Auto Shred Recycling, L.L.C.

Plain-English summary

Auto Shred Recycling operated a metal-scrap shredding facility in Pensacola, Florida. After an employee was caught in a conveyor tail pulley and later died from his injuries, OSHA cited the company for inadequate machine guarding. The judge found that a guardrail protected employees during normal conveyor operation and that the nip point was below the catwalk and 27 inches away. Employees entered the pulley area only after shutting down and locking out the conveyor, and the record showed that workers understood and followed that procedure. Because exposure to a moving nip point would require bypassing the guardrail and violating the lockout procedure, the Secretary did not prove employee exposure. The citation was vacated and no penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1)
• Outcome: Serious machine-guarding citation vacated; no penalty assessed.
• Key point: OSHA did not establish exposure to an ingoing nip point when guarding protected normal work and jam clearing occurred only under an understood lockout procedure.

Full text (OSHRC public release)

Secretary of Labor, :
Complainant, :
:
v. : OSHRC Docket No. 97-2050
:
Auto Shred Recycling, L.L.C., : (EZ)
Respondent. :

Appearances:

      Kathleen Henderson, Esquire                          James D. Morgan, Esquire
              Office of the Solicitor                              Fisher & Phillips
              U. S. Department of Labor                            New Orleans, Louisiana
              Birmingham, Alabama                                          For Respondent
                       For Complainant

Before: Administrative Law Judge Stephen J. Simko, Jr., Esquire

                                   DECISION AND ORDER

      Auto Shred Recycling, L.L.C. (Respondent), is a corporation engaged in shredding and

recycling metal scrap products and machinery in Pensacola, Florida. Following a fatality which
occurred at respondent’s facility on August 18, 1997, the Occupational Safety and Health
Administration (OSHA) conducted an investigation from August 21, 1997, through August 27,
1997. As a result of this investigation, OSHA issued respondent a citation alleging a violation of
29 C.F.R. § 1910.212(a)(1) with a proposed penalty of $2,250. Respondent filed a timely notice
contesting this citation and proposed penalty, and a hearing was held pursuant to the EZ trial
procedures in Pensacola, Florida, on May 4, 1998.

                                          Background

      On August 18, 1997, respondent’s operator of the oversize conveyor belt was found by

other employees with his left arm caught in the tail pulley of the oversize conveyor belt line. This
employee later died from his injuries. No one witnessed the incident or the operator’s activity
immediately preceding the incident. The operator was the only employee working in the area of
the oversize conveyor. Other employees first realized there may be a problem when they noticed
that the conveyor belt had stopped, but the drive belt was still turning, indicating a jam.
The citation issued to the respondent following OSHA’s investigation alleges a serious
violation as follows:
29 CFR 1910.212(a)(1): Machine guarding was not provided to protect
operator(s) and other employees from hazard(s) created by ingoing nip points:

           On or about August 18, 1997, the employer had not provided
           adequate guarding of the incoming nip point on the tail pulley
           section of the oversize conveyor belt in the Eddy Current Line
           which exposed employees to the hazard of being caught in the
           conveyor nip point.

                                    Stipulation of Facts

   Prior to the hearing on May 4, 1998, the parties submitted a Stipulation of Facts as

follows:
1. The parties stipulate that there was an inrunning nip point on the tail pulley
section of the oversize conveyor belt in the Eddy Current Line at
Respondent’s workplace at 1000 Myrick Street, Pensacola, Florida 32505
during the period from August 1, 1997 to August 27, 1997, inclusive. The
absence of a mechanical guard around the tail pulley of the oversize
conveyor is the only condition which the Secretary alleges to be a violation
of the Act relevant to this hearing.

   2.      The parties stipulate that there was a guardrail on the instrument side of the
           catwalk which ran parallel to the conveyor belt, including the area where
           the nip point was located on the oversize conveyor belt in the Eddy Current
           Line at Respondent’s workplace at 1000 Myrick Street, Pensacola, Florida
           32505 during the period from August 1, 1997 to August 27, 1997,
           inclusive.

   3.      The parties stipulate that there was a distance of 27 inches from the tail
           pulley to the catwalk on which the aforementioned guardrail was mounted
           and that there was no mechanical guard covering the tail pulley of the
           oversize conveyor belt in the Eddy Current Line.

   4.      The parties stipulate that there were recurring occasions when
           materials/debris would get caught or jammed in the tail pulley section of
           the oversize conveyor belt on the Eddy Current Line and that employees
           were required to lock out and tag out the machine before clearing this
           debris. The parties further stipulate that the action of clearing debris from
           the tail pulley area of the oversize conveyor is the only activity which the
           Secretary alleges to constitute a hazard in this matter.

   5.      The parties stipulate that the respondent was the employer of the following
           persons during the period from August 1, 1997 to August 18, 1997,

inclusive:

                   Adrian Lindsey
                   Don Drennen
                   Marc Jaffe
                   Hal Frazure
                   Bruce Johnson
                   James Heal
                   Samuel Payne

                                        Discussion

   The primary work area of the operator of the oversize conveyor was an elevated catwalk

on the instrument panel side of the conveyor. The catwalk had a standard guardrail between the
side of the catwalk and the tail pulley on the conveyor. The top rail was 45 inches above the
catwalk grated floor. The midrail was 25.5 inches above the floor, and there was a toe kick
barrier in place. During the hearing, the investigating compliance officer admitted there was no
employee exposure to the tail pulley while employees were working on the catwalk during normal
operations. The pulley was 24 inches wide, the width of the conveyor. The catwalk on the side
of the conveyor opposite the instrument panel side abutted the area of the conveyor near the tail
pulley. This area was not guarded mechanically or otherwise; however, it was used only by one
employee when he was clearing debris jams. The employee never entered this area to clear jams
until the conveyor was shut down, locked out, and tagged out in accordance with respondent’s
standard procedures.
Debris would jam the conveyors one to three times each day. All employees testifying at
the hearing stated under oath that they were instructed by management to lock out and tag out the
conveyors whenever they cleared jams or removed debris from the pulley area of the conveyor.
These specific instructions were given to employees on several occasions prior to the August 18,
1997 incident. These employees appeared to fully understand that they were not allowed to clear
any jams or debris from this area without first locking out and tagging out the system. I find their
uncontroverted testimony credible. There is no evidence in the record that these employees on
any occasion failed to follow the lockout/tagout procedure before clearing the jams or debris.
Section 1910.212 sets general guarding requirements for all machines. Respondent was
charged with a violation of 29 C.F.R. § 1910.212(a)(1) which provides:
 (a) Machine guarding--(1) Types of guarding. One or more
methods of machine guarding shall be provided to protect the
operator and other employees in the machine area from hazards
such as those created by point of operation, ingoing nip points,
rotating parts, flying chips and sparks. Examples of guarding
methods are--barrier guards, two-hand tripping devices, electronic
safety devices, etc.

   The threshold issue to be decided is whether respondent provided a method of machine

guarding to protect employees from the ingoing nip point hazards while working in the area of the
tail pulley of the oversize conveyor. Complainant’s compliance officer testified there was no
exposure to the nip point hazard for employees standing on the catwalk during normal operations.
The standard guardrail clearly protected employees working on the catwalk from ingoing nip
point hazards in the tail pulley area. Furthermore, the tail pulley nip point was located below the
floor level of the catwalk, and the tail pulley was 27 inches from the toe kick of the catwalk.
The only activity the Secretary alleges to be a hazard is the action of clearing debris from
the tail pulley area of the oversize conveyor. The absence of a mechanical guard around the tail
pulley is the only condition alleged to be a violation. Respondent’s employees were specifically
instructed not to clear jams or debris from the tail pulley area of the conveyor without first
shutting it down and locking and tagging out the system. The testimony of management and
hourly employees clearly demonstrated they understood and complied with respondent’s
lockout/tagout procedure before clearing jams and debris from this area.
The Secretary argues that respondent must use the lockout/tagout procedure and provide
a mechanical guard that surrounds the nip point in order to fully comply with the cited standard
and prevent employees from contacting the ingoing nip points during debris and jam clearing
activity. She further argues that the guardrail does not prevent employees from climbing into the
tail pulley area to perform maintenance or clear jams. Complainant suggests that to clear debris,
the employee should lock out and tag out the system and then remove the guard to clear debris.
This procedure provides no safeguard in addition to those currently provided by the respondent.
When the system is shut down, locked out, and tagged out, there is no longer a hazard of ingoing
nip points. The pulley, at that point, is not turning. Using the Secretary’s recommended
procedure, the employee would still be exposed to the uncovered nip point when the guard over
the pulley is removed.
 Machine guarding must protect employees from hazards of ingoing nip points. There is no
requirement that this guarding prevent an employee from circumventing the guarding and,
thereby, exposing himself to such hazards. Respondent provided this guarding by standard
guardrails with toe kicks that protected employees from the ingoing nip point of the tail pulley. In
addition, it located the catwalk so that the tail pulley was no closer than 27 inches from the
nearest point on the catwalk floor. The nip point was also located below the floor level of the
catwalk.
No part of an employee’s job required him to be close to the pulley except when the
conveyor system was shut down, locked out, and tagged out. For an employee to be exposed to
an ingoing nip point while the tail pulley is turning, he must take two deliberate actions. He must
climb or reach past the guardrail, and he must violate the respondent’s lockout/tagout procedure.
The Act and the cited standard require an employer to protect employees, but they do not require
an employer to take extraordinary measures to prevent employees from circumventing guarding
systems and violating protective procedures. See National Realty and Construction Co. v.
OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973), and Metal Shredders, Inc., 15 OSHC 1554,
1991-93 CCH OSHD ¶ 29,642 (No. 90-2273, 1992).
The Secretary has failed to prove that respondent’s employees were exposed to the
hazards of ingoing nip points on the tail pulley of the oversize conveyor. The alleged violation of
29 C.F.R. § 1910.212(a)(1) is vacated.
FINDINGS OF FACTS AND
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 ORDERED:
   Item 1 of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1910.212(a)(1), is

hereby vacated and no penalty is assessed.
 STEPHEN J. SIMKO, JR.
Judge

Date: May 22, 1998