___________________________________
)
EDISON ELECTRIC INSTITUTE, )
TAMPA ELECTRIC COMPANY, )
CONSOLIDATED EDISON CO. OF )
NEW YORK, INC. FLORIDA POWER )
AND LIGHT COMPANY and )
FLORIDA POWER CORPORATION, )
)
Petitioners, )
)
v. ) No. 93-2251
)
OCCUPATIONAL SAFETY & HEALTH )
ADMINISTRATION, U. S. )
DEPARTMENT OF LABOR, )
)
Respondent. )
___________________________________)
Petitioners Edison Electric Institute (EEI), Tampa Electric Company, Consolidated Edison Co. of New York, Inc. and Florida Power Corporation, and Respondent Occupational Safety and Health Administration (OSHA), by their undersigned counsel, hereby enter into this Settlement Stipulation and respectfully move that it be entered as an Order of the Court:
1. On January 14, 1993, OSHA promulgated a final occupational safety standard regarding Permit-Required Confined Spaces, 29 C.F.R. 1910.146. The final rule is published at 58 Fed. Reg. 4462 (January 14, 1993) (hereinafter "PRCS").
2. On March 11, 1993, Petitioners filed a Petition for Review of the PRCS (No. 93-2251). On April 7, 1993, Petitioners filed a Petition for Stay Pending Judicial Review. The Petition for a Stay was addressed by a Stipulation between the parties filed April 14, 1993.
3. On January 31, 1994, OSHA promulgated final occupational safety standards titled Electric Power Generation, Transmission and Distribution; Electrical Protective Equipment; Final Rule, 29 CFR 1910.269 and 29 CFR 1910.137 (hereinafter "Electric Power"), respectively. The final rules are published at 59 Fed. Reg. 4320.
4. On March 28, 1994, the Petitioners filed a Petition for Review of Electric Power in this Court (No. 94-2389).
5. As promulgated, the requirements of Electric Power were to become effective on May 31, 1994, except for 29 CFR 1910.269(a)(2), which is to become effective January 31, 1995. On March 4, 1994, the Petitioners requested OSHA to delay administratively the effective date of Electric Power.
6. Petitioners and OSHA enter into this Settlement Stipulation to resolve the Petition for Review of the PRCS, and to resolve without litigation Petitioners' request for a delay of the effective date of the Electric Power standard.
7. Petitioners hereby withdraw their Petition for Review of the PRCS in No. 93-2251, with prejudice, and Petitioners and OSHA hereby agree as follows as to OSHA's interpretations of the PRCS:
A. Attached hereto as Exhibit A is a letter, dated March 12, 1993, from Mr. H. Berrien Zettler, OSHA's Deputy Director of Compliance Programs, to Stephen C. Yohay, counsel for Petitioners. The letter is hereby incorporated into this Stipulation with the following amendment:
The last sentence of Paragraph D. 2. is amended to state as follows: The survey requirements can be met through existing records and knowledge of the spaces, provided this information is adequate to make the determinations required by the standard.
B. Pursuant to 29 CFR 1910.146(b), including the definition of the term "permit-required confined space," the PRCS standard is intended to protect employees against short-term acute hazards that present an immediate danger of death or impairment, and/or restrict an employee's ability to escape from the confined space. The presence of a toxic substance, such as arsenic, asbestos or welding fumes, at a level that does not have the potential to be immediately dangerous to life or health, does not trigger requirements under the PRCS standard.
C. OSHA will shortly issue a Compliance Directive addressing the PRCS and will include in it the following question and answer:
Q. Are the examples in the preamble at 58 Fed Reg. 4490-4491 and note 15 of instances in which hazards will be deemed eliminated from confined spaces by compliance with 29 CFR 1910.147 and 1910.303 exclusive?
A. No. The principle embodied in the preamble that hazards will be deemed removed from confined spaces by compliance with existing standards applies to any standard that eliminates the hazard.
D. The hazards numbered 4 through 7 contained in the list entitled "Types of Hazards" distributed as part of OSHA training course No. 226, given in Tampa, Florida February 9-12, 1993, and attached to this Stipulation as Exhibit B, do not constitute "recognized serious safety or health hazards" within the meaning of 29 CFR 1910.146(b), unless the hazards are so severe as to pose an immediate danger to life or health or impairment of an employee's ability to escape from the space.
E. The mere presence of water in a confined space such as a manhole does not in and of itself trigger application of the PRCS to work in that space.
F. OSHA agrees to include in its forthcoming Compliance Directive on the PRCS the agency's interpretations of the PRCS standard stated in Mr. Zettler's letter, and in paragraphs 7. B., C., D and E, above. While OSHA cannot agree to include these interpretations in all future Compliance Directives relating to the PRCS, OSHA agrees that these represent its contemporaneous interpretations of the PRCS standard as of the date of this Stipulation.
8. Petitioners agree not to petition the Court in No. 94-2389 for a stay of the Electric Power standard, and Petitioners and OSHA agree as follows as to the effective date of the Electric Power standard:
A. The effective date of the following provisions of 29 CFR 1910.269 is extended to and including October 31, 1994. If it appears to OSHA at or before that time that Petitioners (including other member companies of EEI) genuinely need additional time to comply with some provisions of the standard, OSHA will extend the effective date of those sections until January 31, 1995:
1. 1910.269(b)(1)(ii);
2. 1910.269(d), except for (d)(2)(i) and (iii)
3. 1910.269(e)(2) and (3);
4. 1910.269(j)(2) (iii);
5. 1910.269(1)(6) (iii); See also discussion in paragraph B. below;
6. 1910.269(m);
7. 1910.269(n)(3), (4)(ii) and (8);
8. 1910.269(n)(6) and (7) insofar as they apply to grounding lines or equipment operating at 600 volts or less;
9. 1910,269(o), except for (o)(2)(i);
10. 1910.269(r)(1)(vi)
11. 1910.269(u)(1), (4) and (5);
B. With respect to 1910.269(g)(2) (Fall Protection Equipment) and 1910.137(a)(Class O Blankets) and 1910.269(1) and (n), OSHA will accept a purchase order as compliance with the clothing and equipment requirements of these provisions. OSHA will not issue citations to employers who have timely ordered, but not received, such goods. Also, as to 1910.269(1), OSHA will issue a technical clarification on the types of fabrics that meet the requirements of this provision. OSHA will consider the views of the Petitioners and other interested parties in determining the content of the technical clarification and the time needed to implement it. As noted, OSHA will not issue citations or impose penalties on employers who have timely ordered, but not received, conforming apparel. This does not mean, however, that employers are required by the standard to pay for clothing addressed by 1910.269(1)(6)(iii).
C. OSHA agrees that the effective date of 1910.269(v)(11)(xii) is extended to and including January 31, 1996.
D. Nothing in this Stipulation will be deemed as waiving or prejudicing in any way Petitioners' right to pursue on the merits their Petition for Review of the Electric Power Standard in No. 94-2389, including a technical clarification of 1910.269(1)(6)(iii). Petitioners and OSHA agree, however, to request that the Court hold the Petition for Review in abeyance and assign it to the Court's Settlement Office to permit the parties additional time to discuss settlement.
9. Petitioners and OSHA shall each bear their own costs and attorneys' fees in connection with the matters addressed in this Stipulation.
10. Petitioners and OSHA respectfully move that the Court approve this Stipulation and that the Stipulation be entered as a Consent Order of the Court.
DATED: May 27, 1994 Respectfully submitted,
_______________________
Stephen C. Yohay
Amy E. Hancock
McDERMOTT, WILL & EMERY
1850 K Street, N.W.
Washington, D.C. 20006
(202) 887-8000
Counsel for Edison Electric
Institute.
Thomas S. Williamson, Jr.
Solicitor of Labor
Joseph M. Woodward
Associate Solicitor of Labor
for Occupational Safety
and Health
_______________________
Ann Rosenthal
Counsel for Appellate Litigation
Charles F. James
Attorney
OFFICE OF THE SOLICITOR
U.S. Department of Labor
200 Constitution Avenue, N.W.
Room 5-4004
Washington, D.C. 20210
(202) 219-7718
Counsel for the Secretary of
Labor
Attachment A
March 12, 1993
Mr. Stephen C. Yohay
McDermott, Will and Emery
1850 K Street, N.W.
Washington, D.C. 20006-2296
Dear Mr. Yohay:
This is in response to your letter of February 18 regarding concerns of the members of the Edison Electric Institute about OSHA's Permit Required Confined Space standard, 29 CFR 1910.146 (confined spaces or PRCS standard). It also summarizes the extended discussion between you and your clients and OSHA and Solicitor of Labor staff on February 22, at which occasion your letter served as an agenda.
First, I will summarize the major, general points made at the meeting, and then will address the specific questions in your letter.
1. The Permit Required Confined Space standard covers electric power generation, transmission and distribution facilities and will continue to do so with respect to those spaces and situations which are not explicitly addressed in the forthcoming specific standard for the power generation industry, 29 CFR 1910.269 Electric Power Generation, Transmission and Distribution (the "power generation standard").
2. The power generation standard was published as a proposal in 1989. It was, as your colleague, Mr. Platt, notes in correspondence to the Secretary, based on electric utility industry and union inputs, among other sources. When it becomes a final standard, it will resolve many of the significant problems the industry has in complying with the general industry confined space standard.
3. OSHA accepts compliance with the proposed power generation standard, in the spaces and situations where it will apply, as equivalent to compliance with the confined space standard. That is to say, OSHA will neither issue citations nor propose penalties where the employer has appropriately carried out the requirements of the proposed power generation standard. This policy is consistent with long-standing agency practice; specific procedures are spelled out in the OSHA Field Operations Manual (CPL 2.45B et seq.) whereby compliance with proposed standards in lieu of existing applicable standards is treated as a de minimis violation of the Occupational Safety and Health Act, carrying no penalties and resulting in no citations, as long as this practice affords equivalent protection to employees.
EEI's Questions and Concerns
A. "General Concerns". As indicated above, OSHA recognizes that the proposed power generation standard represents significant consensus by the electric utility industry and unions, and that it reflects practices already being implemented in that industry. We agree that the final standard, which we expect to be substantially similar to the proposal, will eliminate many of the specific problems raised in your letter.
B. Regarding the Need for a "Vertical standard for Electric Utilities." As indicated above, OSHA agrees that a standard is necessary for electric power generation, transmission, and distribution work and is moving toward its promulgation as rapidly as resources and good workmanship allow. The Agency recognizes that there are problems associated with performing similar types of work under differing construction and general industry standards. Should ambiguities remain, they will be addressed through interpretation of existing standards and through guidance to OSHA's enforcement staff through compliance directives. It is presently the intention of the Agency to propose a revision of Subpart V of the Construction Standards after final 1910.269 is published.
C. Urging that "Electric Utilities...be excluded from the PRCS for the same reasons that shipyards were excluded." As noted in the general comments above, promulgation of an electric power generation, transmission, and distribution standard will address the electric utilities concerns and will treat them "equally" with shipyards. Note that, like the shipyards, they will not be required to implement the PRCS standard only to have to comply with a new and vastly different vertical standard after a short time. For all practical purposes, the electric utilities industry is protected from any "whip-saw effect" by simply complying with the proposed power generation standard where it applies and with the PRCS standard where the proposal does not apply.
D. Regarding the Effect of PRCS on Operations and Customer Service.
1. Definition of permit required confined space. As indicated in our discussion, energized equipment will not trigger permit entry requirements if it is insulated, or enclosed. Where electric equipment is insulated or enclosed and where there are no atmospheric or other hazards which, in their own right, would trigger PRCS requirements, no permit is required.
Additionally, where employees are exposed to atmospheric or other toxic hazards which do not present an immediate danger of death or disability that would render the employee unable to escape from the confined space (e.g., air contaminants such as arsenic or asbestos), OSHA's health standards for those hazards apply rather than 1910.146, and employees must be appropriately protected in accordance with those health standards. The PRCS standard is intended to protect employees against specific short-term, acute hazards (not exposures at or below the permissible exposure limits); other standards address a broader range of health and safety concerns.
2. Initial Survey of Facilities. We agreed that the tens of thousands of manholes owned by the utilities need not be physically surveyed to determine whether they are permit required confined spaces. The survey requirement can be met through existing records and knowledge of the spaces.
3. Definition of Entry. While the standard defines the process of "entry" into a confined space as beginning with the insertion of any part of the body into that space, it defines as confined spaces only those areas that can contain the whole body, and not cabinets or control panels which are accessed by simply reaching in to turn a valve or a switch. This is stated explicitly in the preamble to the final rule (page 4477 column 2 of the final 1910.146 standard).
4. Definition of Hazardous Atmosphere. We agreed that the term "lower flammable limit" is-synonymous with the older term "lower explosive limit". The utilities are free to use either term in their PRCS programs. Regarding flammable dusts in confined space, it will be OSHA policy to sample and to analyze such dusts for combustibility, prior to issuing citations, whenever there is doubt as to the nature and extent of the dust hazard. Note that existing permissible exposure limits for nuisance dusts and other standards continue to apply. The note in the final standard (at the definition of "hazardous atmosphere") provides additional guidance on this topic.
5. "Declassification" of permit required spaces. As discussed on February 22, the standard provides simple criteria for classifying and re-classifying spaces. Once a space has been reclassified as a non-PRCS, it remains reclassified as long as all hazards remain eliminated. The basis for classification must be documented. With regard to the documentation required by paragraph (c)(5), it must be kept until the job is completed and there will be no further entry of the space in question. (Refer to 29 CFR 1910.146, paragraphs (c)(5) and (c)(7))
6. Attendants. Attendants may conduct rescue from outside the confined space, using (for example) harnesses and lanyards. The attendant, for obvious reasons, may not enter the space to perform a rescue unless he or she is properly relieved by another employee who is properly qualified to assume attendant responsibilities. This precaution, with other safeguards, will prevent the possible injury or death of the rescuer. The proposed power generation standard under 1910.269(e)(5) requires stationing of an attendant trained in basic first aid at an enclosed space, under certain circumstances, to provide emergency assistance. This proposed language reflects OSHA' s intent to have attendants help enclosed space entrants outside the spaces (i.e., providing first aid), rather than to have attendants enter spaces to rescue entrants. In addition, 1910.269(t)(3)(ii), cited in your letter, provides that an attendant may enter a manhole for inspection, housekeeping, taking readings, or similar work, if such work can be performed safely. A third person to act as relief for the attendant is not required. An attendant who is properly trained and equipped may conduct non-entry rescue. Neither the PRCS standard nor proposed 1910.269(e)(5) permits attendants to enter permit spaces to rescue entrants, unless the "attendant" has been properly trained, equipped, and relieved. (An attendant required under 1910.269(t)(3) would be permitted to enter the space for rescue purposes, as long as it is safe to do so.)
7. Rescue. The confined space standard and the proposed power generation standard differ as to their requirements for retrieval lines, harnesses, etc. Compliance with the proposed power generation standard when working in manholes and other covered locationS will avoid the problems enumerated in your letter. Note that retrieval lines are not required in all cases -- if the employer can demonstrate that retrieval lines are not feasible (are a greater hazard or would not contribute to rescue of an entrant), they are not required. If retrieval lines are not required, then tripods or other mechanical retrieval devices are also not required.
8. Administrative Burdens and Paperwork. The documentation requirements of the confined space standard were carefully reviewed during the promulgation process, including a thorough regulatory analysis of paperwork burdens and other costs. We found that the burdens imposed by the standard were justified and cost-effective.
E. Coverage of Electric Utilities in 1910.146. The proposed power generation standard does cover manhole entry and other similar industry-specific tasks; until it is promulgated, electric utility employers have the option of complying with the more general 1910.146 standard, or with the industry- specific 1910.269 proposed standard, as long as the serious hazards are addressed by compliance with the chosen standard.
With respect to electric utility work in manholes and vaults, for example, OSHA would apply 1910.146 only in the event that procedures taken under proposed 1910.269(e) and (t) do not adequately protect employees. As an illustration, the Agency would apply 1910.146 to work in a manhole where a water hazard that could not be eliminated from outside the space and that would pose a life- threatening hazard to an entrant is present. The presence of water alone would not be a basis for applying the PRCS standard; there must be a quantity sufficient either to endanger the life of the entrant or to interfere with escape from the space. In such cases, the provisions proposed in 1910.269 would not address the hazards involved.
When our meeting ended, we indicated that we would summarize our oral responses, in writing, as a reply to your letter of February 18; you indicated that you would send an additional letter, requesting further clarification on specific points. In a later conversation with Ray Donnelly (General Industry Compliance Assistance), you indicated that no additional letter would be sent at this time.
If you have questions or additional comments about any of the foregoing, we will welcome them.
Sincerely,
H. Berrien Zettler
Deputy Director
Compliance Programs
Attachment B
Attachment C
1. OXYGEN DEFICIENCY
2. COMBUSTIBLE/FLAMMABLE/EXPLOSIVE ATMOSPHERES
3. TOXIC GASES OR VAPORS
4. PHYSICAL HAZARDS
* GRINDING FALLING/TRIPING
* AGITATORS OTHER MOVING
* STEAM PARTS
* MULCHING
5. CORROSIVE CHEMICALS
6. BIOLOGICALS
7. UNKNOWNS
A. ELECTRICAL
B. RODENTS/SNAKES/SPIDERS
C. LIGHTING (POOR VISIBILITY)
D. WIND
E. WEATHER
F. INSECURE FOOTING