Exelon Generating Corp., LaSalle County Station

Plain-English summary

Exelon's group lockout procedure listed covered maintenance employees but allowed a lead worker to notify them verbally when protection was applied or removed. The Commission held that group lockout requires each authorized employee to maintain personal control by attaching and removing a personal device or personally signing on and off a master tag. A supervisor's verbal notice and signature for the crew did not provide equivalent protection against unexpected reenergization. The Commission rejected Exelon's claims that the rule was unclear, that agency guidance approved its procedure, or that the system-operator provision exempted group work from the personal-control requirement. The serious violation was affirmed with the stipulated $2,400 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.269(d)(8)(ii)(D)
• Outcome: The serious group lockout/tagout violation was affirmed, with a $2,400 penalty.
• Key point: Each exposed employee must personally acknowledge the application and removal of group lockout protection; a lead worker cannot do it for the crew.

Full text (OSHRC public release)

Exelon Generating Corp., Lasalle County Station, Docket No. 00-1198

SECRETARY OF LABOR,

Complainant,

v.

EXELON GENERATING CORP.,

LASALLE COUNTY STATION,

OSHRC Docket No. 00-1198

Respondent.

IBEW LOCAL 15,

Authorized Employee

Representative.

DECISION

Before: RAILTON, Chairman; STEPHENS and ROGERS, Commissioners.

This case involves a dispute over the interpretation and application of the hazardous
energy control (lockout/tagout) procedures of the electric power generation, transmission,
and distribution standard, 29 C.F.R. § 1910.269(d), under the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-78. Before the Commission is Chief Administrative
Law Judge Irving Sommer’s decision affirming a single citation issued to Exelon Generating
Corp. (Exelon). That citation alleges a violation of the group lockout/tagout (LOTO)
provision of the standard, 29 C.F.R. § 1910.269(d)(8)(ii)(D), for Exelon’s failure to require
that each employee on the cited job affix a personal lock or tag to a group lockout/tagout
device or sign on/off a master tag. We affirm the judge’s decision.

I. BACKGROUND

OSHA promulgated the final electric power generation standard on January 31,
1994, pursuant to a negotiated rulemaking in which the electric utility industry trade
associations and unions representing affected workers participated. Edison Electric Institute
(EEI), an association of investor-owned electric utilities, and the International Brotherhood
of Electrical Workers (IBEW) jointly proposed provisions to the draft standard that the
Utility Workers Union of America (UWUA), which represents approximately one third of
the unionized electric utility work force, did not endorse. The Secretary, in agreement with
some of the concerns the UWUA raised, rejected a number of provisions contained in the
EEI/IBEW draft. Following promulgation of the standard, EEI and IBEW conferred with
OSHA over the issuance of a compliance directive to clarify some disputed issues. A series
of meetings and exchanges of proposals ensued, and OSHA issued a compliance directive
on October 20, 1997, covering numerous provisions of the standard, including group
tagging. On June 2, 1999, EEI sent a letter to OSHA’s Directorate of Compliance Programs
summarizing its interpretation of some items addressed by the compliance directive. In
response, on October 14, 1999, OSHA issued a Standards Interpretation and Compliance
Letter in which it advised EEI, inter alia , that its interpretation of the group tagging
provision was incorrect, and explained OSHA’s position on the requirements of group
tagging under the standard.

Subsequently, OSHA inspected Exelon’s LaSalle County Station located in
Marseilles, Illinois, from December 16, 1999 through May 31, 2000. There is no dispute
that Exelon’s LOTO program did not include a requirement that each maintenance employee
sign on and off a master tag when utilizing a group tagout procedure for out of service
equipment. Nor is there any dispute that each maintenance employee on the cited heater
repair job did not individually sign on/off the master tag. Exelon’s procedure, which reflects
industry practice and the EEI/IBEW proposal, includes the use of a worker tagout tracking
list (WTTL) that identifies all covered employees but permits a supervisor or lead worker to
verbally notify the individual workers of the application and removal of LOTO protection.
The central issue in this case is whether the cited standard permits Exelon’s use of this type
of procedure or requires that the individual workers performing service and maintenance
personally manifest by a verifiable means their acknowledgment of the application and
removal of LOTO protection, such as by signing on and off of a group tag.

Exelon contends that the cited standard is confusing, that OSHA had agreed to the
group tagging procedure advocated by EEI and IBEW in the discussions leading up to the
issuance of the compliance directive and by the terms of the directive itself, and that the
citation must be vacated. It further argues that it is exempt from the requirements of the
cited standard because the “system operator” provision of the standard applies to its facility
instead.

II. REGULATORY FRAMEWORK

OSHA stated in the preamble to the final electric power generation standard that the
fundamental premise of “[l]ockout or tagout is personal protection.” 59 Fed. Reg. 4319,
4360 (January 31, 1994). Indeed, the standard requires that “[l]ockout and tagout device
application and removal may only be performed by the authorized employees who are
performing the servicing or maintenance.” 29 C.F.R. § 1910.269(d)(4). Explaining this
requirement, OSHA made clear that “[i]t cannot be overemphasized that employees
performing tasks on deenergized equipment may be exposed to hazards involving serious
injury or death if the status of the lockout or tagout control can be changed without their
knowledge.” Id . OSHA specifically addressed its rejection of EEI’s position concerning
personal control, as follows:

OSHA does not agree that the removal of a tagout device by a person
other than the one who [is] under its protection is not related to safety. . . . The
entire energy control program in this standard depends upon each employee
recognizing and respecting another employee’s lockout or tagout device. The
servicing employee relies upon the fact that he or she applied the device and
assumes that it will remain on the equipment while he or she is exposed to the
hazards of the servicing operation. OSHA believes that the only way to ensure
that the employee is aware of whether or not the lockout or tagout device is in
place is to permit only that employee to remove the device himself or herself.

59 Fed. Reg. at 4360 (citations omitted) (emphasis added). See also 59 Fed. Reg. at 4349-52.

OSHA agreed, however, that some “modification of the general rule” was warranted
under specific circumstances including, to a limited extent, in group lockout or tagout
situations. 59 Fed. Reg. at 4360. Accordingly, OSHA promulgated section
1910.269(d)(8)(ii), which includes the provision cited here:

(8) Additional requirements.

. . .

(ii) When servicing or maintenance is performed by a crew, craft, department,
or other group, they shall use a procedure which affords the employees a level
of protection equivalent to that provided by the implementation of a personal
lockout or tagout device. Group lockout or tagout devices shall be used in
accordance with the procedures required by paragraphs (d)(2)(iii) and
(d)(2)(iv) of this section including, but not limited to, the following specific
requirements:

. . .

(D) 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.

29 C.F.R. § 1910.269(d)(8)(ii)(D).

The group LOTO provision incorporated the “outcome and rationale” of the general
industry standard, which requires that “each employee in the group needs to be able to affix
his/her personal lockout or tagout system device as part of the group lockout.” 59 Fed. Reg.
at 4361. OSHA explicitly rejected a system that did not specify the use of individual locks
or tags by the individual employees of a group, which would have accorded responsibility
for all employees in the group to a single authorized employee. Id . Noting the difficulty of
addressing LOTO where complex equipment is serviced and maintained by numerous
employees extending across multiple workshifts, OSHA reiterated the “basic approach” of
the standard concerning individual responsibility for application and removal of lockout or
tagout devices, and emphasized that, consistent with the OSHA instruction pertaining to the
general industry standard:

(1)   . . . Irrespective of the situation, the requirements of the final rule specify
that each employee performing maintenance or servicing activities be in
control of hazardous energy during his or her period of exposure.

(2)   The procedures must ensure that each authorized employee is protected
from the unexpected release of hazardous energy by personal lockout or
tagout devices. No employee may affix the personal lockout or tagout
device of another employee.

(3)   The use of such devices as master lock and tags are permitted and can
serve to simplify group lockout/tagout procedures. . . . In a tagging system,
a master tag may be used, as long as each employee personally signs on
and signs off on it and as long as the tag clearly identifies each authorized
employee who is being protected by it.

Id. at 4361-62 (emphasis added).

III. DISCUSSION

The plain wording of the cited standard, § 1910.269(d)(8)(ii)(D), clearly and
explicitly mandates use of a personal tagout device in a group tagging situation. This
unambiguous requirement is consistent with the terms and structure of the standard as a
whole and the explanatory material provided in its preamble. See Paragon Health Network,
Inc. v. Thompson , 251 F.3d 1141, 1145 (7th Cir. 2001) (stating principle that unambiguous
regulations are applied according to their plain meaning, citing Christensen v. Harris
County, 529 U.S. 576, 588, 120 S.Ct. 1655 (2000)). Accordingly, we reject Exelon’s
contention that the group tagging requirements of the standard are confusing or unclear.

We also reject Exelon’s contention that the standard does not specifically require use
of a personal tagout device for group tagout because the standard is performance oriented.
Beginning with the general industry standard and carried forward into the power generation
standard, the core concept of lockout/tagout is personal protection, that each individual
worker controls his/her own lock or tag. This fundamental requirement does not convert the
standard from performance oriented to a specification standard. Rather, individual control
over the lockout/tagout device constitutes a core performance requirement of the standard.
Moreover, we agree with the judge that the addition of personal sign on/off of the WTTL
“would reduce the risk of a crew member being exposed to the hazard of electrocution.”
Indeed, the record shows that Exelon supervisors had prematurely sent employees to work
on deenergized equipment, that employees had been disciplined for failure to follow
Exelon’s out of service procedure, that no system existed to verify that tracking lists were
properly used, and that some employees expressed concerns about the procedure.
Accordingly, we affirm the judge’s finding that Exelon’s procedure “does not afford
‘protection equivalent to that provided by the implementation of a personal lockout or tagout
device.’”

We also reject Exelon’s contention that during post-promulgation discussions and by
the terms of the ensuing October 19, 1997 compliance directive, OSHA agreed to the
EEI/IBEW group tagging proposal. Exelon contends that OSHA’s withdrawal of certain
proposed language indicates that OSHA agreed to substitute verbal notification of the
application and removal of LOTO protection for the requirement of individual worker sign
on/off. The forty-three page compliance directive, which pertains to group tagging in only
one paragraph, makes clear that OSHA did no such thing. The 1997 compliance directive
addresses group tagging, as follows:

! Employees placing lockout or tagout devices, group lockout/tagout, and
master tagging programs: §1910.269(d)(4), (d)(6), (d)(7), and (d)(8)(ii)

With the exception of paragraph (d)(8)(v), §1910.269(d) was taken directly
from the generic standard for the control of hazardous energy sources,
§1910.147. The program directive on §1910.147 [footnote: OSHA Instruction
STD 1-7.3], the generic lockout/tagout standard, contains guidance for the use
of group lockout/tagout and master tagging programs. Appendix C of that
directive presents example group lockout/tagout procedures [footnote: These
are intended as examples only. Other means of meeting the standard may also
be used.] that can be used to comply with §1910.269(d).

CPL 2-1.18A – Enforcement of the Electrical Power Generation, Transmission, and
Distribution Standard, Appendix B, Clarification of Major Issues, October 29, 1997.

The generic LOTO standard program directive, made applicable to the power
generation standard in the October 29, 1997 compliance directive, states that group
lockout/tagout procedures shall provide, “at a minimum,” that no employee may affix a
personal lockout/tagout device for another employee. OSHA Directives STD 1-7.3,
§1910.147, the Control of Hazardous Energy (Lockout/Tagout) – Inspection Procedures and
Interpretive Guidance, September 11, 1990, paragraph I.8.d. It also provides that:

During all group lockout/tagout operations where the release of hazardous
energy is possible, each authorized employee performing servicing or
maintenance shall be protected by his/her personal lockout or tagout device
and by the company procedure. As described at Appendix C, B.1.g., a master
tag is a personal tagout device if each employee personally signs on and signs
off on it and if the tag clearly identifies each authorized employee who is being
protected by it.

OSHA Directives STD 1-7.3, paragraph I.8.h (emphasis added).

Appendix C, in turn, provides that group LOTO procedures generally require
personal control of hazardous energy, noting that on a single shift involving only a small
number of workers, “the installation of each individual’s lockout/tagout device upon each
energy isolating device would not be a burdensome procedure.” It recognizes, however, that
where servicing and maintenance extends over multiple shifts and/or involves many
workers, “consideration must be given to the implementation of a lockout/tagout procedure
that will ensure the safety of the employees involved and will provide for each individual’s
control of the energy hazards.” Appendix C, B (emphasis added). A list of examples of
such procedures follows to “illustrate several alternatives for having authorized employees
affix personal lockout/tagout devices in a group lockout/tagout setting.” A review of the
directive shows that common to each of the examples listed as alternatives is a requirement
that each covered employee must be responsible for attaching and removing his/her own
lockout/tagout device, and that where a work permit or master tag is used, that requirement
is satisfied by each employee taking the physical step of personally signing on and off the
job. Appendix C, B.3. Although the directive might permit other means by which each
covered employee can physically and personally manifest acknowledgement of application
and removal of LOTO protection, we can find no support for Exelon’s contention that the
non-exclusivity clause would permit relinquishment of personal control altogether.

We also agree with the judge’s finding that OSHA’s October 14, 1999 compliance
letter should have dispelled any industry misperceptions. In the letter, OSHA explicitly
rejected EEI’s interpretation of the group LOTO provision, explaining that a master tag is a
“personal tagout device only if (1) each employee personally signs on and signs off on the
master tag and (2) the master tag clearly identifies each employee who is thereby protected.”
By the terms of the standards, relevant portions of the preambles, and subsequent
statements, OSHA has consistently maintained that the group tagging provisions of both the
generic and electric power generation LOTO standards require personal control over the
application and release of hazardous energy. The October 1999 letter, which predates the
OSHA inspection here, simply states again OSHA’s long-standing position in response to
EEI’s specific question. It does not provide any basis for Exelon, a longtime EEI member,
to now claim that it lacked notice of OSHA’s intent to enforce the standard by requiring
personal sign on/off of a group tag.

Finally, we find that the system operator provision of the standard, 29 C.F.R. §
1910.269(d)(8)(v),

does not operate as an exemption from the group tagging provision.

OSHA incorporated the system operator provision, which “allow[s] for the placement and
removal of lockout or tagout devices by the system operator[,]” to “provide[] employers
with the flexibility to protect employees by central control of energy isolating devices, but
provide[] employees with protection equivalent to that provided by personal lockout or
tagout devices.” 59 Fed. Reg. at 4364. OSHA officials testified here that the system
operator provision was meant to permit application and removal of energy isolation devices
by operations rather than maintenance personnel, and that the provision applies whether the
work is performed by a single employee or a group of employees. According to the
officials, where a group of employees is exposed, the group LOTO provision would still
apply. During the discussions regarding the compliance directive, EEI submitted a proposal
that stated, in part:

The standard [1910.269(d)(8)(ii)] is not intended to apply group
lockout/tagout (Master Tagging) procedures to Central Control Programs that
allow for placement and removal of tagout devices by a central control system.
Central Control Programs that strictly regulate the operation of energy control
devices by a system operator who is the only person with authority to operate
energy control devices under his/her jurisdiction and to place or remove tags
on these devices provide protection equivalent to personal tagout devices.

EEI’s proposal was not incorporated into the compliance directive, which ultimately did not
address the system operator provision of the standard at all.

Nothing in either the group tagging provision or system operator provision indicates
that the two are mutually exclusive. Based on the language and structure of the standard,
core principles of LOTO, and the legislative history of the standard, we find that Exelon
failed to establish that the system operator provision operates as an exemption to the group
tagging requirements of the standard.

IV. PENALTY

The judge assessed the stipulated penalty of $2,400, taking into consideration the
employer’s size (600 to 800 employees), good faith, and gravity of the violation. Section
17(j), 29 C.F.R. § 666(j). The penalty amount was not contested on review, and we find that
it is appropriate in light of the statutory factors.

V. ORDER

We affirm a violation of 29 C.F.R. § 1910.269(d)(8)(ii)(D), Serious Citation 1, Item
1, for Exelon’s failure to require that each maintenance employee on the cited job affix a
personal lock or tag to a group lockout/tagout device, such as by signing on and off the
master tag worker tagout tracking list. We also hereby assess the stipulated penalty of
$2,400.

/s/ ___

W. Scott Railton

Chairman

/s/ ___

James M. Stephens

Commissioner

/s/ ___

Thomasina V. Rogers

Commissioner

Dated: April 26, 2005

SECRETARY OF LABOR,

Complainant,

v.

EXELON GENERATING CORP.,

LASALLE COUNTY STATION,

OSHRC Docket No. 00-1198

Respondent.

IBEW LOCAL 15,

Authorized Employee

Representative.

Appearances:

Kevin Koplin, Esquire                          Stephen C. Yohay, Esquire

Ruben R. Chapa, Esquire                     James F. Laboe, Esquire

Chicago, Illinois                                   Washington, D.C.

For the Complainant.                            For the Respondent.

Charles A. Werner, Esquire

St. Louis, Missouri

For the Authorized Employee Representative.

Before:            Chief Judge Irving Sommer

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq . The Occupational Safety and Health Administration (“OSHA”) conducted an
inspection of Respondent Exelon Generating Corporation’s LaSalle County Station, in Marseilles,
Illinois, from December 16, 1999 through May 31, 2000. As a result of the inspection, OSHA
issued a two-item serious citation alleging that Respondent (“Exelon”) had violated OSHA’s
lockout/tagout requirements. Exelon contested the citation, a complaint and answer were filed, and
this matter was scheduled for a hearing set to begin on April 16, 2001.

On March 29, 2001, the
Secretary of Labor (“the Secretary”) filed a motion to amend her citation and complaint to allege
a sole violation, and her motion was granted.

As amended, the citation and complaint set out a
single item, Item 1, which alleges a serious violation of 29 C.F.R. 1910.269(d)(8)(ii)(D) as
follows:

[I]n the Tank Farm Area, Cycled Condensate Tank 1CY01T (Heater 3A),
authorized electrical maintenance employees were exposed to the potential for
unexpected re-energization of a 480-volt heater while performing servicing and/or
maintenance activities. The employees did not affix personal locks or tags to a
group lockout or tagout device at the energy isolation device.

The hearing in this case was held on April 16, 17 and 18, 2001. The Secretary and Exelon
filed post-hearing briefs on July 13, 2001, and this matter is now ready for disposition.

Background

Exelon’s LaSalle County Station is an electricity-generating nuclear power plant. The
facility has four departments (operations, maintenance, administration and training), and, at the
time of the inspection, it had 700 to 800 employees. The plant employs electricians to service
and maintain equipment, and, to protect its electricians from the release of hazardous energy
during servicing work, it uses what it calls its “Out of Service” (“OOS”) procedure. Exelon’s
OOS procedure is a kind of master tagging system characteristic of what is utilized throughout
the electric power generation industry. Exelon has used a master tagging system at the LaSalle
facility and its other facilities for over 20 years. (Tr. 7; 84-85; 89-91; 139; 191-92; 433-34; 536-37; 553-54; 558; 594; J-1).

When equipment requires servicing at the LaSalle facility, both the maintenance and the
operations departments implement the OOS procedure. A maintenance employee develops a
“work package” that includes the instructions and the work procedures that apply to the job. The
employee enters the job into the plant’s computer tracking system and, if the job requires energy
isolation, prepares an OOS request. The request designates the maintenance supervisor who will
be the “holder” of the OOS. The request then goes to the operations department, where an
operator uses the computer to make a list of isolation points for the job. A second operator
checks the list, after which the list is printed and provided to a third operator, who performs
equipment isolation and hangs OOS cards on the isolation points to verify that energy has been
isolated.

A fourth operator verifies that the third operator correctly isolated and tagged the
equipment. The third and fourth operators then initial the proper document in the work package,
and the third operator places the master OOS card (“master card”) on the master OOS board
(“master board”), which is located outside the facility’s work execution center. The third
operator then records in the computer the tasks that have been performed. (Tr. 89-96; 102-04;
110-11; 123-25; 435-36; R-105).

After entering an “acceptance” of the OOS into the computer, the maintenance supervisor
holds a job briefing with the maintenance crew that will do the work. The supervisor designates
a lead worker, who is the crew member responsible for the OOS actions to be taken and for
interacting with the maintenance supervisor and operations personnel. The lead worker puts the
names of the crew members on a worker tagout tracking list (“tracking list”) and places a
personnel protection card (“protection card”) on top of the master card that is on the master
board.

The lead worker then inspects the isolation points to confirm that they are isolated and
tagged, informs the crew they are protected by the OOS, and puts a check by each name on the
tracking list; any crew members who want to may also inspect the isolation points. After the job
is finished, the lead worker informs the crew that the OOS protection will be lifted and that the
equipment may be re-energized. The lead worker indicates the crew was so informed by putting
his initials by each name on the tracking list, and he then signs the list, takes his protection card
from its location on top of the master card, and advises the maintenance supervisor that the job is
finished and that the protection card has been removed. The supervisor confirms that the work
has been done and reviews the work package for completeness; he also records in the computer
that the job is finished and releases the OOS on the computer. An operator confirms that the
maintenance supervisor has released the OOS and properly entered the status of the job into the
computer. The operator prints a “final clear checklist,” which the operations supervisor signs,
and operators then remove the master card from the master board and the OOS cards from the
isolation points. The operations supervisor documents these actions on the computer, reviews the
work package for completeness, and enters into the computer the status of the OOS as “closed.”
(Tr. 33-34; 119-20; 126-32; 136; 185-87; 210; 436; R-105).

Exelon’s current OOS procedure has been in effect since early 2000. Its prior procedures
have been similar, with the computer tracking system being put into place in 1997 and the
worker tagout tracking list being put into place in 2000.

Employees received training in the
new OOS procedure involving the worker tagout tracking list from January through April of
2000, which was during the time that OSHA was conducting its inspection. Employees also
receive annual training in the company’s OOS procedure. (Tr. 61-62; 71-72; 97-101; 127-28;
147-48; 182; R-98).

The Cited Work

Exelon was cited because OSHA determined that maintenance workers who were
servicing a 480-volt heater were exposed to the hazard of the equipment re-energizing
unexpectedly. The servicing work involved a heater on a “C.Y.” tank that was tripping a breaker
when it was turned on, and electricians were assigned to work on the heater’s junction box on
March 15, 16, 20, 22 and 23, 2000. Danny Crouse, the lead worker for the job, identified C-1 as
a general map of the LaSalle site and C-25-26 as photos of the tank and junction box; he marked
on C-1 the location of the tank, the motor control center (“MCC”) where the breakers (the
energy isolating devices) for the heater were located, and the master board where the master card
and his protection card were hung during the servicing work. Crouse also identified C-18, C-20
and C-21 as photos of the breakers in the “off” position with OOS cards on them, C-14-15 as
photos showing the master board with the master card and his protection card in place, and C-11-12 and C-17 as copies of the OOS cards, the master card and his protection card. Finally, Crouse
identified C-7A as a copy of the tracking list he filled out on March 22, 2000, and C-31 as a
record of the work performed. Crouse’s testimony indicates the OOS procedure set out above
was followed during the work on the junction box. (Tr. 24-57).

The Cited Standard

The standard cited in this case, 29 C.F.R. 1910.269(d)(8)(ii)(D), is a provision of the
electric power generation, transmission and distribution standard, and there is no dispute that
section 1910.269(d) applies to the condition set out in the citation. See J-1. Section
1910.269(d)(8)(ii) provides as follows, with the specifically-cited provision underlined for
emphasis:

(ii) When servicing or maintenance is performed by a crew, craft,
department, or other group, they shall use a procedure which affords the
employees a level of protection equivalent to that provided by the implementation
of a personal lockout or tagout device. Group lockout or tagout shall be used in
accordance with the procedures required by paragraphs (d)(2)(iii) and (d)(2)(iv)
of this section including, but not limited to, the following specific requirements:

(A) Primary responsibility shall be vested in an authorized employee for a
set number of employees working under the protection of a group lockout or
tagout device (such as an operations lock);

(B) Provision shall be made for the authorized employee to ascertain the
exposure status of all individual group members with regard to the lockout or
tagout of the machine or equipment;

(C) When more than one crew, craft, department, or other group is
involved, assignment of overall job-associated lockout or tagout control
responsibility shall be given to an authorized employee designated to coordinate
affected work forces and ensure continuity of protection; and

(D) 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 Parties’ Contentions

The Secretary contends that Exelon violated the standard because its OOS procedure did
not provide for each crew member on the cited job to control the means of protection by affixing
and then removing a personal lockout or tagout device. She asserts that a master tagging system
utilizing a work permit or tracking list such as Exelon’s is permissible, as long as each crew
member signs onto the list to acknowledge the OOS protection and then signs off of the list to
acknowledge the lifting of the protection, but that the lead worker’s signing on and off the list
for the entire crew does not comply with the standard.

(Tr. 474-75). She also asserts that her
interpretation of the standard is supported by the language of the standard itself, by the
preambles to 29 C.F.R. 1910.269 and 29 C.F.R. 1910.147, the general industry lockout/tagout
standard issued in 1989, and by OSHA’s compliance directives relating to 29 C.F.R. 1910.147
and 29 C.F.R. 1910.269.

Exelon contends that the standard as written is confusing and unclear with respect to
group tagging requirements and that after the standard was issued, electric utility interests were
given to understand in meetings with OSHA that the master tagging procedures they used were
acceptable without the necessity of each crew member signing on and off of a master tag or work
permit. Exelon further contends that it was in compliance with the standard, based upon
statements in OSHA’s compliance directives, testimony an OSHA official gave in a deposition
in an earlier case, and the fact that OSHA granted the Voluntary Protection Program application
of an electric utility facility that had a tagging procedure that did not require individual crew
members to sign on and off a master tag or similar device. Exelon concludes that it did not have
fair notice in this matter, due to OSHA’s change in position, and that, in any case, its OOS
procedure gives employees protection equivalent to that afforded by the implementation of a
personal lockout or tagout device.

History of the Standard

The standard cited in this case is part of 29 C.F.R. 1910.269, the standard regulating
electric power generation, transmission and distribution. However, as the Secretary notes, a
comment following section 1910.269(d)(1) states as follows:

NOTE 2: Lockout and tagging procedures that comply with paragraphs (c)
through (f) of §1910.147 of this part will also be deemed to comply with
paragraph (d) of this section if the procedures address the hazards covered by
paragraph (d) of this section.

As the Secretary also notes, except for 1910.269(d)(8)(v), the group lockout/tagout
provisions set out in 29 C.F.R. 1910.269(d)(8) mirror those set out in 29 C.F.R. 1910.147(f)(3)
of the general industry lockout/tagout standard. The Secretary points out that representatives of
the Edison Electric Institute (“EEI”), a trade association of electric utilities that includes Exelon,
participated in the rule making process for both 29 C.F.R. 1910.147 and 29 C.F.R. 1910.269.

The record shows that OSHA began addressing the issue of lockout/tagout in the late
1970’s and that it developed a draft lockout/tagout standard in 1983 that was distributed to
associations, companies, and unions with an interest in the standard. OSHA received numerous
comments, and, in 1985, EEI and the IBEW gave the agency several proposals with respect to
the regulation of operations and maintenance in the electric utility industry.

OSHA published
its proposed standard in April 1988, and, after public hearings that fall and receipt of comments
until May 1989, the agency published its final rule regarding general industry lockout/tagout,
that is, section 1910.147, on September 1, 1989.

(Tr. 385-86; C-50 at 36,644-46).

One proposal in the preamble to 1910.147 for group lockout/tagout would have allowed
the lead employee to affix and remove a primary lock (rather than each individual employee
affixing his own lock or tag), thus making the lead employee “responsible for the safety of all
the employees in the group, if that program provided the same degree of safety as personal
lockout or tagout.” OSHA rejected the proposal, stating that “an additional element is necessary
for the safety of the servicing employees: each employee in the group needs to be able to affix
his/her personal lockout or tagout system device as part of the group lockout.” According to
OSHA, this was necessary because the use of a personal lockout or tagout device gives the
individual employee a degree of control over his own protection, such that “no single employee
has control of the means to remove the group lockout or tagout devices while employees are still
servicing ... the equipment.” Thus, “the authorized employee in charge of the group lockout or
tagout does not remove the group lockout device until each employee in the group has removed
his/her personal device, indicating that employees are no longer exposed to the hazards from the
servicing operation.” See C-50 at 36,681-82.

During the rule making, EEI brought up the issue of complex servicing operations that
involve many isolation points and extend over different shifts. (C-50 at 36,683). OSHA agreed
that removing and replacing lockout or tagout devices for each shift could be burdensome,
stating that:

In these situations, the use of the work permit, with each employee signing on and
off the equipment, combined with the employees walking down the equipment to
ensure continued deenergization prior to beginning work, would be an acceptable
approach to compliance with group lockout/tagout and shift transfer provisions of
the standard. (C-50 at 36,683).

On the same page, OSHA also stated, as to procedures EEI, API and OCAW had
submitted:

To the extent that the procedures ... provide for individual verification that the
equipment has been properly deenergized, and to the extent that the procedures
allow for the servicing employee to attest to that verification in accordance with
the standard, OSHA believes that such procedures would comply with the Final
Rule.

On September 11, 1990, OSHA issued STD 1-7.3, a compliance directive regarding
1910.147. See C-49. Appendix C to the directive contains illustrations of compliant procedures
for group operations, although, as the appendix notes, “[t]hese examples are not intended to
present the only acceptable procedures for conducting group operations.” See C-49 at 27. On
page 28, Appendix C defines the terms “master tag” and “work permit” as follows:

MASTER TAG is a document used as an administrative control and
accountability device. This device is normally controlled by the operations
department personnel and is a personal tagout device if each employee personally
signs on and signs off on it and if the tag clearly identifies each authorized
employee who is being protected by it.

WORK PERMIT is a control document which authorizes specific tasks and
procedures to be accomplished.

On pages 31-36, Appendix C describes a procedure that could be used for the servicing
and maintenance of complex equipment. That procedure provides, in relevant part, as follows:

Throughout the maintenance and/or servicing activity, operations personnel
normally maintain control of the equipment. The use of the work permit or
“master tag” system (with each employee personally signing on and signing off
the job to ensure continual employee accountability and control), combined with
verification of hazardous energy control, work procedures, and walk-through, is
an acceptable approach to compliance with the group lockout/tagout and shift
transfer provisions of the standard. (C-49 at 32).

The procedure also provides that:

Upon completion of the tasks required by the work permit, the authorized
employees’ names can be signed off the Master Tag by their supervisor once all
employees have signed off the work permit. The work permit is then attached to
the Master Tag. (Accountability of exposed workers is maintained.) (C-49 at 35).

The record further shows that on January 31, 1989, OSHA published its proposed
standard on electric power generation, transmission and distribution. The proposed standard was
based in part on drafts that EEI and the IBEW had submitted, and OSHA met with EEI and the
IBEW several times to obtain their advice. The agency received numerous comments on the
proposed standard, public hearings were held in late 1989, and further comments were received
until March 1991. The final rule, section 1910.269, was published on January 1, 1994. (Tr. 385-87; C-48 at 4320-23).

As to the group lockout/tagout provisions of 1910.269, OSHA again rejected a proposal
that would have allowed the lead worker to be responsible for the safety of the group rather than
requiring the use of individual locks or tags by each individual crew member. In so doing, the
agency stated that it was adopting the “outcome and rationale with respect to final §
1910.147(f)(3)” and quoted extensively from the record regarding that standard. (C-48 at 4361-62). OSHA also rejected the position of EEI and the IBEW that the tagging procedures used by
the electric utility industry are unique and work well to protect employees and that OSHA should
therefore accept them. (C-48 at 4350-51, 4363-64). OSHA noted that it had determined that
electric utility employees at high risk were exposed to a significant risk of injury under existing
practices, based upon Eastern Research Group’s review of IBEW fatality reports. (C-48 at 4363
n.33). OSHA further noted that the only concept in the industry that was unique, based on
statements of an EEI representative at the hearings and his video presentation of a typical tagout
procedure, was the use of central control facilities and a system operator who initiated and
controlled switching and tagging procedures. The agency thus concluded that the appropriate
action was to incorporate 1910.147(f)(3) into 1910.269(d)(8) and to add a new “system operator”
provision at 1910.269(d)(8)(v). (C-48 at 4364).

OSHA also stated in the preamble to 1910.269 that in STD 1-7.3, the compliance
directive it had issued as to 1910.147 (C-49), it had previously answered many questions about
group lockout/tagout. (C-48 at 4362). In summarizing those guidelines, the agency explained as
follows:

In a tagging system, a master tag may be used, as long as each employee
personally signs on and signs off on it and as long as the tag clearly identifies
each authorized employee who is being protected by it. (C-48 at 4362).

The agency further explained that “the use of the work permit or comparable means, with
each employee signing in and out as he or she begins or stops working on the equipment ...
would be an acceptable approach to compliance with group lockout or tagout and shift change
provisions of the standard.” (C-48 at 4362). In regard to shift changes, the agency noted that:

When tagout devices are used, it would be possible to use a tag with spaces for
the off-going employee to sign off, giving the date and time, and for the on-coming employee to sign on, also giving the date and time. Each employee would
verify the deenergizing and energy isolation for his or her own protection before
signing onto the tag. (C-48 at 4362-63).

After the final rule for 1910.269 was issued, EEI filed a petition for review with OSHA
challenging the validity of the standard. EEI withdrew the petition after the agency agreed it
would address EEI and union concerns and issue a compliance directive clarifying the standard;
during this negotiation period, OSHA’s National Office reviewed all of the citations that were to
be issued under the new standard.

OSHA, union and EEI representatives met various times to
discuss the proposed compliance directive and to exchange draft language. On October 20, 1997,
OSHA issued CPL 2-1.18A ( see C-52), a compliance directive pertaining to 1910.269. The
directive was the result of the negotiations of OSHA, EEI and union representatives, and
Appendix B to the directive, entitled “Clarification of Major Issues,” addresses lockout/tagout in
general, group lockout/tagout and master tagging systems. (Tr. 389-415; 455-57; 489-90; 513-19; 546-47; 551-53; C-52 at 29-32). In this regard, Appendix B states as follows:

Employees placing lockout or tagout devices, group lockout/tagout, and master
tagging programs: § 1910.269(d)(4), (d)(6), (d)(7), and (d)(8)(ii)

With the exception of paragraph (d)(8)(v), § 1910.269(d) was taken directly from
the generic standard for the control of hazardous energy sources, § 1910.147. The
program directive on § 1910.147, the generic lockout/tagout standard, contains
guidance for the use of group lockout/tagout and master tagging programs.
Appendix C of that directive presents example group lockout/tagout procedures
that can be used to comply with 1910.269(d).

(C-52 at 32).

Whether Exelon had Adequate Notice of the Standard’s Requirements

Exelon contends it did not have fair notice in this matter for a number of reasons, the first
of which is that the standard as written is confusing and unclear as to group tagging
requirements. The parties agree the cited standard is a “performance standard,” that is, one that
gives the employer some latitude regarding the means of compliance used. Exelon notes that if a
standard’s language is not explicit on a matter in issue, the standard’s preamble is the “most
authoritative evidence of the meaning of the standard.” See Superior Rigging & Erecting Co. , 18
BNA OSHC 2089, 2091 (No. 96-0126, 2000), and cases cited therein. Exelon further notes that
if the preamble does not clarify the standard’s meaning, other sources may be considered,
including “administrative interpretations which clarify obscurities or resolve ambiguities.”
Miami Indus., Inc. , 15 BNA OSHC 1258, 1265 (No. 88-671, 1991), quoting Diebold v.
Marshall , 585 F.2d 1327, 1336-38 (6th Cir. 1978).

In view of the fact that the standard is a performance standard, and after reviewing the
language of the standard, set out supra , together with the above-noted provisions of the
preambles and compliance directives as to 1910.147 and 1910.269, I conclude that OSHA has
clearly and consistently articulated its position with respect to group tagging requirements. In
particular, OSHA has invariably rejected the notion that a lead worker may sign on and off of a
master tag or work permit for the entire crew and has instead required each individual crew
member to sign on and off of the master tag or work permit. However, in support of its
contention that the standard’s group tagging requirements are confusing and unclear, Exelon
points to the “system operator” provisions set out at 29 C.F.R. 1910.269(d)(8)(v). Those
provisions are as follows:

(v) If energy isolating devices are installed in a central location and are
under the exclusive control of a system operator, the following requirements
apply:

(A) The employer shall use a procedure that affords employees a level of
protection equivalent to that provided by the implementation of a personal
lockout or tagout device.

(B) The system operator shall place and remove lockout and tagout
devices in place of the authorized employee under paragraphs (d)(4), (d)(6)(iv),
and (d)(7)(iv) of this section.

(C) Provisions shall be made to identify the authorized employee who is
responsible for (that is, being protected by) the lockout or tagout device, to
transfer responsibility for lockout and tagout devices, and to ensure that an
authorized employee requesting removal or transfer of a lockout or tagout device
is the one responsible for it before the device is removed or transferred.

Exelon notes that OSHA stated in the preamble to the final rule that (d)(8)(v) was
inserted specifically to “recognize lockout and tagout practices that are common in the electric
utility industry and that have been successful in protecting employees from hazards associated
with the control of hazardous energy sources.” (C-48 at 4364). Exelon asserts that EEI and the
IBEW concluded that (d)(8)(v) was intended to be an exception to the requirement under
(d)(8)(ii)(D) for “individual sign on and sign off.” Exelon further asserts, however, that EEI and
the IBEW were unsure this was the case and concerned that OSHA had misunderstood EEI’s
statements and video at the hearings. Exelon states that due to confusion about what the standard
meant, as well as concern that the standard would not permit the industry to continue using its
established tagging procedures, EEI filed its petition for review with OSHA. (R. Brief at 13-17).

Exelon’s assertion that the industry was confused about group tagging requirements, due
to a belief that (d)(8)(v) was an exception to (d)(8)(ii), is not persuasive. First, as noted above,
OSHA has consistently stated what it requires in group tagging procedures. Second, (d)(8)(v)(A)
specifically requires the employer to use a procedure that “affords employees a level of
protection equivalent to that provided by the implementation of a personal lockout or tagout
device.” This is the same language used in the group lockout/tagout provisions of
1910.147(f)(3)(i) and 1910.269(d)(8)(ii), and, after OSHA’s many pronouncements that each
individual crew member must sign on and off of a device such as a master tag or work permit, it
is unreasonable to conclude the agency would abandon this requirement without an explicit
statement it was doing so. Third, David Wallis, an OSHA official who was involved in writing
1910.269 and who represented OSHA at the negotiation meetings with EEI and union officials,
testified that (d)(8)(v) was not an exception to (d)(8)(ii).

He said that when (d)(8)(v) applies, its
purpose is to allow the system operator to affix locks or tags, rather than the authorized
maintenance employee who is being protected by them, but that the employer must nonetheless
ensure that the person requesting the removal of a lock or tag is the same one who requested its
application. He also said that even when (d)(8)(v) does apply, (d)(8)(ii) also applies in a group
lockout/tagout situation, such that each member of the maintenance crew must sign on and off of
a device or list. (Tr. 441-45; 455-57; 482-86; 492-94; 497-500). Fourth, Walter Siegfried, an
OSHA official who is an agency spokesperson regarding 1910.269 and who discussed the
subject citation with Wallis and the inspecting compliance officers, also testified about the
standard.

His testimony was consistent with that of Wallis. (Tr. 329-55).

I have considered OSHA’s statement in the preamble that 1910.269(d)(8)(v) was
included to “recognize lockout and tagout practices that are common in the electric utility
industry and that have been successful in protecting employees from hazards associated with the
control of hazardous energy sources.” See C-48 at 4364. However, OSHA also stated that, while
it had viewed the EEI video and found certain utility company tagout procedures to be unique, it
had concluded that the evidence and accident data in the record demonstrated that “even under
these procedures, employees can be exposed to hazards.” (C-48 at 4364). OSHA further stated:

Therefore, rather than adopt the EEI/IBEW draft provisions on the control of
hazardous energy sources, OSHA is incorporating additional provisions under §
1910.269(d)(8)(v) to allow for the placement and removal of lockout or tagout
devices by the system operator. This provides employers with the flexibility to
protect employees by central control of energy isolating devices, but provides
employees with protection equivalent to that provided by personal lockout or
tagout devices. (C-48 at 4364).

In regard to paragraph (d)(8)(v)(C), OSHA provided a detailed explanation, as follows:

Paragraph (d)(8)(v)(C) requires the employer to make provisions to identify the
authorized employee being protected by the lockout or tagout device, to transfer
responsibility for lockout and tagout devices, and to ensure that an employee
requesting the removal or transfer of a lockout or tagout device is the authorized
employee responsible for it. It is important for any lockout or tagging system to
protect every employee servicing or maintaining machinery or equipment. To
achieve this goal, the lockout or tagging procedure must ensure that no lock or tag
protecting an employee is removed without the knowledge and participation of
the employee it is protecting. Even though the energy control devices are under
the exclusive control of the system operator, the locked out or tagged out devices
must not be operated until the employee they are protecting personally authorizes
it. When a lockout or tagout device is to be removed or when responsibility for
the device is to be transferred to another employee, the lockout or tagout
procedures must take steps to identify the employee requesting removal or
transfer. Signed orders, for example, could be used, and the signatures on the
orders could be checked against the original lockout or tagout request. Password
systems, master lock systems, and receipt systems could also be used to identify
the authorized employee responsible for the lockout or tagout device. The
procedures must also make provision for transferring lockout or tagout from one
employee to another, such as may be needed during shift changes. The procedures
must also ensure that the system operator does not remove any lockout or tagout
device without the specific authorization of the employee it is protecting (except
as permitted in paragraph (d)(7)(iv) for emergencies). Paragraph (d)(8)(v)(C)
prohibits supervisors (or other employees) from releasing lockout or tagout
devices while they are protecting authorized employees, and it recognizes only
central control systems that provide protection equivalent to that provided by
personal lockout or tagout devices. The use of signed orders, passwords, master
locks or tags, or receipts can facilitate compliance with this provision.

Based upon the foregoing, I find, as David Wallis and Walter Siegfried both testified,
that 1910.269(d)(8)(v) is not an exception to 1910.269(d)(8)(ii), that even when
1910.269(d)(8)(v) does apply the provisions of 1910.269(d)(8)(ii) also apply in a group
lockout/tagout situation, and that in a group lockout/tagout situation falling under
1910.269(d)(8)(v), each individual crew member protected by the lockout or tagout must sign on
and off of a device such as a master tag, work permit or list. Exelon’s first contention is
accordingly rejected.

Exelon next contends that electric utility interests were given to understand in meetings
with OSHA that the master tagging procedures they used were acceptable without the necessity
of each crew member signing on and off of a master tag or work permit. Exelon refers mainly to
a meeting held in February 1996 to continue negotiating the terms of the compliance directive
that OSHA was to issue for 1910.269. A number of individuals attended the meeting, including
David Wallis of OSHA, James Tomaseski of the IBEW, Charles Kelly of EEI and Forrest Carr
of Boston Edison. Among the topics addressed were the industry’s master tagging procedures
and, prior to the meeting, OSHA and EEI had exchanged proposed language in this regard to be
included in the directive; however, the proposed language was not included in C-52, the directive
issued in October 1997. (Tr. 397-99; 409; 488-90; 517; 580; R-12; R-19-20).

Exelon asserts that at the meeting, when industry officials “pressed their point” about
being able to continue using their master tagging procedures, David Wallis stated that the
industry was allowed to rely on the examples of procedures given in Appendix C to the
compliance directive for 1910.147. In particular, Exelon notes the testimony of Forrest Carr, as
follows:

Mr. Wallis stated that what we were looking for, the flexibility, was ... in
[Appendix C] because the things that were listed as specifics were only examples
and that you did have the flexibility to do other things within the language of [the
directive]. And [he] basically said that [the directive] gives you what you want.
(Tr. 584).

Exelon also notes the testimony of James Tomaseski that OSHA had stated at the
meeting that if the industry followed the provisions of 1910.147 it would be in compliance with
1910.269; his understanding of this statement was that OSHA had agreed that the industry’s
established master tagging procedures were acceptable as they were. (Tr. 518-19). Finally,
Exelon notes the further testimony of Forrest Carr that, based on what David Wallis had said,
there was an agreement to take out a provision OSHA had proposed. (Tr. 584-85). That
provision was to follow immediately after the last sentence in Appendix B to the 1910.269
directive, set out supra , which stated that Appendix C to the 1910.147 directive presented
example group lockout/tagout procedures that could be used to comply with 1910.269(d). See C-52 at 32. The proposed provision was as follows:

When many energy sources or many persons are involved or when a
lockout/tagout procedure is to extend over more than one shift, the alternative
procedures outlined in this appendix may be used to comply with paragraph (d) of
§1910.269. These alternative procedures must assure personal protection for each
employee being protected by ensuring that each individual is uniquely accounted
for and that each individual is the only person that can release his or her lockout
device, tagout device, or equivalent means of controlling hazardous energy.

(R-20 at 2).

Exelon asserts that the foregoing establishes that OSHA led the industry to believe its
master tagging procedures complied with the standard. I disagree. First, the testimony of Forrest
Carr did not specify what questions were put to David Wallis; as Carr put it, “we wanted to have
[the industry’s tagging procedures] better clarified as being an acceptable practice.” (Tr. 584).
Second, James Tomaseski testified he did not remember any discussion about individual
employees signing on and off of a master tag or other device in group tagging procedures; as he
recalled, the question to OSHA was if anything had changed, to which OSHA replied that
compliance with 1910.147 would constitute compliance with 1910.269. (Tr. 519). Third, David
Wallis explained that the reason OSHA had agreed to omit the proposed provision was because
EEI had stated at the meeting that “the first part of the answer to number three ( see R-20 at 2)
answered the issue for them.” Wallis also explained that the deletion of the material did not
mean it was incorrect, but that it was simply not part of OSHA’s official interpretation. (Tr.
466). Fourth, as Wallis noted, a provision EEI had proposed that was not included in the
1910.269 directive referenced (d)(8)(ii) and was captioned “Central Control (Master Tagging)
Programs.” (Tr. 488-89). The provision stated:

The standard is not intended to apply group lockout/tagout (Master Tagging)
procedures to Central Control Programs that allow for placement and removal of
tagout devices by a central control system. Central Control Programs that strictly
regulate the operation of energy control devices by a system operator who is the
only person with authority to operate energy control devices under his/her
jurisdiction and to place or remove tags on these devices provide protection
equivalent to personal tagout devices. Paragraph (d)(8)(v) ... provides for Central
Control Programs in electric power generation installations with central control.
(R-12 at p. 2).

In view of the above, I find unpersuasive Exelon’s assertion that the industry was led to
believe its master tagging procedures complied with the standard. I further find that the
statements of Wallis at the February 1996 meeting were substantially the same as what OSHA
had told the industry previously. The record shows that in June 1994, OSHA held a seminar on
1910.269. OSHA, industry and union officials were present, and attendees included Wallis and
his supervisor, Joseph Pipkin, as well as Forrest Carr and IBEW representatives; at the meeting,
Joseph Pipkin stated that if industry complied with 1910.147 it would be in compliance with
1910.269. (Tr. 449-50; 579-80; R-9). The record also shows, as noted supra , that OSHA had
consistently stated what it required in group tagging procedures during the promulgation of
1910.147 and 1910.269. Moreover, while Charles Kelly, an EEI official, indicated his belief that
the statements of Wallis at the February 1996 meeting “allowed us to do what we wanted to do,”
he conceded the sum total of the agreement reached with OSHA was to follow Appendix C.

(Tr. 414-15). Finally, although Wallis agreed there are means other than those set out in
Appendix C that may be used, as the Appendix itself notes, he testified, and OSHA has made
clear, that each individual crew member in a group tagging situation must sign on and off of a
master tag, work permit or other device. (Tr. 462-63; 493-94; 499-500).

Even assuming arguendo that the industry had concluded, albeit mistakenly, that OSHA
had approved its master tagging procedures at the 1996 meeting, a May 1999 meeting and a
subsequent communication from OSHA should have dispelled any misperceptions the industry
had. On May 21, 1999, OSHA, EEI and IBEW representatives met to discuss the industry’s
tagging procedures under 1910.269, and the issue of signing tags was specifically addressed. On
June 2, 1999, EEI’s Charles Kelly wrote a letter to OSHA requesting a moratorium on the
issuance of citations or a review of proposed citations by OSHA’s National Office; Kelly also
requested verification of what EEI had understood the agency’s position to be at the meeting.
See C-53. On October 14, 1999, the Director of OSHA’s Directorate of Compliance Programs
wrote a letter that, after declining to impose a moratorium, responded to EEI’s questions and
concerns. See C-54.

In point 2 of its letter, EEI set out its position regarding group tagout as follows:

2. § 1910.269(d)(8) does not require group tagout. Rather, once equipment has
   been de-energized and tags properly placed, the supervisor or other leader of the
   crew that is to perform the work is to personally inspect the tags to assure that the
   system has been properly de-energized, and that it is safe to begin work. To
   assure accountability, the name of the supervisor or leader must be entered in
   some form of record, such as a master tag or computer-generated tagging list, so
   that it is clear who is responsible for the crew’s safe work under the tags. The
   supervisor or lead person will account for all crewmembers prior to the system
   being re-energized. (C-53 at 2).

OSHA’s response to the foregoing stated:

The procedure described in your summary point is unacceptable as written
because it places each crew member’s personal safety with the supervisor/crew
leader. With respect to § 1910.269(d)(8)(ii)(D) requirements, verbal
accountability steps are not equivalent to each employee placing a personal
device on a group LOTO mechanism. (C-54 at 2).

EEI’s points 3 and 4 stated that:

3. Under 1910.269(d)(8)(g), individual members of the crew are to be given the
   opportunity to inspect the tags and to have his/her name recorded on the record,
   i.e. , sign the master tag or tagging list. This is not a required element of a
   compliant tagging program, however. (C-53 at 2).

4. Those whose names have been recorded as responsible must “sign off” the
   accountability document before the tags are removed and the equipment re-energized. (C-53 at 2).

OSHA replied to the above as follows:

Issues 3 and 4 both address a tagout procedure. A master tag, as defined by
OSHA Instruction STD 1-7.3, is a document used as an administrative control and
accountability device; it is normally controlled by the operations department
personnel. It is a personal tagout device only if (1) each employee personally
signs on and signs off on the master tag and (2) the master tag clearly identifies
each employee who is thereby protected. (C-54 at 2).

In addition to the foregoing, OSHA’s letter pointed out that it had rejected a proposal
during the 1910.269 rule making that individual locks or tags were not required in group
lockout/tagout. OSHA’s response further pointed out that EEI’s position, that the crew leader or
supervisor may advise crew members that it is safe to work or that the equipment is about to be
re-energized, did not comply with the standard; instead, each crew member must affix and
remove his own lock or tag or sign on and off of a master tag or permit. (C-54 at 2-3).

On the basis of C-53 and C-54, as well as the other evidence set out supra , I find that the
record does not support Exelon’s contention that OSHA led the industry to believe that its group
tagging practices complied with the standard. Exelon’s second contention is therefore rejected.

Exelon further contends it complied with the standard, based on (1) statements in
Appendices B and C, (2) statements that David Wallis made in a deposition in an earlier case,
and (3) the fact that OSHA granted the Voluntary Protection Program (“VPP”) application of a
facility with a similar procedure. As to (1), the relevant text of Appendices B and C is given
above. In sum, however, Appendix C (to the 1910.147 directive) gives examples of compliant
operations, while Appendix B (to the 1910.269 directive) states that 1910.147 has guidance for
the use of group procedures and that Appendix C has “example group lockout/tagout procedures
that can be used to comply with 1910.269(d).” See C-49 at 26-36; C-52 at 32. Appendix C notes
that “[t]hese examples are not intended to present the only acceptable procedures for conducting
group operations,” and Appendix B notes that “[t]hese are intended as examples only. Other
means of meeting the standard may also be used.” (C-49 at 27; C-52 at 42 n.4). Similar to its
argument set out above, Exelon points to this language in the appendices and to the testimony of
David Wallis that means other than those set out in Appendix C may be used to comply with the
standard; Exelon also points to the testimony of Wallis that OSHA has never told the industry
what all the acceptable methods are. (Tr. 462-63). Regardless, it is clear from Appendix C and
the record in general that OSHA requires personal accountability of each and every crew
member in a group tagging situation and that each such crew member must sign on and off of a
master tag, work permit or similar device. Moreover, as the Secretary indicates in her brief, the
procedure Exelon has chosen to use is substantially the same as those described in the preambles
to 1910.147 and 1910.269 and Appendix C, which specifically require each individual crew
member to sign on and off of a master tag or work permit. See C-48 at 4362; C-49 at 31-36; C-50 at 36,683. Exelon’s contention is accordingly rejected.

With respect to (2), Exelon notes the testimony of David Wallis in a deposition in 1998
in another Commission case in which Wallis gave OSHA’s interpretation of 1910.269 and
Appendix C regarding compliant group tagging procedures. Wallis agreed that he was so
deposed (Tr. 454-55), and he read into the record the following from the deposition:

Q: What exactly is the kind of procedure that the Agency had in mind when it
says provide a system which identifies each authorized employee involved in a
maintenance operation in the group lockout context....

A: You have to have a procedure for identifying which employees are in the crew
doing work.

Q: Describe one that is in compliance.

A: It is -- the procedure says that you have to have either a list of people working
on the equipment or you have to have their names on the group lockout device
where you can find out who is working on it. Those are examples of compliant
procedures.

Q: So under group lockout procedures you can have the people who are working
on the project identified on the list in the control room, right?

A: You could have it there. (Tr. 468-69).

Exelon points to the foregoing in support of its contention that it complied with the
standard and to the testimony of Wallis at the hearing that his position was still the same. (Tr.
469-70). However, Wallis then went on to testify that his position was in regard to the obligation
to identify employees on the crew. (Tr. 469-70). It is clear that the obligation to identify
employees on the crew is different from the obligation that each crew member sign on and off of
a master tag, work permit or other device. It is equally clear that both are required in a group
tagging or master tagging procedure. See, e.g. , Appendix C (C-49) at 28.

Exelon’s contention is
rejected.

In regard to (3), Exelon notes the evidence in the record that another electric utility
facility, with a group tagging procedure similar to that of Exelon and the industry in general, was
accepted into OSHA’s Voluntary Protection Program (“VPP”). The record shows that
Pennsylvania Power and Light (“PP&L”) applied for VPP status in 1996, that the compliance
program PP&L submitted included a group tagging procedure that did not require individual
crew members to sign on and off of a master tag or other device, and that in 1999 OSHA granted
the application of one of PP&L’s facilities. (Tr. 362-78). However, the record further shows that
PP&L had also applied for VPP status for a number of its other facilities and that the
applications for those were stayed pending the resolution of lockout/tagout issues between PP&L
and OSHA. (Tr. 373-78). The record does not establish why OSHA granted the application for
VPP status of one of PP&L’s facilities, when all of the facilities presumably had the same or
similar group tagging procedures. Regardless, under the facts of this case, the granting of one
VPP application is an insufficient basis upon which to find either that Exelon complied with the
standard or that it had a reasonable belief that it was in compliance with the standard. Exelon’s
contention is rejected, and, for all the reasons set out above, I conclude that Exelon had adequate
notice of the standard’s requirements.

Whether Exelon’s OOS Procedure Provides Equivalent Protection

Exelon’s final contention is that it did not violate the standard because its OOS procedure
affords “protection equivalent to that provided by the implementation of a personal lockout or
tagout device.” In support of this contention, Exelon points to its “carefully crafted and
implemented” OOS procedure, the fact that employees receive extensive training in the
procedure, and the fact that no injuries have ever occurred at the facility because of a failure to
follow the OOS procedure. Exelon also points to the testimony of witnesses to the effect that no
one in the industry uses personal tags, or requires individual crew members to sign on and off of
a master tag or other device, and that doing so would add nothing to employee safety and would
be a “nightmare” to enforce. Exelon concludes that OSHA’s interpretation of the standard is not
entitled to deference in this case.

In general, the Secretary’s interpretation of an ambiguous OSHA standard is entitled to
deference as long as her interpretation is reasonable and consistent with the regulatory language.
See Martin v. OSHRC , 499 U.S. 144 (1991), and cases cited therein. As a preliminary matter, I
tend to agree with the Secretary that the standard is not ambiguous, especially when read in
conjunction with the relevant provisions of the preambles to 1910.147 and 1910.269. However,
even if it were, I would still find that the Secretary is entitled to deference in this matter. As
Exelon itself notes, the Supreme Court has recently articulated the factors to be considered in
determining whether an administrative agency’s interpretation of a regulation should be given
deference, as follows:

The fair measure of deference to an agency administering its own statute has been
understood to vary with circumstances, and courts have looked to the degree of
the agency’s care, its consistency, formality, and relative expertness, and to the
persuasive of the agency’s position.

U.S. v. Mead , U.S.L.W. 4488, 4490 (2001). As Exelon further notes, the Court then went on to
quote from a previous decision as a “summing up” of this issue, as follows:

The weight [accorded to an administrative] judgment in a particular case will
depend upon the thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control.

Id . at 4490, quoting from Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944).

In regard to thoroughness, the foregoing discussion establishes, and I find, that OSHA
has thoroughly considered the issue of requiring each individual crew member to sign on and off
of a master tag, work permit or other device; this finding is bolstered by the fact that the
requirements of both 1910.147 and 1910.269, including the sign-on/sign-off requirement, were
the result of extensive comments, hearings and other input by interested parties, and by the fact
that Appendix B to the compliance directive for 1910.269 was issued after a lengthy period of
negotiations among OSHA, industry and union representatives. As to consistency, I have already
found, as set out supra , that the evidence of record demonstrates that OSHA’s interpretation of
the standard has been consistent. This conclusion is apparent from a review of the preambles to
the standards, the appendices to the compliance directives for the standards, and the
interpretational letter of October 14, 1999, issued by OSHA’s Directorate of Compliance
Programs.

With respect to the validity of OSHA’s reasoning, the Secretary notes in her brief that the
core principle of lockout is that each employee who is potentially exposed to hazardous energy
will have his own lockout or tagout device attached to the energy isolating device during the
servicing operation and that the equipment cannot be re-energized until each employee removes
his own lock or tag. (C-48 at 4320, 4359). The Secretary also notes that the purpose of this
requirement is to reduce the possibility that another individual might re-energize equipment
under the mistaken impression that all authorized employees had finished their maintenance
work and were removed from danger; in this regard, the preamble to 1910.269 states that “[i]t
cannot be overemphasized that employees performing tasks on de-energized equipment may be
exposed to hazards involving serious injury or death if the status of the lockout or tagout control
can be changed without their knowledge.” (C-48 at 4359-60). The Secretary points out that by
requiring each authorized employee to place and remove his own lock or tag, the standard
assures the employee will have effective, individual control over energy sources that could
otherwise cause serious injury. (C-48 at 4360-61). The Secretary further points out that this
requirement applies whether one employee or a group of employees is performing servicing
work. See 1910.269(d)(6)(iv), (d)(7)(iv) and (d)(8)(ii)(D).

As set out above, the Secretary contends that Exelon’s tracking list is not the equivalent
of a personal lockout or tagout device because each individual crew member does not sign onto
and off of the tracking list; rather, the lead worker (1) informs the crew members of the OOS and
puts a check by each employee’s name on the list, (2) informs the crew members of the lifting of
the OOS and puts his own initials by each employee’s name on the list, and then (3) signs the
list.

See C-7. The Secretary’s concern is that, with only a verbal notification requirement, the
possibility exists that a crew member might not actually be informed of the lifting of the OOS
protection, thus exposing that crew member to the hazard of electrocution; the Secretary
indicates that this hazard was exacerbated in this particular case by the fact that the breakers, or
energy isolating devices, for the subject heater were in a different area than the heater. See C-1.

Turning to Exelon’s contention, I have considered all of the evidence of record as to its
OOS procedure, including the evidence indicating that employees are trained in the procedure
and receive annual retraining, that employees comply with the procedure and do not disturb tags
on equipment, and that the procedure was followed in the cited work. (Tr. 24-62; 71-72; 96-99;
135; 139; 150-51; 160-62; 165-66; 188-90; 206-08; 222-23). I have also considered the
evidence indicating there have been no injuries at the facility from a failure to follow the
procedure and that no one in the industry uses personal tags or requires individual crew members
to sign on and off of master tags or other devices. (Tr. 169-70; 216; 434-35; 536-37; 594).
Finally, I have considered the testimony of two witnesses that such a requirement would not
increase safety. Gene Stanley, a vice-president of operations with Exelon who is responsible for
six plants, testified that maintenance employees would not be any safer if they signed on and off
of the tracking list due to the system that is in place and all of its safeguards. (Tr. 435-37). James
Tomaseski, the IBEW official noted above, testified that signing on and off of a piece of paper
would not make working on equipment safer; he indicated the key to safety is to have the proper
procedures and training in place and to verify that equipment has been properly isolated and de-energized. He also testified that a sign-on/sign-off requirement would be a nightmare to enforce
and would result in more discipline for members. (Tr. 519-24; 536-38).

Despite the foregoing, I agree with the Secretary’s position in this matter. As set out
supra , the core principle of lockout/tagout is for each employee to place and remove his own
lock or tag, thus ensuring each individual employee effective, individual control over hazardous
energy sources. Moreover, as discussed in the “history” portion of this decision, OSHA
considered and rejected the assertions of EEI and the IBEW during rule making that the tagging
procedures the industry used worked well to protect employees; instead, OSHA specifically
found that electric utility employees at high risk were exposed to a significant risk of injury
under existing practices, based upon Eastern Research Group’s review of IBEW fatality reports.
(C-48 at 4363 n.33). In addition, the issue here is whether the requirement that each crew
member sign on and off of the tracking list would reduce the risk of a crew member being
exposed to the hazard of electrocution. I find that it would, for the reasons that follow.

First, notwithstanding the evidence that employees followed the OOS procedure, James
Hedenschoug, the OOS coordinator at the LaSalle facility, conceded he knew of instances in
which maintenance supervisors had sent employees to work before electronically “accepting” the
OOS, and Terry Ziakis, a senior human resource representative at the facility, acknowledged
there had been a number of occasions where employees had been disciplined for failing to follow
OOS procedures. (Tr. 82; 184; 225; 228; 235-38). Second, although Hedenschoug and Brian
Schmitt, a first-line supervisor in the electrical maintenance department, both indicated that they
attempted to verify that the tracking lists were being used and completed properly, their
testimony establishes there was no system in place to ensure this was the case. (Tr. 187-90; 200-01; 221-23). Third, while Schmitt was emphatic that each crew member on the tracking list had
to be located and notified about the lifting of the OOS, Danny Crouse, the lead worker during the
cited job, testified that he told two members of his crew that the OOS was being lifted when he
“bump[ed] into them” in the shop, indicating, in my view, a somewhat casual approach to the
notification requirement. (Tr. 49-50; 211-16). Fourth, Crouse also testified that he had discussed
the tracking list with Schmitt, his supervisor, the first time he used it because he had questions
about filling it out and about why he would sign off for the crew instead of their signing off;
according to Crouse, this was the same as the old procedure, with the crew relying on the lead
worker, and Schmitt had no answer to his question.

(Tr. 57-59).

In light of the above, I conclude that the lead worker signing the tracking list for the crew
does not afford “protection equivalent to that provided by the implementation of a personal
lockout or tagout device.” As I see it, without a specific sign-on/sign-off requirement for each
crew member, there is a significant risk that a crew member might not actually be informed of
the lifting of the OOS prior to its occurrence and thereby be exposed to an electrocution hazard.
For example, I can envision a situation in which the lead worker signs off of the list prematurely,
fully intending to advise the crew promptly but failing to do so for one reason or another. I can
also envision a scenario in which the lead worker tells crew member “A” about the OOS
protection ending and, because crew member “B” is not present and “A” expects to see “B”
shortly, asks “A” to tell “B” about the OOS ending and then signs off of the list. Stated another
way, the way to ensure that each crew member is protected from exposure to the hazard of
electrocution is to require each crew member to personally sign off of the tracking list upon
being advised of the lifting of the OOS.

In concluding that the Secretary’s interpretation of the standard is entitled to deference, I
am aware of the evidence indicating that no injuries have occurred at the facility from a failure
to follow OOS procedures and that the industry does not requires individual employees to sign
on and off of master tags or other devices. I am also aware of Tomaseski’s testimony that
enforcing such a requirement would be a “nightmare.” However, the purpose of the Act is to
prevent the first accident, and the fact that the hazard the regulation protects against has not
occurred is no defense to the violation. Waldon Healthcare Center , 16 BNA OSHC 1052, 1059
(Nos. 89-2804 & 89-3097, 1993); Simplex Time Recorder Co. v. Secretary of Labor , 766 F.2d
575, 588 (D.C. Cir. 1985). Further, that the industry in general has not complied with the
standard is likewise no basis for vacating the citation. Peterson Bros. Steel Erection Co. , 16
BNA OSHC 1196, 1203 (No. 90-2304, 1993). Finally, I am simply not persuaded by
Tomaseski’s testimony that enforcement of the sign-on/sign-off requirement would be a
“nightmare.” Item 1 of Citation 1 is affirmed as a serious violation.

Penalty

The parties stipulated that, in the event the violation were to be affirmed as serious, the
Secretary’s proposed penalty of $2,400.00 would be appropriate. (Tr. 6-8; J-1). After giving due
consideration to the parties’ stipulation, and to the employer’s size, history and good faith and
the gravity of the violation, I conclude that the proposed penalty of $2,400.00 is appropriate. The
proposed penalty is accordingly assessed.

Conclusions of Law

1. Respondent, Exelon Generating Corporation, LaSalle County Station, is engaged in a
business affecting commerce and has employees within the meaning of section 3(5) of the Act.
The Commission has jurisdiction of the parties and of the subject matter of the proceeding.

2. Respondent was in serious violation of 29 C.F.R. 1910.269(d)(8)(ii)(D).

Order

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ordered that:

1. Item 1 of Citation 1 is AFFIRMED as a serious violation, and a penalty of $2,400.00 is
assessed.

/s/

Irving Sommer

Chief Judge

Date: November 8, 2001

Washington, D.C.