United States of America


1120 20th Street, N.W., Ninth Floor

Washington, D.C. 20036-3457








OSHRC Docket No. 16-1865






For the Complainant:

David M. Jaklevic, Esq.

U.S. Department of Labor

New York, New York


For the Respondent:

Brent I. Clark, Esq.

Adam R. Young, Esq.

Seyforth Shaw LLP

Chicago, Illinois


BEFORE:  William S. Coleman

     Administrative Law Judge



The Respondent, AJM Packaging Corporation (AJM), manufactures paper plates and bowls at a facility in Vineland, New Jersey. AJM makes the paper products with large machines called “Peerless Cutting Machines” (PCMs).1 (Ex. C-44; Ex. R-18 at 13). AJM operates about thirty-three PCMs at its Vineland facility. (T. 734, 1725).

Upon receiving a report that an amputation injury had occurred at the Vineland facility on May 8, 2016, the area office of Occupational Safety and Health Administration (OSHA) located in Marlton, New Jersey, assigned a compliance safety and health officer (CO) to conduct an inspection and investigation. The investigation resulted in OSHA issuing to AJM a one-item repeat citation and a one-item serious citation on September 30, 2016.

The one-item repeat citation (as the Secretary amended in his complaint pursuant to Commission Rule 34(a)(3)) alleges that AJM violated the “control of hazardous energy (lockout/tagout)” (LOTO) standard, 29 C.F.R. § 1910.147, specifically subparagraph (c)(4)(i) thereof, which provides: “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.” AJM is alleged to have violated that provision in four discrete instances (designated instances “a”, “b”, “c” and “d”) in the following identical manner for each instance: “Lockout procedures were not utilized and lockout devices were not affixed by an authorized employee performing tasks such as, but not limited to, clearing jams on the Peerless Cutting Machine.” Instances “a”, “b” and “c” were alleged to have occurred on or about August 25, 2016, with each instance pertaining to a different PCM. Instance “d” relates to the amputation injury that had precipitated the investigation and was alleged to have occurred “on or about” May 9, 2016. 2

The one-item serious citation (as was twice amended, first in the Secretary’s complaint and again during the course of the hearing) alleges that AJM violated the “hand protection” standard codified at 29 C.F.R. § 1910.138(a), which provides in relevant part as follows: “Employers shall select and require employees to use appropriate hand protection when employees' hands are exposed to hazards such as those from … thermal burns; and harmful temperature extremes.” The amended citation alleges that AJM violated this standard on or about August 17, 2016 in the following manner: “[AJM] did not provide or ensure use of hand protection to employees who were exposed to harmful temperatures from the paper products exiting the Peerless Cutting Machines.” (Complaint dated 2/13/2017, ¶ VIII, amended at T. 370-71).

AJM timely contested the citations and proposed penalties, bringing the matter before the independent Occupational Safety and Health Review Commission (Commission) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (Act). 29 U.S.C. § 659(c). The matter was assigned to the undersigned administrative law judge, who conducted an evidentiary hearing in Philadelphia, Pennsylvania, on the following dates: October 17 to 19, 2017; January 30 to February 2, 2018; and March 6 and 8, 2018. Post-hearing briefing was completed on June 18, 2018.

The principal issues presented, and the decisions thereon, are as follows:

·Did the Secretary prove by a preponderance of the evidence that on August 25, 2016 employees Beals, Mendieta, or Thompson bypassed the scrap chute guard of an operating PCM to reach into the scrap chute to remove scrap paper? (Citation 2, item 1, instances a, b & c; § 1910.147(c)(4)(i))

Decision: No. The Secretary did not prove that any of those employees violated the terms of the cited LOTO standard in the manner averred by instances a, b or c.

·Did the Secretary prove by a preponderance of the evidence that AJM should have known of the physical condition that violated the LOTO standard that occurred on May 8, 2016 (the physical condition being a raised scrap chute that could unexpectedly fall and cause injury to an employee clearing a paper jam)? (Citation 2, item 1, instance “d”; § 1910.147(c)(4)(i))

Decision: No. The Secretary did not prove AJM had failed to exercise reasonable diligence to prevent or discover the physical condition that constituted a LOTO violation, and thus failed to establish the “employer knowledge” element of the alleged violation.

·Did the Secretary prove by a preponderance of the evidence that the residual heat present in the stacks of paper plates and bowls that exit the PCMs was likely to expose employees’ hands to thermal burns or harmful temperatures? (Citation 1, item 1; § 1910.138(a)).

Decision: No. The Secretary did not prove that employees were likely to be exposed to a significant risk of thermal injury and thus did not establish that the hand protection standard applies.

The Secretary having failed to meet his burden to prove the alleged violations, both citations must be vacated.


Except where the following findings indicate that the evidence was insufficient to establish a certain fact or indicates the absence of evidence bearing on a matter of fact, the following facts were established by at least a preponderance of the evidence:

1.AJM Packaging Corporation (AJM) is a Michigan corporation and maintains its headquarters in that state. AJM manufactures and distributes paper products, including paper plates and bowls. (Answer ¶ 2; T. 716-17, 2441). AJM operates eight manufacturing facilities across the United States including facilities in Georgia, Michigan, California, and New Jersey. (T. 716, 732-33). AJM distributes its products to major U.S. retailers. (T. 2732). AJM employs approximately 2,100 employees across the company. (T. 733). AJM is engaged in a business that affects interstate commerce. (Answer dated 3/6/2017, ¶¶ II & III).

2.In 2009, AJM opened a facility in Vineland, New Jersey, to produce paper plates and bowls. (T. 573, 2441). The Vineland facility (Facility) operates 24 hours a day, with three eight-hour shifts. (T. 733). In 2016, about 250 employees worked at the Facility, about 100 of whom staffed the first shift. (T. 732-33, 1433, 1866).

3.AJM makes the paper plates and bowls at the Facility with machines that were manufactured by a company named Peerless Machine & Tool Corporation (“Peerless”). (T. 448, 747, 1157-64; Exs. C-6; Ex. R-15 at 5-7). The machines are identified in this Decision using the acronym “PCM.” (See footnote 1, supra). Peerless designed the PCMs that AJM owned and operated at the Facility sometime before 1968, though the record does not indicate the year or years that Peerless manufactured any of the PCMs used at the Facility. (T. 1157, 1162).

4.In 2016, AJM operated about 33 PCMs at the Facility, all of which were located on the Facility’s central production area, or “floor,” with each PCM identified by a number (numbers 1 through 33). (T. 734-35, 2457). The PCMs were arrayed on the floor in two rows in the manner depicted in a schematic of the Facility at Exhibit C-2. This two-row configuration created a central aisle between the rows, with the output end of every machine facing inward toward the aisle. (T. 734, 737; Ex. C-2). All the PCMs were substantially similar in design and functionality. (T. 73, 172-73, 304, 1200).

Employee Roles

5.Employees called “adjusters” operate the PCMs. (T. 57-58, 764). (The activity of adjusters is the subject of the LOTO citation.) Adjusters are responsible for observing the overall function of the PCMs, ensuring that the paper plates and bowls are formed correctly, and performing adjustments on the PCMs to ensure proper functioning. (T. 70-71, 170, 181-82, 303, 764-65, 2732-33). Servicing tasks that adjusters perform include adjusting the rails, changing the air levels, replacing springs, and clearing paper jams that are simple enough not to require the intervention of AJM’s maintenance mechanics. (T. 73-74, 182-83, 305-06, 653-54, 1434-35, 1947-48, 2021-22, 2340-41). Between eight and twelve adjusters typically work each shift. (T. 1435, 2104, 2234-35). Experienced adjusters normally operate three or four PCMs at a time. (T. 171-72, 641, 2017-18, 2392-93, 2459, 2733).

6.Employees called “packers” are responsible for removing finished plates and bowls from a runout table placed at the end of each PCM and then packing the product into plastic bags. (T. 764, 2000-01). (The activity of the packers is the subject of the hand protection citation.) Packers also check the quality of the finished plates and bowls and make sure the stacks of product have the correct quantity. (T. 2001-02). About half of the employees present for any given shift are packers. (T. 1935-36).

7.Employees called “balers” collect and bale scrap paper that is generated by the PCMs. (T. 2174-75).

Manufacturing Process

8.The operation of the PCMs begins with the adjuster mounting a cylindrical roll of paper, about four feet wide, on a stand located at the rear of the PCM. (T. 60-61, 747-48, 1731-32, 1585-86, 2012; Ex. C-6; Ex. C-51; Ex. R-18 at 8). The adjuster feeds the roll of paper upward towards a mechanical paper feeder that is located at the top rear of the PCM. (T. 58-60, 605, 748-49, 1731-32, 2349-50; Ex. C-6).

9.The PCM has a control panel located on what is known as the operator’s side of the machine. (T. 2042-44; Ex. C-16). After feeding the roll into the paper feeder, the adjuster goes to the PCM’s control panel and manipulates the controls to feed the paper downward through the feeder and into the PCM, where during production the paper passes into the cutting die (also referred to as the “blanking die” and the “cutting head.”). (T. 86-87, 749, 751, 601-02, 2736). The cutting die is a large orange-colored component that reciprocates in an up-and-down motion and is set to complete about 45 cutting cycles per minute. (T. 62-63, 187, 1140-41, 2503; see video clips at Exs. C-25 & C-26). In each cutting cycle the cutting die cuts five holes through the sheet of paper to produce five flat circle-shaped “blanks” (which moments later the PCM will form into plates or bowls). (T. 749-50, 1173, 2025; 2031; 2582).

10.After the cutting die creates the flat circular blanks, the remnant of the paper (known as “scrap” or “skeletons”) drops a short distance onto the PCM’s “scrap chute.” (The scrap chute is a piece of sheet metal situated adjacent to the cutting die and extends horizontally across the width of the machine; the scrap chute is described in greater detail infra ¶ 17–21) After the scrap paper drops into the scrap chute, a burst of forced air from an air nozzle located at the end of the scrap chute on the PCM’s operator’s side expels the skeleton from the scrap chute. The skeleton exits the PCM through an opening on the non-operator side (or discharge side) of the PCM, where it falls into a bin positioned below the opening. (T. 752, 1023-24, 2029, 2031, 2542; see video clips at Exs. C-23, C-25 & C-26). The skeletons are expelled in-time with the movement of the cutting dies, so that a skeleton exits the PCM at a rate of about 45 times per minute. (See video clips at Exs. C-23 & C-25).

11.At the same time that the scrap paper drops into the scrap chute, the flat circular blanks drop by force of gravity underneath the scrap chute onto internal inclined metal rails. (T. 2027-28; video clip at Ex. C-26). Each blank falls onto its own rail, which functions like a slide to guide the blanks to the heated forming dies. (T. 177, 2027-28; see video clip at Ex. C-25). The movement of the blanks down the rails is halted by a mechanical component called the blank stop. (T. 2027-28). The blank stop catches the blanks and then releases them in time with the cutting die to control the flow of blanks into the forming dies. (T. 1172-74, 1915). Once released by the blank stop, the blanks continue to slide down the rails to the heated forming dies. (T. 63-69, 2027-28).

12.The forming dies use pressure and heat to form the flat circular blanks into the desired three-dimensional plate or bowl shape. (T 1266-67). Five sets of forming dies are positioned across the machine. (T. 66-67). Each set of forming dies consists of a top die and a bottom die. (1266-68). The forming dies open as the blanks approach from the rails and then compress together around the blanks as the blanks pass through. (T. 187-88, 1267-70). The forming dies typically operate between 250- and 350-degrees Fahrenheit but may operate as high as 425 degrees Fahrenheit in cold or humid weather. (T. 1268-71).

13.After the forming dies open, the newly formed plate or bowl drops onto a horizontal conveyor that transports the product to a “stacker for each of the five lanes, where the stacked plates are shaken or agitated so that they nest into a neat stack. (T. 1267, 2199; Ex. C-19). The plates or bowls accumulate in the stacker until the programmed quantity for a complete stack is reached. The programmed quantity of plates or bowls in a complete stack varies depending on customer orders, but common sizes include an 8-stack, a 25-stack, a 50-stack, and a 100-stack. (T. 1267, 2296-98). When a complete stack has accumulated in the stacker, the PCM automatically discharges the stack onto another conveyor that deposits the stacks onto a wood run-out table situated at the front of each PCM. (T. 1267-68, 2196-98). The plate or bowl on the bottom of each stack would have been the first plate in that stack to have left the heated forming die, and the plate or bowl on the top of the stack would have been the last item in that stack to have left the forming die. (T. 2198-2201).

14.Once a stack reaches the run-out table, a packer picks them up with their hands and then steps a short distance to a machine called a bagger” that the packer uses to package the stack in a plastic bag. (T. 547, 1267-68, 2200-05; Ex. C-19).

15.The PCMs can process single-ply and multi-ply paper. When single-ply paper is processed, each lane produces about 45 plates per minute, and a stack of eight plates would accumulate about every 10 seconds. When four-ply paper is processed, each cutting cycle results in the production of four plates per lane per cutting cycle (for a rate of about 180 plates per lane per minute, so that a stack of 100 plates would accumulate in about 35 seconds). (T. 2197-99, 2298-2300).

16.The run-out table is sufficiently wide to permit at least two stacks of plates or bowls to accumulate on the table while the PCMs continue to discharge stacks of product onto the table. (Ex. C-19; Ex. R-18 at 5, 14, 15, 26, 27; Ex. C-23). A stack that is nearest the location where the packers handle them would have been discharged from the stacker for a longer period than the stack that followed it. (T. 2019-20; Ex. R-18 at 26 & 32). There is no evidence regarding the duration that the finished stacks may remain on the run-out table before the packer must handle the stack to prevent the stacks of product from overflowing the run-out table.

PCM Components and Features

The Scrap Chute

17.The scrap chute on the PCMs is a piece solid steel sheet metal, weighing approximately 30 pounds, that is about five feet long and runs horizontally across the width of the PCM from the operator’s side to the discharge side. (T. 592, 2542). There are two bends in the sheet metal—one right-angle bend, and one approximate 30-degree angle bend. These two bends give the scrap chute a shape that resembles the letter “J” when it is viewed from the operator’s side. When the scrap chute is in its operating position, its “J” shape is canted clockwise about 45 degrees, so that the interior angles of the scrap chute form a cradle onto which the scrap paper falls. (T. 590-92; Ex. C-12).

18.Sometime before the Facility opened in 2009, AJM modified the way the scrap chutes were mounted and secured in the PCMs. (T. 1335). As Peerless originally designed and manufactured the PCMs, the scrap chute was fixed in place in the canted operating position described above and could be moved only by first removing mounting hardware, which would require several minutes to do. (T. 1167-70, 1178). AJM modified the way the scrap chute was mounted so that it could be pivoted counterclockwise from its tilted operating position about 45 degrees (so that its “J” shape was oriented upright) without having to remove the mounting bracket. (T. 591, 1096; compare Ex. C-12 [scrap chute depicted in canted operating position] & Ex. C-5A [scrap chute depicted in upright raised position]). With this modification, it became easier for workers to reach into the scrap chute area through the opening that was protected by the scrap chute guard (the scrap chute guard is described in detail infra ¶ 25–27) because the mounting bracket did not present a physical obstacle to doing so. (T. 1342-46).

19.After a scrap chute is pivoted up to an upright position, it could remain balanced in place, but if jostled it could fall by force of gravity and return to its canted operating position. (T. 211-12, 222, 592, 361-62, 616; Ex. C-5).

20.The scrap chute is not powered by any device or mechanism, and it does not move during machine operations from its canted operating position. (T. 538, 2541-43). When the scrap chute is in its operating position, its weight keeps it from pivoting or moving upward by itself during operations. (T. 538-39).

21.At the time of OSHA’s 2016 inspection, an employee could pivot the scrap chute upward while positioned in two different locations: (a) from the side of the scrap chute, by reaching through the opening protected by the scrap chute guard located on the operator’s side (the scrap chute guard is described infra ¶¶ 25–27); and (b) from below the scrap chute, by pushing up on the scrap chute from the rear of the PCM while positioned near the PCM’s rear access doors (the rear access doors are described infra ¶¶ 33–34). (T. 591, 615-1, 656, 1096, 1346-47).

22.After AJM modified the way the scrap chutes were mounted, AJM did not provide adjusters with any means to block a raised scrap chute to prevent it from falling to its canted operating position. (T. 361, 591, 1096). Only the counterbalance of the scrap chute’s weight kept it in an upright position. (T. 361, 591, 1096).

Machine Guards

23.AJM did not acquire the PCMs in use at the Facility when they were newly manufactured, but rather acquired previously owned PCMs from sources other than the manufacturer. (T. 1372). In addition to modifying the manner in which Peerless had designed the scrap chutes to be mounted as described above, AJM further modified the PCMs by designing and installing some components that are unique to the PCMs that AJM owned and operated. (T. 1162).

24.The PCMs as originally manufactured had an exterior framework that extended about two feet out from the operator’s side and that had guards or barriers that were designed with interlocks so that the PCM would shut down when opened. (T. 1185, 1215-27). AJM removed that exterior framework and designed and installed two door-like guards that did not have an interlock feature (one for the scrap chute and the other for the forming die), so that the PCMs could run even if the guards were open. (T. 623-33, 1325-26, 1364; Ex. C-4).

25.AJM designed and installed a guard for the scrap chute that was a rectangular hinged metal door (hereinafter referred to as “scrap chute guard”) on the exterior frame on the operator’s side of the PCM. (T. 587-88; Ex. C-4A, door marked with the number “2”). The scrap chute guard appears to be about 12 inches high by about 15 inches wide and is canted at the same angle as the scrap chute in its operating position. (Ex. C-12). The scrap chute guard’s hinge was on the higher (right) side of the guard and a handle was on the lower (left) side, so that if the guard were opened it would fall shut by force of gravity unless it was held open or propped open. (T. 82, 2463-64, 2572).

26.The face panel of the scrap chute guard was made of metal grating, so that when the guard was closed the interior scrap chute area of the PCM (and any scrap paper in that area) was visible through the grating. (T. 587-88; photo at Ex. C-5; video clip at Ex. C-25). The scrap chute guard could be opened by turning its handle to unlatch it and then pulling outward and upward on the handle to open it. (T. 2049). This action of opening the scrap chute guard could be swiftly completed. (T. 1902, 1968-70, 2306-07). AJM designed the scrap chute guard to allow employees easier and quicker access to the scrap chute. (T. 1326).

27.The scrap chute guard that AJM designed and installed had no “interlock” feature, so a PCM would operate regardless whether the scrap chute guard was closed or open.

28.A second metal door-like guard that AJM designed and installed was known as the “forming die guard.” The forming die guard is located below and to the left of the scrap chute guard and was similar in size to the scrap chute guard. (T. 1580; Ex. C-4A, door marked with the number “1”). The forming die guard was not hinged, but it could be removed from the PCM by first twisting a handle to unlatch it and then pulling on two handles to remove it. Like the scrap chute guard, the forming die guard also did not have an interlock feature, so the PCM would continue to run if the guard were removed when the machine was operating. (T. 587-88, 1842, 1912-13).

29.Peerless had manufactured the PCMs with safety interlock features to prevent operators from being exposed to the moving parts inside the scrap chute and forming die areas of operating machines. (T. 1186-87). After Peerless learned that AJM was operating PCMs from which this interlock feature had been removed or bypassed, Peerless informed AJM in 2001 and again in 2008 that it believed this modification was unsafe because it enabled the machine to continue operating when the scrap chute guard or the forming die guard (both of which were designed and installed by AJM, not Peerless) were open. (T. 1203-12, 1360-66; Exs. C-44, C-49, C-5A). Peerless’ stated concerns did not cause AJM to modify the scrap chute guard or the forming die guard to include a safety interlock feature.

Cutting Die Guards

30.After OSHA commenced the investigation, AJM began installing cutting die guards (also referred to as “finger guards” and “blanking die guards”) inside the scrap chute area of all the PCMs at the Facility in a measure to protect employees hands and arms from contacting the cutting die when accessing the scrap chute area through the opening that is guarded by the scrap chute guard. (Ex. C-11, T. 308-09, 311-13, 589-90, 691, 820-22, 1091-92, 1275, 2130, 2511, 2530; Ex. R-18 at 29). By August 25, 2016 (the date of three alleged instances of the LOTO citation), a cutting die guard had been installed on four PCMs (nos. 7, 9, 13 and 14). (T. 691, 1011-12, 2530, 2511). PCM #13 was being operated by Brandon Mendieta during the CO’s walkaround on that day. (PCM #13 is identified in connection with instance “b” of the LOTO citation.) Even for PCMs in which cutting die guards had been installed, AJM required employees to continue to abide by the work rule that the scrap chute guard remain in place when the PCMs were in operation. (T. 1967, 2431-33, 2512-15).

31.The evidence is insufficient to establish that an employee would be exposed to hazardous energy when opening the scrap chute guard and inserting a hand or arm into the scrap chute of an operating PCM on which a cutting die guard had been installed. (T. 163, 1012-13, 1914, 1968, 1880-81, 2012, 2130).

32.In PCMs in which cutting die guards had not been installed, the scrap chute area of the PCMs was hazardous. (T. 2305-06, 2431-33). The cutting die is located near the edge of the scrap chute, and an arm or hand inserted into the scrap chute area could make contact with the cutting die and would necessarily come within a least few inches of the cutting die. (T. 188-190, 313-14, 318-19, 1144, 2129; Exs. C-12 & C-26). If a hand or finger contacted the cutting die while the cutting die is reciprocating, a serious laceration or amputation injury would be likely. (T. 87, 1143-44). Contact with the cutting die can cause a laceration even when the cutting die is not reciprocating. (T. 590).

Interlocked Rear Access Doors

33.At the rear of each PCM are two adjacent doors (“rear access doors”) that open and close like French doors, with the right door hinged on its right side and the left door hinged on its left side. Each door is about three feet high and two feet wide. The surface of the PCM on which the doors are mounted is on a plane that is declined at about a 45 degree angle, and so when the doors are unlatched they fall open downward toward the floor by force of gravity (although pneumatic cylinders slow the pace at which the doors fall open). (T. 603-06, 1145, 2066, 2274, 2485; Exs. C-22, R-18 at 23). The face panels of the rear access doors are metal grating, and so when the doors are closed the machinery behind them is visible through the grating. (Ex. R-18 at 23).

34.The rear access doors are not visible from the PCM’s control panel. (Ex. C-22). To get to the rear access doors from the control panel, adjusters must walk to the rear of the PCM. (T. 606, 1909-10).

35.The rear access doors provide access to the underside of the cutting die, the scrap chute, and other internal machine components. (T. 625-26, 1909-12, 2352-53, 2487-88, 2582-83). It is routine for adjusters to open the rear access doors to clear paper jams, and typically this must be done for each PCM about four to six times per shift. (T. 2488).

36.The rear access doors have a safety interlock, whose circuitry involves a micro-switch that is spring loaded and that must be depressed to activate power to the PCM. (T. 2487). A PCM will not run when a rear access door is open, because the non-depressed micro-switch breaks the circuit to the machine. (T. 2719). The micro-switch is designed so that if it fails, it must fail in the open (off) position, opening the circuit and cutting power to the system. (T. 1876-77, 2487, 2787-88). AJM trains its employees that the rear access doors have this interlock feature and that they are not required to utilize LOTO procedures when accessing the PCMs through the rear access doors. (T. 1912, 1977-78, 2274, 2321-22, 2328, 2353-55).

37.AJM allows employees to open the rear access doors and access the PCMs through the open doors without using LOTO procedures because AJM determined that the PCMs could not operate when the doors were open. (T. 1910, 2414-17). There was no scientific, technical, or other specialized evidence that AJM was incorrect when it concluded that after a rear access door is opened that a PCM is not capable of unexpectedly energizing or starting up, or releasing any stored hazardous energy, even if the control circuitry for the interlocked rear access door was to fail. (E.g., T. 2274, 2719, 2788).

Emergency Stops (E-stops)

38.The PCMs are equipped with three emergency stop buttons, known as “e-stop” buttons. (T. 621-22). One e-stop button is located on the control panel on the operator’s side, another is located near the run-off table, and another is located on the PCM’s discharge side. (T. 354-55, 583, 622, 1228, 1993, 2350; see R-18 at 3, 7, 24). When an e-stop is activated, it breaks the circuit to all power to the PCM and the machine shuts down. (T. 583-84, 621-22).

39.The e-stops are on the same electrical circuit as the interlocked rear access doors and have the same electrical effect on the machine in terms of cutting the circuit when they are activated. (T. 620-22, 1227-28, 2487). When an e-stop breaks or stops functioning, it does so in the “off” position, rendering it impossible to restart the machine. (T. 1876-77, 2481-82).

40.The e-stop on the control panel is situated such that it is within arm’s reach of a normal sized adult who is accessing the scrap chute through the scrap chute guard. (T. 618-20, 2350-51, 2255; see R-18 at 3).

41.When an e-stop button is depressed to engage the e-stop, the button itself illuminates with a red-colored light. (T. 1993, 2254). Engaging an e-stop also causes another red-colored light located on the top of the PCM to illuminate, signifying that the PCM is not running. (T. 2269, 2579). To restart a PCM after an e-stop has been engaged, the e-stop must be disengaged by turning and pulling on the e-stop button, and then the adjuster must execute a prescribed startup procedure. The startup procedure includes an administrative procedure that entails the adjuster surveying the entire machine, returning to the control panel, hollering the word "clear," and then waiting a few beats before restarting the PCM from the control panel. (T. 2267, 2482-83, 2267-68; Ex. R-19). The PCMs make an audible beeping noise upon restarting. (T. 160).

42.No scientific, technical or other specialized evidence was presented that would establish that after an e-stop on a PCM has been engaged, that the PCM is capable of unexpectedly energizing, starting up, or releasing any stored hazardous energy, even in the circumstance in which the e-stop were to fail.


43.AJM has a general energy control program at the Facility, called the Control of Hazardous Energy Lockout/Tagout Policy, that generally governs LOTO at the Facility. (T. 432; Ex. C-3). AJM trains adjusters as “authorized” employees (as that term is defined in 29 C.F.R. § 1910.147(b)) and issues adjusters personal locks that they must keep on their belt loops. (T. 2789).

44.AJM has developed written machine-specific LOTO procedures for each of its machines, including the PCMs. (T. 413-14, 2474-75; Ex. R-15). These machine-specific procedures are tagged on each machine. (T. 2474-76). AJM conducts monthly unannounced random inspections requiring selected authorized employees to demonstrate proficiency in executing a machine’s LOTO procedure. (T. 1481-86, 2160, 2417-18; Ex. R-5).

Clearing Paper Jams

LOTO Method and E-Stop Method

45.Paper may become jammed in a variety of locations in PCMs, including the feeder, the cutting die, the scrap chute, the rails, and the forming dies. (T. 74, 87-90, 306, 2037-38, 2042-44, 2488-89). The adjusters are generally responsible for clearing paper jams. (T. 73-74, 87-90, 183, 194, 305).

46.AJM uses the term “paper jam” to describe scrap paper improperly accumulating in the scrap chute, even in those circumstances when the PCMs continue to operate and produce finished products despite the accumulation. (T. 2253, 2290, 2292, 2314).

47.It is a common occurrence for scrap paper to fail to be discharged from the scrap chute and sometimes accumulate there over multiple cycles of the cutting die. (T. 87-90, 183-85, 196, 225-26, 306, 2037-39, 2491-92, 2534-35). This can happen in a variety of ways. Scrap sometimes accumulates because the air nozzle malfunctions and fails to blow it out. (T. 87-90, 183-84, 306, 2037-38). Dull blades on the cutting die can result in scrap paper accumulating in the scrap chute. (T. 306). Sometimes the scrap paper gets snagged on the air nozzle or on the frame. (T. 196, 225-26). Sometimes the exit portal on the discharge side becomes blocked, causing scrap paper to back up in the scrap chute. (T. 185).

48.The PCMs shut down automatically when sensors that are located between the forming die and the stacker detect that newly formed plates are not exiting the forming die. (T. 2041, 2101). The accumulation of scrap paper in the scrap chute sometimes triggers these sensors and causes the PCM to shut down automatically. (T. 2041). But it is also possible for scrap paper to accumulate in the scrap chute and for finished plates and bowls to continue to exit the forming die. In that situation, a PCM would not shut down automatically but would continue to run until an employee manipulated the controls or engaged an e-stop. (T. 2041).

49.Regardless whether a PCM shuts down automatically when scrap paper fails to be discharged from the scrap chute, an adjuster is required to remove the scrap paper from the scrap chute. This is typically done by the adjuster reaching into the scrap chute to remove the scrap paper by hand, and not by using a tool or instrument. (T. 330, 2488-89).

50.In clearing scrap paper from the scrap chute, AJM allows employees to access the scrap chute through the scrap chute guard on the operator’s side of a PCM by shutting down the PCM in one of two ways. One way is for the employee to implement the PCM’s LOTO procedures. The other way is for the employee to stop the PCM by engaging the e-stop button located on the control panel, opening the scrap chute guard and then reaching into the scrap chute to grasp and remove the scrap paper manually (all the while remaining within arm’s reach of the e-stop), and then re-starting the machine using a prescribed protocol. (T. 228-29, 353-54, 588, 2253-55, 2419-20, 2278, 2816-17, 2632). [NOTE: For ease of reference, these two methods for clearing paper jams by accessing the scrap chute through the open scrap chute guard are henceforth referred to respectively as the LOTO Method and the E-Stop Method.]

51.If in the course of clearing a paper jam using the E-Stop Method it becomes necessary for the adjuster to move away from within arm’s reach of the e-stop, the employee must abandon use of the E-Stop Method and continue only after executing the PCM’s LOTO procedure. (T. 240).

52.There is no evidence that any of the three adjusters who were operating the PCMs identified in instances a, b or c of the LOTO citation were utilizing the E-Stop Method at the time that the violative conditions were alleged to have occurred on August 25, 2016.

53.There was no scientific, technical, or other specialized evidence that employees who serviced or maintained the PCMs by utilizing the E-Stop Method would be exposed to the unexpected energization or startup of the PCM or the release of hazardous energy.

Bypassing Scrap Chute Guard to Clear Paper Jams

54.Some adjusters developed a practice of sometimes not using either the LOTO Method or the E-Stop Method to clear scrap paper from the scrap chute. Instead, some adjusters sometimes bypassed the scrap chute guard of operating PCMs and reached inside the scrap chute area to manually grab and remove the scrap paper as the PCM continued to run. (T. 87-89, 92-93, 194, 199-201, 316-19, 660-62, 1127). Some adjusters learned this technique from other adjusters early in their employment. (T. 92-93, 201-03, 319-21, 334, 662-63, 670-72). Use of this technique violated AJM’s work rule that all guards be closed while a PCM is running.

Work Rules for Adjuster Servicing Activities

55.On February 6, 2015, an adjuster sustained an amputation injury at the Facility while attempting to clear a paper jam located in the cutting die. (T. 467-69, 601-02; Ex. C-37 at 47). In his effort to clear the paper jam, the employee stopped paper feeding to the cutting die, but he did not shut down the PCM so the cutting die continued to reciprocate in its cutting action. (T. 634-35). With the PCM cycling in this way, the employee moved to the rear of the PCM near the interlocked rear access doors, and without opening the rear access doors (and thus not activating the interlock feature of those doors) he inserted his arm into the machine through an opening that is near the rear access doors. (T. 631-32). With the cutting die continuing to reciprocate, the employee pushed up on the scrap chute so that it pivoted upwards. The lifting of the scrap chute created space for his fingers to contact the reciprocating cutting die and resulted in him sustaining the amputation injury. The amputation injury was not caused by the scrap chute falling down from its raised position, but rather was the result of the scrap chute’s raised position creating a space through which the employee could insert his hand and expose his hand to the reciprocating cutting die. (T. 629-36).

56.The activity related to the amputation injury on February 6, 2015 resulted in OSHA issuing a citation to AJM in July 2015 that alleged two violations of two different provisions of the LOTO standard, specifically §§ 1910.147(c)(4)(i) and 1910.147(d)(4)(i). (Exs. C-27, C-28). Those alleged violations became a final order of the Commission on August 11, 2015, by operation of an informal settlement agreement resolving the citation. (T. 852-53, 855-60; Ex. C-30).

57.A few days after the amputation injury on February 6, 2015, AJM instituted a rule that prohibited adjusters from raising the scrap chute to clear a paper jam. (T. 1051-52, 2422-23; Ex. R-14 at 3-5). AJM trained adjusters on the new rule and documented that training by having the adjusters sign a training document that provided as follows:

The following employees have received training on; [sic] not to raise the scrap shoot [sic]3 to clear a jam.

All adjusters: NEVER raise the scrap shoot [sic] to clear a jam. This shoot [sic] acts as a guard when clearing out jams from under the machine. Exposure to the scrap knife is extremely dangerous while the machine is running. To clear a jam, you must go under the machine and remove the jam with the scarp [sic] shoot [sic] in place. NEVER try to reach in from the sides of the machine. This is part of our safety SOP and is strictly enforced. (Lock out Tag out)


In the training document, the ending parenthetical phrase “(Lock out Tag out)” was handwritten, while the remainder was in bold typeface. (Ex. R-14 at 3-5). The term “scrap knife” in the document is a reference to the cutting die.

May 8, 2016 Injury to W.F.

58.An employee with the initials W.F. was one of the 27 adjusters whom AJM trained in February 2015 on the new rule not to raise the scrap chute to clear paper jams. (Ex R-14 at 4). On May 8, 2016, about 15 months after the new rule was implemented, W.F. sustained a partial amputation of his middle finger as he was attempting to clear a paper jam located in the cutting die of PCM #16.

59.W.F. sustained the injury when the PCM was shut down because he had activated an e-stop and he had also opened the interlocked rear access doors. W.F. had raised the scrap chute in trying to clear the paper jam, and he had finished clearing it when the scrap chute fell from its raised position and pinched his middle finger against the stationary cutting die. (T. 469-71, 602-03, 2734-35, 2792; Ex. C-37 at 60).

60.W.F.’s actions immediately preceding his amputation injury were as follows. W.F. discovered that blanks were jammed near the cutting die. (T. 2735-37). Despite the jam, the PCM had continued to cycle, so W.F. shut down the PCM by engaging the e-stop button on the control panel. (T. 2737-38; Ex. C-16). W.F. then walked to the back of the PCM, opened the rear access doors, and saw about 60 blanks jammed near the cutting die. (T. 2738-41; Ex. C-22). He reached up and tried to pull the blanks out with his hand, but they were too tightly jammed for him to do so. (T. 2741-44). W.F. believed that his effort to remove the jammed blanks was being impeded by the scrap chute. He returned to the operator’s side of the machine, opened the hinged scrap chute guard to access the scrap chute, and then pivoted the scrap chute up to its raised position. He then attempted to remove the jammed blanks by reaching his arm through the open scrap chute guard, but without success. (T. 602-03, 2741-45). W.F. then returned to the opened rear access doors and from that position he again reached up into the machine to remove the jammed blanks. (T. 2745-46). He succeeded in removing the jammed blanks from that position, and as he was finishing the scrap chute fell from its upright position and pinched his middle finger against the then stationary cutting die, resulting in the amputation of part of the finger. (T. 510-11, 603, 2746). The scrap chute had been in its raised position for about four to five minutes before it fell. (T. 2747). W.F. was taken to the hospital for treatment. He returned to work about four or five days later. (T. 530, 2112, 2761).

61.On May 25, 2016, about twelve days after W.F. returned to work, AJM imposed formal discipline on W.F. (a written warning) for having violated the work rule that prohibited raising the scrap chute. (T. 530-31, 2114-18, 2761; Ex. R-9 at 4).

62.None of the PCMs were outfitted with any means to secure the scrap chute in place once it had been raised to its upright position. AJM has never trained or instructed adjusters to attempt to secure the scrap chute in place after raising it to its upright position and has never provided adjusters with any means to do so. (T. 535, 591, 1096, 2744).

63.W.F. learned to lift the scrap chute during his initial on-the-floor training in 2012, and it was his common practice to lift the scrap chute when clearing paper jams. (T. 2731-32, 2746-47). AJM did not prohibit that practice until after the amputation injury that had occurred in February 2015. Before he was injured, W.F. lifted the scrap chute to clear paper jams approximately four times per shift, and he typically left the scrap chute in the raised position for at least one minute each time. (T. 2748). W.F. continued to do this even after he had been instructed in February 2015 on the new rule not to lift the scrap chute to clear paper jams.4

64.WF’s attempt to clear the paper jam on May 8, 2016 during which he was injured constituted a service or maintenance activity and was not itself part of normal production operations.

65.AJM did not have actual knowledge before the amputation injury that W.F. had raised the scrap chute while attempting to clear the paper jam on PCM #16.

66.The evidence is insufficient to establish that AJM failed to exercise reasonable diligence to prevent or discover that W.F. had raised the scrap chute of a PCM to an upright position while clearing a paper jam on May 8, 2016 (thereby creating gravitational energy that could unexpectedly release and cause him injury).

2016 OSHA Inspection

67.On May 26, 2016, the CO conducted an on-site inspection at the Facility and inspected PCM #16, which was the PCM involved in the amputation injury that had precipitated the inspection. (T. 961-64).

68.On August 25, 2016, the CO returned to the Facility to investigate a complaint pertaining to cutting die guards having been installed on some PCMs but not on others. (T. 792). The CO conducted a walkaround inspection of the production floor, during which the plant manager (Roger Finckbone) and the human resource manager (Robert Cutler) accompanied him.

69.The CO testified that during the walkaround he first observed adjuster Brandon Mendieta sticking his hand into an operating PCM (PCM #13) to remove scrap paper from the scrap chute area. (T. 830).

70.The CO testified that he then observed another adjuster (James Beals) doing “the exact same function” as the CO had just seen Mendieta do. (T. 831).

71.The CO testified that he then turned his attention back to Mendieta and saw him removing scrap a second time from the same operating PCM (#13) by inserting his forearm into the scrap chute, and that Mendieta then “walked away from the machine, leaving the scrap chute door wide open.” (T. 832).

72.The CO testified that in between the two times he observed Mendieta reach into PCM #13, he observed James Beals place his hand inside the scrap chute and remove scrap paper of another operating PCM (PCM #27), in a movement that took one to three seconds. (T. 819, 823-24). The CO did not make any comment or remark to either Finckbone or Cutler that he had seen Beals reach inside an operating PCM. (T. 1068, 1590, 2519).

73.Neither Finckbone nor Cutler observed Beals reach in the PCM in the manner that the CO testified he had witnessed. Finckbone saw Beals do something else—he observed Beals open the scrap chute guard of PCM #27 while the machine was operating and peer into the scrap chute area. Finckbone further observed Beals rapidly close the scrap chute guard after Beals realized that Finckbone was observing him violate the work rule that all guards be closed during machine operations. (T. 1589, 2516-18, 2516-17, 1589). Finckbone instructed his staff to issue a written warning to Beals for this violation of a work rule, but no such warning was issued. (T. 2529-30).

74.The CO testified that he then saw adjuster Andrew Thompson open the scrap chute guard of PCM #30, reach his hand into the scrap chute area up to mid-forearm, remove the excess scrap paper, and close the scrap chute guard, in movements that took only one to three seconds. (T. 839). The CO did not tell either Finckbone or Cutler what he believed he had seen Thompson do. (T. 1068). The CO observed Cutler approach Thompson and speak to him, although the CO could not hear what was being said between them. (T. 840). When Cutler returned to the CO’s side, he remarked to the CO that Thompson would be “retrained, and there was no further discussion between the two about Thompson’s activities. (T. 840, 1065-66).

75.When the CO saw Cutler speaking privately to Thompson in the course of the CO’s walkaround, Cutler was reprimanding Thompson for having left the forming die guard off the PCM. (T. 1588).

76.During the CO’s investigation, the plant manager (Finckbone), the human resources manager (Cutler), and one of the floor supervisors (Lena Mays), each told the CO that employees were required to employ LOTO procedures whenever clearing a paper jam, and that there were no exceptions to this policy. (T. 779-81, 2853). In their communications with the CO over the course of the inspection and investigation, none of AJM’s managers or floor supervisors volunteered the information that adjusters had the option to utilize the E-Stop Method when clearing scrap paper from the scrap chute area, or ever mentioned to the CO the existence of the E-Stop Method. (T. 2851, 2853).


77.New employees who are hired to become adjusters initially receive classroom training on a variety of subjects, and then they are assigned to work alongside an experienced adjuster whose task is to teach the new employee how to do the various tasks necessary to operate the PCMs. This aspect of new adjuster training is known as “on-the-floor” training, and the new employees being trained are known as adjuster-trainees.” The duration of an adjuster-trainee’s on-the-floor training varies from three to six months. (T. 1740-42, 1925-26, 2014-15). The on-the-floor training is deemed completed once the adjuster-trainee demonstrates to the trainer proficiency in 93 tasks that are detailed on a five-page “New Adjuster Checklist.” (Ex. R-35 at 5-10; Ex. R-41 at 59-65; T. 2083-90). There are at least three or four experienced adjusters who are designated to provide on-the-floor training to adjuster-trainees, although the record does not indicate the precise number. (T. 2430-31). There is no evidence addressing what training or instructions the experienced adjusters receive, if any, regarding the content and manner of conducting on-the-floor training of the adjuster-trainees.

Supervision on the Production Floor

78.AJM’s production managers spend the majority of their time on the production floor, observing and monitoring the activities of the 8 to 12 adjusters who are on the floor during any given shift, as well as monitoring the activities of the packers and other workers on the production floor. (T. 1432-33, 1435, 1592, 1861-62, 1881-82, 1929, 1931-32, 1934, 2188-89, 2335-37, 2455-57, 2565-66).


79.AJM has a formal written disciplinary policy that includes a rule (Rule 6) that addresses safe work practices, and which provides as follows:

Non-compliance with safety regulations or common safety practices or failing to immediately reporting [sic] injures [sic] to supervisor is strictly prohibited. Conduct such as, but not limited to, running on the premises, horseplay, throwing objects, pushing or shoving, failure to wear safety apparel, or performing an unsafe act will not be tolerated.

1st Violation Written Warning

2nd Violation 3 Day suspension

3rd Violation Discharge

(Ex. R-22, at 3).


80.AJM’s supervisors and managers have discretion not to apply the progressive disciplinary protocol specified in Rule 6, but rather are permitted to render informal oral discipline and corrective action to an offending employee in lieu of initiating the formal discipline prescribed by the disciplinary policy. (T. 527-28, 1473-75, 2166, 2180-81, 2292, 2453-54, 2534).

81.AJM’s written LOTO policy specifies a progressive discipline protocol for violations of that policy that is marginally more lenient than the progressive discipline protocol set forth in Rule 6. The progressive discipline protocol set forth in the LOTO policy provides for imposing an oral warning for a first violation, a written warning for a second violation, and termination for a third violation. (Ex. C-3 at 10). There is no evidence that AJM had ever disciplined an employee for a violation of the LOTO policy.

82.From time to time, AJM imposed progressive discipline at the Facility for safety violations according to the progressive discipline protocol set forth in Rule 6. The 104 documented instances of discipline for Rule 6 violations reflected in the record occurred in the years 2013 to 2017. 5 Ninety-seven of those 104 disciplinary events were for first offenses. (Ex. R-6; Ex R-23; Ex. R. 26 at 2–3, 9–10, 12-13; Ex. R-27 at 18). Eighteen of those 104 documented disciplinary events occurred after the citation was issued on September 30, 2016, and seventeen of those eighteen were for first offenses. (Id.) For the eight documented second violations of Rule 6, the prescribed three-day suspension was waived for three them. (Ex. R-6 at 1 and 81; Ex. R-26 at 9). AJM did not present documentation of any employee at the Facility having been cited for a third violation of Rule 6, for which termination is the prescribed sanction. The only evidence of an employee being terminated for a violation of safety rules was a single instance of an employee having been under the influence of alcohol when he sustained an amputation injury while trying to clear a paper jam from an operating PCM. (T. 2543-44; Ex. R-23 at 2).

Glove Policy

83.After the finished paper plates and bowls exit the forming die of a PCM, they travel a short distance by conveyors to a part of the PCM called the stacker.” When a sufficient stack of the plates or bowls amass in the stacker (typically between 8 and 100 items in a stack) the stack proceeds on another conveyor to the wooden runout table. (T. 2196-99). The employees called “packers then pick up the stacks with their hands. (T. 483-84). The stacks arrive on the runout table still retaining heat that had been transferred to them from the brief time each plate or bowl was compressed in the heated forming die. (T. 2006). The amount of time a blank spends in the heated forming die is necessarily some fraction of 1.33 seconds.

84.Packers work eight-hour shifts picking up stacks of plates and bowls as they exit the PCMs and then bagging them. (T. 553, 483-84). The packers pick up thousands of stacks over the course of each shift. (T. 483-84, 553-55).

85.AJM requires that packers handling the stacks do so with either clean bare hands or while wearing clean gloves. (T. 486-87). For sanitation purposes, AJM requires that packers who have an open wound or a bandage on their hand, or who are wearing fingernail polish, wear cotton gloves that AJM provides. (T. 486, 515-17).

86.AJM does not supply protective gloves to packers or other employees to protect the employees from the heightened temperature of the stacks of paper products. But some packers who are not required to wear gloves for hygiene reasons choose to wear gloves that they supply themselves, some to protect from paper cuts and friction from twisting plastic bags, and some to insulate their hands from the temperature of the plates. (T. 1937, 2004, 558; 804-08, 814). Approximately 75-80% of packers on the third shift choose not to wear gloves. (T. 1937).

87.The forming dies of the PCMs operate at temperatures of between 250 and 350 °F, but in colder weather the upper die may operate up to 375 °F and the lower die may operate up to 425 °F. (T. 1268). No evidence was presented of any measured temperatures of the finished stacks of paper plates or bowls. (T. 233-34, 867).

88.There is no evidence of any packer or any other employee having ever been burned or blistered from the temperature of the plates exiting the PCMs. There is no evidence of any member of management receiving a complaint or report of any thermal injury to hands caused by handling the stacks of paper plates and bowls.


To establish a violation of an OSHA standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies; (2) there was noncompliance with its terms; (3) employees had access to the violative conditions; and (4) the cited employer had actual or constructive knowledge of those conditions. Donahue Indus. Inc., 20 BNA OSHC 1346, 1348 (No. 99-0191, 2003).

As discussed below, the Secretary failed to meet his burden to establish either the LOTO or the hand protection citation, so both citations must be vacated.

A. Control of Hazardous Energy (LOTO) Citation § 1910.147(c)(4)(i)

The Secretary alleges AJM violated subparagraph (c)(4)(i) of the LOTO standard (§ 1910.147), which provides as follows: “(4) Energy control procedure. (i) 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 amended LOTO citation alleges that AJM violated § 1910.147(c)(4)(i) in four discrete instances (designated as instances a, b, c and d). Instances a, b and c were all alleged to have occurred on or about August 25, 2016, and to have involved respectively PCMs #27 (operated by James Beals), #13 (operated by Brendan Mendieta) and #30 (operated Andrew Thompson). Instance “d” was alleged to have occurred on or about May 9, 2016 in connection with the amputation injury involving PCM #16 (operated by W.F.).6

For each of the four instances of the alleged LOTO violation, the Secretary’s complaint sets forth identical descriptions of the manners in which AJM is alleged to have violated the standard. Each of the four instances avers that [l]ockout procedures were not utilized and lockout devices were not affixed by an authorized employee performing tasks such as, but not limited to, clearing jams on the Peerless Cutting Machine.” (Emphasis added). Each of the four alleged instances was tried on this theory as pleaded—the alleged failure to utilize LOTO procedures.7

With respect to instances a, b and c, the Secretary’s theory of the case, as defined by the complaint and then developed by the evidence presented in his case in chief, was that on August 25, 2016, three different adjusters operating three different PCMs bypassed the scrap chute guard and inserted their arm or hand into the scrap chute of an operating PCM to remove scrap paper from the scrap chute area.

1. The LOTO Standard Applies to Instances a and c

The LOTO standard applies to the conduct alleged to have occurred with respect to instances a and c.

The LOTO standard’s “scope” provision states that the “standard covers the servicing and maintenance of machines and equipment in which the unexpected energization or start up of the machines or equipment, or release of stored energy could cause injury to employees. § 1910.147(a)(1)(i).

An adjuster’s act of manually clearing scrap paper from the scrap chute area of a running PCM (as the Secretary alleges occurred in instances a and c) constitutes a servicing activity within the meaning of the term “servicing and/or maintenance” as defined in § 1910.147(b).8 See Sec'y of Labor v. Action Elec. Co., 868 F.3d 1324, 1335 (11th Cir. 2017) (noting that the issue of the applicability of the LOTO standard does not necessarily turn on the “workplace activities” identified in the standard’s definition of “servicing and/or maintenance,” but rather that the standard’s “clear thrust is broadly to ensure safety where an employee performs legitimate workplace activities directed at the relevant machine” where the employee may be exposed to hazardous energy while engaged in such activities); Otis Elevator Co. v. Sec’y of Labor, 762 F.3d 116, 123 (D.C. Cir. 2014) (determining the text of the LOTO standard contemplates its application to “unjamming” work, and also comports with the standard's preventative purpose”).

Whether an energy source presents the potential for hazardous energy involves a two-pronged test: (1) whether unexpected energization, start up or release of stored energy could occur, and (2) if it can occur, whether it could cause injury to employees. Otis Elevator, 762 F.3d at 121; see also § 1910.147(c)(1) (requiring employers to establish a LOTO program “where the unexpected energizing, start up or release of stored energy could occur and cause injury