Year after year, the federal Lockout/Tagout (LOTO) standard, 29 C.F.R. § 1910.147, is one of the top 10 most frequently cited OSHA standards. In addition to preventing injuries in the workplace, this encourages employers to undertake painstaking efforts to ensure compliance with the LOTO standard.
Such efforts will significantly be impeded, however, by the recent decision from the federal Occupational Safety and Health Review Commission in General Motors Corp., 2007 WL 4350896 (Docket No. 91-2834E & 91-2950).
On Dec. 4, 2007, after more than a decade of review, the review commission finally issued its decision in General Motors Corp. regarding the specificity requirements of section 1910.147(c)(4)(ii) of the LOTO standard. In this long-awaited decision, the review commission concluded, in effect, that employers are required to develop a written lockout procedure in accordance with the information contained in Appendix A of the LOTO standard. The review commission also concluded that employers are required to develop a separate, written lockout procedure for complex machinery and equipment.
This article provides a summary of these legal conclusions, an analysis of these legal conclusions and an explanation of the practical implications these conclusions have in the workplace.
Summary of Legal Conclusions
In General Motors Corp., OSHA alleged, among other things, that General Motors Corp. (GM) failed to “clearly and specifically” describe in its written lockout procedure the steps necessary for controlling hazardous energy and the means to enforce compliance in violation of 29 C.F.R. § 1910.147(c)(4)(ii). GM argued that it clearly and specifically described in its written lockout procedure the steps necessary for safely performing service and maintenance work on machinery and equipment in the workplace in accordance with section 1910.147(c)(4)(ii).
Section 1910.147(c)(4)(ii) of the LOTO standard states, in pertinent part:
The procedures shall clearly and specifically outline the scope, purpose, authorization, rules, and techniques to be utilized for the control of hazardous energy, and the means to enforce compliance including, but not limited to, the following:
- A specific statement of the intended use of the procedure;
- Specific procedural steps for shutting down, isolating, blocking and securing machines or equipment to control hazardous energy;
- Specific procedural steps for the placement, removal and transfer of lockout devices or tagout devices and the responsibility for them; and
- Specific requirements for testing a machine or equipment to determine and verify the effectiveness of lockout devices, tagout devices and other energy control measures.
The review commission held that GM’s written lockout procedure was too general to satisfy the specificity requirements of section 1910.147(c)(4)(ii). In this regard, the review commission stated that the lockout procedure lacked a number of specifics set forth in Appendix A of the LOTO standard (see sidebar for wording of Appendix A). The review commission explained that:
- GM’s written lockout procedure failed to inform employees of the specific procedural steps to shut down and lockout a machine or piece of equipment;
- The procedure did not provide any information concerning the machines or equipment at the facility, such as the types and locations of machine or equipment operating controls;
- The procedure did not include the means to enforce compliance; and
- The procedure did not include the name(s)/job title(s) of affected employees and how to notify them. By stating that GM’s procedure lacked a number of specifics set forth in Appendix A, the review commission concluded that employers are required to develop a written lockout procedure in accordance with the information contained in Appendix A.
The review commission also held that GM’s written lockout procedure was inadequate regarding the complex machinery and equipment at the facility under section 1910.147(c)(4)(ii). In this regard, the review commission explained that the motor rail conveyor – the machine on which the accident occurred – contained “15 or 16 automatics, 165 weld guns, probably 300 limit switches [and] over 150 disconnects, and for which at least four safety locks were necessary to lock it out.”
The review commission stated that “the decedent – a journeyman millwright with 10 years of experience – was so concerned about his unfamiliarity with the conveyor that he told his supervisor he feared ‘get[ting] [his] damned head caught in that thing.’” By stating that GM’s written lockout procedure was inadequate regarding the complex machinery and equipment at the facility, the review commission concluded that employers are required to develop a separate, written lockout procedure for complex machinery and equipment.
Analyzing the Decision
There are problems with the review commission’s conclusion that employers are required to develop a written lockout procedure in accordance with Appendix A of the LOTO standard. First, the LOTO standard simply states that Appendix A serves as a non-mandatory guideline to assist employers and employees in complying with the requirements of the standard, as well as to provide other helpful information (29 C.F.R. § 1910.147(f)(4)). The review commission repeatedly has held that guidance materials do not have the force and effect of law. (See, e.g., H.B. Zachry Co., 7 BNA OSHC 2202 (No. 76-1393).) This means that employers legally are not obligated to comply with OSHA guidance materials.
Second, in the legislative history of the lockout/tagout standard, OSHA stated that “[t]he standard is written in performance-oriented language, providing considerable flexibility for employers to tailor their energy control programs and procedures to their particular circumstances and working conditions” (54 FR 36644, 36656, Sept. 1, 1989). Since the early days of enforcement of the Occupational Safety and Health Act, the review commission consistently has held that performance standards provide the required result without specifically mandating how that result is to be achieved. (See Diebold Inc., 3 BNA OSHC 1897, No. 676, 1976.) This means that employers can develop energy control procedure in the manner of their choosing, as long as the procedure ensures that employees will know how to safely de-energize and lockout machines and equipment.
In short, the review commission’s conclusion that employers are required to develop a written lockout procedure in accordance Appendix A of the LOTO standard is contrary to a plethora of existing case law.
There also are problems with the review commission’s conclusion that employers are required to develop a separate, written lockout procedure for complex machinery and equipment. First, the review commission does not attempt to explain what constitutes complex machinery or equipment. An engineer who has over 30 years of experience working with a particular machine may not find the machine complex at all. Yet an engineer who has only 1 year of experience working with the same machine may find the machine extremely complex. From whose perspective is the machine to be judged complex?
If the goal is to ensure that all employees will know how to safely de-energize and lockout machines and equipment, the most likely answer would be the engineer who only has 1 year of experience. This would mean that more machines and equipment would be considered complex, and therefore, more separate lockout procedures would be required, than if the answer was the engineer with 30 years of experience.
And what is it about machines and equipment that make them complex for purposes of the LOTO standard? Is it the number and/or complexity of operational controls on the machines and equipment? Is it the number of energy sources? Is it the number and/or complexity of the service and maintenance tasks that are performed on the machines and equipment? Or is it all of the above?
Second, the review commission does not attempt to explain how a lockout procedure for complex machinery and equipment can satisfy the specificity requirements of Section 1910.147(c)(4)(ii). For example, the review commission does not explain whether a lockout procedure for complex machinery and equipment must contain separate lockout steps for the different types of servicing and maintenance tasks performed on the machines and equipment. The review commission simply states that the amount of detail would depend on “the complexity of the equipment and the control measures to be utilized.”
Implications of the Decision
The lack of guidance from the review commission on these issues will create an enormous obstacle for safety professionals when they are attempting to draft lockout procedures that are in compliance with the specificity requirements of section 1910.147(c)(4)(ii) of the LOTO standard.
To help bring clarity to these issues, legal practitioners will send letters asking OSHA for its interpretation. Based on prior experience, OSHA may not provide a letter of interpretation for several months. Until then, the safety community will be significantly impeded in their efforts to ensure compliance with the specificity requirements of the LOTO standard.
Michael T. Taylor is a member of the Arent Fox LLP OSHA Practice Group in Washington, DC. He focuses on all aspects of occupational safety and health law. He represents employers and trade associations in a wide range of industries, including, but not limited to health care, chemical and petrochemical, refining, electric utility, manufacturing, construction and food services industries. He represents employers and trade associations during federal and state enforcement litigation and rulemaking proceedings. He also provides compliance counseling, catastrophe management, safety and health audits, and due diligence reviews for clients. He is well-versed in all aspects of the National Labor Relations Act. He can be reached at [email protected].
Sidebar: What Appendix A Has To Say
Appendix A of the LOTO standard states:
The following simple lockout procedure is provided to assist employers in developing their procedures so they meet the requirements of this standard. When the energy isolating devices are not lockable, tagout may be used, provided the employer complies with the provisions of the standard which require additional training and more rigorous periodic inspections. When tagout is used and the energy isolating devices are lockable, the employer must provide full employee protection (see paragraph (c)(3)) and additional training and more rigorous periodic inspections are required. For more complex systems, more comprehensive procedures may need to be developed, documented and utilized.
Lockout Procedure for (name of company for single procedure or identification of equipment if multiple procedures are used).
This procedure establishes the minimum requirements for the lockout of energy isolating devices whenever maintenance or servicing is done on machines or equipment. It shall be used to ensure that the machine or equipment is stopped, isolated from all potentially hazardous energy sources and locked out before employees perform any servicing or maintenance where the unexpected energization or start-up of the machine or equipment or release of stored energy could cause injury.
Compliance with This Program
All employees are required to comply with the restrictions and limitations imposed upon them during the use of lockout. The authorized employees are required to perform the lockout in accordance with this procedure. All employees, upon observing a machine or piece of equipment which is locked out to perform servicing or maintenance shall not attempt to start, energize, or use that machine or equipment. (Should include type of compliance enforcement to be taken for violation of the above.)
Sequence of Lockout
- Notify all affected employees that servicing or maintenance is required on a machine or equipment and that the machine or equipment must be shut down and locked out to perform the servicing or maintenance. (Include name(s)/job title(s) of affected employees and how to notify.)
- The authorized employee shall refer to the company procedure to identify the type and magnitude of the energy that the machine or equipment utilizes, shall understand the hazards of the energy and shall know the methods to control the energy. (Include type(s) and magnitude(s) of energy, its hazards and the methods to control the energy.)
- If the machine or equipment is operating, shut it down by the normal stopping procedure (depress the stop button, open switch, close valve, etc.). (Include type(s) and location(s) of machine or equipment operating controls.)
- De-activate the energy isolating device(s) so that the machine or equipment is isolated from the energy source(s).
(Include type(s) and location(s) of energy isolating devices.)
- Lock out the energy isolatng device(s) with assigned individual lock(s).
- Stored or residual energy (such as that in capacitors, springs, elevated machine members, rotating flywheels, hydraulic systems, and air, gas, steam or water pressure, etc.) must be dissipated or restrained by methods such as grounding, repositioning, blocking, bleeding down, etc. (Include type(s) of stored energy - methods to dissipate or restrain.)
- Ensure that the equipment is disconnected from the energy source(s) by first checking that no personnel are exposed, then verify the isolation of the equipment by operating the push button or other normal operating control(s) or by testing to make certain the equipment will not operate. Caution: Return operating control(s) to neutral or “off” position after verifying the isolation of the equipment. (Include method of verifying the isolation of the equipment.)
- The machine or equipment is now locked out.
Restoring Equipment to Service
When the servicing or maintenance is completed and the machine or equipment is ready to return to normal operating condition, the following steps shall be taken:
- Check the machine or equipment and the immediate area around the machine to ensure that nonessential items have been removed and that the machine or equipment components are operationally intact.
- Check the work area to ensure that all employees have been safely positioned or removed from the area.
Verify that the controls are in neutral.
- Remove the lockout devices and reenergize the machine or equipment. Note: The removal of some forms of blocking may require reenergization of the machine before safe removal.
- Notify affected employees that the servicing or maintenance is completed and the machine or equipment is ready for use.