Page 57 - MetalForming May 2016
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  $510,000 proposed penalties related to these seven previously uncited spinning machines. Backing up, OSHA had cited the 1910.212 operator-ingress-protection standard not for oper- ator-access exposure but only for not guarding against the ejection of workpieces. In an appeal of Judge Welsch’s dis- missal decision, it was admitted that OSHA had never before issued a citation such as the one issued to Loren Cook.
OSHA basically argued that it could change and interpret any OSHA standard through an unprecedented citation because a U.S. Supreme Court case, CF&I Steel/Martin v. Occupational Safety and Health Review Commission (the 1991 “Martin” case), 499 U.S. 144, allowed it to re-interpret “rotating parts” of machinery, stretching the term to mean fly- ing ejected workpieces.
Judge Welsch determined in Loren Cook that:
• “The hazards...share the nature and quality of being cre- ated by the routine operation of the machine.
• “Point of operation, ingoing nip points, rotating parts, and flying chips and sparks” are the normal, expected result when running the machine.
• An ejected workpiece is not of the same nature and quality of the listed hazards. It is the result of a machine mal- function. The “flying sparks and chips” listed in the standard are qualitatively different from the 12-lb., almost 3-ft.-dia.
workpiece that the lathe ejected on May 13, 2009. Chips and sparks are the by-product of a routine process—they are not the product itself.
As the judge related, Section 1910.212(a)(1) lists point of operation, ingoing nip points, rotating parts, and flying chips and sparks as hazards that must be guarded against. OSHA did not allege any of these hazards in the alleged vio- lation descriptions (AVDs). Instead, it was alleged that Loren Cook failed to protect its employees from “metal parts and debris being ejected from the machine.”
The judge also noted that a certified safety and health official (CSHO) testified that OSHA did not cite Loren Cook for a point-of-operation violation under § 1910.212(a)(1) (Tr. 717-718). The CSHO also acknowledged that OSHA did not cite the company for an ingoing nip-point violation in any of the seven AVDs. OSHA’s expert Dennis Cloutier tes- tified that the lathes at issue did not present a hazard with respect to points of operation, ingoing nip points or rotat- ing parts. And, there is no evidence in the record showing that the lathes created flying sparks or chips during their operation.
“The court determines, based on the clear language of § 1910.212(a)(1), that the cited standard does not apply to ejected workpieces cited in this proceeding. Accordingly,
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