Pit & Quarry, January 2016

BY MICHAEL T HEENAN The role of machine guards A 12 lb piece of metal rotating rapidly in a small lathe broke loose and killed a machine operator This was not the first time a piece of metal broke loose but it was the first incident that caused injury And in this case the metal resulted in a fatal blow to the operators head The operators company had machine guards on all its lathes But the company had removed guards from smaller lathes like the one in the accident before this May 2009 accident The Occupational Safety and Health Administration OSHA cited the employer Loren Cook Co for violating the guarding standard at 29 CFR 1910212 a 1 and assessed penalties totaling 490000 The regulation states One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation ingoing nip points rotating parts flying chips and sparks Examples of guarding method are barrier guards two hand tripping devices electronic safety devices etc The company contested After a 20 day trial the presiding administrative law judge rejected OSHAs charges and vacated the penalties The judge reasoned the standard does not address catastrophic failure Contending that it correctly interpreted the regulation to require protection from anything that might be ejected OSHA appealed to the Occupational Safety and Health Review Commission The commission upheld the judge but OSHA appealed to the U S Court of Appeals for the Eighth Circuit where a three judge panel rejected the earlier decisions and upheld OSHA The court deferred to OSHA about how its regulations are to be interpreted Deference denied The decision of the three judges for OSHA did not hold up Loren Cook requested review en banc meaning review by all the courts judges to determine whether the three judges were correct in upholding OSHA When the court reviewed the case en banc a majority of judges said the three judge panel was wrong The opinion was amended to decide for the company The majority opined OSHAs interpretation of its regulation was not CONTINUOUS VIGILANCE FOR AREAS AND ACTIVITIES THAT COULD SUDDENLY BECOME DANGEROUS IS ESSENTIAL entitled to deference for three reasons OSHAs interpretation was not reasonable in that it strains a common sense reading OSHA had not previously interpreted the standard to apply to the ejection of large objects from a lathe and OSHAs announcement of an unprecedented interpretation in an after the fact citation amounted to unfair surprise Four judges did not side with the majority en banc They disagreed that OSHAs conclusion was unreasonable They considered it appropriate for OSHA to expand its evolving interpretation to address a broader array of accidents that could result from the lack of a machine guard For example approximately two weeks before the incident that killed the worker a workpiece from a small lathe It is not uncommon for resolutions to flip flop End results will depend on how far a case goes and which judges review the case shot out and narrowly missed a worker twenty feet away the dissenters said They said the secretarys interpretation should be upheld They acknowledged OSHAs after the fact interpretation was a surprise to the company but said that could be dealt with by a reduction in penalty It is not uncommon for resolutions to flip flop End results will depend on how far a case goes and which judges review the case The result in this case could change if OSHA obtains review by the U S Supreme Court MSHA guarding comparison A similar case could arise in the Mine Safety and Health Administration MSHA world MSHA has similar guarding requirements The regulation at 30 CFR 56 5714107 a states Moving machine parts shall be guarded to protect persons from contacting gears sprockets chains drive head tail and takeup pulleys flywheels couplings shafts fan blades and similar moving parts that can cause injury Separately 56 5714110 states In areas where flying or falling materials generated from the operation of screens crushers or conveyors present a hazard guards shields or other devices that provide protection against such flying or falling materials shall be provided to protect persons Sometimes MSHA has been ac Continued on page 60 56 PIT QUARRY January 2016 www pitandquarry com