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Court upholds OSHA citation in steel mill fatality

Posted On: Jul. 14, 2017 1:48 PM CST

A safety citation against an electrical services company whose employees failed to follow procedures while servicing a client’s equipment resulting in a fatality was upheld by a federal appeals court Thursday.

James Eddie Lanier Jr. was an apprentice at Smyrna, Georgia-based Action Electric Co., which provides electrical services to other businesses. In December 2011, Mr. Lanier and a leadman were tasked with replacing fans in a cooling bed at a Cartersville, Georgia, steel mill.

Safety protocols required that the entire cooling bed be locked out and a work authorization permit be issued before technicians could enter the space beneath the cooling bed to perform maintenance. Mr. Lanier and the leadman entered the basement and moved off the designated safe walkways even though the leadman knew that the steel mill’s technician responsible for locking out the cooling bed had not completed the lockout process. Mr. Lanier and the leadman did not affix their personal locks to the group lockout box or complete the required work permit, according to court documents in Secretary, U.S. Department of Labor vs. Action Electric Co.

The steel mill technician could not see the two men beneath the cooling bed and began to de-energize the counterweights in the cooling bed as part of the lockout procedure. As a result, one of the counterweights fell from an energized position and fatally struck Mr. Lanier, court records show.

The U.S. Occupational Safety and Health Administration investigated the incident and issued a serious violation to Action Electric for its employees’ failure to affix a personal lockout or tagout device. Action Electric contested the citation arguing that the lockout/tagout standard did not apply because the equipment that caused the fatality was not the equipment that its employees were servicing, and that its employees were only looking at the fans, not working on them, at the time of the incident, according to court documents

The Secretary of the U.S. Department of Labor responded that the cooling bed constituted one discrete mechanical system for the purposes of lockout/tagout rules, which would require Action Electric employees to control the energy of the entire cooling bed before conducting work on it that could expose them to danger. An administrative law judge vacated the citation, agreeing with Action Electric that the fans and counterweights were separate machines, court records show.

The Occupational Safety and Health Review Commission reviewed the decision but could not reach a unanimous decision and adopted the ALJ’s decision as its final order. The Department of Labor appealed the decision to the United States 11th Court of Appeals in Atlanta.

A unanimous three-judge panel vacated the commission’s ruling and remanded the case to the commission to reinstate the citation against Action Electric.

The panel first considered whether the lockout/tagout standard required Action Electric employees to control the stored energy in the counterweights before entering the area to work on fans. The panel disagreed that it is impossible to determine where a machine begins and ends, which would lead to employers having to lockout entire factories to perform maintenance.

According to the ruling, “we think employers, who must make frequent and expert judgments about workplace safety to quell the regulatory and liability concerns they face, are capable of determining the appropriate scope of their LOTO protocols,” the panel said.

The panel further determined that it did not matter whether the employees were working on equipment or merely observing it.

“According to undisputed testimony, the employees were observing the cooling-bed fans to decide which fans were going to be replaced and where to begin working,” the court said. “No matter whether this activity was ‘inspecting,’ ‘setting up,’ or something else productive, it was the kind of workplace activity that the regulation sought to cover because it was directed at the relevant machine and exposed the employees to the release of hazardous energy outside of normal production operations.”

Representatives from Action Electric were not immediately available to comment.