Lockout Tagout: Faulty definition leads to blockbuster fine

by on December 8, 2010 · 0 Comment POSTED IN: Workplace Safety Network

What’s the difference between a “minor tool change” and service and maintenance? On that seemingly technical question hangs a $2 million tale of politics, legal maneuvering and – most compelling for Safety Directors – employee safety.

The story begins way back in 1993, when a worker at a Dayton Tire plant in Oklahoma City was caught in a tire assembly machine and fatally injured. OSHA issued 106 willful citations for violations of the lockout/tagout standard. The proposed penalty of $7 million was at the time OSHA’s third highest ever.
In 1997, an OSHA judge cut the penalty to $517,000. But then the full Occupational Safety and Health Review Commission took up the case, in which Dayton argued that what its workers did on their machines amounted only to minor tool changes not covered by the standard.
And the Commission sat on the case, and sat on it …

And nothing happened until this year.

Safety legal experts point out that for much of that time, the Commission was below its full strength of three members due to wrangling between Democrats and Republicans over nominees. And as Bush appointee Horace Thompson said, “No decision can be issued when there’s a two-member commission unless they agree on all of the facts and all of the law.”

Obviously, the one Bush appointee and the one Clinton appointee on the Commission didn’t agree on the Dayton Tire case. And as long as the Commission failed to rule, the company didn’t have to correct the lockout/tagout conditions for which it had been cited in the first place. In fact, the plant went out of business in 2006 without changing its procedures.(OSHA head David Michaels, citing the Dayton Tire case, has called for a change in the OSHA Act’s provision that let employers refuse to abate unsafe conditions while appealing citations.)

In February of this year, however, the Commission returned to full strength, with an Obama appointee joining the Bush and Clinton people. And presto, a few weeks ago the Commission finally decided the case: Dayton Tire did indeed commit a massive number of willful violations of the lockout/tagout standard, and owes $1.98 million in penalties. (The Bush appointee dissented, saying that was too much.)

The safety side
What about the safety side of the story? Note first what the lockout/tagout standard says:

“Servicing and/or maintenance which takes place during normal production operations is covered by this standard if an employee is required to remove or bypass a guard or other safety device; or 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 … or where an associated danger zone exists during a machine operating cycle.”

As Dayton Tire noted, there is an exception for what OSHA terms “minor tool changes and adjustments.” The standard doesn’t cover these “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.”

The big mistake
With this in mind, what was Dayton Tire’s mistake? It didn’t look functionally at what workers were doing when they prepared machines for product changes, or when they unjammed or replaced parts on the machines.

Instead, the company relied on a formalistic definition of service and maintenance as being what its outside maintenance contractor provided. Because employees weren’t doing these tasks, the company claimed, they weren’t doing service and maintenance and didn’t have to lock out or tag out.

The company should have looked at the standard’s definition of service and maintenance:

“Activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and maintaining and/or servicing machines or equipment,” including “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.”

All these definitions are useful to Safety Directors. But that last point is the most important: Will employees be exposed to unexpected energy releases? If so, better apply lockout/tagout.

Cite: Sec’y. of Labor v. Dayton Tire, No. 94-1374, OSHRC.

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