OTIS ELEVATOR COMPANY, Petitioner v. SECRETARY OF LABOR, et al., Respondents.
No. 13-1194.
United States Court of Appeals, District of Columbia Circuit.
Argued April 16, 2014. Decided Aug. 15, 2014.
763 F.3d 116
III.
In approving the Minisink Project, the Commission accorded the Wagoner Alternative the serious consideration it was due, in keeping with its statutory obligations under the NGA and NEPA. In its judgment, the Commission did not think the Wagoner Alternative preferable and concluded that the Minisink Project, as put forward by Millennium, wоuld serve the public interest and necessity. We are simply not empowered to second-guess the Commission‘s determination on this point or to substitute our judgment for the Commission‘s. Our much more limited role is, instead, to confirm that FERC thoroughly and reasonably examined the issue, and on the record before us, we are assured that it did.
For this and the other reasons we have explained, the petitions for review are denied.
So ordered.
Scott Glabman, Senior Appellate Attorney, U.S. Department of Labor, argued the сause for respondents. With him on the brief were Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health, and Heather R. Phillips, Counsel for Appellate Litigation.
Before ROGERS, SRINIVASAN and MILLETT, Circuit Judges.
Opinion for the Court by Circuit Judge MILLETT.
MILLETT, Circuit Judge:
A service mechanic employed by Otis Elevator Company injured his hand while unjamming the gate of a freight elevator. The accident spurred an investigation by the Occupational Safety and Health Administration (OSHA), and ultimately a citation to Otis Elevator for violating OSHA safety standards involving the control of hazardous energy. The Occupational Safety and Health Review Commission upheld the citation, and Otis Elevator petitions for review of that decision. Specifically, Otis Elevator argues that the OSHA safety standards allegedly violated did not apply to the work its mechanic was performing at the time of the accident. Because the Commission‘s determinations that the safety standards applied to the mechanic‘s work and were violated are neither arbi-
I. BACKGROUND
A. Statutory and Regulatory Framework
Congress enacted the Occupational Safety and Health Act of 1970,
An employer who disagrees with the Secretary‘s imposition of a citation or penalty can seek review before the Occupational Safety and Health Review Commission,
Either the Secretary or the employer may seek judicial review of the Commission‘s final order directly in a United States court of appeals, which “must treat as ‘conclusive’ Commission findings of fact that are ‘supported by substantial evidence.‘” Martin, 499 U.S. at 148, 111 S.Ct. 1171 (citing
In 1989, the Secretary exercised his rulemaking authority to prеscribe safety requirements for “the control of hazardous energy.” OSHA Control of Hazardous Energy Sources (Lockout/Tagout) Rule,
The Secretary charged Otis Elevator with violating a standard requiring the exchange of lockout/tagout information between on-site and outside employers involved in maintenance or repair activities. That “infоrmation exchange provision” applies “[w]henever outside servicing personnel are to be engaged in activities covered by the scope and application of this standard,” and requires that “the on-site employer and the outside employer shall inform each other of their respective lockout
B. Factual Background
In June 2009, Otis Elevator dispatched one of its service mechanics to the Boston Store in Brookfield, Wisconsin, to repair a jammed metal gate on a freight elevator. When he arrived at the store, the mechanic spoke with a couple of Boston Store employees who confirmed that the gate on the elevator car was “hung up.” An out-of-order sign had been placed near the elevator. Neither upon the mechanic‘s arrival nor at any other time prior to this incident did Otis Elevator provide the Boston Store with a copy of its lockout/tagout procedures.
When functioning properly, chain assemblies on the rooftop of the elevator car raise and lower the metal gate. Upon inspection, however, the mechanic found that the gate was partially open and could not be moved, leaving a thrеe-foot gap between it and the floor.
The mechanic ducked underneath the gate, and then used a ladder to climb on top of the elevator car to perform the repair. He flipped two switches to prevent anyone from calling the elevator or moving the gate electronically. The mechanic failed, however, to block up the gate mechanically in order to prevent unexpected gate movement, as Otis Elevator‘s own mechanical repair processes, captioned “LOCKOUT/TAGOUT PROCEDURE,” advised.
Once on top of the elevator car, thе mechanic determined that the gate could not be moved because one of the chains was “off the sprocket” and jammed. He decided to fix the gate by prying the chain back onto the sprocket. Once unjammed, the chain immediately started moving. The mechanic realized that, as a result of the abrupt release of the jam, the gate was about to slam down and break the chain‘s connecting link. He reacted by grabbing the chain, which “drug” his hand through the sprocket and chain, resulting in a serious laceration to his finger.
C. Procedural History
Following OSHA‘s investigation of the accident, the Secretary cited Otis Elevator for violating the lockout/tagout standard,
Otis Elevator contested that citation. An administrative law judge vacated it, reasoning that the lockout/tagout standard‘s “scope provision” did not apply beсause the startup of the machine once the chain was forced back onto the sprocket was anticipated by the mechanic, not “unexpected” energization, within the meaning of
The administrative law judge also ruled that Otis Elevator was not in violation of the lockout/tagout “information exchange provision,”
The Commission further found that the repair posed a “caught-in” hazard to the mechanic, since a body part or piece of clothing could have been inadvertently caught in the moving chain. It also posed a significant risk to others because, in light of the mechanic‘s failure to properly block up the gate consistent with Otis Elevator‘s procedures, the gate could have slammed shut once the chain was unjammed. Comm‘n Dec. at *4 & n. 3.
Having concluded that the lockout/tagout regime applied, the Commission ruled that Otis Elevator violated the information exchange provision,
While the Commission reinstated the Secretary‘s citation, it reduced the penalty to $500 on the ground that the likelihood of an accident was exceptionally low because a Boston Store employee had placed an out-of-order sign by the elevator, only a limited number of Boston Store employees were present during the early morning repair, and Boston Store employees had no responsibility for servicing the elevator while the Otis Elevator mechanic was performing his work. Comm‘n Dec. at *9.
Otis Elevator timely petitioned for review.
II. STANDARD OF REVIEW
In reviewing Commission decisions, this court accepts the Commission‘s findings of fact as “conclusive” if they are “supported by substantial evidence on the record considered as a whole,”
III. ANALYSIS
Otis Elevator challenges the Commission‘s decision on two grounds. First, it contends that the lockout/tagout standards do not apply at all because there was no “unexpected” release of energy in this repair. Second, Otis Elevator argues that it had no duty to exchange information about its lockout/tagout procedures with the Boston Store because the nature, location, and timing of the repair did not put any employees or customers at risk.
Neither argument succeeds. The Commission permissibly concluded that the lockout/tagout protocols applied because there was stored kinetic energy in the jammed chain due to the weight of the gate that posed а danger to the mechanic and to anyone nearby; and the exact timing of the chain assembly‘s energization was unknown. The Commission likewise reasonably concluded that, to promote safety, the Secretary‘s regulations require the proactive exchange of information in advance of repairs regardless of any post hoc assessment of risk on a repair-by-repair basis. For those reasons, we deny the petition for review.
A. Applicability of the Lockout/Tagout Protocol
The lockout/tagout standard applies to the servicing and maintenance of machines and equipment “in which the unexpected energization or start uр of the machines or equipment, or release of stored energy could cause injury to employees.”
1. The Commission found that the repair entailed a release of stored energy that was both unexpected and created the potential for injury. Those findings sufficed to trigger the lockout/tagout regime, and both of them are substantially grounded in the administrative record.
First, the Commission found—and Otis Elevator does not dispute—that “there was stored kinetic energy in the elevator‘s jammed chain assembly due to the weight of the partially open gate.” Comm‘n Dec. at *3. Indeed, the mechanic‘s concern that the sudden and overlooked release of that energy would cause the gate to slam down is what prompted him to grab the chain and lacerate his hand. Id.
The Commission further found that the stored energy “could cause injury to employees.”
Confirming the point, Otis Elevator‘s “Lockout/Tagout Procedure[s]” specifically
The repair posed a risk of injury in still another respect. The Commission separately found that the release of the chain‘s stored energy “posed a caught-in hazard to the mechanic” himself, because “his work necessarily placed him in close proximity to [the chain], and a body part or piece of clothing could have been inadvertently cаught in the chain, or between it and the sprocket, when the stored energy released.” Comm‘n Dec. at *4. The mechanic‘s own testimony and conduct substantiated the Commission‘s judgment. He admitted that he was close enough to the chain to grab it with his hand—in fact, he did just that—which meant he was also close enough to get his clothes or a body part inadvertently caught in the moving chain.
Second, the Commission found that the repair involved “unexpected energization.”
Otis Elevator stresses that the mechanic knew what would happen when the repair occurred, and thus the release of energy was not “unexpected.” But what is critical to the standard‘s application in this case is that the mechanic did not know when that moment would arrive. No mechanism on the elevator, for instance, signaled when the jam would yield or the chain would begin to move.
This case thus is unlike Reich v. General Motors Corporation, 89 F.3d 313 (6th Cir. 1996), on which Otis Elevator relies. In Reich, the machines under repair were specifically designed not to start up until an eight to twelve step process was completed, and “audible or visual signals * * * alerted servicing employees that the machines were about to start up.” Id. at 314-315. Here, by contrast, the only notice the mechanic had that the chain assembly would start moving was the movement itself. Indeed, as the Commission found, “the mechanic‘s own testimony shows that the release of energy surprised him.” Comm‘n Dec. at *3.
Otis Elevator also argues that the finding of unexpected energization contradicts the administrative law judge‘s finding that the mechanic “expected” the gate to move once he placed the chain back on to the sprocket. That argument misses the mark because it overlooks both (i) the Cоmmission‘s focus on when, not whether, the chain assembly would energize, and (ii) the Commission‘s full authority under the OSH Act to find facts independently without any deference to the administrative law judge.
2. Just as we find no factual error in the Commission‘s determinations, we hold that the Commission‘s application of the OSHA regulations to those substantiated facts was neither arbitrary nor capricious.
To begin with, the plain text of the lockout/tagout standard extends to the “unjamming of machines or equipment * * * where the employee may be exposed to the unexpected energization or start up of the equipment or release of hazardous
In that vein, the Commission‘s conclusion that the lockout/tagout standard applies also comports with the standard‘s preventative purpose. See Buffalo Crushed Stone, Inc. v. Surface Transportation Board, 194 F.3d 125, 128 (D.C.Cir. 1999) (“We will defer to the agency‘s interpretation so long as it ‘sensibly conforms to the purpose and wording of the regulations.‘“) (quoting Martin, 499 U.S. at 150-151, 111 S.Ct. 1171). As OSHA explained in promulgаting the final rule, one of “the most effective method[s] to prevent employee injury caused by the unanticipated movement of a component of a machine” is to “utilize a restraining device to prevent movement,” such as “by blocking material or components.” 54 Fed.Reg. at 36,647. Indeed, such blocking of the elevator gate was the very mechanism that Otis Elevator‘s own lockout/tagout procedures prescribed, but the mechanic omitted. Comm‘n Dec. at *2 n. 2; JA 383. That close similarity between the hazards identified in the preamble to the rule and the activity that prompted the citation rеinforces the reasonableness of the enforcement action. See Burkes Mechanical, Inc., 21 O.S.H. Cases (BNA) 2136, 2007 WL 2046814, at *5 (O.S.H.R.C.2007).
The Commission‘s decision also comports with prior agency decisions. In Dayton Tire, 23 O.S.H. Cases (BNA) 1247, 2010 WL 3701876, at *4 (O.S.H.R.C.2010), aff‘d in relevant part by Dayton Tire v. Secretary of Labor, 671 F.3d 1249 (D.C.Cir.2012), General Motors, 22 O.S.H. Cases (BNA) 1019, 2007 WL 4350896, at *3 (O.S.H.R.C.2007), and Burkes Mechanical, Inc., 2007 WL 2046814, at *4 n. 4, the Commission held that the lockout/tagout standard applied to repairs that, as here, provided the employees no advance notice of when the machine or equipment would release stored energy, see Dayton Tire, 2010 WL 3701876, at *4; General Motors, 2007 WL 4350896, at *3; Burkes Mechanical, Inc., 2007 WL 2046814, at *4 n. 4.
For those reasons, it was neither arbitrary nor capricious for the Commission to find that the lockout/tagout standard applied to the unjamming activity being performed by the Otis Elevator mechanic in this case.
B. Applicability of the Information Exchange Rule
The Commission cited Otis Elevator for failing to exchange its lockout/tagout procedures with the Boston Store before conducting the repair, as required by
The citation was factually reasonable because the Commission specifiсally found that the mechanic‘s repair work exposed Boston Store employees in the building to a zone of danger in that they “were present at the store and had access to the elevator gate while the Otis mechanic was servicing the elevator,” and the slamming down of the gate could have harmed a person in its path. Comm‘n Dec. at *4 n. 3 & *5 n. 8.
In this case, the Commission fairly read the exchange provision to bе a specification standard that presumes a hazard if information is not exchanged and, for that reason, categorically requires the exchange of lockout/tagout information in advance of any covered repair work. Comm‘n Dec. at *5 & n. 7.
To begin with, that reading is grounded in the regulation‘s plain text, which provides that the repair company and the on-site employer “shall inform each other” about their respective lockout or tagout procedures “whenever outside personnel are to be engaged in activities covered by the scope and application of this standard.”
The preamble to the rule‘s promulgation echoes the presumption of risk, explaining that the exchange provision “ensure[s] that both the employer and the outside service personnel are aware that their interaction can be a possible source of injury to employees and that the close coordination of their activities is needed in order to reduce the likelihood of such injury.” 54 Fed.Reg. at 36,680-36,681. Requiring the Secretary to prove actual risk on a case-by-case basis would erode the regulation‘s prophylactic protection.
Otis Elevator presses five challenges to the Commission‘s interpretation, but none of them succeed. First, Otis Elevator points to OSHA‘s Lockout/Tag-Out Compliance Directive, CPL 02-00-147 (Feb. 11, 2008), which establishes OSHA‘s enforcement policy for its lockout/tagout standard. The Directive, at one point, describes the information еxchange process as “performance-oriented.” OSHA Directive at 3-57. Read in context, however, the reference to “performance-oriented” applies to which energy control procedures to use—the ser-vice company‘s, the on-site employer‘s, or
The Directive, in other words, used its “performance-oriented” language to clarify that the mandatory exchange of information does not eliminate the service company‘s on-site discretion to select which of those exchanged procedures is most appropriately employed in undertaking a repair. Importantly, at no point does the Directive suggest that employers are free to choose whether they will comply with the information exchange provision at all. Quite the оpposite, the Directive states just a few sentences later that “[o]n-site employers and outside employers must inform each other of their respective [lockout/tagout] procedures.” Id. (emphasis added).
Second, Otis Elevator invokes a paragraph in the OSHA Directive stating that, “in all cases, the decision to issue § 1910.147 citations to the host or contractor employer should be based on all of the relevant facts and the established policy for exposing, creating, correcting, and controlling employers.” Id. at 2-31. But that provision simply empowers the Secretary to exercise prosecutorial discretion in issuing citations; it in no way invests regulated companies with the discretion to pick and choose whether and when to comply with the regulation.
Third, Otis Elevator argues that the Commission failed to consider “industry practice” that purportedly treats the information exchange obligation with greater flexibility. Because the Commission‘s interpretation of the regulation is reasonable, however, “no reference to industry practice is necessary.” Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1387 (D.C.Cir.1985).
Fourth, Otis Elevator objects that the Secretary‘s citation imposed a “new” interpretation of the regulation in the course of adjudication, without fair notice. But the Secretary‘s interpretation as adopted by the Commission is grounded in a reasonable reading of the regulation‘s text and purpose, and for that reason, this court must defer “even where the Secretary offers his interpretation in the context of litigation before the Commission.” S.G. Loewendick & Sons, Inc., 70 F.3d at 1294. That is because “[t]he Secretary‘s interpretation of OSH Act regulations in an administrative adjudication * * * is agency action, not a post hoc rationalization of it.”
To be sure, this court will not hew to that rule if the Secretary makes such an abrupt change to a longstanding interpretation that the cited party is effectively deprived of “fair notice.” See Fabi Construction Co. v. Secretary of Labor, 508 F.3d 1077, 1086-1089 (D.C.Cir.2007) (no deference where the Secretary had consistently excluded certain work from coverage under the regulation, and the Secretary‘s new reading was not discernible from regulatory text). But that is not this case. Otis Elevator has not identified any pattern of contrary practice by the Secretary or contrary interpretations by the Commission. Rather, Otis Elevator, “by reviewing the regulations and other public statements issued by the agency,” should have been “able to identify, with ascertainable cеrtainty, the standards with which the agency expects parties to conform.”
In sum, we hold that the Commission‘s finding that Otis Elevator engaged in maintenance activities covered by the lockout/tagout standard,
So ordered.