Omaha Paper Stock Company

Plain-English summary

Omaha Paper Stock used a large baler whose chamber employees entered to clear jams. An employee became trapped under five to six feet of paper and required a 48-minute rescue. The Commission held that the chamber was a permit-required confined space because entrants faced recognized serious hazards from falling paper and unexpected machine activation. The company's lockout program and inconsistent jam-removal practices did not eliminate those hazards or replace the duties to identify the space, maintain a written entry program, evaluate hazards, prepare permits, train employees, and provide rescue procedures and equipment. All eight permit-space items were affirmed as serious. The Commission found moderate rather than moderate-to-high gravity and reduced the aggregate penalty from $16,000 to $12,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.146(c)(2); 29 C.F.R. § 1910.146(c)(4); 29 C.F.R. § 1910.146(d)(2); 29 C.F.R. § 1910.146(d)(3); 29 C.F.R. § 1910.146(d)(4)(viii); 29 C.F.R. § 1910.146(e)(1); 29 C.F.R. § 1910.146(g)(1); 29 C.F.R. § 1910.146(k)(3)
• Outcome: Eight serious permit-required confined-space items affirmed; combined penalty reduced to $12,000.
• Key point: Lockout procedures alone did not remove the baler chamber from the permit-space standard when entrapment and activation hazards remained.

Full text (OSHRC public release)

SECRETARY OF LABOR,

             Comp lainant,

                   v.                            OSHRC D ocket No. 99-0353

OM AHA PAP ER S TOC K CO .,

              Respon dent.



                                    DECISION

Before: RO GERS , Chairman, and E ISENBR EY, Com missioner.
BY THE COMMISSION:
At issue before us are eight citation items alleging that Omaha Paper Stock Co.
(“OPSC”) committed serious violations of various provisions of the “permit-required
confined space” (“PRCS”) standard, 29 C.F.R. § 1910.146, at its Cincinnati, Ohio paper
recovery and recycling plant. Administrative Law Judge Nancy J. Spies affirmed all eight
items, classified each violation as “serious,” and assessed penalties of $2000 per item. For
the reasons tha t follow, w e affirm th e eight items as serious an d assess a to tal combined
penalty of $12,000.
Background
OPSC’s business involves the recovery and recycling of paper, ranging from
corrugated cardboard to newspa per and w hite ledger p aper. The recovered paper is
compacted into bales, which weigh between 1100 and 1400 pounds, and sold to paper and
pulp mills for re-use. The Lindemann baler used in these baling operations is 30 to 40 feet
long and approximately 10 feet w ide. The chamber, where the paper is compressed by the

                                                                    2001 OSHRC N o. 30

2

baler’s ram,1 is six feet long and appr oximately five feet wide . Access to the cham ber is
provided through a 36-inch b y 30-inch door that swings open on one sid e of the baler. Since
the bottom of the door is approximately four feet above the floor, it is necessary for an
employee to climb over the bottom portion of the baler and through the access door in order
to use this primary route in or out of the baler chamber. The chamber c an also be entered
through the top of the machine or through the 10-foot-long discharge chute. Once inside the
chambe r, the emplo yee is able to stan d erect.
On September 18, 1998, OPSC employee Chris Tracy became trapped inside the
Lindemann baler chamber when a large amount of jammed paper fell on top of him as he
sought to eliminate the jam, knocked him down, and left him tem porarily unable to use his
legs.2 The local fire department dug Tracy out from under the pile of paper, which was
estimated to be from five to six feet deep and to weigh between 150 and 225 pounds. The
rescue operation took 48 minutes from the time the fire department was notified. Following

   1
       When the baler is operating properly, the paper entering the hopper at the top of the

machine falls dow n a chute into the chambe r until the pap er rises to the lev el of “the p hoto
eyes,” at which p oint the ma chine “cycles.” After the ra m comp resses the pa per, it “waits for
the next amount of paper to come down the chu te” and cycles again. This process, which
takes a minimum of five cycles, continues until a bale is created.
2
The paper being run at the time was coated book, which is a very heavy paper. During
the running of certain grades of paper, including this coated book, a device known as a
“fluffer” is placed insid e the baler. T he fluffe r, which ha s a movin g blade on top of it, is
mounted on the access door and “pivots in and out” of the chamber. The air movement
created by the fluffer causes the paper coming in through the hopper to be evenly distributed
so that it lies “flat and consistently” in the bottom of the ba ler, thereby preventing jams. As
was the case at the tim e of the Se ptember 1 8 incident, ho wever, the fluffer itself can cause
jams if pap er begins to accumu late on top o f it.
 3

its investigation of this incident and its inspec tion of other conditions at the plant, the
Occupational Safety and Health Administration (“OSHA”) issued a 14-item citation that
included alleged violations of both the PRCS standard and OSHA’s lockout/tagout
(“LOTO”) standard at 29 C.F.R. § 1910.147. In her decision, the judge vacated both of the
alleged violations of the LOTO standard, one on the ground that it had been the result of
Tracy’s “unpre ventab le emp loyee mis condu ct,” 3 but she affirmed eight of the items alleging
violations of the PRCS standard. It is those eight items that are now before us on review.4

   3
       Item 13 alleged a violation of the LOTO sta ndard p rovision at 29 C .F.R. §

1910.14 7(d)(4)(i) based on Tracy’s undisputed failure to lock out the baler prior to entering
into the chamber on September 18, 1998. The judge concluded that OPSC had established
its unpreve ntable employee misconduct defense to this alleged violation by proving, among
other things, that “Tracy knew that he was prohibited from entering the baler chamber and
did so anyway.” Neither the judge’s disposition of this citation item nor her underlying
findings are at issue before us on review.
4
The eight items, each of which relates to OPSC’s Lindemann baler, allege violations
of the following standards at 29 C.F.R.: Item 3, § 1910.146(c)(2), the baler’s “chamber and
ram section . . . was not labeled or identified as a confined space”; Item 4, § 1910.146(c)(4),
“a written program on safe entry procedures was not developed and implemented”; Item 5,
§ 1910.146(d)(2), em ployee entry into the chamber “without first identifying or evaluating
to determine its hazards, including . . . [exposure] to engulfment potenti als”; Item 6, §
1910.146(d)(3), entry into the chamber “without the necessary procedures, practices, and
safeguards being dev eloped an d implem ented to ensure safe entry into a confined space”;
Item 8, § 1910.146(d)(4)(viii), failure to “p rovide resc ue or eme rgency equip ment to
employees accessing a confine d space”; Item 9, § 19 10.146(e)(1), failure to “docu ment . . .
measures required for safe en try . . . by prepa ring an entry perm it, befor e . . . [entering into]
(contin ued...)
 4

                         Applicability of the Cited Standards
   To prove a violation of the cited standards, the Secretary must establish that the

standa rds app ly. E.g., Astra Pharmaceutical Prods., Inc., 9 BNA OSHC 2126, 2129, 1981
CCH OSHD ¶ 25,578, p. 31,899 (No. 78-62 47, 198 1), aff’d in pertinent part, 681 F.2d 69
(1st Cir. 1982). 5 The central issue on review is whether the Secretary has met that burden by
showing that the ba le chamber of O PSC’s Lindemann baler is a “permit-required confined
space.” See 29 C.F.R. § 1910.146(a). The term “permit-required confined space” or “permit
space” as used in section 1910.146:
means a confined space that has one or more of the following characteristics:
(1) Contains or has a potential to contain a hazardous atmosphere;
(2) Conta ins a materia l that has the p otential for en gulfing an entrant;
(3) Has an internal configuration such that an entrant could be trapped or
asphyxiated by inwardly converging walls or by a floor which slopes
downward and tapers to a smaller cross-section; or
(4) Contains any other recognized serious safety or health hazard.
29 C.F.R. § 1910.146(b)6 (emphasis added ).

   4
   (...continued)

the chamber”; Item 10, § 1910.146(g)(1), failure to “provide Confined Space Entry Training
to employees th at entered the bale cha mber”; an d Item 11, § 1910.14 6(k)(3), failure to
“utilize n on entr y rescue m eans du ring en try into the L indem ann ba ler.”
5
The Secretary mu st also establish noncom pliance w ith the terms o f the standards,
employee access to the violative conditions, and actual or constructive employer knowledge
of the viola tions. Id., 1981 CCH OSHD at pp. 31,899-900. These other elements are
discussed below.
6
OPSC admits that the baler chamber is a “confined space” within the meaning of
section 1910.1 46 because it is large enough and so configured that an employee can enter
into it to perform assigned work, it has limited an d restricted m eans of en try and exit, and it
(contin ued...)
 5

     We agree with the judge that the bale chamber of OPSC’s Lindemann baler is a

“permit-required confined space” within the meaning of alternative (4). As the judge
correctly found, em ployees enterin g the chamber are potentially exposed to two “other
recognized serious safety or health hazard[s],” i.e., “the hazard of being struck and buried by
overhead material (as was the case with Tracy), and of being struck by the baler ram in the
event the bale r started u p unex pected ly.”7 OPSC’s arguments to the contrary are without
merit.
First, the judge considered OPSC’s evidence relating to its written LOTO program and
its procedures for removing overhead paper jams, but she rejected OPSC’s argument that “no
recognized hazard ex isted in the ba ler chamb er because all hazards were eliminated through
the use of its LOTO program.” She rejected this argument on two grounds: (1) that it “does
not address the hazard o f being struck by material from the overhead chu te” and (2) that “[i]t

     6
    (...continued)

is not de signed for con tinuou s emplo yee occu pancy. See section 1910.146(b ).
7
For ease of reference, we refer to these two hazards as the “entrap ment” hazard and
the “unexpected activation” hazard. OPSC does not dispute that its baler chamber poses an
“unexpected activation” hazard to any employee who enters it without first locking out and
tagging the machine’s energy source and that that hazard is both “recognized” and “serious”
within the meaning of alternative (4) of the PRCS definition. With respect to the ch amber’s
“entrapm ent” hazard , the judge cited a statement from an OSHA program directive indicating
that a “determination of whether the resulting exposure to a hazard in a confined space will
impair the employee’s ability to perform self-rescue” is a key element in deciding whether
the space contains an “other recognized serious safety or health hazard.” Here, the judge
found, “the hazard of being struck and buried by ov erhead m aterial” that is present at times
in the Lindemann baler chamber not only “present[ed] an immediate danger to life or health”
but “co uld also impair th e emp loyee’s ab ility to escap e, as it did in Trac y’s case.”
 6

also fails to address the hazards existing in the chamber when the baler is in an energized
state.” The judge also concluded that the baler chamber did not fall within the coverage of
29 C.F.R. § 1910.14 6(c)(7). 8 We agree with the judge’s resolution of this issue, for the
reasons she stated.
We also find no merit in O PSC’s argument that its policies governing the removal of
overhead paper jams eliminated the entrapment hazard from the baler chamber. OPSC claims
that, before any employee is allow ed to enter the baler cham ber, a supervisor must evalu ate
any potential overhead paper danger and all overhead material must be removed from the

   8
       Under se ction 1910 .146(c)(7)(i), “[ a] space cla ssified by the em ployer as a perm it-

required confined space may be reclassified as a non-permit confined space . . . [i]f the
permit space poses no actual or potential atmospheric hazards and if all hazards within the
space are eliminated without entry into the space . . . .” However, reclassification under these
provisions is temporary, lasting only “for so long as th e non-atm ospheric h azards rem ain
eliminated,” and requires compliance with specified procedures. In her decision, the judge
acknowledged the testimony of OSHA Assistant Area Director Collins that OPSC could have
temporarily reclassified the baler chamber as a non-permit confined space “by assuring
without entry that there was no potential for being struck by or covered by material and by
eliminating hazards associated with the energy source of the machine itself by locking it out.”
Nevertheless, she concluded tha t OPSC’s reliance on its LOTO program as a substitute for
compliance with the PRC S standard was misplaced because “the use of a LOTO cannot serve
permane ntly to reclassify to a non-PRCS status unless the baler is perm anently locked ou t”
and because OPSC had “nev er attempted to reclassify [its baler chamber] as a non-PRCS”
by following the procedures established in section 1910.146(c)(7). Moreover, she also found
that the LOTO program did not add ress the haz ard of bein g struck by ov erhead m aterial.
Therefore, because OPSC did not assure that all hazards w ithin the space were eliminated,
the baler did not qualify for reclassification.
 7

chamber using available tools.9 We can not find on this record, however, that OPSC had such
a clearly-defined work rule governing the removal of overhead paper jams. Various
descriptions of OPSC’s purported “policy” appear in the testimony of OPSC Vice President
Michael Mercer, in the testimo ny of its expert witness, safety and health consultant James
Vaughan, and in the two briefs O PSC filed on rev iew. There are numerous inconsistencies
within and among these descriptions, relating to such matters as when employees are
permitted to reach through the access door to pull paper off the fluffer, when they are
required to contact a supervisor to evaluate the hazards created by overhead jams, and when
they are required to use tools in unjamming the baler. Moreover, while such efforts might
serve to control the entrapment hazard, they ca nnot com pletely eliminate it, as contemplated
by the standard. Thus, the entrapment hazard, like the unexpected activation hazard, can be
eliminated from the baler chamber only temporarily. Accordingly, the judge’s observations
concerning OPSC’s misplaced reliance on its LOTO program as a substitute for compliance

   9
       Commissioner Eisenbrey notes that OPSC’s policy regarding the evaluation of

hazards inside the baler chamber directs employees to reach inside through the access door
or (as shown by a videotaped demons tration entered into eviden ce) to lean ins ide and visu ally
examine the overhead chute before any evaluation has been made about the extent of the
overhead paper haz ard. Each of these ac tions is itself an entry under the standard because,
in each case, the employee breaks the plane of an opening into the confined space. 29 C.F.R.
§ 1910.146(b) defines “entry” to mean:

   the action by wh ich a person passes through an opening into a permit-required
   confined space. Entry includes ensuing work activities in that space and is considered
   to have occurred as soon as any part of the entrant’s body breaks the plane of an
   openin g into th e space .

Thus, following OPSC’s policy, employees could not assure, w ithout entry, that all
recognized hazards were eliminated.
 8

with the PRCS standard, see supra note 8, are eq ually applicable to OPSC ’s reliance on its
purported overhead paper jam removal procedures.
Nor does the evidence show that any paper jam removal rule OPSC may have had was
effectively communicated or enforced. Tracy testified at the hearing that he had no job duties
relating to the operation of the baler; that his job was to work outside of the building where
the baler was located, removing “contaminants” from the paper prior to placing it on the
conveyor belt that went into the baler; and that he had been told repeatedly not to enter the
baler under an y circumstanc es. Yet, Tracy also testifie d that, prior to the en trapment in cident,
he had “climbed in[to]” the baler chamber on two other occasion s. In addition, he had also
reached through the access door into the baler chamber on at least tw o separate o ccasions to
pull paper down o ff of the fluffer, 10 which OPSC does not claim violated any company
policy.
Tracy also testified that employee Steve Newgate had been present on all or most of
the occasions whe n Tr acy had climbed or reached into the baler chamber, and that he had
seen Newgate enter into the baler chamber on at least one occasion under circumstances that
conflicted with OPSC’s stated entry procedures. In addition, Tracy testified that, just prior

      10
           Tracy initially testified that, on the day of the entrapment incident and beginning

about two hours prior to it, the blades of the fluffer had stopped periodically as the fluffer
became overloaded. When this occurred, he stated, “[w ]e [presum ably referring to h imself
and his co-worker, Steve N ewgate] were opening up the door, and I was sticking my hand
in there to ‘flip’ the paper off of the fluffer arm .” Later, the jud ge asked Tracy to clarify this
earlier statement about reaching into the baler. At that point, Tracy testified that he had done
so twice on th e swing sh ift, while O PSC w as running newspa per (as con trasted to the coated
book paper that was being run at the time of the entrapment incident), and that he had
informed Newgate or floor supervisor Yvette McKinnes prior to reaching in to the baler to
pull down that pap er.
 9

to his entrapment in the baler chamber, he had shown Newgate a large overhead paper jam
in the baler and that Newgate had responded by telling him, “Well, you know, Killer, you
need to get in there and pull that paper down. There’s a lot more on there than what you
think.” On this record, we have little difficulty in rejecting OPSC’s claim that it had an
overhead paper jam removal policy that “eliminated” the entrapment hazard from its baler
chamber. 11
We also conclude that there is no conflict between the judge’s findings: (1) that the
baler chamber is a “permit-required confined space” because employees entering into the
chamber are exposed to the “recognized serious safety . . . hazard[s]” of unexpected
activation and entrapmen t; and (2) that Tracy’s exposure to those two hazards at the time of
his entrapme nt was the result of his o wn “un preventab le emplo yee misco nduct.” 12 The eight
violations of the PR CS sta ndard t hat are b efore u s, see supra note 4, are not based on any act
or omission on Tracy’s part, but rather on OPSC’s failure to adequate ly protect all of its
employees against the two hazard s that the judge correctly found to be present on a
continuing basis in the bale chamber of OPSC’s Lindemann baler. The violations therefore
stem not from Tracy’s cond uct at the time of his entrapm ent in the baler but, rather, from
OPSC’s failure to develop and implement a written PRCS program (based on its erroneous

   11
        Based on this same evidence, we also reject the argument made by OPSC in its reply

brief that “Tracy’s deliberate disregard of OPSC’s rules on one occasion does not provide
the requisite k nowled ge to OP SC that its em ployees we re getting into its Baler cha mber in
Cincinna ti without following OPSC’s rules to sustain a ‘serious’ violation.” Tracy’s
unrebutted testimony, as summarized above, clearly establishes that, with the exercise of
reasonab le diligence, OPSC could have known “that its employees were getting into its Baler
chamber in Cincinnati without following OPSC’s rules.” See classification discussion, infra.
12
This second finding was made in the context of vacating a LOTO allegation that is
not bef ore us. See supra note 3.
 10

belief that its baler chamber was not a PRCS within the meaning of the standard). For
example, OPSC failed to “[d]evelop and implement the means, procedures, and practices
necessary for safe permit space entry operations,” e.g., by adopting written work rules
governing the remov al of overh ead pape r jams. See c itation item 6 , citing 29 C.F.R . §
1910.146(d)(3). OPSC also failed to educate its employees about the hazards associated with
work in confined spaces and the means of protecting themselves against such h azards , e.g.,
by providing sufficient wa rning on the sign posted on the baler chamb er door. See citation
item 3, citing 2 9 C.F.R . § 1910 .146(c) (2), discu ssed in th e next s ection. T hus, Tracy’s
“miscond uct” does not establish an affirmative defense to the alleged PRCS violations that
are before us on re view. See, e.g., Capform, Inc., 19 BNA OSH C 1374, 1377-78, 2001 CCH
OSHD ¶ 32,320, p. 49,478 (No. 99-0322, 2001) , petition for review filed, No. 01-6 0417 (5th
Cir. May 24, 2001) (un preventab le employee m isconduc t defense n ot available to employer
when citation was for failure to adequately train the employee who assertedly engaged in the
misconduct).
For the reasons above, we conclude that the standard applies.
Other Elements of the Violations
Having found that the eight cited provisions o f the PRC S standard applied to the cited
conditions, the judge w ent on to find that OPSC had stipulated at the hearing that it was not
in complian ce with tho se cited prov isions. There fore, the judge affirmed the eight citation
items that are now before us.13

   13
        The judge also found that the Secretary had established employee access to the

violative conditions and actual or constructive employer knowledge of the violations. See
supra note 5. OPSC does not challenge the jud ge’s findin g of emp loyee access, an d its
challenge to the judge’s knowledge finding actually raises an issue of “fair notice” of the
standard’s requirements rather than OPSC’s “knowledge” of the allegedly violative
(contin ued...)
 11

   We note that OPS C has ne ither directly nor ind irectly challenged the judge’s reliance

on the stipulation. We constru e OPS C’s stip ulation a s the jud ge did, i.e., as an adm ission that,
if the baler chamber was a PRCS, as alleged by the Secretary, then the cited standards w ere
violated. OPSC nevertheless raises an issue on review relating to the merits of one of the
eight citation items. Referring to the allegation contained in item 3, that OPSC violated 29
C.F.R. § 1910.146(c)(2) in that “the chamber and ram section of the Lindemann baler was
not labeled or identified as a confined space,” OPSC argues that it had posted a “prominent
sign” on the access doo r of the baler that was “sufficient to meet the requirements of
1910.1 46(c)(2 ).”
We disagree. The cited standard required OPSC to “inform exposed employees, by
posting danger signs or by any other equally effective means, of the existence and location
of and the danger posed by the permit space[]” (emphasis added). Here, the sign posted by
OPSC on the baler chamber acc ess door, which read , “DANG ER -- DO NOT OPEN WITH
MACHINE RUNN ING,” did not inform its employees of either the hazard of unexpected
activation or the hazard of falling overhead materials. Instead of meeting the cited standard ’s
stated terms by informing exposed employees of “the dange r posed by the pe rmit spa ce[],”
the sign provided by OPSC is both confusing and misleading. It is confusing because the
machine automatically stops operating once an employee opens the access door, which leads,
according to Tracy, to employee reliance on opening the access door as the means of
stopping the baler so that they can then reach into the machine to pull down jammed
materials. The sign also suggests incorrectly that, once the machine stops, the danger has
passed and the em ployee can safely enter. 14

   13
     (...continued)

conditio ns. See infra.
14
A note to the cited standard, section 1910.146(c)(2), states that “[a] sign reading
‘DANGER -- PERM IT-REQU IRED C ONFIN ED SPA CE, DO NOT E NTER ’ or using other
(contin ued...)
 12

   For the reasons above, we affirm the eight citation items that are now before us.
                           Classification of the Violations
   Section 17(k), 29 U.S.C. § 666(k), of the Occupational Safety and Health Act of 1970,

29 U.S.C . §§ 651-6 78 (“the A ct”), states that:
a serious violation shall be deemed to exist in a place of employment if there is a
substantial probability that death or serious physical harm could result from a
condition which exists, or from one or more practices, means, methods, operations,
or processes which have been adopted or are in use, in such place of employment
unless the emplo yer did not, and could not with the exercise of reasonable diligence,
know of the presence of the violation.
The judge concluded that the Secretary had properly classified each of the eight PRCS
violations at issue as “serious” within the m eaning of section 17 (k) because “[ t]he likely
result of an accident caused by Omaha’s noncompliance with the PRCS sections would be
death or serious physical harm” 15 and “Omaha knew that it was not in compliance with the

   14
     (...continued)

similar language would sa tisfy the requirem ent for a sign.” We conclude that the sign
provided by OPSC did not meet even this minimum requireme nt since it proh ibited only
opening of the access door, and not entry into the chamber, and even this restriction was
imposed only when the machine was operating.
15
The Tracy entrapment incident provides strong support for this finding. Tracy
became entrapped after entering the baler chamber without first having an authorized co-
worker lock out and tag the baler’s energy source, as was required under OPSC’s written
LOTO program. He also failed to turn off the key that activates the machine and to remove
the key from the control panel. OPSC’s Vice President Mercer admitted that, under these
circumstances, if Tracy had n ot stuck his hand out through the access door after becoming
entrapped in the baler, someone might have turned the machine on without “look[ing] to see
he was in there,” leading to serious or even fatal injuries from “compaction.” As it turned
(contin ued...)
 13

cited sections of the PRCS standard.” We affirm the judge’s resolution of this issue for the
reasons she stated. OPSC ’s argument that the violations were not serious because it “lacked
the requisite knowledge that OSHA would consider the Baler chamber a permit-required
confined space” is incorrect as a matter of law. “The knowledge element of a violation does
not require a showing that the employer was actually aware that it was in violation of an
OSHA standard; rather it is established if the record shows that the employer knew or should
have know n of the conditio ns con stituting a violatio n.” Peterson Bros. Steel Erection Co.,
16 BNA OSHC 1196, 1199, 1993-95 CCH OSHD ¶ 30,052, p. 41,299 (N o. 90-2304, 1993 ),
aff’d, 26 F.3d 573 (5th C ir. 1994). 16 As the judge indicated, OPSC possessed the actual or

   15
     (...continued)

out, although Tracy was rescued, his legs were numb from the waist down, and he was taken
to the hospital. On his physician’s advice, T racy remained out of w ork for ap proximate ly
three weeks, until it became clear that there was no permanent or long-term injury to his legs.
16
In any event, w e disagree w ith OPSC ’s assertion tha t it “lacked the requisite
knowledge that OSHA would consider the Baler chamber a permit-required confin ed spac e.”
The PRCS standard provided OPSC with “fair notice” of its applicability to any confined
space containing a hazard specified in the “permit space” definition, as quoted supra, even
where that hazard can be eliminated prior to employee entry into the space. See American
Bridge Co., 17 BNA OSH C 1169, 1172, 1993-95 CCH OSHD ¶ 30,731, p. 42,667 (No. 92-
0959, 1995) (“Constitutional due process requires only that the cited employer be given ‘a
fair and reaso nable wa rning’; it ‘does not demand that the employer be actually aware that
the regulation is applicable to his conduct or that a hazardous condition exists’ ”) (citation
omitted) (emphas is in original). A n examp le of the fair n otice given here is Ap pendix A to
the PRCS standard, which sets forth a “decision flow chart” to assist employers in
understanding their ob ligation s. See Note to se ction 1910 .146(c)(1). A ppendix A clearly
states that the determination of whether a “workplace contain[s] Permit-required Confined
(contin ued...)
 14

constructive knowledge required under section 17(k) because it knew tha t, based on its
classification of the baler chamber only as a “confined space” but not a “permit-required
confined space,” it had not implemented any of the measures required to comply with the
provisions of the PRCS standard.
Penalties
The judge concluded, based on the statutory penalty factors, that a penalty of $2000
would be “appropriate[]” fo r each of the eight PRCS violations that are now before us. 17
Having independently reviewed the pertinent record evidence and considered those factors,
we disagree with the judge only with respect to one of the four penalty criteria. The judge
found that “[t]he gravity of the eight affirmed violations of the PRCS standard is modera te
to high.” We conclude, however, that the record evidence supports a finding tha t the gravity
of the eight violations was moderate. We according ly modify the ju dge’s pen alty assessmen t,
assessing a total combined penalty of $12,000 for the eight affirmed PRCS violations.

   16
    (...continued)

Spaces as defined by § 1910.146(b)” is separate from the determination of whether “the
hazards [can] b e elimin ated.” This appendix also clearly informs employers that at least some
of the obligations of the PRC S stand ard, e.g., the duty to “[i]nform employees as required by
§ 1910.1 46(c)(2 ),” are imposed simply by virtue of the presence of a PRCS in the workplace,
even if the employer takes measures to eliminate the hazards from the confined space prior
to allowing employee entry or to prevent altogether employee entry into the space.
17
Section 17 (j) of the A ct, 29 U.S.C . § 666(j), states th at:
The Commission shall have authority to assess all civil penalties p rovided in th is
section, giving due consideration to the appropriateness of the penalty with respect
to the size of the business of the employer being charged, the gravity of the violation,
the goo d faith o f the em ployer, an d the his tory of pre vious v iolation s.
 15

                                      Order
  We affirm items 3 through 6 and 8 through 11 of citation 1 as serious violations of the

Act. We assess a total combined penalty of $12,000 for these violations.
SO ORDERED.

                                                    /s/
                                                    Thomasina V . Rogers
                                                    Chairman




                                                    /s/

Date: November 1, 2001 Ross Eisenbrey
Commissioner
Secretary of Labo r,
Comp lainant,

              v.                                   OSH RC D ocket N o. 99-0353

Omaha Paper Stock Company,
Respon dent.

Appearances:

      Elizabeth R. Ashley, Esquire                 Sandra L. Maass, Esquire
               U. S. Department of Labor                   Abrahams, Kaslow & Cassman
               Office of the Solicitor                     Omaha, Nebraska
               Cleveland , Ohio                                     For Respondent
                        For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                    DECISION AND ORDER
   Omaha Paper Stock Company (Omaha), is a paper recovery and recycling company. Omaha

recovers paper from pre- and post-consumer use and recycles it into bales that it then sells to paper
mills. On September 18, 1998, Omaha employee Christopher Tracy was injured when he entered
the baler at Omaha’s Cincinnati facility to clear a paper jam. The Occupational Safety and Health
Administration (OSHA) investigated the incident on November 16 and 17, 1998. As a result of
OSHA’s investigation, the Secretary issued a fourteen-item citation to Omaha on February 2, 1999.
Omaha contested the fourteen alleged violations and proposed penalties.
The undersigned held a hearing in this matter on August 18, 1999. Omaha does not dispute
jurisdiction and coverage. At the hearing, the Secretary withdrew items 1 and 7 of the citation
(Tr. 78). Left for determination are items 2 through 6 and 8 through 11, which allege violations of
the confined space standard; items 12, 13, and 14, which allege violations of the lockout/tagout
(LOTO) standard; and item 14, which deals with fire extinguishers. Omaha stipulated at the
beginning of the hearing that the chamber of the baler in which Tracy was trapped was a confined
space within the meaning of § 1910.146.

                                            -16-

In its defense, Omaha argues that the chamber of the baler was not a permit-required confined
space (PRCS), and thus was not subject to the cited sections of the § 1910.146 standard. Omaha also
argues that any violations that were committed were the result of unpreventable employee
misconduct on the part of Christopher Tracy.
Background
Omaha operates two plants: one in Omaha, Nebraska, and the one at issue here, located in
Cincinnati, Ohio (Tr. 257). Omaha uses a Lindeman baler to bale the paper at its Cincinnati plant.
The baler is 30 to 40-feet long (Exh. C-1; Tr. 12). Omaha recycles nineteen different kinds of paper,
including corrugated cardboard, coated books, and newspapers (Tr. 7-8).
The baling process begins outside the facility where a lineman sorts through the paper to be
baled and removes “contamination,” such as plastic bottles, wire, and glass (Tr. 7). An employee
then operates a bobcat and pushes the paper onto a conveyor belt that feeds into the baler. The
conveyor belt moves the paper to the top of the baler where it falls through a chute to the baler
chamber (Tr. 11-12).
Depending upon the type of material being fed into the baler, a fluffer may be placed inside
the baler chamber. The fluffer is attached to the side of the baler and swings in and out on hinges.
The fluffer has rotating blades that generate air to move the paper around inside the chamber
(Tr. 14-15). After a sufficient amount of paper is placed inside the chamber, a bale is made. An
Omaha employee then removes the bale with a forklift (Exh. C-1).
Christopher Tracy began working for Omaha on August 31, 1998, as a lineman (Tr. 6-7).
Around the 9th or 10th of September, Tracy began working what he referred to at the hearing as the
“second shift” (Tr. 64).18 Tracy testified that his supervisor, Evette McKinnes, was having trouble

   18
        Omaha v ice-president of operations and finance Michael Mercer testified that

Omaha does not have a second shift. Rather, the company had what Mercer referred to as
a “split shift” that “was for a catch-up situation that we had for two to three days. Th ere was
no authorized sec ond sh ift, per se” (Tr. 228). Regardless, Tra cy volunteered to w ork
extended hours from approximately September 9 or 10 un til his accident on September 18,
(contin ued...)

                                            -17-

getting employees to work extended hours. Tracy stated that, as a new employee, “You know, I’m
trying to make a good impression here so I volunteered for it” (Tr. 30).
On September 18, 1998, while working extended hours, Tracy heard the alarm sound that
signals a jam in the baler. Another employee, Steve Newgate, told Tracy that he needed “to get in
there and pull that paper down” (Tr. 22). Tracy went to the baler, opened the access door, and
climbed inside the 6-foot by 6-foot chamber to clear the jam in the overhead chute (Tr. 23, 59).
When Tracy pulled on the jammed paper he dislodged all of the overhead paper, which fell on him,
knocking him to the floor of the chamber. The paper buried him up to his waist. Tracy was unable
to dig himself out from the paper piled upon him. His legs were numb and he “panicked a little.”
Tracy believed that yelling for help would be futile because McKinnes was operating another baler
and Steve Newgate was putting gas in the bobcat. They were the only other two employees working
at that time and Tracy did not think they would hear him. Tracy was able to stick his hand out of the
access door. After 15 to 20 minutes, McKinnes looked in through the access door and said, “Tracy,
what [are] you doing in there?” (Tr. 26).
McKinnes notified the Village of Elmwood Place Fire Department. Firefighters were able
to extricate Tracy from the chamber after approximately 48 minutes (Tr. 75). Paramedics took Tracy
to the hospital. On his physician’s advice, Tracy did not return to work at Omaha for approximately
three weeks (Tr. 29).
The Citation
The Secretary has the burden of proving her case by a preponderance of the evidence.
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, 2138 (No. 90-1747, 1994).

    18
         (...continued)

1998.

                                              -18-

In order to establish that a violation is “serious” under §17(k) of the Act, the Secretary must
establish that there is a substantial probability of death or serious physical harm that could result
from the cited condition. In determining substantial probability, the Secretary must show that an
accident is possible and the result of the accident would likely be death or serious physical harm.
The likelihood of the accident is not an issue. Spancrete Northeast, Inc., 15 BNA OSHC 1020, 1024
(No. 86-521, 1991).
Item 2: Alleged Serious Violation of § 1910.146(c)(1)
The Secretary alleges that Omaha committed a serious violation of § 1910.146(c)(1), which
provides:
The employer shall evaluate the workplace to determine if any spaces are permit-
required confined spaces.

      NOTE: Proper application of the decision flow chart in appendix A to § 1910.146
      would facilitate compliance with this requirement.

      The Secretary cites items 3 through 6 and 8 through 11 based on her belief that the chamber

of the baler was a PRCS. Omaha denies that the baler’s chamber was a PRCS, but concedes that if
the undersigned determines that it was, in fact, a PRCS, then Omaha was not in compliance with
the cited sections of the § 1910.146 PRCS standard (Tr. 171-172). The determination of whether
the chamber was a PRCS is central to all of the items cited under § 1910.146 with the exception of
item 2.
The present item alleges a violation of § 1910.146(c)(1), which requires only that the
employer “evaluate the workplace to determine if any spaces are” PRCSs. The standard does not
require that the employer make the correct determination; the employer may be in violation of other
sections of the PRCS standard, but if it made a reasonable evaluation of the workplace, it is in
compliance with § 1910.146(c)(1).
The Secretary alleges that Omaha failed to make a reasonable evaluation of its Cincinnati
plant with regard to PRCSs. The Secretary’s case appears to be based primarily on the fact that
Omaha did not determine that the baler was a PRCS. She also questions Omaha vice-president
Michael Mercer’s competency to evaluate a workplace because at the opening conference he
interchanged the phrases “confined space” and “permit-required confined space” (Tr. 105-106).

                                               -19-

Mercer testified that he made an initial evaluation of the spaces in the Cincinnati plant when
he first visited the plant in 1997, and that he continues to evaluate the spaces in the plant every time
he goes there (Tr. 218). Mercer stated that he based his determination that the baler was not a PRCS
on “[e]xperience, OSHA regs, professionals, experts” (Tr. 220). Omaha argues that it has a
comprehensive LOTO program which eliminates any potential hazards inside the chamber (Tr. 185).
The manufacturer’s operating instructions for the baler do not address potential PRCS hazards
(Exh. R-20; Tr. 192). Omaha contends that the only reason Tracy was exposed to a hazard inside
the baler chamber was due to his violation of its LOTO program.
The requirements of § 1910.146(c)(1) are not stringent. The employer’s evaluation of the
workplace must be reasonable but the employer is not required to complete an extensive list of
specific steps. In Drexel Chemical Company, 17 BNA OSHC 1908, 1910 (No. 94-1460, 1997), the
Review Commission adopted the interpretation of the standard found in OSHA Instruction
CPL 2.100 (entered into the record as Exhibit C-3), which provides that:
the evaluation under § 1910.146(c)(1) does not need to be documented as long as the
employer can explain how the evaluation was conducted and describe the results.
The CPL also states that the initial evaluation does not necessarily require a specific
physical survey of each space if the determination can be made through existing
records and knowledge of the spaces in the workplace, provided that this information
is adequate.

    The Secretary has failed to establish a violation of § 1910.146(c)(1). Mercer’s evaluation of

the spaces in the Cincinnati plant was reasonable based on the records and knowledge that he had.
Item 2 is vacated.
Items 3 Through 6 and 8 Through 11: Alleged Serious Violations of
§§ 1910.146(c)(2), (c)(4), (d)(2), (d)(3), (d)(4)(viii), (e)(1), (g)(1), and (k)(3)

   The Secretary alleges that Omaha committed serious violations of the following sections of

the § 1910.146 PRCS standard:
(c) General requirements.
...
(2) If the workplace contains permit spaces, the employer shall inform exposed
employees, by posting danger signs or by any other equally effective means,
of the existence and location of and the danger posed by the permit spaces.

                                                -20-

...
(4) If the employer decides that its employees will enter permit spaces, the
employer shall develop and implement a written permit space program that
complies with this section. The written program shall be available for
inspection by employees and their authorized representatives.
...
(d) Permit-required confined space program (permit space program). Under the
permit space program required by paragraph (c)(4) of this section, the
employer shall:
...
(2) Identify and evaluate the hazards of permit spaces before employees enter
them;

(3) Develop and implement the means, procedures, and practices necessary for
safe permit space entry operations, including, but not limited to, the
following:

  (i)     Specifying acceptable entry conditions;
  (ii)    Isolating the permit space;
  (iii)   Purging, inerting, flushing, or ventilating the permit space as
          necessary to eliminate or control atmospheric hazards;
  (iv)    Providing pedestrian, vehicle, or other barriers as necessaryto protect
          entrants from external hazards; and
  (v)     Verifying that conditions in the permit space are acceptable for entry
          throughout the duration of an authorized entry.

(4) Provide the following equipment (specified in paragraphs (d)(4)(ix) of this
section) at no cost to employees, maintain that equipment properly, and
ensure that employees use that equipment properly:
..
(viii) Rescue and emergency equipment needed to comply with paragraph
(d)(9) of this section, except to the extent that the equipment is
provided by rescue services[.]
...
(e) Permit system. (1) Before entry is authorized, the employer shall document
the completion of measures required by paragraph (d)(3) of this section by
preparing the entry permit.
...
(g) Training. (1) The employer shall provide training so that all employees whose
work is regulated by this section acquire the understanding, knowledge, and
skills necessary for the safe performance of the duties assigned under this
section.
...

                                   -21-

(k) Rescue and emergency services.
...
(3) To facilitate non-entry rescue, retrieval systems or methods shall be used
whenever an authorized entrant enters a permit space, unless the retrieval
equipment would increase the overall risk of entry or would not contribute to
the rescue of the entrant. . .

                 Is the Baler Chamber a Permit-Required Confined Space?

   Section 1910.146(b) contains the following pertinent definitions:

           Confined space means a space that:

           (1)     Is large enough and so configured that an employee can bodily enter
                   and perform assigned work; and
           (2)     Has limited or restricted means for entry or exit (for example, tanks,
                   vessels, silos, storage bins, hoppers, vaults, and pits are spaces that
                   may have limited means of entry); and
           (3)     Is not designed for continuous employee occupancy.
   ...
          Permit-required confined space (permit space) means a confined space that
   has one or more of the following characteristics:

           (1)     Contains or has a potential to contain a hazardous atmosphere;
           (2)     Contains a material that has the potential for engulfing an entrant;
           (3)     Has an internal configuration such that an entrant could be trapped or
                   asphyxiated by inwardly converging walls or by a floor which slopes
                   downward and tapers to a smaller cross-section; or
           (4)     Contains any other recognized serious safety or health hazard.
   ...
            Engulfment means the surrounding and effective capture of a person by a
   liquid or finely divided (flowable) solid substance that can be aspiratedto cause death
   by filling or plugging the respirator system or that can exert enough force on the body
   to cause death by strangulation, constriction, or crushing.

   At the time of the hearing, one of the theories of the Secretary’s case was that the baler

chamber contained an engulfment hazard. The engulfment hazard was supposedly created by the
potential of the paper to crush an employee to death (Tr. 134-136). In her brief the Secretary
abandons this position, focusing instead on the catch-all characteristic (4) of the PRCS definition
(“Contains any other recognized serious safety or health hazard”). The Secretary is correct to set
aside the engulfment theory. “Engulfment” refers to a substance that is either liquid or is a “finely

                                            -22-

divided (flowable) solid.” The definition contemplates solid substances such as grains or gravel that
can be poured. Paper does not flow in the manner specified in the definition.
In May 1995, the Directorate of Compliance Programs for OSHA published CPL 2.100
(“Application of the Permit-Required Confined Space (PRCS) Standard, 29 CFR 1910.146”). The
CPL addresses the circumstances under which a confined space may be classified as a PRCS because
of “recognized serious safety or healthhazards.” While OSHA’s CPLs and other directives generally
are not binding on the Commission, the Commission has adopted the reasoning of CPL 2.100, as
noted in Drexel, 17 BNA OSHC at 1910, footnote 3. The CPL is organized in question and answer
form. The pertinent section is number 10, which provides (Exh. C-3, p. 27, boldface in original):
The definition of permit-required confined space contains the phrase “any
recognized serious safety and health hazard” as one of its hazard characteristics
which would result in a confined space being classified as a permit space. The
“Types of Hazards” listing in the Confined Space Hazards section of OSHA’s
Confined Space Entry Course No. 226 identifies hazards. Does the mere
presence of a non-specific hazards [sic] such as physical hazards (e. g. grinding,
agitators, steam, mulching, falling/tripping, other moving parts); corrosive
chemical hazards; biologicalhazards; and other hazards (i. e. electrical,rodents,
snakes, spiders, poor visibility, wind, weather, or insecure footing), which do not
pose an immediate danger to life or health or impairment of an employee’s
ability to escape from the space constitute a hazard which would invoke this
characteristic?

   When a hazard in a confined space is immediately dangerous to life or health, the
   “permit space” classification is triggered. The list referenced above is only
   illustrative of the general range of confined space hazards which could, but not
   necessarily always, constitute a hazard which would present an immediate danger to
   life or health, such that “permit space” protection would be required. The
   determination of whether the resulting exposure to a hazard in a confined space
   will impair the employee’s ability to perform self-rescue is the aspect that must
   be addressed by the employer.

   In order for [a] “serious safety and health hazard” to be recognized as being an
   impairment to escape, its severity potential for resulting physical harm to an
   employee must be considered.

   Dennis Collins, OSHA’s assistant area director, testified that the recognized hazard created

when an employee enters the baler chamber to clear an overhead paper jam is that the material could
dislodge and fall on the employee. The weight of the material on the employee could impair his or

                                            -23-

her ability to escape the chamber (Tr. 95-96). Omaha vice-president Mercer conceded that if
McKinnes had not noticed Tracy’s hand sticking out of the access door, he could have been
compacted during the baling process (Tr. 262-263).
Omaha argues that no recognized hazard existed in the baler chamber because all hazards
were eliminated through the use of its LOTO program. Under certain conditions § 1910.146(c)(7)(i)
allows for PRCSs to be reclassified for a specific length of time. That section provides:
A space classified by the employer as a permit-required confined space may be
classified as a non-permit confined space under the following procedures:

   (i)     If the permit space poses no actual or potential atmospheric hazards and if all
           hazards within the space are eliminated without entry into the space, the
           permit space may be reclassified as a non-permit confined space for as long
           as the non-atmospheric hazards remain eliminated.

   The preamble to the PRCS standard states, “OSHA expects that this provision will apply

primarily to spaces containing hazardous energy sources or containing engulfment hazards. The
control of hazardous energy sources is addressed by existing § 1910.147, The control of hazardous
energy sources (lockout/tagout).” 58 Fed. Reg. 4491 (1993) (Exhibit C-4).
Collins testified that the baler chamber could potentially be reclassified as a non-PRCS under
§ 1910.146(c)(7)(i) (Tr. 99). Collins stated that the reclassification could be made “by assuring
without entry that there was no potential for being struck by or covered by material and by
eliminating hazards associated with the energy source of the machine itself by locking it out”
(Tr. 102). Omaha contends that it has already eliminated all hazards because of its LOTO program
(Tr. 204-205). The Secretary argues, however, that the use of a LOTO cannot serve permanently to
reclassify a PRCS to non-PRCS status unless the baler is permanently locked out. The Secretary’s
argument is persuasive. There are two recognized hazards to which employees in the baler chamber
are potentially exposed: the hazard of being struck and buried by overhead material (as was the case
with Tracy), and of being struck by the baler ram in the event the baler started up unexpectedly.
Omaha’s argument regarding its LOTO program does not address the hazard of being struck by
material from the overhead chute. It also fails to address the hazards existing in the chamber when
the baler is in an energized state.

                                            -24-

Furthermore, Omaha failed to take any of the steps necessaryto certify that it had reclassified
the baler to a non-PRCS in accordance with § 1910.146(c)(7). Section 1910.147(c)(7)(iii) provides:
The employer shall document the basis for determining that all hazards in a permit
space have been eliminated, through a certification that contains the date, the location
of the space, and the signature of the person making the determination. The
certification shall be made available to each employee entering the space.

   Since Omaha never considered the baler chamber to be a PRCS, it never attempted to

reclassify it as a non-PRCS.
The Secretary has established that the baler chamber was a PRCS within the meaning of
§ 1910.146. Employees entering the chamber were exposed to the recognized hazards of being
struck and buried by overhead material and of being compacted in the event the baler unexpectedly
energized. The hazard of being struck byoverhead material could also impair the employee’s ability
to escape, as it did in Tracy’s case.
Disposition of the Items Cited under § 1910.146
Having found that the baler chamber was a PRCS, the undersigned now finds that the cited
sections of the § 1910.146 standard apply to the cited conditions. Omaha has stipulated that it was
in noncompliance with the cited sections of the PRCS standard (Tr. 171-172). One employee was
exposed to the hazards created by Omaha’s noncompliance. Omaha knew that it was not in
compliance with the cited sections of the PRCS standard.
The Secretary has established that Omaha violated the cited sections. The likely result of an
accident caused by Omaha’s noncompliance with the PRCS sections would be death or serious
physical harm. Items 3, 4, 5, 6, 8, 9, 10, and 11 are affirmed as serious.
Item 12: Alleged Serious Violation of § 1910.147(c)(7)(i)
The Secretaryalleges that Omaha committed a serious violation of § 1910.147(c)(7)(i), which
provides:
The employer shall provide training to ensure that the purpose and function of the
energy control program are understood by employees and that the knowledge and
skills required for the safe application, usage, and removal of the energy controls are
acquired by employees. The training shall include the following:

           (A)     Each authorized employee shall receive training in the recognition of
                   applicable hazardous energy sources, the type and magnitude of the

                                            -25-

energy available in the workplace, and the methods and means
necessary for energy isolation and control.

           (B)     Each affected employee shall be instructed in the purpose and use of
                   the energy control procedure.
           (C)     All other employees whose work operations are in or may be in an
                   area where energy control procedures may be utilized, shall be
                   instructed about the procedure, and about the prohibition relating to
                   attempts to restart or reenergize machines or equipment which are
                   locked out or tagged out.

   Section 1910.147(c)(7)(i) requires different levels of training for different employees,

depending upon their job assignments. Authorized employees are employees who actually perform
the lockout, and they are required to receive more extensive training than those employees who do
not lockout the equipment. Tracy was an affected, not an authorized, employee. The standard
required Omaha to instruct Tracy, in accordance with § 1910.147(c)(7)(i)(B), “in the purpose and
use of the energy control procedure.”
Collins testified that when OSHA interviewed Tracy following his accident, Tracy “indicated
he had not received any lockout training. . . .We asked Mr. Tracy what training he had received with
respect to lockout of equipment, and he stated that he had received no training with respect to that”
(Tr. 118). Collins stated that he asked Tracy if he knew the meaning of “lockout/tagout.” Tracy
replied that “he did not have any familiarity with [the baler’s main power] disconnect or with locking
it, he had no lock. He had never been issued a lock” (Tr. 119).
Likewise at the hearing, Tracy testified that he had not heard the term “lockout/tagout” prior
to his accident (Tr. 55). The Secretary asserts that this is evidence that Omaha did not provide any
LOTO training to Tracy. Omaha argues that the standard does not require that employees know that
the terminology for an energy control procedure is “lockout/tagout.” Omaha contends that even
though Tracy was not familiar with the terminology, he had been trained in Omaha’s LOTO
procedure.
Tracy testified as follows to his training:

                                            -26-

I was to inform Evette anytime that there was a jam. But, again, you also have to
realize, I was a lineman. I worked outside. The baler wasn’t my thing. I was a new
employee. They asked, they said they needed a volunteer for second shift. . .

(Tr. 30).

    Evette told me, “Do not go into the baler.” But, she also told me that I would not be
    involved with any of that because of my position of being outside. . .
    [Evette said,] “Don’t go in the baler. . . . Under any circumstances, don’t.” . . . I
    mean, it wasn’t no big long, drawn out thing. It was just, “Don’t go in the baler. It’s
    not your job. You just stay outside.” That’s basically what was said to me.

(Tr. 31).

    [My instructions in the event of a jam were:] Turn the machine off, find someone in
    management, find Evette, inform her, go outside and do my job. . . .Turn the key, yes.
    Then, I’m supposed to remove it, and hand it to her, you know, “here you go,” and
    then I’m supposed to go outside and finish what I was doing.

(Tr. 32).

    The Secretary has failed to establish a violation of § 1910.147(c)(7)(i). Tracy did not know

the terminology of the LOTO procedure, but he did understand what he was supposed to do as an
affected employee to follow the LOTO procedure. The Secretaryargues that Tracy was not provided
with a lock to lockout the baler. Tracy was not an authorized employee to lockout the equipment.
Omaha was not required to provide him with a lock. Tracy admitted that he failed to do any of the
things he was instructed to do before entering the baler chamber (Tr. 57).
Item 12 is vacated.
Item 13: Alleged Serious Violation of § 1910.147(d)(4)(i)
Section 1910.147(d)(4)(i) provides:
Lockout or tagout devices shall be affixed to each energy isolating device by
authorized employees.

    The Secretary alleges that Omaha violated this section of the LOTO standard when Tracy

entered the baler chamber without locking out the machine. Section 1910.147(d)(4)(i) applies to
authorized employees. As noted in the previous section, Tracy was not an authorized employee.

                                             -27-

Omaha contends that an authorized employee did not lockout the baler only because no
authorized employee knew that Tracy was entering the chamber. Omaha argues that Tracy’s
entrapment in the baler chamber was the result of unpreventable employee misconduct.
In order to establish the affirmative defense of unpreventable employee misconduct, an
employer is required to prove (1) that it has established work rules designed to prevent the violation,
(2) that it has adequately communicated these rules to its employees, (3) that it has taken steps to
discover violations, and (4) that it has effectively enforced the rules when violations are discovered.
Precast Services, Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995), aff’d without published
opinion, 106 F. 3d 401 (6th Cir. 1997).
In the present case, Omaha has proven that it had an established work rule designed to
prevent violation of § 1910.147(d)(4)(i), and that it adequately communicated this rule to Tracy.
Tracy testified repeatedly that he had been told not to enter the baler chamber. In the event of a jam,
Tracy was to turn the key on the control panel to shut off the machine and then to find his supervisor.
Tracy characterized his own behavior in entering the chamber as “a stupid move” and “a rookie
mistake” (Tr. 22).
Because entering the chamber constituted a momentary activity, and was not an ongoing
condition, it was difficult for Omaha to take steps to discover the violation. However, having
discovered that Tracy violated its rule, Omaha issued a clarification of its LOTO procedure to Tracy
(Exh. C-2)19 and verbally reprimanded Steve Newgate. Evette McKinnes was reprimanded and
demoted (Exh. R-21; Tr. 245-246).
Omaha has established that Tracy committed unpreventable employee misconduct. Tracy
knew that he was prohibited from entering the baler chamber and did so anyway. Omaha disciplined
the two employees other than Tracy who were working at the time of his accident. Tracy was not
an authorized employee to lockout the baler. There was no evidence that Omaha’s authorized
employees failed to lockout the baler when they knew that a lockout situation existed.
Item 13 is vacated.

   19
        Omaha did not oth erwise discipline Tracy. Tracy attributed this to his being

hospitalized imme diately after the accident (Tr. 29).

                                             -28-

Item 14: Alleged Serious Violation of § 1910.157(g)(1)
Section 1910.157(g)(1) provides:
Where the employer has provided portable fire extinguishers for employee use in the
workplace, the employer shall also provide an educational program to familiarize
employees with the general principles of fire extinguisher use and the hazards
involved with incipient stage fire fighting.

   Omaha provided fire extinguishers at its Cincinnati facility. Prior to his accident, Tracy was

not trained in the use of fire extinguishers (Tr. 125). On one occasion, Tracy had taken a fire
extinguisher down from the wall where it was stored and was prepared to use it (Tr. 39).
The company claims that the cited standard does not apply to it because only authorized
employees who were trained in the use of fire extinguishers were allowed to use them. Section
1910.157(a) provides:
Where extinguishers are provided but not intended for employee use and the
employer has an emergency action plan and a fire prevention plan which meets the
requirements of § 1910.38, then only the requirements of paragraphs (e) and (f) of
this section apply.

    Omaha’s claim is not supported by the record. Omaha’s Employee Handbook states

(Exh. R-1, p. 20): “In case of fire use the fire extinguishers located throughout the building.” Tracy,
who was quite forthcoming regarding his failure to follow Omaha’s other work rules, stated that no
one at Omaha had ever instructed him not to use fire extinguishers prior to his accident (Tr. 9).
The Secretary has established a violation of § 1910.157(g)(1). The Secretary did not present
evidence at the hearing or make an argument in her brief that supports the position that Omaha’s
violation of § 1910.157(g)(1) could result in death or serious physical harm. Absent such evidence,
the undersigned finds that Omaha’s violation of this standard is other-than-serious.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the
Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravityof the violation, (3) the good
faith of the employer, and (4) the history of previous violations. The gravity of the violation is the
principal factor to be considered.

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Omaha employed 48 to 50 employees (Tr. 258). Omaha has a history of previous violations
(Tr. 164). No evidence of bad faith was adduced.
The gravity of the eight affirmed violations of the PRCS standard is moderate to high. By
failing to recognize the baler chamber as a PRCS, Omaha neglected to implement several procedures
that could have acted as a check in preventing Tracy or any other employee from entering the
chamber. Failure to designate the chamber as a PRCS exposed Tracy and others to the hazards of
being struck by falling paper and of being injured if the baler suddenly energized. The gravity of the
violations is mitigated somewhat by the implementation of Omaha’s LOTO procedure. However,
the LOTO procedure was not foolproof, as this case established.
Accordingly, it is determined that the appropriate penalty for the violations of
§§ 1910.146(c)(2) (item 3); 146(c)(4) (item 4); 146(d)(2) (item 5); 146(d)(3) (item 6); 146(d)(4)(viii)
(item 8); 146(e)(1) (item 9); and 146(g)(1) (item 11) is $2,000.00 each. The penalty for the other-
than-serious violation of § 1910.157(g)(1) is $100.00.
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 that:
1. Item 1, § 1910.38(b)(4)(ii), is withdrawn by the Secretary, and is vacated;

   2.      Item 2, § 1910.146(c)(1), is vacated, and no penalty is assessed;

   3.      Item 3, § 1910.146(c)(2), is affirmed, and a penalty of $2,000.00 is assessed;

   4.      Item 4, § 1910.146(c)(4), is affirmed, and a penalty of $2,000.00 is assessed;

   5.      Item 5, § 1910.146(d)(2), is affirmed, and a penalty of $2,000.00 is assessed;

   6.      Item 6, § 1910.146(d)(3), is affirmed, and a penalty of $2,000.00 is assessed;

   7.      Item 7, § 1910.146(d)(4)(i), is withdrawn by the Secretary, and is vacated;

   8.      Item 8, § 1910.146(d)(4)(viii), is affirmed, and a penalty of $2,000.00 is assessed;



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9. Item 9, § 1910.146(e)(1), is affirmed, and a penalty of $2,000.00 is assessed;

  10.    Item 10, § 1910.146(g)(1), is affirmed, and a penalty of $2,000.00 is assessed;

  11.    Item 11, § 1910.146(k)(3), is affirmed, and a penalty of $2,000.00 is assessed;

  12.    Item 12, § 1910.147(c)(7)(i), is vacated, and no penalty is assessed;

  13.    Item 13, § 1910.147(d)(4)(i), is vacated, and no penalty is assessed; and

  14.    Item 14, § 1910.157(g)(1), is affirmed as other-than-serious, and a penaltyof $100.00
         is assessed.


                                                             /s/
                                                       NANCY J. SPIES
                                                       Judge

Date: December 24, 1999

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