Petition for Writ of Certiorari — Riverdale Mills Corporation, Petitioner v. Julie A. Su, Acting Secretary of Labor
Supreme Court briefSep 21, 2023
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APPENDIX TABLE OF CONTENTS
Page
Appendix A: United States Court of Appeals for
the District of Columbia Circuit, Judgment,
June 23, 2023 ................................................... App. 1
Appendix B: Occupational Safety and Health
Review Commission, Decision and Order,
July 1, 2022 ...................................................... App. 7
Appendix C: Fifth Amendment to the United
States Constitution ........................................ App. 84
Appendix D: 29 U.S.C. § 660(a) ......................... App. 85
Appendix E: 29 C.F.R. § 1910.147 – The Control
of Hazardous Energy (lockout/tagout) .......... App. 87
Appendix F: 29 C.F.R. § 1910.1200(g)(11),
(h)(1) ............................................................... App. 89
Appendix G: 29 C.F.R. § 1910.1020(e)(1)(i) ....... App. 90
Appendix H: Federal Rule of Evidence 403 ...... App. 91
App. 1
APPENDIX A
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
--------------------
No. 22-1226
September Term, 2022
FILED ON: JUNE 23, 2023
RIVERDALE MILLS CORPORATION,
PETITIONER,
v.
SECRETARY OF LABOR,
RESPONDENT.
--------------------
On Petition for Review of a Final Order of the
Occupational Safety & Health Review Commission
--------------------
Before: HENDERSON, KATSAS and WALKER, Circuit
Judges.
JUDGMENT
This case came before us on a petition for review
of a Final Order of the Occupational Safety and Health
Review Commission. We considered the appeal on the
record before the Commission and the briefs and arguments of the parties. After considering the issues, we
have determined that a published opinion is unnecessary. See D.C. Cir. R. 36(d).
We DENY the petition for review.
*
*
*
App. 2
From its plant in Massachusetts, Riverdale Mills
Corporation manufactures welded wire mesh products.
To make its PVC-coated mesh, it dips wire mesh in
PVC coating. After that, the mesh is rolled and cut by
a series of machines.
In April 2019, that process went awry. As an employee tried to adjust the mesh, a machine caught his
right arm. It broke his bones and pulled off his skin.
Following the injury, the Occupational Safety and
Health Administration investigated. It cited Riverdale
for failing to comply with the lockout/tagout standard.
That standard helps ensure that machines are
properly shut down and rendered inoperative before
maintenance is performed on them.
When a Riverdale employee later complained
about exposure to hazardous chemicals, OSHA investigated again, resulting in a second and third citation
against Riverdale. The second alleged that Riverdale
had failed to adequately train employees about hazardous chemicals. The third citation alleged that
Riverdale failed to comply with a request to make its
safety data sheets readily available.
An administrative law judge issued an order affirming all three citations. The Occupational Safety
and Health Review Commission then denied
Riverdale’s petition for discretionary review. Riverdale
timely petitioned this court for review.
We review the ALJ’s decision under the substantial evidence standard. American Wrecking Corp. v.
App. 3
Secretary of Labor, 351 F.3d 1254, 1261 (D.C. Cir.
2003). We will uphold the order when it is supported
by “such relevant evidence as a reasonable mind might
accept as adequate to support [the] conclusion[s].” Consolo v. Federal Maritime Commission, 383 U.S. 607, 620
(1966) (cleaned up).
Here, substantial evidence supports the ALJ’s order.
I.
Substantial Evidence Shows that Riverdale
Violated the Lockout/Tagout Standard
In its first citation, OSHA said Riverdale failed to
conduct a periodic inspection of the lockout/tagout procedure for the “Big Spindle.” JA Vol. 1 at 30. That inspection is required “at least annually” by 29 C.F.R.
§ 1910.147(c)(6). For Riverdale’s failure to conduct the
inspection to constitute a serious safety standard violation, there must be “employee access to the violative
conditions,” among other requirements. AJP Construction, Inc. v. Secretary of Labor, 357 F.3d 70, 71 (D.C. Cir.
2004).* So in other words, an employee with authority
to do so must have applied lockout/tagout to the Big
* To establish a serious occupational safety standard violation – or a health standard violation – the Secretary of Labor must
prove four elements: (1) “the applicability of the cited standard;”
(2) “the employer’s noncompliance with the standard’s terms;” (3)
“employee access to the violative conditions;” (4) “the employer’s
actual or constructive knowledge of the violation.” AJP Construction, Inc., 357 F.3d at 71.
App. 4
Spindle without Riverdale having inspected his application thereof within the past year.
Here, substantial evidence shows that a maintenance supervisor named Tom Borden had access to
that violative condition. He said he performed lockout/tagout procedures on “C-spindle” in 2019. JA Vol. 3
at 128. And he testified that “Riverdale had never, in
the cumulative nine years he worked at the facility,
performed a periodic inspection with him, either as a
mechanic or a supervisor.” JA Vol. 1 at 33.
Riverdale’s main argument is that Borden did not
have access to the violative condition because there
was no proof that the “Big Spindle” identified in
OSHA’s first citation is the same spindle as the “Cspindle” mentioned by Borden.
But there is substantial evidence that the Big
Spindle is the C-Spindle. For starters, Borden said the
“C[-]Spindle” refers to the “[c]oating line spindle.” JA
Vol. 2 at 219. And the coating line feeds mesh only to
the biggest of the three spindles near it. See JA Vol. 2
at 491 (photograph). So Borden was probably referring
to the spindle directly connected to the coating line
(the Big Spindle) when he talked about locking out the
“C[-]Spindle.” JA Vol. 2 at 219. Plus, Borden seemed to
refer somewhat interchangeably to the Big Spindle
and the C-Spindle. For example, when referring to the
C-Spindle, he said he locked it out with a procedure
that applied to the “Big spindle coating line.” JA Vol. 2
at 220.
App. 5
When that evidence is taken together, a “reasonable mind” can conclude that the Big Spindle is the CSpindle. Consolo, 383 U.S. at 620.
II.
Substantial Evidence Shows that Riverdale
Violated Two Hazard Communication
Standards
When employees are potentially exposed to hazardous chemicals in their work area, 29 C.F.R.
§ 1910.1200(h)(1) requires an employer to provide protective training.
Here, an employee named Luis Trinidad said he
had not received any training on hazardous chemicals.
Riverdale knew there were hazardous chemicals in
Trinidad’s workspace. So substantial evidence suggests Riverdale failed to “provide employees with effective information and training on hazardous chemicals
in their work area at the time of their initial assignment.” Id.
In addition, 29 C.F.R. § 1910.1200(g)(11) requires
employers to make safety data sheets available when
designated representatives request them. But in this
case, when a designated representative requested
safety data sheets for “any [chemical] not already provided,” Riverdale provided only some of the requested
sheets. JA Vol. 3 at 169.
Riverdale argues that the safety data sheet request could “only be understood as requesting [safety
data sheets] applicable to possible air contaminants,”
App. 6
which Riverdale provided. Pet. Br. 22. But the request
for safety data sheets was for “any not already provided.” JA Vol. 3 at 169. And because that statement
was made during a tour that included the coating line
and galvanizing line, Riverdale was required to produce safety data sheets for all chemicals used in the
coating line and galvanizing line—not just possible air
contaminants. Riverdale’s failure to do so violated 29
C.F.R. § 1910.1200(g)(11).
*
*
*
Because all three citations were supported by substantial evidence, we DENY the petition for review.
*
*
*
This disposition is unpublished. See D.C. Cir. R.
36(d). We direct the Clerk to withhold this mandate until seven days after resolution of a timely petition for
panel or en banc rehearing. See Fed. R. App. P. 41(b);
D.C. Cir. R. 41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
/s/
Daniel J. Reidy
Deputy Clerk
App. 7
APPENDIX B
[SEAL]
United States of America
OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION
1924 Building – Room 2R90,
100 Alabama Street, S.W.
Atlanta, Georgia 30303-3104
Secretary of Labor,
Complainant
OSHRC Docket No.:
19-1566 & 19-2011
(Filed July 1, 2022)
v.
Riverdale Mills Corporation,
Respondent.
Appearances:
Scott Miller, Esq. and Joseph R. Landry, Esq.
U.S. Department of Labor, Office of the Solicitor,
Boston, MA
For Complainant
Travis W. Vance, Esq. and Davis I. Klass, Esq.
Fisher & Phillips, LLC
For Respondent
Before:
Administrative Law Judge Sharon D. Calhoun
DECISION AND ORDER
Riverdale Mills Corporation (Riverdale) manufactures coated wire mesh products at its facility in
Northbridge, Massachusetts. On April 3, 2019, a
App. 8
Riverdale employee suffered a severe injury to his
right arm as he attempted to adjust a length of mesh
as it moved through rotating rollers on the Coating
Line. The Northbridge Police Department notified the
Occupational Safety and Health Administration of the
incident. An OSHA Compliance Safety and Health Officer (CSHO) opened a safety inspection at Riverdale’s
facility later that day. On June 27, 2019, an OSHA Industrial Hygienist (III) opened a health inspection of
the facility.
On September 26, 2019, the Secretary issued a Citation and Notification of Penalty to Riverdale (the
Safety Citation), alleging violations of eight safety
standards of the Occupational Safety and Health Act
of 1970, 29 U.S.C. §§651-678 (Act). On December 13,
2019, the Secretary issued a second Citation (the
Health Citation) to Riverdale, alleging violations of
four health standards of the Act. After Riverdale contested the Citations, the Commission docketed the
Safety and Health Citations as Nos. 19-1566 and 192011, respectively. The Safety and Health cases were
consolidated for hearing and disposition on February
4, 2020.
The Secretary withdrew Items 7 and 8 of the
Safety Citation prior to hearing. The remaining Safety
items at issue allege serious violations of 29 C.F.R.
§ 1910.147, titled The control of hazardous energy
(lockout/tagout), known as the LOTO standard. Item 2
alleges a violation of 29 C.F.R. § 1910.147(c)(6)(i); Item
3, alleges a violation of 29 C.F.R. § 1910.147(c)(7)(i)(A);
and Items 5a, 5b, 5c, and 5e allege violations of 29
App. 9
C.F.R. §§1910.147(d)(2), (3), (4)(i), and (c)(4)(i).1 In the
alternative to Instance (a) of Item 5e, Item 6 alleges a
violation of 29 C.F.R. § 1910.212(a)(1), a machine
guarding standard (Tr. 7-8). The penalties proposed by
the Secretary for the remaining Safety items total
$32,393.
The Secretary also withdrew Items 1 and 2 of Citation No. 1 of the Health Citation prior to hearing. Remaining from the Health Citation are Item 3 of
Citation No. 1, alleging a serious violation of 29 C.F.R.
§ 1910.1200(h)(1), for failing to provide an employee
with information and training on hazardous chemicals; and Item 1 of Citation No. 2, alleging an otherthan-serious violation of 29 C.F.R. § 1910.1200(g)(11),
for failing to make safety data sheets readily available
to OSHA. The Secretary proposes a penalty of $8,525
for Item 3 of Health Citation No. 1 and no penalty for
Item 1 of Health Citation No. 2.
1
In the complaint for the Safety Citation, the Secretary
amended the designation of Item 1 to Item 5e and grouped it with
Items 5a through 5d (the Secretary later withdrew Item 5d). The
Secretary withdrew Item 4 but incorporated this language from
its alleged violation description into Items 5a through 5c: “On
4/3/2019 the application of energy control (lockout or tagout) actions were not done in the sequence prescribed by the standard in
that none of the prescribed steps were performed.” (Complaint,
¶ V.A & V.B; Exh. A) The Secretary subsequently moved for leave
to amend Items 3, 5c and 5e of the Safety Citation. Judge Gatto,
to whom this case was originally assigned, granted in part and
denied in part the Secretary’s motion in an order issued August
24, 2020. The quoted text of the alleged violation descriptions for
the cited items in this decision reflect the amendments made in
the Secretary’s complaint and Judge Gatto’s order.
App. 10
The Court held a hearing in this matter from June
14 to June 17 and from August 16 to 19, 2021, in Boston, Massachusetts.2 The parties have filed post-hearing briefs. For the reasons discussed below, the Court
makes the following determinations:
Under the Safety Citation, Item 2 of Citation No.1
is AFFIRMED and a penalty of $8,525 is assessed.
Items 3, 5a, 5b, 5c, 5e, and 6 are VACATED.
Under the Health Citation, Item 3 of Citation No.
1 and Item 1 of Citation No. 2 are AFFIRMED. A penalty of $8,525 is assessed for Item 3 of Citation No. 1.
No penalty is assessed for Item 1 of Citation No. 2.
JURISDICTION AND COVERAGE
Riverdale timely contested the Citations. The parties agree the Commission has jurisdiction over this
action and Riverdale is a covered employer under the
2
After the Secretary rested, Riverdale moved for a judgment
on partial findings under Fed. R. Civ. P. 52(c) (“If a party has been
fully heard on an issue during a nonjury trial and the court fmds
against the party on that issue, the court may enter judgment
against the party on a claim or defense that, under the controlling
law, can be maintained or defeated only with a favorable fmding
on that issue. The court may, however, decline to render any judgment until the close of the evidence.”) Riverdale argued the motion separately for the Health Citation (Tr. 1246-58, 1262-66) and
the Safety Citation (Tr. 1277-98, 1313-17). The Secretary responded by arguing he had met his prima facie case on each of the
remaining citation items and asking the Court to deny Riverdale’s
motion (Tr. 1258-61, 1266-67, 1298-1313, 131819). The Court deferred ruling on the motion (Tr. 1321). The Court now denies
Riverdale’s motion.
App. 11
Act (Tr. 38). Based on the agreement and the record
evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the Act, and
Riverdale is a covered employer under § 3(5) of the Act.
BACKGROUND
Riverdale manufactures coated wire mesh products at its facility in Northbridge, Massachusetts. The
coating process occurs on the coating line. The coating
line is more than 200 feet long and comprises a series
of integrated machines and equipment through which
the mesh passes, in conveyor-belt fashion, as it is
coated, cured, and cooled. The coating line processes
rolls of mesh with different gauges and widths of mesh
openings, and it applies assorted colors of PVC coating,
according to the specifications of the order being run
(Tr. 78-79).
Operation of the Coating Line
A splice operator works at the beginning of the
coating line and two spindle operators work at its end.
The lead coating line operator works at various stations along the coating line and instructs the other operators (Tr. 79-80, 174, 449). To begin the process, a
large roll of mesh is placed in the cradle at the first
station of the coating line. The splice operator attaches
the next roll of mesh to the end of the one being processed, if that particular order requires it (Tr. 79-83).
The splice operator uses a rack to connect the separate
App. 12
lengths of mesh as they move through the coating line
(Tr. 82-83).3
The rear drive rollers and the main drive rollers
propel the mesh through the coating line. The rear
drive rollers are located about 25 feet from the start of
the coating line. The main drive rollers are located approximately 150 feet downstream from the rear drive
rollers (Tr. 84). Between the two sets of rollers, the
mesh moves through a series of rinse and wash tanks
to remove dirt and debris. From there, the mesh moves
through a wrapper, designed to “vibrate the mesh to
get any excess water off before going into the primer
tank.” (Tr. 85) The mesh moves to the primer tank. The
primer facilitates the PVC coating to adhere to the
mesh. The coating line then moves the mesh to the preheat oven, which “heat[s] up the water so the PVC compound can . . . adhere to [it].” (Tr. 85-86) From there,
the mesh goes through the fluidized PVC vat (the fluid
bed), where “the PVC is put into a fluid state where it
cascades around like a waterfall, travels through it,
and picks up the PVC powder.” (Tr. 86) The mesh then
moves to the post-cure oven, which melts the PVC, and
then to the cooling chamber. After the cooling chamber,
the mesh goes through the main drive rollers, which
pull the mesh and maintain tension with the rear drive
rollers, to keep the mesh suspended. Finally, the mesh
3
A former coating line operator described a rack as “generally 12-and-a-half gauge or 10-and-a-half gauge mesh that would
be cut into about maybe two-feet lengths with needles bent over
like a staple that would be placed underneath the two adjoining
pieces that banged over like you’re stapling.” (Tr. 83)
App. 13
travels to the spindle collection area, where it is rolled
up to be cut into smaller rolls (Tr. 87).
On one side of the coating line is a brick wall and
on the other side is an aisle. A catwalk rises above the
area of the main drive rollers, guarded by a yellow
metal railing system (Exh. C-4; Tr. 90-91, 96, 112-13).4
Next to the main drive rollers is the collection area for
the spindle (Tr. 106). There are three different spindles
at the end of the coating line (Exh. C4, p. 5a; Tr. 10910, 1015). The spindle in use collects the coated mesh
wire as it emerges from the main drive rollers. When
the mesh is collected to its specified length, the spindle
operators tie it off or staple it (depending on its gauge),
and cut, remove, and place it on pallets (Exh. C-4, p. 5;
Tr. 87-88, 11112). As the finished mesh roll is being removed from the spindle, the next order of mesh moves
through the coating line. It folds over on itself and
gathers on the floor in the collecting area (Exh. C-40;
Tr. 112).
4
Page 42 of Exhibit C-39 is a photograph showing the catwalk above the main drive rollers. Yellow metal caging can be seen
attached to the railing system. At the time of the accident on April
3, 2019, the railing system was in place, but there was space between its vertical supports and between the top rail and the catwalk surface, through which employees could extend their arms
and legs. After the accident, Riverdale installed the caging (also
referred to as “security fencing”) to the railing system, which prevents employees from extending their arms and legs through the
railing (Tr. 92, 95, 103).
App. 14
Recurring Problems on the Coating Line
Production problems arise almost every shift on
the coating line, including “[t]ension, temperatures,
how the wire is welded. Not enough powder in the
bed[,] . . . [s]plice breaks; missed splices; not getting
rolls off the spindle fast enough; too much collection;
shutdowns; startups.” (Tr. 134) A splice break (“when
the two rolls that are attached down at splice come
apart . . . where they are attached” (Tr. 135)) causes
problems up and down the line: “Lines have got to stop.
Mesh is just sitting in hot ovens, sitting in the powder.
It could cause heavy coating and lead to a lot of issues.”
(Tr. 135-36) The coating line also could be shut down
due to “equipment failure or mesh that can get jammed
up in the drive or too much collection in the collection
area, and they can’t pick it up because of the weight.”
(Tr. 136) These issues could affect the quality of the
mesh, resulting in a non-conforming product (NCP),
which is unusable (Tr. 135).
The April 3, 2019, Accident
The accident that triggered OSHA’s Safety inspection in this case occurred the morning of April 3, 2019,
during Riverdale’s third shift.5 JR (the lead coating
line operator) was working at the fluid bed. The spindle
operators were AT (the injured employee) and NM.
5
The third shift runs from 9:30 p.m. to 7:15 a.m. on Sundays
and Mondays, and from 11:00 p.m. to 7:15 a.m. on the other days
of the week (Tr. 76-77).
App. 15
Production lead AM and supervisor Brian Johnson
were onsite (Tr. 176).
Spindle operators AT and NM were collecting
mesh on the spindle when they noticed the mesh was
out of alignment. It had strayed too far from its intended track to collect on the spindle. The spindle operators used the intercom to call JR for help (Tr. 340,
436, 696, 1463-65, 1482-83).
JR arrived and went up on the catwalk above the
main drive. He sat on the catwalk facing the spindle
area, extended his leg through a gap in the rails, and
pressed his foot on the edge of the moving mesh, about
1 ½ feet from the nearest rotating roller (Tr. 340-43,
353-58). He was able to move the track of the mesh using this method (Tr. 342). JR left the catwalk and went
to the fluid bed station to adjust the mesh’s alignment
using positioning poles (Tr. 406-07).
After JR went to the fluid bed station, AT left the
spindle station and went to a yellow gate on the wall
side of the main drive area.6 A sign was posted on the
gate stating,
DANGER
DO NOT ENTER THE AREA
WHILE MACHINE IS RUNNING
(Exh. R-20; Tr. 473-74, 621)
6
There are gates on both the wall side and the aisle side of
the coating line (Tr. 543).
App. 16
AT opened the gate and entered the area immediately next to the main drive rollers. He attempted to
adjust the mesh’s alignment near the main drive rollers by grabbing the mesh with his right hand (Tr. 46970, 472, 1463). As AT did so, his right arm was pulled
into the rollers, breaking bones and degloving the skin
from his hand to his bicep (Tr. 700).
JR heard AT screaming. He ran to the main drive
area and pushed the emergency stop button to deenergize the machinery. AT was unable to remove his arm
from the drive rollers. Production lead AM called 911,
and EMTs and members of the Northbridge Police Department responded to the call. Eventually a Riverdale
employee used a forklift to raise one of the drive rollers
so emergency personnel could extricate AT’s arm from
the machinery. They transported him to a hospital
(Exh. C-4, p. 1 a; Tr. 88, 701).7 Two CSHOs arrived later
that day to open an investigation after the Northbridge
Police Department notified OSHA of the incident (Tr.
885-86).
On June 27, 2019, III Ann Hart arrived at
Riverdale’s facility to conduct a Health inspection. She
met with Riverdale management personnel, including
owner James Knott, corporate counsel Cyril Means,
and plant safety manager David Stevens. 11-1 Hart
conducted a walkaround inspection with Knott and
Means. She interviewed a machine operator and
7
AT remained hospitalized for a week. He subsequently underwent five surgical procedures for steel plate insertion, debridement, and skin grafts (Tr.701).
App. 17
obtained a signed employee statement from him (Exh.
C-27; Tr. 1080-82).
Subsequently, the Secretary issued the Safety and
Health Citations that gave rise to this proceeding.
THE CITATIONS
The Secretary’s Burden of Proof
In order to establish a violation of an occupational safety or health standard, the Secretary
has the burden of proving: (a) the applicability
of the cited standard, (b) the employer’s noncompliance with the standard’s terms, (c) employee access to the violative conditions, and
(d) the employer’s actual or constructive
knowledge of the violation (i.e., the employer
either knew, or with the exercise of reasonable
diligence could have known, of the violative
conditions).
Atlantic Battery Co., Inc., No. 90-1747, 1994 WL
682922, at *6 (OSHRC Dec. 5, 1994).
The employer or the Secretary may appeal a final
decision and order to the federal court of appeals for
the circuit in which the violation allegedly occurred or
where the employer has its principal office, and the employer also may appeal to the D.C. Circuit. See 29
U.S.C. §§ 660(a) and (b). Here, the violation occurred in
Northbridge, Massachusetts, in the First Circuit.
Riverdale’s principal place of business is also in Massachusetts. Where it is highly probable that a case will
be appealed to a particular circuit, the Commission has
App. 18
generally applied the precedent of that circuit in deciding the case, even though it may differ from the Commission’s precedent. Kerns Bros. Tree Serv., No. 961719, 2000 WL 294514, at *4 (OSHRC March 16, 2000).
Here, the parties do not contend, and the Court has not
found, relevant First Circuit precedent that differs
from the Commission’s precedent. The Court therefore
applies Commission precedent in this case.
THE SAFETY CITATION (No. 19-1566)
Item 2:
Alleged Serious Violation of § 1910.147(c)(6)(i)
The Alleged Violation Description
Item 2 alleges:
29 CFR 1910.147(c)(6)(i): The employer did
not conduct a periodic inspection of the energy
control procedure at least annually to ensure
that the procedure and the requirement of
this standard of this standard were being followed:
(a) Site: In Building 1, at the Coating Line,
at the Big Spindle . . : On 4/26/2019 the employer had not conducted a periodic inspection
of Energy Control Procedure RMC-022 for the
Big Spindle since 4/26/2016.
The Cited Standard
Section 1910.147(c)(1) requires employers to establish an energy control program that includes periodic inspections to ensure employees are trained to
App. 19
lock out machines or equipment before performing servicing or maintenance on them.8 The cited standard,
§ 1910.147(c)(6)(i), provides,
The employer shall conduct a periodic inspection of the energy control procedure at least
annually to ensure that the procedure and the
requirements of this standard are being followed.
ANALYSIS
(1) The Applicability of the Cited Standard
The cited standard is found in Subpart J (General
Environmental Controls)) of the Part 1910 general
industry standards. Section 1910.147 addresses “the
control of hazardous energy (lockout/tagout),” known
as LOTO. The Scope section of the LOTO standard
states it “covers the 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. This
standard establishes minimum performance requirements for the control of such hazardous energy.”
8
Section 1910.147(c)(1) provides:
The employer shall establish a program consisting of
energy control procedures, employee training and periodic inspections to ensure that before any employee
performs any servicing or maintenance on a machine
or equipment where the unexpected energizing, startup
or release of stored energy could occur and cause injury,
the machine or equipment shall be isolated from the
energy source and rendered inoperative.
App. 20
§ 1910.147(a)(1)(i) (emphasis in original). The LOTO
standard “applies to the control of energy during servicing and/or maintenance of machines and equipment” but not to normal production operations.
§ 1910.147(a)(2)(1).
Here, the Secretary cited Riverdale for failing to
conduct periodic inspections of authorized employees
for the energy control procedure relating the application of LOTO to a spindle when performing maintenance on it. Riverdale admits the cited standard
applies to the violative activity alleged in Item 2 of the
Safety Citation (Exh. C-103, p. 8, ¶ 14). The Court determines § 1910.147(c)(6)(i) applies to the cited activity.
(2) Compliance with the Standard’s Terms
Sections 1910.147(c)(6)(i)(A) through (D) set out
the specific requirements for periodic inspections:
(A) The periodic inspection shall be performed by an authorized employee other
than the ones(s) utilizing the energy control procedure being inspected.
(B) The periodic inspection shall be conducted to correct any deviations or inadequacies identified.
(C) Where lockout is used for energy control,
the periodic inspection shall include a review, between the inspector and each authorized employee, of that employee’s
App. 21
responsibilities under the energy control
procedure being inspected.
(D) Where tagout is used for energy control,
the periodic inspection shall include a review, between the inspector and each authorized and affected employee, of that
employee’s responsibilities under the energy control procedure being inspected,
and the elements set forth in paragraph
(c)(7)(ii) of this section.
Riverdale has a written LOTO procedure that requires its facility manager to “conduct an annual review of the written energy control procedures with
maintenance supervision to ensure that the procedure
and the requirements of the Program are being followed.” (R-57, p.13, ¶ 7.0) Riverdale’s written procedure tracks OSHA’s requirements for a compliant
energy control procedure:
7.1 Each AUTHORIZED EMPLOYEE shall
undergo at the minimum an annual inspection of their understanding of LOCKOUT/TAGOUT
procedures
by
undergoing
a
LOCKOUT/TAGOUT Practical Demonstration conducted by the Facilities Manager to
identify any deviations or inadequacies.
...
7.3 A Lockout Tagout Practical Demonstration Checklist (Appendix B) will be used to record the results of each inspection and filed on
the Riverdale Mills fileserver[.]
App. 22
(Exh. R-57, p. 13) (emphasis in original) Under the
LOTO standard, an authorized employee is “[a] person
who locks out or tags out machines or equipment in
order to perform servicing or maintenance on that machine or equipment.” § 1910.1457(b).
Page 16 of Riverdale’s written LOTO procedure
(Exh.R-57) is a checklist form listing a number of tasks
on which the authorized employee is to be tested for
lockout and tagout procedures. The words Pass and
Fail are next to each task so the person conducting the
inspection can circle the appropriate word. The checklist states twice (for both the lockout and the tagout
sections) that “Failure in any category above must be
marked as an Overall Fail and training must be retaken prior to retest.” (Id.)
Riverdale maintains a Lockout Tagout Log that
records the dates LOTO is applied and removed from
a piece of equipment and the names of the authorized
employees performing the LOTO procedure (Exh. C16). On April 26, 2019, Riverdale employees TB and
EM were members of the maintenance department. TB
was the maintenance supervisor and EM was a
maintenance mechanic (Tr. 829, 841). That day, TB and
EM applied and then removed LOTO to and from a
piece of equipment listed as a “C-Spindle.” (Exh, C-20,
p. 4) TB testified “C-spindle” refers to a coating line
spindle. He stated he and EM were performing
App. 23
maintenance on a spindle that day, and they were authorized employees (Tr. 839-42).9
TB testified he had worked for Riverdale from the
late 1990s to approximately 2005 and then left for
other employment. He returned to Riverdale and
worked from approximately 2016 to December of 2019.
He held the position of maintenance supervisor the
last 14 months of his employment with Riverdale
(Tr. 828-29). During the time TB worked both as a
maintenance mechanic and as a maintenance supervisor, Riverdale personnel never performed a periodic
9
Riverdale argues the Secretary “presented no evidence regarding when [TB] became an authorized employee.” (Riverdale’s
Brief, p. 8) Riverdale’s argument is disingenuous. The record establishes that one of the main functions of the maintenance department is to apply LOTO to machinery and equipment when
performing servicing work. TB is Riverdale’s maintenance supervisor. He testified he and EM were authorized employees (Tr. 842).
TB testified employees in the maintenance department performed
“[s]ervice on equipment, machines building facilities, preventive
maintenance.” (Tr. 832) Both as a maintenance mechanic and a
maintenance supervisor, TB performed maintenance on the coating line using the LOTO “program that applied to the maintenance department.” (Tr. 834) He testified the maintenance
department used Riverdale’s Lockout Tagout Log to record “the
individual locking out, the time, date, and piece of equipment.”
(Tr. 835) TB stated Riverdale management informed him he
“was in charge” of the LOTO program (Tr. 850). When he hired
EM, he trained him as an authorized employee (Tr. 864). The
Court finds TB and EM were authorized employees in that they
“lock[ed] out or tag[ged] out machines or equipment in order to
perform servicing or maintenance on that machine or equipment.”
§ 1910.1457(b).
App. 24
inspection of his proficiency in LOTO procedures (Tr.
843, 864).10
As part of its inspection, OSHA requested from
Riverdale copies of completed periodic inspections for
“each piece of equipment comprising the Coating Line”
between April 26, 2016, and April 26, 2019 (the date
TB and EM applied LOTO to one of the coating line’s
spindles) (Exh. C-14, p. 2). Riverdale did not produce
any completed periodic inspection records that meet
the requirements of 1910.147(c)(6)(i)(A) through (D),
including its own Practical Demonstration Checklist
for that time period (Tr. 937-38, 940-41, 949-51).
Riverdale makes several arguments in opposition
to the Secretary’s case, none of them meritorious. First,
Riverdale argues the alleged violation description for
Item 2 misidentifies the “C-spindle” to which TB and
EM applied LOTO as “the Big Spindle.” Riverdale contends there are three spindles on the coating line and
“no evidence was presented regarding which of the
three, if any, was the ‘big spindle’ identified in the citation.” (Riverdale’s Brief p. 5) The evidence establishes
10
Riverdale’s failure to conduct a periodic inspection for TB
is established by his testimony. The Secretary also contends
Riverdale did not conduct a periodic inspection for EM. The Secretary was unable, however, to establish how long EM had been
working for Riverdale at the time he and TB applied LOTO to the
spindle. TB stated he hired EM and he “wanted to say” EM had
worked at Riverdale for more than a year by April 26, 2019, but
he was not “sure about that.” (Tr. 858) Because the record does
not establish EM had worked for Riverdale for at least a year, the
Secretary cannot establish Riverdale failed to conduct an annual
periodic inspection with him.
App. 25
TB and EM applied LOTO to a spindle on the coating
line on April 19, 2019. TB stated he had not been the
subject of a periodic inspection for LOTO proficiency
for any energy control procedures. When asked why
not, TB responded the previous “supervisors that were
there were not there long enough.” (Tr. 843)
Periodic inspections are required for each authorized employee. §§ 1910.147(c)(6)(i)(C) and (D). TB, an
authorized employee, testified Riverdale had never, in
the cumulative nine years he worked at the facility,
performed a periodic inspection with him, either as a
mechanic or a supervisor. Therefore, when TB applied
LOTO to a spindle on the coating line on April 26, 2019,
Riverdale was in noncompliance with the cited standard.
Riverdale also contends that TB, “as the employee
conducting periodic inspections, was not required to
inspect himself.” (Riverdale’s Brief p. 8) This argument is nonsensical. No one has suggested an authorized employee should conduct a periodic inspection
on himself. Any authorized employee may conduct a
periodic inspection for the authorized employee applying the LOTO. The LOTO standard specifically states
that the periodic inspection “shall be performed by
an authorized employee other than the ones(s) utilizing the energy control procedure being inspected.”
§ 1910.147(c)(6)(i)(a) (emphasis added). Riverdale’s
own written LOTO procedure states that periodic inspections shall be “conducted by the Facilities Manager to identify any deviations or inadequacies.” (Exh.
R-57, p. 13, ¶ 7.1) It was incumbent on Riverdale to
App. 26
ensure an authorized employee conducted a periodic
inspection with TB in order to comply with the cited
standard.
Finally, Riverdale argues its failure to produce periodic inspection certifications, either by its Practical
Demonstration Checklist forms or by other documentation, cannot be used as evidence it failed to comply with
§ 1910.147(c)(6)(i) because the cited subsection does
not require certification. Certification is required by
§ 1910.147(c)(6)(ii) (the next subsection after the cited
subsection), which provides:
The employer shall certify that the periodic
inspections have been performed. The certification shall identify the machine or equipment on which the energy control procedure
was being utilized, the date of the inspection,
the employees included in the inspection, and
the person performing the inspection.
Riverdale misconstrues the significance of its failure to produce certifications of periodic inspections.
The Secretary alleges Riverdale failed to conduct periodic inspections of authorized employees in the use of
LOTO procedures. In support of this allegation, the
Secretary adduced evidence that on April 26, 2019,
Riverdale’s maintenance supervisor and a maintenance mechanic applied LOTO to a spindle on the coating line. Riverdale failed to provide periodic inspection
certifications for either of the two employees in response to a request from the Secretary for such documentation for “each piece of equipment comprising the
Coating Line” between April 26, 2016, and April 26,
App. 27
2019.” (Exh. C-14, p. 2) At the hearing, the maintenance supervisor testified he had worked at Riverdale
for a total of nine years and had never been subject to
a periodic inspection. With this, the Secretary has
made a prima facie case establishing Riverdale failed
to comply with § 1910.147(c)(6)(i).
Riverdale could rebut the Secretary’s case with evidence it had, in fact, conducted periodic inspections of
authorized employees. One way to do so would be to
adduce certifications of the periodic inspections. Since
both § 1910.147(c)(6)(ii) and Riverdale’s written LOTO
program require these certifications to be maintained,
it is reasonable to infer that Riverdale would have produced the certifications if they existed.
In Well Solutions, Inc., Rig No. 30, No. 91-340, 1995
WL 242595 (OSHRC April 19, 1995), the Secretary alleged the respondent (WS) failed to provide required
first aid training to an employee or employees where
no medical facility was near the worksite. OSHA conducted a fatality investigation of WS after an explosion
killed two men in four-man crew. The two surviving
employees testified they had not received training in
first aid. It was their opinion that one of the two deceased employees (who was their cousin) also had not
received first aid training. There was no specific evidence regarding whether the other deceased employee
had been trained in first aid. WS argued the Secretary
should have made a greater effort to determine
whether the deceased employees had received first aid
training. The Commission rejected this argument.
App. 28
[W]e conclude that the Secretary has introduced sufficient evidence to establish a prima
facie showing of a violation. WS presented no
evidence to rebut the Secretary’s case, even
though it would have possession of any first
aid training records. While the Secretary’s evidence is not overwhelming, it is sufficient in
the absence of rebuttal, and therefore we conclude that the Secretary has proven a violation of section 1910.151(b).
Id. at *4.
Here, Riverdale was required to maintain periodic
inspection certifications for each authorized employee.
If Riverdale had conducted the required periodic inspections, it is expected Riverdale would have possession of the certifications. Because Riverdale did not
produce the certifications, the Court finds the Secretary’s case (specifically TB’s undisputed testimony
that Riverdale had never conducted a periodic inspection with him during his employment) is unrebutted.
The Secretary has established Riverdale violated
§ 1910.147(c)(6)(i).
(3) Employee Access to the Violative Condition
It is undisputed TB and EM applied LOTO to a
spindle on the coating line on April 26, 2019. TB testified that, according to Riverdale’s energy control procedures for the coating line spindle, the spindle
presents electric and pneumatic hazards, including
“the quick disconnect for the couplings for the
App. 29
compressed air, which may contain debris, which could
be released [at] 110 psi.” (Tr. 842)
Without conducting the required periodic inspections, the employer cannot ensure its authorized employees understand and will implement the
appropriate LOTO procedures for the relevant equipment and machinery. In the preamble to the LOTO
standard, OSHA states the cited standard “will assure
that employees follow and maintain proficiency in the
energy control procedure, and that the inspector will
be better able to determine whether changes are
needed.” Control of Hazardous Energy Sources (Lockout/Tagout), 54 FR 36644-01, 36673 (September 1,
1989).
The Secretary has established employee access to
the violative condition.
(4) Employer Knowledge
TB was Riverdale’s maintenance supervisor on
April 26, 2019. He knew Riverdale had never conducted a periodic inspection of his LOTO proficiency.
The Tenth Circuit has held that employer knowledge
of the violative condition “will almost invariably be
present where the alleged violative condition is inadequate training of employees.” Compass Env’t, Inc. v.
Occupational Safety & Health Rev. Comm’n, 663 F.3d
1164, 1168 (10th Cir. 2011).11 The Court finds employer
11
Although the cited case is not precedential in this proceeding, the Court finds its reasoning persuasive.
App. 30
knowledge is likewise present where the violative
condition concerns the employer’s failure to conduct
periodic inspections of authorized employees. TB’s
knowledge that Riverdale had never conducted a periodic inspection with him under § 1910.147(c)(6)(i)
when he was a maintenance mechanic and that he, as
maintenance supervisor, had never conducted such
inspections on other employees, is imputed to Riverdale.12
The Secretary has established Riverdale had actual knowledge of the violative condition. The Court
finds the Secretary has established all elements of his
burden of proof. Therefore, Item 2 is AFFIRMED.
Characterization of the Violation
The Secretary characterized the violation of
§ 1910.147(c)(6)(i) as serious. A serious violation is established when there is “a substantial probability that
death or serious physical harm could result [from a violative condition] . . . unless the employer did not, and
could not with the exercise of reasonable diligence,
know of the presence of the violation.” 29 U.S.C.
§ 666(k). Here, an authorized employee was exposed to
the electrical and pneumatic hazards presented in the
application of LOTO to a spindle on the coating line
without undergoing a period inspection to confirm his
12
TB testified he began conducting periodic inspections of
maintenance department employees after OSHA’s Safety inspection occurred (Tr. 843-50).
App. 31
proficiency. The violation is properly characterized as
serious.
Items 3, 5a, 5b, 5c, and 5e: Alleged Serious
Violation of §§ 1910.147(c)(7)(i)(A), (d)(2),
(d)(2), (d)(4)(i), and (c)(4)(i)
Alleged Violation Descriptions
The alleged violation descriptions (AVDs) for Item
3, 5a, 5b, 5c, and 5e of the Safety Citation each cite two
incidents that occurred on April 3, 2019, when the lead
coating line operator and a spindle operator attempted
to adjust an order of mesh after it became misaligned
as it moved through the coating line. Items 3, 5a, 5b,
and 5e each cite two instances. Instance (a) cites the
lead coating line operator’s attempt to realign the
mesh by extending his leg through the rails of the catwalk and placing his foot on the mesh as it moved
through the coating line. Instance (b) cites the spindle
operator’s attempt to realign the mesh by opening the
gate to the main drive area, entering it, and reaching
near the main drive rollers to adjust the mesh with his
right hand. Item 5c combines both of the incidents in
Instance (a) (“employees at the catwalk and Main
Drive engaged in activities requiring the use of LOTO).
Riverdale does not dispute the lead coating line
operator and the spindle operator engaged in the cited
conduct. It contends, however, that the LOTO standard
(subsections of which the Secretary alleges Riverdale
violated for each of the five items) does not apply to the
cited activity. Because the five items cite the same
App. 32
employee conduct and related subsections of the LOTO
standard, the Court groups the five items for the purpose of discussing the applicability of the standard.
For reference, the AVDs and the cited standard
subsections and of the five items are as follows:
Item 3
The AVD
29 CFR 1910.147(c)(7)(i)(A): Authorized employee(s) did not receive training in the recognition of applicable hazardous energy sources,
the type and magnitude of the energy available in the workplace, and the methods and
means necessary for energy isolation and control.
(a) Site: Building 1, at the Coating Line, on
the catwalk above the Main Drive component
. . . : On 4/3/2019 affected employees performed the duties of authorized employees including when those employees performed
tasks from the catwalk that required them to
remove or bypass guards in order to adjust
moving wire mesh material while the Coating
Line was operating.
(b) Site: In Building 1, at the Coating Line,
at the Main Drive on the wall side . . . : On
4/3/2019 affected employees performed the
duties of authorized employees when those
employees performed tasks that required they
remove or bypass guards in order to adjust
moving wire mesh material.
App. 33
The Cited Standard
Section 1910.147(c)(7)(i)(A) provides:
Each authorized employee shall receive training in the recognition of applicable hazardous
energy sources, the type and magnitude of the
energy available in the workplace, and the
methods and means necessary for energy isolation and control.
Item 5a
The AVD
29 CFR 1910.147(d)(2): The machine or
equipment was not turned off or shut down
using the procedures established for the machine or equipment:
(a) Site: Building 1, at the Coating Line, on
the catwalk above the Main Drive component
. . . : On 4/3/2019 On 4/3/2019 the application
of energy control (lockout or tagout) actions
were not done in the sequence prescribed by
the standard in that none of the prescribed
steps were performed. On 4/3/2019 a Coating
Line Operator did not turn off or shut down
the Main Drive using the procedures established for the machines or equipment prior to
starting work covered by this subpart.
(b) Site: Building 1, at the Coating Line, at
the Main Drive on the wall side . . . : On
4/3/2019 the application of energy control
(lockout or tagout) actions were not done
in the sequence prescribed by the standard
in that none of the prescribed steps were
App. 34
performed. On 4/3/2019 a Coating Line Operator did not turn off or shut down the Main
Drive using the procedures established for the
machines or equipment prior to starting work
covered by this subpart.
The Cited Standard
Section 1910.147(d)(2) provides:
The machine or equipment shall be turned off
or shut down using the procedures established for the machine or equipment. An orderly shutdown must be utilized to avoid any
additional or increased hazard(s) to employees as a result of the equipment stoppage.
Item 5b
The AVD
29 CFR 1910.147(d)(3): All energy isolating
devices that were needed to control the energy
to the machine or equipment were not physically located and operated in such a manner
as to isolate the machine or equipment from
the energy source(s):
(a) Site: Building 1, at the Coating Line, on
the catwalk above the Main Drive component
. . . : On 4/3/2019 the application of energy
control (lockout or tagout) actions were not
done in the sequence prescribed by the standard in that none of the prescribed steps were
performed. On 4/3/2019 the energy isolating
device that w[as] needed to control the energy
to the Main Drive was not moved into the off
position to isolate the machine or equipment
App. 35
from the energy source(s) prior to starting
work covered by this subpart.
(b) Site: Building 1, at the Coating Line, at
the Main Drive on the aisle side . . . : On
4/3/2019 the application of energy control
(lockout or tagout) actions were not done in
the sequence prescribed by the standard in
that none of the prescribed steps were performed. On 4/3/2019 the energy isolating device that w[as] needed to control the energy to
the Main Drive was not moved into the off position to isolate the machine or equipment
from the energy source(s) prior to starting
work covered by this subpart.
The Cited Standard
Section 1910.147(d)(3) provides:
All energy isolating devices that are needed to
control the energy to the machine or equipment shall be physically located and operated
in such a manner as to isolate the machine or
equipment from the energy source(s).
Item 5c
The AVD
29 CFR 1910.147(d)(4)(i): Lockout or tagout
devices were not affixed to each energy isolating device by authorized employees.
(a) Site: At the Coating Line . . . On 4/3/2019
the application of energy control (lockout
or tagout) actions were not done in the
sequence prescribed by the standard in
that none of the prescribed steps were
App. 36
performed. On 4/3/2019 employees at the
catwalk and Main Drive were engaged in
activities requiring the use of Lockout/
Tagout procedures and Lockout/Tagout
devices were not affixed to energy isolating devices by employees prior to commencing with work.
The Cited Standard
Section 1910.147(d)(4)(i) provides:
Lockout or tagout devices shall be affixed to
each energy isolating device by authorized
employees.
Item 5e
29 CFR 1910.147(c)(4)(i): Procedures were not
developed, documented and utilized for the
control of potentially hazardous energy when
employees were engaged in activities covered
by this section:
(a) Site: Building 1, at the Coating Line, on
the catwalk above the Main Drive component
. . . : On 4/3/2019 a Coating Line Operator working from the catwalk did not utilize Lockout/
Tagout procedures for the control of potentially hazardous energy prior to commencing
with activities covered by this subpart. This
included using his foot on the moving wire
mesh in order to straighten it.
(b) Site: Building 1, at the Coating Line, at
the Main Drive on the wall side . . . : On
4/3/2019 a Coating Line Operator did not utilize Lockout/Tagout procedures for the control
App. 37
of potentially hazardous energy prior to commencing with activities covered by this subpart. This included accessing the main drive
area while the wire mesh was moving in order
to straighten it.
The Cited Standard
Section 1910.147(c)(4)(i) provides:
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.
ANALYSIS
Applicability of the LOTO Standard
The LOTO standard applies to “the 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.” § 1910.147(a)(1)(i) (emphasis in the original).
Section 1910.147(b) defines servicing and/or maintenance (referred to herein as “servicing work”) as
Workplace activities such as constructing, installing, setting up, adjusting, inspecting,
modifying, and maintaining and/or servicing
machines or equipment. These activities include 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.
App. 38
Here, it is undisputed JR, the lead coating line
operator, and AT, the spindle operator (and injured
employee) were not exposed to the unexpected energization, start up, or release of stored energy of the coating line machinery because it was operating when they
attempted to realign the mesh.
The Secretary argues the employees were engaged
in servicing work when they attempted to realign the
mesh. Although the LOTO standard generally does not
apply during normal production operations, it may apply to servicing work performed during production if it
occurs under either of two specific conditions. Section
1910.147(a)(ii) provides:
Normal production operations are not covered
by this standard[.] . . . Servicing and/or
maintenance which takes place during normal production operations is covered by this
standard only if
(A) An employee is required to remove or bypass a guard or other safety device; or
(B) 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.
Riverdale counters that, in attempting to realign
the mesh as it proceeded along the coating line, JR and
AT were not engaged in any of the activities defined as
App. 39
servicing work by § 1910.147(b): constructing, installing, setting up, adjusting, inspecting, modifying,
lubricating, cleaning or unjamming machines or making adjustments or tool changes. Any adjustments they
attempted were on the mesh, not the coating line machinery.
In support of his argument, the Secretary
cites the preamble to the LOTO standard.
[U]sing [a] . . . table saw, it may be necessary
for the employee to remove a piece of wood
which has become jammed against the blade
of the saw. In doing so, the employee might
need to bypass or remove the guard on the
saw and reach into the point of operation. Although this action takes place “during” normal
production operations, it is not actually production, but is servicing of the equipment to
perform its production function. When such
servicing may expose the employee to the unexpected activation of the machinery or equipment, or to the release of stored energy, this
Final Rule will apply. If the servicing is performed in a way which prevents such exposure, such as by the use of special tools and/or
alternative procedures which keep the employee’s body out of the areas of potential
contact with machine components or which
otherwise maintain effective guarding, this
standard will not apply. Thus, lockout or tagout is not required by this standard if the
employer can demonstrate that the alternative means enables the servicing employee to
clean or unjam or otherwise service the machine without being exposed to unexpected
App. 40
energization or activation of the equipment or
release of stored energy.
Control of Hazardous Energy Sources (Lockout/
Tagout), 54 FR 36644-01, 36646-47 (Sept. 1, 1989)
(emphasis added).
The example in the preamble to the LOTO standard is distinguishable from the situation at issue. In
the example, a piece of wood “has become jammed
against the blade of the saw.” Jamming affects the operation of a machine, and the LOTO standard identifies unjamming as a form of servicing work. Here, the
coating line machinery was operating in the manner
intended—it was the mesh that went off track. JR and
AT were not attempting to adjust or service “the
equipment to perform its production function”; they
were adjusting the mesh, i.e. the product being manufactured.13 The Court finds JR and AT were not engaged in servicing work when they engaged in the cited
conduct.
Assuming JR and AT were engaged in servicing
work during normal production operations, the Secretary must establish Riverdale either required JR to
extend his leg through the rails of the catwalk or required AT to open the gate to the main drive area (“An
13
Furthermore, Riverdale provided alternative means to enable coating line operators to realign the mesh without exposing
themselves to hazardous conditions. The alternative means for realignment of the mesh are discussed in the section addressing
witness testimony.
App. 41
employee is required to remove or bypass a guard[.]”
§ 1910.147(a)(2)(ii)(A)); or Riverdale required JR to
place his foot on top of the mesh to adjust it or required
AT to reach towards the main drive rollers to grab
the mesh to adjust it (“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.”
§ 1910.147(a)(2)(ii)(B)).
In support of his argument that Riverdale required JR and AT to bypass guards and insert parts of
their bodies in machinery or associated danger zones,
the Secretary cites Burkes Mechanical, Inc., No. 04475, 2007 WL 2046814 (OSHRC July 12, 2007). In that
case, employees of Burkes Mechanical, Inc. (BMI) were
required to continually clean debris underneath a moving conveyor (but not to clean the conveyor itself ). BMI
contended the LOTO standard did not apply to the employees’ work because the employees were aware the
conveyor was in operation while they were working
near it. The Commission disagreed, finding the cleaning work created “an associated danger zone . . . during
a machine operating cycle.” § 1910.147(a)(2)(ii)(B). The
Commission held,
The preamble [of the LOTO standard] discusses hazards—quite similar to those presented in this case—that pertain to servicing
or maintaining a machine during normal production operations:
App. 42
Performance of maintenance or servicing
activities on a machine or equipment that
is in operation has the potential of exposing employees not only to contact with
moving machinery components at the
point of operation, but also to contact
with other moving components, such as
power transmission apparatus, and also
increases the risk of injury due to the position the employee must assume and the
need to remove, bypass or disable guards
and other safety devices. In many cases,
these activities expose the employee to
the hazard of being pulled into the operating equipment when parts of the employee’s body, clothing or the material or
tools used for cleaning or servicing become entrapped or entangled in the machine or equipment mechanism.
...
See Control of Hazardous Energy Sources
(Lockout/Tagout), 54 Fed. Reg. at 36,647.
Here, an increased risk of injury existed for
those BMI laborers cleaning in Areas B and C
who had to assume cramped, awkward positions while shoveling the debris in close contact with the operating equipment and were,
thus, exposed to the hazard of being pulled
into the operating equipment.
Id. at *5.
Riverdale argues that, unlike BMI, it did not require its employees to work in an associated danger
App. 43
zone when attempting to realign the mesh as it moved
through the coating line. Instead, Riverdale provided
five different authorized methods to adjust the mesh
that did not expose employees to points of operation
or danger zones of the coating line. Several Riverdale
employees, including JR and AT, testified regarding
their training in methods for realigning the mesh
when it went off track and what Riverdale required
them to do.
Witness Testimony
AM, Production Lead
AM worked for Riverdale for approximately six
years. He worked as the lead coating line operator and
later became a production lead, the position he held
the night of AT’s accident (Tr. 519). AM was working
that night, but he did not see the accident occur
(Tr.603, 635). AM was no longer working for Riverdale
at the time of the hearing (Tr. 518).
AM trained JR to take over the position of lead
coating line operator (Tr. 524-25). AM described how
training was accomplished. “I learned from the guy before me. I picked up on little tricks he had, and it goes
down the chain that way. You learn from the guy before
you.” (Tr. 564)
AM testified it was the lead coating line operator’s
responsibility (and not the responsibility of the spindle
operators) to realign mesh that had gone off track on
the coating line (Tr. 565). The mesh could only be realigned while the coating line was operating (Tr. 613).
App. 44
He trained JR to keep the mesh straight as it moves
through the coating line by using “poles” to guide it.
We have poles that we put up at the fluid beds
. . . [W]e use guides at splice. Sometimes
you’ve got to use them in other spots of the
line to try and keep the mesh from walking. . . . There’s a setup at the fluid bed where
you can lock the poles in place so the mesh
can’t push them.
(Tr. 580-81) Another set of poles was near the catwalk
that employees could use to move the mesh (Tr. 612).
Near the splice end of the coating line, there were
guards that could be used to adjust the track of the
mesh (Tr. 613).
Coating line employees could also use camber rollers to realign mesh using controls on an operator panel
(Tr. 611). “There are rollers underneath the catwalk after the cooling chamber that you can use to help prevent leans or help guide the mesh where you want it to
go.” (Tr. 602) In addition to the poles at the fluid bed,
the poles at the catwalk, the camber rollers, and the
guards near the splice end, coating line operators could
adjust the mesh by offsetting the next spliced section
so the mesh lines up correctly (Tr. 613).
AM stated he sometimes used his foot to move the
mesh rather than the other available methods because
“it fixes the problem quicker.” (Tr. 664) He testified that
moving the mesh with his foot is something JR “picked
up from me, and I’ve seen him do it.” (Tr. 590) AM
conceded he had shown JR how he would sit on the
App. 45
catwalk platform and extend his leg through the rails
to place his foot on the mesh to move it (Tr. 581). “If the
mesh is walked too much to one side, then you’ve got
to push it another way, the opposite way, that’s where
I use the trick [counsel is] referring to with the foot.”
(Tr. 582) AM described his technique:
Me personally, and the way people have seen
me do it, I sit on the catwalk because even
with my leg fully extended out, I can’t reach
the drive. And you would just push it as it
goes, take your foot off, push it a little, go with
it and it will move whichever side you’re trying to push it towards.
(Tr. 582)
AM conceded that even though he was supposed
to notify supervisor Brian Johnson if the mesh became
misaligned on the coating line and required correcting,
he did not do so (Tr. 607). He also admitted he knew
his method of aligning the mesh with his foot as he sat
on the catwalk was contrary to Riverdale’s safety rules.
Q.: Did you recognize that when you put
your foot through the catwalk to adjust the
mesh while the mesh was moving that it was
against Riverdale Mills’s safety protocols at
the time?
AM:
Yes.
Q.: And you knew it was against their safety
protocols because you were putting a part of
your body past the yellow marking when the
line was moving, correct?
App. 46
AM:
Correct.
Q.: And you also knew it was against protocol because doing so was not how you were
trained, correct?
AM:
Correct.
Q.: You were not trained to put your foot
through the catwalk to move the mesh, correct?
AM:
Correct.
Q.: And no one showed you to move the mesh
with your foot, correct?
AM:
Correct.
Q.: You were instructed on other ways to adjust the mesh, correct?
AM:
Using poles.
Q.: You came up with adjusting the wire
mesh with your foot on your own, right?
AM:
Yep.
...
Q.: And you never trained [JR] to use his
foot past the catwalk, right?
AM: I didn’t tell him to do it, but I will own
up and say he probably picked it up from me.
He probably [saw] me do it and picked it up
on his own, but it’s not how I instructed him
to do it.
(Tr. 615-17)
App. 47
AM was not aware of anyone aside from himself
and JR who used this method to align the mesh (Tr.
617). He did not use the method in the presence of supervisor Brian Johnson because he “didn’t want to get
in trouble or written up.” (Tr. 618).
Regarding the yellow gate that led to the main
drive area, AM stated he had never seen the gate
opened or any coating line operators in the main drive
area (Tr. 621-22). He testified there was no reason for
a spindle operator to enter the main drive area (Tr.
637-38). When asked his opinion of AT as an employee,
AM responded he “lacks common sense.” (Tr. 668-89)
JR, Lead Coating Line Operator
JR worked for Riverdale from August 2018 to
March 2021.14 He was the lead coating line operator on
the third shift. He was working in that position the
night of the accident. (Tr. 75-77). JR received training
for his position as lead coating operator from production lead AM in October 2018, through observation and
on-the-job training (Tr. 131). He observed AM adjust
the mesh with his foot from the catwalk (Tr. 380).
Like AM, he acknowledged he knew he was supposed to inform supervisor Brian Johnson if the mesh
on the coating line needed to be corrected, but he did
not do so (Tr. 403-04). He also conceded Riverdale had
14
JR left Riverdale’s employment shortly after the April 3,
2019, accident. He returned to work at Riverdale in July 2020 and
left again in March 2021. At the time of the hearing, JR was no
longer at Riverdale (Tr. 74-76).
App. 48
provided several methods for adjusting the mesh, and
it was unnecessary to use his foot to realign it (Tr. 40814). Like AM, he adjusted the mesh with his foot because “[i]t was easier to me.” (Tr. 500)
JR was aware Riverdale’s safety rules did not permit employees to use their feet to adjust the mesh from
the catwalk.
Q.: And you understood that using your foot
was against Riverdale Mills’s safety rules, correct?
JR:
Correct.
Q.: And it was not standard operating procedure; is that right?
JR:
No.
Q.: And it wasn’t something that [AM] told
you to do, correct?
JR:
Correct.
Q.: You never moved the mesh with your foot
in front of Brian Johnson, correct?
JR:
Not that I am aware of.
Q.: You were not trained to put your boot or
your foot through the catwalk to adjust the
wire mesh, correct?
JR:
Correct.
(Tr. 427-28)
App. 49
JR testified that both he and AM understood adjusting the mesh with their feet was not an authorized
method for realigning the mesh.
Q.: Did [AM] ever tell you not to [use your
foot to adjust the mesh]?
JR:
Kind of.
Q.:
What do you mean?
JR: He said I am not telling you to do this.
He said you shouldn’t but it works for me.
(Tr. 382)
Regarding AT’s accident, JR testified there was no
reason for AT to open the gate and enter the main drive
area (Tr. 471). JR had never seen anyone attempt to
adjust the mesh from the main drive area while the
coating line was operating. He was surprised to see AT
had attempted it (Tr. 472).
AT, Spindle Operator
AT began working for Riverdale in December of
2018 (Tr. 675). He worked as a spindle operator until
the night of his accident on April 3, 2019 (Tr. 677). He
often worked with spindle operators NM and MC (Tr.
689-90, 717). AT returned to Riverdale and performed
light work in October of 2019 (Tr. 729). At the time of
the hearing, he was unemployed (Tr. 674).
AT testified that part of his job was to adjust the
mesh if it was misaligned. He adjusted the mesh in the
main drive area from the aisle side “a couple of times
App. 50
a week . . . [b]y reaching in and pulling it over towards
me or by pushing it away from me.” (Tr. 699) He stated
he had observed “multiple people do it” including AM,
JR, and MC (Tr. 699) AT stated the gate to the main
drive area was always open (Tr. 732-34, 743). “All of the
time, 90 percent of the time it was open. I physically
did not touch it.” (Tr. 742-43)
When AT returned to Riverdale after his accident,
he received a write-up as a disciplinary action and was
retrained in safety procedures (Tr. 730). AT was upset
by the write-up. “I believe I should have been coached,
not disciplined.” (Tr. 731)
ER, Spindle Operator
ER worked as a spindle operator on the coating
line for one month (March 5 to April 5, 2019) until he
was fired for drinking alcohol on the job (Tr. 799, 815-16,
818-21). He primarily worked the second shift on the
coating line (Tr. 801). ER testified the yellow gate used
to access the main drive area “was always open for at
least the whole month I was working there.” (Tr. 801)
On cross-examination, ER stated he contacted
OSHA in April of 2019 after he was fired because he
was mad at Riverdale (Tr. 821). He told the CSHO he
spoke with that he had quit working at Riverdale (rather than being fired). ER admitted at the hearing that
statement was “not true.” (Tr. 813) He disputed the
CSHO’s notes showing he had told her he worked the
third shift with AT and he left Riverdale due to an arm
injury (Tr. 813-15).
App. 51
NM, Spindle Operator
NM began working at Riverdale in November
2018. On April 3, 2018, he was a third-shift spindle operator working with AT. NM was still employed with
Riverdale at the time of the hearing (Tr. 1452-53).
NM testified he never observed the yellow gate
used to access the main drive area open while the coating line was operating (Tr. 1461). He had never observed coating line operators work in the main drive
area with the gate open (Tr. 1462).
NM described AT’s actions the night of his accident: “He bypassed a door, stuck his arm in and then it
got stuck and trapped in which he broke his arm in two
places.” (Tr. 1461) “[AT] ran around me, went to the
main drive. Thought he could help and then he stuck
his arm in there, which he got caught and hurt himself
“ (Tr. 1463) NM testified that as he attempted to move
the mesh from the spindle area, AT
walked behind me, got into like the main drive
area. Thought he could help [JR] by moving it.
I don’t know what he was thinking. Stuck his
arm inside the yellow caution pinch-point
area. Tried to grab it. And literally, glove got
stuck and got his arm sucked in. That’s not
like a way how we move the mesh at all. We
don’t stick our hands in there.
(Tr. 1465)
NM had never seen AT or any other Riverdale employee enter the main drive area while the coating line
was operating (Tr. 1467).
App. 52
Brian Johnson, Third-Shift Supervisor
Brian Johnson began working for Riverdale in
October of 2018 as a shift supervisor (Tr. 1132). He
was working for Riverdale at the time of the hearing.
On April 3, 2019, Johnson was the supervisor for
Riverdale’s third shift (Tr. 1323).
Johnson testified the yellow gate used to access
the main drive area was always closed. He had seen
only maintenance department employees enter the
main drive area, and that was when the coating line
was not operating and LOTO had been applied to the
main drive (Tr. 1375). Coating line operators, including
spindle operators, were not supposed to open the gate
(Tr. 1377).
Johnson described his reaction to AT’s accident.
I was shocked that anybody would go through
that safety area and open the gate. Regardless
of what the situation was with the material.
Don’t—doesn’t matter. That is the most unsafe area on the entire—on the entire line.
But to pull the pin out and to put your hand
into it, it’s better than an 80-percent chance
you’re going to get severely hurt in that machine. And I was shocked that somebody
would actually do it. It’s just not something
I’ve ever seen done before.
(Tr. 1377-78)
Johnson was also dismayed to learn of JR’s technique of using his foot to straighten the mesh from the
catwalk.
App. 53
I have never seen, as of even today, somebody
trying that maneuver. It has never happened
on my third shift to my knowledge. It has now
been brought to my attention several months
back that it was done under my watch. And
that’s—that’s totally wrong to do something
like that.
(Tr. 1378)
Credibility Determination
Regarding the Gate and Main Drive Area
The testimony of AM, JR, NM, and Brian Johnson
is at odds with that of AT and ER. The first four employees testified the yellow gate used to access the
main drive area was always kept shut, only maintenance department employees entered the area, and
they entered only when the coating line was not operating and LOTO had been applied to the main drive.
AT and ER, on the other hand, testified the gate was
usually open and coating line operators frequently entered the area to realign the mesh by grabbing it with
their hands.
The Court finds the testimony of AM, JR, NM, and
Johnson to be more credible than that of AT and ER.
AT and ER appeared defensive and forgetful of inconvenient details as they testified. They admitted
they were angry at Riverdale (AT for being written up
and ER for being fired). ER admitted he lied to the
CSHO who interviewed him about the circumstances
of his termination. In contrast, the testimony of the
other four employees was internally consistent and
App. 54
consistent with each other. Their responses to questions were straightforward, with no signs of evasiveness or hesitation.
Of particular note is the testimony of AM and JR.
Neither of these witnesses was working for Riverdale
at the time of the hearing. They had no motivation to
provide testimony favorable to Riverdale in the interest of job security. Both employees openly conceded
they had attempted to realign the mesh with their feet
from the catwalk, despite knowing it was a safety infraction that could get them in trouble if they were
caught. AM testified regarding whether he applied
LOTO procedures when he stopped the coating line to
fix splice breaks. “As far as I’m concerned, we were supposed to, but like I said, you’re not being watched all
the time. So me feeling comfortable, I didn’t follow protocol all the time. I didn’t lock it out all the time. I’m
supposed to but I didn’t.” (Tr. 554) It is unlikely a witness would testify so candidly about his own misbehavior yet provide cover for his former employer by giving
false testimony about the gate and main drive area.15
The Court concludes it is more likely than not that
the gate to the main drive area was not left open, and
coating line operators did not enter the area and attempt to realign the mesh with their hands.
15
The Court notes that instances of potential safety infractions by Riverdale employees at various stations of the coating
line came to light during the hearing. The only instances at issue,
however, in Items 3, 5a, 5b, 5c, 5e, and 6 are the actions of JR and
AT on April 3, 2019, at the catwalk and the main drive area.
App. 55
No Requirement to Bypass Guard or
Place Body Part in Point of Operation
Even if the testimony of AT and JR were deemed
credible, it would not establish the LOTO standard applies to the cited activities. It is undisputed the coating
line was engaged in its normal production operation on
April 3, 2019. Sections 1910.147(a)(2)(ii)(A) and (B)
provide the LOTO standard applies to servicing work
during normal production operations “only if ’ employees are “required to remove or bypass a guard” or they
are “required to place any” body part in the “point of
operation” or “where an associated danger zone exists
during a machine operating cycle.” (emphasis added)
The Application section of the LOTO standard explicitly provides the standard applies only if the employer requires employees to take one of the two listed
actions. Nowhere in the record is there evidence
Riverdale required an employee to bypass the gate to
the main drive area or to place his foot on the moving
mesh from the catwalk. Neither of these actions was
permitted by Riverdale’s safety program, much less required. The two employees who used their feet to move
the mesh while sitting on the catwalk knew to hide
their actions from supervisor Johnson—otherwise they
would be written up. AT’s action of bypassing the gate
to the main drive area and grabbing the mesh with his
hand shocked his supervisor and coworkers—they had
App. 56
never seen anyone do that and could not comprehend
why anyone would.16
Riverdale provided five methods for realigning
mesh that had gone off track on the coating line. None
of them required employees to bypass guards or place
body parts in the point of operation. Because the Secretary cannot establish Riverdale required employees
to take either of these actions, he has failed to establish
the five cited subsections of the LOTO standard apply
to the cited conditions.
Items 3, 5a, 5b, 5c, and 5e are VACATED.17
Alternative Item 6: Alleged
Serious Violation of § 1926.212(a)(1)
The Secretary alleged, in the alternative to Instance
(a) of Item 5e, a serious violation of § 1926.212(a)(1).
Item 6 addresses only the action of JR using his foot to
16
The cause of the accident is not at issue. “The Commission
has long held that ‘[d]etermining whether the standard was violated is not dependent on the cause of the accident.’ Am. Wrecking
Corp., 19 BNA OSHC 1703, 1707 n.4 (No. 96-1330, 2001) (consolidated), aff ’d in relevant part, 351 F.3d 1254 (D.C. Cir. 2003).” Ceco
Concrete, No. 17-0843, 2021 WL 2311867, at *5, n.4 (OSHRC Feb.
26, 2021).
17
The parties raised other issues on the merits of Items 3,
5a, 5c, and 5e, including whether JR was a supervisor (for the purpose of imputing employer knowledge), whether the coating line
operators were authorized employees, and how LOTO was applied
in areas of the coating line other than the catwalk and the main
drive area. Because the Court finds the LOTO standard is not applicable to the cited conditions in the five items, those issues are
moot.
App. 57
adjust the mesh while sitting on the catwalk on April
3, 2019. The actions of AT in the main drive area are
not at issue. The AVD of Item 2 states:
29 CFR 1910.212(a)(1): One or more methods
of machine guarding was not provided to protect the operator and other employees in the
machine area from hazards such as those created by point of operation, ingoing nip points,
rotating parts, flying chips and sparks:
(a) Site: Building 1, at the Coating Line, on
the catwalk above the Main Drive component
. . . : On 4/3/2019 a machine guard was not
provided to protect a Coating Line Operator
from moving parts of the Main Drive in that
the operator placed a foot through the railing
on the catwalk and on to the moving wire
mesh in order to straighten it.
The Cited Standard
Section 1910.212(a)(1) provides:
One or more methods of machine guarding
shall be provided to protect the operator and
other employees in the machine area from
hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding
methods are-barrier guards, two-hand tripping devices, electronic safety devices, etc.
App. 58
ANALYSIS
(1) Applicability of the Cited Standard
Section 1910.212(a)(1) is found in Subpart O (Machine and Machine Guarding) of the general industry
standards. Section 1910.212 is titled General requirements for all machines. The main drive rollers at issue
are part of a machine. The cited standard applies.
(2) Compliance with the Terms of the Standard
Section 1910.212(a)(1) is a performance standard.
Performance standards “require an employer to identify the hazards peculiar to its own workplace and determine the steps necessary to abate them.” Thomas
Indus. Coatings, Inc., No. 97-1073, 2007 WL 4138237,
at *4 (OSHRC Nov. 1, 2007). It is undisputed AM and
JR were able to reach the moving mesh with their feet
if they sat on the catwalk and extended their legs between the rails. Thus the main drive area was not
guarded in the sense that employees could, with effort,
make contact with the mesh near the main drive rollers. The issue is whether the Secretary established
guarding was required.
To prove access to a hazard for the element of noncompliance, the Secretary must show that it is reasonably predictable by operational necessity or otherwise
that employees could have been in the zone of danger
of the main drive rollers.
To make this determination, we consider
whether, given “the manner in which the machine functions and how it is operated by the
App. 59
employees,” they are exposed to a hazard.
Rockwell Intl Corp., 9 BNA OSHC 1092, 109798 (No. 12470, 1980). In other words, for the
Secretary to establish the exposure to a hazard required for noncompliance, he “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.” Aerospace
Testing Alliance, No. 161167, at 4 (OSHRC
2020) (quoting Fabricated Metal Prods., 18
BNA OSHC 1072, 1073-74 (No. 93-1853, 1997)
(emphasis added)). Therefore, the occurrence
of the operator’s injury here does not, by itself,
establish that [the company] failed to comply
with § 1910.212(a)(1). Indeed, noncompliance
in this case hinges on whether the operator’s
actions were reasonably predictable given the
machine’s normal operation.
Wayne Farms, No. 17-1174, 2020 WL 5815506 at *3
(OSHRC Sept. 22, 2020).
The actions of JR were not reasonably predictable
given the coating line’s normal operation. Riverdale
provided five authorized methods for realigning the
mesh, including using two sets of poles, cambers,
guides, and offsetting splices. Extending a foot between
rails while sitting on the catwalk is a shortcut AM
came up with and JR observed. This rogue method was
not operationally necessary or the result of employee
inadvertence. It was an intentional, idiosyncratic act
contrary to Riverdale’s safety rules.
App. 60
Furthermore, the Secretary has not established
JR had access to the zone of danger when he extended
his leg through the rails of the catwalk. Looking at the
photograph admitted as Exhibit C-100a, JR marked
the area where he placed his foot to adjust the mesh.
He also marked the roller nearest to the catwalk. He
described the area where he placed his foot as “[j]ust
in front of the catwalk along the edge of the mesh.” (Tr.
346) JR estimated the roller closest to the edge of the
catwalk was “[m]aybe two feet” from the catwalk and
the mesh was “[m]aybe half a foot” below the catwalk
as it moved along the coating line (Tr. 353). He placed
his foot “four to six inches” from the edge of the catwalk
when he straightened the mesh (Tr. 353). The Secretary does not dispute JR’s estimates or offer alternative estimates. The Court credits JR’s testimony
regarding his estimates of the relevant distances.
The Commission has noted, “there is no hard and
fast rule for determining exposure in a machine guarding case—rather, exposure must be determined on a
case-by-case basis depending on ‘the manner in which
the machine functions and the way it is operated.” Dover High Performance Plastics, Inc., No. 14-1268, 2020
WL 5880242, at *3, n. 5 (OSHRC Sept. 25, 2020). JR
testified he sat on the catwalk and extended his leg
through the rails (Tr. 341-42). As he did so, his arm was
“wrapped around the railing,” indicating his torso was
next to the railing supports (Tr. 350). JR was able to
place his foot “[flour to six inches maybe” from the edge
of the catwalk onto the mesh, meaning his foot was approximately eighteen inches from the closest roller (Tr.
App. 61
353). AM, whose technique JR copied, testified he could
not reach the main drive rollers from the catwalk.
“[E]ven with my leg fully extended out, I can’t reach
the drive."(Tr. 582)
The Court finds the Secretary failed to establish
Riverdale violated the terms of § 1910.212(a)(1) The
Secretary did not prove JR was exposed to the rotating
parts of the main drive rollers by operational necessity
or by access to the zone of danger.
Item 6 is VACATED.
THE HEALTH CITATION (No. 19-2011)
Item 3 of Citation No. 1: Alleged Serious Violation of § 1910.1200(h)(1)
Item 3 of Citation No. 1 provides:
29 CFR 1910.1200(h)(1): Employees were
not provided effective information and training on hazardous chemicals in their work area
at the time of their initial assignment and
whenever a new hazard that the employees
had not been previously trained about was introduced into their work area:
On or about 6/13/19 to 6/27/19 hazardous
chemicals were used in the coating line work
area, such as “soap,” fluid bed chemicals,
washer chemicals, and cooling chemicals,
where an employee worked without first receiving effective information and training
on such chemicals at the time of the initial
App. 62
assignment and/or whenever a new hazard
was introduced into the work area.
The Cited Standard
Section 1910.1200 addresses hazard communication regarding toxic and hazardous substances. It requires that the “transmittal of information is to be
accomplished by means of comprehensive hazard communication programs, which are to include container
labeling and other forms of warning, safety data sheets
and employee training.” § 1910.1200(a)(1).
The cited standard, § 1910.1200(h)(1), states:
Employers shall provide employees with effective information and training on hazardous
chemicals in their work area at the time of
their initial assignment, and whenever a new
chemical hazard the employees have not previously been trained about is introduced into
their work area. Information and training
may be designed to cover categories of hazards (e.g., flammability, carcinogenicity) or
specific chemicals. Chemical-specific information must always be available through labels and safety data sheets.
(1) Applicability of the Cited Standard
The cited standard is found in Subpart Z (Toxic
and Hazardous Substances). Section 1910.1200(b), the
Scope section of the standard, provides in relevant
part:
App. 63
(1) This section requires chemical manufacturers or importers to classify the hazards of
chemicals which they produce or import, and
all employers to provide information to their
employees about the hazardous chemicals to
which they are exposed, by means of a hazard
communication program, labels and other
forms of warning, safety data sheets, and information and training. . . . (Employers who
do not produce or import chemicals need only
focus on those parts of this rule that deal with
establishing a workplace program and communicating information to their workers.)
(2) This section applies to any chemical
which is known to be present in the workplace
in such a manner that employees may be exposed under normal conditions of use or in a
foreseeable emergency.
It is undisputed Riverdale employees worked with
hazardous chemicals, including those listed in the
AVDs of the items at issue under the Health Citation.18
Section 1910.1200(h)(1) applies to the cited chemicals.
18
Riverdale considers some of the chemicals and recipes it
uses at its facility to be proprietary information. The Court consented to the parties’ agreement to place certain testimony and
exhibits under seal and to use a Chemical Key (Exh. C-34 (Under
Seal)) to refer to certain chemicals at issue. IH Hart explained the
purpose of the Chemical Key: Riverdale “wanted to keep their
chemicals confidential. So the area director made a list of them
and numbered them so that the numbers could be used instead of
the name[s].” (Tr. 1099) See Commission Rule 52(e)(7) (“In connection with any discovery procedures and where a showing of good
cause has been made, the Commission or Judge may make any
order including . . . [t]hat a trade secret or other confidential
App. 64
(2) Compliance with the Terms of the Standard
IH Hart opened a health inspection at Riverdale’s
facility on June 27, 2019. During her inspection, she
interviewed a machine operator who had worked at
Riverdale for two months at that time. IH Hart conducted the interview in the presence of Cyril Means,
Riverdale’s corporate counsel. She transcribed the machine worker’s answers to her questions and then gave
him the statement to read over and sign (Exh. C-27; Tr.
1080-82). The information communicated in the machine operator’s interview statement is the basis for
the violation alleged in Item 3 (Tr. 1570).
The machine operator told IH Hart he uses chemicals in his work, including one the employees call
soap, which is what the employees call sodium hydroxide (Tr. 1078). IH Hart testified its “corrosive. It can
damage skin, eyes, any part of the body, really.” (Tr.
1078)
The machine operator told IH Hart,
If I get soap on me, it’s going to eat my skin. I
don’t know what’s in the soap that does that.
Gets active with the sweat on me. I have a
safety data sheet. I don’t get training yet.
About chemicals yet. Primer doesn’t do anything. Only the soap hurts me. . . . When I first
started, 2 [hours] training about forklifts,
PPE, video. Nothing in video about chemicals. Soap literally will eat your flesh. Mostly
research, development, or commercial information not be disclosed or be disclosed only in a designated way.”).
App. 65
maintenance adds soap. We have to check it,
and if it needs more, I add it. I wear gloves.
Lead operators add it. During the day . . . we
have to add it. Make sure I’m not sweating
and wear gloves. I wear a dust mask for it also.
If it gets on skin, wash it off.
(Exh. C-27)
The primer to which the machine operator refers
contains hazardous Chemical 6 (Exh. C37 (Under
Seal)). IH Hart asked to see the safety data sheet to
which the machine operator referred. When he produced it, she discovered it was not a safety data sheet
but a recipe for one of the products Riverdale uses at
its facility (Exh. C-28 (Under Seal); Tr. 1082-83 (Under
Seal)).
Riverdale argues the machine operator’s statement is hearsay and should not weigh in the Court’s
consideration of this item. Riverdale is incorrect. Under Fed. R. Evid. 801(d)(2)(d),
A statement that meets the following conditions is
not hearsay:
...
(2) The statement is offered against an opposing party and:
...
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed[.]
App. 66
The machine operator was an employee at the
time he made the statement to IH Hart, and his statement concerns his working conditions, a matter within
the scope of his relationship with Riverdale. See, Regina Constr. Co., No. 87-1309, 1991 WL 104227, at *3
(OSHRC May 15, 1991). The machine operator’s statement is not hearsay, and the Court gives it considerable weight.
The Court also rejects Riverdale’s claim that the
machine operator’s statement unfairly prejudices
Riverdale under Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”).19 Riverdale’s
legal counsel has robustly defended Riverdale’s interests throughout this proceeding. Riverdale’s corporate
counsel was present at the machine operator’s interview. At no time has Riverdale’s counsel suggested the
IH’s transcription of the machine operator’s responses
is inaccurate or her conduct of the interview lacked
transparency.
Next, Riverdale argues that even if the machine
operator’s statement is true, it shows Riverdale
trained him in compliance with the cited standard.
“Specifically, in his statement, [the machine operator]
19
The Advisory Committee Notes for Fed. R. Evid. 403 states,
“ ‘Unfair prejudice’ within its context means an undue tendency
to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.”
App. 67
admitted that he knew the industry term for the chemical (“soap”), what PPE to wear while using the soap
(“I wear gloves”) and knew what to do if he had a dermal exposure (“If it gets on skin, wash it off ’).”
(Riverdale’s Brief p. 25) None of this counteracts the
machine operator’s statement that he had not yet received training in the use of chemicals. The machine
operator stated he routinely worked with soap. Knowing what the other employees call sodium hydroxide
and that it will burn his skin does not establish
Riverdale trained him in compliance with the standard.
David Stevens, Riverdale’s plant safety manager,
testified he provides hazard communication training to
employees.
[W]e make sure that they know exactly where
the Safety Data Sheets are. We let them
know—there’s a film that we watch before a
video. We go back, we review the—the key
points of the film. We have a five-page training
document that we go through with them. So
we make sure that they get all of that information. And then I make sure that they nod
their head north and south to me that they
understand, and then they acknowledge that
they’ve got it.
(Tr. 1531-32)
Stevens testified the machine operator received
safety training on a number of topics on May 16, 2019,
the day after he was hired (Exh. R-106; Tr. 1531). Exhibit R-106 is a form titled Safety Training Checklist
App. 68
and Documentation and lists twenty-one topics, such
as crane training, forklift training, machine controls,
etc. The only topic related to the item at issue is “Right
to Know/Hazard Communication-(Location of safety
data sheets and other reference material).” Ill Hart requested hazard communication training documents at
the opening conference ((Exh. C-26; Tr. 1056-58). By
the time of the closing conference in September 2019,
Riverdale had not provided the training documents to
her (Tr. 1088-89).
The machine operator told IH Hart that he received no training with regard to chemicals. In contrast, he specifically mentioned he had received
training in “steel toes . . . forklifts, [and] PPE.” He also
pointed out the safety video he watched did not address hazardous chemicals: “Nothing in video about
chemicals.” (Exh. C-27)20 The Court credits the machine operator’s statement that Riverdale did not provide hazard communication safety training to him.
The Secretary has established Riverdale did not
provide the machine operator with “effective information and training on hazardous chemicals in [his]
20
Riverdale did not produce the safety video or the purported
five-page training document during discovery or at the hearing
(Tr. 486-87, 493-94). The Court infers the missing training materials do not address the hazard communication training required
by § 1910.1200(h)(1). See N. Landing Line Constr. Co., No. 960721, 2001 WL 826759, at *9 (OSHRC July 20, 2001) (“[D]eficiencies in [the employer’s] response should be taken as establishing
that there was no such evidence, not that the Secretary failed to
carry her burden.”) (citing Ocean Elec. Corp. v. Sec’y of Labor, 594
F.2d 396, 403 n. 4 (4th Cir. 1979).
App. 69
work area at the time of [his] initial assignment,”
as required by § 1910.1200(h)(1). The Court finds
Riverdale failed to comply with the requirements of
§ 1910.1200(h)(1) with regard to the machine operator.
(3) Employee Access to the Hazardous Condition
The machine operator worked with soap and primer, both of which contain hazardous chemicals (Exh.
C-27). The Secretary has established he had access to
the hazardous chemicals.
(4) Employer Knowledge
As previously noted, when an employee has not
received required safety training, the employer necessarily has knowledge of the failing. Riverdale’s
employee handbook includes a section on hazard communication training. It states:
EMPLOYEE INFORMATION & TRAINING –
1910.1200(h) All employees deemed to have
been or to be placed in contact with hazardous
material will be so informed and will be
trained in safety procedures on a one-on-one
basis by the Supervisor. New and transferred
employees will be trained by the Supervisor of
that area as part of the training/orientation
process. Use of the appropriate MSDS will be
part of this training.
(Exh. C-9, p. 56, ¶ C) (emphasis added)
App. 70
Riverdale has a hazard communication program
that details the elements to be covered when training
new employees:
Prior to starting work each new employee of
Riverdale Mills Corporation will attend a
health and safety orientation and will receive
information and training on the following:
* an overview of the requirements contained in the OSHA Hazard Communication Standard, 1910.1200;
* any operations in their work area
where hazardous chemicals are present;
* location and availability of our written
hazard program;
* physical and health hazards of the
chemicals in their work area;
* methods and observation techniques
used to determine the presence or release
of toxic and hazardous substances in the
work area;
* measures employees can take to protect themselves from hazards in their
workplace, including specific procedures
the employer has implemented to prevent exposure to hazardous chemicals
such as appropriate work practices, emergency procedures, and personal protective equipment;
App. 71
* explanation of the labeling system
and what the label information means;
and
* explanation of M[safety data sheets]
and how employees can use this information to protect themselves.
(Exh. R-80, p. 2, ¶ 3)
It is clear from the machine operator’s interview
statement that he did not attend the specialized training in hazard communication outlined in Riverdale’s
program. Riverdale’s policy, as stated in the employee
handbook, is that newly-hired employees be trained
one-on-one by their supervisors for hazard communication safety. The machine operator’s supervisor necessarily knows he did not train the machine operator in
hazardous communication safety. His knowledge is imputed to Riverdale.
The Court finds Riverdale knew it had not adequately trained the machine operator on hazardous
chemicals in his work area.
The Court finds the Secretary has established all
elements of his burden of proof. Therefore, Item 3 is
AFFIRMED.
Characterization of the Violation
The Secretary characterized the violation cited in
Item 3 as serious. 11-1 Hart’s description of the hazards presented by working with sodium hydroxide is
sufficient to show “an accident is possible and there is
App. 72
a substantial probability that death or serious physical
harm could result from the accident.” Item 3 is
properly characterized as serious.
Item 1 of Citation No. 2: Alleged Otherthan-Serious Violation of § 1910.1200(g)(11)
Item 1 of Citation No. 2 provides:
29 CFR 1910.1200(g)(11): Safety data sheets
were not made readily available, upon request, to designated representatives, the
Assistant Secretary, and the Director, in accordance with the requirements of 29 CFR
1910.1020(e):
. . . On or about 6/27/19, and again on 8/26/19,
the employer did not make readily available,
upon request, to the Assistant Secretary, and
the Director, the safety data sheets for the
hazardous materials used on the galvanizing
and coating lines, such as, but not limited to,
Chemical 4, Chemical 5, and Chemical 6 identified on the chemical key which is provided
separately to the employer simultaneously
with this citation.
The Cited Standard
Section 1910.1200(g)(11) provides:
Safety data sheets shall also be made readily
available, upon request, to designated representatives, the Assistant Secretary, and the
Director, in accordance with the requirements
of § 1910.1020(e).
App. 73
(1) Applicability of the Cited Standard
Riverdale used hazardous chemicals in its facility
for which safety data sheets are required (Exhs. C-25
& R-52 (Under Seal); Tr. 1064 & 1066 (Under Seal); Tr.
1065, 1121-22). Section 1910.1200(g)(1) applies to the
cited condition.
(2) Compliance with the Terms of the Standard
The cited standard requires the employer to make
safety data sheets readily available, upon request, to
OSHA in accordance with the requirements of
§ 1910.1020(e). Section 1910.1020(e) provides:
Whenever an employee or designated representative requests access to a record, the employer shall assure that access is provided in
a reasonable time, place, and manner. If the
employer cannot reasonably provide access to
the record within fifteen (15) working days,
the employer shall within the fifteen (15)
working days apprise the employee or designated representative requesting the record of
the reason for the delay and the earliest date
when the record can be made available.
On June 27, 2019, IH Hart held an opening conference attended by Riverdale owner James Knott, corporate counsel Cyril Means, and plant safety manager
David Stevens. She conducted a walkaround inspection with James Knott and Cyril Means which took
them along the coating line and the galvanizing line.
She discussed the chemicals used by operators on the
two lines with Knott (Tr. 1063-64, 1066 (Under Seal)).
App. 74
She requested all safety data sheets for Riverdale’s
coating and galvanizing lines that Riverdale had not
previously provided. It was her impression Knott and
Means understood she was talking about safety data
sheets for chemicals used on the two lines (Exh. C-26;
Tr. 1057-60, 1125). She gave her business card to the
men. Her card listed her contact information, including
her name, office address, email address, fax number,
and telephone number (Tr. 1058-59).
Riverdale had not provided any of the documents
she requested by the day of the closing conference, in
September 2019 (Tr. 1088). On September 24, 2019 (after the closing conference), IH Hart’s assistant area director received an email from one of Riverdale’s
attorneys with safety data sheets attached for some of
the chemicals, including Chemicals 4, 5, and 6 (Exh. C31 (Under Seal); Tr. 1089-90). Still missing were requested safety data sheets for Chemicals 2 and 3 (Tr.
1094 (Under Seal)). OSHA had not received those
safety data sheets as of December 13, 2019, when the
Secretary issued the Health Citation to Riverdale (Tr.
1094 (Under Seal)).
Riverdale contends it understood IH Hart’s request for safety data sheets during the opening conference to pertain only to chemicals that presented aircontaminant hazards.
[I]t is important to note that OSHA opened
the inspection as a result of a complaint about
air-contaminant hazards, and therefore Hart’s
request for [safety data sheets] on the first
day of the inspection can only be understood
App. 75
as requesting [safety data sheets] applicable
to possible air contaminants. The Secretary,
however, has not claimed that the [safety data
sheets] which were subsequently provided in
September 2019 (and which are the basis for
this citation item) relate specifically to potential air contaminants; rather, they relate to
chemicals used on the coating line. Accordingly, as of June 27, 2021, [Riverdale] had already fully complied with OSHA’s requests
for [safety data sheets] related to potential air
contaminants. If OSHA sought other [safety
data sheets] than those related to air contaminants, it was the agency’s burden, not RMC’s,
to clearly articulate which [safety data sheets]
were sought.
(Riverdale’s Brief pp. 27-28)
Riverdale’s argument would be more persuasive if
one of the men attending the opening conference or
walkaround inspection had testified to this effect at
the hearing. Of the three men, only Stevens was called
as a witness by Riverdale, and he was not questioned
regarding his understanding of IH Hart’s document request. IH Hart took the stand on the fifth day of the
eight-day hearing. Means attended the entirety of the
hearing and was present in the courtroom that day (Tr.
1036). If he disagreed with IH Hart’s testimony, he
could have informed Riverdale’s counsel, who could
have called Means or Knott to the stand to rebut IH
Hart’s testimony. Riverdale did not do so.
The situation here is analogous to the situation
in Capeway Roofing Sys., Inc., No. 00-1968, 2003 WL
App. 76
22020485 (OSHRC Aug. 26, 2003). In that case, a
CSHO named Holiday testified that on the day of the
inspection, a foreman named Araujo told him his employees had been working on a roof without fall protection the previous day. Capeway argued the All erred in
crediting CSHO Holiday’s testimony over conflicting
testimony that a second foreman had stated the employees had not been working on the roof that day. The
Commission disagreed.
[Foreman] Araujo was in the courtroom, yet
he was not called to testify. If he had not made
the admission to which CO Holiday testified,
we would expect that he would have taken the
witness stand to deny or explain it. The fact
that he did not lends weight to Holiday’s testimony, because Capeway had the opportunity
to rebut it but did not. . . . It is well established that when one party has it peculiarly
within its power to produce witnesses whose
testimony would elucidate the situation and
fails to do so, it gives rise to the presumption
that the testimony would be unfavorable to
that party. . . . The Commission has also noted
that when one party has evidence but does not
present it, it is reasonable to draw a negative
or adverse inference against that party, i.e.,
that the evidence would not help that party’s
case.
Id. at *12 (citations omitted).
If Means or Knott agreed with Riverdale that it
could “only be understood” that IH Hart was requesting safety data sheets relating to air contaminants the
App. 77
day of her opening conference, the Court would expect
that one of the men would have taken the witness
stand to dispute her testimony that she requested
safety data sheets for the coating and galvanizing line
chemicals. The fact that neither of them testified lends
weight to IH Hart’s testimony, because Riverdale had
the opportunity to rebut it but did not. The Court credits IH Hart’s testimony that she requested safety data
sheets for the chemicals used on the coating line and
galvanizing line.21
Finally, Riverdale argues §§ 1910.1200(g)(11) and
1910.1020(e) do not require the employer to give, send,
or otherwise produce the requested safety data sheets
to OSHA—the employer is required only to “make
readily available” the safety data sheets.
[Riverdale] was not required to provide copies of these documents; it only had to make
them “readily available” for inspection. Id.
§ 1910.1200(g)(11). And they were readily
available for Hart to inspect in person when
she visited [Riverdale’s] worksite. Hart chose
not to inspect them then. Thus, [Riverdale]
21
Riverdale also faults IH Hart because she emailed a second request for the safety data sheets on August 26, 2019, but
used the email address for the senior James Knott instead of his
son, the James Knott she met with the day of the opening conference. The elder James Knott had died the previous year and
Riverdale was unaware of the email request (Tr. 1111). This
failed request is immaterial to this proceeding because IH
Hart made the request that triggered the requirements of
§§ 1910.1200(g)(11) and 1910.1020(e) on June 27, 2019, at the
opening conference.
App. 78
did not withhold [safety data sheets] documents at this or any other time.
(Riverdale’s Brief p. 29)
Under Riverdale’s interpretation of “made readily
available,” an employer is required to do nothing to
comply with § 1910.1200(g)(11) except maintain safety
data sheets somewhere in its facility. An employer
need not even respond to a request for documents, unless the IH asks to see them in person at the facility.
Riverdale’s novel argument ignores the plain language
of § 1910.1020(e), which is incorporated by reference in
the cited standard. Section 1910.1020(e) requires the
employer, upon request by an OSHA representative, to
“assure that access is provided in a reasonable time,
place, and manner,” and provides fifteen days for the
employer to provide access. Section 1910.1020(e)
places an affirmative obligation on the employer to
take action in response to the request for access to records. Assure is defined as “tell someone something positively or confidently to dispel any doubts they may
have . . . make (someone) sure of something . . . make
(something) certain to happen.” Assure, The New Oxford American Dictionary (2d ed. 2005). The employer
cannot sit back and ignore the request for documents
until the OSHA representative asks to view them in
person. Under the standard, the employer is required
to either send the OSHA representative copies of the
requested documents (surely the easiest method of
compliance) or initiate arrangements as to the “time,
place, and manner” for the OSHA representative to
App. 79
access the records. Regardless, the onus is on the employer to affirmatively respond to the Secretary.
The Secretary has established Riverdale failed to
comply with the terms of § 1910.1200(g)(11).
(3) Employee Access to the Violative Conditions
Employee access to a hazard is not an element of
the Secretary’s burden of proof for a recordkeeping violation. “[T]he Secretary need not prove harm to any
particular employee resulting from a violative record,
to establish a violation.” Gen. Dynamics Corp., 15 BNA
OSHC 2122, 2132 n. 17 (No. 87-1195, 1993).
(4) Employer Knowledge
IH Hart requested the safety data sheets for chemicals used by employees on the coating line and galvanizing line in the presence of Riverdale owner James
Knott and Riverdale corporate counsel Cyril Means.
Neither of them assured that access to the safety data
records was made readily available to IH Hart. Their
knowledge of the request for safety data sheets and
their failure to respond in accordance with the requirements of § 1910.1020(e) is imputed to Riverdale. The
Secretary has established Riverdale had actual
knowledge of the violation.
The Court finds the Secretary has established all
elements of his burden of proof. Therefore, Item 1 is
AFFIRMED.
App. 80
Characterization of the Violation
The Secretary characterized the violation of
§ 1910.1200(g)((11) as other-than-serious. “[A] nonserious violation is one in which there is a direct and immediate relationship between the violative condition
and occupational safety and health but not of such relationship that a resultant injury or illness is death or
serious physical harm.” Crescent Wharf & Warehouse
Co., 1 BNA OSHC 1219, 23 1222 (No. 1, 1973).
The violation is properly characterized as otherthan-serious.
PENALTY DETERMINATION
“In assessing penalties, section 17(j) of the OSH
Act, 29 U.S.C. § 666(j), requires the Commission to give
due consideration to the gravity of the violation and
the employer’s size, history of violation, and good
faith.” Burkes Mech., Inc., 2007 WL 2046814, at*9.
“Gravity is a principal factor in the penalty determination and is based on the number of employees exposed,
duration of exposure, likelihood of injury, and precautions taken against injury.” Siemens Energy & Automation, Inc., No. 00-1052, 2005 WL 696568, at *3 (OSHRC
Feb. 25, 2005) (citation omitted). “Gravity, unlike good
faith, compliance history and size, is relevant only to
the violation being considered in a case and therefore
is usually of greater significance. The other factors
are concerned with the employer generally and are
considered as modifying factors.” Natkin & Co. Mech.
App. 81
Contractors, No. 401, 1973 WL 4007, at * 2, n. 3
(OSHRC April 27, 1973).
Riverdale employed 135 to 150 employees (Tr. 984,
1100-01). IH Hart testified, “History is based on previous serious citations from OSHA in the last five years,
which I didn’t find.” (Tr. 1101) The Court does not
credit Riverdale with good faith. The record reveals
Riverdale was lax in the areas of safety training,
recordkeeping, and supervisory oversight.
The gravity of Item 2 of the Safety Citation is high.
TB, the cited employee, had worked at Riverdale as an
authorized employee for a total of nine years. Yet
Riverdale had never conducted a periodic inspection
with him, even though § 1910.147(c)(6)(i) requires the
employer to conduct periodic inspections annually. Any
deficiencies in TB’s understanding and implementation of LOTO procedure went unnoticed for almost a
decade. The Court assesses a penalty of $8,525 for Item
2 of the Safety Citation.
The gravity of Item 3 of Citation No. 1 of the
Health Citation is also high. The machine operator was
working with hazardous chemicals, including sodium
hydroxide, which are corrosive and highly dangerous.
Riverdale’s failure to adequately train the machine operator under § 1910.1200(h)(1) imperiled his safety
and health. The Court assesses a penalty of $8,525 for
Item 3 of Citation No. 1 of the Health Citation.
The gravity of Item 1 of Citation No. 2 of the
Health Citation is moderate. The Court assesses no
penalty for Item 1.
App. 82
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of
fact and conclusions of law in accordance with Fed. R.
Civ. P. 52(a).
ORDER
Based on the foregoing decision, it is hereby ORDERED:
1. Item 2 of the Safety Citation, alleging a serious violation of § 1910.147(c)(6)(i), is AFFIRMED, and
a penalty of $8,525 is assessed;
2. Item 3 of the Safety Citation, alleging a serious violation of § 1910.147(c)(7)(i)(A), is VACATED,
and no penalty is assessed;
3. Item 5a of the Safety Citation, alleging a serious violation of § 1910.147(d)(2), is VACATED, and no
penalty is assessed;
4. Item 5b of the Safety Citation, alleging a serious violation of § 1910.147(d)(3), is VACATED, and no
penalty is assessed;
5. Item 5c of the Safety Citation, alleging a serious violation of § 1910.147(d)(4)(i), is VACATED, and
no penalty is assessed;
6. Item 5e of the Safety Citation, alleging a serious violation of § 1910.147(c)(4)(i), is VACATED, and
no penalty is assessed;
App. 83
7. Item 6 of the Safety Citation, alleging a serious violation of § 1910.212(a)(1), is VACATED, and no
penalty is assessed;
8. Item 3 of Citation No. 1 of the Health Citation,
alleging a serious violation of § 1910.1200(h)(1) is AFFIRMED, and a penalty of $8,525 is assessed; and
9. Item 1 of Citation No. 2 of the Health Citation, alleging an other-than-serious violation of
§ 1910.1200(g)(11), is AFFIRMED, and no penalty
is assessed.
SO ORDERED.
/s/ Sharon D. Calhoun
Judge Sharon D. Calhoun
Atlanta, GA
[Certificate Of Service Omitted]
App. 84
APPENDIX C
Fifth Amendment to the
United States Constitution
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put
in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
App. 85
APPENDIX D
29 U.S.C. § 660(a)
Any person adversely affected or aggrieved by an order
of the Commission issued under subsection (c) of section 659 of this title may obtain a review of such order
in any United States court of appeals for the circuit in
which the violation is alleged to have occurred or
where the employer has its principal office, or in the
Court of Appeals for the District of Columbia Circuit,
by filing in such court within sixty days following the
issuance of such order a written petition praying that
the order be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the
court to the Commission and to the other parties, and
thereupon the Commission shall file in the court the
record in the proceeding as provided in section 2112 of
Title 28. Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined
therein, and shall have power to grant such temporary
relief or restraining order as it deems just and proper,
and to make and enter upon the pleadings, testimony,
and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part,
the order of the Commission and enforcing the same to
the extent that such order is affirmed or modified. The
commencement of proceedings under this subsection
shall not, unless ordered by the court, operate as a
stay of the order of the Commission. No objection that
has not been urged before the Commission shall be
considered by the court, unless the failure or neglect
to urge such objection shall be excused because of
App. 86
extraordinary circumstances. The findings of the Commission with respect to questions of fact, if supported
by substantial evidence on the record considered as a
whole, shall be conclusive. If any party shall apply to
the court for leave to adduce additional evidence and
shall show to the satisfaction of the court that such
additional evidence is material and that there were
reasonable grounds for the failure to adduce such evidence in the hearing before the Commission, the court
may order such additional evidence to be taken before
the Commission and to be made a part of the record.
The Commission may modify its findings as to the
facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified
or new findings, which findings with respect to questions of fact, if supported by substantial evidence on
the record considered as a whole, shall be conclusive,
and its recommendations, if any, for the modification or
setting aside of its original order. Upon the filing of the
record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the
Supreme Court of the United States, as provided in
section 1254 of Title 28.
App. 87
APPENDIX E
29 C.F.R. § 1910.147 – The Control of
Hazardous Energy (lockout/tagout)
(a)
Scope, application, and purpose (a)(1)
Scope.
(i) This standard covers the 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 cause injury to employees.
This standard establishes minimum performance requirements for the control of such
hazardous energy.
...
(b)
Definitions applicable to this section
....
Servicing and/or maintenance. Workplace activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and maintaining
and/or servicing machines or equipment. These activities include 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.
...
App. 88
(c)
General –
...
(6)
Periodic inspection.
(i) The employer shall conduct a periodic inspection of the energy control procedure at
least annually to ensure that the procedure
and the requirements of this standard are being followed.
...
App. 89
APPENDIX F
29 C.F.R. § 1910.1200(g)(11), (h)(1)
29 C.F.R. § 1910.1200 – Hazard Communication.
...
(g)
Safety data sheets.
(11) Safety data sheets shall also be made readily available, upon request, to designated representatives, the Assistant Secretary, and the
Director, in accordance with the requirements of
§ 1910.1020(e).
...
(h)
Employee information and training.
(1) Employers shall provide employees with effective information and training on hazardous
chemicals in their work area at the time of their
initial assignment, and whenever a new chemical
hazard the employees have not previously been
trained about is introduced into their work area.
Information and training may be designed to cover
categories of hazards (e.g., flammability, carcinogenicity) or specific chemicals. Chemical-specific
information must always be available through labels and safety data sheets.
...
App. 90
APPENDIX G
29 C.F.R.§ 1910.1020(e)(1)(i)
Whenever an employee or designated representative
requests access to a record, the employer shall assure
that access is provided in a reasonable time, place, and
manner. If the employer cannot reasonably provide access to the record within fifteen (15) working days, the
employer shall within the fifteen (15) working days apprise the employee or designated representative requesting the record of the reason for the delay and the
earliest date when the record can be made available.
App. 91
APPENDIX H
Federal Rule of Evidence 403
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative
evidence.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.