Gary Visscher, Esq.
Review Commission Vacates Citation on Meaning of “Maintenance”
Does equipment “maintenance” include machine set up and adjustment? That was the question in a recent decision by the OSH Review Commission, in a case construing the Lockout/Tagout (LOTO) provision in the Concrete and Masonry Construction standard, 29 CFR 1926.702.
OSHA issued a citation against the employer after an employee was injured on a machine used to cut and bend rebar. The employee’s job included removing and replacing cylinders in the equipment in order to accommodate various sizes of rebar. The employee was removing a cylinder when the machine accidentally started, trapping and injuring the employee’s hand. Although the manual for the machine stated that the machine should be turned off and power locked off when changing cylinders, the employee testified that he never did so.
OSHA cited the company for an alleged violation of 1926.702(j)(1), which states that “No employee shall be on permitted to perform maintenance or repair activity on equipment…where the inadvertent operation of the equipment could occur and cause injury, unless all potentially hazardous energy sources have been locked out and tagged.”
The Review Commission held that the standard did not apply to the activity involved, because the employee was not performing “maintenance” of the equipment. Instead, with reference to the dictionary definition of the term, the Commission said, “maintenance” under the Concrete and Masonry Construction standard applies only to “care, upkeep” of equipment.
The administrative law judge had found that the meaning of the standard’s reference to “maintenance” was ambiguous, and therefore OSHA’s interpretation in the enforcement case should be afforded deference. However, the Commission said that in the absence of a definition of “maintenance” in the standard, the dictionary definition should apply. The dictionary definition of “maintenance” (according to Webster’s 3rd New International) is “the labor of keeping something (as buildings or equipment) in a state of … efficiency”; “care, upkeep.”
The Commission noted that the general industry LOTO standard (1910.147) defines “servicing/maintenance,” and includes “making adjustments or tool changes.” The ALJ had relied in part on the general industry standard’s definition in finding that removing/replacing cylinders on the rebar cutting and bending equipment in this case was equipment “maintenance.” However, the Commission said that the fact that the general industry standard’s definition of “maintenance” was not included in the Masonry and Concrete Construction standard is evidence of OSHA’s intention not to apply the same definition in the latter.