THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, D.C. 20036-3457

DECISION AND ORDER

APPEARANCES:

For the Complainant:

M. del Pilar Castillo, Esq.

U.S. Department of Labor

New York, New York

For the Respondent:

Michael H. Rosenthal, Esq.

RLB Law Group LLC

Philadelphia, Pennsylvania

BEFORE:  William S. Coleman

     Administrative Law Judge

INTRODUCTION

The Respondent, Midvale Paper Box Company, Inc. (Midvale), operates a plant in Plains Township, Pennsylvania, where it manufactures paper boxes for retail use, such as department store boxes, car part boxes, pizza boxes, and the like. Midvale uses a variety of machines that print, cut, fold, and glue paperboard to form the paper boxes. Most of these machines were originally manufactured in the 1970’s or before. (T. 736).

The president and owner of Midvale is Mr. David Frank, who around 1999 acquired the then-shuttered plant and the machinery within. The plant had been used for manufacturing paper boxes for about twenty years before it had been shut down and then acquired by Frank. Upon reopening the plant, Midvale used the same production machinery that the prior plant operator had used for making paper boxes. (T. 512).

Between October 18 and December 14, 2017, a Compliance Safety and Health Officer (CO) from the Occupational Safety and Health Administration (OSHA) went to Midvale’s plant on nine separate occasions to conduct an inspection and investigation of Midvale’s plant and operations. (T. 37). The reason OSHA originally scheduled this inspection was to assess whether Midvale had abated prior violations that had been resolved by a settlement agreement that was effective in June 2017. (T. 34-37). Before OSHA commenced the inspection, however, it received a complaint about Midvale, and so the scope of the planned inspection expanded to investigate the complaint as well. This was OSHA’s fifth inspection of Midvale over a period of about four years. (T. 545-46). The prior four inspections had resulted in the issuance of citations to Midvale, each of which Midvale resolved by entering into settlement agreements. (Exs. C-1, C-20, C-71 & C-77).

The inspection here resulted in the issuance of three citations on April 17, 2018––one serious, one willful, and one repeat––with proposed penalties totaling $201,212.

The serious citation alleged three grouped violations of design safety standards for electric utilization systems (29 C.F.R. §§ 1910.303–.305) and proposed penalties totaling $4,065.

The willful citation alleged two grouped violations of the “control of hazardous energy (lockout/tagout)” (LOTO) standard (§ 1910.147) and one violation of the machine guarding standard for mechanical power-transmission apparatus (§ 1910.219), with proposed penalties totaling $132,106.

The repeat citation alleged one violation of the eye and face protection standard (§ 1910.133), one violation of the powered industrial truck standard (§ 1910.178), three grouped violations and a fourth separate violation of the machine guarding standard for mechanical power-transmission apparatus (§ 1910.219), three grouped violations of design safety standards for electric utilization systems (§§ 1910.303 & 1910.305), and three grouped violations of the hazard communication standard (§ 1910.1200), with proposed penalties totaling $65,041.

Midvale timely contested the citations and proposed penalties, bringing the matter before the independent Occupational Safety and Health Review Commission (Commission) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (Act). The matter was assigned to the undersigned administrative law judge in October 2018. A four-day evidentiary hearing was conducted in Wilkes-Barre, Pennsylvania, from April 29 to May 2, 2019. Posthearing briefing was completed on December 19, 2019.

As described below, certain citation items are vacated, certain citation items are affirmed (though two with different classifications than alleged), and penalties totaling $77,901 are assessed.

DISCUSSION

As stipulated by the parties and as supported and confirmed by the record evidence, the Commission has jurisdiction pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (Act), and Midvale is an employer within the meaning of sections 3(3) and 3(5) of the Act. (Joint Preh’g Statement, § VI).

To establish a violation of an OSHA standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies; (2) there was noncompliance with its terms; (3) employees had access to the violative condition; and (4) the cited employer had actual or constructive knowledge of the violative condition. Donahue Indus. Inc., 20 BNA OSHC 1346, 1348 (No. 99-0191, 2003).

A. Control of Hazardous Energy (LOTO)–
§ 1910.147(c)(4)(i) & 1910.147(c)(7)(i)
(“Willful/Serious” Citation 2, Items 1a and 1b)

1. Prior Inspections and Settlement Agreements

Before addressing the alleged willful LOTO violations, some background into Midvale’s prior inspection, citation, and settlement history provides important context for the citation items at issue here.

Mr. Frank’s Erroneous Understanding

of LOTO Standard Requirements

Midvale defends its lockout 1 practices at the time of the October 2017 inspection in large part based upon what Mr. David Frank, Midvale’s president, testified the OSHA area director (AD), Mark Stelmack, said to him in December 2015 in a meeting at the OSHA area office. The purpose of that meeting was to discuss settlement of a citation that the area office had issued to Midvale in November 2015, and which included an alleged willful violation of the LOTO standard. 2 (T. 475; Ex. C-1 at 13). Mr. Frank testified that his discussion with AD Stelmack led him to believe the following: (1) that only “major” service and maintenance activities required lockout; (2) that “adjustments or minor repairs” on Midvale machinery did not require lockout; and (3) that lockout was not required to clear frequently occurring paper jams in Midvale’s machinery, but rather that Midvale’s practice of simply engaging an “e-stop” to shut down a machine to resolve a paper jam was compliant with the LOTO standard. (T. 515-16, 55152).

After that meeting, Mr. Frank sent an email on December 18, 2015, to Midvale’s plant manager and plant engineer, Mr. John Northwood. In the email, Mr. Frank told Mr. Northwood about the meeting with AD Stelmack, stating in part the following:

I wanted to follow up with one aspect of the conversation I had with Mark (area director) as it pertains to Lock out Tag out. Based on the information you and I discussed and the subjective nature of the OSHA regulation not only for lock [out] tag out but most of their regulation, I asked the director point blank to what extent do we have to de-energize the equipment relative to Lock Out Tag Out.

I said to him, that my understanding as it pertains to the regulation is that the equipment has to be de-energized electrically, hydraulically and Pneumatically if the machine jams up making production an impossibility not only in our factory but factories throughout the country. I explained that we have kill switches through the production line on all our equipment in all departments and that the kill switch has to be manually re-set by the operator. Only [then] can the operator re-start the machine. Obviously if a jam up takes 2 minutes to unjam, and hours to de-energize and reenergize as the regulation reads, manufacturing would be impossible.

He said and I paraphrase, ''we understand jam ups occur and deenergizing is not practical, but if the machine under goes major repair, the machine has to be completely de-energized". Which makes complete sense to me. I explained to Mark [that] you are the only one authorized to lock out tag out the equipment in all [departments]….

As far as I can tell, Lock Out Tagout is for major repairs and regular jam up are covered by the kill switch.

(Ex. R-36). Mr. Frank did not send a similar communication to AD Stelmack to validate the accuracy of either his stated understanding or his “paraphrase” of what AD Stelmack said to him.

Mr. Frank’s understanding of what AD Stelmack said during their meeting in December 2015, as he summarized in his email to Northwood, embodied Midvale’s touchstone principles for determining when to lockout machinery from the time of that meeting in December 2015 through the conduct of the inspection here in late 2017. (T. 519).

AD Stelmack testified to the matters he discussed with Mr. Frank in their December 2015 meeting with greater specificity than did Mr. Frank. AD Stelmack’s recollection of what he said in the meeting was consonant with the performance-oriented nature of the LOTO standard. See Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36644, 36656 (Sept. 1, 1989) (to be codified at 29 C.F.R. pt. 1910) (noting that the LOTO standard is “written in performance-oriented language, providing considerable flexibility for employers to tailor their energy control programs and procedures to their particular circumstances and working conditions.) AD Stelmack’s recollection also reflected his well-grounded knowledge and years of experience in addressing LOTO issues with employers. (T. 468-70, 484-85).

AD Stelmack had never visited Midvale’s plant, so he had never observed the machines that Midvale operates. (T. 477-78). His responses to Mr. Frank’s questions about the LOTO standard were couched in broad terms, which was consistent with his lack of familiarity with Midvale’s machines. AD Stelmack recalled Mr. Frank complaining that the LOTO standard was burdensome. (T. 478). He recalled further that in response to Mr. Frank’s questions about whether using only estops (which Frank referred to as “kill switches” in his email to Northwood) to stop a machine to clear paper jams would conform to the LOTO standard, that he responded generally in the negative, but that he also described how machine guarding measures could potentially suffice under the LOTO standard’s so-called “minor servicing exception” set forth in § 1910.147(a)(2)(ii), note. 3 (T. 485-90). Mr. Stelmack recalled that Mr. Frank declared that he believed clearing paper jams at Midvale would indeed fit within the “minor servicing exception.” In response to this assertion Mr. Stelmack remarked that “all paper jams … are not the same,” although he did not rule out the possibility that clearing some paper jams could fall within the minor servicing exception if the requirements of that exception were present. (T. 485-90).

The undersigned finds AD Stelmack’s account of his discussion with Mr. Frank in December 2015 to be far more reliable than Mr. Frank’s recollection. The greater weight of the evidence establishes that AD Stelmack did not advise Mr. Frank that the sole use of e-stops to stop a machine to clear a paper jam would categorically comply with the LOTO standard. The undersigned finds further that AD Stelmack did not communicate to Mr. Frank, either expressly or implicitly, that the LOTO standard applied only to “major” service and maintenance activities. AD Stelmack’s remarks to Mr. Frank were necessarily nuanced and consonant with the performance-oriented nature of the LOTO standard, particularly considering that AD Stelmack had no first-hand knowledge of the exact equipment and operations at the Midvale plant. Contrary to Mr. Frank’s understanding of what AD Stelmack said to him, it is highly unlikely that AD Stelmack communicated a view that is incongruent with the requirements of the LOTO standard. Contrary to Mr. Frank’s recollection, the greater weight of the evidence is that AD Stelmack did not communicate to him objectively erroneous information on when lockout is required and not required.

Mr. Frank seemingly misinterpreted what Mr. Stelmack said to him in their meeting. It is apparent that Mr. Frank was seeking some bright-line rule from AD Stelmack on when to lockout machinery. (See T. 556-57). But the performanceoriented LOTO standard is not generally susceptible to simplistic rules. Rather, whether the LOTO standard applies depends on the equipment and operations present in any given workplace, and whether any given service or maintenance activity would expose employees to injury if a machine were not locked out for that activity. See 54 Fed. Reg. at 36666 (“If an energy source does not have the capability of causing injury to employees, it is not ‘hazardous energy’ within the scope of this standard”). AD Stelmack’s necessarily non-categorical responses to many of Mr. Frank’s questions appear to have resulted in Mr. Frank believing that the LOTO standard’s requirements were “subjective” (as he described in his email to Northwood) and apparently resulted in his erroneously distilling from his discussion with AD Stelmack a simplistic bright-line rule that AD Stelmack never articulated or implied––that lockout was required only for “major” repairs.

Mr. Frank’s flawed understanding of the requirements of the LOTO standard persisted to the time of the inspection here, which was conducted nearly two years after his December 2015 meeting with AD Stelmack. That Mr. Frank held this flawed understanding for so long was substantially due to his own inaction in failing to retain a qualified safety consultant to perform a comprehensive safety audit of the Midvale plant in early 2015, which Midvale had committed to do, as is described next.

Midvale’s Failure to Retain Safety Consultant to Conduct Audit
From 2015 thru 2017

On December 8, 2014, a year before his December 2015 meeting with AD Stelmack, Mr. Frank signed an informal settlement agreement (ISA) on behalf of Midvale that resolved a citation that OSHA had issued on November 7, 2014. (Ex. C-20). Among other of the ISA’s provisions, Midvale committed to (1) engaging a “qualified third party safety consultant to conduct a comprehensive safety audit” by February 8, 2015, and (2) implementing the consultant’s “reasonable recommendations” no later than June 8, 2015 (unless Midvale requested and OSHA granted an extension of that deadline). 4 As part of the discussions leading up to the execution of the ISA, OSHA informed Midvale that a publicly funded state consultation service that was operated by Indiana University of Pennsylvania (IUP) was available to Pennsylvania employers to perform safety audits at no cost to the employer. See 29 U.S.C. § 670(d); 29 C.F.R. § 1908.1. Midvale intended to use the IUP consultation service to meet its commitment. (T. 359-60, 365). However, Midvale’s obligation under the ISA to engage a safety consultant was not contingent on IUP agreeing to conduct the audit or on the audit being conducted without cost to Midvale. (T. 35960, 370).

Midvale did not retain IUP (or any other safety consultation service) within the timeframe specified in the ISA. (T. 362). On May 29, 2015, more than six months after Midvale signed the ISA, OSHA conducted a follow-up inspection of the Midvale plant for the purpose of assessing whether Midvale had corrected the violative conditions that had been addressed in the ISA. (T. 373-74). That inspection resulted in OSHA issuing another citation to Midvale on November 25, 2015. That citation alleged that Midvale had failed to abate two machine guarding violations that Midvale had accepted in the ISA, and it also alleged eleven new violations. (Ex. C-1 at 23). The purpose of Mr. Frank’s meeting with the area director in December 2015 described above was to discuss this new citation. (T. 475).

In February 2016, about two months after Mr. Frank’s December 2015 meeting with the area director, Mr. Frank first attempted to arrange for IUP to conduct the safety audit that Midvale had agreed fourteen months earlier (in December 2014) to have conducted by February 2015. (Ex. R37; Ex. C-68 at 68-70). However, because Midvale had contested the citation that had been issued in November 2015, the violations alleged in that citation had not become a final order, and so by regulation IUP was not permitted to perform the requested safety audit. 29 C.F.R. § 1908.7(b)(3) (“An onsite consultative visit shall not take place subsequent to an OSHA enforcement inspection until a determination has been made that no citation will be issued, or if a citation is issued, onsite consultation shall only take place with regard to those citation items which have become final orders.”). (T. 369; Ex. C-68 at 72-73).

In May 2017, Midvale and OSHA entered into a formal settlement agreement (FSA) that resolved the citation that had been issued in November 2015. One provision of that FSA required Midvale to retain a consultant to conduct two audits of the Midvale facility over the following two years. (Ex. C-1 at 25).

Four months after the FSA was executed, AD Stelmack sent Midvale a letter dated September 22, 2017, informing Midvale that OSHA had not received Midvale’s notification that it had abated the violative conditions identified in the FSA and requesting that this abatement information be submitted within five business days. (Ex. C-2). The letter stated further that Midvale’s failure to submit the abatement information could result in OSHA conducting a followup inspection to confirm that the violative conditions had been abated. (Ex. C-2).

Midvale did not respond to that letter. Consequently, on October 5, 2017, AD Stelmack’s area office dispatched the CO to Midvale’s plant to conduct a follow-up inspection to assess whether the violative conditions addressed in the FSA had been corrected and to investigate as well a recently received complaint. (T. 34-37, 375, 383). When the CO arrived on October 5, 2017, to commence the inspection, he was turned away because Midvale would not consent to the inspection. (Ex. C-3; T. 375). The CO returned to the Midvale plant about two weeks later, on October 18, 2017, accompanied by the assistant area director, and the inspection that the CO had intended to start on October 5 was formally opened that day. (T. 38-39, 347, 383; Ex. C-6).

After Midvale learned on October 5, 2017, of OSHA’s intent to conduct the follow-up and the complaint inspections, Midvale again contacted the consultative service at IUP to seek assistance, but IUP informed Midvale the next day (October 6, 2017) that in view of the inspection that OSHA had attempted to initiate the day before, that IUP would not schedule an audit until that intended inspection was concluded. (T. 369-70; Exs. C-3 & R-37).

Midvale could have certainly retained a qualified safety consultant to conduct the safety audit that it had committed in the ISA to have done, even though Midvale would likely have had to pay for it. But Midvale never did so. Had Midvale retained a safety consultant as it had committed to do in December 2014, the consultant almost certainly would have evaluated Midvale’s plant for compliance with the LOTO standard and likely would have made reasonable recommendations that Midvale would have been obliged to implement under the terms of the ISA of December 2014. If Midvale had implemented the reasonable recommendations of a qualified safety consultant, it is likely that Midvale would have developed, documented, and implemented a LOTO program that conformed to the LOTO standard, and that Midvale would have avoided the violations for which it was cited in the citation that was issued in November 2015, which precipitated Mr. Frank’s meeting with AD Stelmack in December 2015. Midvale’s continuing failure to retain a safety consultant to conduct a comprehensive safety audit from December 2014 through time of the inspection here in late 2017 likely prolonged non-compliant workplace safety and health practices and conditions at Midvale’s plant.

2. Citation 2, Item 1a -- § 1910.147(c)(4)(i)

The Secretary alleges Midvale violated subparagraph (c)(4)(i) of the LOTO standard (§ 1910.147), which provides as follows: “(4) Energy control procedure. (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.” The Secretary alleges that Midvale violated this provision with respect to nine of its machines: three printing, stripping and die-cutting machines (identified by the brand name Zerand, and known also as “printers/die cutters”); five gluer machines (originally manufactured by International Paper Box Machine Company); and one window-box machine (also originally manufactured by International Paper Box Machine Company).

The bulk of the production at the plant involves the Zerand and the gluer machines, with the window-box machine used intermittently. (T. 232-33). The manufacturing process generally involves feeding large rolls of paper in the Zerand machines where it is printed with multiple colors at multiple print stations and then cut into flat “blanks.” The blanks are then fed through the gluer machines, folded, and glued to make a complete box. (T. 662-65). The Zerand machines and the gluers are large complex machines. The Zerand machines were estimated to be over 100 feet long (T. 699) and the gluers about 70 feet long. (T. 699, 716).

Item 1a describes the manner that Midvale is alleged to have violated the standard as follows:

The employer does not ensure procedures are developed, documented, and utilized for the control of potentially hazardous energy. This violation was most recently observed on or about October 18, 2017 … when the employer did not develop, document and utilize energy control procedures while employees performed servicing and maintenance activities including but not limited to adjusting, cleaning, replacing parts, and clearing jams on the following equipment:

1.  International Paper Box Machine Company Swifty Right Angle Model FZ Gluers (Serial Nos. 397, 602, 639)

2.  International Paper Box Machine Company Swifty Right Angle Model KB Gluers (Serial Nos. 101, 102)

3.  International Paper Box Machine Company Window Machine Model 5A (Serial No. 146)

4.  Zerand Printing, Stripping, and Die Cutting Machines (#1, #2, #3)

The Secretary argues that Midvale did not comply with § 1910.147(c)(4)(i) in multiple ways with respect to all nine identified machines.

Adequacy of Written LOTO Procedures

The Secretary first argues that Midvale’s written energy control procedures were deficient in that the content of the procedures did not meet the requirements of § 1910.147(c)(4)(ii). (Sec’y Br. 18-19). Subparagraph (c)(4)(ii) of the LOTO standard requires in part that an employer’s written LOTO procedures “clearly and specifically outline the scope, purpose, authorization, rules, and techniques to be utilized for the control of hazardous energy.”

Midvale first developed and documented written energy control procedures in early 2016. Midvale did this in response to a prior willful violation of § 1910.147(c)(1) that the Secretary originally alleged in November 2015. Midvale contested that violation, and it did not become a final order until June 2017 after Midvale had accepted the violation in a formal settlement agreement. There is substantial evidence that the content of Midvale’s written procedures failed to meet the requirements of subparagraph (c)(4)(ii). (T. 151). However, the citation item here does not allege a violation of subparagraph (c)(4)(ii). For the Secretary to prove that Midvale did not comply with the requirements of the provision that the Secretary has alleged that Midvale violated (subparagraph (c)(4)(i) ) the Secretary was required to show that Midvale failed to either “develop,” or “document,” and/or “utilize” procedures for the control of potentially hazardous energy. The Secretary did not prove that Midvale failed to “develop” or “document” LOTO procedures because Midvale did just that, notwithstanding that the content of those procedures was deficient. (Ex. R-40 at 60-69; T. 149-50, 798-801, 816). See OSHA Directive CPL-02-00-147, The Control of Hazardous Energy –– Enforcement Policy and Inspection Procedures, p. 2-9 (Feb. 11, 2008) (LOTO Directive) 5 (“[S]ection (c)(4)(i) may be cited for procedural development, documentation and use issues; whereas, section (c)(4)(ii) shall be cited for procedural content and quality problems – e.g., for the failure to have clear and specific steps to be followed in order to control hazardous energy”); Gen. Motors Corp., CPCG Okla. Plant (GM-CPCG Okla.), 22 BNA OSHC 1019, 1025-27 (No. 91-2834E, 2007) (discussing and finding violations of § 1910.147(c)(4)(i) where employees failed to utilize established energy control procedures and of § 1910.147(c)(4)(ii) where those procedures were inadequate). The parties did not consent to trying the unpleaded issue of the conformance of Midvale’s developed and documented energy control procedures with the requirements of subparagraph (c)(4)(ii), and so that issue is not adjudicated herein. See McWilliams Forge Co., Inc., 11 BNA OSHC 2128, 2129-30 (No. 80-5868, 1984) (“Trial by consent [under Fed. R. Civ. P. 15(b)] may be found only when the parties knew, that is, squarely recognized, that they were trying an unpleaded issue.”)

Thus, for the Secretary to establish the violation that he has alleged in Item 1a requires proving that Midvale failed to “utilize” LOTO procedures as the cited provision also requires. The Secretary argues that he “introduced evidence of several instances in which … employees performed servicing and maintenance activities while a covered machine was not locked out.” (Sec’y Br. 20). The instances that the Secretary argues establishes noncompliance are addressed next.

Cleaning Under Gluer #3 on November 21, 2017

A video that the CO recorded on November 21, 2017, shows Mr. Vincent Dellaperuto, who is a floor manager at the plant, kneeling or stooping toward the floor to gather and remove some granular absorbent material that had been put down on the floor next to Gluer #3 to absorb gear oil that had leaked from the machine. (See video at Ex. C-82; Ex. C-11 at Bates 90; T. 98-99). This oil leak had been a longstanding condition and oil regularly had to be cleaned from the floor in this area. (T. 102). When Dellaperuto was cleaning up the material, Gluer #3 was in operation and a horizontal shaft that was located about seven inches above floor level was rotating. (T. 98-100; C-81). A machine guard existed for this shaft, but that guard had been removed and was not in place at the time. (See infra for the Discussion of the machine guarding violation involving this missing machine guard that is alleged in Citation 3, Item 2, instance 3). Dellaperuto’s right hand came within one foot of the rotating shaft while he cleaned the material off the floor. (T. 98-99).

Midvale’s president, Mr. Frank, testified that Dellaperuto was not required to lockout Gluer #3 for the cleaning activity depicted in the video because this was a “minor activity.” (T. 562-63). He testified further that he believed that Dellaperuto was not exposed to a hazard while cleaning the material. (T. 562-63). Similarly, the plant manager and plant engineer, John Northwood, testified that employees at Midvale were not required to lockout machines when engaged in the type of cleaning activity that Dellaperuto is shown doing in the video. (T. 758-59). However, Mr. Northwood acknowledged that if Dellaperuto had contacted the rotating shaft he could have been injured. (T. 761-62).

The cleaning activity that Dellaperuto was doing constituted “servicing and/or maintenance” as defined by the LOTO standard. 6 See Burkes Mech., Inc., 21 BNA OSHC 2136, 2138-40 (No. 04-475, 2005) (concluding that workers who were cleaning underneath an operating machine were “engaged in a covered servicing or maintenance activity”).

If the guard for the rotating shaft had been in place when Dellaperuto was cleaning the material from the floor near the exposed rotating shaft, the Secretary would not have established that the machine was required to have been locked out for that activity, because there was otherwise no evidence that the rotating shaft, if it had been guarded as the machine guarding standard requires, could have caused Dellaperuto injury. See § 1910.147(a)(1)(i) (providing that the standard covers servicing and maintenance in which hazardous energy “could cause injury to employees”). But because the guard was not present when Dellaperuto was engaged in this cleaning activity, the machine was required to be locked out when he encroached on the zone of danger presented by the unguarded rotating shaft. Cf. § 1910.147(a)(2)(ii)(A) (providing that the LOTO standard applies to normal production operations when an “employee is required to remove or bypass a guard”).

A preponderance of the evidence thus showed that the LOTO standard applied to Dellaperuto’s cleaning activity, that Midvale failed to comply with the standard by failing to lockout the machine during the cleaning activity, and that Dellaperuto was exposed to the hazardous energy of the rotating shaft while cleaning. Midvale had constructive knowledge of the violative condition in that both Midvale’s president and its plant manager did not require the machine to be locked out for the cleaning activity depicted in the video. Midvale had actual knowledge because Dellaperuto is a supervisor whose actual knowledge of a violative condition is imputable to Midvale. Midvale violated the LOTO standard in the manner alleged in Item 1a with respect to Dellaperuto’s cleaning activity on November 21, 2017.

However, as discussed infra in connection with the alleged machine guarding violation that focuses on the same unguarded rotating shaft on Gluer #3 (Citation 2, Item 2, Instance 3), this same activity of Mr. Dellaperuto establishes the “employee access” element of that alleged violation. The exposed shaft was supposed to have been guarded, but as the video reflects the guard was not present on November 21, 2017, when Dellaperuto encroached on the zone of danger. For reasons described infra, the LOTO violation and the machine guarding violation that involved the same unguarded rotating shaft are duplicative of one another, so one of the two must be vacated. Because the LOTO standard would not have been applicable to Dellaperuto’s servicing activity if the guard for the rotating shaft had been in place, between the two violations the LOTO violation shall be vacated. (This proven but vacated LOTO violation is not considered infra in connection with the penalty determination for grouped Items 1a and 1b of Citation 2.)

Removal and Replacement of Belts

The Secretary argues that all the machines identified in the citation item “have belts which can break” and that the evidence established that Midvale “employees do not use LOTO when replacing and/or removing belts on these machines.” (Sec’y Br. 20). Midvale employees testified that machines were not necessarily locked out for the removal and replacement of every belt on the various machines at Midvale, but that machines would be locked out for the removal and replacement of some. (E.g., T. 588, 643-44, 768, 774).

The evidence on which the Secretary relies in arguing that the belt removal and replacement done on the Midvale machines required lockout is inexact as to the time and circumstances of that service and maintenance activity. That evidence is insufficient to establish that any specific instances of belt removal and replacement requiring lockout occurred on or after October 17, 2017, which is the earliest date within the six-month limitations period of section 9(c) of the Act. 29 U.S.C. § 658(c). There is no evidence of specific instances of employees engaging in belt removal and replacement that occurred on or after October 17, 2017. 7 (E.g., T. 391-93, 633-34, 640-42).

The nonspecific evidence of instances of belt removal and replacement is insufficient to establish that Midvale failed to lockout the machine when required by the standard during removal or replacement of any of the various belts on the varied machines in the timeframe alleged in the Citation. 8 See Gen. Motors Corp., Delco Chassis Div. (GM-Delco), 17 BNA OSHC 1217, 1218 & 1220 (No. 91-2973, 1995) (consolidated) (stating the standard “applies only where the Secretary shows that unexpected energizing, start up or release of stored energy could occur and cause injury” and that the “terms of the standard clearly place the burden on the Secretary to show that there is such a hazard as to the cited machines and equipment”), aff'd, 89 F.3d 313 (6th Cir. 1996).

The plant manager, John Northwood, testified that employees would change unspecified belts on gluers by using an Allen wrench, and that this would be done about twice weekly without utilizing LOTO procedures. (T. 777). There was no evidence, however, bearing on whether while performing that task any unexpected energization of the gluers could cause injury to employees, so the evidence is insufficient to establish that the LOTO standard applies to that activity that occurred within the timeframe alleged in the Citation. See § 1910.147(a)(1)(i) (providing that the standard covers servicing and maintenance in which energization “could cause injury to employees”); 54 Fed. Reg. at 36666 (“If an energy source does not have the capability of causing injury to employees, it is not ‘hazardous energy’ within the scope of this standard”).

Adjustments of Belts and Rollers

Reliable evidence established that some unspecified belts on the various machines at the plant become misaligned and require adjusting. Midvale does not require lockout for such adjustments because Midvale does not regard these adjustments to constitute a “major” maintenance activity. (See T. 561; Ex. C-68 at 28 & 83.)

The CO testified that on November 7, 2017, while Gluer #3 was running he observed one of Midvale’s floor managers, Mr. Dellaperuto, adjust a narrow green belt on it that has both a horizontal and vertical run. (T. 90-93). (This belt is depicted in operation in the video at Exhibit C-80, but the incident to which the CO testified was not captured in any video or photographic evidence.) The CO believed Dellaperuto was exposed to the risk of injury while doing so. (T. 90-93). The CO’s testimony is insufficiently concrete and precise to establish that Dellaperuto’s hands were in a danger zone associated with the machine’s operation and is thus insufficient to establish that the LOTO standard applied to the work he observed Mr. Dellaperuto doing on Gluer #3 while the machine was running. See § 1910.147(a)(2)(ii)(B), (providing that the standard applies during normal production operations if 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”).

The CO testified that on November 9, 2017, he observed an unidentified employee making some kind of adjustment while his hands were near (but not on) some moving belt on Gluer #5, but that the CO did not see exactly what the employee was doing. (T. 96, 282-83). This testimony is insufficiently weighty to establish that the employee was engaged in a service or maintenance activity during normal production operations that required LOTO procedures to be utilized, in that it is insufficient to establish that the employee could have sustained injury from the moving belt, which he was not contacting. See § 1910.147(a)(1)(i) (providing that the standard covers servicing and maintenance in which energization “could cause injury to employees”).

The CO testified that on November 21, 2017, he observed two unidentified employees making some unspecified type of adjustment to some unspecified rollers on the Zerand #1 machine while the machine was operating. (T. 96-97). There is no evidence whether the rollers involved were “energized,” in contrast to non-energized or “idler” rollers. (See T. 286). This testimony is insufficiently weighty to establish that the employees were at risk of injury from the rollers while making the unspecified adjustment. See 54 Fed. Reg. at 36666 (“If an energy source does not have the capability of causing injury to employees, it is not ‘hazardous energy’ within the scope of this standard”).

Clearing Paper Jams

All nine machines identified in the citation item have mechanisms that Midvale calls “jam stops” that are designed to stop the machine upon detecting a paper jam. The jam stops do not cause a machine to stop automatically for all paper jams, however. (T. 516-18, 581-83, 613-14, 629). Whether a paper jam is detected first by a “jam stop” or by an employee, in both circumstances Midvale instructs employees to engage an e-stop on the machine so that the machine remains stopped while the employee clears the jam, and then after the jam is cleared to disengage the estop and restart the machine by depressing the machine’s start button. Midvale does not require employees to lockout machines to resolve frequently occurring paper jams. (T. 665-70).

Each of the machines identified in the citation item has multiple e-stop buttons: the Zerand machines have about eight to ten; the gluers have about ten; and the “window box” machine has about three. (T. 666, 744). The plant engineer (and the plant manager), John Northwood, testified that the estops on the machines have a fail-safe redundancy, so that if an e-stop were to fail, it would fail into “safe mode by design.” (T. 667-68, 738-39).

Northwood testified further about a method of clearing some paper jams that requires an employee to remove a machine guard, but that a safety interlock for that guard prevents unexpected energization of the machine. (T. 808-13). That safety interlock is among “hundreds” of safety interlocks on Midvale’s machines, some of which were part of the original designs of the machines, and others that were added later. (T. 725-27, 322-23).

Northwood has been involved in the repair and maintenance of Midvale’s machines for fifteen years and for nearly twenty years before that he worked on the same type of equipment working elsewhere. (T. 659). Northwood has received formal training at the Rochester Institute of Technology on printing subjects, at Penn State University on microprocessor controls, electrical controls, and motor drives and systems, and at various trade schools on other subjects. (T. 659-60).

The Secretary presented no technical evidence, whether from the manufacturers of the machines or otherwise, to controvert Northwood’s testimony on the technical aspects of the estops and safety interlocks on Midvale’s machines. There is insufficient evidence to establish by a preponderance that the use of e-stops to stop the machines while an employee cleared a jam on the machine (or the safety interlock feature of some machine guards on the machines) would expose employees to injury from unexpected energization. See Consol. Constr., Inc., 16 BNA OSHC 1001, 1006 n. 6 (No. 89-2839, 1993) (noting that the Secretary was not required to present expert testimony to prove his case, but that “when the Secretary chooses not to produce an expert witness, he risks the possibility, as here, of not being able to refute the employer's evidence”); Gen. Motors Corp., Delco Prod. Div., 11 BNA OSHC 1482, 1484 (No. 78-5476, 1983) (observing that “had the Secretary met his prima facie burden, it is questionable whether, without expert testimony, the Secretary's case would have been capable of withstanding rebuttal” from the respondent).

The Commission has decided that control circuit type devices such as e-stops and safety interlocks may operate in such a manner that eliminates the potential of hazardous energy for certain servicing or maintenance activities, so that the LOTO standard does not apply to those activities. See GM-Delco, 17 BNA OSHC at 1220 (rejecting the argument that the LOTO standard “presumes that there always is a hazard of unexpected energization, etc., on every industrial machine and piece of equipment during servicing and maintenance,” and determining LOTO standard not applicable where employer relied on control circuit type devices, including electronically interlocked gates and e-stop buttons, to eliminate the potential for injury from hazardous energy); see also Alro Steel Corp., 25 BNA OSHC 1839, 1854 (No. 13-2115, 2015) (ALJ) (relying on GM-Delco in determining LOTO standard was not applicable where control circuit devices were relied upon to prevent unexpected energization or start up or release of stored energy during a particular servicing activity). With respect to clearing paper jams, there is insufficient concrete evidence that if an employee were to engage an estop to clear the paper jam that there was a reasonable possibility that some other employee would disengage that estop and restart the machine unbeknownst to employees involved in servicing the machine. (Cf. CO testimony T. 319-20) (CO testifying that he did not consider whether other employees had unobstructed views of the servicing employee from the controls of the various machines).

While there exists hydraulic and pneumatic energy in some of the machines, the Secretary did not present sufficient evidence to establish that during the conduct of any given service and maintenance activity on any of them that employees are exposed to injury from those energy sources. 9 The only energy source for any of the machines that was established by a preponderance of the evidence to present a risk of injury to employees during service and maintenance activities is electrical energy, which can be controlled by locking out at each machine’s power source. (T. 605, 694-95).

Clearing Paper Jam in the Window Machine on November 21, 2017

On November 21, 2017, the CO recorded the video at Exhibit C-13, which is 3 minutes and 21 seconds in duration. (Ex. C-11 at Bates 89). Mr. Northwood, the plant manager, was accompanying the CO when the CO recorded the video. (T. 72). The video shows three employees operating the “window box” machine. The machine jammed, and two employees put their hands in the machine’s point of operation to clear the jam without locking out the machine and without an e-stop being engaged. 10 (T. 70-80; Ex. C-11 at Bates 89).

This service activity of clearing the paper jam depicted in the video constituted a service activity “where the employee may be exposed to the unexpected energization or startup of the equipment or release of hazardous energy.” § 1910.147(b) 11; Otis Elevator Co. v. Sec’y of Labor, 762 F.3d 116, 123 (D.C. Cir. 2014) (determining the text of the LOTO standard contemplates its application to “unjamming” work, and also “comports with the standard's preventative purpose”). The employees clearing the jam were exposed to the “unexpected” energization of the machine because with the e-stop (which is purportedly fail-safe) disengaged, the machine could be restarted by simply depressing the start button. If the machine were restarted without warning to the servicing employees, the restart would be unexpected as to those employees and could cause them injury. (T. 86-87). Id., 762 F.3d at 121 (indicating that whether an energy source presents the potential for hazardous energy involves a two-pronged test: (1) whether unexpected energization, start up or release of stored energy could occur, and (2) if it can occur, whether it could cause injury to employees). This is precisely the kind of industrial accident the LOTO standard is designed to prevent. See GM-CPCG Okla. 22 BNA OSHC at 1022 (“The LOTO standard … was promulgated to prevent industrial accidents during servicing of machines that (1) remain in an operational mode, (2) are turned off but connected to a power source, (3) retain stored energy, or (4) are reactivated by another worker unaware that servicing is in progress.”)

Midvale argues that energization of the window box machine when employees are engaged in clearing a paper jam could never be unexpected to those servicing employees, and thus lockout was not required. Midvale argues that the members of the three-employee crew that runs the window box machine have “complete visibility” of each other while running the machine and that it is unnecessary to lockout a machine to protect against the possibility of another employee deliberately endangering the servicing employees by restarting the machine while they had their hands in the point of operation. (Resp’t Br. 23).

This argument is rejected. The conditions that Midvale argues renders any energization of the window box machine not “unexpected” to servicing employees overlook “common human errors such as ‘neglect, distraction, inattention or inadvertence.’ ” S. Hens, Inc. v. OSHRC, 930 F.3d 667, 677 (5th Cir. 2019), quoting Matsu Ala., Inc., 25 BNA OSHC 1952, 1970 (No. 13-1713, 2015) (ALJ). “Occupational safety regulations exist because people are distractible.” Id. “Functioning with less than perfect focus and control is our ordinary condition.” Id. The noise and activity on the busy floor of Midvale’s plant depicted in the video reflects an environment rich in conditions for worker distraction, inadvertence, and inattentiveness. Under such typical working conditions, it is reasonably possible that the window box machine could be started without the prior knowledge of the servicing employees and expose them to the risk of injury. 12

Machine Set-Up and Cleaning

Midvale does not require employees to lockout when setting up or cleaning any of the nine machines identified in the citation item. (Ex. C-67; T. 632, 731-33, 759). Both setting up and cleaning machines and equipment constitutes “service and/or maintenance” as defined in the LOTO standard if during that activity “the employee may be exposed to the unexpected energization or startup of the equipment or release of hazardous energy,” § 1910.147(b), and if such exposure to the hazardous energy could cause injury to employees. Otis Elevator, 762 F.3d at 121.

The only evidence presented establishing the reasonable possibility of unexpected energization during setting up or cleaning pertains to an unguarded power transmission belt and pulleys on the non-operator side of Zerand #2, which is discussed in detail infra in connection with the machine guarding violations alleged in Citation 3, Items 3a and 3b. As discussed in connection with those citation items, a preponderance of the evidence establishes that employees engage in both setting up and cleaning underneath the Zerand #2 while in proximity to the unguarded belt and pulleys and are at risk of injury from the unexpected energization of the machine. The Zerand #2 is a complex machine about 100 feet long, but the only hazardous energy present is electrical energy, which can be isolated and locked out in minutes at its main disconnect. 13 (T. 615, 694-95, 699). An employee in proximity of the unguarded belt and pulleys on the non-operator side of the machine would not necessarily be visible to an employee located on the operator side of the machine because of the machine’s size and height, so an employee in that area would be exposed to the risk of injury by the inadvertent or premature activation of the machine. (Ex. R-26; T. 692). See 54 Fed. Reg. at 36648 (“The generally accepted best means to minimize the potential for inadvertent activation is to ensure that all power to the machine or equipment is isolated, locked or blocked and dissipated at points of control, using a method that cannot readily be removed, bypassed, overridden or otherwise defeated.”). 14

This LOTO violation and the machine guarding violations that are adjudicated infra in connection with Citation 3, Items 3a and 3b involve exposure to the same unguarded belt and pulleys. As described in connection with those machine guarding violations, this LOTO violation and those machine guarding violations are duplicative of one another, so one of the two must be vacated. Because the LOTO standard would not have been applicable to the servicing activity done in proximity to the unguarded belt and pulleys if a guard that conformed to machine guarding standard had been in place, between the two violations the LOTO violation shall be vacated. (The proven but vacated LOTO violation is not considered infra in connection with the penalty determination for the LOTO violation.)

With regard to other aspects of setting up and cleaning the nine machines identified in Item 1a of Citation 2, it is entirely possible, and perhaps even probable, that the unexpected energization of the machines during the setting-up and cleaning the machines could cause injury, but there is no concrete evidence that those activities present an actual risk of injury from hazardous energy. 15 The existence of such a risk cannot be presumed, but rather there must be substantial evidence that at least supports the reasonable inference that such a risk exists. Alleged violations are not proven when based on surmise, conjecture, or even an “educated guess.” Keystone Body Works, 4 BNA OSHC 1523, 1524 (No. 6606, 1976).

“Fair Notice” Defense

Midvale argues that it was deprived of fair notice of the requirements of the LOTO standard based upon Mr. Frank’s recollection that in December 2015 AD Stelmack told him that lockout was required only for “major” service and maintenance activities. (Resp’t Br. 35-37, citing Miami Indus., Inc., 15 BNA OSHC 1258, 1264 (No. 88-671, 1991), aff'd. in relevant part and set aside in part, 983 F.2d 1067 (6th Cir. 1992) (unpublished). As previously discussed, Mr. Frank’s understanding of what AD Stelmack said to him is objectively unreasonable. A preponderance of the evidence fails to support the factual predicate for Midvale’s “fair notice” argument.

Violation of Non-delegation Doctrine

Midvale argues that the D.C. Circuit’s holding in UAW v. OSHA, 37 F.3d 665, 667 (D.C. Cir. 1994), that the LOTO standard does not run afoul of the non-delegation doctrine is infirm in light of the Supreme Court’s subsequent decision in Whitman v. Am. Trucking Assn’s, Inc., 531 U.S. 457 (2001), and so asks that the Act be declared unconstitutional as violative of the nondelegation doctrine. (Resp’t Br. 49-51). Inasmuch as the Commission lacks authority to adjudicate the constitutionality of a statute, the merits of that argument are not addressed. See S.A. Healy Co., 17 BNA OSHC 1145, 1147 (No. 89-1508, 1995), aff’d on other grounds, 138 F.3d 686 (7th Cir. 1998) (noting that “[a]rguably, the Commission would not be competent to decide … whether the Act would be unconstitutional”); Johnson v. Robison, 415 U.S. 361, 368 (1974) (noting the principle that “adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies”).

Classification of § 1910.147(c)(4)(i) Violation

The Secretary alleges that the violation should be classified as both “willful” and “serious.” (Complaint, ¶6).

Whether a violation is “willful” presents a question of fact. Bianchi Trison Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005); Dayton Tire v. Sec’y of Labor, 671 F.3d 1249, 1254 (D.C. Cir. 2012) (determining that the Commission’s finding of willfulness lacked “substantial supporting evidence”).

“The hallmark of a willful violation is the employer's state of mind at the time of the violation.” Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000), aff'd, 268 F.3d 1123 (D.C. Cir. 2001). A violation is willful if the employer acted with an intentional, knowing, or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety. Stark Excavating, Inc., 24 BNA OSHC 2215, 2222 (No. 09-0004, 2014) aff’d, 811 F.3d 922 (7th Cir. 2016); A.E. Staley Mfg. Co. v. Sec'y of Labor, 295 F.3d 1341, 1351 (D.C. Cir. 2002) (observing that “conscious disregard” and “plain indifference” are alternative means of proving willfulness). A showing of evil or malicious intent is not necessary to establish willfulness. Anderson Excavating and Wrecking Co., 17 BNA OSHC 1890, 1891, n.3 (No. 92-3684, 1997), aff'd 131 F.3d 1254 (8th Cir. 1997). But in proving willfulness it is “not enough for the Secretary simply to show carelessness or lack of diligence in discovering or eliminating a violation.” Williams Enters. Inc., 13 BNA OSHC 1249, 1257 (No. 85-355, 1987). “[A] willful violation may be found where the employer knows of the legal duty to act, and knowing an employee is exposed to a hazard, nonetheless fails to correct or eliminate the hazardous exposure.” Revoli Constr. Co., 19 BNA OSHC 1682, 1685 (No. 00-1315, 2001); see also Dukane Precast, Inc. v. Perez, 785 F.3d 252, 256 (7th Cir. 2015) (concluding that proof of willfulness under section 17(a) of the Act “requires proof only that the defendant was aware of the risk, knew that it was serious, and knew that he could take effective measures to avoid it, but did not—in short, that he was reckless in the most commonly understood sense of the word”).

The Secretary’s arguments that Midvale’s failure to develop clear and specific machine specific LOTO procedures was willful conduct is rejected for the reasons stated earlier—Item 1a of Citation 2 does not allege the content of Midvale’s documented program was deficient.

The Secretary justifies the willful classification in part based on two prior violations of a different provision of the LOTO standard, § 1910.147(c)(1), which requires employers to “establish a program consisting of energy control procedures, employee training and periodic inspections.” Midvale’s first violation of subparagraph (c)(1) was based on Midvale’s failure to have any program and became a final order on February 20, 2014. (Ex. C-71; T. 459). Midvale apparently failed to develop any LOTO program to abate that first violation. Midvale’s second established violation of § 1910.147(c)(1) and was likewise based on Midvale’s failure to establish any LOTO program and was classified as willful. This second violation became a final order on June 19, 2017. (Ex. C-1 at 13 & 24; T. 350-51). After the second violation became a final order, Midvale did not submit information showing it had abated that violation (or any other violations established by that final order) until sometime after the inspection here had commenced. (See Ex. R-40). Indeed, the inspection here was originally scheduled because Midvale had failed to timely submit any abatement information relating to the final order of June 19, 2017. (Ex. C-2; T. 373-75). Midvale eventually did provide abatement material for the violations established by the final order of June 19, 2017, which included a written energy control program that Midvale had adopted in 2016 in an apparent effort to correct the second alleged violation of § 1910.147(c)(1). (Midvale does not explain why it did not provide this abatement material earlier. [Ex. R-40 at Bates 336-346; T. 521].)

The two prior violations for failing to have an energy control program do not establish that the violation established here for failing to utilize LOTO procedures was willful. To be sure, Midvale failed to exercise reasonable diligence in implementing the LOTO program that it did develop, and its documented energy control procedures were seriously flawed in their content, but the evidence is insufficient to establish that its carelessness and failure to exercise reasonable diligence rose to the level of willfulness within the meaning of the Act.

The violation is properly classified as “serious.” A violation is “serious” if there was a substantial probability that death or serious physical harm could result from the violative condition. 29 U.S.C. § 666(k); Consol. Freightways Corp., 15 BNA OSHC 1317, 1324 (No. 86–351, 1991). “This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result if an accident does occur.” Oberdorfer Indus. Inc., 20 BNA OSHC 1321, 1330-31, (No. 97-0469, 2003) (consolidated) (citation omitted). Serious physical harm could result from the failure to utilize LOTO procedures when required to protect employees from injury from hazardous energy. See Kaspar Electroplating Corp., 16 BNA OSHC 1517, 1522) (No. 90-2066, 1993) (likelihood of severe lacerations to hand support classification of serious).

3. Citation 2, Item 1b -- § 1910.147(c)(7)(i)

In Citation 2, Item 1b, the Secretary alleges that Midvale violated § 1910.147(c)(7)(i), which requires employers to provide certain training to employees as part of an energy control program that is required under subparagraph (c)(1). 16 Item 1b alleges that Midvale violated the standard with respect to each of the nine machines that were identified in Item 1a of the Citation in the following manner:

The employer does not provide training to ensure that the purpose and function of the energy control program is 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. This violation was most recently observed on or about October 18, 2017 … when employees performed servicing and maintenance on machinery with multiple sources of energy ….

After Midvale had been cited in November 2015 for an alleged willful violation of § 1910.147(c)(1), Midvale established a LOTO program and in implementing that program it provided LOTO training in February 2016 to most employees as “affected employees.” (T. 128, 775, 779, 793, 817; Ex. R-40 at Bates 347). Only three supervisory employees (Northwood, Dellaperuto, and Thorne) are trained as “authorized employees,” and they are the only employees that Midvale permits to lockout machines. (T. 586, 591-93, 630-31, 769-70). No evidence of the precise content of the LOTO training that was provided in February 2016 was presented, so there is no basis for finding that its content did not reasonably address the matters on which authorized and affected employees must be trained as specified in § 1910.147(c)(7)(i)(A) & (B).

From the time of the initial LOTO training in February 2016 through the commencement of the inspection here in October 2017, Midvale did not provide LOTO training to any newly hired employees who were required to receive LOTO training. (T. 129-30, 133; e.g., Ex. C-56 [Accomando, started on 6.24.2017; Siglin, started on 10.2.2017], Ex. C-57 [Bowers, started in May 2017], T. 803 [Kivler, start date not identified but not trained in February 2016]).

The cited standard applies. Employee training is an essential component of any energy control program that is required to be established by the LOTO standard. § 1910.147(c)(1) (providing that energy control programs consist of, inter alia, “employee training”).

Midvale failed to comply with the training provision because it did not provide training to all employees who are required to be trained. Moreover, Nate Siglin was the operator of the window box machine on November 21, 2017, as described above in connection with the violation of § 1910.147(c)(4)(i), when he and another employee cleared a paper jam without locking out or having an e-stop engaged, and he had not received LOTO training as of that date. (Ex. C14; T. 233-34; Ex. C-40 at Bates 169).

The presence of untrained employees on the production floor establishes employee access to the violative condition. Likewise, the servicing of a machine that was required to be locked out by an employee who had not received any LOTO training (Siglin) establishes employee access to the violative condition.

Midvale had actual knowledge of its failure to train employees that the standard’s training provision requires to be trained. See Compass Env'tl, Inc. v. OSHRC, 663 F.3d 1164, 1168 (10th Cir. 2011) (“[E]mployer knowledge of the violative condition … will almost invariably be present where the alleged violative condition is inadequate training of employees.”).

A preponderance of the evidence establishes the violation of § 1910.147(c)(7)(i) alleged in Item 1b.

Classification of § 1910.147(c)(7)(i) Violation

As with Item 1a of this citation, the Secretary alleges that the violation for Item 1b should be classified as both “willful” and “serious.” (Complaint dated 7.2.2018, ¶ 6).

Midvale’s failure to train some employees who were required to be trained reflects carelessness and a failure to exercise reasonable diligence, but the evidence is insufficient to establish that its failure rose beyond that level of culpability to willfulness. See Dayton Tire v. Sec’y of Labor, 671 F.3d 1249, 1257 (D.C. Cir. 2012) (finding that the employer’s safety manager having made “some effort” to comply with the LOTO standard was “enough to save [the employer] from a willfulness determination”).

The violation is properly characterized as serious. Providing employees proper training is a critical component of an effective LOTO program to prevent injury from hazardous energy. See 54 Fed. Reg. at 36673 (stating the performance-oriented training requirements of subparagraph (c)(7) are “of critical importance in helping to ensure that the applicable provisions of the hazardous energy control procedure(s) are known, understood and strictly adhered to by employees”).

4. Penalty for Grouped Serious Violations of § 1910.147

The maximum penalty for a serious violation proven in connection with the inspection here is $12,934. 29 C.F.R. § 1903.15(d)(3) (2018) (setting forth maximum amounts for penalties that are proposed from 1.3.2018 to 1.23.2019).

The Commission is the final arbiter of penalties. Hern Iron Works, Inc., 16 BNA OSHC 1619, 1622, (No. 88-1962, 1994), aff’d, 937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty amounts but places no restrictions on the Commission’s authority to raise or lower penalties within those limits”), aff’d, 73 F.3d 1466 (8th Cir. 1996). “[T]he Commission has the authority to ensure that a penalty is not unduly burdensome or excessive by evaluating the penalty assessment criteria set forth in the Act and determining a reasonable and appropriate penalty based on that evaluation.” S.A. Healy Co., 17 BNA OSHC 1145, 1151 (No. 89-1508, 1995), aff’d on other grounds, 138 F.3d 686 (7th Cir. 1998).

Section 17(j) of the Act requires the Commission, in assessing an appropriate penalty, to give due consideration to the gravity of the violation, the “size of the business of the employer,” and to the employer’s history of previous violations and good faith. 29 U.S.C. § 666(j). Of these factors, gravity is the principal factor “and is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005).

The undersigned concurs with the Secretary’s determination to group the two LOTO violations and assess a single penalty for both. See Miniature Nut and Screw Corp., 17 BNA OSHC 1557, 1559-60 (No. 93-2535, 1996) (combining penalties for items involving violations of separate components of a hearing conservation program). The undersigned concurs further in the Secretary’s assessment that the gravity of the two violations is “high,” so that the gravity-based penalty for the grouped serious violations would be the maximum penalty of $12,934. (Ex. C-11 at Bates 85; Ex. C-15 at Bates 93). The undersigned concurs further in reducing the maximum penalty to account for Midvale’s small size, but instead of reducing the penalty by 50% as the Secretary proposed for the alleged willful violations, the reduction for size should be 60%, as the Secretary has done with respect to the other serious violations, as is described infra. This reduction for size includes consideration of Midvale’s financial wherewithal. (Exs. R. 41 & R-42; T. 53031). See Colonial Craft Reprod., 1 BNA OSHC 1063, 1064 (No. 881, 1972) (“the size of the business of an employer” factor in section 17(j) of the Act encompasses an employer’s financial condition). An increase of that resulting figure by 33% for the “history of previous violations” factor, rather than the 10% proposed by the Secretary, is in order in consideration of Midvale’s two prior violations of § 1910.147(c)(1), one serious and one willful. (See Exs. C-1 & C-71). The undersigned concurs with the Secretary’s assessment that no penalty reduction is appropriate for the “good faith” factor in view of its two prior violations for failing to have established any energy control program. Accordingly, a penalty of $6,881 is assessed for the two grouped LOTO violations proven in Items 1a and 1b of Citation 2.

B. Machine Guarding for Horizontal Power Transmission Shaft–
§ 1910.219(c)(2)(i)
(“Willful/Serious” Citation 2, Item 2)

The Secretary alleges Midvale violated § 1910.219, a machine guarding standard titled “Mechanical power transmission apparatus.” Item 2 of Citation 2 alleges Midvale violated subparagraph (c)(2)(i) of that standard, which provides in pertinent part as follows:

(2) Guarding horizontal shafting. (i) All exposed parts of horizontal shafting seven (7) feet or less from floor or working platform … shall be protected by a stationary casing enclosing shafting completely or by a trough enclosing sides and top or sides and bottom of shafting as location requires.

The citation item alleges that Midvale violated the standard with respect to each of its five gluer machines in the following manner:

The employer does not ensure all exposed parts of horizontal shafting seven (7) feet or less from floor are protected by stationary casing(s) enclosing shafting completely or by trough(s) enclosing sides and top or sides and bottom of shafting. This violation was most recently observed on or about October 18, 2017 … when employees operated the following:

1. The International Paper Box Machine Company Swifty Right-Angle Model FZ Gluer #1 (Serial No. 602) with an unguarded rotating shaft two (2) foot, six (6) inches above floor level

2. The International Paper Box Machine Company Swifty Right-Angle Model FZ Gluer #2 (Serial No. 397) with an unguarded rotating shaft two (2) foot, six (6) inches above floor level

3. The International Paper Box Machine Company Speed Queen Model KH Gluer #3 (Serial No. 102) with an unguarded rotating shaft seven (7) inches above floor level

4. The International Paper Box Machine Company Speed Queen Model KH Gluer #3 (Serial No. 101) with three (3) unguarded rotating shafts seven (7) inches above floor level 17

5. The International Paper Box Machine Company Swifty Right-Angle Model FZ Gluer #5 (Serial No. 639) with an unguarded rotating shaft two (2) foot, six (6) inches above floor level

A preponderance of the evidence establishes that the standard applied to all five machines identified and that each of the five machines were non-compliant in the manner alleged (as the complaint is deemed amended as reflected in footnote 17). 18 (T. 157; T. 159-61 & Ex. C-19 [Gluer #1]; T. 158, 164-65, Ex. C-22 video at 1:54, Ex. C-25 [Gluer #2]; T. 169, 171-72, 175, Exs. C-23 & C-24 [Gluer #3]; T. 176-78, 333, Exs. C-26 & R-24 [Gluer #4]; T. 158, 179-83, Exs. C-18, C-79 at 3 & C-78 video at 0:38 [Gluer #5]). Midvale does not contend otherwise. (See Resp’t Br. 14-15, 39-41). Each of the unguarded shaft segments are less than one foot in length. (See Exs. C-26, C-19, C-24, C-22 at 1'54", C-79).

A preponderance of the evidence establishes that guards existed for most if not all the identified unguarded shafts, but that employees had removed them and had not put them back into place. (E.g., T. 162, 164-65, 176-77, 180, 182-83, 298-99, Ex. C-26). A preponderance of the evidence establishes further that Midvale supervisors had actual knowledge of the unguarded rotating shafts on each of the five gluer machines. A preponderance of the evidence establishes further that Midvale supervisors had constructive knowledge of the violative conditions in view of the duration that some of the shafts remained unguarded (months in at least one instance) and also because supervisors knew that employees regularly removed and failed to replace the guards. (T. 100, 162, 191, 600, 679, 695-98) (Ex. C-19, Ex. C-18 at Bates 106, T. 160-62 [Gluer #1]) (T. 165, 176, Ex. C-25, Ex. C-22 video at 1'53" [Gluer #2]) (Ex. C-82, T. 757, 761-62 [Gluer #3]) (T. 65, 134, 176, Ex. C-26, Ex. C-56 at 4 [Gluer #4]) (Ex. C-78, T. 180, 182-85 [Gluer #5]). Midvale again does not contend otherwise. (See Resp’t Br. 14-15, 39-41).

Midvale contends the Secretary failed to establish the “employee access” element of the Secretary’s burden of proof as to any of the unguarded shafts. (See Resp’t Br. 14-15, 39-41).

The test for assessing the “employee access” element is described in Fabricated Metal Prods. Inc. (Fabricated Metal), 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997), as follows (footnotes omitted):

[I]n order for the Secretary to establish employee exposure to a hazard she must show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger. We emphasize that ... the inquiry is not simply into whether exposure is theoretically possible. Rather, the question is whether employee entry into the danger zone is reasonably predictable.

The “zone of danger” referred to in Fabricated Metal is the “area surrounding the violative condition that presents the danger to employees [that] the standard is intended to prevent.” RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995). “The scope of the zone of danger is relative to the wording of the standard and the nature of the hazard at issue.” Fabricated Metal, 18 BNA OSHC at 1074 n.7. The “zone of danger” respecting a horizontal shaft that is required to be guarded by § 1910.219(c)(2)(i) is defined by the unguarded horizontal shaft itself. See id. (describing the unguarded shaft as the zone of danger respecting non-compliant guarding under § 1910.219(c)(2)(i) ). Inasmuch as there is no operational reason for Midvale employees intentionally to contact any of the unguarded shafts when they are rotating, the “inquiry then is whether the employees’ proximity to the machines makes it reasonably predictable that they will enter these zones of danger” inadvertently or accidently, such as by slipping or falling. Id.

Employee Access to Unguarded Shaft on Gluer #1

Gluer #1 is configured in an L-shape, with each side of the “L” being about 30 to 35 feet in length. (T. 716). The unguarded shaft on Gluer #1 is about 30 inches above floor level and is located inches from the outside corner of the “L”, as reflected in the photo at Exhibit C-19. (T. 159-60, 168-69). The unguarded shaft is adjacent to a 40-inch-wide passageway on the plant floor. Machine operators pass by this outside corner of Gluer #1 during machine operations in making a ninety-degree turn at the corner where the unguarded shaft is situated, and other plant employees traverse this passageway to and from the plant’s warehouse. (T. 161, 196; Ex. C-18 at Bates 105). There is nothing to impede an employee who is passing by the unguarded shaft from contacting it, whether by inattention or as the result of stumbling or tripping into it. (Ex. C-19). Tripping, falling, and slipping hazards are present on the plant’s floor and have resulted in employee injuries. (See Ex. C-12 at Bates 402 & 408). At least one machine persistently leaks oil onto the floor, so slipping hazards arise on the plant floor from time to time. (T. 102). This evidence establishes by a preponderance “that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger” presented by the unguarded shaft on Gluer #1. Fabricated Metal, 18 BNA OSHC at 1074.

Employee Access to Unguarded Shaft on Gluer #2

Gluer #2 is substantially identical to Gluer #1, and the unguarded shaft on Gluer #2 is in the same location on the machine as the unguarded shaft on Gluer #1 described above. (T. 16465). The video and photo evidence of the unguarded shaft on Gluer #2 depicts a “Gaylord box” on the floor beside the unguarded shaft, into which employees discard paperboard product. (T. 166; Ex. C-25, Ex. C-22 video at 1:53). There is no evidence whether this Gaylord box is ever removed from that location, and there is further no evidence from which it may be reasonably inferred that it would be absent from that location when the machine is running and the shaft rotating. The presence of the Gaylord box near this unguarded shaft renders inadvertent or accidental contact with the unguarded shaft a remote possibility, and not “reasonably predictable.” See Fabricated Metal 18 BNA OSHC at 1075 (finding that exposure to unguarded shaft not reasonably predictable where barrels stored near the machine “made it impossible for an employee to contact” the shaft). Employee access to the unguarded shaft on Gluer #2 is not proven.

Employee Access to Unguarded Shaft on Gluer #5

Gluer #5 is substantially identical to Gluers #1 and #2 but is in a different room of the plant. (T. 168-69; Ex. C-56 at 1). The unguarded shaft on Gluer #5 is in the same location on the machine as the unguarded shafts for Gluers #1 and #2. (Exs. C-78 video at 0'38"–0'46" & 2'05"–2'11"; C-79 photos). The only evidence that employees would encroach the zone of danger of this unguarded shaft by operational necessity or otherwise is the CO’s testimony that employees would have to pass by the unguarded shaft going to and from the machine’s glue tank to refill it. (T. 186). The glue tank for Gluer #5 is located around the ninety-degree corner (i.e., the outside corner of the Lshaped machine) from the unguarded shaft, appearing to be approximately three feet from the corner itself. (Ex. C-78 video at 0'46"–0'54"). The CO never observed an employee refilling any glue tank, however, so he never observed whether the gluer was running and the shaft rotating when employees filled the glue tank. (T. 186).

The one-gallon capacity glue tank is “topped-off” each morning before the machine is started up. If the tank requires refilling during the day, the greater weight of the evidence establishes that the machine is turned off while the glue tank is being refilled, because when the tank is opened to be refilled the tank has no air pressure, which is necessary for a gluer machine to dispense glue onto the paperboard. (T. 671-74, 814). Because the machine would be off when the glue tank is refilled, an employee performing this task would walk past the then non-rotating unguarded shaft on the way to, and then returning from, the glue tank. (T. 186). There is insufficient evidence to establish by a preponderance that the machine operators or other employees are required, or have occasion, to walk past the unguarded shaft while the machine is running and the shaft rotating. See Home Rubber Co. LP, No. 17-0138, 2021 WL 3929735, at *9 (OSHRC Aug. 26, 2021) (employee access not shown where there was no evidence that a hazardous shaft would be rotating when employees used a bucket that was located near the violative condition). The evidence respecting employee access to the zone of danger presented by the unguarded rotating shaft on Gluer #5 is insufficiently weighty to establish the employee access element of the Secretary’s burden of proof as to that machine.

Employee Access to Two Unguarded Shafts on Gluer #4

The photo at Exhibit C-26 depicts an unguarded shaft on Gluer #4 that is about seven inches above the floor level and about four feet from the machine’s glue tank. The only evidence respecting employee access to the zone of danger of the unguarded shaft is the plant manager’s testimony that this location is against the wall and that employees do not have reason to pass by it while the machine is operating. (T. 749). The evidence is insufficient to establish the employee access element of the Secretary’s burden of proof as to this unguarded shaft on Gluer #4.

A video shows another unguarded shaft on Gluer #4 that is also about seven inches above the floor level. (Ex. R-24 at 1'41"–1'45"; T. 572-73). There is no evidence respecting whether any employees would have occasion to traverse along this pathway that adjoins the rotating shaft when the machine is in operation and the shaft rotating. The evidence is insufficient to establish the employee access element of the Secretary’s burden of proof as to this unguarded shaft on Gluer #4. See Home Rubber Co. LP, 2021 WL 3929735, at *9.

Employee Access to Unguarded Shafts on Gluer #3

The unguarded shaft on Gluer #3 is the same shaft to which Mr. Dellaperuto was exposed in connection with the LOTO violation that occurred in connection with his cleaning gear oil that had leaked onto the floor. The plant manager testified that a Gaylord box is maintained adjacent to the rotating shaft and is in place whenever the machine is operating. (T. 749-50; Ex. C-23 video 2:02–2:20 & 2:35–3:07; Ex. C-24 at 1–3). The CO testified he had seen this area of the machine when the Gaylord box was not present, but he did not testify whether the machine was operating at the time. (T. 173-74). The video of Mr. Dellaperuto cleaning up the oil shows him situated in a narrow space in between a wood box to his left and a stack of collapsed packing boxes to his right while accessing the area of the floor near the rotating shaft and the oil leak. (Ex. C-82).

This evidence establishes that while under ordinary operations employees do not have reason to enter the zone of danger for this rotating shaft, at least in this instance of cleaning up the oil leak, Mr. Dellaperuto was working in the zone of danger. Midvale acknowledges that Dellaperuto was working “relatively close to the unguarded shaft,” but contends that with Dellaperuto’s decades of experience with these machines, he was not within the zone of danger of the rotating shaft. (Resp’t Br. 40). This argument is rejected. Dellaperuto had to maneuver in between a wooden box to his left and a stack of collapsed cardboard shipping boxes to his right to get to the area to be cleaned, and then he had to somewhat awkwardly stoop or kneel to do the cleaning. His hand came within inches of the rotating shaft, and particularly considering his awkward stance he could have contacted the shaft through inadvertence, carelessness, or accident. (Ex. C-82). Any employee, regardless of knowledge and experience, would be deemed exposed to the hazard of the rotating shaft while performing the task depicted in the video at Exhibit C-82. See Fabricated Metal, 18 BNA OSHC at 1073 n. 4 (noting that the cited standard here is a specification standard, so that “non-compliance … establishes the existence of a hazard”). A preponderance of the evidence establishes Dellaperuto working within the zone of danger of the hazardous unguarded shaft on Gluer #3.

The machine guarding violation as to Gluer #3 and the LOTO violation that is grounded in Dellaperuto’s exposure to the same unguarded shaft are duplicative, because the abatement of one would necessarily result in the abatement of the other. N.E. Precast LLC, 26 BNA OSHC 2275, 2279 (No. 13-1169 & 13-1170, 2018) (“Violations are duplicative where the abatement of one violation necessarily results in the abatement of the other”), aff'd, 773 F. App'x 70 (2d Cir. 2019) (unpublished). 19 This is consistent with the “dovetailing” of the LOTO standard and the machine guarding standards set forth in subpart O of 29 C.F.R. Part 1910. GM-CPCG Okla., 22 BNA OSHC at 1022 (noting that the LOTO standard “dovetails with the requirements for the safe operation of machines during production, as prescribed by 29 C.F.R. Part 1910, subpart O”).

Since the LOTO standard would not have been applicable to Dellaperuto’s cleaning the oil if the guard for the exposed shaft on Gluer #3 had been in place at the time, as between the two violations the LOTO violation as to Dellaperuto’s conduct alone is deemed vacated, and the machine guarding violation is maintained.

Classification of § 1910.219(c)(2)(i) Violations

The Secretary alleges that the violations of § 1910.219(c)(2)(i) should be classified as both “willful” and “serious.” (Complaint dated 7.2.2018, ¶ 6). Because violations were established as to Gluers #1 and #3, the evidence respecting those violative conditions is discussed below.

Gluer #1

With respect to Gluer #1, the unguarded shaft on Gluer #1 is aptly characterized as a serious violation in that there was a substantial probability that serious physical harm could result from contact with the unguarded rotating shaft. (T. 760-61).

In prior inspections, Midvale had violated the same standard for failing to have the very same shaft on Gluer #1 unguarded. (T. 178). That violative condition was first identified on September 8, 2014, during OSHA inspection number 994212, and that violation became a final order on December 8, 2014, the day that Midvale executed an informal settlement agreement resolving the citation. (Ex. C-20 at 4 & 15; T. 356-57). About six months later, on May 25, 2015, OSHA determined during OSHA inspection 1066769 that Midvale had not abated that violative condition, and on November 25, 2015, OSHA issued to Midvale a citation for failure to abate. That citation for failure to abate became a final order on June 19, 2017, after Midvale resolved that citation by executing a formal settlement agreement. (T. 11; Ex. C-1 at 23; Ex. C27 at 3).

On October 18, 2017, the first day of the inspection here, the CO was accompanied by the plant manager, Mr. Northwood, when the CO spotted the unguarded shaft on Gluer #1 and directed Northwood’s attention to it. (T. 159, 697-98; Ex. C-18 at 6; Ex. C-19). Northwood pointed out to the CO that the guard for that shaft was lying on the floor below the shaft, and he remarked that the machine operator must have removed it and failed to reinstall it. (T. 162). Northwood then told the CO that he had fabricated that guard, apparently to abate the violation that was first identified in September 2014 and that had remained unabated as of May 2015. (T. 162; Ex. R-40 at Bates 282 & 284-85). Even though during the inspection on October 18, 2017, the guard was located on the floor beneath the rotating shaft, Northwood did not thereafter reinstall the guard, nor apparently did he direct an employee to do so, and the shaft remained unguarded for the duration of the CO’s inspection, which continued for nearly another two months. (Ex. C-18 at Bates 106). And even though Northwood testified that when he observes that a machine guard has been removed and not replaced that he “[a]ddress[es] it with the operator of the machine” by “talk[ing] to them about leaving it in an unsafe condition” (T. 698), it is evident that he did not do so with respect to the missing guard on Gluer #1.

Another time during the CO’s inspection, after the CO brought to Northwood’s attention an unguarded shaft on another machine whose guard had been removed, Northwood remarked to the CO: “I tell these people all the time: You make sure it’s guarded and everything.” (T. 184).