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Employers Should File Lockout/Tagout Comments

Participation needed to avoid huge and unnecessary costs in the future, lawyers argue.

Employers subject to the federal Lockout/Tagout (LOTO) rules should take advantage of the opportunity to comment on planned revisions of the standards or face enormous potential costs down the line, several attorneys warn.

The Occupational Safety and Health Administration (OSHA) issued a Request for Information (RFI) in May seeking input on the agency’s planned revision of the LOTO standard. OSHA’s current rules cover servicing and maintenance of machines and equipment where unexpected energization or start-up of the machines or release of stored energy could harm employees.

“By the time the agency issues a formal proposal, it is likely to have already made most of the critical decisions and it is generally extremely difficult to convince the agency to make a major change in direction at that point in the process,” warn attorneys Lawrence Halprin, Manesh Rath, Javaneh Nekoomaram and John Gustafson of the law firm of Keller and Heckman LLP.

“Unless employers fully engage in this proceeding, they may find that the final outcome of this initiative imposes huge additional costs in the form of retrofits or restrictions on current practices and does not provide the expected clarification.”

According to the RFI, the agency seeks information in two areas where modernizing the LOTO standard could promote worker safety. One of these is the use of reliable control circuit type devices in lieu of energy isolation where they are “at least as safe.” The second is in regard to the expanding use of robotics, in many cases into working environments that have never seen them before, like warehouses and fulfillment centers.

The objective is to clarify what measures—short of full energy isolation—provide effective protection to employees performing maintenance and servicing activities, and its application to minor servicing activities and testing and positioning activities.

The rulemaking could be helpful for employers who already use reliable control circuits to prevent unexpected start-up or release of energy from energized equipment, and who may be able to avoid the LOTO standard requirement for de-energization/energy isolation, the attorneys say.

“This initiative should eliminate the current uncertainty as to whether the measures they currently use are legally adequate. It would also allow machinery manufacturers to explicitly embrace the use of their machinery in this manner. It may also provide greater flexibility.” they add.

“For those employers who would like to take advantage of this technology for the first time, and for those employers who would like to expand their use of this technology to control hazardous energy while performing maintenance and servicing activities, this initiative provides a golden opportunity to educate OSHA on the appropriate uses of this technology. It would also encourage machinery manufacturers to seek other opportunities for the application of this technology.”

High Cost of Noncompliance

Employers must be in compliance and know how to adhere to a complex set of LOTO regulations. Not having a thorough knowledge and applying daily safety measures can lead to serious injuries and death.

Craft workers, electricians, machine operators and laborers are among the three million workers who service equipment routinely and face the greatest risk. Failure to control hazardous energy accounts for 10% of the serious accidents in most industries. Fatalities and serious injuries are not uncommon. Workers injured from exposure to hazardous energy lose an average of 24 workdays for recuperation.

The Keller and Heckman lawyers argue that one of the biggest challenges OSHA faces is forging new regulations dealing with newer technology designed to effectively protect workers from hazardous energy sources while avoiding the addition of significant new burdens.

Decisions by courts and the OSH Review Commission recognize that when reliable control circuits can effectively prevent unexpected start-up or release of energy from energized equipment, the LOTO standard does not apply. Under current law, OSHA has the burden of proving that the use of control circuits does not prevent unexpected start-up or release of hazardous energy.

However, it seems clear that OSHA plans to overturn current law by amending the LOTO standard, the lawyers say. They believe OSHA will propose eliminating the eight uses of the word “unexpected” from the current LOTO standard so that all energy control measures will be subject to it.

The LOTO standard must be amended to recognize the broader use of reliable control circuits as an alternative energy control measure, they say. OSHA’s current interpretation limits the use of control circuits instead of energy isolation to exceptions for “minor servicing activities” and “testing and positioning activities.”

For both OSHA and employers, one of the biggest challenges is defining and authorizing expanded use of reliable control circuits in a way that is understandable to OSHA personnel, employers and employees. This is why the agency seeks information about how the devices are used, including the types of circuitry and safety procedures being used and limitations of their use.

In revising the standard, it appears that OSHA will say using reliable control circuits is an exception to the general rule, and if an employee could be exposed to hazardous energy without regard for existing control measures, the LOTO standard applies.

Control measures would be considered adequate only if they satisfy the requirements of the amended standard. “This would dramatically shift the burden of proof from OSHA’s current burden of showing a potential for unexpected energization, start-up or release of energy to the employer having the burden of showing its reliable control circuit meets some specified level of safety performance,” the lawyers note.

Confronting Complexity

The agency already has history dealing with this issue. It issued a variance to a company in 2016 authorizing it to use reliable control circuitry rather than energy isolation for a specific task after performing a safety review of the complete system.

In that case, OSHA energy control measures remained under the personal control of the exposed employee, employees were able to verify de-energization, and authorized employees were easily identified before restart. The agency also found that the alternative system as a whole could be considered protective and an energy isolating device, even after taking into account the potential for component failures and attempts to bypass the system.

“We believe OSHA recognizes this determination must be based on objective criteria tied to risk assessment,” the attorneys say. Because hiring a qualified expert to perform an assessment of each machine is prohibitively expensive, OSHA suggests determining whether a system can achieve a certain safety integrity level under IEC standards or performance level under ISO standards. It is asking, in effect, what safety integrity level could reduce the risk to an acceptable point.

“At the highest levels, the costs can be dramatically higher,” the lawyers say. “How would those levels be assessed if not provided by the manufacturer? What if the manufacturer provides an assessment for the machine prior to integration into a manufacturing line? What if the machine is subsequently modified by the user?”

OSHA also wants to know how it can address the issue of older equipment where safety circuits do not achieve the necessary safety integrity level or performance level. Would OSHA, depending on the safety integrity level or performance level achieved, and the history of use of the equipment, consider grandfathering that equipment with or without some phase-in of required retrofitting? If so, to what level?

OSHA also requires what would be an appropriate mechanism for verifying that a company can demonstrate the control circuitry satisfies applicable criteria. In issuing the cases where it issued the variance discussed earlier, it took OSHA about two years to determine that one control circuit-based system at one site was acceptable for one task.

The agency also seeks information on how modernizing the LOTO standard might improve worker safety without additional burdens for employers. It especially needs to hear from employers about how their operations would be affected if OSHA staff interprets the “alternative measures that provide effective protection” requirement of the minor servicing exception to include use of the same reliable control circuits, the lawyers say.

“If the impact would be significant, OSHA needs to hear about that now rather than later,” they stress. “Failure to weigh in on these issues now could result in huge and unnecessary economic costs.”

Comments are due by August 18, 2019. See OSHA’s Federal Register notice  for additional details and information on how to file comments.

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