THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20thStreet, N.W., Ninth Floor

Washington, D.C.20036-3457

|                                  |                         |
|----------------------------------|-------------------------|
| SECRETARY OF LABOR,              |                         |
| Complainant,                     |                         |
| v.                               | OSHRC Docket No.18-0701 |
| MIDVALE PAPER BOX COMPANY, INC., |                         |
| Respondent.                      |                         |

DECISION AND ORDER

APPEARANCES:

For the Complainant:

M. del Pilar Castillo, Esq.

U.S. Department of Labor

New York,New York

For the Respondent:

Michael H. Rosenthal,Esq.

RLB Law Group LLC

Philadelphia,Pennsylvania

BEFORE:William S. Coleman

Administrative Law Judge

INTRODUCTION

The Respondent,Midvale Paper Box Company, Inc. (Midvale),operates a plantinPlains Township, Pennsylvania,where itmanufacturespaper boxesforretailuse,such asdepartment store boxes,car part boxes, pizza boxes,and the like. Midvaleuses avariety of machines thatprint,cut, fold,and gluepaperboardto formthepaperboxes. Most of thesemachines were originally manufactured in the 1970’s orbefore. (T. 736).

The president and owner of Midvale is Mr. David Frank, whoaround 1999acquired thethen-shutteredplantandthe machinery within.The plant had been used for manufacturing paper boxes for about twenty years before it had been shut down and then acquired by Frank. Upon reopeningtheplant, Midvale usedthe sameproductionmachinerythat the priorplantoperator had usedfor making paper boxes. (T. 512).

BetweenOctober 18andDecember 14, 2017,a ComplianceSafety andHealthOfficer (CO) from theOccupational Safety and Health Administration (OSHA)went to Midvale’s planton nine separate occasions toconduct an inspection and investigationof Midvale’splantand operations.(T. 37). The reasonOSHAoriginallyscheduledthisinspectionwasto assess whether Midvale had abated prior violations that had been resolved by a settlement agreementthat was effective in June 2017. (T. 34-37).Before OSHA commenced the inspection, however, it received a complaintabout Midvale, and so the scope of the planned inspection expanded to investigate the complaint as well.Thiswas OSHA’s fifth inspection of Midvale over a period ofaboutfour years. (T. 545-46). The prior four inspections had resulted in the issuance of citations to Midvale, each of which Midvale resolved by entering into settlement agreements. (Exs. C-1, C-20, C-71 & C-77). 

The inspection here resulted in the issuance of three citations on April 17, 2018––one serious, one willful, and one repeat––with proposed penalties totaling $201,212.

Theserious citationallegedthree groupedviolations ofdesign safety standards for electric utilization systems (29 C.F.R. §§ 1910.303–.305)andproposed penalties totaling$4,065. 

Thewillful citation allegedtwo groupedviolations of the “control of hazardous energy (lockout/tagout)” (LOTO) standard(§ 1910.147)andone violation ofthe machine guarding standard for mechanical power-transmission apparatus(§ 1910.219), with proposed penalties totaling $132,106. 

The repeat citation alleged oneviolation of the eye and face protection standard (§ 1910.133), one violation of the powered industrial truck standard (§ 1910.178),three groupedviolationsand a fourth separate violationof the machine guarding standard for mechanical power-transmission apparatus (§ 1910.219), three grouped violations of design safety standards for electric utilization systems (§§ 1910.303 & 1910.305), and three grouped violations ofthe hazard communication standard (§ 1910.1200), with proposed penalties totaling $65,041.

Midvaletimely contestedthe citationsand proposed penalties, bringing the matter before theindependentOccupational Safety and Health Review Commission (Commission)under section 10(c) of theOccupational Safety and Health Actof 1970,29 U.S.C. §§ 651–678(Act). The matter was assigned to the undersignedadministrative law judgein October 2018. Afour-dayevidentiary hearingwas conductedinWilkes-Barre,Pennsylvania,fromApril 29 to May 2, 2019. Posthearing briefing was completed onDecember 19, 2019.

As described below, certain citation items are vacated, certain citation items are affirmed (thoughtwowithdifferent classificationsthan alleged), and penalties totaling $77,901are assessed.

DISCUSSION

As stipulated by the parties and as supported and confirmed by the record evidence,the Commission has jurisdiction pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (Act),andMidvale is an employer within the meaning of sections 3(3) and 3(5)of the Act.(JointPreh’gStatement, § VI).

To establish a violation of an OSHA standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies; (2) there was noncompliance with itsterms; (3)employees had access to the violative condition; and (4)thecitedemployerhad actual or constructive knowledge of the violativecondition. Donahue Indus. Inc.,20BNA OSHC1346,1348(No.99-0191,2003).

A.Control of Hazardous Energy(LOTO)–§ 1910.147(c)(4)(i)& 1910.147(c)(7)(i)(“Willful/Serious”Citation 2, Items 1a and 1b)

1.Prior Inspections and Settlement Agreements

Beforeaddressing the allegedwillfulLOTO violations,some background intoMidvale’sprior inspection, citation,and settlementhistory providesimportant contextfor the citation items at issue here.

Mr. Frank’s Erroneous Understanding

ofLOTO Standard Requirements

Midvale defends itslockout1practicesat the time of theOctober 2017inspectionin large part based uponwhatMr.DavidFrank, Midvale’s president,testified the OSHAareadirector (AD), Mark Stelmack, said to himin December 2015in ameetingatthe OSHA area office. The purpose of thatmeetingwasto discuss settlement ofacitationthatthearea office hadissuedto MidvaleinNovember 2015,andwhich included an alleged willful violation of the LOTO standard.2 (T.475; Ex. C-1 at 13).Mr. Frank testified thathis discussion withAD Stelmackledhim to believethe following:(1)that only “major” service and maintenance activities requiredlockout;(2) that “adjustments or minor repairs” on Midvale machinery did notrequirelockout; and (3)thatlockout was not requiredto clearfrequentlyoccurringpaperjamsinMidvale’smachinery, but ratherthatMidvale’s practice ofsimplyengaging an “e-stop” to shut down a machine to resolve apaperjamwascompliantwith the LOTO standard.(T. 515-16, 55152).

Afterthat meeting, Mr. Frank sent an email on December 18, 2015, toMidvale’splant managerand plant engineer,Mr.John Northwood. In the email, Mr. Frank told Mr. Northwood about the meeting with AD Stelmack,statingin part the following:

I wanted to follow up with one aspect of the conversation I had with Mark(area director) as it pertains to Lock out Tag out. Based on the information you and I discussed and the subjective nature of the OSHA regulation not only for lock[out]tag out but most of their regulation, I asked the director point blank to what extent do we have to de-energize the equipment relative to Lock Out Tag Out.

I said to him, that my understanding as it pertains to the regulation is that the equipment has to be de-energized electrically, hydraulically andPneumaticallyif the machine jams up making production an impossibility not only in our factory but factories throughout the country. I explained that we have kill switches through the production line on all our equipment in all departments and that the kill switchhas tobe manually re-set by the operator. Only[then]can the operator re-start the machine. Obviously if a jam up takes 2 minutes to unjam, and hours to de-energize and reenergize as the regulation reads, manufacturing would be impossible.

He said and I paraphrase, ''we understand jam ups occur and deenergizing is not practical, but if the machineunder goesmajor repair, the machine has to be completely de-energized". Which makes complete sense to me. I explained to Mark[that]you are the only one authorized to lock out tag out the equipment in all[departments]....

As far asI can tell, Lock Out Tagout is for major repairs and regular jam up are covered by the kill switch.

(Ex. R-36). Mr. Frankdid not send asimilar communication to AD Stelmack tovalidatethe accuracy of eitherhisstatedunderstandingorhis “paraphrase” of what AD Stelmack saidto him.

Mr. Frank’s understanding of whatAD Stelmacksaid during theirmeeting in December 2015, as he summarized in his emailto Northwood,embodiedMidvale’stouchstone principlesfor determining when to lockout machineryfromthe time of that meeting inDecember 2015through theconduct of theinspection here inlate2017. (T. 519). 

AD Stelmacktestified tothe matters he discussed with Mr. Frank in theirDecember 2015meeting with greaterspecificity thandidMr. Frank. AD Stelmack’srecollection of what he saidin the meetingwas consonant with the performance-oriented nature of the LOTO standard. SeeControl of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36644, 36656(Sept. 1, 1989)(to be codified at 29 C.F.R. pt. 1910) (noting that the LOTO standard is “written in performance-orientedlanguage, providing considerableflexibility for employers to tailor theirenergy control programs andproceduresto their particular circumstances andworking conditions.) AD Stelmack’srecollection alsoreflectedhiswell-groundedknowledge andyears ofexperience in addressingLOTO issues with employers.(T. 468-70, 484-85).

ADStelmack had never visited Midvale’s plant, sohe had neverobserved the machines that Midvale operates.(T. 477-78). Hisresponses to Mr. Frank’s questions about the LOTO standard werecouchedin broad terms,which wasconsistent withhislack offamiliaritywithMidvale’s machines. ADStelmack recalled Mr. Frank complaining that the LOTO standard was burdensome. (T. 478). He recalled further that in response to Mr. Frank’s questions about whether usingonlyestops(which Frankreferred to as“kill switches” inhisemail to Northwood)tostop a machine toclear paper jams wouldconform to theLOTO standard, that herespondedgenerallyin the negative, but that healsodescribed how machine guardingmeasurescouldpotentiallysuffice under the LOTO standard’s so-called “minor servicing exception” set forth in § 1910.147(a)(2)(ii), note.3 (T. 485-90). Mr. Stelmack recalled that Mr. Frankdeclaredthathe believed clearing paper jams at Midvale wouldindeedfit within the “minor servicing exception.”In response to this assertion Mr. Stelmack remarked that “all paper jams ... are not the same,”althoughhe did notruleout the possibility thatclearing somepaper jams could fall within the minor servicing exception if therequirements of thatexception were present. (T. 485-90). 

The undersigned findsAD Stelmack’saccount of his discussion with Mr. Frank in December 2015 to be far more reliable than Mr. Frank’s recollection. The greater weight of the evidence establishes thatAD Stelmackdid not advise Mr. Frankthat the soleuse of e-stops tostop a machine to clear a paper jamwould categorically comply with the LOTO standard. The undersigned finds further thatAD Stelmackdid not communicate to Mr. Frank, either expressly or implicitly, that the LOTO standard applied only to “major” service and maintenance activities. AD Stelmack’sremarks to Mr. Frank were necessarily nuanced and consonant with the performance-oriented nature of the LOTO standard, particularly considering thatAD Stelmackhad no first-hand knowledge ofthe exact equipment and operations at the Midvale plant. Contrary to Mr. Frank’s understanding of whatADStelmack said to him, it is highly unlikely thatAD Stelmack communicateda view thatisincongruentwith the requirements of the LOTO standard. Contrary to Mr. Frank’s recollection, the greater weight of the evidence is that AD Stelmackdid not communicatetohimobjectively erroneous informationon when lockout is required and not required. 

Mr. Frankseeminglymisinterpretedwhat Mr. Stelmack saidto him in theirmeeting. It is apparent thatMr. Frankwas seekingsomebright-linerulefrom AD Stelmack on when to lockout machinery.(SeeT. 556-57). But theperformanceorientedLOTO standard is notgenerallysusceptibletosimplisticrules. Rather,whether the LOTO standard applies depends on theequipment and operations present in any given workplace, and whether any given service or maintenance activity would expose employees toinjuryif a machinewerenot locked outfor that activity.See54 Fed. Reg.at36666 (“If an energy source does not have the capability of causing injury to employees, it is not ‘hazardous energy’ within the scope of this standard”).AD Stelmack’s necessarily non-categorical responses to many of Mr. Frank’s questionsappear to have resulted inMr. Frankbelieving thatthe LOTO standard’s requirementswere“subjective”(as he described in his email to Northwood)andapparentlyresulted in his erroneously distilling fromhis discussion withAD Stelmackasimplisticbright-line rule thatAD Stelmacknever articulatedor implied––thatlockoutwasrequired onlyfor“major” repairs.

Mr. Frank’s flawed understanding of the requirements of the LOTO standard persisted to the time of the inspection here, which was conducted nearly two years after his December 2015 meeting withAD Stelmack. ThatMr. Frank held thisflawed understandingfor so longwas substantiallydue to his own inaction in failingtoretain a qualified safety consultant to perform acomprehensive safety audit of the Midvale plantin early 2015, whichMidvalehadcommitted todo, as is described next. 

Midvale’sFailure toRetain Safety Consultant to ConductAuditFrom 2015 thru 2017

On December 8, 2014, a yearbeforehis December 2015 meeting withAD Stelmack, Mr. Frank signed an informal settlement agreement (ISA) on behalf of Midvale that resolved a citation that OSHA had issued on November 7, 2014. (Ex. C-20). Amongother of the ISA’sprovisions,Midvale committed to(1)engaginga “qualifiedthird partysafety consultant to conduct a comprehensive safety audit” byFebruary 8, 2015,and(2)implementingthe consultant’s “reasonable recommendations”no later than June 8, 2015(unless Midvale requested and OSHA granted an extension of that deadline).4As part of the discussions leading up to the execution ofthe ISA,OSHA informed Midvale that a publiclyfunded state consultation servicethat wasoperated by Indiana University of Pennsylvania (IUP)wasavailable toPennsylvaniaemployersto performsafety auditsat no cost tothe employer. See29 U.S.C. § 670(d); 29 C.F.R. § 1908.1. Midvale intended to use theIUPconsultationservicetomeetitscommitment. (T. 359-60, 365). However, Midvale’s obligationunder the ISAto engage a safety consultant was not contingent on IUP agreeing to conduct the auditor on the audit beingconducted withoutcost to Midvale. (T. 35960, 370).

Midvaledid not retainIUP(or any other safety consultation service)within the timeframe specified in the ISA. (T. 362). On May 29, 2015, more than six months after Midvale signed the ISA, OSHA conducted a follow-up inspection of the Midvale plant for the purpose ofassessing whether Midvale hadcorrectedthe violative conditions that had beenaddressedinthe ISA. (T. 373-74). That inspection resulted inOSHA issuinganother citationto Midvaleon November 25, 2015. That citationalleged thatMidvale had failed to abate two machine guarding violations thatMidvale had acceptedin the ISA,andit also allegedeleven new violations. (Ex. C-1 at23).Thepurpose ofMr. Frank’s meeting with the area directorin December 2015 described above was to discuss this new citation. (T.475). 

In February 2016, about two monthsafterMr. Frank’s December 2015 meeting with the area director, Mr. Frank first attempted to arrange for IUP to conduct the safety audit that Midvale had agreed fourteen months earlier (in December 2014) to have conducted by February 2015. (Ex. R37; Ex. C-68 at 68-70). However, because Midvale had contested the citationthat had beenissued in November 2015, the violations alleged in that citation had not become a final order, and so by regulation IUP was not permittedto perform the requested safety audit. 29 C.F.R. § 1908.7(b)(3) (“An onsite consultative visit shall not take place subsequent to an OSHAenforcement inspection until a determination has been made that no citation will be issued, or if a citation is issued, onsite consultation shall only take place with regard to those citation items which have become final orders.”). (T. 369; Ex. C-68 at 72-73).

InMay2017, Midvaleand OSHAentered into a formal settlement agreement (FSA) that resolved the citationthat had beenissued in November 2015.One provision of thatFSArequiredMidvaletoretain a consultant to conducttwoaudits of the Midvale facility overthefollowingtwo years. (Ex. C-1 at 25).

Four months after the FSA was executed,AD Stelmack sent Midvalealetter dated September 22, 2017, informingMidvale that OSHA had not received Midvale’s notification that it had abated the violative conditions identified in the FSAand requestingthat this abatement information be submitted within five business days. (Ex. C-2). The letter stated further that Midvale’s failure to submit the abatement information could result in OSHA conducting a followup inspection to confirmthatthe violative conditions had been abated. (Ex. C-2). 

Midvale did not respond to thatletter. Consequently, on October 5, 2017,AD Stelmack’s area officedispatched the CO toMidvale’splant to conduct a follow-up inspection toassess whether theviolative conditionsaddressed in the FSA had been correctedand to investigateas well arecentlyreceivedcomplaint. (T. 34-37, 375, 383). When the CO arrivedon October 5, 2017,tocommence the inspection, he was turned away because Midvale would not consent to the inspection. (Ex. C-3; T. 375). The CO returned to the Midvale plantabout two weeks later,on October 18, 2017, accompanied by the assistant area director, and the inspection that the CO had intended to start on October 5 was formally openedthat day. (T. 38-39, 347, 383; Ex. C-6).

After Midvale learned on October 5, 2017, of OSHA’s intent to conduct the follow-up and the complaint inspections, Midvaleagaincontacted the consultative service at IUP to seekassistance, but IUP informed Midvale the next day (October 6, 2017) that in view of the inspection that OSHA had attempted to initiate the day before, that IUP would not schedule an audit until thatintended inspection was concluded. (T. 369-70;Exs. C-3 & R-37).

Midvale could have certainly retained a qualified safety consultant to conduct the safety audit that ithadcommittedin the ISAto havedone,even thoughMidvale would likely have had to pay forit. ButMidvale never did so. Had Midvaleretainedasafety consultant as it hadcommittedto doin December 2014, the consultant almost certainly would have evaluated Midvale’s plant for compliance with the LOTO standard andlikelywould have made reasonable recommendations that Midvale would have been obliged to implementunder the terms ofthe ISA of December 2014. If Midvale had implemented the reasonable recommendations of a qualified safety consultant, it is likely that Midvale would have developed, documented, and implemented a LOTO program that conformed to the LOTO standard, and that Midvale would have avoided the violations for which it was cited in the citation that was issued in November 2015, whichprecipitatedMr. Frank’s meeting withAD Stelmackin December 2015. Midvale’s continuing failureto retain a safety consultant to conducta comprehensive safety auditfrom December 2014 throughtime of the inspection here in late 2017likelyprolonged non-compliant workplace safety and health practices and conditions at Midvale’s plant.

2.Citation 2, Item 1a -- § 1910.147(c)(4)(i)

The Secretary allegesMidvaleviolated subparagraph(c)(4)(i) ofthe LOTO standard (§ 1910.147), whichprovides as follows: “(4)Energy control procedure.(i)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.”TheSecretaryalleges that Midvale violated this provisionwith respect to nineof itsmachines:three printing, stripping and die-cutting machines(identified by the brand nameZerand, and knownalsoas “printers/diecutters”);five gluer machines(originally manufactured by International Paper Box Machine Company);and one window-box machine(also originally manufactured by International Paper Box Machine Company).

The bulk of the production at the plant involves theZerandand the gluer machines, with the window-box machine usedintermittently.(T. 232-33).The manufacturing process generally involves feeding large rolls ofpaper in theZerandmachineswhere it is printed with multiple colors at multiple print stations and then cut into flat “blanks.” The blanks are then fed through the gluer machines,folded,and glued to make a complete box. (T. 662-65). TheZerandmachines and the gluers arelarge complexmachines. TheZerandmachines were estimated to be over 100feetlong (T. 699) and the gluers about 70 feet long. (T. 699, 716). 

Item 1adescribes the manner that Midvale is alleged to have violated the standardas follows:

The employer does not ensure procedures are developed, documented, and utilized for the control of potentially hazardous energy.This violation was most recently observed on or about October 18,2017...when the employer did not develop, document and utilize energy control procedures while employees performed servicing and maintenance activities including but not limited to adjusting, cleaning, replacing parts, and clearing jams on the following equipment:

1.International Paper Box Machine CompanySwiftyRight Angle Model FZ Gluers (Serial Nos. 397, 602, 639)

2.International Paper Box Machine CompanySwiftyRight Angle Model KB Gluers (Serial Nos.101, 102)

3.International Paper Box Machine Company Window Machine Model 5A (Serial No. 146)

4.ZerandPrinting, Stripping, and Die Cutting Machines (#1, #2, #3)

The Secretary argues that Midvale did not comply with § 1910.147(c)(4)(i) in multiple ways with respect toallnineidentifiedmachines.

Adequacy of Written LOTO Procedures

The Secretary first argues thatMidvale’swritten energy control procedureswere deficient in thatthecontentof the proceduresdid not meet the requirements of § 1910.147(c)(4)(ii). (Sec’y Br. 18-19). Subparagraph (c)(4)(ii)of the LOTO standardrequires in part thatan employer’swrittenLOTOprocedures “clearly and specificallyoutline the scope, purpose,authorization, rules, and techniques tobe utilized for the control of hazardousenergy.” 

Midvale first developed and documented written energy control procedures in early 2016. Midvale did this in response to a prior willful violation of § 1910.147(c)(1) that the Secretary originally alleged in November 2015. Midvale contested thatviolation,and itdid not become a final order until June 2017after Midvalehadaccepted the violation in a formal settlement agreement. There is substantial evidence that the content ofMidvale’swritten proceduresfailed to meet the requirements ofsubparagraph(c)(4)(ii). (T. 151). However, the citation itemheredoes not allege a violation of subparagraph (c)(4)(ii). For the Secretary to prove that Midvale did not comply with the requirements ofthe provisionthat the Secretary hasallegedthatMidvaleviolated(subparagraph(c)(4)(i))the Secretary was required to show that Midvalefailed toeither“develop,”or “document,”and/or “utilize”procedures for the control of potentially hazardous energy. The Secretarydid notprovethat Midvale failed to “develop” or “document” LOTO proceduresbecause Midvale did just that,notwithstanding that thecontentof thoseprocedureswasdeficient. (Ex. R-40 at 60-69; T.149-50, 798-801, 816).SeeOSHADirective CPL-02-00-147,The Control of Hazardous Energy––Enforcement Policy andInspection Procedures, p.2-9(Feb. 11, 2008) (LOTO Directive)5(“[S]ection(c)(4)(i) may be cited forprocedural development,documentation and use issues; whereas, section (c)(4)(ii) shall be cited for procedural content and quality problems – e.g., for the failure to have clear and specific steps to be followed in order to control hazardous energy”);Gen. MotorsCorp., CPCG Okla. Plant(GM-CPCG Okla.), 22 BNA OSHC 1019,1025-27(No. 91-2834E, 2007)(discussing and finding violations of §1910.147(c)(4)(i) where employees failed to utilizeestablishedenergy control procedures and of § 1910.147(c)(4)(ii) wherethoseprocedures were inadequate).The parties did not consent to trying theunpleadedissue of the conformance of Midvale’sdeveloped and documentedenergy control procedures with the requirements of subparagraph (c)(4)(ii), and so that issue is not adjudicated herein. SeeMcWilliams Forge Co., Inc., 11 BNA OSHC 2128, 2129-30(No. 80-5868, 1984)(“Trial by consent[under Fed. R. Civ. P. 15(b)]may be found only when the partiesknew, that is,squarely recognized, that they were trying anunpleadedissue.”)

Thus,for the Secretary toestablishtheviolationthathe hasallegedin Item 1arequiresprovingthat Midvale failed to “utilize” LOTO proceduresas the cited provision also requires. The Secretary argues that he “introduced evidence of several instances in which ... employees performed servicing and maintenance activities while a covered machine was not locked out.” (Sec’y Br. 20). Theinstancesthatthe Secretaryargues establishes noncomplianceareaddressednext.

Cleaning Under Gluer #3 on November 21, 2017

AvideothattheCO recorded on November 21, 2017, showsMr. VincentDellaperuto, who is afloormanager at theplant,kneeling orstooping toward the floor togather and removesome granular absorbent material that had beenput downon the floornext toGluer #3toabsorbgear oil that had leaked fromthe machine. (Seevideo atEx. C-82;Ex.C-11 atBates 90; T. 98-99). Thisoil leakhad beena longstanding conditionandoilregularlyhad to be cleanedfrom the floor in this area. (T. 102). WhenDellaperutowas cleaning up thematerial,Gluer #3 wasin operationand a horizontal shaftthat waslocated about seven inches above floor level was rotating. (T. 98-100; C-81).A machine guard existed for thisshaft,but that guardhad been removed and wasnot in place at the time. (Seeinfrafor the Discussion ofthemachine guarding violationinvolving this missing machine guard that isalleged in Citation 3, Item 2, instance 3). Dellaperuto’sright hand camewithin one foot of the rotating shaftwhile he cleaned the material off the floor.(T. 98-99).

Midvale’spresident, Mr. Frank, testified thatDellaperutowas not required tolockout Gluer #3for the cleaning activity depicted in the video because this was a “minor activity.”(T. 562-63). He testified further thathebelievedthatDellaperutowasnotexposed to a hazard while cleaning the material. (T. 562-63). Similarly, the plant managerand plant engineer, John Northwood, testified that employees at Midvale were not required to lockout machines when engaged in the type of cleaning activity thatDellaperutoisshowndoing inthe video. (T. 758-59). However,Mr. NorthwoodacknowledgedthatifDellaperutohadcontactedthe rotating shafthecould have been injured. (T. 761-62).

The cleaning activity thatDellaperutowas doing constituted “servicing and/or maintenance” as defined by theLOTOstandard.6SeeBurkes Mech., Inc., 21 BNA OSHC 2136,2138-40(No. 04-475, 2005) (concluding that workers who were cleaning underneath an operating machine were“engaged in a coveredservicing or maintenance activity”).

If the guard for the rotating shaft had been in place whenDellaperutowas cleaning the material from the floor near the exposed rotating shaft, the Secretary would not have established that the machine was required to have been locked out for that activity,becausethere was otherwise no evidence thattherotatingshaft,if it hadbeenguardedas the machine guarding standard requires,could havecausedDellaperutoinjury. See§ 1910.147(a)(1)(i) (providing that the standard covers servicing and maintenance in whichhazardous energy“could causeinjury to employees”). But because the guardwas not presentwhenDellaperutowas engaged in this cleaning activity, the machine was required to be locked outwhen he encroached on the zone of danger presented by the unguarded rotating shaft. Cf.§ 1910.147(a)(2)(ii)(A) (providing that the LOTO standard applies to normal production operations when an “employee is required to removeor bypass a guard”).

A preponderance of the evidencethusshowed thatthe LOTO standard applied toDellaperuto’scleaning activity, that Midvalefailed to complywith the standardby failing tolockout the machineduring the cleaning activity,andthatDellaperutowas exposed tothehazardous energy of the rotating shaft whilecleaning. Midvale hadconstructiveknowledge of the violative conditionin thatbothMidvale’s presidentand its plant managerdid not require the machine to be locked outfor the cleaning activity depicted inthevideo. Midvale hadactual knowledge becauseDellaperutois a supervisor whose actual knowledge of a violative condition is imputable to Midvale.Midvale violated the LOTO standard in the manner alleged in Item 1a with respect toDellaperuto’scleaning activity on November 21, 2017.

However, as discussedinfrain connection with the alleged machine guarding violationthatfocuses on the same unguarded rotating shafton Gluer #3(Citation 2, Item 2, Instance 3), this same activityof Mr.Dellaperutoestablishes the “employee access” element ofthatallegedviolation. The exposedshaft was supposed to have been guarded, but as the video reflects the guard was not present on November21, 2017,whenDellaperutoencroached on the zone of danger. For reasons describedinfra, the LOTO violation and the machine guarding violationthatinvolved the same unguarded rotating shaftare duplicative of one another, so one of the two must be vacated. Because the LOTO standard would not havebeen applicabletoDellaperuto’sservicing activity if the guard for the rotating shaft had been in place, between the two violations the LOTO violationshall bevacated.(Thisproven but vacatedLOTOviolation is not consideredinfrain connection with the penalty determinationfor grouped Items 1a and 1b of Citation 2.) 

RemovalandReplacement of Belts

The Secretary argues thatallthe machines identified in the citation item “have belts which can break” and that the evidence established that Midvale “employees do not use LOTO when replacing and/or removing belts on these machines.” (Sec’y Br. 20).Midvale employees testified thatmachines were not necessarily locked out for theremoval and replacement ofeverybelt on the various machines at Midvale, but that machines would be locked out for the removal and replacement of some. (E.g., T. 588, 643-44,768,774). 

The evidence on which the Secretary reliesin arguing that the beltremoval and replacement done on the Midvale machines required lockoutis inexactas to the timeandcircumstancesof thatservice and maintenance activity. Thatevidence is insufficient to establishthatany specific instancesof belt removal and replacement requiring lockoutoccurred on orafter October 17, 2017, which is the earliest date within thesix-month limitations period of section 9(c) of the Act. 29U.S.C. § 658(c). There is noevidence ofspecificinstances of employees engaging inbelt removal and replacementthat occurred on or afterOctober 17, 2017.7 (E.g., T. 391-93,633-34,640-42). 

Thenonspecificevidenceof instances of belt removal and replacementisinsufficient to establish that Midvale failed tolockout the machine whenrequiredby the standardduringremoval or replacement of any of the various belts on the varied machines in the timeframealleged in the Citation.8SeeGen. Motors Corp., Delco Chassis Div. (GM-Delco), 17 BNA OSHC 1217,1218 &1220 (No. 91-2973, 1995) (consolidated) (stating thestandard“applies only where the Secretary shows that unexpected energizing, start up or release of stored energy could occur and causeinjury”and that the“terms of the standard clearly place the burden on the Secretary toshowthat there is such a hazard as to the cited machines and equipment”),aff'd, 89 F.3d 313 (6th Cir. 1996).

The plant manager,John Northwood, testified thatemployees would change unspecified belts on gluers by using an Allen wrench, and that this would be done about twice weekly without utilizing LOTO procedures. (T. 777). There was no evidence, however, bearing on whetherwhile performing that taskanyunexpected energization of the gluers could cause injury to employees, so the evidence is insufficient to establish that the LOTO standard applies to that activity that occurred within the timeframe alleged in the Citation.See§ 1910.147(a)(1)(i) (providing that the standard covers servicing and maintenance in which energization “could causeinjury to employees”);54 Fed. Reg.at36666 (“If an energy source does not have the capability of causing injury to employees, it is not ‘hazardous energy’ within the scope of this standard”).

Adjustments ofBelts and Rollers

Reliable evidence established that someunspecifiedbelts on the various machines at the plant become misaligned and require adjusting. Midvale does not require lockout for such adjustments because Midvale does not regard these adjustments to constitute a “major” maintenance activity. (SeeT. 561; Ex. C-68 at 28 & 83.) 

The CO testifiedthat on November 7, 2017,while Gluer #3 was runninghe observedone of Midvale’s floor managers,Mr.Dellaperuto,adjust a narrow green belt onitthat has both a horizontal and vertical run. (T. 90-93). (This belt is depicted in operation in the video at Exhibit C-80, but the incident to which the CO testified was not captured in any video or photographic evidence.) The CO believedDellaperutowas exposed to the risk of injury while doing so. (T. 90-93). The CO’stestimonyisinsufficiently concrete and preciseto establish thatDellaperuto’shands were in a danger zone associated with the machine’soperation andis thus insufficient to establish that theLOTO standard applied tothework he observedMr.Dellaperutodoing onGluer#3while the machine was running. See§ 1910.147(a)(2)(ii)(B),(providing that the standard applies during normal production operationsif an “employee is required to placeany part of his or her body into an areaon a machine or piece of equipmentwhere work is actually performed uponthe material being processed (point ofoperation) or where an associated dangerzone exists during a machine operatingcycle”).

The CO testified that on November 9, 2017, he observed an unidentified employee makingsomekindof adjustmentwhile his hands were near (but not on)somemovingbelt on Gluer #5,butthat the CO did not see exactly what the employee was doing. (T. 96, 282-83). This testimony is insufficiently weighty to establish that the employee was engaged in a service or maintenance activity during normal production operations that required LOTO procedures to be utilized, in that it is insufficient to establish that the employee could have sustained injury from the moving belt, which he was not contacting. See§ 1910.147(a)(1)(i) (providing that the standard covers servicing and maintenance in which energization “could causeinjury to employees”).

The CO testified that on November 21, 2017, heobserved two unidentified employeesmakingsome unspecified type ofadjustment to some unspecified rollers on theZerand#1 machine while the machine was operating. (T. 96-97). There is no evidence whether the rollersinvolvedwere “energized,”in contrast to non-energized or“idler” rollers. (See T.286). This testimony isinsufficiently weighty to establish that the employees were at risk of injury from the rollerswhile making the unspecified adjustment.See54 Fed. Reg.at36666 (“If an energy source does not have the capability of causing injury to employees, it is not ‘hazardous energy’ within the scope of this standard”).

ClearingPaperJams

All ninemachines identified in the citation item havemechanisms that Midvale calls“jam stops”that aredesigned tostop the machineupon detecting a paper jam. The jam stops do notcause a machineto stopautomatically for all paper jams, however.(T. 516-18, 581-83, 613-14, 629).Whether a paper jam is detected first by a “jam stop” or by an employee, in both circumstancesMidvale instructs employees to engage an e-stop on the machineso that the machineremainsstopped while the employee clears the jam, andthenafter the jam is cleared todisengagethe estop andrestart the machineby depressing the machine’s start button. Midvale does not require employees tolockout machinestoresolve frequently occurringpaper jams. (T. 665-70).

Eachof the machines identified in the citation itemhasmultiple e-stopbuttons:theZerandmachineshave abouteighttoten;the gluershave aboutten;and the “window box” machine has about three. (T. 666, 744). The plantengineer (and the plant manager),JohnNorthwood, testified that the estops on the machines have a fail-safe redundancy,sothat ifan e-stop were tofail,it wouldfail into “safe mode by design.” (T.667-68, 738-39).

Northwood testified furtheraboutamethodof clearing some paper jamsthat requiresan employee toremovea machine guard,but thata safety interlock for thatguard prevents unexpected energization of the machine. (T. 808-13).Thatsafetyinterlock is among “hundreds” ofsafetyinterlocks onMidvale’smachines, some of which were part of the original designsof the machines, and others that were added later. (T. 725-27, 322-23).

Northwood hasbeen involved in the repair and maintenance of Midvale’s machines for fifteen years and for nearly twenty years before thatheworked on the same type of equipment working elsewhere. (T. 659).Northwoodhas received formal training at the Rochester Institute of Technologyonprinting subjects,at Penn State University on microprocessor controls, electrical controls, and motor drives and systems, and atvarioustrade schools on other subjects. (T. 659-60).

The Secretary presented no technical evidence, whether from the manufacturers of the machines or otherwise, to controvertNorthwood’s testimony on the technical aspects of the estops and safety interlocks on Midvale’s machines.There is insufficient evidence to establish by a preponderance that the use of e-stops to stop the machines while an employee cleared a jam on the machine(or the safety interlock feature of some machine guards on the machines)would expose employees to injury from unexpected energization. SeeConsol. Constr., Inc., 16 BNA OSHC 1001, 1006 n. 6(No. 89-2839, 1993) (noting that the Secretary was not required to present expert testimony to prove his case, but that “when the Secretary chooses not to produce an expert witness, he risks the possibility, as here, of not being able to refute the employer's evidence”);Gen. Motors Corp., Delco Prod. Div., 11 BNA OSHC 1482, 1484 (No. 78-5476, 1983) (observing that “had the Secretary met hisprima facieburden, it is questionable whether, without expert testimony, the Secretary's case would have been capable of withstanding rebuttal” from the respondent).

The Commission has decided that control circuit type devicessuch as e-stopsandsafety interlocksmay operate in such a manner that eliminates the potential of hazardous energy for certain servicing or maintenance activities, so that the LOTO standard does not apply to those activities. See GM-Delco, 17 BNA OSHC at 1220(rejecting the argument that the LOTO standard “presumes that there always is a hazard of unexpected energization, etc., on every industrial machine and piece of equipment during servicing and maintenance,”anddetermining LOTO standard not applicable where employer relied on control circuit type devices, including electronically interlocked gates and e-stop buttons, to eliminate the potential forinjury from hazardous energy);see alsoAlro Steel Corp.,25 BNA OSHC 1839, 1854(No. 13-2115, 2015) (ALJ) (relying onGM-Delcoin determining LOTO standard was not applicable where control circuit deviceswere relied upon to prevent unexpected energization or start up or release of storedenergy during a particular servicing activity).With respect to clearing paper jams, there is insufficient concrete evidence that if an employee were to engage an estop to clearthepaper jam that there was areasonablepossibility that some other employee would disengage that estop and restart the machine unbeknownst to employees involved in servicing the machine. (Cf.CO testimonyT. 319-20) (CO testifying that he did not consider whether other employees had unobstructed views of the servicing employee from the controls of the various machines).

While there exists hydraulic and pneumatic energy in some of the machines, the Secretary did not present sufficient evidence to establish that during the conduct ofany givenservice and maintenance activity on any of themthat employees are exposed to injury from those energy sources.9The only energy sourceforany of the machinesthat wasestablished by a preponderance of the evidence to present a risk of injury to employees during service and maintenance activities is electrical energy, whichcan be controlled by locking out at each machine’spower source. (T. 605, 694-95). 

ClearingPaperJam in the Window Machineon November 21, 2017

On November21, 2017, theCO recordedthevideo at Exhibit C-13,which is3 minutes and 21 secondsin duration. (Ex. C-11 at Bates 89). Mr. Northwood, the plant manager, was accompanying the COwhenthe CO recorded the video. (T. 72). The videoshowsthree employeesoperating the “windowbox” machine. Themachine jammed, and two employees put their hands in themachine’spoint of operation to clear the jamwithoutlocking out the machineandwithout ane-stop being engaged.10(T. 70-80;Ex. C-11 at Bates 89). 

Thisserviceactivity of clearing the paper jamdepicted in the videoconstituted a service activity“where the employee may be exposed to theunexpectedenergization or startup of the equipment or release of hazardous energy.” § 1910.147(b)11;Otis ElevatorCo. v. Sec’y of Labor, 762 F.3d116, 123(D.C.Cir. 2014)(determining the text of theLOTO standardcontemplates its applicationto “unjamming” work, and also“comportswith the standard's preventative purpose”).The employeesclearing the jamwere exposed to the “unexpected” energization of the machinebecause withthe e-stop(which is purportedly fail-safe)disengaged,the machine could be restarted by simply depressing the start button. If the machine were restartedwithout warning to the servicing employees,the restartwould be unexpected as to those employees and couldcause theminjury. (T. 86-87).Id.,762 F.3d at 121 (indicating thatwhether an energy source presents the potential for hazardous energy involves a two-pronged test: (1) whether unexpected energization, start up or release of stored energy could occur, and (2) if it can occur, whether it could cause injury to employees).This is preciselythe kind of industrial accident theLOTO standardis designed to prevent. SeeGM-CPCG Okla.22 BNA OSHCat1022 (“The LOTO standard ...waspromulgated to prevent industrial accidents during servicing of machines that (1) remain in an operational mode, (2) are turned off but connected to a power source, (3) retain stored energy, or (4) are reactivated by another worker unaware that servicing is in progress.”)

Midvale argues thatenergization of thewindowboxmachinewhen employees are engaged in clearing a paper jam could never beunexpectedto those servicing employees, and thuslockout was not required. Midvale argues thatthemembers of thethree-employee crew that runsthe windowboxmachine have “complete visibility” of each otherwhile running the machineand that it is unnecessarytolockout a machineto protect against the possibility of another employee deliberately endangering the servicing employees by restarting the machine while theyhad their hands in the point of operation. (Resp’tBr. 23). 

This argument is rejected. Theconditions that Midvale arguesrendersany energization of the windowboxmachinenot“unexpected”to servicing employeesoverlook“common human errors such as‘neglect, distraction, inattention or inadvertence.’”S. Hens, Inc. v. OSHRC, 930 F.3d 667, 677 (5th Cir. 2019), quotingMatsu Ala., Inc., 25 BNA OSHC 1952,1970(No. 13-1713, 2015) (ALJ). “Occupational safety regulations exist because people are distractible.”Id.“Functioning with less than perfect focus and control is our ordinary condition.” Id. The noise andactivityonthe busy floor of Midvale’s plantdepictedin the videoreflectsan environment richinconditions forworker distraction, inadvertence, and inattentiveness. Under such typical working conditions,it isreasonablypossiblethat the windowboxmachine could be startedwithout the prior knowledge of theservicing employees and expose them to the risk of injury.12

Machine Set-Upand Cleaning

Midvale does not require employees tolockoutwhen setting upor cleaningany of the nine machines identified in the citation item. (Ex. C-67;T.632, 731-33, 759). Both setting upand cleaningmachines and equipment constitutes “service and/or maintenance” as defined in the LOTO standardifduring that activity“the employee may be exposed to the unexpected energization or startup of the equipment or release of hazardous energy,” § 1910.147(b),andifsuchexposure to thehazardous energy couldcause injury to employees.Otis Elevator, 762 F.3dat 121.

The only evidence presentedestablishing the reasonable possibility ofunexpected energization during setting up or cleaningpertains toan unguarded power transmission belt and pulleys on the non-operatorside ofZerand#2, which is discussed in detailinfrain connection withthe machine guarding violations alleged inCitation 3, Items 3a and 3b. As discussed in connection with those citation items, a preponderance of the evidence establishes that employees engage in both setting up and cleaning underneath theZerand#2 whilein proximity tothe unguarded belt and pulleysandare at risk of injury from the unexpected energization of the machine. TheZerand#2 is a complex machine about 100 feet long,butthe only hazardous energy present iselectrical energy, whichcan beisolated and lockedout in minutesat its main disconnect.13(T. 615,694-95,699). An employee inproximity oftheunguarded belt and pulleys on the non-operatorside of the machinewould not necessarily be visible to an employee located on the operator side of the machine because of the machine’s size and height,so an employee in thatareawouldbeexposedto the risk of injury by theinadvertent or premature activation of the machine.(Ex. R-26; T.692).See54 Fed. Reg. at 36648 (“The generally accepted best means to minimize the potential for inadvertent activation is to ensure that all power to the machine or equipment is isolated, locked or blocked and dissipated at points of control, using a method that cannot readily be removed, bypassed, overridden or otherwise defeated.”).14

ThisLOTO violation and the machine guarding violationsthat are adjudicatedinfrain connection with Citation 3, Items 3a and 3binvolveexposure to the same unguarded belt and pulleys. As described in connection with those machine guarding violations, this LOTO violation and thosemachine guarding violationsareduplicative of one another, so one of the two must be vacated. Because the LOTO standard would not have been applicable to the servicing activitydone in proximity tothe unguarded belt and pulleys if a guard that conformed to machine guarding standard had been in place, between the two violations the LOTO violation shall be vacated. (Theproven but vacatedLOTOviolation is not consideredinfrain connection with the penalty determination for the LOTO violation.) 

With regard toother aspects of setting up and cleaning theninemachinesidentified inItem1a of Citation 2,it is entirely possible, and perhaps even probable, that the unexpected energization of the machines duringthesetting-upand cleaning the machinescould cause injury,butthere isnoconcreteevidencethat those activities present an actualrisk of injury from hazardous energy.15The existence of such a risk cannot be presumed, but rather there must be substantial evidence that at least supports the reasonable inference that such a risk exists. Alleged violations are not proven when based onsurmise,conjecture, or even an “educated guess.”Keystone Body Works, 4 BNA OSHC 1523, 1524 (No. 6606, 1976).

“Fair Notice” Defense

Midvaleargues that it was deprived of fair notice of the requirements of the LOTO standard based upon Mr.Frank’s recollectionthatin December 2015AD Stelmacktold him that lockout was required only for“major” service and maintenance activities. (Resp’tBr.35-37, citingMiami Indus., Inc., 15 BNA OSHC 1258, 1264 (No.88-671, 1991),aff'd. in relevant part and set aside in part, 983 F.2d 1067 (6thCir. 1992)(unpublished). As previously discussed, Mr. Frank’s understanding of whatAD Stelmacksaid to himis objectively unreasonable. A preponderance of the evidence fails to support the factual predicate for Midvale’s “fair notice” argument.

Violation of Non-delegation Doctrine

Midvale argues that the D.C. Circuit’s holding inUAW v. OSHA,37 F.3d 665, 667 (D.C. Cir. 1994), that the LOTO standard doesnot run afoul of the non-delegation doctrineisinfirmin light ofthe Supreme Court’ssubsequent decision inWhitman v. Am. Trucking Assn’s, Inc., 531 U.S. 457 (2001), andsoasks that the Act be declared unconstitutionalas violative of the nondelegation doctrine. (Resp’tBr. 49-51). Inasmuch as the Commission lacks authority toadjudicate the constitutionality of astatute, the merits of that argument are notaddressed. SeeS.A. Healy Co., 17BNA OSHC1145, 1147(No. 89-1508, 1995),aff’d on other grounds, 138 F.3d 686(7th Cir. 1998)(noting that “[a]rguably, the Commission would not be competent to decide ... whether the Act would be unconstitutional”);Johnson v. Robison, 415 U.S. 361, 368 (1974)(noting the principle that “adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies”).

Classificationof§ 1910.147(c)(4)(i) Violation

The Secretary alleges that theviolation should be classified as both “willful”and “serious.” (Complaint, ¶6).

Whether a violation is “willful” presents a question of fact. Bianchi Trison Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005);Dayton Tire v. Sec’y of Labor, 671 F.3d 1249, 1254 (D.C. Cir. 2012) (determining that the Commission’s finding of willfulness lacked “substantial supporting evidence”).

“The hallmark of a willful violation is the employer's state of mind at the time of the violation.”Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000),aff'd, 268 F.3d 1123 (D.C. Cir. 2001). A violation is willful if the employer acted with an intentional, knowing, or voluntary disregard for the requirements of the Act,orwithplain indifference to employee safety.Stark Excavating, Inc., 24 BNA OSHC 2215, 2222 (No. 09-0004, 2014)aff’d, 811 F.3d 922 (7th Cir. 2016);A.E. Staley Mfg. Co. v. Sec'y of Labor, 295 F.3d 1341, 1351 (D.C. Cir. 2002)(observing that “conscious disregard” and “plain indifference” are alternative means of proving willfulness). A showing of evil or malicious intent is not necessary to establish willfulness.Anderson Excavating and Wrecking Co., 17 BNA OSHC 1890, 1891, n.3 (No. 92-3684, 1997),aff'd131 F.3d 1254 (8th Cir. 1997).Butin proving willfulnessit is“not enough for the Secretary simply to show carelessness or lack of diligence in discovering or eliminating a violation.” Williams Enters.Inc.,13BNA OSHC1249,1257(No. 85-355, 1987).“[A]willful violation may be found where the employer knows of the legal duty to act, and knowing anemployee is exposed to a hazard, nonetheless fails to correct or eliminate the hazardous exposure.” RevoliConstr. Co., 19 BNA OSHC 1682, 1685 (No. 00-1315, 2001);see alsoDukanePrecast, Inc. v. Perez, 785 F.3d 252, 256 (7th Cir. 2015)(concluding that proof of willfulness under section 17(a) of the Act “requires proof only that the defendant was aware of the risk, knew that it was serious, and knew that he could take effective measures to avoid it, but did not—in short, that he was reckless in the most commonly understood sense of the word”).

The Secretary’s arguments that Midvale’s failure to develop clear and specific machine specific LOTO procedures was willfulconductis rejected for the reasons stated earlier—Item 1a of Citation2does not allegethecontentof Midvale’sdocumentedprogram was deficient.

The Secretaryjustifies the willful classification in part based on two prior violations ofa different provision of the LOTO standard,§ 1910.147(c)(1), which requires employers to“establish a program consisting of energy control procedures, employee training and periodic inspections.”Midvale’s first violationof subparagraph (c)(1)was based on Midvale’s failure to have anyprogram andbecame a final orderonFebruary 20, 2014. (Ex. C-71; T. 459). Midvaleapparentlyfailed to develop anyLOTOprogramto abate thatfirstviolation.Midvale’s second established violation of§1910.147(c)(1)and was likewisebased onMidvale’sfailure toestablish anyLOTOprogramand was classified as willful. This second violationbecame a final order on June 19, 2017.(Ex. C-1at 13 & 24; T. 350-51). After the second violation became a final order,Midvale did not submitinformation showing it had abated thatviolation (or any other violationsestablished bythat final order) until sometime aftertheinspection herehadcommenced. (SeeEx. R-40).Indeed, theinspection here wasoriginally scheduled becauseMidvale had failed totimelysubmitanyabatementinformationrelating to the final order of June 19, 2017. (Ex. C-2; T. 373-75). Midvale eventually did provideabatement materialfor the violations established by thefinalorder ofJune19,2017,which included awritten energy control program that Midvale had adoptedin 2016 in anapparentefforttocorrect thesecond allegedviolationof § 1910.147(c)(1). (Midvale does not explain why it did not provide this abatement material earlier.[Ex. R-40 atBates 336-346; T. 521].)

Thetwoprior violations for failing to have an energy control program do not establish that the violation established here for failing toutilizeLOTO procedures waswillful. To be sure, Midvale failed to exercise reasonable diligence in implementingtheLOTO programthat it did develop, anditsdocumentedenergy control procedureswereseriously flawed intheircontent, but the evidence is insufficient to establish thatitscarelessness andfailure to exercise reasonable diligence rose to the level of willfulness within the meaning of the Act.

The violation is properly classified as “serious.” A violation is “serious” if there was a substantial probability that death or serious physical harm could result from the violative condition. 29 U.S.C. § 666(k);Consol. Freightways Corp., 15 BNA OSHC 1317, 1324 (No. 86–351, 1991).“This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result if an accident does occur.” Oberdorfer Indus. Inc., 20 BNA OSHC 1321, 1330-31, (No. 97-0469, 2003) (consolidated) (citation omitted).Serious physical harm could result fromthe failure to utilize LOTO procedures when required to protect employees from injury from hazardous energy. See Kaspar Electroplating Corp., 16BNA OSHC1517, 1522)(No. 90-2066, 1993)(likelihood ofsevere lacerationsto hand support classification of serious).

3.Citation 2, Item 1b -- § 1910.147(c)(7)(i)

In Citation2,Item 1b, the Secretary alleges that Midvale violated § 1910.147(c)(7)(i), which requiresemployers toprovidecertain training to employees as part of an energy controlprogram that is required under subparagraph (c)(1).16Item1balleges that Midvale violated the standard with respect to each of the nine machines that were identified in Item 1a of the Citation in the following manner:

The employer does not provide training to ensure that the purpose and function of the energy control program is understood by employees and that the knowledge and skills required for the safe application, usage, and removal of the energy controls are acquired by employees.This violation was most recently observed on orabout October 18,2017...when employees performed servicing and maintenance on machinery with multiple sources of energy....

AfterMidvale had been cited inNovember 2015foran alleged willful violation of §1910.147(c)(1), Midvaleestablished a LOTO program and in implementing that programitprovidedLOTOtrainingin February 2016to most employees as “affected employees.” (T. 128, 775, 779, 793, 817;Ex. R-40 at Bates 347). Only threesupervisoryemployees (Northwood,Dellaperuto, and Thorne)aretrained as “authorized employees,” and they are the only employeesthatMidvale permits tolockout machines. (T. 586, 591-93, 630-31, 769-70).No evidence of theprecisecontent of the LOTOtrainingthat was provided in February 2016was presented, so there is no basis for finding thatitscontent did not reasonably address the matters on which authorized and affected employees must be trained as specified in § 1910.147(c)(7)(i)(A) & (B).

From the time of the initial LOTOtraining inFebruary 2016through thecommencement of the inspection here in October 2017, Midvale did notprovide LOTOtraining toany newlyhired employeeswho were required to receive LOTO training. (T.129-30,133;e.g.,Ex. C-56[Accomando, startedon6.24.2017;Siglin, startedon10.2.2017],Ex. C-57 [Bowers, startedinMay 2017],T.803 [Kivler, start date not identified but not trained inFebruary 2016]).

The cited standard applies. Employee training is an essential component ofanyenergy control programthat is required to be established by the LOTO standard. § 1910.147(c)(1) (providing that energy control programs consist of,inter alia, “employee training”).

Midvale failed to comply with thetraining provisionbecause it did not provide training to all employeeswho arerequired to be trained. Moreover,Nate Siglinwas the operator of the window box machine on November 21, 2017,as described above in connectionwith theviolation of §1910.147(c)(4)(i),when he and another employeecleared a paperjam without locking out orhaving an e-stop engaged, and he hadnotreceived LOTO trainingas of that date. (Ex. C14; T. 233-34; Ex. C-40 at Bates 169). 

The presence of untrained employees on the production floor establishes employee access to the violative condition. Likewise,theservicing ofa machinethat was required to be locked out by an employee who had not received any LOTO training (Siglin)establishes employee access to the violative condition. 

Midvale had actual knowledge of its failure to train employeesthatthe standard’s training provisionrequires to betrained.See CompassEnv'tl, Inc. v. OSHRC,663 F.3d 1164, 1168 (10th Cir. 2011)(“[E]mployerknowledge of the violative condition...will almost invariably be present where the alleged violative condition is inadequate training of employees.”).

A preponderance of the evidence establishes the violation of § 1910.147(c)(7)(i)alleged in Item 1b.

Classification of§ 1910.147(c)(7)(i) Violation

As with Item 1a of this citation, the Secretary alleges that the violation forItem 1b should be classified as both “willful”and “serious.” (Complaint dated 7.2.2018, ¶6).

Midvale’s failure to trainsomeemployees whowere required to betrained reflects carelessness anda failure to exercisereasonable diligence,butthe evidence is insufficient to establish that its failure rose beyond thatlevel of culpabilitytowillfulness. SeeDayton Tire v. Sec’y of Labor, 671 F.3d 1249, 1257(D.C. Cir. 2012)(finding that the employer’s safety manager having made “some effort” to comply with the LOTO standard was “enough to save[the employer]from a willfulness determination”).

The violation is properly characterized as serious.Providing employeespropertrainingis acritical component ofan effectiveLOTO programto prevent injury from hazardous energy.See54 Fed. Reg.at36673 (stating the performance-oriented training requirements of subparagraph(c)(7) are “of critical importancein helping to ensure that the applicableprovisions of the hazardous energycontrol procedure(s) are known,understoodand strictly adhered to by employees”).

4. Penalty for Grouped Serious Violations of § 1910.147

The maximum penalty foraserious violationproven in connection with the inspectionhere is$12,934. 29 C.F.R. § 1903.15(d)(3) (2018)(setting forth maximum amounts for penaltiesthat areproposedfrom1.3.2018to 1.23.2019). 

The Commission is the final arbiter of penalties.Hern Iron Works, Inc., 16 BNA OSHC 1619, 1622, (No. 88-1962, 1994),aff’d, 937 F.2d 612 (9th Cir. 1991) (table);seeValdakCorp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty amounts but places no restrictions on the Commission’s authority to raise or lower penalties within those limits”),aff’d, 73 F.3d 1466 (8th Cir. 1996).“[T]he Commission has the authority to ensure that a penalty is not unduly burdensome or excessive by evaluating the penalty assessment criteria set forth in the Act and determining a reasonable and appropriate penalty based on that evaluation.”S.A. Healy Co., 17BNA OSHC1145, 1151(No. 89-1508, 1995),aff’d on other grounds, 138 F.3d 686 (7th Cir. 1998).

Section 17(j) of the Act requires theCommission, in assessing an appropriate penalty,togive due consideration to the gravity of the violation,the“sizeof the business of the employer,”and to the employer’shistoryofpreviousviolationsand good faith.29 U.S.C.§666(j).Of these factors, gravity is the principal factor“and is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury.”Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005).

The undersigned concurs with theSecretary’sdetermination to group the two LOTO violations and assess a single penalty forboth.See Miniature Nut and Screw Corp., 17 BNAOSHC 1557, 1559-60 (No. 93-2535, 1996) (combining penalties for items involving violations of separate components of a hearing conservation program).The undersigned concurs further in the Secretary’sassessment that thegravity of thetwoviolationsis “high,”so thatthegravity-based penalty forthe groupedserious violationswould be the maximum penalty of $12,934.(Ex. C-11 at Bates 85; Ex. C-15 at Bates 93). The undersigned concurs further in reducing themaximumpenaltyto account for Midvale’s small size, but instead of reducing the penalty by 50% as the Secretary proposed for the alleged willful violations, the reductionfor sizeshould be 60%, as the Secretary has done with respect to theother serious violations, asis describedinfra.This reduction for size includesconsideration of Midvale’s financial wherewithal.(Exs. R. 41 & R-42; T. 53031).See Colonial CraftReprod., 1 BNA OSHC 1063, 1064 (No. 881, 1972) (“the size of the business of an employer”factor insection 17(j) of the Actencompasses an employer’sfinancial condition).An increase of thatresultingfigureby33%for the “history of previous violations” factor, rather than the 10% proposed by the Secretary, isin order in consideration ofMidvale’stwo prior violations of § 1910.147(c)(1), one serious and one willful. (SeeExs. C-1& C-71).The undersigned concurs with the Secretary’s assessment that no penalty reduction isappropriatefor the “good faith” factorin view of its two prior violations for failing to have established any energy control program. Accordingly, a penalty of$6,881isassessed for the two grouped LOTO violationsproven in Items 1a and 1b of Citation 2.

B.MachineGuardingforHorizontal Power Transmission Shaft–§ 1910.219(c)(2)(i)(“Willful/Serious” Citation 2, Item2)

The Secretary alleges Midvaleviolated § 1910.219,a machine guarding standard titled “Mechanical power transmission apparatus.” Item 2 of Citation 2alleges Midvale violated subparagraph(c)(2)(i)of that standard, which providesin pertinent partas follows:

(2)Guarding horizontal shafting.(i)All exposed parts of horizontal shafting seven (7) feet or less from floor or working platform...shall be protected by a stationary casing enclosing shafting completely or by a trough enclosing sides and top or sides and bottom of shafting as location requires.

The citation item alleges that Midvale violated the standardwith respect to each of itsfive gluer machinesin the following manner:

The employer does not ensure all exposed parts of horizontal shafting seven (7) feet or less from floor are protected by stationary casing(s) enclosing shafting completely or by trough(s) enclosing sides and top or sides and bottom of shafting.This violation was most recently observed on or aboutOctober18,2017...when employees operated the following:

1. The International Paper Box Machine CompanySwiftyRight-Angle Model FZ Gluer #1 (Serial No. 602) with an unguarded rotating shaft two (2) foot, six (6) inches above floor level

2. The International Paper Box Machine CompanySwiftyRight-Angle Model FZ Gluer #2 (Serial No. 397) with an unguarded rotating shaft two (2) foot, six (6) inches above floor level

3.The International Paper Box Machine Company Speed Queen Model KH Gluer #3 (Serial No. 102) with an unguarded rotating shaft seven (7) inches above floor level

4.The International Paper Box Machine Company Speed Queen Model KH Gluer #3 (Serial No. 101) with three (3) unguarded rotating shafts seven (7) inches above floor level17

5.The International Paper Box Machine CompanySwiftyRight-Angle Model FZ Gluer #5 (Serial No. 639) with an unguarded rotating shaft two (2) foot, six (6) inches above floor level

A preponderance of the evidence establishes that the standard applied to all five machines identified and that each of the five machines were non-compliant in the manneralleged(asthecomplaintis deemed amended as reflected in footnote17).18(T. 157;T.159-61&Ex.C-19[Gluer #1];T.158,164-65, Ex.C-22video at1:54, Ex. C-25[Gluer #2]; T.169,171-72, 175,Exs.C-23&C-24[Gluer #3];T. 176-78,333,Exs. C-26& R-24[Gluer #4];T.158, 179-83,Exs. C-18, C-79 at 3 & C-78 video at 0:38 [Gluer #5]). Midvale does not contend otherwise. (SeeResp’tBr. 14-15,39-41).Each of the unguarded shaft segments are less than one foot in length. (SeeExs. C-26, C-19, C-24, C-22 at 1'54", C-79).

A preponderance of the evidence establishes thatguards existed formost if not alltheidentifiedunguarded shafts,butthatemployeeshad removed them andhadnot put them back into place. (E.g., T. 162,164-65,176-77,180, 182-83,298-99, Ex. C-26). Apreponderance of the evidence establishes further thatMidvalesupervisorshadactual knowledgeof theunguarded rotating shafts oneach of thefive gluer machines. A preponderance of the evidence establishes further that Midvale supervisors hadconstructive knowledgeof the violative conditionsin view of theduration that some of the shafts remained unguarded (months in at least one instance)and alsobecause supervisors knew that employees regularly removed and failed to replace the guards.(T.100,162, 191,600,679, 695-98)(Ex. C-19,Ex. C-18 at Bates 106,T.160-62 [Gluer #1])(T.165, 176,Ex. C-25,Ex. C-22 video at 1'53"[Gluer #2])(Ex. C-82, T. 757, 761-62 [Gluer #3])(T. 65, 134, 176,Ex. C-26,Ex. C-56 at 4[Gluer #4])(Ex. C-78, T. 180,182-85[Gluer #5]).Midvaleagaindoes not contend otherwise. (SeeResp’tBr. 14-15, 39-41).

Midvale contends the Secretary failed toestablish the“employee access” elementof the Secretary’s burden of proofas to any of theunguarded shafts.(SeeResp’tBr.14-15, 39-41).

The test forassessing the “employee access” elementis describedinFabricated Metal Prods. Inc.(Fabricated Metal), 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997), as follows(footnotes omitted):

[I]n order for the Secretary to establish employee exposure to a hazard she 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.We emphasize that ... the inquiry is not simply into whether exposure is theoretically possible.Rather, the question is whether employee entry into the danger zone is reasonably predictable.

The “zone of danger”referred to inFabricated Metalis the “area surrounding the violative condition that presents the danger to employees [that] the standard is intended to prevent.”RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995).“The scope of the zone of danger is relative to the wording of the standard and the nature of the hazard at issue.”Fabricated Metal, 18 BNA OSHC at 1074 n.7. The “zone of danger” respecting a horizontal shaft that is required to be guardedby § 1910.219(c)(2)(i) isdefined bythe unguarded horizontal shaftitself.Seeid.(describingtheunguarded shaft as the zone of danger respectingnon-compliant guarding under§1910.219(c)(2)(i)).Inasmuchasthere is no operational reason forMidvaleemployeesintentionally to contact any of the unguarded shafts when they are rotating,the “inquiry then is whether the employees’proximity to the machines makes it reasonably predictable that they will enter these zonesof danger” inadvertently or accidently, such asby slipping or falling.Id.

Employee Accessto Unguarded Shaft on Gluer #1

Gluer #1is configured in anL-shape,with each side of the “L” being about 30 to 35 feet in length. (T. 716). The unguarded shafton Gluer #1 is about 30 inches above floor level and is locatedinchesfrom theoutsidecornerof the “L”, as reflected in the photo at Exhibit C-19. (T. 159-60, 168-69). The unguarded shaft isadjacent toa40-inch-widepassagewayon the plant floor. Machine operatorspass by this outside corner of Gluer #1duringmachine operationsinmaking a ninety-degree turn at thecornerwhere the unguarded shaft is situated,and otherplantemployees traversethis passageway to and from theplant’swarehouse. (T.161,196;Ex. C-18 at Bates 105). There is nothing to impede an employeewho ispassing by the unguarded shaft from contacting it,whether byinattentionor as the result of stumbling or tripping into it. (Ex. C-19).Tripping,falling,and slipping hazards are present on the plant’s floor and have resulted in employee injuries. (SeeEx. C-12 at Bates402 & 408). At least one machine persistently leaks oil onto the floor,so slipping hazards arise on the plant floor from time to time. (T. 102). This evidence establishes by apreponderance “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” presented by the unguarded shaft on Gluer #1.Fabricated Metal,18 BNA OSHCat1074.

Employee Accessto Unguarded Shaft on Gluer #2

Gluer #2 is substantially identical to Gluer #1, and the unguarded shaft on Gluer #2 is in the same locationon the machineas the unguarded shaft on Gluer #1 described above. (T.16465). The video and photo evidence of the unguarded shafton Gluer #2depicts a “Gaylord box”on the floor beside the unguarded shaft,into whichemployeesdiscard paperboard product. (T. 166;Ex. C-25, Ex. C-22 video at 1:53). There is no evidence whether this Gaylord box is ever removed from that location, and there is further no evidence from which it may be reasonably inferred that it would beabsent fromthat locationwhen the machineis running and the shaft rotating. The presence of the Gaylord box near this unguarded shaft renders inadvertent or accidental contact with the unguarded shaft a remote possibility, and not “reasonably predictable.” SeeFabricated Metal18 BNA OSHC at1075(finding thatexposure to unguarded shaft not reasonably predictable where barrels stored near the machine“made itimpossible for an employee to contact” the shaft).Employee access to the unguarded shaft on Gluer #2 is not proven.

Employee Accessto Unguarded Shaft on Gluer #5

Gluer #5 is substantially identical to Gluers #1 and #2butis inadifferent roomof the plant. (T. 168-69;Ex. C-56 at 1). The unguarded shafton Gluer #5is in the same locationon the machineas the unguarded shafts for Gluers #1 and #2. (Exs. C-78 videoat 0'38"–0'46"& 2'05"–2'11";C-79 photos). Theonly evidencethatemployees would encroach the zone of danger of this unguarded shaft by operational necessity or otherwise is the CO’s testimony that employees would have to pass by theunguardedshaftgoingto and from the machine’s glue tanktorefillit.(T. 186). The glue tank for Gluer #5 is located around the ninety-degree corner (i.e., the outside corner of the Lshaped machine) from the unguarded shaft, appearing to be approximately three feet from the corner itself. (Ex. C-78 video at 0'46"–0'54"). The CO neverobserved an employeerefilling any glue tank, however, so he never observed whether the gluer was running and the shaft rotating when employeesfilled the glue tank. (T. 186).

The one-gallon capacity glue tank is“topped-off” each morning before the machineis started up. If the tank requires refilling during the day, thegreater weight of the evidence establishes that themachineisturned offwhile theglue tank is being refilled,because when the tank is openedto be refilledthetank has no air pressure, which is necessaryforagluermachine to dispenseglueonto the paperboard. (T. 671-74, 814). Because the machine would be off when the glue tank is refilled, anemployeeperforming this taskwould walk past thethen non-rotatingunguarded shafton the way to, and then returningfrom, the glue tank. (T. 186).There isinsufficientevidenceto establish by a preponderancethat the machine operators or other employees are required,or have occasion,to walk past the unguarded shaft while the machine isrunningand theshaft rotating.See Home Rubber Co. LP, No. 17-0138, 2021 WL3929735, at*9(OSHRCAug. 26, 2021)(employee access not shown wherethere was no evidence that a hazardous shaftwould berotating when employees used a bucket that was located near theviolative condition). The evidence respecting employeeaccessto the zone of danger presented by the unguarded rotating shaft on Gluer #5 is insufficiently weighty to establish theemployee accesselement of the Secretary’s burden of proof as to that machine.

Employee AccesstoTwoUnguarded Shaftson Gluer #4

The photo at Exhibit C-26 depicts an unguarded shafton Gluer #4that isabout seven inches above the floor leveland about four feet from themachine’sglue tank. The only evidence respecting employeeaccessto the zone of dangerofthe unguarded shaft isthe plant manager’s testimony thatthis location is against the wall and that employees do not have reason to passby it while the machine is operating. (T. 749). The evidence is insufficient to establish the employee access element of the Secretary’s burden of proof as to this unguarded shaft on Gluer #4.

A video shows another unguarded shaft on Gluer #4 that is also about seven inches above the floor level. (Ex. R-24 at 1'41"–1'45"; T. 572-73). There is no evidence respecting whether any employees would have occasion to traverse along this pathway that adjoins the rotating shaft when the machine is in operation and the shaft rotating. The evidence is insufficient to establish the employee access element of the Secretary’s burden of proof as to this unguarded shaft on Gluer #4.See Home Rubber Co. LP,2021 WL3929735, at*9.

Employee AccesstoUnguarded Shaftson Gluer #3

The unguarded shaft on Gluer #3 is the same shaft to which Mr.Dellaperutowas exposed in connection withthe LOTO violation that occurred in connection with hiscleaninggear oilthat had leaked onto the floor. The plant manager testified that a Gaylord box is maintained adjacent to the rotating shaft and is in place whenever the machine is operating. (T. 749-50; Ex. C-23 video 2:02–2:20 & 2:35–3:07; Ex. C-24 at 1–3). The CO testified he had seen this areaof the machine when the Gaylord box was not present,buthe did not testify whether the machine was operating at the time.(T. 173-74). The video of Mr.Dellaperutocleaning up the oil shows him situated ina narrow spaceinbetweena wood box to his left and a stack of collapsed packing boxes to his rightwhileaccessingthe area of the floor near the rotating shaft and the oil leak. (Ex. C-82). 

This evidence establishes that while under ordinary operations employees do not have reason to enter the zone of danger for this rotating shaft, at least in this instance of cleaning up the oil leak, Mr.Dellaperutowas working in the zone of danger. Midvale acknowledgesthatDellaperutowas working “relatively close to the unguarded shaft,” but contends that withDellaperuto’sdecades of experience with these machines, he was not within the zone of danger of the rotating shaft. (Resp’tBr. 40). This argument is rejected.Dellaperutohad tomaneuverin between a wooden box to his left and a stack of collapsedcardboardshippingboxes to his right toget tothe area to be cleaned, and then he had to somewhat awkwardly stoop or kneelto do thecleaning.Hishandcamewithininches of the rotating shaft,andparticularlyconsideringhis awkward stancehecould have contactedthe shaft through inadvertence, carelessness, or accident. (Ex. C-82). Any employee, regardless of knowledge and experience, would be deemed exposed to the hazard of the rotating shaft while performing the task depicted in the video at Exhibit C-82. See Fabricated Metal,18 BNA OSHCat1073n. 4(noting that the cited standard here is a specification standard, so that “non-compliance ...establishes the existence of a hazard”). A preponderance of the evidence establishesDellaperutoworking within thezone of danger of thehazardousunguarded shaft on Gluer #3.

The machine guarding violation as to Gluer #3andthe LOTO violationthat is grounded inDellaperuto’sexposure to the same unguarded shaftare duplicative, because the abatement of one would necessarilyresult in the abatement of the other.N.E. Precast LLC, 26 BNA OSHC 2275,2279(No. 13-1169 & 13-1170, 2018)(“Violations are duplicative where the abatement of one violation necessarily results in theabatement of the other”),aff'd, 773 F.App'x70 (2d Cir. 2019)(unpublished).19This is consistent with the“dovetailing” of theLOTO standardand the machine guarding standards set forth in subpart O of 29 C.F.R. Part 1910. GM-CPCG Okla., 22 BNA OSHCat1022(noting that the LOTO standard “dovetails with the requirements for the safe operation of machines duringproduction, as prescribed by 29 C.F.R. Part 1910, subpart O”).

Since the LOTO standard would not have been applicabletoDellaperuto’scleaning the oilif theguard for the exposedshaft onGluer #3 had been in placeat the time,asbetween the twoviolationsthe LOTO violationas toDellaperuto’sconductaloneis deemed vacated, and the machine guarding violationismaintained.

Classification of§ 1910.219(c)(2)(i) Violations

The Secretary alleges that the violations of§ 1910.219(c)(2)(i)should be classified as both “willful” and “serious.” (Complaint dated 7.2.2018, ¶6).Because violations were established as to Gluers #1 and #3, the evidence respecting those violative conditions is discussed below.

Gluer #1

With respect to Gluer #1,theunguarded shaft on Gluer #1 is aptly characterized as a serious violation in that there was a substantial probability that serious physical harm could result fromcontact with the unguarded rotating shaft. (T. 760-61).

In prior inspections,Midvalehadviolated the same standard for failing to have theverysame shafton Gluer #1unguarded. (T. 178). Thatviolative condition was first identified on September 8, 2014,duringOSHA inspection number 994212,andthat violationbecame a final order onDecember 8, 2014, the day that Midvaleexecutedan informal settlement agreementresolving the citation. (Ex. C-20 at 4& 15; T. 356-57). About six months later, on May 25, 2015,OSHA determinedduring OSHA inspection 1066769that Midvale had not abated thatviolative condition, and on November 25, 2015,OSHAissued toMidvalea citation for failure to abate. That citation for failure to abate becamea final order onJune 19, 2017, afterMidvale resolved that citation by executing aformal settlement agreement. (T. 11; Ex. C-1at 23; Ex.C27 at 3).

On October 18, 2017, the first day of the inspectionhere, the CO was accompanied by theplant manager, Mr. Northwood, when the COspottedthe unguarded shaft on Gluer #1and directed Northwood’s attention to it. (T. 159,697-98;Ex. C-18 at 6;Ex. C-19).Northwood pointed outto the COthatthe guard for thatshaft waslyingon the floor belowthe shaft,andheremarked that the machine operatormust have removed it and failed to reinstall it. (T. 162). Northwoodthen told the COthathe hadfabricatedthatguard,apparently to abate theviolationthat wasfirst identified in September 2014 and that had remained unabatedas ofMay 2015. (T. 162; Ex. R-40 at Bates 282 & 284-85). Even thoughduring the inspection on October 18, 2017,the guard waslocatedon the floor beneath the rotating shaft, Northwood did notthereafterreinstall the guard, nor apparently did he direct an employee to do so, and the shaft remained unguardedfor the duration of theCO’sinspection, whichcontinued for nearly another two months. (Ex. C-18 atBates 106). And even though Northwood testified that when heobservesthat amachineguard has been removed and not replacedthathe“[a]ddress[es] it with the operator of the machine”by “talk[ing] to them about leaving it in an unsafe condition” (T. 698), it is evident that he did not do sowith respect to the missing guard on Gluer #1.

Another time during the CO’s inspection,after the CO brought toNorthwood’sattention an unguarded shafton another machinewhose guard had been removed,Northwoodremarked to the CO: “I tell thesepeople all the time: You make sure it’s guarded and everything.” (T. 184).

A floor manager, Mr.Dellaperuto, testified that employees at the plant “have a tendency of taking covers off and not putting them back on.” (T. 600).It is not surprising that Midvale employees have demonstrated this “tendency” not to replace guards,because Midvale has never disciplined an employee for a safety violation. (Ex. C-68 at 108-110).When Midvale employees engage in unsafe acts like removing and not replacing machine guards, Midvalehas neverimposedanydisciplineon the employee, not even a written warning or reprimand. (Ex. C-68 at 108-110). Rather than discipline employees for violating safety rules,Midvale’s practice has been toalert the employee to theunsafe condition andinstructthe employee to correct it. There is no evidence of any Midvale employee suffering any adverse consequence for a safety violation, other than to be told to correct the unsafe conditionor practice. 

Given the conspicuous location of the unguarded shaft on Gluer #1, plainly visiblealonga frequently traveled passageway, it is highly unlikely that neither the floor managerDellaperutonor the plant manager Northwood, each of whom spend hours every day on the floor of the plant, did not have continuing actual knowledge of the unguarded shaft on Gluer #1. And given that both were employed in theirsamesupervisorypositions the first two times Midvale was cited for having that very sameshaft unguarded, and that Northwood hadactually fabricatedand installeda guardfor thatshaft,their apparentfailure to take action to correct this violative conditionis even more notable.

Thisevidence establishes that with respect to the unguardedshaft on Gluer #1, Midvale at various times bothconsciously disregarded the requirements of the Act, and was plainly indifferent to employee safety, justifying a willful classification. Midvale had a heightened awareness of the cited standardby dint of the two prior citations and Northwood’s own efforts to abate those violations by personally fabricating a guard for the shaft involved. SeeRevoliConstr. Co., Inc., 19 BNA OSHC 1682,1685-86(No. 00-0315, 2001) (finding employer had a heightened awareness of the standard based on four previous citations of the same standard in the prior four years). Midvale demonstrated plain indifference to employee safety by failing to take any effective steps to eliminate the demonstrated tendency of employeesnotto replace guardsafter theemployee has removedit.See id.at1686(employer was aware that its employee “had ignored the safety rule before and felt free to ignore the orders of his supervisor” but nevertheless “took no effective steps to remedy the known deficiencies in its practicesand thus was plainly indifferent to employee safety”).“When an employer has clear warnings that unsafe practices or conditions persist, anddecides to do little or nothing in response,...it is strong evidence ofwillfulness.” Id.

Gluer #3

Mr.Dellaperuto, who is a floor manager,had actual knowledge that he was exposed to the hazard of the unguarded shaft of Gluer #3 that was rotating near his hand while he was stooped or kneeling to clean oil that had leaked on the floor. Midvale had been cited twice for notguardingthecorresponding shaft on Gluer #4.(Ex. C-18, Ex. C-27). Dellaperuto, who held the same positionas floor manager at the times of theprior inspectionsand citations,must have hadactual knowledgethatthecorrespondingunguarded shafton Gluer #3was non-compliant with the citedstandard, and that he was exposed to that hazardous condition while cleaning the oil. His decisionto work within the zone of danger of the hazardous condition reflects both a conscious disregard to the requirements of theAct, and plain indifference to his own safety. This willful conduct is imputed to Midvale by virtue of hissupervisorystatus.SeeCont'l Roof Sys., Inc., 18 BNA OSHC 1070, 1071 (No. 95-1716, 1997)(“Where the requisite state of mind is manifested through the actions of supervisory employees, it is imputed to the employer to the same extent as would be a supervisor's knowledge of violative conditions.”).

Penalty forWillfulViolation of § 1910.219(c)(2)(i)

The maximum and minimum penalties for the willful violationhere arerespectively$129,336 and$9,239. 29 C.F.R. § 1903.15(d)(1) (2018). The Secretary proposed a penalty of$60,971upon adetermination thatthe gravity of the violationwas“moderate” uponassessments thatthe severityof the injurythatcould result from the violationwas“high,” and theprobability that an injury or illness could occur as a resultwas“lesser,” with a 50% reduction to account for Midvale’s small size, and a 10% increase to account for history of violations. (T. 196-97; Ex. C18 at Bates 102). 

Upon consideration thatonlytwo of the five alleged instances wereproven,the probability of injury from the proven violations would be diminished,and sothe unadjusted gravity-based penalty of $110,856that the Secretary reckoned shall be set at$60,000. And upon further consideration that the two prior violations of the cited standard werea significantfactor indetermining the violation was willful, enhancing the penalty for history of violations is somewhat duplicative, and so that figure is not increased by 10% to account for history of prior violations as the Secretary had proposed. The undersigned concurs in the reduction of 50% to account forMidvale’s small size, including its financial wherewithal.20 Theresulting assessed penalty of $30,000penalty remains substantial,andit is appropriate and necessaryto impress upon Midvale the importance ofadequately enforcingthework rule that employeesensure guards are in place when machines are operatingand of promoting a cultureof safety at its plant.

C. Machine Guarding forZerand#2–§§ 1910.219(d)(1), 1910.219(e)(1)(i)(RepeatCitation3, Items3a and3b)21

Items 3a and 3bof repeat Citation 3pertain to a system ofpulleys that are powered by a horizontalpower transmissionbelton theZerand#2 machine. The pulleys and the transmission beltare situated between26 inches and 42 inches above floor level. (Ex. C-38).The video at Exhibit C-36 depicts thepulleys and beltin operation. Item 3a alleges a violation of §1910.219(d)(1) because the pulleys are unguarded, and Item 3b alleges a violation of §1910.219(e)(1)(i) because the horizontalpower transmissionbelt is unguarded.22

The pulleys and belt were not fully enclosed as required by the standard, except for the left-most pulley which was enclosed. (T. 220;Ex. C-38). The record does not contain a precise measurement of the horizontal distanceoftheunguardedportions of the belt and pulleysbutthe photos at Exhibits C-38 and R-26 suggest that this horizontal distance is about five feet based on the relative scale ofthe five-gallon plastic pail depictedin the photographs.

The pulleys and belt are located on the “non-operator”or “gear”side of theapproximately 100footlong machine, alongapathwaythatis 42 inches wide. (T. 324,692,699; Ex. C35 at Bates 155). On the other side of the 42-inchpathwayis theZerand#3 machine. (T.208-09; Ex. C-36).The plant manager, Mr. Northwood, testified that employees access that area of the machine “only ... during the setup process” and that“[w]henthe machine is running and in production, no one is in that area of the machine.” (T. 691). The CO did not observe employees present near the unguarded belt and pulleys onZerand#2 at any time over the course of his inspection. (T. 218). 

A preponderance of the evidence establishes thatthe cited standards apply, that the belts and pulleys were not fully enclosed and thus not compliant with the standards, and that Midvale had actual knowledge of the violative conditions. (Sec’y Br. 52-53). Midvale does not contend otherwise. Rather, Midvale contends that the Secretary did not establish employee access to the violative conditions, i.e.,that it was “reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.” Fabricated Metal, 18 BNA OSHC at 1074.(Resp’tBr. 15-16, 42).

The photograph at Exhibit C-38 depicts scraps of paperboard that had collected on the floor,both underneaththe belt and pulleysandfurtherbeyondthem,underneath the machine. Accessing thatscrapto clean itwouldnecessitatereachingunderneathand beyondthe belt andpulleyswith an arm or possibly some instrumentsuch as a broom or a raking instrument. (T. 218-19).

The evidence is insufficient to establishby a preponderancethatwhile the machine isoperatingemployee access to the zone of dangerassociated withthe unguarded pulleys and belt is reasonably predictable.See Home Rubber Co. LP, 2021 WL3929735,at *9(employee access not shown where there was no evidence thatthe machine would be running and the unguarded machine part movingwhen employeeswould be near the unguarded part).However, thegreaterweight of the evidence establishes that employeesencroach onthe zone of danger while cleaning the paperboard scraps that collect under andbeyondthe belt and pulleys, as well as during setting up of the machine, when the machine is powered off but is not de-energizedand locked out at its main disconnectusing LOTO procedures. Employeeswithin the zone of danger during cleaningunderneathand beyondthe belt and pulleysandwhilesettingupthe machineare exposed to injury from the unguarded belt and pulleys in the event of the unexpected energization of the machine during those activities. A preponderance of the evidence establishes that employees hadaccess to theviolative condition of the unguarded belt and pulleys. The alleged violations of subparagraphs (d)(1) and (e)(1)(i) are proven.

As describedsuprain connection with theseparateLOTO and machine guarding violations that arose out Mr.Dellaperuto’scleaning oil from underneath Gluer #3, the separate LOTO and machine guarding violations respectingZerand#2 are duplicative,soone must be vacated. Because the LOTO standard would not have been applicable to either setting up or cleaningaroundthe belt and pulleys if Midvalehadguarded them as the machine guarding standard requires, the violative conduct relating to the LOTO standard shall be vacated as duplicative.

Classification of§ 1910.219(d)((1) and 1910.219(e)(1)(i) Violations

The Secretary alleges these are repeat violations.A violation may be deemed repeated “if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.” PotlatchCorp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). The Secretary can prove substantial similarity by showing the employer failed to comply with the same standard as in the prior citation. Id.This prima facie showing of substantial similarity may be rebutted “by evidence of the disparate conditions and hazards associated with these violations of the same standard.”Id.

Thepredicate violationsthatsupport therepeat classifications arebased onMidvale’sviolations of the same standardsthat occurredon January 14, 2014,in connection with OSHA inspection 954509,which became a final order onFebruary 20, 2014,upon the execution of an informal settlement agreement. (Ex. C-71; T. 459). In that prior inspection, OSHA cited Midvale for not having guards onall three oftheZerandmachines in the location ofthe exposed belt and pulleys identifiedon theZerand#2 machinein the inspectionhere.(Exs. C-71 & C-74).After that inspection, Midvale guarded the belts and pulleys onZerands#1 and #3, and those two machines had guardsin placeat the time of the inspection here. (T. 216). Theevidentiary record isunclearon whether Midvale everinstalleda similarguardonZerand#2, but in any event,the belt and pulleys wereunguarded at the time of the inspection here.(T. 216-17).In other words, the violative conditionsidentified here onZerand#2areidentical to the violative conditionsthat had been identifiedon thatsamemachine identified in connection with the2014violations.(SeeEx.C-74 at2-3 forphotosofZerand#2’sunguarded belt andpulleys from prior inspection; T.227-28).The violations are properly characterized as repeatedviolations.

Penalty forGroupedRepeatViolationsof§§ 1910.219(d)(1)& 1910.219(e)(1)(i)

The maximum penalty for a repeat violation in connection with the inspection here is$129,336. 29 C.F.R. § 1903.15(d)(2) (2018). The violations are properly grouped for a single penaltybecause both violations are abated by the samecorrective action of enclosing the belt and pulleys mechanism. (T. 213).SeeH.H. Hall Constr. Co., 10 BNA OSHC 1042, 1046 (No. 76-4765, 1981) (assessing a single penalty for distinct but overlapping violations).

In addition to classifying the violations as “repeated,” theSecretary regarded the violations to be“serious”in nature for purposes of formulating a proposed gravity-based penalty. (Ex. C-35 at Bates 157 &162; T.217). The undersigned concurs in the Secretary’s assessment that the gravity of the two violations is “moderate,” so that the gravity-based penaltyprior to applying a multiplier fora repeated violation and otheradjustmentsbased on statutory factorswould be $9,239.(Ex. C-35at Bates153& 158;T.224-25). The undersigned concurs indoubling that sum to account for the repeated nature of the violations andconcurs further in reducing that resulting sumby60%to account for Midvale’s small size, which includes consideration of Midvale’s financial wherewithal.The undersigned does not concur in increasing that resulting sum by 10% to account for history of the violations, because the doubling of the gravity-based penalty to account for its repeated naturesufficiently addresses this statutory factor. The undersigned concurs with the Secretary’s assessment that no penalty reduction isappropriatefor the “good faith” factor. Theresulting sum isnotreducedby one-third due to the Secretary having withdrawn the third grouped Item 3c of Citation 3, which pertained to an unguarded sprocket wheel and chainthat was co-located with the unguarded belt and pulleys. The hazard that the Secretary hadalleged asassociatedwiththe unguarded sprocket and wheel was substantially the same hazard asthe Secretaryestablishedfor the unguarded belt and pulleys. (Ex. C-35 at Bates 162-66).

Accordingly, a penalty of $7,391isassessed for the two grouped violationsof §1910.219 in Items 3a and 3b of Citation 3.

D. Machine Guarding for“WindowBox”Machine–§ 1910.219(f)(1)(Repeat Citation 3, Item4)

Item 4 of Citation 3 alleges a repeat violation of § 1910.219(f)(1), whichrequires thatpower transmissiongearsbe guarded.23 Midvale is alleged to have violated this standardonor aboutOctober 18, 2017, “when employees worked and were exposed to an unguarded or non-enclosed gear that wasforty five(45) inches above the floor level on the Window Machine - Model 5A.”

PhotographsinExhibitC-14showtheunguarded gear(marked by asuperimposedarrow),and the video at ExhibitC-13 shows the gear rotating during machine operations. (T. 23132). The gear is4.5 inches in diameterandis situated about45 inches above floor level. (Ex. C-40 at Bates 169). Nearly all of itissituatedon theoutermargin of the machine, althoughatlevelsbelow the gear theouter margin of the machine appears toextendabout one footbeyond theoutsidemargin of the gear.(Ex. C-14).The gearis situated38 inches from themachine’smaincontrolpanel. (Ex. C-40 at Bates 169). When the machine is running the gearturnsat roughly 20RPM. (SeeEx.C-13). 

As described in connection with the LOTO violation, the video atExhibit C-13 depicts employees attempting to clear a jam in the machine without the e-stop engagedand without utilizing LOTO procedures, in violation of the LOTO standard. During this effort, the machine’s operator stood to the right of theunguardedgear and appears to have been within two feet orcloser toit. (Ex. C-13; T.321-22). 

A preponderance of the evidence establishes that the cited standard applies, that thegear was not guardedas the standard requires, and that Midvale had actual knowledge of the violative condition. (Sec’y Br. 52-53). Again,Midvale does not contend otherwise. Rather, Midvale contends that the Secretary did not establish employee access to the violative condition, i.e., that it was “reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.” Fabricated Metal, 18 BNA OSHC at 1074.(Resp’tBr.16 &43).

As discussed above in connection with the LOTO violationthat wasestablished with respect to the unjamming effort depictedin the video at Exhibit C-13, the employee near the gear during that activitywas exposed to the risk of injury from the unexpected energization of the machine and the movement of the exposed gear.24 This is so notwithstanding that the gear itself is relatively slow movingwhen in operation, revolving atabout 20 RPM. Section1910.219(f)(1)is a specification standard,sononcompliancewith itestablishes the existence of a hazard. Fabricated Metal,18 BNA OSHCat1073n. 4.

Apart from theemployee’s exposure to the unguarded gear while clearing the paperjam when the gear was not moving,the proximity of the unguarded gear to any person standingatormoving alongside the machine while it is in operation makes it reasonablypredictablethat“employeeshave been, are, or will be in the zone of danger”associated with the gear when the machine is in operation.Fabricated Metal,18 BNA OSHC at 1074.

A preponderance of the evidence establishes that Midvale violated the cited standard in the manner allegedin Item 4 of Citation 3.

Classification of§ 1910.219(f)(1) Violation

The Secretary alleges this is arepeat violationbased onMidvale’s violation of the same standard that occurred on January 14, 2014,in connection with OSHA inspection 954509, and which became a final order on February 20, 2014,upon the execution of an informal settlement agreement. (Ex. C-71; T. 459). In that prior inspection, OSHA cited Midvalefor violatingthe same standardbecauseemployees had removed and not replaced the guard for a slow-moving gearon theZerand#2that rotatedonly when employees were staging a roll of paperboard on the machine. (Ex. C-75 at Bates 221). 

Proof of Midvale’s violation of the same standardconstitutesprima facieshowing of substantial similarity. The fact the prior violation pertained to an unguarded gear on a different machine does notestablish disparate conditionsor hazards associated with the predicate violationof the same standardand the violationhere. Rather, both violations present a “caught-in” hazardthat could result incrushing or amputation, laceration, or fracture. (T. 235). The evidence supports the Secretary’s classification of the violation as repeated. 

Penalty forRepeatViolation of § 1910.219(f)(1)

In addition to classifying the violation as “repeated,” the Secretary regarded the violation to be“serious”in nature for purposes of formulating a gravity-based penalty. (Ex. C-40at Bates 167; T. 231). The undersigned concurs in the Secretary’s assessment that the gravity of the violationis “moderate,” so that the gravity-based penalty prior to applying a multiplier for a repeat violation and other adjustments based on statutory factors would be $9,239.(Ex. C-40at Bates 168; T. 235-36). The undersigned concurs in doubling that sum to account for the repeated nature of the violation and concurs further in reducing that resulting sum by 60% to account for Midvale’s small size, which includes consideration of Midvale’s financial wherewithal. The undersigned does not concur in increasing that resulting sum by 10% to account for history of the violations, because the doubling of the gravity-based penalty to account for its repeated nature sufficiently addresses this statutory factor. The undersigned concurs with the Secretary’s assessment that no penalty reduction isappropriatefor the “good faith” factor. Accordingly, a penalty of $7,391 will be assessed for therepeatedviolation of § 1910.219(f)(1)in Item4of Citation 3.

D. Powered Industrial TruckTraining§ 1910.178(l)(1)(i)(Repeat Citation 3, Item2)

Item 2 of Citation 3 alleges arepeatviolationofthe training requirementsspecified bythe powered industrial truck standard codified at 29 C.F.R. § 1910.178. The citation item alleges that Midvale violated subparagraph(l)(1)(i)of that standard, whichrequires that employers “ensure that each powered industrial truck operator is competent to operate a powered industrial truck safely, as demonstrated by the successful completion of the training and evaluation specified in this paragraph(l).” Thetrainingprovided must“consist of a combination of formal instruction(e.g., lecture, discussion, interactive computer learning, video tape, written material), practical training (demonstrations performed by the trainer and practical exercises performed by thetrainee),and evaluation of the operator’s performance in the workplace.” § 1910.178(l)(2)(ii). Thetopics that“initial training”must addressareprescribedin subparagraph(l)(3)and include thirteen specific “truck-related topics” and nine specific “workplace-related” topics. §1910.178(l)(3).Employers are permitted to avoid providing “duplicative training”to anemployeewhohasreceivedtrainingelsewhereif the employer determines thatsuch prior trainingis“appropriate”to theemployer’s “truck and working conditions” and the employee “has been evaluated and found competent to operate the truck safely.”§ 1910.178(l)(5). Employers are required tomaintain a certification record“that each operator has been trained and evaluated as required by this paragraph (l).” § 1910.178(l)(6). 

The CO testified thatwhile inspecting the Midvale planton October 18, 2017,he observed employees operating two powered industrial trucks, but he did nottestify to the identities of thoseemployees.(T. 201-02). The CO asked the plant manager Northwood about powered industrial truck training and Northwood showed him a training DVD,a training log that had names of employees reflected(but not a date of training or the identity of the trainer),and an incomplete“Performance Test for Forklift Operators” evaluation form. (Ex. C-32 at Bates 151).

An employee named Vincent Bowers started working at Midvale in May 2017,andMidvale provided him with forklift operator training onNovember7,2017. (Ex. C67). There is no evidencethatBowers, who was aZerandoperator,hadever operated a forklift at Midvale beforeor afterreceiving this training. (Ex. C- 67; T. 108-11, 210). 

The COtestified that on November 9, 2017,he spoke to an employee namedHarveyDawson whotold the CO thathe beentrained onforklift operation sometime before the current inspection, although the CO did not testify to whether Dawson provided any details regardingwhenDawson hadreceived that training or thecontent of that training. (T. 202). 

TheCOservedMidvalewith asubpoena duces tecumonNovember9, 2017,that required Midvale to provide on November 13, 2017,the following material: “Copies of any and all documents containing Midvale’s Powered Industrial Truck (Forklift) Program to include formal instruction, practical training, evaluation, and employee training records, including those stored electronically.” (Ex.C-33; T. 198). In response to the subpoena, Midvale produced a training attendance log indicating that fourteen named employees had received “Forklift Operator Safety Training” on November 7, 2017, a one-page blank 20-question quiz,and a one-page blank 25item “Performance Checklist for Forklift Operators.” (Ex. C-34; T. 203-04).

The only documentation presented in evidence that reflects any forklift trainingprior tothe training provided on November 7, 2017, was forklift trainingthat Midvaleprovidedto nine employeesabout 21 months earlieron January 27, 2016. (Ex. R-40 at 81; Ex. R-12).

The plant manager, Northwood, testified that Midvale hires only experienced forklift drivers and tests them duringa prospective employee’sinterview. Northwood testified that if the interviewed applicant isultimatelyhired,thenon theirfirst dayatwork “we'll spend more lengthy time with them, familiarizingthem with the machine,” and “then normally we'll have one of the other drivers spend some time with them, an hour or so after we've done the initial...training of the person.” (T. 685-86).Northwood testified further that Midvale has training videos andassociatedwritten tests thatitadministers“when time permits.”(T. 686).

The Secretary alleges that Midvale violated § 1910.178(l)(1)(i) on or about October 18, 2017, because employees who were operating Midvale’s two forklifts “had not received equipment specific formal instruction, practical training, or an evaluation as to their ability to safely operate the equipment.”Midvale argues that it was exempted from providing the training required bysubparagraph (l)to its forklift operatorsby the “avoidance of duplicative training” provision of subparagraph (l)(5).(Resp’tBr. 47-48).

Thewhole of theevidence is insufficient to establish that Midvale’s process of assessing the adequacy of the prior training and operational competence ofprospective forklift operatorsduring the employee interview process,and then more fullyevaluating their competence to operate Midvale’s forklifts safely at Midvale’s plantaftersuch a prospective operator ishired,failed tomeet the minimum requirements of the training standard. Northwood’s testimony permits the inference that as part of the interview processfor apositionthat entails operating oneof Midvale’s two forklifts,Midvaleassesses whether prior training that the applicant has received “is appropriatetothe truck and working conditions encountered”at the Midvale plantas subparagraph (l)(5) requires.25If that applicant is hired,thenon theirfirst dayatworkMidvale evaluates the employee’scompetence to operate the forklift safelyat the plant. Such an evaluationand determination of competenceisrequiredunder subparagraph (l)(5)for the employee to be exempt from having to receive theformal instruction,practical training,and evaluationthat would otherwise berequired underparagraph (l).

Aspreviouslynoted, subparagraph (l)(6)of the standard requires an employer tomaintain acertificationrecordthat eachforkliftoperatoris trained and evaluatedas the standard requires. That certificationrecordmustinclude the following information: “the name of the operator, the date of the training, the date of the evaluation, and the identity of the person(s) performing the training or evaluation.” Midvale did not create any such certificationrecordas toany of itsforkliftoperators.However,the Secretaryhasnot allegedthat Midvale violatedthe certificationrecordrequirement ofsubparagraph (l)(6), and so that failure to comply with subparagraph (l)(6) is not adjudicated herein.

While thelackofthe requiredcertificationrecordsissomewhatprobativeonwhetherMidvale’sassessmentofthe previous training thatnewly hiredemployeeshadreceived andMidvale’sevaluation of thosenewlyhiredemployees’competence to operateMidvale’sforklifts at Midvale’s plantsafelymet the requirements of subparagraph (l)(6), the absence ofcertification recordsdoes not conclusively establish that Midvale failed to conduct the assessments and evaluationsin the manner thatsubparagraph (l)(5) requires.Cf.N & N Contractors, Inc., 18 BNA OSHC 2121, 2126-27 (No. 96-0606, 2000)(“If the employer rebuts the allegation of a training violation by showing that it has provided the type of training at issue, the burden shifts to the Secretary to show some deficiency in the training provided”),aff’d, 255 F.3d 122 (4th Cir. 2001).

Theevidenceisinsufficiently weightyto establish by a preponderance that Midvale was noncompliant with the training requirements of§ 1910.178(l)(1)(i)in the manner alleged,soItem 2 of Citation 3isvacated.

E. Eye and Face Protective Equipment§ 1910.133(a)(1)(Repeat Citation 3, Item1)

Item 1 of Citation 3 alleges a repeat violationofthe eye and face protection standard codified at 29 C.F.R. § 1910.133(a), which requires employers to “ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards from...liquid chemicals.” The Secretary alleges that Midvale violated this standard on or about October 18, 2017, when “employees usedliquid chemicals such as but not limited to...Denatured Alcohol and...Acetone on a daily basis to perform activities including cleaning metal plates and rollers” on the printing and die-cuttingmachines (theZerandmachines).

“To establish the applicability of aPPE[personal protective equipment]standard that, by its terms, applies only where a hazard is present,” Secretary must demonstrate that “there is a significant risk of harm and that the employer had actual knowledge of a need for protective equipment, or that a reasonable person familiar with the circumstances surrounding the hazardous condition, including any facts unique to the particular industry, would recognize a hazard requiring the use of PPE.”Wal-MartDistrib. Ctr. No. 6016, 25 BNA OSHC 1396, 1400-01 (No. 08-1292, 2015),aff’d in part and vacated in part on other grounds, 819 F.3d 200 (5th Cir. 2016).

The use of acetone and denatured alcohol at Midvale’s plant presents a significant risk of harm. The safety data sheetsfor these materialsestablish that both acetone and denatured alcoholare “liquid chemicals” within the meaning of the standard and that bothpresent a significant risk of harm. Midvale employees useacetone anddenatured alcohol to clean each of the threeZerandmachines about two or three times each week for about five to ten minutes at a time, first by using acetone to remove adhesive from parts of the machine and then using denatured alcohol to remove the residual acetone. (T. 110; Ex. C-67). Themanufacturer’ssafety data sheet for acetone states thatacute eye contact may cause“serious eye irritation”and “corneal injury” andidentifies the “exposure control/personal protection” for eye protection to be the use of “splash goggles.” (Ex. C-48 at 7, 8& 11). Themanufacturer’ssafety data sheet for the denatured alcohol includes the precautionary statement to wear “eye protection/face protection,”cautionsthat bothacuteskincontactand eye contact “may cause irritation,” andstatesthat “chemical splash goggles should be worn to prevent eye contact.” (Ex. C-48 at 15, 16 & 19).26

Midvale hadbothactualand constructiveknowledgeof the need forthe wear ofeye or face protection whenemployeescleanedtheZerandmachinesusingacetone and denatured alcohol. As to actual knowledge, asupervisory employee, Charles Thorne, testified that the prescribed procedure for cleaning theZerandmachines includes wearing “safety glasses aswell as gloves in order to, you know, protect your hands and your eyes” from the acetone. (T. 625). As to constructive knowledge,thesafety data sheets for those materialsestablish thatareasonable person familiar with the circumstances surrounding theuse of acetone and denatured alcohol to clean the machineswould recognize thatahazardrequiring the use of eye or face protectionexists. The cited standard applies to the activity of cleaning theZerandmachines using acetone and denatured alcohol.

Midvale did not comply with the cited standard. An employee named Jose Cordero had been employed by Midvale for twenty years,andhis jobis tooperate aZerandmachine. Cordero told the CO thatwhen cleaning theZerandmachine using acetone and denatured alcohol thathe wearsvinyl glovesbutdoesnotwearsafety glasses or a face shield. (Ex. C-67). Another employee,Vincent Bowers, who started working at Midvale in May 2017 and who also operated aZerandmachine, told the CO he wearsrubber gloves whencleaning the machine with acetone and denatured alcoholbut doesnot wear safety glasses or a face shield.(Ex. C-67). There was no evidence controverting thesignedstatementsofCordero and Bowers, and they are sufficient toestablishby a preponderance of the evidence that Midvale did not comply with the cited standard. Their statements similarly establish that Midvaleemployees were exposed toahazardthatcompliance with the cited standard would have prevented.

Midvale had both actual and constructive knowledge of the violative condition. It is reasonably inferable that Midvale had actual knowledge thatitstwenty-year employee,Mr.Cordero,habitually did notweareye or face protection when cleaningtheZerandmachinewith acetone and denatured alcohol. The same reasonable inference arises fromplant manager Northwood’sresponse tothe CO’squestion about whether goggles were available to employeeswho handledacetone. According to the CO, Northwood said to him:“[H]owcould it be my fault, my problem, if the manufacturer just put this label on the side of thecan; that's just there only for liability purposes, so I don't see why we have to comply with such a thing because it's just there because some manufacturer wanted to just put that on the side oftheir can.”(T. 398-99).Northwood’s rejoinderto the CO’s questionsupports the reasonableinference that Northwood had actual knowledgethat employees did not use eye or face protection when cleaning with the acetone and denatured alcohol. His actual knowledge is imputable to Midvale. Am. Eng’g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012)(noting that knowledge may be imputed to the employer through its supervisory employee).

A preponderance of theevidence also establishes that Midvale had constructive knowledgethat employees did not use eye or face protection while cleaning with acetone and denatured alcohol. N&N Contractors, Inc., 18 BNA OSHC 2121, 2122 (No. 96-0606, 2000)(ruling that to establish constructive knowledge, the Secretary must show that the employer, with the exercise of reasonable diligence, could have known of the violative condition),aff'd, 255 F.3d 122 (4th Cir. 2001).Midvale’s owner and president, David Frank, testified that Midvale maintains “eye guards” at the plant and that employees are instructed “to wear them...where applicable.” (T. 527). He testified further that when an employee fails to wearPPEwhen required that “[w]e tell them to put it on,” but that if an employee repeatedly fails to wear required PPE, Midvale does not discipline the employee further. Mr.Frankexplained:

If we were to put in place a disciplinary action that led to dismissal, between our high absentee rate in the factory, we would—we wouldprobably have half our work force.On top ofwhich, it takes time to train these people.Sowe cannot afford, from a production standpoint, to not work with these people and ask them, when we see them not wearing protective gear, to put it on.(T. 528).

This testimony of Midvale’s presidentis indicative ofa companyethosthatexaltsproduction over safety requirements. Thiscannot be countenanced.Worldwide Mfg., Inc., 19BNA OSHC1023,1024-25(No. 97-1381, 2000)(commenting that an“attitude of sacrificing employee safety for the sake of production is completely contrary to the intent of the Act”). Similarly,effectively shiftingcompleteresponsibility for complying with work rulesto employees isanuntenableapproach to workplace safety.See Brown & Root, Inc., 7 BNA OSHC 2074 (No. 16162, 1979) (“The Act ... places final responsibility for compliance on the employer,” and so an“employer cannot shift this responsibility to an employee by a work rule that is not effectively communicated and enforced.”).Midvale’snear non-existent effortstoenforce thework rulethat employeeswear eye or face protection when cleaning the machines with acetone and denatured alcoholreflect a failure to exercise reasonable diligence.N&N Contractors, Inc, 18 BNA OSHCat 2124(findingconstructive knowledge where employer knew that employees routinely violated its work rule).

The great weight of the evidence establishes that Midvale violated the cited standard in the manner alleged.

The violation is properly classified as repeated. Midvale violated the same standard in connection with inspection number 1066769, which became a final order on June 19, 2017. (T. 11; Ex. C-1 at 7 & 23). Thisprima facie showing ofsubstantial similarity andisnotrebutted by evidence of disparate conditions and hazardsbetween the two violationsand establishes the violation as repeated. PotlatchCorp., 7 BNA OSHCat1063. 

The maximum penalty for a repeat violation in connection with the inspection here is$129,336. 29 C.F.R. § 1903.15(d)(2) (2018). In addition to classifying the violation as “repeated,”the Secretary regarded the violation to be“serious”in nature for purposes of formulating a proposed gravity-based penalty. (Ex. C-30 at Bates 138; T.400-01). The undersigned concurs in the Secretary’s assessment that the gravity of the violation is “moderate,”based on determinations that the severity ofaninjury resulting from the violation was “high”27and the probability ofsuch aninjury was “lesser.”Based on those assessments, thegravity-based penalty prior to applying a multiplier for a repeated violation andapplyingother adjustments based on statutory factors was$9,239.(Ex. C-30at Bates138-39; T.400-01). The undersigned concurs in doubling that sum to account for the repeated nature of the violations and concurs further in reducing that resulting sumby 60% to account for Midvale’s small size, which includes consideration of Midvale’s financial wherewithal. The undersigned does not concur in increasing that resulting sum by 10% to account for history of the violations, because the doubling of the gravity-based penalty to account for its repeated nature sufficiently addresses this statutory factor. The undersigned concurs with the Secretary’s assessment that no penalty reduction isappropriatefor the “good faith” factor. Accordingly, a penalty of $7,391isassessed for the violation of § 1910.133(a)(1)forItem1of Citation 3.

F. Hazard Communication Standard–§§ 1910.1200(e)(1),1910.1200(h)(1), &1910.1200(f)(6)(Repeat Citation 3, Items6a, 6band6c)

In repeat Citation 3, theSecretary allegesthree violations, grouped for penalty purposes,of thehazard communication standard (HCS), codified at 29 C.F.R. § 1910.1200, “Hazard Communication.”Grouped items6a, 6b, and 6c of the citationallegerespectivelyviolationsof subparagraphs(e)(1), (h)(1),and(f)(6)of the HCS. 

Item 6a alleges Midvale violated subparagraph (e)(1) on or about October 18, 2017, in that it had not implemented and maintained “at the workplace a written hazard communication program which describes how the criteria specified in 29 CFR 1910.1200(f), (g), and (h) will be met.”

Item 6b alleges Midvale violated subparagraph (h)(1) on or about October 18, 2017, in that it had not provided “effective information and training on hazardous chemicals to employees in their work area at the time of their initial assignment and whenever a new hazard that the employee had not been previously trained about was introduced into their work area.”

Item 6c alleges Midvale violated subparagraph (f)(6) on or about October 18, 2017, in that it had not ensured containers of a hazardous chemical identified as “SF Midvale Pizza 75 Red-CCNB,” which is an ink that is used to print on paperboard, “were labeled, tagged, or marked with the information specified under paragraphs (f)(6)(i) through (f)(6)(ii).”

The cited and other relevant provisions of the HCS at § 1910.1200provideas follows:

(e)Written hazard communication program.(1)Employers shall develop, implement, and maintain at each workplace, a written hazard communication program which at least describes how the criteria specified in paragraphs (f), (g), and (h) of this section for labels and other forms of warning, safety data sheets, and employee information and training will be met, and which also includes the following:

(i)A list of the hazardous chemicals known to be present using a product identifier that is referenced on the appropriate safety data sheet...

* * *

(f)Labels and other forms of warning—(1)Labels on shipped containers.The chemical manufacturer, importer, or distributor shall ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged, ormarked[,] ... [on which]the following information shall be provided:

(i)Productidentifier;

(ii)Signalword;

(iii)Hazard statement(s);

(iv)Pictogram(s);

(v)Precautionary statement(s);...

(6)Workplace labeling.Except as provided in paragraphs (f)(7) and (f)(8) of this section, the employer shall ensure that each container of hazardous chemicals in the workplace is labeled,taggedor marked with either:

(i)The information specified under paragraphs (f)(1)(i) through (v) of this section for labels on shipped containers; or,

(ii)Product identifier and words, pictures, symbols, or combination thereof, which provide at least general information regarding the hazards of the chemicals, and which, in conjunction with the other information immediately available to employees under the hazard communication program, will provide employees with the specific information regarding the physical and health hazards of the hazardous chemical.

* * *

(g)Safety data sheets.(1) ...Employers shall have a safety data sheet in the workplace for each hazardous chemical which they use....

(8)The employer shall maintain in the workplace copies of the required safety data sheets for each hazardouschemical, andshallensure that they are readily accessible during each work shift to employees when they are in their work area(s)....

* * *

(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.

(2)Information.Employees shall be informed of:

(i)The requirements of thissection;

(ii)Any operations in their work area where hazardous chemicals are present; and,

(iii)The location and availability of the written hazard communication program, including the required list(s) of hazardous chemicals, and safety data sheets required by this section.

(3)Training.Employee training shall include at least:

(i)Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted by the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released, etc.);

(ii)The physical, health, simple asphyxiation, combustible dust, and pyrophoric gas hazards, as well as hazards not otherwise classified, of the chemicals in the workarea;

(iii)The measures employees can take to protect themselves from these hazards, including specific procedures the employer has implemented to protect employees from exposure to hazardous chemicals, such as appropriate work practices, emergency procedures, and personal protective equipment to be used; and,

(iv)The details of the hazard communication program developed by the employer, including an explanation of the labels received on shipped containers and the workplace labeling system used by their employer; the safety data sheet, including the order of information and how employees can obtain and use the appropriate hazard information.

Midvale had previouslybeen cited forviolatingeach of thesubparagraphs of the HCScited herein connection withOSHA inspectionnumber1081074, whichhad beenconducted in July2015. Midvale accepted thosethreecitation items in a formal settlement agreement,whichbecameafinal order on January 28, 2016. (T. 460;Exs. C-73 and C-77).

To abate the violation of subparagraph (e)(1) thathadbecome a final order in January 2016, Midvale developed and implemented awrittenhazard communication program(HCP). The writtenHCPidentified Mr. Frank, thepresident of Midvale, as theProgramAdministrator (Ex. R-40 atBates 298), andassignedhimthe followingprogramresponsibilities:

·Compile and maintain an“inventory list”of hazardous chemicalsused by Midvale employees as required by subparagraph (e)(1)(i) of the HCS.(Ex. R-40 atBates 299-300).

·Ensurethat “all program elements and training are carried out,”such trainingincluding“initial training on the [HCS] and [Midvale’s HCP] before starting work,”annual training for all employees,andtrainingeach new employeeina“health and safety orientation” on the HCS and Midvale’s HCP, withallsuch training to include the elements specified in subparagraph (h)(1) of the HCS, andproviding furtherthatalltraining“be documented and kept on file.”(Ex. R-40 atBates 301 & 303).

·“[V]erifythat all containers of classified hazardous chemicals in the workplace are clearly and prominently labeled”toreflect information required to be on thecontainerlabelsby subparagraph (f)(6) of the HCS.(Ex. R-40 atBates 299).

Midvale provided the specified training to sixteen employees on March 3 & 4, 2016. (Ex. R-40 at Bates 304-05; T. 316). Midvale did not provide training in the HCS oritsHCP toany employees who were hired after that March 2016training, most if not all of whom worked in areas of the plant where hazardous chemicals were present. (Ex. C-45 at Bates 191-92, 198-99;C-67atBates 459; Ex. C-56 at Bates437 &441; T.423-24). Those employeeswho started working at Midvale after thetraining that was provided inMarch2016did not receive hazard communicationtraininguntil November7, 2017.(T. 201;Ex. C-45 at Bates 191-92, 198-99; C-67 at Bates 459; Ex. C-56 at Bates 441; T. 423-24).

Midvale did not develop a list of hazardous chemicalsthat arepresent in Midvale’s workplace as its HCP specified and as subparagraph (e)(1)(i) of the HCS requires. (T.416, 419). Consequently, the training and information provided to the employees in March 2016 did not include information regarding “the location and availability of ...the required list(s) of hazardous chemicals”thatsubparagraph (h)(2)(iii) of the HCSrequires to be provided to employees.

One of the hazardous chemicalsin use at Midvale isan inknamed“SF Midvale Pizza 75 Red-CCNB”thatcontainsthe hazardous chemical propylene glycol andthatismanufactured andsupplied to Midvale by J.M.Fry Company.(Seesafety data sheet,Ex. C-48at24-28).The ink came from the manufacturer inanappropriately labeled55-gallon drum. Midvale employeesdispensedtheinkfrom the druminto unlabeledfive-gallon plastic bucketsandwould thenplace thosebucketscontaining the inkat various spots in the plantfor eventualdispensinginto theZerandmachines. (T.425-27; Ex. C-45 at Bates 203; Ex. C-56 at Bates441).

Three GroupedHCS ViolationsProven

The HCS applies because Midvale employees are exposed to the following hazardous chemicals in performing their jobs at Midvale’s plant: acetone, denatured alcohol, and the propylene glycol contained in the ink named “SF Midvale Pizza 75 Red-CCNB.” (Exs. C-48, C-56at Bates 441,C-67at Bates 454 & 459). 

Item 6a.Even though Midvale developed an HCPin 2016as required by subparagraph (e)(1) of the HCS, the evidence established that it failed to fully“implement” and“maintain”thatprogramassubparagraph (e)(1) also requires(and as citation item 6a alleges). Midvale never developedthe“list of hazardous chemicalsknown to be present”in the workplacethat subparagraph (e)(1)(i) requires. And while Midvale provided the training that subparagraph (e)(1)requireswhen it developed the HCP in early 2016, Midvale did not thereafter provide required training to any employeeswho were hired after that training was provided untilNovember 7, 2017. Midvale had actual knowledge of the violative condition in that Midvale’spresident was the Program Administrator andwasresponsible for managing the HCP and maintaining all records “including reviewing and updating[the HCP]as necessary and facilitate training.” (Ex. R-40 at Bates 298). The alleged violation of subparagraph (e)(1) is proven.

Item 6b. As noted in the preceding paragraph, Midvale did not train newly hired employees that subparagraph (h)(1) requires to be trained before the employeebegan working in areas where hazardous chemicalswere present. Midvale had actual knowledge of the violative condition becauseMidvale haddesignateditspresidentto bethe individual responsible forensuring that required training was carried out. The alleged violation of subparagraph (h)(1) is proven.

Item 6c. The five-gallon plasticpailsinto which employeesdispensed the ink containing the hazardous chemical propylene glycol and which employeesset outin various locationsin the plant for eventual dispensing intothe threeZerandmachines were not labeled as required by subparagraph (f)(6),and thusMidvale did not comply with the cited standard. Midvale employees who handled or worked in the vicinity of the unlabeled buckets were exposed to the violative condition. Midvale’s plant manager, Mr. Northwood, had actual knowledge of the violative condition and his knowledge is imputable to Midvale. (T. 424). The alleged violation of subparagraph (f)(6) is proven. 

Classifications and Penalty for Grouped HCS Violations

Each of the three violations is properly classified as repeated. As described above, Midvale violated the same standards arising out of violations identified by inspection number 1081074, which became a final order on January 28, 2016. (T. 460;Exs. C-73 and C-77). This prima facie showing of substantial similarity for each of the three violations is not rebutted by evidencethatthe prior violations involveddisparate conditions and hazardsand establishes the three violations as repeated. PotlatchCorp., 7 BNA OSHC at 1063. 

The maximum penalty for a repeat violation in connection with the inspection here is $129,336. 29 C.F.R. § 1903.15(d)(2) (2018). In addition to classifying the violationsas “repeated,” the Secretary regardedeachviolation to be “serious” in nature for purposes of formulating asingleproposed gravity-based penalty. (Ex. C-30 at Bates 138; T. 400-01). 

The undersigned concurs with the Secretary’s determination to group the three HCSviolationsand assess a single penalty forall. (T. 433).See Miniature Nut and Screw Corp., 17 BNA OSHC 1557, 1559-60 (No. 93-2535, 1996) (combining penalties for items involving violations of separate components of a hearing conservation program). The undersigned concurs further in the Secretary’s assessment that the gravity of the violationsof subparagraphs (e)(1) and (h)(1)was “moderate” and the gravity of the violation of subparagraph (f)(6)was “low.”(Ex. C-45at Bates187;Ex. C-15 at Bates 93; T. 429-33).In view of the interrelatedness of the “low” gravity violation to the two “moderate” gravity violations, the undersigned concurs in the Secretary’s proposedgravity-based penalty for thethreegrouped violationsat$9,239.The undersigned concurs in doubling that sum to account for the repeated nature of the violations and concurs further in reducing that resulting sum by 60% to account for Midvale’s small size, which includes consideration of Midvale’s financial wherewithal. The undersigned does not concur in increasing that resulting sum by 10% to account for history of the violations, because the doubling of the gravity-based penalty to account for its repeated nature sufficiently addresses this statutory factor. The undersigned concurs with the Secretary’s assessment that no penalty reduction isappropriatefor the “good faith” factor. Accordingly, a penalty of $7,391 will be assessed for thethree groupedviolationsofthe HCS.

G. Design Safety Standards for Electrical Systems–§§1910.305(b)(1)(ii),1910.303(f)(2)&1910.304(f)(1)(viii)(SeriousCitation1, Items1a, 1b, & 1c)

In serious Citation 1, the Secretary alleges three violations, grouped for penalty purposes, of the design safety standards for electrical equipment, codified at 29 C.F.R. § 1910.302—.308. All three violations relate toalleged deficiencies inanelectricalpanelboardthat is housedadoorless metalcabinetthat is in plain viewmounted on theeastwallof the plant’s “in-process” room.(T. 47; Ex. C-6 at Bates 70). Employees work in this room to operate the“windowbox” machine,a shredder,a shrink-wrap machine, and a conveyor. (T. 47-48). Employees also pass through this room when moving between the room where theZerandmachines are located (the printing and die cutting department) and the room wheremost ofthe gluers are located (the finishing department). (T.47-48). Themetalcabinetisshown in the photographatExhibit C-7,which the CO tookduringhis inspection.The panelboardhasseven circuit breakerswitches,fiveof which areblue-colored15-ampswitchesand twoof which are orange-colored20amp switches. One of the15-ampswitchescontrolselectricityto the overhead fluorescent lighting in the room, and employees operate that switch dailytoswitch the room’s lights on and off. (T. 48-49).

GroupedItems1a,1b, and1c of the citation allege respectively violations of§§1910.305(b)(1)(ii), 1910.303(f)(2) & 1910.304(f)(1)(viii).

Item1a -- § 1910.305(b)(1)(ii)

Section 1910.305(b)(1)(ii)provides: “Unused openings in cabinets, boxes, and fittings shall be effectively closed.” Item 1a of Citation 1 allegesMidvale violated this standard on October 18, 2017, “when employees turned fluorescent lights on or off by cycling circuit breakers located in an energized electrical panel with an opening.” 

There was an openinginbetween two of the15-amp circuit breakers. The openingwasabout four incheswideand two incheshigh, which are the dimensions of a normal circuit breaker. (T. 49;Ex. C-6 at Bates69;Ex. C-7). The opening itself was about 64 inches above floor level. (Ex. C-6 at Bates69).Employees were exposed to the live electrical supply into thecabinetwhen operatingthecircuit breakers, and they couldsustain burns in an electrical incident(i.e., arc flash)or shock from negligent or inadvertent contact with live parts inside the cabinet. (T. 51; Ex. C-6 at Bates 69).

The citedstandard applies to the cabinet depicted in the photograph in Exhibit C-7. The opening in the cabinet between two blue switches depicted in that photograph is violative of the standard. Employees were exposed to the violative condition when operating switches on thedoorlesscabinet, one of which wasswitched on and offat least once dailybecause it controlled the overheadflorescentlighting in the room, which was essential to providing adequate lighting. (Ex. C-6 at Bates 69-70; T. 60).Two of Midvale’s managers, Northwood andDellaperuto,regularlyoperated the switch that controlled theoverhead fluorescentlights. (T. 48-49; Ex. C-6 at Bates 69-70). It wouldhave beenimpossiblefor those managersnot tohaveseenthe opening in the cabinet when operating thecircuit breakerthat controlled the lights,andso both managers had actual knowledge of the violative condition. Midvale violated § 1910.305(b)(1)(ii)as alleged in Item 1a. 

The violationis appropriately classified as serious. A violation is “serious” if there was a substantial probability that death or serious physical harm could result from the violative condition. 29 U.S.C. § 666(k);Consol. Freightways Corp., 15 BNA OSHC 1317, 1324 (No. 86–351, 1991).“This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result if an accident does occur.” Oberdorfer Indus. Inc., 20 BNA OSHC 1321, 1330-31 (No. 97-0469, 2003) (consolidated) (citation omitted).

The violative conditionhere was “serious”becauseanemployee couldsuffer electrical burns in the event of anelectrical incident. (T. 51).Also, thenegligent or inadvertent insertion offingers or a conductive instrument into the openingcould result inelectrical shock. (Ex. C-6 at Bates 69).

Item1b-- § 1910.303(f)(2)

Section 1910.303(f)(2) provides:“Each service, feeder, and branch circuit, at its disconnecting means or overcurrent device, shall be legibly marked to indicate its purpose, unless located and arranged so the purpose is evident.” Item 1b of Citation 1 alleges thatthepanelboard was violative of this standard because “employees operated equipment that was protected bycircuit breakers that were not marked to indicate their purpose.” 

The circuit breakerscontrol electricity to electrical outletsand theflorescentlighting in the in-process room. (T. 59). But none ofthe seven circuit breakers bore any markings to indicatewhich electrical outlet, etc.the circuit breaker powered. (Ex. C-10; Ex. C-6 at Bates75;T.57). Moreover, it was not self-evident from the location or arrangement of the circuit breakers what the purpose of anyof themwas. (Ex. C-6 at Bates 75;Ex. C-10).

The cited standard applies to the circuit breakers, in that eachconstitutesan “overcurrent device” as thattermisdefined in § 1910.399.The circuit breakers were violative of the cited standard because they were neither marked to indicate their purpose, nor were they located or arranged in such a manner that their purpose was evident. Employees had access to the violative condition in that the circuit breakers supplied electricity to electrical outlets and the lighting fixtures in the room where employeesregularlyoperatedequipmentthat received electricity through the cabinet that housed the circuit breakers. The actual knowledge of the violative condition by Midvale managers (Northwood andDellaperuto) is imputed to Midvale. Midvale violated § 1910.303(f)(2) as alleged in Item 1b. 

The violation is properly characterized as serious. If some incident occurred that required turning off a circuit breaker, there is a possibility that the incorrect circuit breaker could be shut off with potentially calamitous results depending on what that erroneous circuit breaker controlled. (T. 55; Ex. C-6 at Bates 75). 

Item1c-- § 1910.304(f)(1)(viii)

Section 1910.304(f)(1)(viii) provides:“Circuit breakers used as switches in 120-volt and 277-volt, fluorescent lighting circuits shall be listed and marked‘SWD.’” Item 1cof Citation 1 alleges thatthecircuit breaker that controlled theroom’soverheadflorescentlightingwas violative of this standard becauseit was notmanufactured as an SWD circuit breaker in that it lacked themanufacturer’sembossedmarking“SWD.”Such amarkingsignifies that the circuit breaker isdesigned andmanufactured to be used for“switching duty,”which is to say that itis designed and manufactured to withstandfrequent on/off cyclesand isless likely to fail than non-SWD switches under frequent use. (Ex. C-6 at Bates 81; T. 59-61).

The cited standard appliesbecause a circuit breaker switch was usedfor switching dutyto control the florescent lights in the in-process room. Midvale was non-compliant with the standard because the circuit breaker used to control the florescent lights in the roomwas a non-SWD circuit breakerand was not marked “SWD”. Employees were exposed to the violative condition because the non-SWD circuit breaker was useddailytoswitchthe florescent lights in the room on and off. Northwood andDellaperutohad actual knowledge of the violative condition in thatbothused the circuit breaker toswitchthe lights on and off, and their actual knowledge is imputed to Midvale. Midvale violated § 1910.304(f)(1)(viii) as alleged in Item 1c.

The violation is properly characterized as serious.The failureofthenon-SWDcircuit breaker could result initfailing to trip asit isdesignedto doin an overcurrent situationand resulting in an electrical incident.(Ex. C-6 at Bates 76)

Penalty forCitation 1,GroupedItems 1a, 1b, &1c

The undersigned concurs with the Secretary’s determination to group the three violations involving deficiencies in the electrical cabinet in the in-process room.(T. 52-53).The undersigned concurs further in the Secretary’s assessment that the gravity ofeach of theviolationsis “moderate,”fora resulting gravity-based penalty of $9,239.(Ex. C-6;T. 51).The undersigned concursfurther in reducing thatfigureby 60% to account for Midvale’s small size, which includes consideration of Midvale’s financial wherewithal,in increasing that figure by 10% to account for history of prior violations, and in allowing no reduction for good faith. Accordingly, the undersigned concurs in the Secretary’s proposed penalty $4,065 for thethree groupedviolationsin Citation 1, Items 1a, 1b, and 1c. 

H. Design Safety Standards for Electrical Systems–§§1910.305(b)(2)(i) & 1910.305(g)(1)(iv)(A)(Repeat Citation 3, Items5band5c)

Items 5b and 5c ofrepeat Citation 3 allege violations of § 1910.305, which pertains to design safety standards for electrical equipment.28

Item 5b -- § 1910.305(b)(2)(i)

Item 5b alleges two instances of a violation of § 1910.305(b)(2)(i) whichrequires in pertinent part that “junction boxes ... be provided with coversidentified for the purpose.” Item 5b alleges Midvale violated this standard in two instances. Instance 1identifies“an uncovered conduit outlet body” on Gluer #2 that was 28 inches above floor level. Instance2similarlyidentifiesan “uncovered conduit outlet body,” this one on Gluer #3 that was26 inches above floor level.

The open conduit outlet body on Gluer #2 is accurately depicted in the photograph at Exhibit C-44. That photograph showsthe coverofthe metallic conduitoutletbodyopened,with onewire with red-colored insulation and a second wire withblack-coloredinsulationprotruding out of theuncovered conduit outletbody. There is a wire nut on eachwire, each of whichalso protrudes. (T. 246). 

Theuncoveredconduit outlet body on Gluer #3 is accurately reflected inavideoexhibit (Ex.C-23,atthe2'24"mark),whichdepicts an exposed wirewith red-colored insulationslightly protruding from theconduit outletbodythat is lackingacover. (T. 243-44).

The CO took both the photograph and the video during his inspection. Both conduitoutletbodiesare components of energized 120-volt circuits and areattached to theframes of the respectivegluersalong aislesin the plant that areabout 40 incheswide andthat employeesnavigate regularly inperforming their ordinary duties. (T. 195, 243-44; Ex. C-23; Ex. C-41 at Bates 178).

The two outlet bodies are a type of junction box and thus the cited standard applies and requires that theybe covered. The photographic and video evidence establishes non-compliance with the standard, and their location along frequently traveled aisles or paths establishes employee access to the violative conditions. Plant manager Northwood told the CO that the outlet bodies had likely been uncovered formore than sixmonths at the time of the inspection. Theuncoveredconduitoutletbodies were in conspicuous locationsin plain viewsituated onaislesthatMidvale supervisorsnavigateddaily. Thosesupervisors had either actual or constructive knowledge of the violative conditionsthat is imputable to Midvale.The great weight of the evidence establishes that Midvale violated the cited standard in the manner described in the two instances alleged in Item 5b of Citation 3.

Item 5b is properly classified as a repeat violation. Midvale had violated the same standard in connection with citations issued following inspection numbers 954509 and 1066769,and those prior violationsbecame final orders respectively on February 20, 2014,and June 19, 2017. (Ex. C-71at 1 & 11; T. 459; T. 11; Ex. C-1 at 20 & 24). This prima facie showing of substantial similarity is not rebutted by evidencethat the prior violations involveddisparate conditions and hazards. PotlatchCorp., 7 BNA OSHC at 1063. The violation identified in Item 5b is properly classified as repeated.

Item 5c-- § 1910.305(g)(1)(iv)(A)

Item 5c alleges a violation of § 1910.305(g)(1)(iv)(A), whichproscribes (subject to certain exceptions not applicable here)the use offlexible cords and cablesas “a substitute for the fixed wiring of a structure.” Item 5c alleges that Midvale violated this standardby using aflexiblecord to energizetwo motors that powered abelt-driven conveyor systemassociated with the “windowbox” machine in the plant’s in-process room.

The extension cordidentified inItem 5cisaccurately depicted in the photograph atExhibit C-43, which the CO took during the inspection.(T. 248-49). The female end of the extension cord issuspended in mid-airabout eight inches above floor level underneath a curved roller conveyorand about one foot from a wood palleton the floor. There appear to beabout 15 to 20 feetofunorganizedexcess cordlyingon the floorbeneath the curved roller conveyorand next to the wooden pallet. (Ex. C-41 at Bates 184).From the excess cord on the floor,the cord rose vertically for about twelve feet, was wound two times around a plastic pipe, wasthendraped over a metal pipe, and then dropped vertically down an I-beam where themale endwas plugged into a receptacle outlet that wasabout five feet above floor level.(Ex. C-41 at Bates 184). The plant manager,JohnNorthwood,configured this usage of theflexiblecord about two years earlier when he personallyinstalled the conveyor system. (T. 249;Ex. C-41 at Bates 185). Employees regularlywalked near the palletandwithin a foot of thesuspendedfemale end and the excess cordlyingon the floorunderneath itwhileperforming routine work activities. (T. 250). 

The cited standardapplies andprohibitsthe use oftheflexiblecordto energizethetwo motors that powered the belt-driven conveyorthat had been installed about twoyears earlier. Midvale’s use oftheflexiblecord as a substitute for fixed wiring for the conveyor belt systemwas violative of the cited standard. Employees worked in the in-process room where the violative condition was located and from time to time came within a foot of theviolative condition. Midvale had actual knowledge of the violative condition because the plant manager had set it up when he installed the conveyor system two years before the inspection. Midvale violated the cited standard in the manner alleged in Item 5c of Citation 3.

Item 5c of Citation 3 is properly classified as a repeat violation. Midvale had violated the same standard in connection withacitation issued following inspection number 994212, which became a final order on December 8, 2014. (Ex. C-20 at 10 & 13). Midvale violated the same standard a second time in connection with inspection1066769,which became afinal order on June 19, 2017. (T.251; T. 11; Ex.C-72 at 1-3; Ex.C-1 at18& 24). This prima facie showing of substantial similarity is not rebutted by evidencethat the prior violations involved disparate conditions and hazards. PotlatchCorp., 7 BNA OSHC at 1063.The violation identified in Item 5c is properly classified as repeated.

Penalty for Grouped Violations of § 1910.305

The maximum penalty for a repeat violation in connection with thecitationhere is $129,336. 29 C.F.R. § 1903.15(d)(2) (2018). In addition to classifying the violationsas “repeated,” the Secretary regardedeachviolation to be “serious” in nature for purposes of formulating asingleproposed gravity-based penalty. (Ex. C-41).

The undersigned concurs with the Secretary’s determination to group the threeoriginalcitation items allegingviolationsthe design safety standards for electrical equipment, one of which the Secretary has now withdrawn, and assessing asingle penalty forall.See Miniature Nut and Screw Corp., 17 BNA OSHC 1557, 1559-60 (No. 93-2535, 1996) (combining penalties for items involving violations of separate components of a hearing conservation program). The undersigned concurs further in the Secretary’s assessment that the gravity of theestablishedviolationsis “low”based on assessments that the severity of possible injury was “low”,and the probability of injury was “lesser” for both proven violations. (Ex. C-41).The undersigned therefore concurs in theSecretary’s proposedgravity-based penalty foreach of the two established violations at $5,543. (Ex. C-41 at Bates175 &181). The undersigned concurs inapplying a multiplier of five to that figureto account for themultiple prior violations ofboth citedstandardsand concurs further in reducing that resultingfigureby 60%to $11,086to account for Midvale’s small size, which includes consideration of Midvale’s financial wherewithal. The undersigned does not concur in increasing that resulting sum by 10% to account forMidvale’shistory ofviolations, because thequintupling of the gravity-based penalty to account for its repeated nature sufficiently addresses this statutory factor. The undersigned concurs with the Secretary’s assessment that no penalty reduction isappropriatefor the “good faith” factor. Considering that the Secretary withdrew one of the three grouped items originally alleged in Citation 3 and considering further that this withdrawn item involved a differentallegedviolative condition involvingdifferent equipment, this figure is reduced by one-third. Accordingly, a penalty of $7,391 will be assessed for thetwogroupedviolationsrepresented by Items 5b and 5c of Citation 3.

ORDER

The foregoing decision constitutes findings of fact and conclusions of law in accordance withCommission Rule 90(a)(1). 29 C.F.R. § 2200.90(a)(1). Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1.As toSeriousCitation 1:

a.Item 1a, alleging aSeriousviolation of 29 C.F.R. § 1910.305(b)(1)(ii),is AFFIRMED as aSerious violation.

b.Item 1b, alleging aSeriousviolation of 29 C.F.R. § 1910.303(f)(2),is AFFIRMED as aSerious violation.

c.Item 1c, alleging aSeriousviolation of 29 C.F.R. § 1910.304(f)(1)(viii),is AFFIRMED as aSerious violation.

d.A penalty of $4,065isASSESSEDfor grouped Items 1a, 1b, and 1c.

2.As toWillfulCitation 2:

a.As toItem 1a, allegingaWillful violation of29 C.F.R. § 1910.147(c)(4)(i):

i.Instance 1 (pertaining to Gluers #1, #2 & #5 [the “FZ Gluers”]), having not been proven, is VACATED. 

ii.Instance 2 (pertaining Gluers #3 & #4 [the “KH Gluers”]), having not been proven as to Gluer #4, and having beenproven as to Gluer #3but that proven violation being duplicative ofthe violation proven for Citation 2, Item 2, Instance 3, is VACATED.

iii.Instance3 (pertaining to the “Window Machine Model 5A”)is AFFIRMED as a Serious violation.

iv.Instance4 (pertaining to theZerandmachines),havingnot been proven as toZerand#1 and #3, andhaving been proven as toZerand#2 but that violation being duplicative of the violationsproven for Citation3, Items3a and 3b, isVACATED.

b.Item 1b, alleging aWillful violation of 29 C.F.R. § 1910.147(c)(7)(i),is AFFIRMED as aSerious violation.

c.A penalty of $6,881isASSESSEDfor grouped Items 1a and 1bof Citation 2.

d.As toItem 2,alleging aWillful violation of § 1910.219(c)(2)(i):

i.Instance 1(pertaining to Gluer #1) and Instance 3 (pertaining to Gluer #3)areAFFIRMED asaWillful violation.

ii.Instance 2 (pertaining to Gluer #2),Instance 4 (pertaining to Gluer #4),and Instance 5 (pertaining to Gluer #5), having not been proven,areVACATED.

e.A penalty of $30,000 isASSESSEDfor Item 2of Citation 2.

3.As toRepeatCitation 3:

a.Item 1, alleging aRepeat violation of 29 C.F.R. § 1910.133(a)(1),is AFFIRMED as aRepeat violation and a penalty of $7,391 is ASSESSED.

b.Item 2, alleging aRepeat violation of 29 C.F.R. § 1910.178(l)(1)(i), having not been proven, is VACATED.

c.Item 3a, alleging aRepeat violation of 29 C.F.R. § 1910.219(d)(1),is AFFIRMED as aRepeat violation.

d.Item 3b, alleging aRepeat violation of 29 C.F.R. § 1910.219(e)(1)(i),is AFFIRMED as aRepeat violation.

e.Item 3c,alleging a Repeat violation of 29 C.F.R. § 1910.219(f)(3),having been withdrawn by the Secretary, is VACATED. 

f.A penalty of $7,391 isASSESSEDfor grouped Items 3a and 3bof Citation 3.

g.Item 4, alleging aRepeat violation of 29 C.F.R. § 1910.219(f)(1),is AFFIRMED as aRepeat violation and a penalty of $7,391 isASSESSED.

h.Item 5a,alleging a Repeat violation of 29 C.F.R. § 1910.303(b)(2),having been withdrawn by the Secretary, is VACATED.

i.Item 5b, alleging aRepeat violation of 29 C.F.R. § 1910.305(b)(2)(i) is AFFIRMED as aRepeat violation.

j.Item 5c, alleging aRepeat violation of 29 C.F.R. § 1910.305(g)(1)(iv)(A) is AFFIRMED as aRepeat violation.

k.A penalty of $7,391 isASSESSEDfor grouped Items 5b and 5cof Citation 3.

l.Item 6a, alleging aRepeat violation of 29 C.F.R. § 1910.1200(e)(1),is AFFIRMED as aRepeat violation.

m.Item 6b, alleging aRepeat violation of 29 C.F.R. § 1910.1200(h)(1),is AFFIRMED as aRepeat violation.

n.Item 6c, alleging aRepeat violation of 29 C.F.R. § 1910.1200(f)(6),is AFFIRMED as aRepeat violation.

o.A penalty of $7,391 isASSESSEDfor grouped Items 6a, 6b, and 6cof Citation 3.

/s/ William S. Coleman

WILLIAM S. COLEMAN

Administrative Law Judge

Dated:September 20, 2021

----

1 The terms “lockout” or “locked out” as used in this Discussion carry the meaning assigned to the term “lockout” in § 1910.147(b), which is as follows: “Lockout.The placement of a lockoutdevice on an energyisolating device, inaccordance with an establishedprocedure, ensuring that the energyisolating device and the equipmentbeing controlled cannot be operateduntil the lockout device is removed.”

2 Midvale contested that citation but ultimately accepted the willful LOTO violation in a formal settlement agreement that became a final order on June 19, 2017, about four months before thecommencement of theinspection here. (Ex. C-1 at23-24; T. 11).

3 A “note” tosubparagraph (a)(2)(ii)of the LOTO standardcontains what isoften referred to as the“minor servicing exception,”and itprovides:

Minor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations, are not covered by this standard if they are routine, repetitive, and integral to the use of the equipment for production, provided that the work is performed using alternative measures which provide effective protection. (See subpartOof this part).

The referencein the exceptionto“subpart O” is anexpress referenceto the machine guarding standard codified at 29 C.F.R. §§ 1910.211 to 1900.219.

4 The provision pertaining to engaging a safety consultant was set forth in paragraph 5 of the ISA,whichprovidedas follows:

Employer agrees to engage a qualified third party safety consultant to conduct a comprehensive safety audit at the cited facility, and to address any reasonable safety and/or health hazards identified during the audit. This action will be accomplished pursuant to the following schedule:

a.Employer shall engage a qualified third party safety consultant or firm ("Safety Consultant") to conduct a comprehensive safety audit at the cited facility within sixty (60) calendar days of the signing of this Agreement.

b.The Safety Consultant shall produce a final report with recommendations to Employer within sixty (60) calendar days of when the audit was conducted.

c.Employer shall address the reasonable recommendations in the Safety Consultant's final report within sixty (60) calendar days of receipt of the final audit report.

d.Employer shall provide a copy of the Safety Consultant's final audit report and certification/documentation of the actions Employer will have taken to address the Safety Consultant’s reasonable recommendations within fifteen (15) calendar days of addressing the recommendations.

e.If Employer chooses to address a recommendation in a manner different than that[prescribed]by the Safety Consultant, or decides to not implement a recommendation made by the Safety Consultant, it shall notify OSHA and provide the basis for its decision, within fifteen (15) calendar days of addressing the remaining recommendations from the audits.

f.OSHA will consider reasonable requests by Employer for extensions of time related to addressing recommendations in the event a recommendation requires a significant capital project or for other extenuating circumstances.

5 The LOTO Directive was not presented in evidence, but the Secretaryreferencedit in his Reply Brief, which is regardedas a request for the Commission to take official notice of the LOTO Directive pursuant to Fed. R. Evid. 201(c)(2). (Sec’y Reply Br. 2 & 5). The LOTO Directive is posted on OSHA’s public website. 

6 The LOTO standard defines the term“servicing and/or maintenance”in § 1910.147(b) as follows:

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.

7 The Secretary argues that evidence offouremployees who in the years before the inspection herehad sufferedhand injuries while working onsome of themachinesshowsthat Midvaleemployeessustainedinjuriesbecause the machines were not locked out when required by the LOTO standard. (Sec’y Br.10-12 &17; Ex. C-12).Twoof theinjuries documented onMidvale’sOSHA Form 301’ssuggest that theinjuriesweresustained duringservicingdone during normal productionoperations andcould have been the result of the failure of the employees to utilize required procedures. (See Ex. C12 at Bates 399[injury to employee J.C.on 1.20.16]&Bates404[injury to employee H.D. on 1.3.17]; T. 640-42, 763-66). Neitherof those injured employees testified, however, and while the evidence of thecircumstances of their injuries establishes that the machines present a risk of injuryif serviced while the machines are in operation, that evidenceis not dispositive as to whetherthe belt replacement andmachineadjustments that employees are permitted to perform withoutlocking outand with only an e-stop engagedexposed employees to unexpected energization or risk of injury therefrom.There is also evidence thatan independent cause of at least one of thedocumented injurieswasthatthe injuredemployeehadimproperly removedamachine guard. (T. 598600).

8 Thetestimonialreferences to “belts” were often unspecific as to the type, location, and function ofanybeltreferred to. (E.g., T.767-69). Video evidence shows that some conveyor belts on the machines move at an extremely slow pace, perhapsno faster thanone inch per second. (Seee.g.,Ex.R-24 video at 0'49"to 1'08"). Cf. RockwellIntl. Corp., 9 BNA OSHC 1092,1097-98(No. 12470, 1980)(concluding thatthemachine’s point of operationdid not expose workers to injuryin part becauseofits extremely slow rate of movement, so thatleaving the point of operation unguarded did notfail to conformwith a machine guarding standard that requireda point of operation beguarded onlywhere the machine’s operation exposed an employee to injuryfrom that point of operation),overruled in part on other groundsby George C. Christopher & Sons, Inc., 10 BNA OSHC 1436 (No. 76-647,1982).

9 Pneumaticenergy is present in the gluetankson the gluers. There are“caution”stickers on some gluer machines that warn employees to lock out the machinewhen “cleaning, making adjustments, servicing, clearing jams, maintaining glue pots and glue bottles.” (Ex. C-22, videoof Gluer #2at 1'19"; Ex. C-23 video of Gluer # 3 at 1'23"and 1'49"). Other than testimony on behalf of Midvale that those are “not our sticker[s]”(T. 559),there is no evidence regarding the provenance of those stickers. Nor is thereevidence that failing to lock out themachine to isolate both electrical and pneumatic energy to theglue pots during refilling exposes employees to potential injury from the electrical or pneumaticenergy. There is evidence, however,that the “glue pot”and “glue bottle”technology described on the stickersisa remnant of old technology,suggesting that thestickers’cautionsdirected at thattechnologycouldbe an anachronism. (T. 584-85,671-73,813-15).

10 The video showsthat after the employees detected the paper jam,the employee who was feeding paperto the machine depressedan estopbutton to stopthe machine, butthat immediately after depressing the button to stop the machine he lifted it back up and thereby disengaged it. (Ex. C-13 at 1'04"). Then he andthe machine operatormovedto and stood onopposite sides of themachine,whereeach puthishands in the point of operationto clear the jam. (Ex. C-13 at 1'04"–2'28"; T. 75-76, 83-84). Aftertheyclearedthe jam,theoperatormade eye contact with the other two employeesrunningthe machine, asked if they were “good,” and upon receiving affirmative responses herestarted themachine by depressingthestart button. (Ex. C-13 at2'30"–2'37";T. 80-81).

11 See suprafootnote6forthe standard’s completedefinition of “servicing and/or maintenance.”

12 Another factor that makes worker distraction a reasonable possibility is Midvale’spracticeofnotdisciplining employees for safety violations, but instead responding to safety violations by simply making on-the-spot corrections and admonishing the offending employee to comply. This practiceis discussedinfraingreaterdetail.

13 While the Zerand machines have hydraulic energy too (T. 745), as notedsuprain the text associated withfootnote9, that energy was not shown to constitute hazardous energy required to be controlled under the LOTO standard.

14 Midvale argues thatlocking out the Zerand machines during machine set upistechnicallyinfeasible because power is required to“jog” the machine into place for somesteps in theset up.(T. 532, 661-666, 675, 723-24)(Resp’t Br. 31). There is no evidence thatthe machine must be operational duringwhatever set up activity the employees performwhile in proximity to theunguarded belt and pulleys. And in any event, Midvale did notdevelop orutilizeanyprocedure for the temporary removal of lockout devicesfor testing orpositioningthe machineas prescribed by § 1910.147(f)(1).(SeeT. 725-26; Ex. R-40 at 6069).Moreover, there is noplausiblereasonthattheZerand machine could not be locked outforemployeeswhoare within the zone of danger of the unguarded belt and pulleys whenremovingscrap paper that collectson the floor immediately below and beyond the unguarded belt and pulleys.(See Ex.C-38; T. 218-20). Midvale’s infeasibility defenseto the LOTO violationas to theservicing and maintenanceactivity of employeesin proximityof the unguarded belt and pulleys on Zerand #2 is not proven.

15 While in some instances guards must be removed during set up of the Zerand machines, the record does not indicate what guards are removed and whether those guards have safety interlock mechanisms that would prevent unexpected energization. (T. 726-29).

16 Section 1910.147(c)(7)(i) provides as follows:

(7)Training and communication.(i)The employer shall provide training to ensure that the purpose and function of the energy control program are understood by employees and that the knowledge and skills required for the safe application, usage, and removal of the energy controls are acquired by employees.The training shall include the following:

(A) 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.

(B) Each affected employee shall be instructed in the purpose and use of the energy control procedure.

(C) All other employees whose work operations are or may be in an area where energy control procedures may be utilized, shall be instructed about the procedure, and about the prohibition relating to attempts to restart or reenergize machines or equipment which are locked out or tagged out.

The terms “affected employee” and “authorized employee” are defined in § 1910.147(b) as follows:

Affected employee. An employee whose job requires him/her to operate or use a machine or equipment on which servicing or maintenance is being performed under lockout or tagout, or whose job requires him/her to work in an area in which such servicing or maintenance is being performed.

Authorized employee. A person who locks out or tags out machines or equipment in order to perform servicing or maintenance on that machine or equipment. An affected employee becomes an authorized employee when that employee's duties include performing servicing or maintenance covered under this section.

17 Instance4 erroneously identifies the gluer with serial number 101 asGluer #3. In actuality,Midvale has designatedthegluerwith that serial numberasGluer #4. (T 158-59;C-11at Bates 90 and C-18 atBates 105). The complaint is deemed amended to correct this error. Also, the evidence establishes the presence oftwounguarded shafts seven inches above floor levelon Gluer #4,not three as alleged. (Ex.C-26; Ex. R-24 at 1'43"; T. 174-75, 298-99). The complaint is deemed amended further toaccuratelyreflect the number of unguarded shafts on Gluer #4.

18 The cited standard, § 1910.219(c)(2)(i),is aspecification standard, and thus proof of noncompliance establishes the existence of a hazard. Fabricated Metal Prods. Inc., 18 BNA OSHC 1072,1073n. 4(No. 93-1853, 1997)(identifying § 1910.219(c)(2)(i) to be a specification standard).

19 InNortheastPrecast, theCommission heldthatviolations of different standardsinvolving conduct on different days were duplicative becausea single act could have abated both.The dissenting commissioner inNortheastPrecastcharacterizedCommission precedentfordetermining whether violations are duplicativeas“confusing and conflicting.”N.E. Precast LLC,26 BNA OSHC at2285(dissent). In affirming the Commission’s decision inNortheastPrecast, the Second Circuit recognized that “the Commission has applied several different standards in determining whether violations are duplicative.” 773 F. App’x at 72. 

TheSecretary has notpositedany argumentin reply toMidvale’s contention that the violations are duplicative underNortheastPrecast, and theundersigneddiscerns nogrounds on which to distinguishNortheastPrecastfrom the circumstances present here. Accordingly, theseparate LOTO and machine guarding violations as they pertain to Dellaperuto’s cleaning activity on November21, 2017,are duplicative because the abatement of onenecessarilywould have abated the other and vice versa.The remedy for duplicative violations is to vacate one of them. N.E. Precast LLC,26 BNA OSHC at2281-82.

20 The undersignedconcursin the Secretary’s approach of reducinga penaltytoaccount foran employer’s small size for a willful violationto a lesser extent thana penalty would be reducedfor a serious violation(60%).

21 The Secretary has withdrawn Item 3c of Citation 3, so that citation item will be vacatedin the “Order” sectioninfra. (Sec’y Br.52).

22 Subparagraphs(d)(1)and (e)(1)(i) of§ 1910.219providein relevant part as follows:

(d)Pulleys––(1)Guarding.Pulley,any parts of which are seven (7) feet or less from the floor or working platform, shall be guarded in accordance with the standards specified in paragraphs (m) and (o) of this section....

(e)Belt, rope, and chain drives––(1)Horizontal belts and ropes.(i) Where both runs of horizontal belts are seven (7) feet or less from the floor level, the guard shall extend to at least fifteen (15) inches above the belt or to a standard height, except that where both runs of a horizontal belt are 42 inches or less from the floor, the belt shall be fully enclosed in accordance with paragraphs (m) and (o) of this section.

23 Section 1910.219(f)(1) provides:

(1)Gears.Gears shall be guarded in accordance with one of the following methods:

(i)By a complete enclosure; or

(ii)By a standard guard as described in paragraph (o) of this section, at least seven (7) feet high extending six (6) inches above the mesh point of the gears; or

(iii)By a band guard covering the face of gear and having flanges extended inward beyond the root of the teeth on the exposed side or sides. Where any portion of the train of gears guarded by a band guard is less than six (6) feet from the floor a disk guard or a complete enclosure to the height of six (6) feet shall be required.

24 Unlike the two instances described above whereabatement of the machine guardingviolationswould have abated LOTO violationsassociated with the same unguarded part, the abatement of the machine guardingviolationhere would not have abated the corresponding LOTOviolation, because the employee would havestillbeen exposed to risk of injury from the unexpected energization of the point of operation in which the employees had their hands. Thus, the machine guarding violation here that corresponds to the LOTO violation involving the window machineisnot duplicative under theCommission’stest inNortheastPrecast. Nor is it duplicative under any other testsarticulated in Commission precedentfor determining whether violations are duplicative.SeeN.E. Precast LLC,26 BNA OSHCat2279(summarizing other tests).

25 In operating a forklift as part of the interview process, the applicant would have the status of “trainee,” who under subparagraph (l)(2)(i) may operate a forklift underspecified conditions as follows: “Trainees may operate a powered industrial truck only: (A) Under the direct supervision of persons who have the knowledge, training, and experience to train operators and evaluate their competence; and (B) Where such operation does not endanger the trainee or other employees.” 

26 Midvale had safety data sheets on hand for both the denatured alcohol and acetone, although they were dated in 2009 and did notconform to thespecifiedcurrent format for that information, so the CO obtained updated safety data sheets from the manufacturer, and those more current safety data sheets were offered and received in evidence without objection. (T. 257-59; Ex. C-48). Midvale was not cited for having on hand only the outdated data sheets. (T. 258).

27 Midvale’s argument that the violation should be regarded as other-than-serious rather than serious in nature for purposes of the penalty assessment is rejected. Midvale bases its argument largely on a 2015 other-than-serious citationthat it accepted for having failed to develop, maintain,or implement a hazard communication program as required by § 1910.1200(e)(1) with respect to acetone and denatured alcohol. (Resp’t Br. 45-46). OSHA assessed the severity of that prior violation as “minimal” because the CO who conducted that 2015 inspection had concluded, whetheraccurately or not, that employees were wearing safety glasses when handling those materials,notwithstandingthe absence of a hazard communication program. (Ex. C-73 at Bates 242; T. 453-54). Here, the great weight of the evidence is that non-supervisory employees did not wear eye or face protection when using the materials, and thatMidvale did not enforce thework rulerequiring thatthey do so. The employees’ proven exposure to actual contact with the hazardous liquid chemicals supports the “high” severity assessed for the violation of the PPE standard.

Midvale complains further about the characterization of the “severity”of an injury resulting from the violation to be“high” based on the justification that “employees with chronic exposure would suffer neurological and physiological damage.”(Resp’t Br. 17, 45-46).(SeeViolation Worksheet, Ex. C-30 at Bates 138). Thatstatedjustification mayhavebeenbased on a misreadingof the safety data sheets for acetone and denatured alcohol that conflated“acute”exposure by splashing into the eye with chronic and prolongedinhalation (a hazard that eye or face protection would not protect against). (Ex. C-48; T. 445-48). This apparent misreadingnotwithstanding, the risk of eye irritation and corneal damage from acute contact supports the assessment that the severity of injury from the violation was “high.” See Stearns-Roger, Inc., 7 BNA OSHC1919,1921(No. 76-2326, 1979)(noting “that the eye is an especially delicate organ and that any foreign material in the eye presents the potential for injury”);Vanco Constr., Inc., 11 BNA OSHC 1058, 1061-62 (No. 79-4945, 1982) (finding that “given the delicateness of the eye, serious physical harm would be substantially probable if an employee were struck in the eye by a particle or chip of concrete”)aff’d, 723 F.2d 410 (5th Cir. 1984).

28 The Secretary had originally alleged in Item 5a of Citation 3 a repeat violation § 1910.303(b)(2),butthe Secretarywithdrew that citation item in his post-hearing brief. (Sec’y Br. 56). Item 5a of Citation 3 will therefore be vacated.