October 3, 1986

Mr. Stephen C. Yohay
Law Offices
McGuiness & Williams
Suite 1200
1015 Fifteenth Street, N.W.
Washington, D.C. 20005

Dear Mr. Yohay:

This letter is in response to your letters of August 28, September 9, and September 12, on behalf of Edison Electric Institute, requesting the Occupational Safety and Health Administration (OSHA) to reconsider and stay the application of the recently revised Subpart K of 29 CFR Part 1926, Electrical Standards for Construction, to the electrical utility industry.

We have reviewed the materials submitted in support of EEI's request, and we believe that many of EEI's concerns result from misunderstandings with respect to the scope and intent of the revised regulations. We welcome the opportunity to discuss the issues further with you. However, in light of the analysis set forth below, we must deny EEI's request for either withdrawal or a stay as to the whole of revised Subpart K as it affects the electric utility industry. With respect to two of EEI's specific concerns, we find that it would be appropriate to stay the applicability of 29 CFR 1926.417 as requested, if EEI submits an application for variance as to that section. Additionally, since we have determined that 29 CFR 1926.432(a) does not apply to power generating installations, we consider that no stay is needed to grant relief from that provision.

Three major areas of concern are raised in your correspondence: (1) the scope of the "utility exclusion" in 1926.432(b), (2) the "identified for use" provision for electric equipment set forth in 1926.432, and (3) the "lockout and tagging" requirement of 1926.417. We will address each of these areas in turn, after a preliminary discussion of the intended scope of application of Subpart K, which may provide a useful background.

We have noted that many of the points raised in the materials A submitted are concerned with the impact that EEI anticipates Subpart K will have on existing electrical installations in utility workplaces. In our view, these concerns are unfounded. Put simply, the bulk of the revised standard, 1926.402 through 1926.408, is directed at a very narrow area, namely electrical utilization installations that are put into place as part of a construction effort. Thus, as paragraph 1926.402(a) makes clear, the installation safety requirements of 1926.402-1926.408 apply only to installations of electric utilization equipment, not generation equipment. Additionally, the existing permanent electrical installations, including utilization installations, are not covered by 1926.402-1926.408 if those installations are in place at the time the construction work begins. For these reasons, we believe that there will be minimal, if any, impact of 1926.402-1926.408 on the existing installations in utility facilities.

We turn now to your specific concerns:

(1). The "utility exclusion". To summarize the points contained in the section, a major area of concern identified in EEI's correspondence relates to the perceived alteration of the "utility exclusion." EEI is concerned that OSHA has narrowed this exclusion in its Subpart K revision. The following section makes three points: first, the only change that we have made in the exclusion has been to broaden it to include, not only utility power generation installations, but non-utility, industrial power generation installations, as well. Second, it is apparent from EEI's correspondence that EEI has a somewhat different understanding of the scope of the exclusion than the Agency does, but that difference is irrelevant to the request for stay of the revised standard, because it relates to the pre-existing scope of the exclusion, which was carried forward in the revised standard, and would equally apply even if the revised standard were-stayed and the old standard were in effect. Third, EEI's understanding of the scope of the exclusion is incorrect. The exclusion by its plain terms applies only to generating "installations," not entire plants. Moreover, the exclusion is taken from the National Electrical Code and applies by its terms only to OSHA provisions that stem from that source. We discuss these points in turn below.

As is clear from a comparison of the language, and as OSHA expressly stated in the preamble at p. 52299, the only change made by the new wording of the exclusion is that the exclusion is now broadened to make it available to installations devoted to power generating without regard to whether they are-owned and operated by a utility. Thus, OSHA's purpose in revising the utility exception was to extend it to nonutilities which also generate electric power. This extension was based on the Agencies determination that the hazards and necessary precautions relating to the facilities and working conditions involved in electric power generation are not dependent on whether the generating facility is owned by an electric utility. Whereas the NEC exclusion applied to generation installations only if they were "under the exclusive control of electric utilities... located in buildings used exclusively by utilities for such purposes or located outdoors on property owned or leased by the utility...," the Subpart K exception is worded to apply to all generation installations, regardless of their location or ownership. In our view, this clearly broadens the exclusion, and in no way narrows that exclusion as it applies to utilities.

It appears that there is some difference between the Agency and EEI regarding the scope of the utility exclusion, but this difference is irrelevant to the request for a stay, because it relates to the pre-existing scope of the exclusion and would remain in interpreting the old standard even if a stay of the revised standard were granted. Moreover, EEI's understanding of the reach of the exclusion is incorrect.

29 CFR 1926.402(b) provides that the installation provisions of the standard, 1926.402-1926.408:

. . . Do not cover installations used for the generation, transmission, and distribution of electric energy, including related communication, metering, control, and transformation installations. (However, these regulations do cover portable and vehicle-mounted generators used to provide power for equipment used at the jobsite.)

The National Electrical Code, which was previously incorporated by reference in former Subpart K and which is set forth in 29 CFR Part 1910, Subpart S at 29 CFR 1910.302(a)(2)(v) does not apply to:

Installations under the exclusive control of electric utilities for the purpose of communication or metering; or for the generation, control, transformation, transmission, and distribution of electric energy located in buildings used exclusively by utilities for such purposes or located outdoors on property owned or leased by the utility or on public highways, streets, roads, etc., or outdoors by established rights on private property.

It appears from your submissions that EEI reads the NEC exclusion to apply to "buildings used by electric utilities," which it considers to be broader than the 1926.402(b) exception which applies to "installations used for the generation, transmission and distribution" of electric energy, with no reference to buildings. Based on this construction, we read EEI's submission to contend that the NEC exception provided a total exception from coverage of former Subpart K for utility buildings that house generation installations, while the present Subpart K exception only excepts the generation installations themselves.

The exclusion itself refers to installations and not necessarily to entire utility buildings. The reference to buildings under the exclusive control of electric utilities" appears in a subordinate clause, which serves to limit the types of locations in which generation installations are not covered by the NEC. Moreover, it is clear that the NEC exclusion does not apply to utilization installations used to provide light and heat in the workplace. All of the "exclusions" set forth in the National Electrical Code are stated in terms of "installations" which are used for a certain purpose. The term "installation" is clarified in the general statement of applicability of the NEC in Article 90-2, as meaning an installation of "electrical equipment and conductors." Thus, the exclusion for electric utilities applies to an installation of electrical equipment and conductors used for generation, transmission, and distribution of electric power, and not to installations used for other purposes, regardless of the building in which they are housed.

Further, the suggestion that utility facilities should be excluded from all of Subpart K, not just 1926.402-1926.408, also appears to us to be based on a misconception. EEI's view is in conflict with the clear language of the provisions of previous Subpart K, which have been applicable to all construction work (including electric utility construction work) since they were adopted in 1971. Thus, former 1926.400(a) stated that all electrical work "shall be in accordance with the pertinent provisions of the National Electrical Code, NFPA 70-1971 ... unless otherwise provided by regulations of this part" (emphasis added). Subpart K goes on to list a number of additional requirements which are not derived from the NEC, and therefore are not subject to that code's utility exclusion. These are independent requirements which all employers engaged in construction work must observe (29 CFR 1910.12(a)).

EEI also contends that electric power generation is excluded from all of Part 1910 Subpart S and that the exclusion in Subpart K should be applied the same way. However, Subpart S presently contains only installation safety requirements. These are not relevant to generation installations because they are taken from the NEC, which does not apply to electric utility power generation. In Subpart K, only 1926.402-1926.408 address installation hazards and, therefore, embody NEC requirements. (There is one exception to this statement: 29 CFR 1926.432, which also embodies an NEC requirement, which we address at point (2) below.) The other provisions embody work practice requirements which have no counterpart in Subpart S or the NEC, and are, therefore, not subject to the utility exclusion.

(2). The "identified for use" provision. Section 1926.432 addresses hazards related to environmental deterioration of equipment. EEI has expressed concern about the application of 1926.432(a) to electric power generation facilities. OSHA has reviewed this new provision and has determined that it cannot be applied without reference to the installation safety requirements of 1926.402-1926.408. This determination is logical since the requirement that equipment used in certain areas be "identified for use" in such areas by testing laboratories had its source in the 1981 National Electrical Code, as did 1926.402-1926.408. The term "identified for use," which by definition involves a determination of suitability by a qualified testing laboratory, is a concept that was not intended to apply to power generating installations, therefore, we acknowledge that this provision does not apply to such installations. We, therefore, consider EEI's request for a stay to be inapposite. No stay is needed.

(3). The "lockout and tagging" requirement. The primary specific concern expressed in your petition and supporting affidavits appears to involve the application of the "lockout and tagging" provision of the standard, 29 CFR 1926.417.

That provision, titled "Lockout and tagging of circuits," requires that "equipment or circuits that are deenergized shall be rendered inoperative ..." (1926.417(b)). This provision was taken without change from the existing requirements of Subpart K, but EEI contends that it will inflict a major burden on electric utilities. Thus, for example, C. Richard Chapin states in his affidavit that if this provision requires all disconnects used for deenergization of equipment or circuits to be tagged and locked, it would be impossible to comply in most power plants and additionally would breed confusion, due to inconsistency with other OSHA regulations, notably 29 CFR 1926.950(d)(1).

It should be noted that the regulation does not by its terms specify that the means of rendering equipment "inoperative" must be a lock. Moreover, the Agency recognizes, based on your affidavits, that there may be unique elements of utility power generation facilities that would make the application of locks or other means of rendering-equipment inoperable impracticable. Further, we are aware of the detailed tagging programs and comprehensive training that accompanies these programs in the electric utility industry. These programs are referred to in the affidavit of Robert Macdonald, Director, Utility Department, IBEW. Because the substantive requirement of 1926.417 is currently in place, independent of any action being taken by OSHA in this rulemaking and because the rule-making record fails to demonstrate any reason to modify the requirement for ordinary construction work, the Agency intends to maintain 1926.417 in its current form. However, in recognition of the unique aspects of utility power generation installations, we are willing to grant a stay of the application of 1926.417 to such installations, if EEI will promptly file a petition for a variance from the standard, in accordance with Section 6(d) of the OSH Act (29 USC 655(d)) and 29 CFR 1905.11, and an application for an interim order. The variance procedure will provide an opportunity for electric utilities to demonstrate the efficacy of their tagging systems, while the temporary stay of 1926.417 and the interim order would enable the utility industry to continue to use its current systems in construction work without risk of citation for violation of 1926.417, pending the Agency's determination in the proceeding.

I hope that these discussions and clarifications have addressed the major concerns that EEI expressed in its submissions to the Agency. We would welcome a further opportunity to sit down and discuss these matters with you in person, in order to iron out any further misunderstandings that may exist relating to the revision of Subpart K. I look forward to continuing our ongoing constructive relationship with EEI, and am confident that we can resolve our differences.

Sincerely,



John A. Pendergrass
Assistant Secretary for
Occupational Safety and Health

[Corrected 11/06/06]