United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor 

Washington, DC 20036-3457 

SECRETARY OF LABOR,

Complainant, 

v. OSHRC Docket No. 12-1496 

ACTION ELECTRIC COMPANY, 

Respondent. 

ON BRIEFS:

Steven W. Gardiner, Attorney; Charles F. James, Counsel for Appellate Litigation; 

Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health; 

M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC 

 For the Complainant 

J. Larry Stine, Esq.; Mark A. Waschak, Esq.; Wimberly, Lawson, Steckel, Schneider & 

Stine, P.C., Atlanta, GA

 For the Respondent 

DECISION

Before: ATTWOOD, Chairman; and MACDOUGALL, Commissioner.

BY THE COMMISSION:

After an employee was fatally struck by a several-ton counterweight at a steel mill, the 

Occupational Safety and Health Administration issued Action Electric Company a serious 

citation alleging a violation of the lockout/tagout (LOTO) standard, 29 C.F.R. 

§ 1910.147(f)(3)(ii)(D).

1

 The judge vacated the citation, concluding that the requirements of the 

cited LOTO standard did not apply. 

 

1 The cited provision requires “[e]ach authorized employee” to “affix a personal lockout . . .

device to the group lockout device . . . when he or she begins work, and . . . remove those 

devices when he or she stops working on the machine or equipment being serviced or 

maintained.” 29 C.F.R. § 1910.147(f)(3)(ii)(D). The citation included a second item that was 

withdrawn by the Secretary.
2 

On review, the two Commission members are divided regarding the applicability of the 

LOTO standard—the only remaining issue in this case.

2

 To resolve this impasse, the members

agree to vacate the direction for review, thereby allowing the judge’s decision to become the 

final appealable order of the Commission, with the precedential value of an unreviewed 

administrative law judge’s decision. See, e.g., Texaco, Inc., 8 BNA OSHC 1758, 1760 (No. 77-

3040, 1980) (consolidated); Rust Eng’g Co., 11 BNA OSHC 2203, 2205 (No. 79-2090, 1984); 

Safeway, Inc., 20 BNA OSHC 1021, 1023 (No. 99-0316, 2003); Timken Co., 20 BNA OSHC 

1070, 1072 (No. 97-0970, 2003). See also 29 U.S.C. §§ 659(c), 660(a)-(b), 661(i). Accordingly, 

the direction for review is vacated. The separate opinions of the two participating Commission 

members follow. 

SO ORDERED.

/s/ 

 Cynthia L. Attwood 

 Chairman

 /s/ 

Dated: July 6, 2016 Heather L. MacDougall

Commissioner

 

2 The judge found that there was no dispute regarding the noncompliance, exposure, and 

knowledge elements of the Secretary’s prima facie case. See Safeway Store No. 914, 16 BNA 

OSHC 1504, 1508 (No. 91-373, 1993) (“A violation . . . is established whenever the following 

four elements exist: (1) the standard applies to the cited conditions, (2) the employer’s conduct 

does not conform to the requirements of the standard, (3) employees are exposed to the cited 

conditions, and (4) the employer knew or could have known of those conditions.”). Action does 

not challenge this finding on review.
3 

Separate Opinion of Chairman Attwood

ATTWOOD, Chairman.

This case is not novel. It rests on well-established legal principles underlying an 

employer’s obligation to follow the requirements of OSHA’s lock-out/tag-out (LOTO) standard 

to protect its own servicing and maintenance employees from the hazards of unexpected 

energization. 

Factual Background 

At the Gerdau Ameristeel mill in Cartersville, Georgia, a several-ton counterweight 

fatally struck an employee of contractor Action Electric Company. The Occupational Safety and 

Health Administration issued Action Electric a serious citation under a provision of the LOTO 

standard, 29 C.F.R. § 1910.147(f)(3)(ii)(D), based on the company’s alleged failure to ensure 

that its employees affixed their lockout devices to a group lockbox before performing 

maintenance work.

The Gerdau mill processes scrap metal into steel components used in construction. It 

melts and recasts the metal and sends it through a rolling mill, which produces individual pieces 

of steel called “billets.” The billets, which have been heated to 1600 degrees, are then sent 

across a 325-foot-long and 100-foot-wide “cooling bed.”1

 A series of grooved metal rakes move 

up and down to “walk” the billets across the bed while 110 rotary fans—bolted to a rail 4 to 6 

inches below the rakes—blow air across the billets to cool them. The rakes are moved by 

counterweights (attached to rotating shafts, drive chains, gear boxes, and large drive motors) 

weighing several tons each. The counterweights make 360-degree, clockwise revolutions and 

are located on the underside of the cooling bed in an area known as the “basement,” along with 

the fans, drive motors, chains, rotating shafts, gear boxes, and other cooling bed components. 

The cooling bed basement has a lighted, designated walkway down its center—demarcated by 

chains strung along both sides—that Gerdau uses when it inspects the underside of the cooling 

bed. The walkway is the only safe place in the basement when the cooling bed is operating. 

On the day of the accident, the cooling bed had been shut down, and Action was planning 

to replace the final three of the seventeen fans Gerdau hired it to service. The other fans had 

been replaced by Action on two previous occasions. That morning, Gerdau’s cooling bed 

 

1 The mill also contains equipment that is not part of the cooling bed, including the rolling mill, a 

reheating furnace, rougher, straightener, and stacker-piler.
4 

maintenance technician told the Action leadman on the project that he would—pursuant to 

Gerdau’s mandatory LOTO procedure and consistent with his actions on the two prior 

occasions—lock out the cooling bed and meet the leadman near the basement’s north entrance 

where the group lockout box was located. According to the administrative law judge, the 

maintenance technician was gone for less than 40 minutes. During that time, the leadman 

complied with Gerdau’s contractor requirement to fill out a Gerdau work authorization permit. 

But he failed to wait, as required, for Gerdau’s technician to complete the lockout process—lock 

out the cooling bed; place key(s) to the locked-out cooling bed components in the lock box; place 

personal lock on the box; and sign the form verifying that the lockout procedure was complete 

and Action’s work could begin. And neither the leadman, nor any of the Action employees he 

supervised that day, affixed a personal lock to the group lock box—another step Gerdau 

required.2 The leadman, who knew lockout had not been completed, and an Action apprentice 

then entered the basement, left the designated walkway, and walked about 24 feet into the 

workings of the cooling bed to the area where the fans were located. Unaware that the two 

Action employees were in the basement, Gerdau’s technician started the cooling bed lockout 

procedure, which required relieving the stored energy in the counterweights by moving them to 

their deenergized position. When he did so, one of the counterweights fell from its resting 

position of one o’clock to its de-energized position of six o’clock, fatally striking the apprentice 

and coming within inches of hitting the leadman. 

The judge vacated the citation, concluding that the requirements of the cited LOTO 

standard, 29 C.F.R. § 1910.147(a)(1)(i), do not apply because “Action’s servicing and 

maintenance work was only on the fans,” the “injury . . . resulted from an . . . adjacent 

counterweight,” and “[t]here [wa]s no . . . expos[ure] to the unexpected energization or release of 

hazardous energy from the fans.” In addition, the judge found that the “Action employees were 

not engaged in servicing and maintenance work” at the time of the accident because they were 

simply “in the basement [to] discuss[] their . . . work on the fans.” 

Discussion

This case poses a simple question—what “machine” was being serviced? The LOTO 

standard applies to “the servicing and maintenance of machines and equipment in which the 

 

2 Under the LOTO standard, when performing group servicing or maintenance, group lockout 

devices shall be used as specified in 1910.147(c)(4). 29 C.F.R. § 1910.147(f)(3)(ii). 
5 

unexpected energization or start up of the machines or equipment, or release of stored energy,

could cause injury to employees.” 29 C.F.R. § 1910.147(a)(1)(i). Its purpose is to protect those 

employees who are engaged in servicing and maintenance and others who are in the vicinity. 

The factual record in this case demonstrates that Action’s employees were servicing a complex 

machine—the cooling bed—that necessarily contains many component parts, including fans, 

rakes, drive chains, motors, rotating shafts, and counterweights.3

 Thus, contrary to the judge’s 

analysis and that of my colleague, before servicing of the cooling bed’s fans could begin, lockout 

was required of all cooling bed components because the cooling bed posed LOTO hazards to the 

workers performing the servicing.4

 And this included the several-ton counterweight at issue—

which no one disputes contained stored energy that, when released, caused it to fall and fatally 

strike Action’s apprentice employee.5

 “Machine” is commonly defined as “an apparatus, made of organized, interacting parts, 

which takes in some form of energy, modifies it, and delivers it in a more suitable form for a 

desired function.” The New Lexicon Webster’s Dictionary of the English Language 595 (1987). 

Consistent with this definition, the LOTO standard’s preamble contemplates that “machines”

will have myriad “parts,” and recognizes that “[o]nce [a] machine . . . has been stopped, there 

remains the potential for employee injury from the unanticipated movement of a component of 

the machine . . . .” Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 

36,644, 36,647 (Sept. 1, 1989) (final rule) (emphasis added). This fundamental concept of a 

 

3 My colleague suggests that by identifying the cooling bed as the machine being serviced, I have 

“pre-ordained” the result in this case. On the contrary, it is the overwhelming factual evidence 

contained in the record—and detailed below—that ordains the conclusion that the fans are, 

indeed, part of the cooling bed. 

4 Gerdau, however, left to Action the task of locking out the fans themselves simply because

Action needed to lock and unlock them as work progressed, so it could check if repairs were 

successful.

5

 Although this case is focused on the hazard posed by the counterweights, the other components 

of the cooling bed also posed hazards that required LOTO procedures. Thus, as the attached 

Exhibit C-1L illustrates, the fans were within a few inches of the rakes, above the 

counterweights, and proximate to the chains that turned the drive shafts on which the 

counterweights were mounted. Moreover, the fact that these other components had been shut 

down, and, unlike the counterweights, did not contain any residual or stored energy, is irrelevant 

to the LOTO analysis. If a machine poses LOTO hazards, it must be shut down, the machine 

isolated from all energy sources, lockout or tagout devices applied, residual energy released, and 

lockout verified. 29 C.F.R. § 1910.147(d). 
6 

machine being made up of component parts is also reflected in one of the preamble’s examples 

of accidents “typical of these [LOTO] hazards and demonstrat[es] the applicability of the 

pertinent provisions in the final standard”: 

The hogger had been shut down, but the conveyor feeding the hogger had not 

been. The employee climbed onto the machine, fell onto the conveyor, was 

pulled into the hogger opening, and was fatally crushed. 

54 Fed. Reg at 36,646. In this example, an employee was working on one machine component—

a hogger—when another component—a conveyer, which could independently move materials

without the hogger operating—caused the injury. OSHA considered these components part of a 

single “machine” for LOTO purposes.6

As noted above, the cooling bed also has a number of component parts, and they are even 

more interconnected than those in the preamble’s example. These include rakes, counterweights, 

and fans that are not only physically connected to the cooling bed but are also functionally 

integrated to simultaneously interact and accomplish a single goal—the cooling and moving of 

steel billets. Indeed, the cooling bed cannot achieve its function unless the rakes, motors, drive 

chains, rotating shafts, counterweights, and fans are operating simultaneously. These 

components serve no useful purpose if operated independently of one another—there is no point 

in moving hot steel billets with the rakes, counterweights, and other component parts if the fans 

are off, and likewise no point in running the fans if the counterweights are not rotating to move 

billets across the rakes.

7

 This fact is echoed by Chad Hughes, Gerdau’s cooling bed 

maintenance technician, who described the machine as follows: 

 

6 My colleague attempts to distinguish the waste hogger example on two grounds. First, she 

asserts that “[t]he final rule [preamble] does not identify” the waste hogger “as an example of a 

complex, integrated machine made up of several parts.” But the example itself explicitly 

identifies two discrete parts of one machine to which the final rule specifically makes the LOTO 

standard applicable. 54 Fed. Reg. at 36,646. Second, she points out that the hogger in the 

example was operating, whereas the cooling bed here was not. But this is immaterial; the critical 

point illustrated by the waste hogger example is that one component—the conveyor—needed to 

be locked out in order to protect the employee who was working on another component—the 

hogger. See id. (identifying the waste hogger example as a “[f]ailure to document and 

implement an effective control procedure”). 

7 The judge completely misapprehends the meaning of “machine” in this context, and his 

characterization of the cooling bed as a “process that contains separate and distinct machines and 

equipment” that “function separately to move and cool the heated metal across the bed” is belied 

by the evidence.
7 

Basically, you have the hot [metal] bars [billets] leaving the rolling mill. [The 

metal] comes down on a series of rolls. Then, it’s kicked down onto what we call 

the rakes. The rakes, as the bars progressively add up to the cooling bed, it walks 

them across the bed, cools them underneath with air [from the fans], and then they 

go to the transfer chains on the other side of the bed and transfer it off, and then 

another roller conveyor into the straightener where they’re straightened. 

Additionally, Gerdau safety manager Ecky Hall testified that the cooling bed components “act as 

one unit” and were “all part of one big system,” and Hughes further stated that “[t]he [other 

cooling bed] equipment overlaps in so many different ways with the fans,” such that “[b]asically 

the equipment acts as one.” As one machine, it comes as no surprise that Gerdau’s practice—

which Action was required to follow—is to lock out the entire cooling bed whenever

maintenance is performed on any one of its components.8 In fact, the fatality here occurred 

when Hughes was in the process of de-energizing/locking out the cooling bed’s counterweights 

and other components so that the Action employees could safely enter the cooling bed basement, 

leave its designated walkway (the only safe place in the basement), and access the cooling bed’s 

fans.9

 Both the testimony of Gerdau’s employees and its own lockout procedure plainly 

demonstrate that the cooling bed is a single “machine[].”

Action—noting the cooling bed’s size and complexity—would have the Commission 

hold that the bed is nothing more than a collection of many “machines,” when, in fact, the size 

and complexity of the cooling bed counsels in favor of it being one “machine.” Applying the 

LOTO standard only to small machines with few parts would have the absurd result of 

precluding its application where the hazard of unexpected energization may be greatest. See 

Unarco Commercial Prods., 16 BNA OSHC 1499, 1502 (No. 89-1555, 1993) (“It is well 

established that a . . . standard must be construed so as to avoid an absurd result.”). As the 

Commission has consistently acknowledged, the LOTO standard addresses “complex equipment 

 

8 In attempting to show that the fans and counterweights are different machines, my colleague 

notes that Gerdau’s “written [LOTO] procedure [for the cooling bed does not] mention the fans.” 

Nonetheless, Gerdau’s consistent practice of locking out the entire cooling bed in order to 

service the fans shows that the company considered these components to be part of one machine. 

9 It is irrelevant whether, as my colleague puts it, Hughes “contemplated the hazard presented by 

the lowering of the counterweights during the lockout process.” His employer clearly 

“contemplated” that hazard because Gerdau included the lowering of the counterweights in its 

LOTO procedure—a procedure that it developed in part to protect employees specifically from 

the movement of the counterweights. Gerdau also contemplated that this was a hazard to anyone 

who deviated from the designated walkway beneath the cooling bed, as evidenced by its warning 

sign at the basement entrance: “Authorized Personnel Only.” 
8 

. . . serviced and maintained by numerous employees extending across multiple workshifts,” 

particularly in the group LOTO context, as was the case here.10 Exelon Generating Corp., 21 

BNA OSHC 1087, 1089 (No. 00-1198, 2005). In other words, the “more complex” the machine, 

the “more comprehensive [the LOTO] procedures may need to be.” 29 C.F.R. § 1910.147 app. 

A. See also Gen. Motors Corp., 22 BNA OSHC 1019, 1027 (No. 91-2834E, 2007) 

(consolidated) (noting inadequacy of LOTO procedure for “the plant’s more complex 

equipment,” which included “very complex machines” one of which—the “machine” at issue— 

“contained ‘15 or 16 automatics, 165 weld guns, probably 300 limit switches [and] over 150 

disconnects,’ and for which at least four safety locks were necessary to lock it out.”) (quoting 

case record); Dayton Tire, Bridgestone/Firestone, 23 BNA OSHC 1247, 1258-59 (No. 94-1374, 

2010), aff’d in relevant part, 671 F.3d 1249 (D.C. Cir. 2012) (noting the extraordinary 

complexity of the machines to which LOTO applied, which were various sizes and 

configurations and contained different combinations of energy sources). 

A fundamental purpose of the LOTO standard is to eliminate the unexpected energization 

or release of stored energy that results when one employee is unaware of another employee’s 

presence within a machine—a circumstance OSHA has determined to be more likely to occur 

with machines that are larger and more complex: 

An accident can . . . occur when another person who is not necessarily involved 

with the maintenance or servicing operation causes the activation of the machine 

or equipment being serviced. This can occur when a person . . . starts it, without 

knowing someone else is performing maintenance or service on it. This . . . type 

of accident is more apt to occur when the machine or equipment is large and/or 

complex, and the employee who is conducting the servicing activity is at a part of 

the system which is some distance from or not visible from the controls. 

54 Fed. Reg. at 36,647-48 (emphasis added); see also 54 Fed. Reg. at 36,648, 36,679 (stating that 

“when the machine or equipment is large and/or complex, . . . [t]he generally accepted best 

 

10 My colleague—in asserting that Action’s “work [was] on the fans only”—notes that “another 

contractor” was “servicing the cooling bed.” Aside from the fact that the record does not 

establish what the employee from this other contractor was doing, his presence would not 

preclude Action from being required to comply with the LOTO standard. On the contrary, it 

would be an additional basis for finding applicability. Even under my colleague’s conception of 

the “cooling bed” as a separate machine from the fans, the two Action employees would have 

been “affected employee[s] . . . whose job[s] require[d] [them] to work in an area in which such 

servicing or maintenance is being performed,” thus requiring Action to comply with the LOTO 

standard to protect its employees from the LOTO hazards posed by the other contractor’s work. 

29 C.F.R. § 1910.147(b).
9 

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 further referencing “large machine[s] 

or complex system[s] of equipment”). Here the size, configuration, and complexity of the 

cooling bed required Action’s employees to enter the basement and leave the designated 

walkway to access the fans. This put them out of sight of Hughes, who was preparing to lock out 

the counterweights and other component parts. As the record shows, Hughes, “couldn’t . . . keep 

[his] eye” on the cooling bed while performing the lockout procedure in various locations in and 

around it. And he did not know where the Action employees were during this time, thus 

exposing them to the hazards posed by the stored energy in the counterweights, as well as the 

hazards posed by the possible activation of the other cooling bed component parts for which the 

LOTO process had not yet been completed. 

Action, along with my colleague, also argues that characterizing the cooling bed as one 

machine for LOTO purposes would “wreak havoc” by “reducing entire factories to fictional 

‘single units,’ . . . [under] a stretch-to-fit ‘gotcha’ theory.” This, frankly, is preposterous. The 

cooling bed rakes, motors, drive chains, rotating shafts, counterweights, and fans are physically 

and functionally integrated in the same sense as the components of an engine or any other device

traditionally understood to be a “machine.” To properly cool steel billets, the rakes must move 

up and down in a coordinated fashion, which they cannot do unless the counterweights move 

beneath them. At the same time, the fans—of which there are more than 100 interspersed among 

these other components—must blow the requisite volume of air through the rakes and across the 

billets to facilitate cooling.

11 By contrast, the mere fact that the contents of a factory all 

 

11 My colleague makes much of the fact that the fans and counterweights “are not connected or 

attached to each other” and have separate electrical connections and lockouts. In a large, 

complex machine, a lack of such direct connections between components is hardly surprising 

and does not provide a meaningful basis for determining whether something is part of the same 

“machine” for LOTO purposes. In fact, the close physical proximity and need for simultaneous 

operation of the fans, rakes, drive motors, chains, and counterweights plainly reflects their 

complete functional integration. Indeed, when Hughes described Action’s work on the fans, he 

stated that “you’ve got rakes above you, you’ve got the job shafts behind you, and the 

counterweights are directly right there by you. You physically have to crawl up in between the 

rakes in order to remove the fans.” Additionally, given the size and complexity of the cooling 

bed, it is similarly unsurprising that the fans, counterweights, and other components would have 

separate electrical connections and lockouts—one cannot reasonably expect such a machine to 

have one, all-encompassing lockout switch. See, e.g., Gen. Motors Corp., 22 BNA OSHC at 

1027 (applying LOTO to “machine” that contained numerous automatics, weld guns, limit 
10 

contribute in some way to the manufacture of products is hardly sufficient to make them a single 

“machine” for LOTO purposes. Dayton Tire, 23 BNA OSHC at 1258-59 (affirming citation for 

failure to have machine-specific LOTO procedures for each of the types of extraordinarily 

complex yet distinctly different machines located in employer’s tire manufacturing plant). 

Indeed, in a factory with lathes, milling machines, and drill presses, each machine is neither 

physically nor functionally integrated with the others—in fact, one can be used while others are 

idle. And it is by no means (as my colleague puts it) “impossible to discern where a machine 

begins and ends”—Gerdau had no problem discerning the beginning and end of the cooling bed 

when it required lockout of the entire machine in order to service the fans; nor did Gerdau find it 

necessary to shut down and lockout the entire mill in order to perform maintenance on the 

cooling bed. 

Finally, the Secretary’s interpretation of what constitutes a “machine” under the LOTO 

standard has been entirely consistent over time. An OSHA memorandum from 1999 

distinguishes between an “interconnected . . . machine”—to which LOTO applies—and 

“adjacent machine[s] . . . in the normal production mode of operation”—to which the machine 

guarding standard applies.12 Memorandum from Richard E. Fairfax, Director of Compliance 

Programs, to Michael Connors, Regional Administrator (Oct. 5, 1999). OSHA’s enforcement 

directive for the LOTO standard makes the same distinction, stating that the “standard does not 

apply to equipment or machinery that is not the subject of the servicing and maintenance activity 

 

switches and disconnects, and required at least four safety locks to lock it out); Dayton Tire, 23 

BNA OSHC at 1258-59 (applying LOTO to “extraordinarily complex” machines with “different 

combinations of energy sources”). 

12 I disagree with my colleague’s suggestion that the machine guarding standard, rather than 

LOTO, applies here. Like the machine components in the LOTO preamble’s waste hogger 

example—which OSHA presented as an illustration of the need for LOTO, not guarding—the 

fans and counterweights in this case are physically and functionally intertwined. Thus, the 

hazard posed by the movement of the counterweights or any of the other components of the 

cooling bed is precisely the hazard the LOTO standard was designed to address. Moreover, the 

portion of the LOTO standard preamble that my colleague quotes at length has nothing to do 

with situations such as we have here, when servicing and maintenance is performed while the 

machine is shut down. The quoted discussion quite explicitly relates to “servicing and/or 

maintenance which takes place during ‘normal production operations.’ ” 54 Fed. Reg. at 36,646. 

The quoted section makes clear that in those circumstances the guarding and LOTO standards 

dovetail to assure that employees are protected by one or the other standard. It relates not at all 

to the circumstances of this case.
11 

and that functions independently from, and is not a sub-system of, the machine/equipment being 

serviced or maintained.” OSHA Instruction CPL 02-00-147, Feb. 11, 2008, Chap. 1 at 10 

(emphasis added). Here, as discussed, the counterweights, rakes, rotating shafts, drive chains, 

gear boxes, large drive motors, and fans serve no useful purpose if operated independently of one 

another.13 They all operate as sub-systems of the cooling bed. 

In light of the foregoing, I would conclude that the Secretary’s interpretation of 

§ 1910.147(a)(1)(i) here—that the cooling bed was the pertinent “machine”—is reasonable and 

entitled to deference. See Martin v. OSHRC [“CF&I Steel Corp.”], 499 U.S. 144 (1991) 

(holding that deference is accorded to Secretary’s reasonable interpretation of ambiguous OSHA 

regulation); Union Tank Car Co., 18 BNA OSHC 1067, 1069 (No. 96-0563, 1997) (stating that 

the Commission “must defer to the Secretary’s reasonable interpretation of an ambiguous 

regulation that otherwise sensibly conforms to the purpose and wording of the regulation, taking

into account whether the Secretary has consistently applied the interpretation embodied in the 

citation . . . .”) (internal quotation marks and citation omitted).

The only remaining question is whether Action’s work at the time of the alleged violation 

constituted “servicing and maintenance.” 29 C.F.R. § 1910.147(a)(1)(i). The standard defines 

“[s]ervicing and/or maintenance” as follows:

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. 

 

13 My colleague devotes considerable attention to a non-precedential decision in which the two 

participating commissioners—in separate opinions—agreed that the cited “traverser” and 

“teeming cars” were not subject to the LOTO standard because they operated independently, yet 

vacated the direction for review because they could not agree on the disposition of an alternative 

charge. See Timken Co., 20 BNA OSHC 1070 (97-970, 2003) (“Timken I”). But there is a later, 

also non-precedential decision—Timken II—in which one of the two sitting commissioners 

distinguished the two Timken cases, noting that in Timken I the “traverser” was completely 

independent of railcar repairs performed on a separate track and therefore not covered by LOTO, 

while in Timken II “all of the machinery and equipment worked together to produce tubes from 

steel billets [and] [i]t is undisputed that it all should have been locked out . . . .” Timken Co., 20 

BNA OSHC 2034, 2045 n.4 (No. 97-1457, 2004). And the OSHA Directive on which my 

colleague also relies merely distinguishes between interconnected and adjacent equipment—the 

former requiring application of LOTO and the latter not. See CPL 02-00-147. This only begs, 

rather than answers, the question. 
12 

29 C.F.R. § 1910.147(b). Action acknowledges in its brief on review that its employees were 

“view[ing] the fans they were going to replace . . . to see where the last worker had stopped 

working on the fan wiring so [they] could know where to start.” And the Action leadman agreed

that looking at the fans to see where the last worker had left off was a “necessary” and “integral 

part of the job.” Thus, Action’s employees were “inspecting”—that is, “view[ing] closely in 

critical appraisal,” and “examin[ing] formally, e.g. for completeness or quality”—the cooling 

bed. Webster’s New Collegiate Dictionary 592 (1979); The New Lexicon Webster’s Dictionary 

of the English Language 501 (1987); Gen. Motors Corp., 22 BNA OSHC at 1041-42 (holding 

that “observing or inspecting equipment when it is stationary” is a servicing and maintenance 

activity to which LOTO applies, and affirming violation for failure to utilize LOTO when 

exposed employee was performing servicing and maintenance activity while equipment was 

stationary and for which deenergization and use of LOTO were possible but not used). I agree 

with the Secretary’s statement in his brief on review that this type of “visual observation of 

equipment that is reasonably related to hands-on servicing and maintenance, and puts employees 

within the zone of danger . . . constitutes ‘inspecting’ activity within the meaning of” the LOTO 

standard.14

In these circumstances, the LOTO standard requires following a mandated sequence of 

“elements and actions”: machine shutdown, energy isolation; application of the necessary 

lockout devices; restraint and rendering safe any hazardous stored or residual energy; and 

verification that the isolation and deenergization of the machine is complete. 29 C.F.R. 

§ 1910.147(d)(2)-(6); see Gen. Motors Corp., 22 BNA OSHC at 1040-41. As noted, however, 

Action’s leadman did not obtain Gerdau’s required verification that the lockout procedure was 

complete, nor did he affix his lock to the group lockbox, as the standard requires. Accordingly, 

Action was in violation of the standard’s requirements. 

 

14 My colleague’s contention that the activity here was not servicing and maintenance because 

“the Action leadman was pointing out the three remaining fans that needed to be replaced . . . 

and said ‘that one, that one, and that one’ ” is inaccurate. The transcript reveals that the quoted 

statement was made by Action’s counsel during his opening remarks at the hearing, which is not 

evidence. Moreover, according to the leadman, just prior to the accident he was discussing the 

scope of work he and the apprentice would be performing, which fans would be replaced, and 

how the replacement would be done, and agreed that they “couldn’t actually perform the 

replacement of the fans without having done that activity first.”
13 

For all of the foregoing reasons, I would find that the LOTO standard applies here, and I 

would affirm the serious citation item at issue and assess the $7,000 proposed penalty.15

/s/ 

Cynthia L. Attwood 

Dated: July 6, 2016 Chairman

 

15 Action did not dispute characterization or penalty before the judge, nor does the company do 

so on review. See KS Energy Servs., Inc., 22 BNA OSHC 1261, 1268 n.11 (No. 06-1416, 2008) 

(affirming alleged characterization and assessing proposed penalty where characterization and 

penalty were not in dispute). 
14 

Attachment: Exhibit C-1L 
15 
16 

Separate Opinion of Commissioner MacDougall 

MACDOUGALL, Commissioner:

My colleague’s separate opinion misreads the LOTO standard to the extent new 

obligations would be created for employers that the standard does not impose or contemplate. 

By her assertion right from the start that “Action’s employees were servicing a complex 

machine—the cooling bed—that necessarily contains many component parts,” the opinion charts 

a pathway to a pre-ordained result. Its fundamental flaw is that Action’s employees were not 

servicing the cooling bed; indeed, another contractor was hired to do so at the same time Action 

was engaged in its work—on the fans only. For the reasons detailed below, I would agree with 

the judge that the cited standard is inapplicable and, thus, vacate this citation item. 

Factual Background 

Gerdau operates a steel rolling mill in Cartersville, Georgia, where scrap metal is recast 

into structurally useful forms. Action was working as a contractor at the mill when a fatal 

accident involving one of its employees occurred. As part of the recasting process at the Gerdau 

mill, steel is melted and formed into “billets”—lengths of metal—which then travel across a 

“cooling bed.” The cooling bed is approximately 325 feet long and 100 feet wide with a series 

of grooved metal rakes that move up and down to “walk” the billets across the bed. The rakes 

are moved by counterweights, spaced about every 15 feet along the length of the cooling bed, 

which weigh several tons each. The rake counterweights make 360-degree, clockwise 

revolutions and are located beneath the cooling bed in an area known as the “basement,” along 

with drive motors, rotating shafts, gear boxes, and other devices. When production is shut down, 

the counterweights will be raised to a one o’clock position, but when the cooling bed machines 

are de-energized for lockout, the counterweights rotate down to the six o’clock position. Spread 

out along the west side of the cooling bed and bolted to a rail four to six inches below the rakes,

are 110 rotary fans, which blow air across the billets to expedite cooling. Gerdau hired Action to

service and replace the fans, as needed.

The basement has a designated walkway down its center—partially demarcated by rope 

chains strung along both sides—that Gerdau normally uses when it inspects the underside of the 

cooling bed. The walkway is accessed by proceeding through an unlocked gate. Gerdau had no 

machine guarding on the counterweights, and while it sought to limit exposure by restricting 
17 

access to the area beneath the cooling bed,1 its written LOTO procedure for the cooling bed does 

not require verifying that no one is in the zone of danger presented when the counterweights drop 

during the lockout process.2 Nor does the written procedure mention the fans. 

When the plant is shut down for large scheduled repairs and maintenance, as it was on the 

day of the accident, Gerdau locks out the cooling bed. Gerdau’s LOTO procedure permits only 

its own “authorized” employees to lock out the cooling bed because, according to Gerdau’s 

Safety Manager, contractors “are not familiar with the equipment.” Gerdau did, however, permit 

contractors, including Action, to lock and unlock a single power source on equipment on which 

they were working, such as the fans. For example, on previous days during the course of this 

 

1 After the accident, Gerdau replaced the rope chains with a chain link fence. It appears that 

Gerdau generally recognized the hazard presented beneath the cooling bed by its written rule that 

authorized personnel were only allowed to enter the basement during normal operations if they 

stayed on the designated walkway. Action’s leadman testified that Action employees were never 

told that they were not “authorized personnel” who could not go under the cooling bed. Further, 

he testified that Gerdau’s maintenance technician had previously led him to a portion of the 

basement without following the designated walkway when the machines in the cooling bed were 

not locked out. In addition, it is not clear, based on the hearing testimony, whether Gerdau’s 

maintenance technician contemplated the hazard presented by the lowering of the counterweights

during the lockout process. According to Action’s leadman, Gerdau never informed him about 

the hazard or the step in the lockout process that releases the counterweights. 

2

 Gerdau written lockout procedure for the cooling bed provides as follows: 

1. Start—Lockout cooling bed hydraulic unit[.] 

2. Proceed to the 4 crank local station. Rotate rake counter weights to down 

position by using the E-stop for the cooling bed rake which trips the rake 

drive and allows counter weights to fall to the zero energy state (down). 

3. Proceed to #1 chain disconnect, under the cooling bed, lockout chain 1 

motor disconnect. 

4. Proceed to #2 chain disconnect, under the cooling bed, lockout chain 2 

motor disconnect. 

5. Proceed to #2 chain lift disconnect, under the cooling bed, lockout the chain 

2 lift motor disconnect. 

6. Proceed to East side of cooling bed and lockout run out roll line disconnects 

on East wall.

7. Proceed to the North mezz and rack out the cooling bed rake drive and lock 

it in the open position. 

8. Proceed to the cooling bed wiper (deflector) drive and lockout the drive 

disconnect. 

9. Proceed to the cooling bed run in roll drives (two drives) and lock out the 

drives disconnects. 

10. Tryout cooling bed equipment by call mill operations members to try each 

piece of equipment. 
18 

project,3 Action did not lockout the cooling bed per Gerdau’s policy prohibiting it from doing so, 

and Gerdau locked out everything but the fans, leaving those unlocked so that Action could test 

the repairs as its work progressed. 

On the morning of the accident, Gerdau’s cooling bed maintenance technician told the 

Action leadman on the project that he would meet the leadman at the basement’s entrance after 

locking out the cooling bed. Gerdau’s maintenance technician, however, got diverted on 

unrelated matters for about 50 minutes and then began the lockout procedure for the cooling bed, 

which normally takes about 20 minutes.

4

 When the maintenance technician began the lockout, 

he did not know where the Action employees were and admitted that he could not have seen 

them if they were underneath the cooling bed; nor did he require the Action employees to be 

present for the lockout so that they could witness the shutdown and isolation of necessary 

energies and the verification process. After meeting with the Gerdau maintenance technician, 

the Action leadman and an apprentice proceeded to the basement to view the area where the 

remaining fans were to be replaced. Prior to entering the basement, the Action leadman filled 

out a Gerdau work authorization permit, a form required of all Gerdau contractors.5

However, because its leadman, Action contends, did not believe that they had begun 

work on the fans by viewing them from the basement, he did not have Gerdau’s maintenance 

technician sign the work permit to verify that the lockout procedure was complete and Action’s 

work could begin, nor did he or the apprentice affix their locks to the group lockbox6—both 

steps Gerdau also required before work could begin. Once in the basement, the Action leadman 

and apprentice left the walkway, as the leadman had previously done with the Gerdau 

 

3

 Action had already replaced 14 of the 17 fans deemed as needing replacement. 

4

 Regarding his notice to the Action employees, the maintenance technician stated:

Q: And, at no time did you ever tell anybody in Action Electric, “Hey, I'm 

doing this lockout/tagout. I'm releasing stored energy down there”? 

A: Correct.

5 The work permit states that “[t]he following sections . . . shall be filled out in full by the 

Contractor prior to any work being performed.” According to Action’s leadman, “as long as we 

weren’t physically working on the equipment or whatever, you didn’t have to have a work 

permit.” Nevertheless, the portion of the work permit that was completed indicated that the work 

to be performed was “replace fans.” In addition, the permit indicated that lockout was to be 

performed. However, there is no indication as to what machine or equipment required lockout. 

6

 The group lockbox is a portable box generally kept in the area north of the cooling bed. 
19 

technician,7 and walked to the area where the fans were located. The Action leadman and 

apprentice had no tools or equipment with them. Unaware that the two Action employees were 

in the basement, Gerdau’s technician started the cooling bed lockout procedure. When he did so, 

one of the counterweights fell from its resting position of one o’clock to its de-energized position 

of six o’clock, fatally striking the Action apprentice and coming within inches of hitting the 

leadman. Action does not dispute that while the employees were discussing their work on the 

fans, the counterweights fell because of the release of stored energy during the process of locking 

out the cooling bed. 

Discussion

The Secretary issued Action a citation alleging that it violated 29 C.F.R. 

§ 1910.147(f)(3)(ii)(D) by failing to affix personal lockout or tagout devices on the group 

lockbox before its employees began servicing work on the fans.8

 While there is no dispute that 

the work Action was engaged to do—repairing and/or replacing the fans—constitutes servicing 

and maintenance work, see § 1910.147(b) (definition of “servicing and/or maintenance” includes 

“constructing” and “installing”), what is in dispute is the LOTO standard’s application to the 

activities of Action’s employees at the time of the accident.

On review, Action reiterates the argument it made before the judge—that the LOTO 

standard is inapplicable here because the cooling bed was not the “machine or equipment” that 

Action was to service. Further, Action contends that even if the cooling bed and fans were 

viewed as one machine, its employees were performing no covered work—service or 

maintenance—when the accident occurred but were only viewing the area where the work was to 

be performed. It is the Secretary’s position that under the LOTO standard the cooling bed 

includes not only component parts, such as the rakes, motors, rotating shafts, gear boxes, and 

 

7 As previously noted, according to Action’s leadman, the Gerdau maintenance technician had, 

on other occasions in order to survey and identify the fans, led the Action leadman to a portion of 

the basement without following the designated walkway and without locking out the machines in 

the cooling bed. 

8 This provision states that “[e]ach authorized employee shall affix a personal lockout or tagout

device to the group lockout device, group lockbox, or comparable mechanism when he or she 

begins work, and shall remove those devices when he or she stops working on the machine or 

equipment being serviced or maintained.” 29 C.F.R. § 1910.147(f)(3)(ii)(D) (emphasis added).

The LOTO standard defines an “authorized employee” as “[a] person who locks out or tags out 

machines or equipment in order to perform servicing or maintenance on that machine or 

equipment.” 29 C.F.R. § 1910.147(b). 
20 

counterweights, but also the fans—constituting a single, integrated operating system. The 

Secretary asserts, under this theory, that the cooling bed and fans are components of a single 

machine; thus, because Action was to work on the fans, its “authorized” employees were

responsible for affixing their locks to the group lockbox of the entire cooling bed, including the 

counterweights and fans. On the second issue, the Secretary contends that, given his theory that 

the cooling bed and fans are a single machine, Action’s activities at the time of the alleged 

violation constituted “servicing and maintenance” work because “visual observation of 

equipment that is reasonably related to hands-on servicing and maintenance, and puts employees 

within the zone of danger . . . constitutes ‘inspecting’ activity” within the meaning of the LOTO 

standard. 

The judge rejected the Secretary’s argument that the cooling bed and fans operated as a 

single, integrated system; rather, he found that they operated independently and were subject to 

separate lockouts. Further, he found that Action had not violated the LOTO standard with 

respect to the fans to be serviced on the day in question because service or maintenance work on 

these fans had not begun when the accident occurred; so, Action’s employees could not have 

been exposed to the unexpected energization or release of hazardous energy from the fans. 

Therefore, the judge concluded that the Secretary had failed to prove that the cited standard 

applied and vacated the citation. 

I. The LOTO Standard Applied Only to Action’s Work on the Fans. 

The scope provision of the LOTO standard states that “[t]his standard covers the 

servicing and maintenance of machines and equipment in which the unexpected energization or 

start up of the machines or equipment, or release of stored energy, could cause injury to 

employees.” 29 C.F.R. § 1910.147(a)(1)(i). The LOTO standard further provides in 

§ 1910.147(a)(2) that “[t]his standard applies to the control of energy during servicing and/or 

maintenance of machines and equipment.” Thus, the predicate issue for determining 

applicability is whether the cooling bed and fans constitute one machine.9

 My colleague’s desire 

to reach a preordained result is evident by her constant and not-so-subtle references to the 

“machine” in question as the cooling bed. Repeatedly signaling her conclusion before 

conducting the necessary analysis is the epitome of putting the cart before the horse.

 

9 The second issue before the Commission is whether a covered machine was being serviced. 

See 29 C.F.R. § 1910.147(a)(2) (requiring “servicing and/or maintenance” of “machine” in order 

for LOTO to apply). 
21 

The LOTO standard does not define “machine.” The dictionary definition of “machine” 

is “an apparatus, made of organized, interacting parts, which takes in some form of energy, 

modifies it, and delivers it in a more suitable form for a desired function.” The New Lexicon 

Webster’s Dictionary of the English Language 595 (1987). In order to meet the “machine”

requirement for applicability, the Secretary bundles an entire process—the cooling and 

transporting of hot steel, using a series of machines and procedures—into a “single integrated 

system.” However, this novel “single integrated system” theory is not found anywhere in the 

LOTO standard, its preamble, or subsequent publications related to the standard.10

The Commission previously faced the issue of what constitutes a “machine” under the 

LOTO standard in Timken Co., 20 BNA OSHC 1070 (No. 97-970, 2003). In Timken, a steel 

plant employee was repairing a drive bar on a teeming car, which is a railroad type of car. The 

teeming car was designed to transport steel from various points in the plant with the assistance of 

a traverser, an independent motorized unit with railroad tracks on top of it that allowed teeming 

cars to move from slots onto the traverser. The Timken employee was injured while servicing 

the teeming car when a traverser moved past the slot where the employee was working and 

amputated her right foot and the toes of her left foot. The teeming car was locked out but the

traverser was not. The Secretary cited Timken for a serious violation of the LOTO standard for 

failing to require lockout of the traverser while repairs were made to teeming cars. The 

Secretary argued that the traverser and the teeming car were part of the same piece of equipment. 

The judge and Commission disagreed. While two Commissioners agreed in Timken that the 

LOTO standard did not apply, they could not agree on the appropriate disposition of the case on 

 

10 My colleague states that this case is not novel. However, apart from the separate opinions in 

Timken Co., 20 BNA OSHC 1070 (No. 97-970, 2003), the Commission has not addressed the 

issue of what “machine” was being serviced. Additionally, as the discussion that follows 

demonstrates, the Timken separate opinions do not even support my colleague’s conclusion that 

the result she would reach is based on “well-established legal principles.” Instead, my colleague 

makes liberal use of foreshadowing phrases such as “useful purpose,” “functionally integrated,” 

“single goal,” and “coordinated fashion” when describing the relationship between the fans and 

the cooling bed to suggest that separate machines or equipment became one and thus fit within 

the scope provision of the LOTO standard. Such catch-phrases have not been, and are not, the 

proper test. It remains: what was the machine being serviced? 
22 

the merits. Thus, the Commission vacated the direction for review, leaving the judge’s decision 

as unreviewed, with no precedential effect.11

Still, the separate opinions in Timken are instructive regarding what constitutes a 

“machine” within the meaning of the LOTO standard. In Timken, in finding the Secretary’s 

interpretation unreasonable, then-Commissioner Rogers highlighted a 1999 OSHA memorandum 

based on a factual scenario substantially similar to those present in Timken, which cast doubt on 

the consistency of the Secretary’s interpretation in that case regarding the LOTO standard’s 

applicability. 20 BNA OSHA at 1073 (citing Memorandum from Richard E. Fairfax, Director, 

OSHA Directorate of Compliance Programs, to Michael Connors, Regional Administrator (Oct. 

5, 1999), available at http://www.osha.gov). Specifically, the memorandum stated: “[T]he 

machine guarding Subpart O requirements would apply in the scenario where an authorized 

employee is performing servicing or maintenance activities on one machine and is exposed to 

machine hazards from an adjacent machine or piece of equipment in the normal production mode 

of operation.” Id. Then-Chairman Railton similarly reasoned that the LOTO standard was 

inapplicable because the traverser and teeming cars “functioned independently” and were “not 

part of the same equipment.” Id. at 1072, 1076. 

Both Chairman Railton and Commissioner Rogers determined that the traverser and the 

teeming cars operated independently, highlighting that the traverser was not fixed nor 

 

11 Timken is not precedent because while the participating Commission members did “agree[] 

that the LOTO standard [did] not apply,” they were “divided on the . . . merits regarding the 

section 5(a)(1) alternative charge. Timken Co., 20 BNA OSHC at 1072. I am not certain why 

my colleague points to another case involving the same employer, because it is clear that this 

later Timken case did not involve the issue of what constitutes a “machine” under the LOTO 

standard. The issue in Timken Co., 20 BNA OSHRC 2034 (No. 97-1457, 2004), was whether the 

employer had met the LOTO standard’s training requirements. Again, the two Commission 

members could not agree on the disposition of the case, and the direction for review was vacated. 

My colleague highlights a footnote in this later, non-precedential decision in which formerCommissioner Rogers states, regarding the machines and equipment at issue, “It is undisputed 

that it all should have been locked out . . . .” Id. at 2045 n.4. However, it does not appear that 

former-Chairman Railton agreed in his separate opinion that this was undisputed. In any event, I 

do not find the later Timken case to be instructive here. If anything, “Timken II” reiterates that 

the two participating Commission members agreed that the LOTO standard did not cover the 

separate machines in the earlier case. See id. (then-Commissioner Rogers’s footnote stating, 

while describing the earlier Timken case, that “both sitting Commissioners affirmed [the judge’s] 

finding that movement of [the traverser] . . . was completely independent of employee repairs 

performed on railcar . . . and thus [LOTO] standard did not apply . . . .”). 
23 

permanently attached to the teeming car and that the sole function of the traverser was to 

transport the teeming cars. In sum, in Timken, both Commission members drew an important 

distinction between the function of an entire plant, in which many components may work 

together or in a series to produce a product, and systems within a plant that function 

independently and can be separately locked out for service and maintenance. 

Following Timken, OSHA issued Directive CPL 02-00-147, which states, in relevant part: 

BB. Servicing and/or maintenance. Workplace activities such as constructing, 

installing, setting up, adjusting, inspecting, modifying, maintaining and/or 

servicing machines or equipment. These activities include lubrication, 

cleaning or un-jamming of machines or equipment and making 

adjustments or tool changes, where the employee may be exposed to the 

unexpected energization or start-up of the equipment or release of 

hazardous energy . . . . 

NOTE: Activities where servicing and/or maintenance activities are not 

being performed on the associated machines or equipment are not covered 

by the LOTO standard. For example, some rescue activities may basically 

involve the removal of persons (e.g., elevator rescue) without any 

equipment disassembly or servicing . . . . 

Also, the standard requires employers to establish an energy control 

program to control hazardous energy that otherwise might injure or kill 

employees who service or maintain machines/equipment. However, the 

LOTO standard does not apply to equipment or machinery that is not the 

subject of the servicing or maintenance activity and that functions 

independently from, and is not a sub-system of, the machine/equipment 

being serviced or maintained. If authorized employees are exposed to 

hazardous energy associated with such an adjacent machine/piece of 

equipment while performing servicing/maintenance work on an 

independent, unrelated machine/piece of equipment, an employer’s 

obligations are established by Section 5(a)(1) of the OSH Act or other 

relevant standards, such as the Machine guarding (Subpart O) 

requirements. See The Timken Company (OSHRC Docket No. 97-0970, 

2003). 

OSHA Instruction CPL 02-00-147, Feb. 11, 2008, Chap. 1 at 10 (emphasis added). Thus, in 

light of Timken, OSHA’s directive clarifies that maintenance or servicing of “associated 

machines or equipment” is not covered by the LOTO standard.12 The directive specifically cites 

Timken and unambiguously states that “the LOTO standard does not apply to equipment or 

 

12 I note that the CPL is not binding on the Secretary. However, the Commission has relied on 

CPLs to support an interpretation of a standard in the past. See, e.g., Drexel Chem. Co., 17 BNA 

OSHC 1908, 1910 n.3 (No. 94-1460, 1997). 
24 

machinery that is not the subject of the servicing and maintenance activity and that functions 

independently from, and is not a sub-system of, the machine/equipment being serviced or 

maintained.” Id. OSHA also reiterates that the LOTO standard is intended to supplement the 

guarding standards. Id.

Despite what OSHA states in its directive, the Secretary repeats the errors of Timken here

and again attempts to blur the line between a “single piece of equipment” and an “adjacent, 

independent machine” by coining a new phrase for his theory—a “single integrated system.” 

Like the judge, I would find that relying on this theory for the application of the LOTO standard 

in this case is unreasonable. Similar to the traverser and teeming cars in Timken, the fans and 

counterweights at issue here operate independently and are not directly connected or attached to 

each other. The fans have no electrical or hydraulic connection with the rakes, counterweights, 

drive shaft, drive motors, or chains of the cooling bed.13 For example, there are no electrical 

connections between the drive chains that move the rakes up and down and the heated metal 

across the bed and the fans—connections that, for example, turn the fans on when the drive 

chains turn on. To lock out the fans, according to Gerdau’s cooling bed maintenance technician, 

“[a]ll you’ve got to do to turn the power off on the fans is to throw those knife switches and lock 

them out.”14 At the fan’s disconnect, there is a place to put the lock. Unsurprisingly, this step is 

not included in Gerdau’s written procedure for locking out the cooling bed. Indeed, the fans and 

counterweights serve very different purposes: the sole function of the counterweights is to move 

the rakes, which in turn move the billets; the sole function of the fans is to circulate air.15 In 

 

13 My colleague attaches an exhibit—a photo of the cooling bed area—to her separate opinion. I 

have attached another exhibit, Exhibit C-1R, a photo of the basement, which shows the support 

structure for the cooling bed. Concrete pillars support the steel cross-beams, on top of which the 

rake frame sits. Depicted in the far left corner of the photograph are the fans, which are simply 

attached to a rail by four bolts. 

14 Gerdau’s cooling bed maintenance technician testified that he believed, “if [he was] not 

mistaken” there might be heat sensors that read the temperature and turn the fans off and on. It is 

not clear whether the judge credited this equivocal statement. In any event, if credited, I would 

not find that such a fact means the fans are connected to the cooling bed, rendering this a single 

machine.

15 In fact, on the day of the accident, while four Action employees were scheduled to work on the 

fans, an employee of another contractor was present to work on the cooling bed. As my 

colleague points out, the record is not developed as to whether this contractor had commenced 

work—or “servicing and/or maintenance”—necessitating lockout of the cooling bed at the time 

of the accident. We only know that this contractor was there to perform maintenance on the 
25 

sum, the fans and counterweights cannot be interconnected components constituting a single 

machine,16 and so I would conclude that the Secretary’s interpretation of “machine” in this case 

is not reasonable and, therefore, not entitled to deference.17

The preamble to the LOTO standard further supports the conclusion that the LOTO 

standard is not a one-size-fits-all solution for citing hazards from energized machinery.18 The 

preamble provides: 

With regard to servicing and/or maintenance which takes place during “normal 

production operations,” it is important to note that this standard is intended to 

work together with existing machine guarding provisions of Subpart O of part 

1910, primarily §§ 1910.212 (general machine guarding) and 1910.219 (guarding 

of power transmission apparatus). When a machine is used for production, 

§ 1910.212 requires that the point of operation be guarded. For example, when an 

employee is using a table saw to cut wooden parts, the employee would be 

protected by guards around the blade of the saw. If the employee needs to reach 

into the point of operation in order to adjust the work piece as part of the 

production process, § 1910.212 requires that the guarding protection be 

maintained. As long as guarding is not removed or bypassed, the lockout/tagout 

standard is not intended to apply to these types of situations. By contrast, using 

the same table saw, it may be necessary for the employee to remove a piece of 

wood which has become jammed against the blade of the saw. In doing so, the 

 

“grease system” for the cooling bed. Therefore, given the scarcity of the record on this point, the 

presence of this other contractor’s employee cannot be, as my colleague contends, “an additional 

basis for finding applicability.”

16 As noted, the counterweights are included in Gerdau’s written lockout procedure for the 

cooling bed; the fans are not. Thus, even if the cooling bed were locked out pursuant to the 

written procedure, each Action “authorized employee” performing service or maintenance on the 

fans—the job the company was hired to do—still would have needed to lock out the fans in order 

to repair/replace them.

17 The Commission defers to the Secretary’s reasonable interpretation of an ambiguous 

regulation if it “sensibly conforms to the purpose and wording of the regulation” taking into 

account “whether the Secretary has consistently applied the interpretation embodied in the 

citation,” “the adequacy of notice to regulated parties,” and “the quality of the Secretary’s 

elaboration of pertinent policy considerations.” Martin v. OSHRC, 499 U.S. 144, 150-51, 157-58 

(1991). While the definition of “machine and equipment” under the LOTO standard is 

ambiguous, as discussed, I would conclude that the Secretary’s novel “single integrated system” 

theory is not reasonable and is not entitled to deference. 

18 See Martin v. Am. Cyanamid Co., 5 F.3d 140, 145 (6th Cir. 1993) (holding preamble to 

regulation may be consulted in determining administrative construction and meaning of 

regulation); Phelps Dodge Corp., 11 BNA OSHC 1441, 1444 (No. 80-3203, 1983) (stating 

standard’s “preamble is the best and most authoritative statement of the Secretary’s . . . intent”), 

aff'd, 725 F.2d 1237 (9th Cir. 1984). 
26 

employee might need to bypass or remove the guard on the saw and reach into the 

point of operation. Although this action takes place “during” normal production 

operations, it is not actually production, but is servicing of the equipment to 

perform its production function. When such servicing may expose the employee 

to the unexpected activation of the machinery or equipment, or to the release of 

stored energy, this Final Rule will apply. If the servicing is performed in a way 

which prevents such exposure, such as by the use of special tools and/or 

alternative procedures which keep the employee’s body out of the areas of 

potential contact with machine components or which otherwise maintain effective 

guarding, this standard will not apply. Thus, lockout or tagout is not required by 

this standard if the employer can demonstrate that the alternative means enables 

the servicing employee to clean or unjam or otherwise service the machine 

without being exposed to unexpected energization or activation of the equipment 

or release of stored energy. 

Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36,644, 36,647 (Sept. 1, 

1989). The preamble emphasizes that the LOTO standard was not intended to cover every 

situation where there is a risk of unanticipated release of stored energy and did not repeal, but 

rather was intended to supplement, the machine guarding standard and the general duty clause.19 

Extending the language of the LOTO standard to a “single, integrated system,” when there are 

separate, independent pieces of equipment or machines, is contrary not only to the language of 

the standard but to the intent of the standard as expressed in its preamble. 

In this case, “the LOTO standard does not apply to equipment or machinery that is not 

the subject of the servicing and maintenance activity and that functions independently from, and 

is not a sub-system of, the machine/equipment being serviced or maintained.” See OSHA 

Instruction CPL 02-00-149, Chap. 1 at 10. The counterweights were not the “subject of the 

servicing and maintenance activity” undertaken by Action, and they “function[ed] independently 

from, and [were] not a subsystem of, the machine/equipment [the fans] being serviced or 

maintained.” I would therefore find that the cited LOTO standard did not apply. 

 

19 The Secretary (and my colleague) points to the waste hogger example in the preamble to the 

LOTO standard as an example of a complex, integrated machine made up of several parts. The 

final rule does not identify it as such, stating only that it is an example of a “[f]ailure to 

document and implement an effective control procedure.” 54 Fed. Reg. at 36,646. The example 

is not preceded or followed by any discussion supporting the conclusion that this is an example 

of a complex, integrated machine made up of several parts. In the waste hogger example, the 

conveyor was an operating component of the hogger upon which the work was being 

performed—in other words, the conveyor fed the hogger during its operation. The hogger had 

been shut down, but the conveyor feeding the hogger had not been when the accident occurred. 

Thus, as noted by the judge, this example is distinguishable from the facts in this case.
27 

It is true that overlapping hazards can arise from adjacent, but independent, pieces of 

machinery. Indeed, the LOTO standard contemplates numerous protections, including guarding 

and multiple lockouts that may need to occur to safely perform work—without turning complex, 

albeit separate machines, into a single machine.20 See 54 Fed. Reg. at 36,682 (discussing 29 

C.F.R. § 1910.147(f)(4) and recognizing that “servicing of some complex equipment may take 

days or weeks, and that in some cases, hundreds of lockout or tagout devices may be 

necessary”); cf. Drexel, 17 BNA OSHC at 1913 (“Because the standard requires the lockout 

procedures for each type of machine to be specifically defined, and because there are different 

types of machines at the plant, [respondent] must have more than one lockout procedure.”). This 

case is not about the indisputable proposition that an employer has a duty to protect employees 

under all applicable standards; rather, it is about whether a specific standard applies in the first 

place.21 See Se. Contractors, Inc., 1 BNA OSHC 1713, 1716 (No. 1445, 1974) (Moran, 

Chairman, dissenting) (“[T]here can be no violation of the Act by a respondent for failure to 

comply with a standard which charges some other employer with the duty of implementing the 

standard.”), dissent adopted on appeal, 512 F.2d 675 (5th Cir. 1975) (per curiam); see also 

Unarco Commercial Prods., 16 BNA OSHC 1499, 1499 (No. 89-1555, 1993) (vacating citation 

 

20 As the introduction to the standard's Appendix—which contains a “typical minimum lockout 

procedure”—states: “For more complex systems, more comprehensive procedures may need to 

be developed, documented and utilized.” 29 C.F.R. §1910.147 app. A. My colleague, in 

asserting that the fans’ “close physical proximity” to the other pieces of equipment translates into 

“complete functional integration” with them (and thereby rationalizing the leap to one “machine” 

under the LOTO standard), makes much of the Gerdau maintenance technician’s testimony

regarding the need to be “between the rakes in order to remove the fans.” However, immediately 

following the maintenance technician’s referenced testimony, was this exchange:

Q: So, when you’re referring to the words, “cooling bed equipment,” you’re 

referring to a multiple number of pieces of equipment and machines? 

A: Yes.

21 My colleague claims that the judge failed to recognize the hazard faced by the Action leadman 

and apprentice, but this is not true. There is no doubt that the two Action employees were 

exposed to the hazard of the counterweights falling from the release of stored energy. However, 

this does not make the cited standard applicable. To the extent that the Secretary’s choice of 

language does not effectuate what the Secretary may have intended, the remedy lies in further 

rulemaking by the Secretary, not asking for deference to an unreasonable interpretation that is 

not supported by the standard and its preamble as promulgated. See Diamond Roofing v. 

OSHRC, 528 F.2d 645, 650 (5th Cir. 1976) (regulations cannot be construed to mean what an 

agency intended but did not adequately express). 
28 

based on plain language of standard, and stating that “the test for the applicability of any 

statutory or regulatory provision looks first to the text and structure of the statute or regulations 

whose applicability is questioned”) (citations omitted).

Moreover, the notion that separate machines—like the fans and counterweights, which 

completely lack any physical, hydraulic, or electrical connection—should be considered one 

machine for LOTO purposes obliterates the language of the LOTO standard, as well as the 

interplay between LOTO and the guarding of adjacent machines, which the standard already 

considered and the Secretary addressed in his post-Timken guidance. Additionally, this notion is 

unworkable. For example, an automobile plant consists of hundreds of machines. Like the 

cooling bed and fans in this case, many of those machines have no physical, hydraulic, or 

electrical inter-connection. However, they are all used to produce car components and, 

ultimately, cars. Under the Secretary’s single integrated system theory, it is impossible to 

discern where a machine begins and ends.22 Are all the machines connected by a conveyor 

system that builds the car a single integrated system? Or are the machines connected by a 

conveyor system that builds just the doors of a car a single integrated system? Under the 

Secretary’s theory, any of these could be a single integrated system as, according to the 

Secretary, “they’re all part of one big system.” 

Action rightly states that this approach would “wreak havoc . . . by reducing entire 

factories to fictional ‘single units,’ dumping the existing [regulatory] scheme which pairs 

specific hazards with specific requirements in favor of a stretch-to-fit ‘gotcha’ theory.” In this 

case, the Secretary chose to issue a single LOTO citation for all the machines he claims made up 

the cooling bed. However, in Dayton Tire, 23 BNA OSHC 1247 (No. 94-1374, 2010), aff’d in 

part, rev’d in part, 671 F.3d 1249 (D.C. Cir. 2012), the Secretary cited Dayton on a permachine-type basis under § 1910.147(c)(4)(i), the LOTO standard’s energy control procedure 

 

22 My colleague takes issue with this point. Her broad claim that the cooling bed cannot achieve 

its function without the operation of the fans merely amplifies my concerns. As with many 

production lines, the manufacturing process will include equipment and systems that control 

factors such as temperature, humidity, air, and moisture. The very nature of an assembly or 

production line requires separate machines or pieces of equipment to work together to achieve a 

single goal—whether that is turning scrap metal into structurally useful forms, curing a baked 

coating to “paint” a car, extruding a plastic film on a food packaging line, or assembling a car 

door or an entire car. That equipment controlling such factors is critical to the output or quality 

of a finished product does not make everything that contributes to the process one collective 

“machine.”
29 

provision, because the separate machines were “differently configured, ha[d] multiple energy 

sources, or [were] particularly complex.” Id. at 1258 (noting that Dayton’s single LOTO 

procedure “was particularly ineffective for employees attempting to utilize LOTO before 

servicing the particular piece of equipment at issue” and noting seven different complex 

machines that were differently configured). Utilizing his new single integrated system theory, 

the Secretary now wants to claim that multiple pieces of equipment at a worksite constitute either 

a single-integrated machine or separate types of machines, leaving the regulated community with 

no way of knowing what the Secretary will identify as a machine.

An employer lacking fair notice of a standard cannot be found in violation of the Act for 

failure to comply with that standard. See, e.g., S.G. Loewendick & Sons, Inc. v. Sec’y of Labor, 

70 F.3d 1291, 1297 (D.C. Cir. 1995) (“Congress and the courts require that agency action reflect 

clear, rational decision making that gives regulated members of the public adequate notice of 

their obligations.”); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-39 (6th Cir. 1978)

(“[S]tatutes and regulations which purport to govern conduct must give an adequate warning of 

what they command or forbid.”); Cardinal Indus., 14 BNA OSHC 1008, 1011, (No. 82-427, 

1989); Lisbon Contractors, Inc., 11 BNA OSHC 1971, 1974 (No. 80-97, 1984) (“A construction 

of a standard that bears no reasonable relationship to the standard’s plain words cannot be 

expected to guide employers in their conduct.”). In my view, the Secretary’s “single integrated 

system” theory does nothing to guide employers or employees through the lockout process. In 

light of its dubious legal foundation, if the citation had been affirmed here, the single integrated 

system theory would have far reaching consequences that could afford the Secretary almost 

unfettered discretion as to the breadth of the LOTO standard, thereby eliminating fair notice to 

the regulated community. 

II. Action’s Employees Were Not Engaged in Servicing or Maintenance 

Because I would agree with the judge that the fans were not part of a single “machine or 

equipment” that includes the cooling bed, there is no need to reach the issue of whether Action 

employees were engaged in service or maintenance work at the time of the accident. However, 

even if I were to disagree with the judge on the predicate issue, I would find that viewing the 

fans from basement was not “servicing or maintenance” work covered by the LOTO standard. 

The irrationality of the first part of the Secretary’s analysis—determining what is a machine—

figures prominently in assessing whether such work occurred. Because of the Secretary’s 
30 

unreasonably broad view of “machine,” simply looking at a fan becomes servicing or 

maintenance—or as the Secretary posits, “visually observing.” Again, using the auto assembly 

line as an example, when does “visually observing” a line become service or maintenance? 

Under the Secretary’s theory, anytime an employee is looking at the line, he or she is in the zone 

of danger sought to be protected by the LOTO standard. 

Rather, the LOTO standard “covers the servicing and maintenance of machines and 

equipment,” 29 C.F.R. § 1910.147(a)(1)(i), and defines “[s]ervicing and/or maintenance” as 

follows: 

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. 

29 C.F.R. § 1910.147(b) (emphasis in original). Nowhere can “visually observing” be found in 

the definition of “servicing and/or maintenance.” In attempting to fit within one of the examples 

included in the definition, the Secretary contends that the activities of Action’s employees 

constituted “inspecting” activities within the meaning of section 1910.147(b). Although 

“inspect” is not defined in the LOTO standard, “inspect” means “to view closely in critical 

appraisal,” or “to examine formally, e.g. for completeness or quality.” Webster’s New Collegiate 

Dictionary 592 (1979); The New Lexicon Webster’s Dictionary of the English Language 501 

(1987). 

The judge concluded that “the two Action employees were not engaged in servicing and 

maintenance work when in the basement discussing their replacement work on the fans,” because 

“[t]here is no showing that [they] were exposed to the unexpected energization or release of 

hazardous energy from the fans while engaged in their viewing and discussing activities.” I 

would agree. The critical issue contemplated by OSHA’s definition of “servicing and/or 

maintenance” is whether the employee is exposed to an “unexpected energization or start up of

the machines or equipment, or release of hazardous energy.” In this case, Action’s employees 

were not in contact with the fans, nor were they even within eight feet of them.23 The Secretary 

 

23 The preposterousness of the contention that such activities are “servicing and/or maintenance” 

is more apparent when considering that, while in the basement, the Action leadman merely

pointed out the three remaining fans—“that one, that one, and that one”—they were going to
31 

has made no showing that Action’s leadman or apprentice was exposed to the unexpected 

energization or release of hazardous energy from the fans while engaged in viewing or 

discussing the work to be done on the fans. Again, any other interpretation would lead to absurd 

consequences, as it would lead to the safe activity of looking at a piece of equipment (even from 

across the room or through a window) as being “inspecting” subject to the LOTO standard. 

Therefore, I would conclude that Action’s work on the fans at the time of the alleged violation 

does not constitute “servicing and maintenance.”

For all the foregoing reasons, I would affirm the judge’s decision and vacate the citation. 

/s/ 

Heather L. MacDougall

Dated: July 6, 2016 Commissioner

 

replace. According to his testimony, “we [were] looking at the fans,” because the Action 

apprentice had not worked on this project previously, and so “I had to show [him] because he . . . 

wouldn’t know which ones to replace.” 
32 

Attachment: Exhibit C-1R 

 
33 
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant, 

 v. OSHRC Docket No. 12-1496 

Action Electric Company, 

 Respondent. 

Appearances:

Melanie L. Paul, Esq.

Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia

For the Complainant

J. Larry Stine, Esq., and Mark A. Waschak, Esq.

Wimberly, Lawson, Steckel, Schneider & Stine, Atlanta, Georgia

For the Respondent

Before: Administrative Law Judge Ken S. Welsch 

DECISION AND ORDER

Action Electric Co., Inc. (Action) provides electrical services to businesses. On 

December 7, 2011, under a contract with a steel mill in Cartersville, Georgia, to replace 

seventeen fans at the cooling bed during a shutdown, an Action leadman/electrician and an 

apprentice went into the cooling bed basement to discuss replacing the last three fans. While 

discussing their work, a counterweight which provided movement to the racks on the cooling bed 

fell from an upright position to the down position when the steel mill maintenance technician 

initiated the mill lockout procedures. When the counterweight fell, the apprentice was fatally 

struck from behind and it narrowly missed the leadman. As a result of an inspection by the 

Occupational Safety and Health Administration (OSHA), Action was issued a serious citation on 

May 31, 2012. Action timely contested the citation. 

The serious citation alleges that Action violated 29 C.F.R. § 1910.147(c)(7)(i) (item 1) by 

failing to train its employees on the purpose and function of an energy control program and 
2 

29 C.F.R. § 1910.147(f)(3)(ii)(D) (item 2) by failing to affix personal lockout or tagout (LOTO) 

devices on the group lockbox before the employees began servicing work on the fans. The 

serious citation proposes a $7,000.00 penalty for the alleged item 2 violation. 

The hearing was held on December 18-19, 2012, in Atlanta, Georgia. The parties 

stipulated jurisdiction and coverage (Tr. 4). The Secretary withdrew item 1, alleged violation of 

29 C.F.R. § 1910.147(c)(7)(i) (Tr. 3). The post-hearing briefs were filed on February 22, 2013. 

Action denies the applicability of § 1910.147, the LOTO standards, because at the time of 

the accident the employees were not servicing the fans and the counterweight was not connected 

to or associated with the operation of the fans. Also, Action claims the steel mill technician 

failed to ensure that the Action employees were free from hazard before locking out the cooling 

bed.41

For the reasons discussed, § 1910.147(f)(3)(ii)(D) is found not applicable. The citation 

item 2 is vacated and no penalty is assessed. 

The Accident

Action is in business to provide electrical services to commercial and industrial 

companies. Action employs more than 100 employees. Its office is located in Smyrna, Georgia 

(Tr. 185, 456). 

Since 2004, Action, as an approved contractor, has provided electrical service and repair 

work to the Gerdau Ameristeel US steel mill in Cartersville, Georgia. The steel mill operates 

24/7 in melting scrap metal, casting it, and rolling it into angles, channels, flats, and I-beams for 

structural uses. When the metal is heated and rolled, it is hot, approximately 1600 degrees, and 

must be cooled before it goes through the straightener (Tr. 24, 39). 

To cool the heated metal, the mill moves the metal by conveyor onto the cooling bed 

from the east side and rakes with grooves “walk” the metal across the bed as the bed moves up 

and down until it reaches the conveyor which carries the metal to the straightener. The cooling 

bed is approximately 325 feet long and 100 feet wide. The heated metal is on the cooling bed for 

approximately one hour. Along the west side of the cooling bed, there are one hundred ten, 3-

foot by 3-foot, rotary fans which blow air across the cooling bed. The fans are bolted to a rail 

 

41 Issues that are not briefed are deemed waived. See Georgia-Pacific Corp., 15 BNA OSHC 1127 (No. 89-2713, 

1991). At the hearing, Action withdrew its employee misconduct defense and represented that it is not claiming “the 

employees did anything wrong” (Tr. 7). 
3 

underneath the cooling bed, approximately 8 feet above the basement floor. The fans are 

powered by electricity and there are four disconnects to disconnect all the fans (Exhs. C-1, C-9; 

Tr. 25, 82, 191, 229, 241, 250, 252, 285). 

The basement under the cooling bed houses numerous mechanical devices including 

drive motors, rotating shafts, counterweights, chains, drive pulleys, gear boxes, walking beams, 

and other equipment which lift the cooling bed and move the rakes. There are four access points 

to the basement; the main ones at the north and south ends, and two others at entrances on the 

east and west sides that are used infrequently. From the north/south entrances, there is a 

designated walkway through the basement demarcated by overhead lights, faded yellow paint on 

the floor, and chain ropes on both sides wrapped from column to column extending almost the 

entire length of the basement. The designated walkway is the only safe place to walk in the 

basement when the cooling bed is in operation. Signs at the entrances to the basement state 

“authorized personnel only.” There are other signs around the cooling bed which state “Do not 

enter without lockout/tagout.” No mill employees work in the basement. While the cooling bed 

is in operation, the designated walkway is occasionally used by quality control employees to 

observe the metal on the cooling bed (Tr. 83, 209-210, 230-232). 

The counterweights, which move the rakes, make one to three, 360 degree revolutions in 

a clockwise direction during operation and are located in three rows approximately every 15 feet

in a north/south direction throughout the cooling bed basement. As with other mechanical 

devices in the basement, there are no guards around the counterweights other than the chain at 

the designated walkway. During operation, the counterweights’ resting position is at one 

o’clock. When the cooling bed is de-energized and locked out, the counterweights which weigh 

“tons of pounds” each, fall from gravity to the six o’clock position (Tr. 84-85, 215, 230). 

During shutdown, when servicing and maintenance work is scheduled in the cooling bed 

basement, the steel mill requires that the machines and equipment be locked out. The lock out is 

performed by the mill’s cooling bed maintenance technician and takes approximately 20 

minutes. It involves locking out the machines and equipment at various locations around the bed 

(Tr. 233, 247). 

In October 2011, the steel mill requested Action to service and replace, as needed, the 

approximate one hundred ten fans at the cooling bed. An Action leadman and the mill technician 
4 

responsible for the cooling bed made an evaluation of the fans and determined that seventeen

fans needed to be replaced. To replace the fans, Action needed access to the basement (Tr. 243). 

On December 9, 2011, during the mill shut down, the Action leadman and an apprentice 

met at the technician’s office at 7:15 a.m. to prepare to replace three fans. Action had already 

replaced fourteen of the fans on two earlier occasions. The Action leadman, a journeyman 

electrician, had worked at the steel mill since 2005. The technician told the leadman that he 

would lockout the cooling bed and meet him later. The leadman understood that they were to 

meet at the north end entrance to the basement. After the conversation, the mill technician 

moved the three new fans by forklift to the north end of the cooling bed before initiating the 

mill’s cooling bed lockout procedures (Exhs. C-12A, R-3; Tr. 74, 290, 292-293, 388, 413). 

In the meantime, the Action leadman filled out the mill’s work permit without the 

technician’s signature and left it at the north end of the cooling bed with the group lockbox. He 

then sent the helpers to retrieve the tools and took the apprentice into the cooling bed basement 

by the north entrance. The leadman and apprentice walked through the basement, not on the 

designated walkway but over conduit, pipes, air lines, and under beams, to the location of the 

three fans. They were approximately 24 feet off the designated walkway. The cooling bed was 

shutdown so none of the machines and equipment was running. The apprentice had not worked 

on the fans and the leadman was discussing with him what work they were going to be doing. 

They did not physically touch or start any work on replacing the fans. The leadman knew the 

mill technician had not completed locking out the cooling bed (Tr. 116, 146-147, 197, 255, 369, 

373, 376, 397, 423). 

The technician did not know and could not see the Action employees were in the 

basement when he began the lockout procedure. When he initiated the counterweight lockout, 

the counterweight behind the leadman and apprentice fell from its resting position to the down 

position. As it fell, it fatally struck the apprentice from behind and missed the leadman by 

inches. The accident occurred at approximately 7:53 a.m. (Tr. 245, 294, 375, 383). 

A compliance safety officer and her supervisor initiated an OSHA inspection at 9:30 a.m. 

She took photographs/video of the cooling bed and basement, observed the cooling bed in 

operation on another date, reviewed documents involving the steel mill lockout procedures, and 
5 

interviewed employees of the steel mill and Action. As a result of the inspection, Action was 

issued the serious citation. The steel mill was not issued a citation (Tr. 420, 424, 455). 

The steel mill investigation into the accident determined that the cooling bed equipment 

was not locked out and the leadman did not verify that it was locked out although signing the 

work permit before entering the basement. The steel mill placed Action on conditional approval 

status as a contractor requiring Action to submit written specific safety plans for each job and 

hire a third party consultant to oversee its employees for two years. The leadman was removed 

from working at the steel mill but remains employed by Action. He was retrained on Action’s 

LOTO procedures (Exh. C-10; Tr. 142-143, 378, 381, 405). 

Discussion

Alleged Violations

In order to establish a violation of a safety standard as in this case, 

the Secretary has the burden of proving: (a) the applicability of the 

cited standard, (b) the employer’s noncompliance with the 

standard’s terms, (c) employee access to the violative conditions, 

and (d) the employer’s actual or constructive knowledge of the 

violation (i.e., the employer either knew, or with the exercise or 

reasonable diligence could have known, of the violative 

conditions). Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 

90-1747, 1994). 

There is no significant factual dispute. Although the Secretary has the burden of proof to 

establish a prima facie case, the only issue argued in Action’s post-hearing brief is the 

application of the LOTO standards at § 1910.147 to the work its employees were performing at 

the time of the accident.

Citation No. 1 

Alleged Violation of § 1910.147(f)(3)(ii)(D) (Item 2) 

The citation alleges that at “Rolling Mill Area: The employer (outside employer) did not 

ensure that each employee performing servicing and maintenance activities were in control of the 

hazardous energy throughout the entire period of exposure. Employees did not affix their 

personal lockout device to physically secure the isolating device(s) during the servicing or 

maintenance work performed as specified in the requirements of the group LOTO procedure nor 
6 

did they avoid working in this area until the lockout process was completed by the host 

employer, exposing themselves to struck-by hazards.” 
7 

Section 1910.147(f)(3)(ii)(D) provides: 

Each authorized employee shall affix a personal lockout or tagout 

device to the group lockout device, group lockbox, or comparable 

mechanism when he or she begins work, and shall remove those 

devices when he or she stops working on the machine or 

equipment being serviced or maintained.” 

The alleged violation relates to the failure of the Action employees to affix their locks on 

the group lockbox before entering the basement and beginning their servicing and maintenance 

work. The Action employees were part of a group lockout and were authorized employees who 

were there to replace three fans.42 There is no dispute that the employees did not affix their 

locks on the group lockout box prior to entering the basement (Tr. 367-368). The leadman 

acknowledges that “putting locks on group lock box is a necessary step to protect from 

unexpected energization of equipment” (Tr. 358). Also, replacing the fans constitutes servicing 

and maintenance work. See § 1910.147(b) definition of Servicing and/or maintenance which 

includes “constructing, installing.” 

Action does not dispute that while the employees were discussing their work on the fans, 

the counterweight fell because of stored energy when being locked out. As stated in the steel 

mill’s Cooling Bed LOTO Steps, “2. Proceed to the 4 crank local station. Rotate rake counter 

weights to down position by using the E-stop for the cooling bed rake which trips the rake drive 

and allows counter weights to fall to the zero energy state (down)” (Exh. C-12). Such stored 

energy, as described by the Secretary, is kinetic energy (motion) which is caused by the 

conversion of potential energy to kinetic energy after shutting down the machine or equipment. 

54 FR 36644, 36647 (September 1, 1989). 

Also, there is no issue that the two Action employees were exposed to the hazard of the 

counterweight falling from stored energy. The employees were standing within the swing radius 

(zone of danger) of the counterweight discussing their work on the fans. The apprentice was 

fatally struck by the counterweight and the leadman was within inches of being struck (Tr. 383, 

412, 421). 

With regard to employer knowledge, the leadman knew the cooling bed was not locked 

out when he entered the basement. He admitted that he had neither verified lockout nor affixed 

 

42 “An affected employee becomes an authorized employee when the employees’ duties include performing 

servicing or maintenance covered under this section.” 29 C.F.R. § 1910.147(b) definition of authorized employee. 
8 

his lock to the group lockout box. The lockout was not complete because the technician had not 

returned to perform verification and sign the work permit (Exh. C-11; Tr. 375-376). Also, the 

dangers of the cooling bed were visible and obvious. As the mill safety manager testified, 

“anybody with common sense watching it run will say all this stuff has to be turned off and shut 

down and locked out before you go down there” (Tr. 200). The leadman had worked at the mill 

since 2005. There was signage around the bed area warning employees not to enter the basement 

without locking it out and restricting access to only authorized personnel. 

The leadman’s knowledge is imputed to Action because as a supervisor, he was in charge 

of and supervised the apprentice and other Action employees. He assigned and directed the 

work. He conducted the job safety analyses, led safety meetings, had authority to issue verbal 

warnings, was responsible for crew safety, and could stop work (Tr. 343-345). 

In terms of failing to place their locks on the group lockbox, there is no dispute regarding 

the lack of compliance with the terms of the cited standard, employees’ exposure to the falling 

counterweight, and Action’s knowledge of the failure to lockout the fans and counterweight. 

The issue in dispute is the application of the LOTO standards to the counterweights and 

the work being performed by the Action employees at the time of the accident. Action argues 

that the standard does not apply because (1) OSHA’s LOTO requirements apply to the “servicing 

and maintenance” of the fans and did not apply to the counterweights, and (2) the employees 

were not performing “servicing and maintenance” work on the fans when the accident occurred. 

The court agrees with Action that the cited LOTO standard did not apply under the 

circumstances in this case.

Application of LOTO

The scope of the LOTO standards provides that “[t]his standard covers the servicing and 

maintenance of machines and equipment in which the unexpected energization or startup of the 

machines or equipment, or release of stored energy could cause injury to employees.” 29 C.F.R. 

§ 1910.147(a)(1)(i). There is no dispute that servicing and maintenance work on the fans would 

require compliance with LOTO. The issue is whether the LOTO requirements apply to the 

counterweights if the servicing and maintenance work is only on the fans. 

The application of the LOTO standards as described in § 1910.147(a)(2) provides, in 

part:
9 

(i) This standard applies to the control of energy during servicing 

and/or maintenance of machines and equipment. 

It is the Secretary’s position that under the application of the LOTO standards, all the 

machines and equipment in the cooling bed including the counterweights and fans constituted an 

operating system that posed a hazard during servicing and maintenance work. The Secretary 

argues that the fans and counterweights functioned together to move and cool the heated metal 

on the cooling bed before conveyed to the straightener. In order to safely replace the fans, the 

other machines and equipment including the counterweights, needed to be locked out to prevent 

the unexpected energization, startup, or release of stored energy from the machines and 

equipment around the fans and within the zone of danger of the work. The mill’s lockout 

procedures required locking out all the machines and equipment under the cooling bed before 

servicing and maintenance work was to be performed in the basement (Exh. C-12A; Tr. 247). 

As described by the technician responsible for implementing the lockout procedure, “[T]he 

equipment overlaps in so many different ways with the fans. You have chains that overlap with 

the fans, brakes. Basically the equipment acts as one, and if you were to go in and try to work on 

the fan, you would be directly in harm’s way by several different pinch points” (Tr. 276). 

1. OSHA’s LOTO Applied Only To The Fans 

The cooling bed consists of various machines and equipment such as rakes, chains, 

counterweights, drive shafts, motors, pulleys and fans which function separately to move and 

cool the heated metal across the bed. The cooling bed is not itself a machine or piece of 

equipment. It is a process that contains separate and distinct machines and equipment. The 

cooling bed is a system of rakes which move the heated metal by counterweights, drive shafts, 

motors, and chains (Tr. 288). The rakes are jagged so that the metal is caught inside the grooves, 

picked up and moved over the bed (Tr. 81). The rakes are powered by a system of gear boxes, 

chains, drive motors, walking beams, and counterweights (Tr. 83). 

The counterweights rotate on drive shafts and are powered by drive motors which move 

the rakes up and down and move the heated metal across the cooling bed (Tr. 230). The 

counterweights are in three rows approximately every 15 feet in a north/south direction. At least 

one row of counterweights is near the row of fans. 
10

The function and purpose of the fans is independent of the counterweights. The fans are 

not fixed nor permanently attached to the counterweights and rakes. The fans provide air 

movement to assist in cooling the heated metal as it moves across the bed. The fans are bolted to 

a beam or rail running the length of the bed below the rakes, approximately 8 feet above the 

basement floor (Tr. 120, 252). There are four disconnects that control the electric power to all 

one hundred ten fans (Tr. 276, 285). 

The mill’s written cooling bed lockout procedure shows that the various machines and 

equipment need to be separately locked out. The written procedure in place at the time of the 

accident did not include locking out the fans, which was the only equipment Action was 

authorized to work on and the only equipment Action could lockout when replacing/repairing the 

fans (Exh. C-12A; Tr. 392).43 The omission of the fans from the written lockout procedures 

underscores the fact the fans operated independently of the cooling bed. 

The record shows that the counterweights and fans are not connected or attached. The 

rakes, counterweights, drive shaft, drive motors, and chains were not the subject of Action’s 

servicing and maintenance work nor were the fans a component of or secured to the rakes and 

counterweights. The fans and counterweights serve different purposes and function differently, 

although part of the cooling bed process. The fans and counterweights are not interconnected 

components and have separate lockouts. 

According to the steel mill technician, there is no interconnection or sensor to make the 

fans operate when the counterweights are operating. There are no electrical connections between 

the fans and drive chains that tells the fans to turn on when the chain drives are on (Tr. 287). 

The fans are not part of a single integrated system such as the counterweights, drive shafts, drive 

motors, and chains which move the cooling bed up and down and the heated metal across the 

bed. The fans operated independently of the counterweights. 

Despite the Secretary’s attempt to characterize the cooling bed as one system, it is not

“material” based on the language in OSHA’s directive CPL 02-00-147 (November 11, 2008) 

(Exh. R-5). As shown by the directive, the LOTO standards do not apply to the counterweights 

 

43 The steel mill written procedure showing the lockout of the fans was rejected at the hearing because it could not 

be authenticated. The date of the document was after the accident and the technician could not remember seeing 

or using the document (Exh. C-21B; Tr. 277, 327). 
11

because it was not the subject of Action’s servicing of the fans and it functioned independently 

from and was not a sub-system of the fans being serviced. Chapter 1, IX. BB (p. 1-10) of the 

CPL which cites The Timken Company, 20 BNA OSHC 1070 (No. 97-0970, 2003) as a 

reference, 44 provides that: 

the LOTO standard does not apply to equipment or machinery that 

is not the subject of the servicing and maintenance activity and that 

functions independently from, and is not a sub-system of, the 

machine/equipment being serviced or maintained. If authorized 

employees are exposed hazardous energy associated with such an 

adjacent machine/piece of equipment while performing 

servicing/maintenance work on an independent, unrelated 

machine/piece of equipment, an employer’s obligations are 

established by Section 5(a)(1) of the OSH Act or other relevant 

standards, such as the Machine guarding (Subpart O) 

requirements” (Exh. R-5).

By its own language, OSHA’s CPL limits the application of LOTO to a “subsystem of, 

the machine/equipment being serviced or maintained.” The counterweights were not a subsystem of the fans. The fans were not an operating component of the counterweights. 

In the Timken case, an employee was repairing a drive bar on the teeming car in a slot 

adjacent to the traverser pit. Timken Co., 1998 CCH OSHD 31,688, p. 43,956-43,957 (No. 97-

0970, 1998, ALJ). The traverser and the teeming car were designed to transport the steel from 

points in the plant. The employee was injured while servicing the teeming car when the traverser 

car, an independent motorized unit that assisted in moving the teeming car, moved past the slot 

in which the employee was working and amputated his feet. The teeming car was locked out but 

the traverser car was not. The ALJ found that LOTO did not apply because the traverser was not 

a component of the teeming car. They were not interconnected or appurtenant components of a 

machine or equipment. They functioned independently; the traverser only moved the teaming 

cars, which held the ingot molds, from station to station for various processes. Once the 

traverser had moved the teeming car into a slot, it moved on to another assignment. In the case 

at issue, the fans also functioned independently of the counterweights. 

 

44 The Review Commissioners disagreed on the appropriate disposition of the case and vacated the direction for 

review, allowing the ALJ decision to become a final order with no precedential value as an un-reviewed ALJ 

decision. Timken Co., 20 BNA OSHC 1070, 1072 (No. 97-0970, 2003).
12

Also, it is noted that the Secretary in the LOTO standards uses the prepositions “on” or 

“of” when addressing the application of servicing and maintenance. See i.e. § 1910.147(a) and 

§ 1910.147(c). The standard at issue, § 1910.147(f)(3)(ii)(D), prohibits employees from 

“working on the machine or equipment being serviced or maintained” before putting their locks 

on the gang lockbox. The use of such prepositions connote “belonging to or connected with” 

and “in contact with” the machine and equipment. The Secretary’s definition of “servicing and 

maintenance” and her language throughout the LOTO standards make it clear that the equipment 

must be connected with, or in contact with, the machine and equipment being serviced and 

maintained. 

The preamble to the LOTO standard identifies seven typical accidents/hazards covered 

by LOTO and also shows the Secretary’s intent in applying LOTO. 54 FR 36644, 36,646 

(September 1, 1989). The examples used by the Secretary are distinguishable from the 

circumstances in this case. For example, the conveyor in #2 was an operating component of the 

hogger upon which the work was being performed i.e. the adjacent conveyor fed the hogger

during its operation. The hogger had been shut down, but the conveyor feeding the hogger had 

not been when the accident occurred. Similarly, the other examples show the servicing and 

maintenance work being performed on the machine and equipment when it was unexpectedly 

energized or started up. In the Secretary’s examples, the machines and equipment were more 

permanently interconnected in a single, integrated system distinctly different from the 

independently functioning fans and counterweights in this case.

The injury here resulted from an unguarded, adjacent counterweight and does not support 

a LOTO citation. The fans and counterweights operated separately with separate lockouts 

procedures. Action’s servicing and maintenance work was only on the fans, not the 

counterweights. The release of stored energy hazard from the counterweight may be covered, 

but was not alleged, by § 5(a)(1) of the Occupational Safety and Health Act (Act) or the machine 

guarding standards at 29 C.F.R. § 1910.211 et seq. 

2. The Employees Were Not Servicing the Fans

It is undisputed that the Action employees were in the basement visually observing the 

fans to be replaced and discussing the work to be performed (Tr. 374, 397). The employees were 

no closer to the fans than 8 feet. The leadman testified that visual observation was an important 
13

part of replacing the fans (Tr. 416). The two employees were not working on or touching the 

fans. They were not exposed to the hazard of an unexpected energization, startup, or release of 

stored energy from the fans. 

The Secretary argues that the Action employees were working. Their discussion about 

the fans to be replaced was “servicing and maintenance” work. OSHA defines “servicing and/or 

maintenance” in § 1910.147(b) as: 

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.

Viewing a machine and equipment such as a fan may be considered an inspecting or 

setting up activity contemplated by the definition of “servicing and/or maintenance.” Such 

activities encompass preparation work. “Setting up” is defined as “any work performed to 

prepare a machine or equipment to perform its normal production operation.” § 1910.147(b). 

“Inspecting” is not defined by OSHA and, therefore, reference to a common definition is 

appropriate. Action does not dispute that its employees were authorized employees and 

replacing the fans is servicing and maintenance for the purpose of LOTO.

However, the critical part of the activity contemplated by OSHA’s definition of 

“servicing and/or maintenance” is whether the employee is exposed to an “unexpected 

energization, start up or equipment release of hazardous energy” from the machine and 

equipment. In this case, the Action employees were not in contact with the fans or within 8 feet 

of the fans. There is no showing that the leadman and apprentice were exposed to the 

unexpected energization or release of hazardous energy from the fans while engaged in their 

viewing and discussing activities.

Therefore, the two Action employees were not engaged in servicing and maintenance 

work when in the basement discussing their replacement work on the fans. 

3. Action’s Claim that the Steel Mill Violated LOTO

According to steel mill procedure, only the steel mill technician had the authority to lock 

out the machines and equipment for the cooling bed. He was the LOTO authorized employee. 
14

The OSHA standard on group lockout procedure requires the authorized employee to “ascertain 

the exposure status of individual group members with regard to the lockout or tagout of the 

machine or equipment.” § 1910.147(f)(3)(ii)(B). The technician testified that when he initiated 

the mill lockout procedure, he did not know where the Action employees were located (Tr. 294-

295). 

Although the mill technician should not have locked out the counterweight without 

verifying the location of the employees, it was clearly his understanding that no employees 

would be in the basement in a zone of danger. Regardless, Action is not relieved of its 

responsibility to ensure its employees were safe from hazard. The leadman should not have gone 

into the basement without ensuring the cooling bed was locked out in accordance with the mills’ 

procedures. 

The Secretary failed to prove the applicability of the cited LOTO standard to the facts in 

this case. Even if the fans had been properly locked out before the accident occurred, it would 

not have prevented the counterweight’s release of stored energy that fatally injured the 

apprentice. Although the court agrees that the Action employees were exposed to hazardous 

energy associated with the counterweight, the Secretary did not allege a violation under § 5(a)(1) 

of the Act or the machine guarding standards at 29 C.F.R. § 1910.211 et seq. Action’s violation 

of §1910.147(f)(3)(ii)(D) is not established. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is hereby ORDERED: 

1. Citation No. 1, Item 1, alleged serious violation of § 1910.147(c)(7)(i), is withdrawn 

by the Secretary; and 

2. Citation No. 1, Item 2, alleged serious violation of § 1910.147(f)(3)(ii)(D), is vacated 

and no penalty is assessed. 

 

 /s/ Ken S. Welsch 

KEN S. WELSCH

Date: May 10, 2013 Judge 
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Atlanta, Georgia