Why Did OSHA Propose to Remove the Principle of "Unexpected Energization" from its Lockout/Tagout Standard?

The general principle established by the GMC Delco decisions[1] of 1995 and 1996 is that the Lockout/Tagout Standard does not apply to a serving or maintenance activity where the only risk of injury would be due to a machine start-up while the employee is in the danger zone, and the machine is reliably designed to provide the employee with sufficient advance notice of any start-up to safely evacuate the area. In our practice, we have not advocated reliance on that type of safety system. However, we suggested that a more appropriate reading of those cases was that when reliable safety control circuits effectively protect the affected workers from hazardous energy sources, there is no potential for unexpected energization or start up or release of stored energy, and the LOTO Standard should not apply.

Over time, OSHA seemed to grudgingly accept this principle. In the OSHA LOTO Directive[2], the agency stated:

[T]o the extent that they eliminate or prevent employee exposure to hazardous energy, the use of machine guarding methods (e.g., barrier guards, enclosure guards) may be used as alternatives to LOTO during servicing and/or maintenance activities.

In a 2005 letter of interpretation regarding the performance of die changes,[3] OSHA stated:

Question 1: Does the lockout/tagout (LOTO) standard require that machines, includinghydraulic presses, be de-energized and locked out except for the portion of die-setting that involves testing and positioning? 

Reply: Yes, to the extent that employees are otherwise exposed to hazardous energy [emphasis added].

….

The LOTO standard is intended to work in conjunction with the machine guardingstandards to provide optimum employee protection. Compliance with the Subpart O requirements is essential during power press component test/position activities. Moreover, in some cases, the implementation of effective machine guarding techniques may eliminate worker exposure to hazardous energy, providing a feasible and acceptable alternative to LOTO. However, when machine guarding methods do not eliminate exposure to hazardous energy, LOTO is required to prevent die-setteremployees from being seriously injured when performing die-set servicing activities. 

However, the agency had been vague and inconsistent in implementing this principle.

In October 2016, after 20 years of operating under the GMC Delco cases, OSHA issued a proposal[4] to remove the principle of “unexpected energization” from the General Industry LOTO Standard. We viewed this as an inappropriate effort to disregard technological advances and return to a universal energy isolation standard, subject to the explicit exemptions for minor serving activities and testing and positioning activities. Ignoring the potentially enormous loss of productivity that would result from this change, OSHA apparently took this step as a matter of administrative convenience. It described the proposed change (in the preamble) as a way of providing certainty, however painful, to the regulated community in a way that ignored the safe and practical manner in which the principle of unexpected energization has been applied by the regulated community and most OSHA compliance personnel:[5]

[T]he GMC Delco decisions, in essence, require a case-by-case assessment of various warning schemes to determine the applicability of the standard. To enforce thestandard consistent with those decisions, OSHA has provided its compliance officers with 11 different factors to evaluate to determine whether particular warning devices are adequate and reliable enough to allow all employees to escape all types of hazardous energy in all circumstances that may occur (see CPL 02-00-147 at 3-5 to 3-6). This creates a degree of uncertainty about the applicability of the standard for the regulated community that OSHA did not intend.

OSHA seemingly attempted to paint a picture of employees scurrying out of machines before they start up. In reality, employers operating tens of thousands of pieces of equipment (e.g., die cutters, folder/gluers and other paper converting machines, and injection molding machines) at tens of thousands of facilities across the country currently rely on the protections provided by reliable control circuitry as a cost-effective alternative to the application of LOTO. The extensive two-year process described in the Grant of a Permanent Variance to Nucor Steel Connecticut Incorporated, 81 FR 20680 (April 8, 2016), demonstrates how unworkable the situation would become if OSHA were to revise the LOTO Standard as proposed and then assert that the employers had a choice between either locking out or obtaining a variance before they could rely on the use of control circuitry. That could very well be the outcome of a rule that requires the use of energy isolating devices to implement LOTO and states that control circuit devices are not energy isolating devices, leading to a range of adverse economic consequences for regulated industry.

Again, one wonders why the agency chose this time to eliminate the principle of “unexpected energization” from the standard. Possibly, it was the unreviewed decision of a  Review Commission judge in ALRO Steel Corporation in September of 2015. ALRO involved a challenge to a LOTO citation issued to an employer that relied on a blade changing procedure for its band saws that required locking control circuit devices rather than energy isolating devices when changing the cutting blades on two band saws. OSHA’s presentation of the case was based on the risk that control circuit devices are subject to failure resulting in unexpected energization and, for that reason, energy isolation is required. OSHA did not contend that the band saws presented a hazard due to stored energy or that the band saws were subject to accidental or inadvertent startup by the operator or someone other than the operator.

The issue presented by the case was whether OSHA established that, despite the startup procedures developed by ALRO, and the control circuitry upon which it relied, employees performing blade changes were exposed to the hazard of “unexpected energization,” through equipment malfunction resulting in inadvertent startup. OSHA relied on its expert’s testimony consisting primarily of generic statements as to the types of potential equipment failures and their consequences. OSHA’s expert did not inspect the machines or review the schematics for the machines. As the judge stated, OSHA’s position “is divorced from the particulars of the band saws at issue in this case.”  In contrast, the employer’s expert reviewed the schematics and control circuit devices and presented testimony as to the likelihood of component failures and their consequences.

The judge found the testimony of the employer’s expert more persuasive and made the following findings of facts:

Based on the electrical design of the machines—

(1)   Unexpected energization would not occur, even if the control circuit components failed.

(2)   If there was an equipment malfunction regarding the electrical contacts, thecontacts would fail in the open position and, therefore, the failure would not result in the saw unexpectedly energizing.

(3)   In the unlikely event that the electrical contacts were to fail in the closed position, the band saws would continue to run, providing obvious advance notice to the operator not to begin a blade change.

(4)   For the saws to start [once the blade changing procedure is implemented], theoperator is required to engage in a multi-step process, which includes reaching into his pocket for a key and unlocking the start button.

The judge ultimately concluded that “the preponderance of the evidence demonstrates that neither of Respondent’s saws was subject to inadvertent startup and unexpected energization.” That case, which has no official precedential effect, but reflects the logical extension of the GMC Delco decisions, appears to be the unstated reason for OSHA’s rush to amend the LOTO Standard in October of 2016. We now have a golden opportunity to properly update the outdated OSHA Lockout/tagout Standard in a way that provides for employee safety in a cost-effective manner that takes advantage of advances in technology without the use of the cumbersome OSHA variance process.

*     *     *     *