By Daniel R. Flynn, Esq.
OSHA originally enacted its standard addressing the control of hazardous energy, commonly known as lockout/tagout (“LOTO”), in 1989. In its preamble to the standard, OSHA clarified that the standard would only apply to “the unexpected activation of the equipment or to the unexpected release of the energy stored in the equipment.”1 The standard itself states that its requirements only apply where “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.”2 Last week, under the guise of its “Standard Improvement Project” rulemaking announcement, OSHA proposed to fundamentally alter the scope and application of the LOTO standard by deleting the term “unexpected” from the standard entirely.3
In its proposal, OSHA claims that, “[r]emoving the word ‘unexpected’ will improve protection of workers under the standard, eliminate the confusion regarding applicability of the standard caused by the GMC Delco decisions, and make the lockout/tagout standard consistent with the lockout/tagout provisions in the General Working Conditions in Shipyard Employment standard.”4
OSHA’s proposal does not merely eliminate confusion. No confusion exists. Striking the word “unexpected” from the standard would fundamentally broaden the scope of the standard.
The GMC Delco Decisions Did Not Create Confusion
The GMC Delco decisions that OSHA references were decided over twenty years ago. They did not create confusion; they simply upheld the plain language of the standard. The case arose out of LOTO citations in which OSHA alleged that employees were “exposed to the unexpected energization or start up of the equipment, or the release of stored energy” while performing maintenance activities on a robot and pneumatic press.5 GM contested the citations because its employees were not exposed to the unexpected energization or start up of the equipment during maintenance activities. Instead, in order for the equipment at issue to be energized and start up, multi-step processes would have to be completed. The ALJ agreed with GM that the processes afforded employees “sufficient time to remove himself or herself from the zone of danger before exposure occurred.”6
OSHA appealed the decision. After a lengthy review of the legislative record and official agency guidance, the Occupational Safety and Health Review Commission affirmed the ALJ’s decision.7 In affirming the ALJ, the Review Commission criticized OSHA’s attempted expansion of the standard.
The plain and unambiguous terms of the standard, and the support of the legislative history, is so overwhelming that the Commission need not even consider the Secretary’s current interpretation. We note, however, that the Secretary’s interpretation is inconsistent with the standard’s terms. He interprets it to apply to every piece of machinery and equipment regardless of whether it could start up unexpectedly. The Secretary would require lockout/tagout even if the record shows there is no possibility of “unexpected” energization, etc. As GM states, the Secretary would “inquire only into whether an employee could be injured if unexpected energization [etc.] were to occur (even if, in fact, it could not).”8
OSHA once again appealed. The Court of Appeals for the Sixth Circuit affirmed the Review Commission’s holding, echoing the Commission’s sentiment that the plain language of the standard requires OSHA to give meaning to the term “unexpected.”
The Secretary argues that the “employer need only determine whether employees could be injured if the equipment is energized, starts up, or releases stored energy during the servicing operation.” This test expressly omits the word “unexpected.” An interpretation that ignores the import of the word is plainly unreasonable when one considers that the rule repeats the word “unexpected” throughout the standard and twice emphasizes it by placing it in italics. 29 C.F.R. § 1910.147(a)(1)(i) and (b). The drafters of the language obviously assigned importance to the word, and it is unreasonable for the Secretary to ignore it.9
In its decision, the Sixth Circuit told OSHA that, “[i]f the Secretary wishes to broaden application of the standard, the rulemaking process affords him a ready opportunity to do so.”10 Apparently, after twenty years, OSHA has taken the Sixth Circuit up on its suggestion.
Subsequent Decisions Have Not Contradicted GMC Delco
The cases cited by OSHA in the proposed rule in support of the amendment are not cases in which courts agreed with a different interpretation of the standard. In both cases, the Review Commission undertook a similar analysis as the Commission did in GMC Delco. The decisions only differ in outcome because the activities at issue were fundamentally different.
The Review Commission found that the activities at issue in Burkes Mechanical fell under the ambit of the LOTO standard presumably because employees bypassed a guard and did not deenergize the moving parts of the equipment that created a zone of danger to which employees were exposed.11 In such circumstances, OSHA’s machine guarding and LOTO standards work in tandem to require employers to either guard the zone of danger or deenergize the equipment. If employers chose the latter, the equipment must be locked out if it could unexpectedly energize or start up. Burkes Mechanical failed to require employees to either work behind a guard or deenergize the equipment before bypassing a guard.
In Otis Elevator, the Review Commission found that the employee was exposed to the possible unexpected energization or start up of equipment because the energization at issue occurred suddenly and without warning, which distinguished the case from the lengthy start-up procedures and warning signals that were present in GMC Delco.12 In reaching its decision, the Commission quoted and relied upon the definition of “unexpected” from GMC Delco: “‘Energization is ‘unexpected’ in the absence of some mechanism to provide adequate notice of machine activation.’”13
The cases OSHA cites in its rulemaking proposal are not the result of confusion. They are merely the result of different facts. OSHA is not just attempting to eliminate confusion. OSHA is attempting to significantly broaden the fundamental scope of the LOTO standard.
OSHA is, of course, permitted to broaden the scope of its LOTO standard provided that it follows proper notice and comment requirements of the rulemaking process under the Administrative Procedures Act. The regulated community should be aware that despite OSHA’s attempt to downplay the significance of its proposal, the proposed amendment to the LOTO standard will have a significant impact on the scope and application of the LOTO standard, which would require managers to reevaluate their LOTO programs and procedures.
Employers have until December 5, 2016 to submit comments. Instructions for doing so are contained in the beginning of proposed rule, which is available here.
Leech Tishman’s OSHA Compliance, Enforcement & Litigation Subgroup has experience counseling companies on a wide range of OSHA issues. Should you have any questions on OSHA’s Changes to the Lockout/Tagout Standard, please feel free to contact Daniel R. Flynn, a partner at Leech Tishman and chair of the firm’s Environmental, Health & Safety Practice Group. Dan also chairs the OSHA subgroup. He can be reached in our Chicago office at 630.536.1171 or firstname.lastname@example.org.
Leech Tishman’s Facebook Page: https://www.facebook.com/leechtishman
Leech Tishman’s Twitter: https://twitter.com/LeechTishman
Leech Tishman’s Company Page on LinkedIn: https://www.linkedin.com/company/leech-tishman
Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, safety & toxic torts, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, internal investigations, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York and Wilmington, DE.
1 54 Fed. Reg. 36644-01.
2 29 C.F.R. § 1910.147(a)(1)(i).
3 81 Fed. Reg. 68,503.
4 Id. at 68,507.
5 Secretary of Labor v. Gen. Motors Corp., Delco Chassis Div., OSHRC Docket Nos. 91-2973, 91-3116, and 91-3117 (June 7, 1993).
7Secretary of Labor v. Gen. Motors Corp., Delco Chassis Div., OSHRC Docket Nos. 91-2973, 91-3116, and 91-3117 (Apr. 26, 1995).
9 Reich v. Gen. Motors Corp., 89 F.3d 313, 315-16 (6th Cir. 1996).
10 Id. 89 F.3d at 316.
11 Secretary of Labor v. Burkes Mechanical, OSHRC Docket No. 04-0475 (Feb. 4, 2005); Secretary of Labor v. Burkes Mechanical, OSHRC Docket No. 04-0475 (July 12, 2007).
12 Secretary of Labor v. Otis Elevator Co., OSHRC Docket No. 09-1278 (Apr. 8, 2013).