Omni Source Corp.

Plain-English summary

Omni Source Corp. runs a metals reclamation yard in Toledo, Ohio, where it operates a large Texas Shredder that shreds automobiles. During routine maintenance on March 19, 1996, the roughly 5,600-pound movable section of the machine's safety cage came off its rails and fell into the mill, injuring one worker and fatally crushing a contractor. OSHA inspected after the accident and again after a later complaint, and two citation items went to hearing. The first alleged the company failed to develop lockout/tagout procedures to control the force of gravity on the safety cage; the judge found OSHA had a valid written program and could not show Omni knew or should have known the cage could fall, so that item was vacated. The second alleged an employee power-washing a crane without eye protection; the judge found Omni proved unpreventable employee misconduct (a communicated, enforced safety-glasses rule) and vacated that item too. The remaining items across both dockets were resolved by a settlement the order incorporated, which affirmed one citation and one amended item and vacated others.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.147(c)(4)(i) (lockout/tagout energy control procedures); 29 C.F.R. § 1910.133(a)(1) (eye and face protection)
• Outcome: Both litigated serious items vacated for lack of knowledge and unpreventable employee misconduct. Incorporated settlement affirmed Citation No. 2 (Docket 96-1439) and item 3 as amended (other-than-serious, no penalty), and vacated the remaining items. Split result.
• Key point: An employer with an adequate lockout/tagout program is not liable for an unforeseeable failure mode it had no reason to anticipate, and a communicated, enforced work rule can defeat a citation as unpreventable employee misconduct.

Full text (OSHRC public release)

                                               :
SECRETARY OF LABOR,                            :
     Complainant,                              :
                                               :
                  v.                           :               OSHRC Docket Nos.
                                               :
OMNI SOURCE CORP.,                             :               96-1439 and 96-1441
     Respondent.                               :
                                               :                  (Consolidated)

Appearances:

          Heather A. Joys, Esquire                             John T. Landwehr, Esquire
                  Office of the Solicitor                               Eastman & Smith, Ltd.
                  U. S. Department of Labor                    Toledo, Ohio
                  Cleveland, Ohio                                               For Respondent
                            For Complainant

Before:           Administrative Law Judge Nancy J. Spies

                                         DECISION AND ORDER

          The Occupational Safety and Health Administration (OSHA) conducted two inspections of
Omni Source Corporation's facility in Toledo, Ohio. OSHA compliance officer Thomas Buchele
conducted the first inspection on March 20, 1996, following a fatal accident at Omni's facility that
occurred on March 19, 1996. Buchele's inspection resulted in the Secretary's issuing of two citations
under Docket No. 96-1439. Compliance officer Robert Koedam conducted the second inspection
on June 28, 1996, in response to an employee complaint. The Secretary issued one citation under
Docket No. 96-1441 as a result of Koedam's inspection.
          The two cases were consolidated. Prior to the hearing held on April 23, 1997, the Secretary
and Omni settled all but two of the items contained in the three citations. The items remaining at
issue are item 2 of Citation No. 1 of Docket No. 96-1439, which alleges a serious violation of the §
1910.147(c)(4)(i) (the lockout/tagout standard); and item 2 of Citation No. 1 of Docket No. 96-1441
which alleges a serious violation of § 1910.133(a)(1) (the eye and fall protection standard).

                                            Background

       Omni maintains a scrap facility in Toledo, Ohio, where it performs metals reclamation. Omni
employs approximately 900 employees nationwide, with approximately 150 employees working at
the Toledo facility. Of those 150 employees, approximately 90 work in the facility's yard; the other
employees at that facility are in administrative positions (Tr. 16, 77, 180).
       Omni operates a large hammermill machine at its facility that is known commercially as a
Texas Shredder. The Texas Shredder shreds automobiles and large metal pieces into scrap metal
(Exh. J-1; Tr. 40, 55). It contains a number of different pieces of equipment with separate drive
mechanisms. The Texas Shredder systems contain an in-feed conveyor, feed rollers, a safety cage,
and the hammermill (Tr. 96-97, 226-227).
       During the production operation, the automobiles or the metal is sent down the conveyor into
two hydraulically powered feed rollers, which spin at 500 to 600 RPM. This results in the shredding
of the automobile or large piece of metal (Tr. 168-169, 184-185).
       The safety cage prevents material from flying out of the mill or in-feed rollers when the mill
is running. The lower section of the safety cage is retractable to allow maintenance on the double-
feed rollers and to clear material jammed under the double-feed roller system. It is retracted only
when employees need to work on the in-feed rollers (Tr. 50,226-227). The safety cage is made of
tubular steel and wire mesh (Tr. 252). The movable component of the safety cage weighs at least
5,600 pounds (Tr. 60, 235).
       The movable component of the safety cage is fitted with six-inch wheels that rest on rails
made of angle iron which sit at a 40° angle. When the mill is in operation, the movable section rests
on stops. The back of the movable section is held to the angle iron by hook rollers. These hook
rollers were added to the safety cage after installation of the mill to prevent tipping of the movable
component (Tr. 82-83, 88, 228-230).
       During certain maintenance operations, the movable component of the safety cage is retracted
by means of an electric winch that is attached to the safety cage by safety cables. The winch was not
working at the time of the accident because the winch had pulled out of its mounting bolts several
weeks earlier and had been sent out for repair and additional parts (Tr. 65).
       On March 19, 1996, Omni was performing routine maintenance on the hammermill, which
involved removing and replacing a "banana liner" using an overhead chain hoist. The banana liners
are generally removed and replaced several times a month. James Coutcher, the owner of T. J.
Welding, was engaged in replacing the liner along with several other workers. As the liner was being
lifted out, the movable component of the safety cage came off the rails on which it sat and fell into
the mill, striking and injuring Doug Smith of Omni, and fatally crushing Coutcher (Tr. 31, 35-36, 57,
63).

                                         Docket No. 96-1439

                                     Item 2 of Citation No. 1:
                          Alleged Serious Violation of § 1910.147(c)(4)(i)

        The Secretary charges Omni with a serious violation of § 1910.147(c)(4)(i), which provides
in pertinent part:
        Procedures shall be developed, documented and utilized for the control of potentially
        hazardous energy when employees are engaged in the activities covered by this
        section.

        The Secretary has the burden of proving this violation.

        In order to establish a violation of an occupational safety or health standard, the
        Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
        employer's noncompliance with the standard's terms, (c) employee access to the
        violative conditions, and (d) the employer's actual or constructive knowledge of the
        violation (i.e., the employer either knew or, with the exercise of reasonable diligence
        could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131 (No. 90-1747, 1994).
        Section 1910.147(a)(2)(i) makes the section applicable to "the control of energy during
servicing and/or maintenance of machines and equipment." Omni does not dispute the applicability
of § 1910.147(c)(4)(i) to the cited conditions. The Secretary concedes that Omni had an adequate
written lockout/tagout program (Exh. C-3; Tr. 95). The written program specifically mentions
gravity as a potentially hazardous energy under the heading "isolation steps for stored energy," where
it states (Exh. C-3, p. 14):
                •       Block or brace any part that could fall because of gravity.
                        ••     Presses
                        ••     Shears
                        ••     Other Elevated Equipment
       The Secretary also acknowledges that the hammermill itself had been properly locked out
(Tr. 97).
       The Secretary contends that Omni violated § 1910.147(c)(4)(i) because it failed to develop,
document, and utilize procedures to control the force of gravity on the movable component of the
safety cage during maintenance operations. Compliance officer Buchele testified that Omni failed to
address the potentially hazardous energy created by the situation of the safety cage "sitting on a 40°
incline on wheels . . . . [I]f anything happened, the gravity would bring the cage down to the ground"
(Tr. 88).
       The crux of Omni's defense is that it had no knowledge, either actual or constructive, that the
safety cage created the risk of potentially hazardous energy in the form of gravity.
       Omni had implemented some safety devices to prevent the cage from falling. Omni welded
hook rollers to the safety cage to keep it from tipping off its rails. The hook rollers hooked
underneath the "T" near the rail on which the wheels of the cage were riding to keep the cage from
rotating. Omni also welded 4-inch high metal stops onto the end of the rails upon which the wheels
of the cage rolled to prevent the safety cage from traveling off the end of the track (Tr. 230-231).
       The Secretary argues that Omni had previously used an additional safety precaution to
prevent the safety cage from falling, which it failed to use the night of the accident. The winch and
safety cables that Omni had used to retract the movable part of the safety cage were not in use that
night. However, as compliance officer Buchele conceded, the cables were not used to keep the cage
from falling, but to retract the cage (Tr. 112, 183, 250).
       The manufacturer of the Texas Shredder had provided Omni with a safety checklist for the
hammermill, which Omni followed (Exh. R-2; Tr. 166-167). Buchele testified that he reviewed the
checklist and found no deficiencies (Tr. 107). Buchele also testified that the accident which resulted
in Coutcher's death was not predictable. He had never heard of a similar accident occurring (Tr. 109-
110, 112). Marvin Himmelein, a mechanical engineer who worked with Omni on the specification
process for the installation of the Texas Shredder, testified that there was "no reason to expect that
cage to ever move from" its position resting against the stops, when the cage was at a "minimum
energy state" (Tr. 240). Richard Hayes, president of Hayes Environmental and a former OSHA
compliance officer, testified for Omni that the accident was not foreseeable and that Omni could not
have known that further precautions should have been taken (Tr. 253-254, 261-262).
       The Secretary has failed to prove that Omni knew, or with the exercise of reasonable
diligence could have known, that the safety cage presented a risk of falling due to gravity. This item
is vacated.

                                        Docket No. 96-1441

                                     Item 2 of Citation No. 1:
                           Alleged Serious Violation of § 1910.133(a)(1)

       The Secretary charges Omni with a serious violation of § 1910.133(a)(1), which provides:
       The employer shall ensure that each affected employee uses appropriate eye or face
       protection when exposed to eye or face hazards from flying particles, molten metal,
       liquid chemicals, acids or caustic liquids, chemical gases or vapors, or potentially
       injurious light radiation.

       Compliance officer Robert Koedam conducted a complaint inspection of Omni on June 28,
1996 (Tr. 12-13). During the inspection, Koedam observed Omni employee Tom McCullough using
a high pressure power washer to clean a locomotive crane in the yard. McCullough was not wearing
any eye or face protection and "there was a significant amount of oil, grease, and other materials on
his face and around his eyes" (Exh. C-2; Tr. 18-19). Omni does not dispute that McCullough's
actions constituted a serious violation of § 1910.133(a)(1).
       Omni asserts the affirmative defense of unpreventable employee misconduct. In order to
prove this defense, the employer must show that "it had established a work rule designed to prevent
this violation, adequately communicated these work rules, and effectively enforced these work rules
when they were violated." Pride Oil Well Serv., 15 BNA OSHC 1809, 1816 (No. 87-692, 1992).
       Omni issued a booklet of employee guidelines to each of its employees during orientation
(Exh. R-3). Tom McCullough received one (Exh. R-4). The work rule that addresses safety glasses
states, in pertinent part (Exh. R-3, 9th page):
       1.      All employees will be issued a hard hat and safety glasses . . . . Also, there are
               certain jobs that will require wearing of goggles or face masks, you will be
               advised of these areas.

       Omni provides each employee with safety glasses (Tr. 214). Daniel Atkinson, Omni's
maintenance director, testified that the booklet contains Omni's eye protection safety glasses program
that employees "must wear [safety glasses] at all times while in the yard" (Tr. 171). While the booklet
does not specify where the safety glasses must be worn, Atkinson testified that the safety glasses
policy is communicated to employees "[i]n their orientation and, also, once they're on the job with
their supervisors they also convey that" (Tr. 173).
       McCullough's supervisor, Terry Ward, stated that he had instructed McCullough prior to June
28, 1996, that safety glasses were required to be worn in the yard (Tr. 209-210). Ward, who
accompanied Koedam on his inspection, ordered McCullough to put on his safety glasses and gave
him a verbal reprimand (Tr. 210-211). Omni implements a disciplinary program, which includes
verbal and written warnings, and suspensions (Exh. R-5; Tr. 175).
       The Secretary contends that Omni's written work rule regarding safety glasses is too vague
to provide adequate direction to its employees. A written work rule is not, however, required to
establish the defense, and Omni provided unrefuted evidence that employees were informed verbally
that safety glasses must be worn in the yard. The Secretary also argues that because Ward did not
himself give McCullough his orientation, his testimony did not establish that McCullough ever
received specific instructions regarding wearing safety glasses in the yard (Tr. 213). Wade testified
without contradiction, however, that he had instructed McCullough prior to Koedam's inspection to
wear safety glasses in the yard (Tr. 210). Koedam, who questioned McCullough at the time of the
incident, did not testify that McCullough was unaware of Omni's safety policy (Tr. 22).
       Omni has established the affirmative defense of unpreventable employee misconduct. Omni
proved that it had a work rule requiring employees to wear safety glasses while in the yard, that it
communicated this rule to its employees, and that it enforced this rule through a disciplinary program.
This item is vacated.

                     FINDINGS OF FACT AND CONCLUSIONS OF LAW

       The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).

                                              ORDER

       Based upon the foregoing decision, it is hereby ORDERED:
       1.      Item 2 of Citation No. 1 of Docket No. 96-1435 is vacated and no penalty is assessed;
and
       2.      Item 2 of Citation No. 1 of Docket No. 96-1441 is vacated, and no penalty is
assessed.
          This order also incorporates the partial stipulation and settlement agreements filed by the
parties on April 23, 1996. The agreements disposed of the items not litigated as follows:
                                         Docket No. 96-1439
          1.     Citation No. 1, item 1 is vacated;
          2.     Citation No. 1, item 3 is amended and affirmed as an other-than-serious citation with
no penalty;
          3.     Citation No. 2 is affirmed as issued with no penalty;
          4.     Omni withdraws its notice of contest with respect to the citations and proposed
penalty modified by the terms of this agreement; and
          5.     Omni represents that the conditions described in the items 1 and 3 of Citation No. 1
and Citation No. 2 have been abated.
                                         Docket No. 96-1441
          1.     Citation No. 1, item 1 is vacated;
          2.     Omni withdraws its notice of contest with respect to Citation No. 1, item 1; and
          3.     Omni represents that the conditions described in the Citation No. 1, item 1 have been
abated.