Bituminous Insurance Companies

Lockout/Tagout Interpretation

The on-line magazine, Occupational Hazards published an article, “OSHA, Lockout/Tagout and General Motors: The Specificity Requirement of the Federal Lockout/Tagout Standard,” by attorney Michael T. Taylor that analyzes a recent Occupational Safety and Health Review Commission decision involving lockout/tagout at General Motors Corp. and the impact of the decision on workplaces.

The Lockout/Tagout (LOTO) standard, 29 C.F.R. § 1910.147, is one of the top 10 most frequently cited OSHA standards and Commission’s decision may have a direct affect on interpretation of the standard. The decision regarding the specificity requirements of section 1910.147(c)(4)(ii) of the LOTO standard concluded that employers are required to develop a written lockout procedure in accordance with the information contained in Appendix A of the LOTO standard. The Commission also concluded that employers are required to develop a separate, written lockout procedure for complex machinery and equipment.

The following excerpt from the article provides a summary and analysis of the legal conclusions:

“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. 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.”

The following excerpt from the article provides an analysis of 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.”

The article notes that the decision may impact a large number of businesses and generate a significant numbers of letters to OSHA requesting interpretation. It concludes by stating that the safety community will be significantly impeded in their efforts to ensure compliance with the specificity requirements of the LOTO standard.

The article may be found at http://www.occupationalhazards.com/zone/336/OHMachine_and_Tool_Safety/Article/79277/OSHA_LockoutTagout_and_General_Motors_The_Specificity_Requirement_of_the_Federal_LockoutTagout_Standard.aspx.

COPYRIGHT ©2008, ISO Services Properties, Inc.

The information contained in this publication was obtained from sources believed to be reliable. ISO Services Properties, Inc., its companies and employees make no guarantee of results and assume no liability in connection with either the information herein contained or the safety suggestions herein made. Moreover, it cannot be assumed that every acceptable safety procedure is contained herein or that abnormal or unusual circumstances may not warrant or require further or additional procedure.