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Interpretation of Lockout/Tagout: General Motors Corporation, Delco Chassis Division, OSHRC Docket Nos. 91-2973, 91-3116 & 91-3117 (Consolidated), Occupational Safety and Health Review Commission, April 26, 1995

Date: Apr 26, 1995


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 situation.

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 compliance.

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:

(1) All interlock gates would have to be closed;

(2) The start button on the control console would have to be pushed, which activates the robot system and instructs it to orient itself as to location. This takes some time and, if not in the home position, the robot returns to the home position;

(3) The robot then proceeds to the conveyor area where the bushings are located and picks one up;

(4) The robot then rotates to the press area;

(5) The robot places a bushing into a funnel;

(6) The robot next picks up a dog bone and the other bushing;

(7) The robot returns to the funnel, drops a bushing, and places the dog bone into a fixture; and

(8) Only after the above sequence of tasks is completed will the solenoid valve be signaled to activate the compressed air power to initiate movement of the press.

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 and it is reprinted with permission of Compliance Magazine. Copyright © 2001 by IHS Publishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com or Lawrence P. Halprin at 202-434-4177 or by e-mail at halprin@khlaw.com.