UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, 	
Complainant,

	
v.

	OSHRC DOCKET NO. 01-0712
J-LENCO, INC.,	
Respondent.

	

Appearances:	Michelle M. DeBaltzo, Esq.			Douglas J. Suter, Esq.
                  U.S. Department of Labor			Isaac, Brant, Ledman & Teetor
                  Office of the Solicitor				        Columbus, Ohio
                  Cleveland, Ohio					        For the Respondent.
                        For the Complainant.



BEFORE: MICHAEL H. SCHOENFELD

Administrative Law Judge



*DECISION AND ORDER*



*/Background and Procedural History/*



This case arises under the Occupational Safety and Health Act of 1970,
29 U.S.C. §§ 651-678 (1970) ("the Act"). On February 8, 2001, an
employee of J-Lenco, Inc., was injured at Respondent's facility in La
Rue, Ohio. From February 27, 2001 to April 3, 2001, the Occupational
Safety and Health Administration ("OSHA") conducted an inspection of
Respondent's work site. As a result of the inspection, OSHA issued a
six-item serious citation and a one-item other-than-serious citation to
Respondent, alleging violations of safety standards appearing in Title
29 of the Code of Federal Regulations ("C.F.R."). Respondent timely
contested the citations. Following the filing of a complaint and answer,
and pursuant to a notice of hearing, the case came on to be heard in
Columbus, Ohio. No affected employees sought to assert party status.
Both parties have filed post-hearing briefs and reply briefs.

*/Jurisdiction/*

It is undisputed that at all relevant times Respondent has been an
employer engaged in the production of sand-based molds called "cores."
In addition, Respondent admits it handles goods or materials which have
moved in interstate commerce. I thus find Respondent was engaged in a
business affecting interstate commerce.

Based on the above finding, I conclude that Respondent is an employer
within the meaning of section 3(5) of the Act. Accordingly, the
Occupational Safety and Health Review Commission ("the Commission") has
jurisdiction over the parties and the subject matter.

*/Factual Background/*

J-Lenco is a manufacturer of sand-based molds called "cores." Employees
make the cores with different types of machines that utilize various
energy sources, including electric, hydraulic and pneumatic, during
their operating cycles. Generally, the machine cycle starts with a
device called a "sand head" or a "blow head" swinging over the core box
located at the front center of the core machine. The sand head then
pours sand that has been mixed with chemicals into an opening on top of
the core box, and, once the box is filled, the sand head swings back and
a device called a "sweep or wipe" removes excess sand from the core box.
At this point, a "gas head" swings over the core box and fills the box
with a mixture of air and a catalyst called triethylamine which "cures"
the sand to harden and form the core or mold. The gas head then swings
back, at which time the employee removes the core from the core box and
the operation cycle starts over again.^(1) <#N_1_> The employee who has
been operating a particular core machine is responsible for cleaning it
at the end of the shift. The cleaning of a core machine takes from 15 to
25 minutes.^(2) <#N_2_> (Tr. 237, 279-80, 310-13, 380-81.)

Operator William Franklin was using core machine #9 when the sand head
began to drift during the cycle, which prevented the gas head from
functioning. Mr. Franklin was attempting to manually push the sand head
back when his arm became caught in the machine. Another operator, Bruce
Armbruster, was able to free Mr. Franklin's arm from the machine, but
not before Mr. Franklin's arm had been crushed in the machine. (Tr.
155-57, 288-90.)

*/The Secretary's Burden of Proof/*

In general, to prove a violation of a specific standard, the Secretary
must demonstrate by a preponderance of the evidence (1) that the cited
standard applies, (2) noncompliance with the terms of the standard, (3)
employee exposure or access to the hazard created by the noncompliance,
and (4) that the employer knew, or with the exercise of reasonable
diligence could have known, of the condition.^(3) <#N_3_> /Astra
Pharmaceutical Prod., Inc./, 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981);
/Dun-Par Eng'd Form Co./, 12 BNA OSHC 1949 (No. 79-2553), /rev'd &
remanded on other grounds/, 843 F.2d 1135 (8th Cir. 1988), /decision on
remand/, 13 BNA OSHC 2147 (1989).

*/Serious Citation 1, Item 1/*

This item alleges a serious violation of 29 C.F.R. §
1910.106(e)(2)(ii)(b)(2), which provides that "[t]he quantity of liquid
that may be located outside of an inside storage room or storage cabinet
in a building or in any one fire area of a building shall not
exceed...120 gallons of Class IB, IC, II, or III liquids in containers."
I find that the cited standard applies and that J-Lenco violated the
terms of the standard. It is undisputed that three 107-gallon containers
of triethylamine, a compressed gas in liquid form, and three 55-gallon
containers of liquid "zip-slip 78" were located outside the storage room
at the facility. (Tr. 21-22, 27-28, 31-32, 329-30, 356-57; C-4, C-6.) It
is further undisputed that these materials are Class IB liquids. (Tr.
23-25, 29; C-3, C-5.) As to the triethylamine, J-Lenco appears to argue
that because the containers were arguably portable tanks, the standard
is "unenforceably vague." ®. Brief pp. 2-3.) Respondent presented no
evidence to show that the triethylamine was contained in portable tanks.
In fact, the term "portable tank" was never even mentioned at the
hearing, and was first mentioned in this case in Respondent's post
hearing brief.^(4) <#N_4_> That Respondent would now argue that it was
in compliance with the Act because the triethylamine containers were
portable tanks is unpersuasive, and accordingly rejected. As to the
zip-slip 78, J-Lenco asserts these containers were mistakenly shipped to
its facility and were ready to be shipped back.^(5) <#N_5_> ®. Brief pp.
2-3.) Even if this were the case, however, it would not excuse the
violation, because the standard clearly prohibited the /location/ of the
containers outside of the storage room. Accordingly, these containers
were "located" for purposes of the standard when they were outside the
storage room and not actively in transit. I find, therefore, that
Respondent violated the terms of the cited standard by placing more than
120 gallons of Class IB liquids outside of the inside storage room or
storage cabinet.

The Secretary has also demonstrated employee exposure to and employer
knowledge of the condition. The record shows that employees had to
retrieve buckets of the cited liquids to operate the core machines. (Tr.
25-26, 30.) The record also shows that J-Lenco had actual knowledge of
the condition, based on its admission that it knew the containers were
located outside the storage room. (Tr. 32, 329-30.) The serious
classification of the violation is appropriate, considering the
potential injuries that could result from an accident. (Tr. 25, 30.) The
proposed penalty of $1,250.00 is also appropriate, after giving due
consideration to the size of the employer's business, the gravity of the
violation, and the employer's good faith and prior history of OSHA
violations. (Tr. 34-35.) This item is affirmed as a serious violation
and a penalty of $1,2500.00 is assessed.

*/Serious Citation 1, Item 2/*

This item alleges a serious violation of 29 C.F.R. § 1910.136(a), which
requires the employer to "ensure that each affected employee uses
protective footwear when working in areas where there is a danger of
foot injuries due to falling or rolling objects, or objects piercing the
sole, and where such employee's feet are exposed to electrical hazards."
It is undisputed that core machine operators wore regular street shoes
while performing their job duties, that the sand cores they handled
weighed from under a pound up to 50 pounds, and that the operators
occasionally dropped the cores while handling them.^(6) <#N_6_> (Tr.
231, 272-73, 347-48.) I find, therefore, that the cited standard
applies, that J-Lenco violated the terms of the standard, and that core
machine operators were exposed to the hazard of falling objects on a
daily basis. Although Respondent in essence argues that because J-Lenco
had no history of foot injuries caused by falling cores, its employees
were not exposed to a hazard, Commission precedent is well settled that
lack of injury does not prove lack of hazard or disprove the alleged
violation. /See Kaspar Electroplating Corp./, 16 BNA OSHC 1517 (No.
90-2866, 1993); /Simplex Time Recorder Co./, 766 F.2d 575 (D.C. Cir.
1985). I also find that Respondent had actual knowledge of the
violation, based on the testimony of Don Kennedy, the plant manager.
(Tr. 347.) Even if Respondent did not have actual knowledge, it could
have discovered the violation with the exercise of reasonable diligence
because the condition was in plain sight of shift supervisors and other
management officials. The Secretary, however, has failed to establish
that the alleged violation was serious. The CO testified that the
violation was classified as serious because a broken foot and a sprained
foot were possible injuries. (Tr. 41.) In light of the testimony of two
operators who stated that when the cores fell to the ground, they broke
apart, I conclude that the Secretary has failed to demonstrate that
there was a substantial probability that the cited condition could have
resulted in serious physical harm, and that the violation is properly
classified as "other." (Tr. 231-32, 272-73.) This citation item is
accordingly affirmed as an other-than-serious violation, and no penalty
is assessed.

*/Serious Citation 1, Item 3/*

Item 3 alleges a serious violation of 29 C.F.R. § 1910.147(c)(4)(ii)(B),
a provision of the lockout/tagout ("LOTO") standard. Specifically, the
citation alleges that

The machine specific lockout procedures for the core machines were
inadequate in that they did not include:

(1) Specific information on the number and location of hydraulic valves
and controls which must be locked out, bled off, or activated to release
accumulated hydraulic energy[;]

(2) Information on the number and location of capacitators which may
need to be discharged[;]

(3) Specific information on the number and location of pneumatic valves
which must be locked out, bled off or activated to release stored
pneumatic energy.^(7) <#N_7_>

Respondent argues that it did not violate the standard because the cited
condition fell within the exception to the LOTO standard set out in 29
C.F.R. § 1910.147(a)(2)(ii). This exception provides that:

Minor tool changes and adjustments, and other minor servicing
activities, which take place during normal production operations, are
not covered by this standard if they are routine, repetitive, and
integral to the use of the equipment for production, provided that the
work is performed using alternative measures which provide effective
protection (See subpart O of this part).



Under Commission precedent, the party claiming the benefit of an
exception has the burden of proving that its claim comes within that
exception. /See StanBest, Inc./, 11 BNA OSHC 1222, 1225-26 (No.
76-4355). I conclude that Respondent has failed to establish that the
exception applies to the cited conduct. The duties of the core machine
operators, as described by the witnesses, include both setting up and
cleaning the machines. (Tr. 237-49, 259-60, 279-82.) These activities
are clearly within the standard's definition of servicing and
maintenance and are not "minor adjustments," as J-Lenco claims. /See/ 29
C.F. R. § 1910.147(b). I find, therefore, that the cited standard
applies to the cited conduct.

I further find that Respondent did not comply with the terms of the
standard. J-Lenco's LOTO program does not specifically outline the steps
for shutting down, isolating, blocking and securing the different types
of core machines to control hazardous energy. In particular, the program
does not include the number and location of the various energy sources
on the different machines. /See/ C-13-15; R-4. Instead, the program
appears to be a generic program that is not explicit as to the different
types of core machines that employees operate.^(8) <#N_8_> /Id./ In
addition, the procedural steps taken by the core machine operators, as
described by the plant manager, were inadequate to comply with the
standard. (Tr. 323-26, 349-82.) Even assuming /arguendo/ that they were,
two core machine operators testified they had not seen C-13, entitled
"Core Machine Lockout/Tagout Procedures," and that they did not
regularly follow those procedures when they operated the machines. (Tr.
245, 290.)

Finally, I find that employees were exposed to the cited condition and
that Respondent had knowledge of the violation. J-Lenco asserts that
when all required steps were taken, that is, pulling out the power plug,
hitting the emergency stop, activating the limit switch, and putting the
machine in manual mode, there was no hazard of unexpected energization
or activation.^(9) <#N_9_> (Tr. 324-26.) While these steps may have
deactivated the electrical power, they did not address other kinds of
energy, such as hydraulic energy, that could have unexpectedly energized
at least some of the moving parts of the machine, and the plant manager
himself conceded as much. (Tr. 262-64, 325-26, 355-56, 381-82.)
Therefore, when employees cleaned the core machines and changed the core
boxes, they were exposed to the hazard sought to be eliminated by the
standard. Respondent had knowledge of the violation because it was done
with the concurrence of and in plain view of shift supervisors. Even if
the company did not have actual knowledge it could have discovered the
violation with the exercise of reasonable diligence. The Secretary has
established the alleged violation.^(10) <#N_10_>

The Secretary has properly classified this item as a serious violation.
It is clear that there was a substantial probability that the failure to
have specific procedural LOTO steps could have resulted in serious
physical harm, such as broken bones or crushing injuries. (Tr. 57-59,
218-19.) In addition, the Secretary's proposed penalty of $1,250.00 for
this item is appropriate in light of the gravity of the violation and
the employer's size, history and good faith. (Tr. 58-59, 66, 73-74.)
Item 3 is affirmed as a serious violation, and the proposed penalty is
assessed.^(11) <#N_11_>

*/Serious Citation 1, Item 4/*

The Secretary alleges in Item 4 a violation of 29 C.F.R. §
1910.147(c)(7)(i) for J-Lenco's failure to provide "adequate training to
ensure that employees acquired the knowledge and skills required for the
safe application, usage and removal of energy control devices."^(12)
<#N_12_> Specifically, the Secretary alleges that J-Lenco did not train
core machine operators as authorized employees exposing them to
unexpected startup of the core machines during cleaning operations and
insertion and removal of core boxes. J-Lenco asserts that core machine
operators were "affected employees" and did not require training as
"authorized employees." I find, however, that the core machine operators
were authorized employees. The standard defines an authorized employee
as "[a] person who locks out or tags out machines or equipment in order
to perform servicing or maintenance on that machine or equipment. An
affected employee becomes an authorized employee when that employee's
duties include performing servicing or maintenance covered under this
section." 29 C.F.R. § 1910.147(b). The standard further defines
servicing and maintenance as including "setting up, adjusting
...cleaning or unjamming of machines or equipment and making adjustments
or tool changes, where the employee may be exposed to the /unexpected/
energization or startup of the equipment or release of hazardous
energy." It is clear from the testimony of several core machine
operators that their duties included cleaning, adjusting and unjamming
the core machines. (Tr. 23-49, 158-64, 239-60, 279-82.) On the day of
the accident, Mr. Franklin was in essence unjamming the core machine
because the blow head was drifting back preventing the core box from
opening. (Tr. 158-64.) Respondent was thus required to train the
operators as authorized employees.^(13) <#N_13_>

The evidence shows that while maintenance personnel may have been
trained in LOTO procedures, core machine operators were not trained as
required by the standard. (Tr. 321-23, 339.) The plant manager and core
machine operators described operator training as on-the-job training,
i.e., placing a new employee with an experienced operator who went down
a list and explained the release agents and how to use them. (Tr. 288,
316-17.) I find that this training was inadequate. I further find that
the "Operator Review Sheet" and the updated training the plant manager
referred to were inadequate, the former because it did not sufficiently
describe the energy control program for each core machine and the latter
because it did not include updated training on LOTO. (Tr. 318; R-1-2.)
It would appear that the extent of training for core machine operators
was that they were instructed to push the emergency stop button when
they went "into a machine." (Tr. 237-38, 280-82, 317, 323-24.) This
conclusion is supported by the testimony of the core machine operators,
who also testified that they had not been trained in LOTO before the
accident.^(14) <#N_14_> (Tr. 241, 282-84, 328-39.)

The record further demonstrates that core machine operators were exposed
to the hazardous condition and that Respondent had actual knowledge of
the violation. In light of the duties of the core machine operators,
they were required to use LOTO procedures daily. That they were not
properly trained to do so exposed them to hazardous conditions, as
exemplified by the accident.^(15) <#N_15_> J-Lenco acknowledges that it
was aware that core machine operators were not trained as authorized
employees, and it is clear that, with the exercise of reasonable
diligence, the company could have discovered the violative condition.
Item 4 is accordingly affirmed as a serious violation. For the reasons
set out above, the proposed penalty of $1,125.00 is appropriate and is
therefore assessed.

*/Serious Citation 1, Item 5/*//

This item alleges that lockout or tagout devices were not "affixed to
each energy isolating device by authorized employees," in violation of
29 C.F.R. § 1910.147(d)(4)(i). I find that the cited standard applies
and that Respondent did not comply with its terms. J-Lenco asserts in
essence that core machine operators were not required to use LOTO
devices because they were not authorized employees. As discussed
/supra/, however, core machine operators were authorized employees.
Further, it is undisputed that these employees did not use lockout or
tagout devices when performing their assigned duties. Core machine
operators were exposed to the cited condition when they cleaned the core
machines and helped change core boxes, and J-Lenco had actual knowledge
of the condition. Item 5 is affirmed as a serious violation, and, for
the reasons given /supra/, the Secretary's proposed penalty of $1,125.00
is appropriate and is accordingly assessed.

*/Serious Citation 1, Item 6/*//

Item 6 alleges a violation of 29 C.F.R. § 1910.212(a)(3)(ii) for failing
to guard the point of operation on core machinery and exposing employees
to injury. I find that the cited standard applies and that Respondent
violated the terms of the standard. It is undisputed that the plexiglass
doors were missing from core machine #9 at the time of the accident.
(Tr. 75, 166-68, 196-97, 234, 275-76, 332-35.) Moreover, it is clear
that the missing plexiglass doors exposed Mr. Franklin to the point of
operation on core machine #9. The accident plainly demonstrates that the
terms of the standard were violated and that an employee was exposed to
the cited hazard.

Respondent appears to deny it had knowledge of the violation. In
essence, J-Lenco asserts that Mr. Franklin removed the plexiglass doors
on the day of the accident and that it therefore could not have known of
the violation. ®. Brief pp. 10-13.) A review of the record, however,
shows that Mr. Franklin did not remove the plexiglass doors.^(16)
<#N_16_> Operators Kathy Houseworth and Bruce Armbruster, who worked the
same shift as Mr. Franklin, both testified that when the shift started
at 7:00 a.m., they saw Mr. Franklin operate core machine #9 without the
plexiglass doors. (Tr. 233-34, 275; /see also/, Tr. 88, 166-68, 196-97.)
Ms. Houseworth further testified that the plexiglass doors often had not
been in place on core machine #9. (Tr. 234.) In addition, Mr. Armbruster
stated that if Mr. Franklin had removed the doors during the shift he
would have seen him and that this did not occur. (Tr. 275-76.) According
to the undisputed testimony of several witnesses, the plexiglass doors
consisted of two plastic pieces held in place by a total of four bolts.
(Tr. 275-76, 295, 299-300, 303-04, 335-36, 358-60, 364-68.) In order to
remove the doors, employees would have to reach up to the top of the
doors which was approximately six feet high and remove the bolts using
at least one wrench.^(17) <#N_17_> /Id./ Based this description of the
plexiglass doors, I find Mr. Armbruster's statement that he would have
seen Mr. Franklin remove the plexiglass doors, but did not see him do
so, to be credible and reliable. I find, therefore, that the plexiglass
doors on core machine #9 were off on the day of the accident and in fact
had been off of the machine for some time before the accident. This
finding is further supported by Mr. Franklin, who testified that he
spoke with two different shift supervisors about the missing doors and
that they could not explain why they had been removed.^(18) <#N_18_>
(Tr. 196-97.) Based on the record, the Secretary has shown all of the
elements of her prima facie case.

Respondent asserts that the violation was a result of unpreventable
employee misconduct. To establish this affirmative defense, the employer
must show it had an adequate safety program that was communicated and
enforced as written and that the employee's violating that policy was
idiosyncratic and unforeseeable. /CMC Elec., Inc./, 19 BNA OSHC 1001,
1003 (6^th Cir. 2000), /citing L.E. Myers Co./, 818 F.2d 1270, 1276-77
(6^th Cir. 1987); /see also/, /Towne Constr. Co./, 13 BNA OSHC 1656,
1659 (6^th Cir. 1988). Specifically, J-Lenco asserts that the violation
was unpreventable because it had an adequate safety program that was
effectively communicated and enforced. ®. Brief pp. 10-14.) Although
Respondent had a safety rule that required all guards to be in place
before and during machine operation, the company has not demonstrated
that it effectively enforced the rule. (Tr. 203-06, 317; R-1.) The
record shows that when Mr. Franklin violated this rule on two prior
occasions, he was simply told not to run the machine without
guards.^(19) <#N_19_> (Tr. 180-81, 317-18, 335, 362-64.) No disciplinary
action, however, was taken against Mr. Franklin for repeatedly violating
the safety rule. In addition, the testimony of the plant manager
confirms that safety rules in general were not effectively enforced
through any progressive disciplinary system.^(20) <#N_20_> While he
testified to the effect that violation of a safety rule would result in
the employee being "written up," verbally reprimanded or suspended
without pay, he was not able to answer the Secretary's question as to
what the actual policy was regarding discipline. (Tr. 345-47.)
Respondent has not demonstrated by a preponderance of evidence that the
violation was caused by unpreventable employee misconduct. Its
affirmative defense is accordingly rejected.

The Secretary has properly classified this violation as serious. There
was a substantial probability that the failure to guard the core machine
could have resulted in serious physical harm, such as broken bones or
crushing injuries. (Tr. 89-90, 218-19.) Further, the Secretary's
proposed penalty of $1,250.00 is appropriate, for the above-stated
reasons. This item is affirmed as a serious violation, and the proposed
penalty of $1,250.00 is assessed.

*/"Other" Citation 2, Item 1/*//

This item alleges an other-than-serious violation of 29 C.F.R. §
1910.147(c)(6)(ii), which requires the employer to certify that periodic
inspections of its energy control (LOTO) procedure have been performed
to ensure that the procedure is being followed. I find that the cited
standard applies and that Respondent did not meet the terms of the
standard. While J-Lenco officials told the OSHA compliance officer who
conducted the inspection that they annually audited their LOTO
procedures, the company failed to document these audits. (Tr. 92-94.) I
further find that the Secretary has met her burden of establishing
employee exposure and employer knowledge. As to knowledge, even if
J-Lenco did not have actual knowledge of the condition, it could have
discovered the violation with the exercise of reasonable diligence. This
item is affirmed as an other-than-serious violation. No penalty was
proposed, and none is assessed.

*/Findings of Fact/*	

All findings of fact necessary for a determination of all relevant
issues have been made above. Fed. R. Civ. P. 52(a). All proposed
findings of fact and conclusions of law inconsistent with this decision
are hereby denied.

*/Conclusions of Law/*

1. Respondent was, at all times pertinent hereto, an employer within the
meaning of section 3(5) of the Act.

2. The Commission has jurisdiction over the parties and the subject matter.

3. Respondent was in serious violation of 29 C.F.R. §
1910.106(e)(2)(ii)(b)(2), as alleged in Citation 1, Item 1, and a civil
penalty of $1,250.00 is appropriate for this violation.

4. Respondent was in violation of 29 C.F.R. § 1910.136(a), as alleged in
Citation 1, Item 2; however, the violation was other-than-serious, and
no civil penalty is appropriate for this violation.

5. Respondent was in serious violation of 29 C.F.R. §
1910.147(c)(4)(ii)(B), as alleged in Citation 1, Item 3, and a civil
penalty of $1,250.00 is appropriate for this violation.

6. Respondent was in serious violation of 29 C.F.R. § 1910.147(c)(7)(i),
as alleged in Citation 1, Item 4, and a civil penalty of $1,250.00 is
appropriate for this violation.

7. Respondent was in serious violation of 29 C.F.R. § 1910.147(d)(4)(i),
as alleged in Citation 1, Item 5, and a civil penalty of $1,250.00 is
appropriate for this violation.

8. Respondent was in serious violation of 29 C.F.R. §
1910.212(a)(3)(ii), as alleged in Citation 1, Item 6, and a civil
penalty of $1,250.00 is appropriate for this violation.

9. Respondent was in other-than-serious violation of 29 C.F.R. §
1910.147(c)(6)(ii), as alleged in Citation 2, Item 1, and no civil
penalty is appropriate for this violation.

*ORDER*

1. Citation 1, Item 1 is AFFIRMED as a serious violation.

2. Citation 1, Item 2 is AFFIRMED as an other-than-serious violation.

3. Citation 1, Item 3 is AFFIRMED as a serious violation.

4. Citation 1, Item 4 is AFFIRMED as a serious violation.

5. Citation 1, Item 5 is AFFIRMED as a serious violation.

6. Citation 1, Item 6 is AFFIRMED as a serious violation.

7. Citation 2, Item 1 is AFFIRMED as an other-than-serious violation.

8. A total civil penalty of $6,250.00 is assessed.



/s/

Michael H. Schoenfeld

Judge, OSHRC



Dated:

Washington, D.C.

1. The facility has various types of core machines. While the machines
may differ as to the specific steps employees must take to run them, for
example, some are automatic and some are manual, the operating process
for all the machines is similar. (Tr. 52-53, 343-44, 352-53.)

2. As the plant manager explained it, cleaning core machine #9 involved
closing the core box, bringing the blow head over, and setting it down.
The operator would then

[r]emove the bolts from the head, raise it up, swing the head back out
of the way. There's switches here on this panel that you can swing the
head in and out with and put it in the manual position. And then when
they went in, they would hit the [emergency stop], remove their bolts,
take the bolts out, raise their clamp back up, swing it back out of the
way, go back in and take the blow head out. (Tr. 354.)

3. Respondent's brief asserts that in /Carlisle Equip. Co./, 24 F.3d 790
(6^th Cir. 1994), "[t]he Sixth Circuit...has expressly ruled that to
prove a violation against an employer under 5(a)(2), which *IS* a
violation of a specific OSHA regulation, the Secretary must actually
prove employee exposure to a hazard." ( R. Brief p.1.) Not only does
Respondent's counsel misspell the case name and give the wrong citation,
but counsel's assertion that the Sixth Circuit in /Carlisle/ required
actual employee exposure to prove a violation is completely unfounded.
Not only was employee exposure not an issue in /Carlisle/, but the court
stated that the Secretary must show that "employees had /access/ to the
hazardous condition." /Carlisle/, 24 F.3d at 792 (emphasis added). That
counsel would cite to /Carlisle/ as standing for the proposition that
the Secretary must show actual employee exposure is most likely not a
product of elucubration but rather a result either of counsel's failure
to read the case or counsel's careless use of language in his brief.

4. Respondent also failed to assert or argue that it believed the
standard to be unenforceably vague in its notice of contest or its
answer. Again, Respondent did not make this claim at the hearing or at
any time prior to its post hearing brief.

5. The record is unclear as to whether all three drums or only one drum
of zip-slip 78 went to the facility by mistake. (Tr. 118, 329-30,
356-57.) In either case, I would find that Respondent violated the terms
of the standard. /See/ discussion, /infra/.

6. The plant manager testified that the cores weighed an average of 5-10
pounds. (Tr. 348.)

7. The standard provides:

The procedures shall clearly and specifically outline the scope,
purpose, authorization, rules, and techniques to be utilized for the
control of hazardous energy, and the means to enforce compliance
including, but not limited to, the following: ... (B) Specific
procedural steps for shutting down, isolating, blocking and securing
machines or equipment to control hazardous energy.

8. Most of J-Lenco's LOTO program is a general program that could be
used by any industry. In fact, there is only one page in the program
that explicitly mentions a core machine, and even that page is not
specific to any particular core machine. /See/ C-13.

9. According to one core machine operator, J-Lenco did not even enforce
these required steps. He testified that both he and his supervisor
cleaned a core machine without pushing the emergency stop button the
week before the accident. (Tr. 281-82.)

10. Respondent requests approval of its proposed abatement measures for
the violation of the cited standard. (R. Brief pp.14-15.) I decline to
rule on this proposal.

11. In assessing this penalty, I have considered Respondent's argument
that Items 3 through 5 should be grouped because "they are so closely
related so as to constitute a single hazardous condition."(R. Brief pp.
15-16.) I reject this argument because, while Items 3 through 5 all
allege violations of the LOTO standard, each requires a separate
abatement. /See Weststar Mechanical, Inc./, 19 BNA OSHC 1568 (Nos.
97-0226 & 97-0227, 2001).

12. The standard 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
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 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.

13. While I find that core machine operators were authorized employees
for purposes of this alleged violation, I would still find a violation
of the standard even if core machine operators were considered affected
employees based on the description of the LOTO training provided to core
machine operators. /See /discussion/, infra/.

14. Core machine operator Kathy Houseworth, for example, testified that
before the accident, her only LOTO training was a "movie" addressing
LOTO generally. (Tr. 239-41.)

15. While the accident may have occurred while Mr. Franklin was
servicing the core machine, it is clear from the testimony of some
witnesses that core machine operators were exposed to the hazardous
condition during production when they had to wipe sand off the core box
and when they had to remove the cores at the end of the cycle. (Tr. 164,
287.)

16. Respondent refers to affidavits signed by other employees stating
that at the end of the previous shift, the plexiglass doors were in
place. (R. Brief p. 12.) These employees did not testify at the hearing,
and the affidavits were not admitted into evidence. Therefore, they are
not included in the record and have not been considered. Instead, I rely
on the credible testimony of Mr. Franklin, Ms. Houseworth and Mr.
Armbruster. All three employees had intimate knowledge of the conditions
leading to the accident, and gave honest, detailed testimony consistent
with one another. Moreover, Respondent has failed to provide any reason
why these witnesses should not be found credible and reliable.

17. Although Respondent implies that the doors could have been removed
in 3 to 5 minutes, I find Mr. Armbruster's estimate of 10 to 20 minutes
more accurate, especially considering the size and construction of the
doors. (Tr. 275, 295, 366-67.)

18. Even if Mr. Franklin had not testified in this regard, I would find
that J-Lenco should have discovered the violation. The plexiglass doors
were large and the fact that they were not in place on the machine would
have been apparent to a reasonably attentive supervisor. (Tr. 459-60.)

19. The record also shows that on another occasion, Mr. Franklin told
Dale Murphy, his immediate supervisor, that he could not operate the
core machine with both guards in place, after which Mr. Murphy told him
to run it "any way you can." (Tr. 180-81.)

20. Other evidence further confirms that safety rules were not enforced
as required. Ms. Houseworth and Mr. Armbruster, for example, testified
that they had operated core machines with the safety buttons taped down
in the presence of their supervisors and that they had not been
disciplined for doing so. (Tr. 241-43, 284-86.)