tracking and alignment, timing belt adjustments, vibration and noise analyses, troubleshooting machinery (generally), and others. These occur in nearly every industry I have worked with and with many machines and systems. If this interpretation were to be strictly enforced, all of industry would shut down.

Minor Servicing / Adjustment Exception Tasks that occur during normal production operations may fall under the minor servicing exception if they are “are routine, repetitive, and integral to the use of the equipment for production” as per 1910.147(a)(2)(ii)(B) (quoted earlier in this report).

The use of the terms “routine, repetitive and integral to… production” complicates the “plain language” meaning because:

 Any task for which there are documented procedures and occurs on a production day is routine, repetitive and integral to the use of the equipment for production and falls within the exception.  Any planned activity that is performed more than twice that in any way supports production is can be defined as routine and repetitive and falls within the exception.  Any task that, if omitted, would impact normal production/making of parts, is integral to the use of the equipment for production and falls within the exception.

A further complication involves the “performance standard” requirements of 1910.147. Under the standard, alternate measures of control are allowed under the minor servicing exception to locking/tagging out equipment provided that the work is “performed using alternative measures which provide effective protection.” Thus employers are allowed to use alternate measures to locking out equipment as part of the performance standard requirements.

Evidence of the problem of lack of clarity in the plain language and OSHA’s interpretations of the requirements includes the extensive number of litigation cases where employers have argued that their application falls into the minor servicing exception. See Annex D. Not only did companies believe they complied with the requirements of the standard based on the “plain language,” but they felt they were correct enough to litigate their position.

Industry Definitions ANSI/ASSE Z244.1 clause 1.2 provides the understanding of normal production operations in general industry as shown below.

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One specific industry perspective on normal production operations can be found in ANSI B11.20 (2004/R2009) from the machine tool industry. ANSI B11.20 applies to integrated manufacturing systems and includes information on how the B11 machinery community understands the meaning of tasks that are routine, repetitive and integral to production in clause E6.6.1 as highlighted below.

B11.20 Excerpt 30 design safety engineering, inc.

(Note: In B11.20 formatting the left column contains the requirement, the right column is informative guidance (not required))

6.6 Isolation of power sources E6.6 Means for isolating power sources shall be provided, shall be Power source monitors that initiate the stopping marked or labeled to identify the power source(s), and shall action may be required. have lockout/tagout capability in accordance with ANSI / ASSE Z244.1. Power source isolation can be determined after the risk assessment. All energy isolation means for a span of control should be located in a common area or service center. For further information, reference 29 CFR 1910.147 and 1910.333.

6.6.1 Routine servicing and maintenance E6.6.1 Lockout/tagout is the primary method of hazardous energy Tasks that are routine, repetitive and integral to control. When the tasks identified in E6.4.2 a) are routine, production generally exhibit most of the following repetitive and integral to the production process, or traditional characteristics: lockout/tagout prohibits the completion of those tasks,  short in duration; alternative methods of control that are based on the risk  relatively minor in nature; assessment and that provide effective personal protection shall  occur frequently during the shift, day or be used. week;  usually performed by operators, set-up, service or maintenance personnel;  do not involve extensive disassembly;  represent predetermined cyclical activities;  expected to occur regularly;  minimally interrupt the production process;  exist even when optimal operating levels are achieved;  require task-specific personnel training. 6.6.2 Non-routine servicing and maintenance When the tasks identified in E6.4.2 a) are not routine, repetitive and integral to the production process, then lockout/tagout shall be used per ANSI / ASSE Z244.1.

The similarity in language indicates a common understanding of these terms in both general industry and in the machine tool industry in particular.

Unresolved Conflict The “plain language” of 1910.147 is clear, but industry and OSHA read that language entirely differently.  OSHA is not confused by its interpretation of the standard  Industry is not confused by its reading of the “plain language” in the standard  There is considerable confusion between them – OSHA does not clearly understand industry’s reading, and industry does not clearly understand OSHA’s expectation of employers

Minor tool change / adjustment In the machine tool industry, changing a cutting tool on a milling machine is a minor tool change / adjustment. A cutting tool in a milling machine is used to shape metal. During use the tool gets worn and dulls. From time to time the cutting tool must be replaced or changed for operations to continue.

In the steel making industry, roll mill passes are used to shape and form the hot steel. During operations the mill pass in use is subject to wear. Once the pass is worn, the pass needs to be 31 design safety engineering, inc.

changed. From time to time the passes must be changed for operations to continue. Changing the pass involves moving the mill slightly in or out (to the left or right) so that the steel will run on the next set of grooves on the roll mill stand. Other passes on the roller rust due to the use of water in processing.

The task of grinding or roughing the mill stands is conducted to increase the traction between the mills and steel at first contact. A rough pass grabs the steel and pulls it through the mill. Without sufficient traction or bite on the steel, the steel bar will not pass through the mill stand. There are different methods of achieving traction or bite on a bar. Which method best suits a particular application depends on many factors including most significantly on the age and configuration of the roll mill stands.

Changing a roll mill pass is a minor tool change in the metal forming industries. Part of changing the passes in this NSCI facility is to grind or rough the surface so that the steel will grip or bite and progress through the stand.

Grinding the passes of the roll mill stands occurs during normal production operations and fully meets the criteria for minor servicing which occurs during normal production operations under the OSHA standards and under the ANSI requirements.

The minor servicing exception applies to grinding the passes in this matter and as described in Section III of this report NSCI provided alternative means that were reasonably considered to provide effective protection.

Conclusions concerning Minor servicing 21. Based on industry consensus standards and the “plain language” of 1910.147, the task of grinding the passes was routine, repetitive and integral to production, was part of the normal production operations, and qualifies under the minor servicing exception of the OSHA standard. 22. NSCI provided alternative measures which provided effective protection and met the requirements under the applicable minor servicing exception.

VI. Awareness of compliance

To know that lockout was required by the 19101.47 standard, an employer has to read and understand the requirements.

If an employer does not understand a requirement in an OSHA standard, it can be reasonably expected to seek additional information from OSHA or other sources to clarify the understanding.

If the employer does understand the requirement(s) based on the “plain language” of the standard, the employer cannot be reasonably expected to seek additional information, but instead can be expected to implement the appropriate risk reduction measures to comply with its understanding of the standard.

An employer in good faith effort can read the requirements of 1910.147 and apply the “plain language” meanings and have every expectation and belief that it complies with the requirements, only to learn that OSHA’s interpretation vastly differs. This situation has occurred many times as evidenced by the numerous litigation cases over 1910.147 citations. See also Annex D.

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The ad hoc body of text, information and language generated by OSHA to explain the “plain language” of the 1910.147 standard is enormous – including many different interpretations, directives, views, opinions, legal decisions, etc. This body of information is evidence that the standard is not clear and that OSHA’s enforcement of the standard is unpredictable. There is little reason to believe that a reasonable employer could be expected to know what is required by the 1910.147 standard. Employers cannot be reasonably expected to conduct such extensive research to learn of their responsibilities as interpreted by OSHA, and communicated only to OSHA’s personnel.

NSCI was aware of the 1910.147 requirements and had a LO/TO program with annual training provided to team members. NSCI implemented its LO/TO program based on its understanding of the requirements as written in the OSHA standard.

Conclusions concerning Awareness of compliance 23. The “plain language” of the standard needs to be reasonably clear to communicate OSHA’s expectations of employers. An employer should be able to read the “plain language” of the standard and understand what is required, but 1910.147 fails in this regard.

VII. Citations

The Citation Item #1 alleges that NSCI did not develop, document and utilize procedures for the control of potentially hazardous energy (see complete citation earlier in this report).

In the OSHA Forms 1-A and 1-B, the Compliance Officer concluded that “The incident of January 2012 clearly occurred while the employees were performing maintenance and servicing of the mill that included grinding the rollers contained within certain roll stands.”

As explained in Section V of this report, grinding the passes is a minor tool change conducted as part of the normal production operations and is neither a servicing nor maintenance activity.

The CO also stated that “At the time of the incident, the mill including the furnace, the rougher mill and finishing mill were all shut down and no metal was being produced at the time of the incident.”

This statement is in error. The furnace was not shut down. Heating billets to the necessary 2100º F temperatures requires considerable time. The furnace is not shut down during a shift change or to change passes. Billets were in the furnace ready to be milled as soon as the passes were changed and the roll mill surfaces ground.

The statement that “the rougher and finishing mills were all shut down” is also misleading. These areas of the roll mill do not operate separately. Steel cannot be run through the rougher (or intermediate) mill only then set aside for later processing through the subsequent downstream intermediate and finishing mills. Rolling steel doesn’t work that way. Steel billets are run through the rougher, intermediate, and finishing mills sequentially.

Following the incident, NSCI provided the Compliance Officer with the following documents:

1. Nucor Steel Connecticut’s Control of Hazardous Energy: Lockout/Tagout Written Program/Policy (Rev 4/2009) 2. Job Hazard Analysis Form OHSMS-SOP-004.1 FRM 3. Employee training records for Mr. Garcia and Mr. Bozarth 33 design safety engineering, inc.

4. Rod Milling Mill Operations Procedures Manual 5. Nucor Steel Safety and Health Policy 6. Safety Key Operations for RM Stands and Shear

Contrary to the citation, NSCI had developed and documented a Control of Hazardous Energy Policy and an Operations Procedures Manual. At the time of the incident, NSCI Team members at NSCI utilized these procedures when and where they needed to lockout potentially hazardous energy.

Part of the NSCI Control of Hazardous Energy Policy includes a requirement to lockout machinery during maintenance. Since changing a roll pass is a minor tool change / adjustment that occurs during normal production operations and not a maintenance task, the Nucor lockout policy for maintenance would not apply to this task.

The Citation Item #2 alleges that NSCI did not provide the necessary training to each authorized employee for energy isolation (see complete citation earlier in this report).

Since changing a roll pass is a minor tool change / adjustment that occurs during normal production operations, training on energy isolation for this task is inapplicable.

As noted earlier in this report (section II) locking out the roll stands per the OSHA recommendation was not feasible at the time of the incident. OSHA issuing a citation to NSCI for not providing training on an infeasible task makes no sense.

On page 6 of the CO’s report, the CO identified the following:

This report indicates that “Specific safety training for task” was provided and that the Victim was trained.

The CO concluded that “Nucor Steel had provided training to its employees with lockout/tagout training but had never provided employees performing the grinding work on the rolls contained within the roll stands in the lockout/tagout procedures specific to the roll stands.”

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As documented in the training records and recognized by the CO, NSCI had provided lockout/tagout training to the team members.

Contrary to the citation, authorized NSCI employees did receive training in the recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the workplace, and the methods and means necessary for energy isolation for maintenance and servicing tasks.

The Courts have long held that the occurrence of an injury does not mean that a violation of a OSHA safety standard has occurred. In W. J. USERY, Jr., Secretary of Labor, Petitioner, v. KENNECOTT COPPER CORPORATION and the Occupational Safety and Health Review Commission, Respondents., the Court stated that:

It was not the purpose of the Act to make an employer the insurer of his employees' safety. The ultimate aim of the act was not to prevent all accidents, but to provide American employees with safe and healthful working conditions "so far as possible." Certainly the Act requires employers to be diligent in protecting the health and safety of its employees; however, it does not hold the employer responsible for the prevention of all accidents.

Conclusions concerning the Citations 24. NSCI developed, documented and utilized procedures for the control of potentially hazardous energy for tasks performed in the rolling mill. 25. NSCI established and implemented energy control lockout/tagout procedures for employees to use during servicing, maintenance and other duties for the roll mill stands.

Please let me know if you have any questions.

Sincerely,

Bruce Main, PE CSP

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ANNEX A Mr. Main’s Relevant Experience

I have applied the risk assessment process and conducted risk assessments in a wide variety of applications and industries including:  machine tool,  packaging,  steel making,  robotics,  semiconductor,  machinery,  consumer products,  facilities,  equipment,  lumber,  glass making,  pharmaceutical,  optics,  research,  government,  warehousing,  agricultural products,  solar panels,  food processing,  window coverings,  power generation,  furniture

Note: I do not claim to be an expert in each of the above industries/applications. I have expertise in the risk assessment process which can be applied in many applications, as demonstrated above.

In my work with clients I frequently use risk reduction measures such as lockout, safe/reduced speed safeguarding, warnings and others to reduce risk. design safety engineering sells the designsafe/Packsafe/Robot Risk Assessment software which guides users through the risk assessment process. The software is used by companies large and small in a wide variety of industries. I am the primary designer of the software. A sample list of our customers appears on our website at www.designsafe.com

I have worked on projects with the following companies in the metal making/forming industries:  Nucor  Carpenter Technologies  USS POSCO  Chase Brass  Alcan Cable  Westcast Industries

In addition I have worked on projects involving paper tube making machinery where reduced speed is used as a risk reduction measure for certain tasks.

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I also do quite a bit of work in the packaging industry where packaging/filling operations commonly achieve speeds of 800 units per minute or more. These systems range from simple labeling machines to complex systems that fill a large room. Packaging machinery presents a variety of hazards and challenges to reducing risk. Reduced speed is one risk reduction measure that is frequently used for certain tasks.

I have performed risk assessments on more than 20 machines that were built for a coating application in the optics industry for a manufacturer of lens coatings. As part of the risk assessment work I worked with a team to develop guarding systems, means for lockout, means for energy control devices to safely enable jam clearing other than employing full lockout, warnings and other risk reduction measures. I also participated in design reviews of the various machines at different stages of development including reviewing 3D models during web meetings, on-site evaluations at the machinery supplier facility, and on-site evaluations at the end user facility.

For the same company I have conducted several risk assessments for individual machines used in the lens inspection, cleaning, coating, etching and packaging processes. On these projects I have materially contributed to the design of the machinery and safeguarding systems.

From time to time I am also engaged by attorneys asking me to review product and machinery safety systems that are the subject of products liability litigation or OSHA citations.

I have written three peer reviewed books on the risk assessment process as detailed in my CV.

I have been designated as a U.S. technical expert on machinery safety and the risk assessment process to the ISO Technical Committee 199, Safety of machinery. I have been involved in safety standards development since 1996. I have also assumed leadership positions on machinery standards writing committees at both the national and international levels.

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Annex B Arc Flash Hazards

Screen Shots from Arc Flash Videos Demonstrating Severity of Arc Flash Hazard Nucor Connecticut 13 December 2013

 2:00 Arc Flash Interior Substation Racking Breaker Refinery o http://www.youtube.com/watch?v=W6Im7PLduwc

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 Demonstration of HS 20kA Arc in 100A Disconnect 15 Cycles o http://www.youtube.com/watch?v=hA-w0QAaxRU

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Annex C Sample excerpts of slow speed/ reduced speed safeguarding in industry standards

ANSI B11.19 (2010) specifically mentions reduced speed as a means to reduce risk. In clause 6.6 related to bypassing safeguarding the following explanatory information is provided in E6.6.2 (emphasis added):

6.6.2 When the safety-related function is bypassed, other E6.6.2 Other protective measures include, but are not protective measures shall be provided and used. limited to, the following measures: Alternate or supplemental safeguarding devices (clause 8);  Initiation of motion by a hold-to-run or other control device;  A portable control station (e.g., pendant) with an emergency stop device, and where used, an enabling device. Where a portable station is used, motion shall only be initiated from that station;  Limiting the speed or the power of motion;  Limiting the range of motion.

In clause 12.11 related to Hold to run devices, the following informative guidance is used (emphasis added):

12.10 Hold-to-run controls E12.11 The requirements within this subclause apply when a hold-to-run Hold-to-run controls are typically used in conjunction control device: with other complementary equipment and measures or  is in sole control of the hazardous motion; and other methods to reduce risk.  exposes an individual to a hazardous situation(s); and  is being used for safeguarding. Other methods to reduce risk include but are not limited to reduced speed, reduced power / force, step-by-step operation, i.e., with a limited movement control device.

When used with other complementary equipment and measures or safeguarding devices (clause 8), the hold-to- run is a logic device only, and may not serve as a safety function within the safety related part of the control system.

If the hold-to-run control is used in conjunction with two hand control see 8.4, or with enabling devices see 12.10

##

ANSIB11.3-2012 for press brakes includes the following text on safe speed at clauses 6.3.4.7 and 8.8:

6.3.4.7 Safe speed When using safe speed (a ram speed of 10 mm/sec (0.39 in/sec]) as a safeguarding method, a three position hold-to-run control shall be used.

If a press brake is capable of exceeding speeds of 10 mm/sec (0.39 in/sec), one of the following methods of monitoring is required and shall meet the requirements of 8.3: a) If the control of safe speed is through non-variable means, then continuous monitoring of the control devices is required;

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b) If the control of safe speed is through the use of variable parameters, then continuous monitoring of the speed of the ram is required. A stop shall occur if the safe speed limit is exceeded.

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ANSI B11.0 (2010) – Safety of Machinery

E3 – The probability of the occurrence of harm may be reduced by eliminating the hazard or through process modifications (e.g., inherently safe design, reduction in the need for access to the hazardous area, the reduced speed, adequate maintenance etc.).

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ANSI B11.19 (2010) – Performance Criteria for Safeguarding

E6.6.2 – Other protective measures include, but are not limited to, the following measures:  …  Limited the speed or the power of motion

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ANSI/PMMI B155.1 – 2011

7.2.6.1 Special modes Certain tasks (e.g., set-up, teaching, process changeover, troubleshooting, cleaning or maintenance) often require removing or disabling a guard or other safeguarding device. If a special control mode is used for these tasks, the control mode shall reduce risks to an acceptable level through other means.

Informative Note: Examples include:  disabling all other control modes;  permitting operation of the hazardous elements only by continuous actuation of an enabling device, a hold-to-run control device or a two-hand control device (see also, NFPA 79-2007, 9.2.5.5);  permitting operation of the hazardous elements only in reduced risk conditions (e.g., reduced speed, reduced power, reduced force, step-by-step, limited movement);  delayed start and/or restart with audible or visible annunciator.

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Annex D Outline of Key Points from OSHA Legal Cases Potentially relevant to NSCI

Topic Area Case Citation / Year Key Points Recognized SECRETARY OF  ALJ Brady vacated the citation because he found that the accident Hazard LABOR, “resulted from the method used by the employees in trimming the COMPLAINANT tree” and found no proof that the method used was shown to be a v. recognized hazard. Instead, the judge found that the method DAVEY TREE used was an accepted practice within the industry. He found no EXPERT COMPANY, evidence that, when the employees began trimming the limb, it RESPONDENT, AND was likely to hit the power line. FLORIDA POWER AND LIGHT COMPANY, INTERVENOR

30 Mar 1984 Recognized SECRETARY OF  Secretary failed to show that although a hazard might exist in Hazard LABOR, theory (water and aluminum powder mixing), the actual presence COMPLAINANT of a hazardous situation was not supported. v. ALUMINUM COMPANY OF AMERICA, RESPONDENT. UNITED STEELWORKERS OF AMERICA AND LOCAL UNION 302, AUTHORIZED EMPLOYEE REPRESENTATIVE

22 Oct 2012 Recognized SECRETARY OF  There was no hazard established on the day of the inspection, or Hazard LABOR, within the preceding 6 months. COMPLAINANT  The preponderance of the evidence establishes that the mill was v. not operating during the inspection, but was only being jogged. SHARON STEEL  The record does not establish precisely how fast the steel moves CORPORATION, when the mill is being jogged, but it does indicate that the speed RESPONDENT. is much lower than during normal operation. UNITED  There is no evidence tending to show that the steel could shatter STEELWORKERS OF into fragments at slow speed when the mill is being jogged, and AMERICA, LOCAL accordingly, the Secretary did not prove that a hazard existed on 1197, AUTHORIZED the day of the inspection. EMPLOYEE  It is clear that both the judge and the Secretary are relying on the REPRESENTATIVE possibility of a prospective violation.  The Act, however, does not permit citations founded on the 19 Nov 1985 possibility of future violations.

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Recognized SECRETARY OF  The Secretary points to an ANSI standard as evidence that Hazard LABOR, respondent’s industry recognizes the conditions as hazardous. COMPLAINANT …. v.  The cited standard, ANSI Z–244.1–1982, is stated to provide WINTERS for lockout/tagout of energy sources. INDUSTRIES,  Complainant further points to two specific ANSI provisions,… RESPONDENT, AND Applied to this case, the foregoing provisions do little more than INTERNATIONAL recognize the general hazard presented by working on power MOLDERS AND equipment while it is connected to an energy source. It is noted ALLIED WORKERS that the Osborne/States machine was not manufactured with a UNION (IMAWU), key switch, as advocated by the Secretary, suggesting that the LOCAL 154, manufacturer does not recognize a special hazard. AUTHORIZED  The Secretary’s evidence, therefore, fails to show that EMPLOYEE respondent or its industry recognized the Osborne/States or any REPRESENTATIVE of its components as presenting a special or unusual hazard. To cope with such a nonspecific hazard, Winters was required [Undated] only to have in place procedures and safeguards applicable to all power equipment during repair or maintenance.  During a normal production shift, the equipment interlocks or shuts down approximately 75 times. Sometimes all that is necessary is to remove a spot of aluminum splash with a screwdriver from a switch. For such simple repairs, the procedure was to go to the control panel and put the system on manual which shuts down the States line. The equipment is not shut off entirely because it is often necessary to operate the equipment manually to make adjustments. After the repair is made, the maintenance man tells the control room operator and foreman that the equipment is ready to resume operations.  The Secretary suggested that the equipment be entirely shut off or brought to Zero Mechanical State (ZMS) for all repairs; but as the equipment shuts off approximately 75 times each shift and requires about 20 minutes to bring to ZMS and return to full power, it is obvious that no production could take place under those conditions. Such procedure is infeasible. If the Secretary contends that the system should be brought to ZMS only when an employee must perform work inside the perimeter of the equipment, no advantage has been shown to that procedure rather than the use of locks. Recognized SECRETARY OF  Inland contended that handbrakes were less effective and more Hazard LABOR, dangerous than wheel blocks. COMPLAINANT  Commission Judge DeBenedetto … found that given the v. limitations and hazards of handbrakes in Inland’s operations, INLAND STEEL Inland’s decision to prevent “inadvertent movement of railroad COMPANY, cars” by using blocks was proper…. … that the “record fully RESPONDENT, justifies Inland’s decision” to use specially designed blocks UNITED instead of handbrakes. We agree. STEELWORKERS OF  As we have held, defining recognized hazards too broadly AMERICA, AND ITS would undermine the congressional purpose behind the LOCAL 1010, “recognition” element—to limit the general duty imposed by AUTHORIZED section 5(a)(1) to preventable hazards. EMPLOYEE REPRESENTATIVE 50 design safety engineering, inc.

 We observed in Pelron that an employer cannot reasonably be 30 July 1986 expected to free its workplace of inherent risks that are incident to its normal operation. Therefore, to respect Congress’s intent, hazards must be defined in a way that apprises the employer of its obligations under the Act by identifying conditions or practices over which the employer can reasonably be expected to exercise control  As a result of the greater frequency of Inland’s switching, the risk of injury to Inland’s switchmen while applying handbrakes would be even greater than the risk that switchmen for interstate common carriers face.  The “record fully justifies Inland’s decision” to use specially designed blocks instead of handbrakes.  Inland’s present blocking system had resulted in no injuries to employees due to blocking railcars or being struck by railcars that had been blocked during the entire 22 years the system had been in operation.  [The Judge] determined that the Secretary’s evidence regarding feasible abatement methods lacked probative value because the witness on whom the Secretary relied, the compliance officer, was not familiar with the circumstances of either the steel industry or of railroads in general. Recognized SECRETARY OF  The judge… noted that (1) “Armadillo’s actions at the site on Hazard LABOR, Complainant the day of the accident were proper and in accordance with v. industry practice,” and (2) “[t]here is insufficient evidence to K.E.R. ENTERPRISES, support any assertion that the industry, Armadillo, or Mr. Davis INC., d/b/a recognized that it was a hazard to tighten T-bolts to stop a ARMADILLO small leak without first depressurizing the pipe.” UNDERGROUND  The judge was also unconvinced by (expert) Shea’s opinion that it was “common sense” to depressurize the pipe before 14 Dec 2009 tightening the T-bolts.  Armadillo maintains that its procedure for tightening T-bolts, both during installation and hydrostatic pressure testing, is consistent with industry practice.  Based on our review of the record, we find the Secretary’s evidence insufficient to establish that the cited conditions created a recognized hazard. Recognized SECRETARY OF  The pivotal issue is whether Granite City's method of hazard LABOR, Complainant, providing access to barges is an "other safe means of access." v. The Secretary argues that the burden of proof on that issue Lack of GRANITE CITY should be placed on the employer. We disagree injuries over TERMINALS  We conclude that the Secretary has failed to prove that a many years CORPORATION, reasonable person familiar with the circumstances of the is relevant Respondent. industry would find that Granite City's use of the shell bucket was unsafe. 8 Apr 1986  Undisputed testimony that there had been no injuries at any of the company's marine terminals since Granite City first started using the clam shell bucket to transport employees to barges over 25 years ago. Although a lack of injuries does not relieve an employer of the duty to comply with the Act's requirements, a company's history of a lack of injuries is relevant to whether

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a reasonable person would recognize that the cited work practice is unsafe or hazardous  The evidence concerning the inability of experts to recommend alternative measures that were both practical and safer than the clam shell bucket further supports our finding that the use of the clam shell bucket was not shown to be unsafe under a "reasonable person" test Employer CATERPILLAR  [The Commission] concluded that Caterpillar’s “heightened Knowledge INC., PETITIONER, awareness” of the problem remained with the corporation v. despite any turnover in personnel. OCCUPATIONAL  It noted that Caterpillar had both knowledge of the hazard and SAFETY AND abundant resources to evaluate and abate it and found that HEALTH REVIEW Caterpillar’s installation of the tape barrier and warning signs COMMISSION, for the procedure at issue were not an objectively reasonable RESPONDENT, means of abatement. UNITED AUTO  These supervisors consistently rejected Williams’s WORKERS, LOCAL recommendations for protecting workers from the flying studs. 974, INTERVENING- In light of these rejections, Caterpillar cannot now argue that it RESPONDENT. reasonably relied on Williams to ensure the safety of the hub pulling operation in 1992. 21 Aug 1997 Alternate SECRETARY OF  It was not unusual for the operator’s hands to come very close methods of LABOR, to the augers and the compacting area…. Most of the time the guarding COMPLAINANT operator’s hands were separated from the augers by at least V. several inches of meat; however, when there was to be a AMERICAN change of bin load, the operator’s hands came fairly close to FROZEN FOODS, the augers and, on occasion, the fingers actually removed meat RESPONDENT from the augers or sides of the bin next to the augers. 1910.212  While it was not necessary for the operator’s hands to go into the compressing section below the augers, the employee Davies’ 2 Nov 1981 hands did go there when he was apparently distracted or careless; and the tops of 2 fingers were severed.  The Respondent’s contention, which was established by the evidence, was that it was impossible to perform the job in any way other than the one in which it was being done.  Hand tools are not devices which by themselves ‘prevent the operator from having any part of his body’ in the point of operation. ‘Their effectiveness depends on whether employees properly use them. Subsection (a)(3)(ii) requires devices not primarily dependent upon correct employee behavior.  The Akron case [13 OSHC 1876] held that the .212(a)(1) method of machine guarding should not be predominantly dependent upon human behavior. The plain purposes of the standard are to avoid dependence upon human behavior.  It is clear that the operator’s use of paddles instead of hands does not qualify as the kind of guarding method specified in the standard at 29 CFR 1910.212(a)(1).  Here, we must resolve the situation created by 3 factors: (1) There is a hazardous condition; (2) No method of correcting it consistent with the standard at 29 CFR 1910.212(a)(1) has been established, or even proposed; (3) The employer is not a

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guarantor or insurer of the employee’s safety.  As concerns Citation #1, the cited machine had rotating parts that were not guarded… It was not possible to provide any method of machine guarding of the types mentioned in the standard at 29 CFR 1910.212. Actual SECRETARY OF  Repeat Violation of 29 C.F.R. 1910.219(f)(3) Employee LABOR,  The OSHA inspection also resulted in allegations of violation Exposure COMPLIANTANT of 29 C.F.R. 1910.219(f)(3). The Complainant charged that the V. sprocket wheel and chain on the fourth floor of the tower was CENTRAL SOYA OF unguarded. PUERTO RICO.,  The evidence reveals that this motor is activated by switches INC, RESPONDENT located on the third floor and that during normal operation of the plant no employee other than maintenance workers would 7 July 1981 have been exposed to the nip-point hazard. Since there being no evidence that any non-maintenance employees were exposed or has access to the nip-point danger area, the Respondent is not responsible for the violation and the citation must be vacated. Unexpected SECRETARY OF  ..”unexpected energization”… “minor servicing activities” and Energized/ LABOR, alternative “effective” protection.. being undefined, vague and Plain COMPLAINANT imprecise. Respondent asserts that the aforesaid terms are Language V. subject to multiple interpretations and it is not possible to DAYTON TIRE, predict or anticipate the Secretary’s interpretation of those… BRIDGESTONE/FIRE  It is well established that “statutes and regulations which STONE, purport to govern conduct must give an adequate warning of RESPONDENT what they command or forbid…. The Commission has stated STEEL WORKERS that “[a]n employer can only be required to comply with OF AMERICA, requirements of which it has either actual notice or notice LOCAL 998, derived from the language of the regulation and surrounding AUTHORIZED circumstances.” EMPLOYEE  OSHA regulations must ‘be written in clear and concise REPRESENTATIVE language so that employees will be better able to understand and apply them’....” 12 Sep 1995  The Court of Appeals for the Sixth Circuit affirmed the Commission and stated:  We conclude that the plain language of the lockout standard unambiguously renders the rule inapplicable where an employee is alerted or warned that the machine being serviced is about to activate. In such a situation, “energization” of the machine cannot be said to be “unexpected” since the employee knows in advance that machine startup is imminent and can safely evacuate the area. The standard is meant to apply where a service employee is endangered by a machine that can start up without the employee’s foreknowledge.  It is clear that in Westvaco the Commission analyzed the exception “in light of a particular set of circumstances,” as well as the conduct to which the exception is applied. Respondent, however, boldly asserts that the LOTO standard is unenforceably vague for all times and circumstances without any reference to the particular facts of this case. Under these

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circumstances, Respondent has failed to meet its burden (a) to establish that the referenced exception applies to the particular work activities cited by the Secretary or (b) to establish that the language of the exception was so unclear when applied to those work activities that persons of common intelligence could not understand the meaning and intent of the exception.  Moreover, the facts support the conclusion that the activities of the size changers as described above do not fall within the exception to the standard for minor servicing performed during normal operations for the simple reason that the second stage TAM machines are not engaged in producing anything while undergoing a size change Unexpected SECRETARY OF  During the regular operation of the machine,… operator must Energized/ LABOR, routinely enter the cage … to re-thread the wrapper arm … Plain COMPLAINANT Before entering the cage, the operator first moves a toggle Language v. switch on the control panel.... QUEBECOR WORLD,  In the manual mode, power continues to flow to a fractional RESPONDENT horsepower motor that is used to drive the rollers in the arm assembly; the rollers can be operated independently by using a 1 Aug 2001 “jog” button on the wrapper head  There is no possibility of the wrapper being unexpectedly energized while the operator is in the cage. CO Darrow admitted that in order for the wrapper to become reenergized, the gate to the wrapper cage would have to be closed, and an employee other than the operator would have to deliberately restart the machine. Darrow further admitted that this scenario was “far fetched.”  The record amply demonstrates that there could be no unexpected activation of the wrapper mechanism while the operator is inside the wrapper cage changing a roll or rethreading wrap. The evidence establishes that the wrapper could only be reactivated by a second employee deliberately taking the machine out of its “manual” mode and restarting it.  The record shows that changing rolls of film wrap, and rethreading film into the wrapper rollers are routine adjustments, which the wrapper operator must perform during normal production to ensure the proper operation of the machine. Unexpected SECRETARY OF  To prove that the provisions of § 1910.147 apply, the Secretary energization LABOR generally must show the cited conditions involve the “servicing v and maintenance of machines and equipment in which the BURKES unexpected energization or start up of the machines or MECHANICAL INC equipment, or release of stored energy could cause injury to employees.” 29 C.F.R. § 1910.147(a)(1)(i) (emphasis in 4 Feb 2005 original). Here, however, the Secretary maintains such a showing is unnecessary because the cited work activity is covered by the scope requirements of § 1910.261(b)(1)—the industry-specific lockout standard, which does not include “unexpected energization” as a trigger for applicability.  BMI argues the LOTO standard is inapplicable here because its employees were aware the conveyor was running while they

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cleaned underneath it. However, contrary to BMI’s claim, “[s]ervicing and/or maintenance which takes place during normal production operations is covered” if, inter alia, “[a]n employee is required to remove or bypass a guard or other safety device . . . or where an associated danger zone exists during a machine operating cycle.” 29 C.F.R. § 1910.147(a)(2)(ii). Moreover, as OSHA explains in the preamble, “operations such as cleaning and unjamming machines or equipment are covered by this standard when the employee is exposed to greater or different hazards than those encountered during normal production operations.”  Indeed, both the compliance officer and a Gulf States manager recognized that the conveyor posed a danger to those who cleaned up debris while located in either of these areas.  The preamble discusses hazards…  Performance of maintenance or servicing activities on a machine or equipment that is in operation has the potential of exposing employees not only to contact with moving machinery components at the point of operation, but also to contact with other moving components, such as power transmission apparatus, and also increases the risk of injury due to the position the employee must assume and the need to remove, bypass or disable guards and other safety devices. In many cases, these activities expose the employee to the hazard of being pulled into the operating equipment when parts of the employee’s body, clothing or the material or tools used for cleaning or servicing become entrapped or entangled in the machine or equipment mechanism. The use of extension tools or devices to permit the operator to stay outside these danger areas, while of some benefit in reducing direct employee exposure to the hazards of entanglement or entrapment, can, in itself, result in injuries to employees. This can occur, for example, when an employee is struck by the tools or devices that inadvertently come in contact with moving machine components, and are pulled from the employee’s grasp. Unexpected Robert B. REICH,  We conclude that the plain language of the lockout standard energization Secretary of Labor, unambiguously renders the rule inapplicable where an Petitioner, employee is alerted or warned that the machine being serviced v. is about to activate. In such a situation, "energization" of the GENERAL MOTORS machine cannot be said to be "unexpected" since the employee CORPORATION, knows in advance that machine startup is imminent and can DELCO CHASSIS safely evacuate the area. The standard is meant to apply where DIVISION; and a service employee is endangered by a machine that can start up Occupational Safety and without the employee's foreknowledge. In the context of the Health Review regulation, use of the word "unexpected" connotes an element Commission, of surprise, and there can be no surprise when a machine is Respondents. designed and constructed so that it cannot start up without giving a servicing employee notice of what is about to happen. 18 July 1996

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 In sum, the lockout/tagout standard covers only those machines that do not provide servicing workers sufficient advance notice of start up to avoid injury.  Townsend case quotes the General Motors case: Each of the subsections apply only “where the unexpected energizing, start up or release of stored energy could occur and cause injury.” The Review Commission has noted that it is the Secretary’s burden to prove that these conditions exist… The Secretary must show that there is some way in which the particular machine could energize, start up, or release stored energy without sufficient advance warning to the employee Unexpected SECRETARY OF  Under the general duty clause, the Secretary alternatively Energization LABOR alleges that as an operator, Mendoza was not properly trained to v keep his hands and other parts of his body out of the RW OSHA uses NATIONAL machine’s points of operation and other dangerous parts as set ANSI ENVELOPE forth in the ANSI safety requirements for envelope standards as CORPORATION manufacturing machinery authoritative  …there is nothing in the record to indicate what more NEC Undated could have done to train Mendoza about the cited hazard nor is there any indication that NEC had reason to believe its training in this area was somehow deficient. Accordingly, the citation is vacated in its entirety.  The critical question is whether the unexpected energization of the WEB-3 machine could have caused injury to the employees performing the hose replacement?  However, [CO Washington] admitted that she knew nothing about how the machine’s folding mechanisms operated or even what the cleaning process would entail. Moreover, Washington conceded that if the machine had to be energized in order to actually perform the cleaning process, the cited standard would not apply. Given her weak testimony on this issue, there is no basis on which to establish a violation. Without proof of exposure to a hazard created by the unexpected energization of the WEB-3 machine, this item must be vacated. Secretary SECRETARY OF  Among other methods, one feasible and acceptable abatement Reference LABOR, method to correct this hazard is: ANSI COMPLAINANT, o Establish and enforce a lockout/tagout procedure such as Z244.1 v. the one recommended by ANSI Z244.1 specifying that MONFORT OF prior to the performance of any activities where COLORADO, INC., unexpected start-up or release of stored energy could RESPONDENT. occur and cause injury, all potentially hazardous energy sources should be isolated and locked/tagged out. 26 eb 1991  Monfort does not seriously contest the allegation that the energized conveyor presented a hazard to maintenance employees, that it was aware of the hazard or that the hazard was likely to cause death or serious physical harm. Respondent does, however, argue that the Secretary has failed to prove it should have implemented additional measures to materially reduce or abate the hazard…. This judge agrees.

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Effectivenes SECRETARY OF  Trinity denies the violation and argues that the in-running s of LABOR, pinch point at the side rollers does not present a hazard to Procedures COMPLAINANT operators if proper greasing procedures are followed. V.  The operator bypasses the guard to apply the grease directly on TRINITY the head. INDUSTRIES, INC.,  The test for determining an employee’s exposure to a hazard is RESPONDENT whether it is ““reasonably predictable” that employees would 1910.212(a)(1) be in the zone of danger created by a non-complying condition… “Reasonably predictable” is shown either by 10 Feb 1992 operational necessity or otherwise, including inadvertence, that employees have been or will be in the zone of danger.  Where a supervisory employee is in close proximity to a readily apparent safety violation, constructive knowledge is established.  Based on the record, Trinity’s verbal safety rule to avoid the pinch point and grease on the flange side is not sufficient and not a substitute for the standard’s machine guarding requirement.  Trinity’s safety rules were not written. The rules requiring employees to avoid in-running pinch points or the location where to apply the grease to the head were verbal and left to the ““common sense” of the operator. An unwritten work rule may lead to questions about its effectiveness in preventing employee exposure to a hazard.  An employer’s work rules to be effective must be clear enough to eliminate operator exposure to the safety hazards addressed by the standards or designed to prevent the hazards. .. A work rule permitting greasing on the flange side of the machine as long as the pinch point is avoided is not effective….  Trinity’s instruction was inadequate… the record fails to establish that Trinity ensured compliance with its unwritten safety rules.  It is not enough for an employer to show that it warned employees to keep their hands out of unguarded pinch points. Where it is foreseeable that employee would be exposed to unguarded pinch points, the employer must establish that it made a real effort to enforce the warning, and that there were consequences when the rule was violated. Awareness SECRETARY OF  Turning first to the question of knowledge, we note that there LABOR, is ample evidence that Pepperidge Farm was aware of both COMPLAINANT actual injury to employees and its causal connection to the v. workplace. That evidence includes records kept by PEPPERIDGE FARM, Pepperidge’s own medical department. Additionally, INC., RESPONDENT …Pepperidge’s plant physician, testified that the cupping and capping jobs put the employees at increased risk of developing 9 July 1998 UEMSD’s. Further, Pepperidge’s chief nurse at the plant, …testified that “at our biscuit plant when they cupped cookies, that could give you tendinitis… The physicians whom Pepperidge itself retained to examine and treat the 68 employees with UEMSD’s generally concluded that those conditions were causally connected to their jobs and were the

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precipitating factor in the employees’ disablement. Normal SECRETARY OF  The adjustments, which take between 15 and 45 minutes to Production LABOR, complete, are made by the operator and the helper between Operations COMPLAINANT production runs … the flow of energy to both sections is cut v. off except for a small amount of power that allows the helper WESTVACO to jog the heads at a slow speed. CORPORATION,  The judge noted that “normal production operations” is defined RESPONDENT in 29 C.F.R. § 1910.147(b) … Finding this definition rather vague. 14 Sept 1993  … performed before the normal production operation in order to prepare the machine for production is a specific service activity, called setting up. Setting up does not occur during normal production operations. Therefore, setting up cannot, by definition, fall within the exception.  Westvaco contends that the judge erred … Westvaco asserts… that the inclusion of the adjustments in the normal production operations is underscored by the fact that the adjustments are performed by production employees, not maintenance personnel.  In this case the fact that the work is done prior to production runs is critical in determining if the adjustments are made during normal production operations.  We conclude that because the helper’s adjustments constituted “setting up,” they cannot, based on the standard’s definition of that term, be considered to take place “during normal production operations.” Vaguness SECRETARY OF  Issue: Whether the administrative law judge erred in ruling LABOR, that the definition of “confined space” set forth in 29 C.F.R. § COMPLAINANT 1910.252(e)(4)(i) is sufficient to provide fair notice to v. employers of conditions falling within the meaning of that CBI SERVICES, INC., term? RESPONDENT  The judge rejected both CBI's argument that the standard is unenforceably vague, as well as its claim that if the standard is 13 June 1991 not unenforceably vague, then other sources must be consulted for guidance in defining a confined space, such as ANSI Z117.1–1989, Safety Requirements for Confined Spaces. The judge found that since the definition contained in the cited standard is clear, there is no need to refer to other sources.  CBI argues that section 1910.252(e)(4)(i) is impermissibly vague in its definition of “confined space” and is therefore unenforceable. CBI believes that the definition of confined space is insufficient to provide fair notice to employers of conditions falling within that term. … CBI argues that the fact that the compliance officer “finds it necessary to rely on outside sources to aid in the definition of confined spaces is compelling evidence that the standard is vague to the point of being unenforceable.”  CBI also appears to argue that the standard is vague because more detailed definitions exist of what constitutes a confined space. CBI claims, for example, that ANSI Z117.1 provides a more detailed definition of confined spaces than the standard.

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 CBI noted that its expert witness and corporate safety director, Mr. James Rhudy, relied on outside sources such as ANSI Z117.1 in testifying as to what is required for a confined space. Rhudy served on the ANSI committee that developed ANSI Z117.1.  In summary, CBI argues that “[g]iven the fact that compliance officers, industry experts and members of the Review Commission have considerable difficulty identifying and defining what is a confined space, it would seem that the answer to the ‘ultimate question’ posed by the judge is that the barebones, simplistic definition of confined space set forth in 1910.252(e)(4)(i) is indefinite, vague, and unenforceable.”  The Secretary argues that “[a] reasonably prudent employer can look to the natural and plain meaning of the words ‘relatively small or restricted space’ and ascertain what is meant by confined space.” The Secretary admits that the definition incorporates an element of degree, but argues that absolute precision in a standard is not required. She argues that a standard is not vague because its application requires the exercise of judgment and that “[t]he purported vagueness of a standard is not judged from the face of the standard; it is determined in light of the application of the standard to the facts of the case.”  The court also determined that it was irrelevant that anyone in the industry may have believed that a confined space may be defined in another manner.  In considering a vagueness claim, we have held that the words of a standard are to be viewed in context, not in isolation, and that the purported vagueness of a standard is not judged from the face of the standard but in light of the application of the standard to the facts of the case.  While CBI has brought a number of other definitions of confined space to our attention, we are not persuaded that these definitions have any bearing on the one before us.  We therefore find that the administrative law judge did not err in ruling that the definition of “confined space” set forth in 29 C.F.R. § 1910.252(e)(4)(i) is sufficient to provide fair notice to employers of conditions falling within the meaning of that term. Vagueness KROPP FORGE  We conclude that the standard under which Kropp was cited is COMPANY unenforceably vague and therefore reverse v  Kropp next argues that the standard which it is said to have SECRETARY OF violated does not provide "fair warning" of what is required or LABOR OSHRC prohibited and is therefore unenforceably vague … We agree  OSHA regulations must "be written in clear and concise 14 Aug 1981 language so that employers will be better able to understand and apply them,"  However, the standard does not give any warning to employers that their [hearing] conservation programs must contain these six elements.

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Vagueness GEORGIA PACIFIC  The ALJ rejected Georgia-Pacific's argument that the standard CORPORATION, is unenforceably vague, but concluded that the company had Petitioner, not violated the standard and vacated the citation. v.  The Review Commission stated that the standard was not OCCUPATIONAL unconstitutionally vague, concluded that Georgia-Pacific had SAFETY AND violated the standard. HEALTH REVIEW  We find the Secretary's interpretation of 29 C.F.R. Sec. COMMISSION; 1910.178(n)(4) both unconstitutionally vague as applied and Secretary unreasonable, therefore, we reverse of Labor, Respondents.  A statute or regulation is considered unconstitutionally vague under the due process clause of the Fifth or Fourteenth 13 July 1994 Amendments if it "forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application  The Secretary, as enforcer of the Act, retains the responsibility to state with ascertainable certainty what is meant by the standards she has promulgated. The Act grants to the Secretary, not the Commission, the Review Commission nor this Court the power to amend the regulations where necessary. We find here, that where the Secretary is unable to settle upon a single definition of a critical term or phrase of its own regulation, that the regulation is unconstitutionally vague as applied for failing to give sufficient guidance to those who enforce OSHA penalties. Vagueness VOEGELE  We conclude that OSHRC applied the correct legal standard COMPANY, INC., and we also affirm that there was substantial evidence to Petitioner, support the finding of a violation v.  Employers have challenged these types of regulatory OCCUPATIONAL provisions (1926.28(a) and 1910.132) as unconstitutionally SAFETY AND vague because the regulations fail to provide adequate notice HEALTH REVIEW to the employer of what conduct is prohibited COMMISSION and Ray Marshall, Secretary of Labor, Respondents

26 June 1980 Contradictor SECRETARY OF  Complainant contends and Respondent disputes that the y work rules LABOR employee operating the flattener task is exposed to the hazard of not v having his fingers drawn into the machine, and that Respondent sufficient RIVERDALE MILLS should install a guard to prevent this eventuality from occurring. CORPORATION  Respondent asserts that 1) a guard is not needed, 2) a guard (the trip wire) was already in place, 3) any other guard is infeasible, 27 Nov 2000 and 4) any additional guard would create a greater hazard. Respondent contends that the accident was attributable to employee misconduct, inattention, and failure to observe operation instructions he had been trained to observe.  [An operator] testified that operators needed to concentrate in order to not get their hands pulled into the rollers if a glove or a part of a shirt happened to catch on a sharp spot on the panel.  Respondent had a written rule prohibiting the use of gloves near moving machinery. However, Respondent gave employees the

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option of wearing gloves while operating the … Peck machine to protect their hands from cuts, abrasions and punctures. Respondent’s policy…was clearly contradictory to the work rule.  Citation was affirmed. Manuals SECRETARY OF  Manuals incorporated by reference in the company LOTO incorporated LABOR policy by reference v  Respondent’s LOTO Program plainly states… that specific SPIRIT vehicle maintenance manuals are incorporated into the program AEROSYSTEMS INC. and should be referenced by employees.  Garage mechanics had specific vehicle maintenance manuals 7 Nov 2011 available to them.  The CO never reviewed the manuals and did not know what was in it. Performance SECRETARY OF  A performance standard differs from a specifications standard in Standard LABOR, Complainant that, rather than directing specific measures to be taken v. whenever a hazard identified by the Secretary is present, it LOURDES HOSPITAL, allows the employer, within the standard’s general guidelines, to Respondent identify the hazards peculiar to its own workplace and determine the steps necessary to abate them. Generally, 23 Feb 2004 performance standards state the required result without specifically mandating how that result is to be achieved. The Second Circuit has held that, to make out a prima facie violation of a performance standard, the Secretary also has the burden of proving feasibility and utility of abatement measures. Standard W. J. USERY, Jr.,  In order to ensure that the Secretary would be able to swiftly promulgatio Secretary of Labor, promulgate safety and health standards, Congress empowered n Petitioner, him to adopt existing industry standards for the first two years v. following enactment of the Act… After the two year period KENNECOTT COPPER allowed for promulgation of these interim standards any new CORPORATION and standards or modification or revocation of standards could be the Occupational Safety enacted only by following the formal rulemaking procedure and outlined in the Act. Health Review  In promulgating this standard the Secretary changed the Commission, language … Respondents.  We hold that the Secretary did not comply with the statute by reason of his failure to adopt the ANSI standard verbatim or by 23 Dec 1977 failure to follow the appropriate due process procedure….It is, therefore, unenforceable.  It was not the purpose of the Act to make an employer the insurer of his employees' safety. The ultimate aim of the act was not to prevent all accidents, but to provide American employees with safe and healthful working conditions "so far as possible." Certainly the Act requires employers to be diligent in protecting the health and safety of its employees; however, it does not hold the employer responsible for the prevention of all accidents. In addition, the act does impose some responsibility for their safety on the employees, for "Each employee shall comply with occupational safety and health standards."

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 Kennecott was not required to assume the burden of guessing what the Secretary intended plain and unambiguous words employed in the safety regulations to mean. … A regulation cannot be construed to mean what an agency intended but did not adequately express. … If the Secretary were to be permitted to interpret regulations by employing the unusual meaning of words, employers would be deprived of fair notice of that which is expected of them in violation of their due process rights. Fair notice MARTIN  Miami was cited for a machine guarding infraction in 1978. A v. subsequent guard protecting a passer-by was installed but still MIAMI INDUSTRIES, allowed workers to reach over the guard to perform a INC. necessary task (removing pickups from the rollers). CO did not re-inspect but allegedly indicated that Miami was in 11 Feb 1993 compliance.  OSHA conducted 7 inspections of the plant in the ensuing 10 years with no guarding citation for this machine. A subsequent inspection resulted in a machine guarding citation.  Court affirmed OSHRC’s holding that Miami was not given fair notice. Performance  The Secretary counters that § 1910.147 is a performance- -based Secretary of Labor, based standard, and does not apply to individual pieces of standard Complainant, equipment. Because TTS was not engaged in construction v. employment, as defined in § 1910.12, there are no grounds, the Plain Townsend Tree Services Secretary contends, for exempting the trimmer from the LOTO meaning Corporation, standard. Respondent.  The Secretary rightly points out that it is the nature of the work, Unexpected and not the type of machine or equipment, that determines energization 4 August 2005 applicability of the LOTO standard. While it seems inconsistent that the LOTO standard would be inapplicable to an off-the- road vehicle one day while it is used for construction employment, and then would apply the next day when the vehicle was used for non-construction work, that is the plain meaning of the language of the standard.  The Secretary must prove, then, that the trimmer could have unexpectedly energized during the testing phase of the servicing and maintenance process. During the testing process, however, the trimmer was already energized… Neither Ney nor McMahan were subject to the unexpected energization of the machine. They had both participated in energizing it CO did not SECRETARY OF  The mere fact that it is not impossible for an employee to come take LABOR, Complainant into contact with the moving parts of a particular machine does measuremen v. not, by itself, prove that the employee is exposed to a hazard. ts SOUTH DAKOTA  We further find that the evidence presented by the Secretary to BEVERLY support her burden of proof as set forth in our precedent falls Failure to ENTERPRISES, INC. short of establishing exposure. Neither compliance officer took establish d/b/a/ BEVERLY any measurements during their inspections that would relate to actual the exposure of Beverly’s employees to the unguarded mixer, exposure to HEALTH CARE such as how close the rotating paddle comes to the side of the hazard BELLA VISTA bowl or how close employees come to the paddle when it is NURSING HOME, rotating.

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and COMMERCIAL  The Secretary, however, has failed to explain how, on these MANAGEMENT, occasions, Beverly’s employees could have come into contact INC. d/b/a/ with the nip point located four inches down inside the mixer BEVERLY HEALTH bowl with a gallon-size pitcher positioned between their hand, CARE - IPSWICH, and the five-inch opening between the housing and rim of the Respondents bowl.

15 March 2005

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