Lourdes Hospital

Plain-English summary

OSHA cited Lourdes Hospital for operating-room practices under the bloodborne-pathogens standard and maintenance procedures under the lockout/tagout standard. The judge found that Lourdes' neutral-zone policy, including a limited exception for hand-to-hand sharps transfers, satisfied the performance-based work-practice requirement. She also found insufficient evidence that circulating nurses failed to wear eye protection when exposure required it, so both bloodborne-pathogens items were vacated. The hospital's general lockout policy lacked equipment-specific shutdown and device procedures, and Lourdes did not conduct required annual inspections. Those two lockout items were affirmed as other-than-serious, with no penalties assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.1030(d)(2)(i), 1910.1030(d)(3)(ii), 1910.147(c)(4)(ii), and 1910.147(c)(6)(i)
• Outcome: Two bloodborne-pathogens items were vacated; two lockout/tagout items were affirmed as other-than-serious with no penalties.
• Key point: A performance standard permits an employer to use a workplace-specific protective method, but a lockout program must still provide usable equipment-specific steps and undergo annual inspection.

Full text (OSHRC public release)

                        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                       1120 20 th Street, NW, Ninth Floor

                                              Washington, DC 20036-3457

Telephone: (202) 606-5405 Fax: (202) 606-5409

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 03-0641
:
LOURDES HOSPITAL, :
:
Respondent. :

Appearances: Marc G. Sheris, Esquire James S. Gleason, Esquire
U.S. Department of Labor Leslie Prechtl Guy, Esquire
Office of the Solicitor Hinman, Howard & Kattell, LLP
New York, New York Binghamton, New York
For the Complainant. For the Respondent.

Before: COVETTE ROONEY
Administrative Law Judge

                                   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 Act”). Respondent, Lourdes Hospital (“Lourdes ”), at all times relevant
to this case maintained a hospital in Binghamton, New York. The parties stipulated that Lourdes is
an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act
and that it is subject to the requirements of the Act.
From November 26, 2002 to February 3, 2003, the Occupational Safety and Health
Administration (“OSHA”) conducted a complaint-initiated inspection of Lourdes. (Tr. 127). As a
result of the inspection, Lourdes was issued one citation alleging two serious violations of the
bloodborne pathogens (“BBP”) standard and one citation alleging two “other” violations of the
lockout/tagout (“LOTO”) standard. The total proposed penalty for the citations was $3,250.00.
Lourdes contested the citations and penalties, and a hearing was held in Binghamton, New York on
October 8 and 9, 2003. The parties have briefed the issues, and this matter is ready for disposition.
Stipulations
The parties stipulated to the following facts:
1. Many of the materials and supplies used and/or manufactured by respondent corporation
originated and/or were shipped from outside the State of New York.
2. Our Lady of Lourdes Memorial Hospital, Inc., is a not-for-profit corporation that maintains
a hospital located at 169 Riverside Drive, Binghamton, New York.
3. Lourdes Hospital has a number of operating rooms in which surgical procedures are
performed on patients.
4. Lourdes Hospital employs registered nurses and surgical technicians who work in these
operating rooms.
5. Amando Mata, M.D., David Dreyfuss, M.D., Mark Walker, M.D., and Bipin Patel, M.D.,
have privileges to perform surgical procedures at Lourdes Hospital, and did have those privileges
in November of 2002. These physicians did perform surgeries at Lourdes Hospital on or about
November 26, 2002.
6. An OSHA Compliance Officer was present at Lourdes Hospital on November 26, 2002
and interviewed several Lourdes Hospital employees. Two citations were issued to Lourdes Hospital
on February 5, 2003.
Motion to Dismiss
At the commencement of the hearing, Lourdes made a motion to dismiss, claiming it had
not been given adequate notice of the circumstances and dates which the Secretary alleges resulted
in violations of the BBP standard; Lourdes also claimed it had not been given appropriate notice so
as to allow it to prepare a defense. (Tr. 6-9). Lourdes maintains that because it had inadequate notice
of the charges it was deprived of due process. I find that the citation and complaint in this matter
gave Lourdes adequate notice of the allegedly hazardous conditions found at its workplace and the
standards those conditions allegedly violated. It is clear from the evidence that Lourdes was also told
at the time of the OSHA inspection of the incidents leading to both citations and the time period

                                              2

during which they allegedly occurred. OSHA Industrial Hygienist (“IH”) Francis Strelec held a
closing conference with Lourdes representatives Joseph D’Antuono, Susan Russell and Sue Surgent
on February 3, 2002, at which time he discussed the alleged violations with them. (Tr. 158-60). Any
confusion as to the exact dates on which specific events occurred was the result of faulty and/or
conflicting memories of the witnesses and in no way hindered Lourdes from mounting a complete
defense to the allegataions in this matter. Lourdes’ motion is therefore denied.
The Inspection
IH Strelec testified that upon his arrival at the hospital, he conducted an opening conference
with various employer representatives, including Sue Surgent, human resources director, Wayne
Mettier, vice-president, Susan Russell, director of preoperative services, and Joseph D’Antuono,
safety director. He told them what the scope of the inspection would be, and he requested copies of
Lourdes’ OSHA 200 logs and exposure control plan. IH Strelec then conducted a walkaround
inspection with these same representatives. As part of the inspection, the IH examined the operating
room, which was not in use at the time; he also examined some instruments, including sharps and
passing pans, and he interviewed employees. (Tr. 128-29).
Serious Citation 1, Item 1
This item alleges a violation of 29 C.F.R. 1910.1030(d)(2)(i), which provides as follows:
Engineering and work practice controls shall be used to eliminate or minimize
employee exposure. Where occupational exposure remains after institution of these
controls, personal protective equipment shall also be used.
The Secretary alleges that on or about November 26, 2002, in the Lourdes operating rooms,
physicians performed hand-to-hand transfers of contaminated sharps to nurses without using work
practice controls, including, but not limited to, the use of passing pans.
To prove a violation of a specific standard, the Secretary must establish the applicability of
the cited standard, the employer’s noncompliance with the standard, employee access to the
noncomplying condition, and the employer’s knowledge of the violation (i.e., that the employer
either knew, or could have known with the exercise of reasonable diligence, of the violative
condition. E.g., Rockwell Int’l Corp., 17 BNA OSHC 1801, 1806 (No. 93-228, 1996).
Lourdes, the employer in this matter, is a hospital that provides medical and surgical care to
the sick and the injured. The record in this case shows that physicians had staff privileges at Lourdes,

                                               3

which meant that they could admit patients to the hospital; in so doing, the physicians were bound
to follow the hospital’s rules and regulations or be subject to discipline by the hospital. During the
course of surgery, the physicians were assisted by and directed the work of circulating nurses and
surgical technicians employed by the hospital. (Tr. 168-69, 172, 195-97, 350-51, 367-71). Exhibits
C-3 and R-43 set out the policies and work practices that Lourdes required everyone working in its
operating rooms to follow. As the employer, Lourdes was responsible for ensuring that its employees
(in this case, the surgical technicians and circulating nurses) were not exposed to hazards.1
The BBP standard was promulgated in 1991 to eliminate or minimize occupational exposure
to blood and other potentially infectious materials because they may contain BBP’s, such as hepatitis
B virus, which causes Hepatitis B, and human immunodeficiency virus, which causes Acquired
Immunodeficiency Syndrome or AIDS. To comply with the standard, healthcare employers are
required to prepare a written exposure control plan to eliminate or minimize employee exposure to
BBP’s. The plan requires employers to adopt the use of universal precautions, engineering controls,
work practice controls and protective equipment. See 56 Fed Reg. 64175 (1991), as amended, 66 Fed
Reg. 5318 (2001). The BBP standard is written in performance-oriented language, giving the
employer the opportunity to implement the controls that best suit the safety of its employees. A
performance standard differs from a specifications standard in that, rather than directing specific
measures to be taken whenever a hazard identified by the Secretary is present, it allows the employer,
within the standard’s general guidelines, to identify the hazards peculiar to its own workplace and
determine the steps necessary to abate them. Generally, performance standards state the required
result without specifically mandating how that result is to be achieved. See Diebold, Inc., 3 BNA
OSHC 1897(No. 6767, 1976); General Motors Corp., 8 BNA OSHC 1465 (No. 78-2128 1979). The

    1
      The Act places primary responsibility on employers to achieve compliance with its standards

and to ensure a safe workplace. See S. Rep. No. 91-1282, reprinted in 1970 U.S.C.A. 5177, 5186. It is
well settled that an employer may not shift responsibility or contract away its legal duties or its ultimate
responsibility under the Act by requiring another to perform them. Baker Tank Co., 17 BNA OSHC 1177,
1180 (No. 90-1786, 1995); Central of Georgia R.R. Co. v. OSHRC, 576 F.2d 620, 625 (5th Cir. 1978).

                                                 4

Second Circuit2 has held that, to make out a prima facie violation of a performance standard, the
Secretary also has the burden of proving feasibility and utility of abatement measures.3
The cited standard requires that the employer utilize engineering controls and work practices
to minimize employee exposure.4 The standard does not specify the manner in which this is to be
accomplished. The preamble to the standard states that “[w]hile work practice controls also act on
the source of the hazard, the protection they provide is based upon the behavior of the employer and
employee behavior rather than installation of a physical device such as a protective shield.” The
preamble further states that engineering controls and work practices “frequently work in tandem
because it is often necessary to employ work practice controls to assure effective operation of
engineering controls.”5 56 Fed Reg. 64175 (1991). It is thus clear from the preamble that the drafters
of the standard provided for the exercise of judgment on the part of the employer.
IH Strelec testified that he recommended this citation item due to his belief that the hospital’s
practice was to use passing pans in lieu of hand-to-hand transfers between the surgeon and the
surgical technician (hereafter, “scrub tech”) and the practice was not being enforced. (Tr. 130-32,
143, 227-30, 272-74). He further testified that he talked to several circulating nurses6 who told him

    2
        The Second Circuit is the Court of Appeals to which an appeal of this matter would be filed.
    3
     The Secretary must specify the particular steps an employer should have taken to avoid being

cited and to show the feasibility and likely utility of those measures. General Elec. Co. v. OSHRC, 540
F.2d 67, 69-70 (2d Cir. 1976) [the court noted that, in regard to a case under 29 C.F.R. 133(a)(1), the
applicable rule as to technological and economic feasibility for section 5(a)(1) cases was set out in
National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266-1268 (D.C. Cir. 1973)].
4
Work practice controls are controls that reduce the likelihood of exposure by altering the
manner in which a task is performed. See 29 C.F.R..1910.1030(b).
5
The Commission has held that a final rule’s preamble is the most authoritative statement of the
Secretary’s intent. American Sterlizer Co., 15 BNA OSHC 1476 (No. 86-1179, 1992).
6
A circulating nurse is a registered nurse whose job in the operating room is to ensure that the
procedure goes smoothly. These nurses check the patient’s chart prior to coming into the room, get the
patient in position on the surgical table, do the surgical counts, oversee instrument needs, help the scrub
tech in setting up instruments, and assist the anesthesiologist and the doctor in any way necessary (i.e.,
leaving the room to get extra supplies or needed equipment). The circulating nurses do not scrub since
they do not enter the sterile field in which the doctors and scrub techs work. If the nurse has to provide
the doctor additional equipment it is given to the scrub tech. (Tr. 12-13, 147-48, 176, 355-56).

                                                   5

that doctors generally did not use passing pans and that they had seen surgeons as recently as the day
of the inspection performing hand-to-hand transfers.7 (Tr. 132-36). The IH also spoke with Pat Durr,
the infection control coordinator, who told him that passing pan use had been developed due to three
operating room needle stick injuries in 2001; she also told him that the use of passing pans had been
in contention for a while and had really never been enforced. (Tr. 136-37; Exhs. C- 1A and 1B).
It is clear from the record that IH Strelec’s interviews of the circulating nurses formed the
basis of his decision to recommend the subject citation item.8 Further, I have no reason to believe that
the employee statements he testified about were anything other than what he expressed at the hearing.
However, I find that what the nurses told him does not demonstrate a violation of the cited standard
because the IH was unaware of Lourdes’ complete work practice with respect to the handling of sharp
instruments. Specifically, while he was given Exhibit C-3, Lourdes’ exposure control plan, during
the inspection, he was not given Exhibit R-43, Lourdes’ neutral zone policy. Exhibits C-3 and R-43
were adopted at the same time, and while both set out the neutral zone procedure, R-43 contains an
exception allowing hand-to-hand transfers of sharps under certain circumstances. (Tr. 317-19). The
exception is not set out in C-3, and the IH was never told about the exception. (Tr.140).

     7
       Specifically, Lou Ann Taylor told him that physicians generally did not use passing pans. She

said that in the month before the inspection she had seen Dr. Dreyfuss and Dr. Patel do surgery without
using a passing pan; instead, the doctors performed hand-to-hand transfers of contaminated instruments.
Jennifer Setlak told the IH that, on the day of the inspection, Dr. Mata had made a hand-to-hand transfer
of contaminated sharps during surgery. She also told the IH that she had reported other such incidents to
management. Heidi Collins told the IH that, on the day before his arrival, Dr. Walker had performed an
operation without using a passing pan. Ms. Collins and Ms. Setlak both told the IH that they had worked
with Dr. Dreyfuss in the past and that he had not used a passing pan. Janet Signorile stated to the IH that,
about a month before the inspection, Dr. Mata had not used a passing pan during surgery and had made a
hand-to-hand transfer of contaminated sharps. (Tr. 132-36).
8
The circulating nurses who the IH interviewed were called as witnesses for the Secretary. The
testimony of Jennifer Setlak, a former Lourdes nurse, agreed with the IH’s recollection of her interview.
However, the nurses who still worked for Lourdes, e.g., Heidi Collins, Robin Fedourich, Lou Ann Taylor
and Janet Signorile, could not recall their conversations with the IH, and, at the hearing, they denied that
they had said what he testified they had told him. Further, they could not recall what observations they
may have made in the operating room on or about November 2002. Based upon my observations of their
demeanor, as well as their evasive testimony and their inability to recall, I conclude that their testimony
reflected a bias towards their employer. I find, therefore, that the testimony of the nurses who were still
employed by Lourdes was not credible. (Tr. 38-42, 48-52, 68, 73-75, 83-88, 95-96, 107-08, 114, 118).

                                                  6

The record shows that Lourdes’ work practices addressing the reduction of the incidence of
percutaneous injuries and blood exposures by utilizing a “neutral zone” are set out in Exhibits C-3
and R-43.9 In C-3, the exposure control plan, the neutral zone procedure is set out in detail under the
section entitled “Sharps.”10 In R-43, a one-page document entitled “General Principles of the Neutral
Zone (NZ),” the neutral zone procedure is essentially the same, although it is somewhat less detailed,
as the one in C-3; however, as noted above, a significant difference between the two procedures is
the exception set out in R-43, which is not in C-3. The exception states as follows:

    9
      A neutral zone is an area where the surgeon and the scrub tech agree to place sharp instruments;

the purpose of the neutral zone is so that, when one of them lays down a sharp object, the other person
will not be in the way.
10
Exhibit C- 3, Lourdes’ exposure control plan, was originated in October 2000, reviewed in
November 2001, and revised in October 2002. It states that “[s]tandardized workplace practices will be
used to protect employees from exposure to bloodborne and body fluid pathogens.” It also addresses the
issues of using protective wear, such as eye wear, gloves and gowns, and utilizing a neutral zone when
handling sharps. With respect to handling sharps, C-3 provides in pertinent part as follows:

III. Sharps
B. Hands-free technique will be used for passing instruments that are potentially a sharp hazard. This
includes scalpels, needles including suture needles, skin hooks, metacarpal retractors, sharp rakes, etc.
The sharp instrument will be placed in a square basin lined with a towel or washcloth. The basin will be
kept in the sterile field in an area designated as the neutral zone. The following guidelines will assist in
safe use of the neutral zone:
1. Before the first incision or injection is made, the Neutral Zone (NZ) is SELECTED
AND DESIGNATED by the surgeon in consultation with the person passing the
instruments to determine the optimal placement for the NZ for a given procedure. The
NZ is dedicated to sharps ONLY. All other instruments are passed hand-to-hand.
2. Only ONE sharp is to occupy the NZ at any given time.
3. The scrub person ANNOUNCES THE SHARP by name when placing it in the NZ (“suture”,
“scalpel”). Or, alternatively, instead of saying the sharp by name, they can say “Safe zone.”
4. The scrub person DOES NOT HOLD the NZ device, but leaves it in the intended location on
the field to keep fingers out of harm’s way.
5. The scrub person ORIENTS THE SHARP in the NZ so the surgeon may pick it up with the
dominate hand without the need to turn or reposition it.
6. The scrub person ensures suture needles are MOUNTED AND POSITIONED OPTIMALLY
to avoid the need for the surgeon to reposition them in the needleholder.
7. The surgeon and the scrub person COMMUNICATE FREELY. The NZ may be moved at
different times during the procedure at will and by agreement to accommodate the surgeon’s
needs.

                                                 7

Hand-to-hand transfer of sharps remains an appropriate option at the surgeon’s
discretion in situations when he or she cannot avert eyes from the field or cannot reach
the NZ because of positioning or other factors.
The record establishes that Exhibits C-3 and R-43 are both posted in all of the scrub rooms
at Lourdes Hospital. The record further establishes that both documents were implemented together
in December of 2000 or January 2001. (Tr. 317-20).
As the foregoing indicates, the NZ procedure is a hands-free technique wherein all sharp items
are placed in a container or in a designated “safe zone.” Various devices are employed in this regard,
such as mats, trays, basins, and all or part of an instrument stand or a designated area on the field. (Tr.
43-44, 54-59, 64-66,178-85, 322-25, 358-59, 386-87; Exhs. R-47A-G). Lourdes’ procedure was
adapted from a book by Dr. Mark S. Davis entitled Advanced Precautions for Today’s O.R., wherein
Dr. Davis sets out seven guidelines for application of the neutral zone.11 These guidelines emphasize
the importance of team interaction and good verbal communication between the surgeon and the scrub
personnel. They also emphasize that the surgeon designates the NZ prior to the first incision or
injection and that the NZ may be moved at different times during a given procedure to accommodate
the surgeon’s needs; further, an instrument is placed in the NZ so that the surgeon can pick it up
without turning or repositioning it. (Tr. 177-80, 323-25, 355-57, 385-87, 388-89).
In addition to the above, the record shows that the surgeon, who is always in charge, makes
the determination as to when hand-to-hand passing will be done. The record also shows that in
November of 2002, the use of the neutral zone was standard practice in the operating rooms at
Lourdes Hospital; however, when doctors performed surgery with the assistance of a microscope, they
performed hand-to-hand transfers. (Tr. 77, 95-96, 107, 118, 170-71, 177, 186, 209, 213, 337, 352,
388, 391). Two of the surgeons who perform surgery at Lourdes, that is, Dr. Mark Walker and Dr.
David Dreyfuss, testified that because the field of vision is so small when using magnifying
instruments, it is difficult for a surgeon to avert his eyes from the operating field. (Tr. 342, 353-54,
361-64). Finally, the record shows that Lourdes employees are trained during their first two weeks

     11
      Dr. Mark S. Davis is an experienced surgeon who devotes much time to promoting safety in

operating rooms and hospitals. (Tr. 318-19, 329; Exh. R-27). His book, entitled Advanced Precautions
for Today’s O.R.., was published in 1999 by Sweinbinder Publications LLC, in Atlanta, Georgia. Exhibit
R-43, noted above, is an excerpt from Dr. Davis’ book.

                                                8

on the job about the NZ policy and techniques for hand-to-hand passing in those situations where the
exception applies. (Tr. 320-21, 329-30, 333; Exhs. R-17, 27and 28). In such circumstances,
employees have been trained in how to angle the instrument into the surgeon’s waiting hand. (Tr. 109,
129, 186-89, 193, 202-04, 372-73).
In view of the evidence of record, I find that the Secretary has failed to sustain her burden of
proof with respect to the alleged violation. There is no evidence that the neutral zone policy detailed
in Exhibits C-3 and R-43 was not being followed, and I find that the policy and its exception meet the
mandate set out in the cited performance standard. The Secretary’s attempt to demonstrate that
Lourdes’ conduct fell short of the standard was based on statements from witnesses, that is, the
circulating nurses, which I have found unreliable, as noted supra, and, as a result, the information the
IH obtained was simply inaccurate; in this regard, I note that IH Strelec admittedly did not interview
any doctors or surgical technicians.12 (Tr. 237, 279, 292). Furthermore, the Secretary’s attempt to
show, during her cross-examination of certain witnesses, that it was feasible to use larger passing pans
during surgery involving magnifying instruments, was sheer speculation unsupported by any objective
evidence and was thus insufficient to establish a prima facie case. (Tr. 207, 345, 376). Finally, the
Secretary’s attempt to establish a strict specification standard by imposing the use of passing pans is
inconsistent with the intent of a performance standard, which, as set out above, allows the employer,
within the standard’s guidelines, to identify hazards peculiar to it own workplace and determine the
steps necessary to abate them. The Secretary has not met her burden of proving the alleged violation,
and this citation item is accordingly vacated.13

     12
        I also note that the injury logs the IH relied upon to support his conclusions do not reveal any

injuries that resulted from hand-to-hand transfers. (Tr. 137, 265-66; Exh. C-1B).
13
In vacating this citation item, I am aware of footnote 3 of the Secretary’s brief, wherein the
Secretary’s counsel notes that he was not allowed to offer rebuttal testimony from his expert witness to
rebut Lourdes’ affirmative defense of infeasibility. Specifically, the Secretary’s counsel attempted to
rebut Lourdes’ evidence through the proposed expert testimony of Dr. Don Wright, the Director of
Occupational Medicine at OSHA. However, counsel was unable to lay a proper foundation for Dr.
Wright to express an opinion on the feasibility of passing pans, and I found, based upon Dr. Wright’s
knowledge, skill, experience, training and education, that counsel did not establish a sufficient basis for
the court to find him qualified as an expert rebuttal witness.

                                                  9

Serious Citation 1, Item 2
This item alleges a violation of 29 C.F.R. 1910.1030(d)(3)(ii), which provides as follows:
The employer shall ensure that the employee uses appropriate personal protective
equipment unless the employer shows that the employee temporarily and briefly
declined to use personal protective equipment when, under rare and extraordinary
circumstances, it was the employee’s professional judgment that in the specific
instance its use would have prevented the delivery of health care or public safety
services or would have posed an increased hazard to the safety of the worker or co-
worker. When the employee makes this judgement, the circumstances shall be
investigated and documented in order to determine whether changes can be instituted
to prevent such occurrences in the future.
The Secretary alleges that on or about November 26, 2002, in the Lourdes operating rooms,
the employer did not ensure the use of goggles or face shields for circulating nurses working in the
operating rooms.
The basis of the foregoing personal protective equipment provision is the existence of
occupational exposure, which, by definition, is “reasonably anticipated” skin, eye, mucous membrane
or parenteral contact with blood or other potentially infectious materials that may result from the
performance of an employee’s duties.14 See § 1910.1030(b). The record shows that Exhibit C-3,
Lourdes’ exposure control plan, addresses wearing protective eye wear, gloves and gowns. It requires
scrub personnel to wear protective eye wear during all surgical procedures and circulating staff to wear
protective eye wear when there is a potential for exposure to droplets of blood or other body fluids.
This policy was communicated to new staff during orientations and was posted in the scrub room of
every operating room. (Tr. 33-35, 325-29, 338). Lourdes ensured enforcement of the policy with
random monthly observations. (Tr. 345-46).
IH Strelec testified that, based on his interviews of the circulating nurses, he determined that
they were not wearing protective eye wear during surgical procedures; he also determined that,
because they were located around the surgical table and could be anywhere, i.e., near the surgeons or
scrub techs, they could be exposed to airborne droplets of blood. (Tr. 147-54).

     14
       The equipment used is to be chosen to protect against contact with blood or other potentially

infectious materials based on the type of exposure and quantity of substances which can be reasonably
anticipated to be encountered while performing a task or procedure. See 56 Fed Reg. 64004 (1991).

                                               10

Despite the foregoing, I find that there is no evidence in the record that clearly establishes an
incident in which a circulating nurse was not wearing eye protection and it was required. For example,
while the IH said that two nurses told him that some operations like those involving hips can be “pretty
bloody” and can “splatter blood in the air,” he apparently did not ask whether they had been in an
operating room during such a procedure and not wearing eye protection when it was required.15 (Tr.
149-50). The IH also said that another nurse told him that circulating nurses can be exposed to blood,
but, when asked if she had stated how they can be exposed, the IH said that “she wasn’t specific.”16
(Tr. 150-51). One nurse did testify that she had been involved in surgical procedures during November
2002 in which she had had to change her clothing because blood had splashed on it; however, she also
testified that she wore eye protection when there was a potential for exposure, and it was not clear from
her testimony whether she had been wearing eye protection during the surgical procedures in which
she had had to change her clothing.17 (Tr. 28-30, 34-35). A blanket assertion that circulating nurses
were not wearing protective eye wear is not enough to met the Secretary’s burden of proof. This
citation item is accordingly is vacated.
“Other” Citation 2, Item 1
This item alleges a violation of 29 C.F.R. 1910.147(c)(4)(ii), which states that:
The [energy control] procedures shall clearly and specifically outline the scope,
purpose, authorization, rules, and techniques to be utilized for the control of hazardous
energy, and the means to enforce compliance including, but not limited to, the
following....
(B) Specific procedural steps for shutting down, isolating, blocking and securing
machines or equipment to control hazardous energy;

     15
      That circulating nurses may not often be exposed to splatters of blood or other fluids in the

operating room is supported by the evidence set out in footnote 6, supra, indicating that the circulating
nurses do not enter the sterile field in which the surgeons and the scrub techs work.
16
The non-specific nature of the information the IH obtained from the nurses is also demonstrated
by his testimony on cross-examination. (Tr. 251-57).
17
This particular nurse no longer worked for Lourdes at the time of the hearing. Although there
were other circulating nurses who testified who still worked for Lourdes at the time of the hearing, their
clear bias in favor of their employer was evident in their demeanor. Because of this, and also because of
their inability to recall the contents of their interviews with the IH, I find their testimony in this regard
not credible. (Tr. 52, 74-75, 89-92, 94-95, 114).

                                                 11

(C) Specific procedural steps for the placement, removal and transfer of lockout
devices or tagout devices and the responsibility for them....
The Secretary alleges that on or about January 30, 2003, Lourdes’ energy control procedures
for equipment such as, but not limited to, air compressors, chillers, circulating pumps, boilers and
ovens, did not include the following procedural information: 1) specific steps for shutting down,
isolating, blocking and securing equipment; and 2) the specific steps for the placement, removal and
transfer for lockout devices.
IH Strelec testified that he recommended this item because Exhibit C-2, the LOTO program
he saw for the boilers, air compressors, chillers and circulating pumps at the hospital, contained neither
information on shutting down, isolating, blocking and securing equipment nor information on removal,
placement and transfer for LOTO devices. When he asked for the energy control procedures, he was
told that that information was on the last page of the program; when he asked for more specific
information, Mr. D’Antuono told him there was none. (Tr. 155-57). IH Strelec also testified that he
was familiar with the exception in 1910.147(c)(4)(ii) and that he was not aware of any exceptions
applying to Lourdes’ equipment; he noted that in his experience, equipment such as the kind Lourdes
had has multiple energy sources. (Tr. 268-71).
Mr. D’Antuono acknowledged at the hearing that the document he provided was the hospital’s
general LOTO policy and that the hospital did not have any written procedures for specific pieces of
equipment; he noted, however, that the hospital had the owner’s manuals for specific pieces of
equipment that contained shutdown procedures for those pieces of equipment. (Tr. 100-03).
I find the cited standard applies because air compressors, chillers, circulating pumps, boilers
and ovens are all machines or equipment that require servicing and maintenance, and the unexpected
energization or startup of the machines or equipment, or release of stored energy, could cause injury
to employees. I also find the terms of the standard were violated, for the following reasons.
The energy control procedures required under section 1910.147(c)(4) are to be developed and
utilized by employers for the control of potentially hazardous energy when employees are engaged in
servicing and maintenance activities. The purpose of an energy control procedure is to ensure that,
before any employee performs any servicing or maintenance on a machine or equipment where the
unexpected energizing, start up or release of stored energy could occur and cause injury, the machine

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or equipment is isolated from the energy source and rendered inoperative. See § 1910.147(c). The
procedure must be written in sufficient detail and provide enough direction to enable employees to
follow the procedure and determine how to safely perform servicing or maintenance work.
Exhibit C-2, the LOTO program given to the IH in this case, contains a generalized outline that
has little or no utility for employees who must follow the procedure. Employers have some leeway to
develop a plan tailored to their workplace, so long as the minimum contents are included. I find that
Lourdes’ written program does not contain the required information because it is too general and thus
would not serve to guide an employee through the LOTO process with respect to specific machinery
or equipment. In this regard, I note that Mr. D’Antuono himself admitted that Lourdes’ LOTO program
was general. Drexel Chem. Co., 17 BNA OSHC 1908 (No. 94-1460, 1997). I also note that while
Lourdes apparently had equipment manuals with shutdown procedures, they were not incorporated into
C-2; further, they were not shown to the IH or offered in evidence. (Tr. 103). The Secretary has shown
noncompliance with the standard’s terms, and she has also shown employee exposure and employer
knowledge. This citation item is therefore affirmed.18
As to the classification of this item, an “other” violation is one that has a direct and immediate
relationship between the violative condition and occupational safety; however, unlike a serious
violation, the probability of death or serious physical injury does not exist. I find that this item is
properly classified as “other.” This citation item is accordingly affirmed as an other-than-serious
violation. No penalty was proposed for this item, and none is assessed.

     18
       Section1910.147(c)(4)(i) identifies eight conditions that must exist in order to excuse the

employer’s obligation to maintain a written procedure for a specific machine or piece of equipment.
Employers need not document LOTO procedures for individual machines as long as they meet all the
qualifications to be exempt from the standard’s requirements. The exception is intended to apply to
situations in which the procedure for deenergiztion, servicing and reenergization can be carried out
without detailed interactions of energy sources, machines, and employees. The Commission has held,
however, that the party who claims the benefit of an exception has the burden of proving its claim.
Kaspar Electroplating Corp., 16 BNA OSHC 1517, 1522 (No. 90-2866, 1993). In this case, Lourdes
presented no evidence to show that it met the conditions to qualify for the exception.

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“Other” Citation 2, Item 2
This item alleges a violation of 29 C.F.R. 1910.147(c)(6)(i), which states that:
The employer shall conduct a periodic inspection of the energy control procedure at
least annually to ensure that the procedure and the requirements of this standard are
being followed.
The Secretary alleges that on or about January 30, 2003, Lourdes did not perform annual
inspections of LOTO procedures for equipment such as, but not limited to, air compressors, chillers,
circulating pumps, boilers and ovens.
IH Strelec testified that when he asked if the energy control procedures were inspected
annually, Mr. D’Antuono’s response was that he did not do an annual inspection of the energy control
procedures; Mr. D’Antuono also did not say that he reviewed or discussed the policy with his
employees every year. (Tr. 157). When asked at the hearing whether Lourdes did annual inspections
of LOTO policies, Mr. D’Antuono testified as follows:
We did annual reviews of our policies. In the policy there’s a test here for staff, which
was conducted annually for competencies. Lourdes’ actual review policy is three years
for all their policies to review them. This one was reviewed with the staff annually. The
actual policy was not updated annually. (Tr. 101).
Mr. D’Antuono further testified that Exhibit C-2, Lourdes’ LOTO program, was effective in
April 1999 and was reviewed in January 2002. (Tr. 102).
I find that the cited standard applies because air compressors, chillers, circulating pumps,
boilers and ovens are all machines or equipment that require servicing and maintenance, and the
unexpected energization or startup of the machines or equipment, or release of stored energy, could
cause injury to employees.19 I also find, based on the above, that Lourdes did not comply with the
standard. The record shows there had been a three-year lapse between the time the program was
implemented and the time it was reviewed, there was no evidence of any other review in the record,
and the safety director admitted Lourdes’ LOTO procedures were not annually inspected. Finally, I

     19
       The periodic inspection required by the standard is intended to assure the employer’s energy

control procedures continue to be implemented properly and that employees involved are familiar with
their responsibilities under those procedures. These inspections are intended to provide for immediate
feedback and action by the employer to correct any inadequacies observed. See 54 Fed Reg. 36644,
36673 (1989).

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find that employees were exposed to the cited condition and that Lourdes had knowledge of the
condition. The Secretary has proved the alleged violation and this item is therefore affirmed.
As to the classification of this item, an “other” violation is one that has a direct and immediate
relationship between the violative condition and occupational safety; however, unlike a serious
violation, the probability of death or serious physical injury does not exist. I find that this item is
properly classified as “other.” This citation item is accordingly affirmed as an other-than-serious
violation. No penalty was proposed for this item, and none is assessed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes my findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing, it is hereby ORDERED that:
1. Citation 1, Item 1, alleging a serious violation of 29 C.F.R. 1910.1030(d)(2)(i), is
VACATED.
2. Citation 1, Item 2, alleging a serious violation of 29 C.F.R. 1910.1030(d)(3)(ii), is
VACATED.
3. Citation 2, Item 1, alleging an “other” violation of 29 C.F.R. 1910.147(c)(4)(ii), is
AFFIRMED, and no penalty is assessed.
4. Citation 2, Item 2, alleging an “other” violation of 29 C.F.R. 1910.147(c)(6)(i), is
AFFIRMED, and no penalty is assessed.

                                                   /s/
                                                         Covette Rooney
                                                         Judge, OSHRC

Dated: February 23, 2004
Washington, D.C.

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