Date: Jan 01, 1996
Lawrence P. Halprin, a partner at Keller and Heckman who has followed the
development of OSHA's lockout/tagout standard since its inception, co-authored
this month's column. OSHA has appealed the decision to the Sixth Circuit Court
of Appeals. A decision is not expected before March 1996.
The proper interpretation of the lockout/tagout standard continues to be the subject of intense litigation. The Delco Chassis Division case illustrates the
difficulty that arises when arguably unambiguous regulatory language is subject
to differing interpretations. In some ways, the case illustrates why employers
are frustrated with the agency to the point that legislative changes in OSHA's
rulemaking and enforcement authority are seen as the only way to remedy the
The Delco case involves multiple citations at three separate Delco Chassis Division facilities in August and September of 1991. OSHA inspectors alleged violation of the lockout/tagout standard, 29 C.F.R. ' 1910.147. The standard requires that energy
control procedures be developed, documented and used to protect employees "from
the unexpected energization or start up of equipment or release of stored energy
while performing any maintenance or servicing work." The energy control
procedures must clearly and specifically outline the scope, purpose,
authorization, rules and techniques to be used, and the means to enforce
Delco acknowledged that it did not use lockout/tagout for some maintenance and servicing work. In its defense, Delco argued that a hazard of unexpected
energization did not exist with the equipment involved because energizing and
releasing that energy required completion of a long sequence of steps and,
therefore, the employees performing those activities were not exposed to the
hazard addressed by the Standard. That is to say, any energization of the
equipment could not be unexpected because of the steps that have to be completed
to cause the equipment to operate. Thus, the equipment was designed in such a
way that any employee in the zone of danger would be aware of any attempt to
activate the equipment and would have adequate time to stop those attempts or
safely leave the zone of danger.
In each of the three sets of circumstances at issue, employees would perform tasks that involved stopping the equipment by means of a stop switch. To restart, the employee would have to follow the correct sequence of steps, which, in turn,
would start an equipment initialization sequence. In the Review Commission's
view, this time-consuming start-up procedure of at least eight steps would be
required "before any hazardous activation of the equipment could occur." For
example, in case of the first alleged violation, the following would have to
occur before the equipment was returned to normal operation:
How the Commission viewed the movements of the robot with respect to the existence of a hazard or a lockout/tagout violation is not clear.
Delco argued that the energization cannot be considered unexpected if the person in the zone of danger has ample warning of the equipment operation. The
Administrative Law Judge (ALJ) and a majority of the Review Commission agreed.
The detailed description of the eight-step start-up procedure and the conclusions
reached by the ALJ and the Review Commission majority suggest there is some
validity to the concerns raised by Chairman Weisberg in his dissent. He
concluded that the ALJ and the Review Commission gave the Standard a literal
interpretation which is "squarely at odds with OSHA's intent" as expressed in
the preamble and the text of the Standard.
It appears that OSHA viewed the lockout/tagout rulemaking as conclusively
establishing that employees performing maintenance and servicing tasks on
equipment powered by hazardous energy sources were exposed to unexpected
energization while working on those components. In other words, OSHA would look
only to the outcome of the unexpected energization of equipment -- that is,
whether a person could be hurt -- to determine whether the standard would
apply. The likelihood of an injury resulting from a sequence of improbable
steps is considered irrelevant.
The majority has taken the opposite view with the result that each citation may now involve a case-specific determination on the question of "unexpected
energization." For example, one could reasonably question whether any of the
robot movements in the eight steps described above presented a hazard from the
activation of the equipment. Whether the standard applies may now turn on
highly complex factual findings, such as the number of steps in the start-up
sequence, the reliability of the control circuit, the task being performed,
whether the warning bell is loud enough, whether the warning light is bright
enough, the dangers to workers with hearing or vision impairments, whether the
delay is sufficient, etc. If a sequence of eight start-up steps is enough, how
about seven? six? five?
OSHA's position, the Commission said, presumed that a hazard of unexpected
energization always exists during servicing and maintenance. However, the
Commission said that, to satisfy its burden of proof, OSHA 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." OSHA's
approach, said the Commission, would be unreasonable.
This article appeared in Compliance Magazine
(January 1996) and it is reprinted with permission of Compliance
Magazine. Copyright © 1996 by IHS Publishing Group. All
For further information about this article, please contact
David G. Sarvadi at 202-434-4249
or by e-mail at email@example.com or Lawrence P. Halprin at 202-434-4177
or by e-mail at firstname.lastname@example.org.