June 13, 2003

Mr. Carl D. Behnke
Vice President
Human Resources and Corporate Services
Edison Electric Institute
701 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

Dear Mr. Behnke:

Thank you for your March 24, 2003 letter commenting on the Occupational Safety and Health Administration's (OSHA's) draft revision of Instruction CPL 2-1.18A, Enforcement of the Electric Power Generation, Transmission and Distribution Standard.

As you know, when OSHA published that revision as Instruction CPL 2-1.38 (the "directive") in October 2002, it reserved portions for additional consideration. Since that time, the Agency has considered Edison Electric Institute's (EEI's) written and oral comments, as well as comments from the Exelon Corporation and the International Brotherhood of Electrical Workers (IBEW). These comments have been quite useful, and the final version of the directive will reflect this input.

Your March 2003 letter raised both substantive suggestions about the content of CPL 2-1.38 and procedural concerns about the manner in which OSHA was developing it. As explained below, we do not agree with premises underlying EEI's procedural challenges. OSHA does, however, agree with several of EEI's substantive suggestions, and is modifying the directive accordingly.

Procedural Issues

According to your letter, OSHA should not issue the directive because: (1) given the discussions among EEI, IBEW, and OSHA that led to EEI withdrawing its challenge to 29 CFR 1910.269, OSHA cannot unilaterally issue a directive concerning the standard; (2) portions of the directive reflect new or modified policies that must be adopted pursuant to rulemaking procedures, including compliance with the Small Business Regulatory Enforcement Act, 5 U.S.C. 801-808; and (3) given the relationship between 29 CFR 1910.269 and OSHA's Lockout/Tagout standard, 29 CFR 1910.147, OSHA should not finalize the 1910.269 directive until it finalizes a revised 1910.147 directive.

First, it is not my understanding that OSHA agreed to negotiate the provisions of future directives with EEI or any other party, and in fact the written record suggests otherwise and any such agreement would be inconsistent with longstanding government policy. In the May 1995 settlement stipulation in EEI v. OSHA, 11th Cir. No. 93-2251, which resolved both your challenge to OSHA's Permit-Required Confined Spaces (PRCS) standard, 29 CFR 1910.146, and some aspects of your challenge to the Power Generation standard, OSHA agreed to include certain interpretations of the PRCS standard in a compliance directive. The stipulation makes clear, however, that "[w]hile 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." The stipulation also refers to the parties' ongoing efforts to settle EEI's challenge to the Power Generation standard. Although no settlement agreement ever was executed, EEI eventually withdrew its challenge unilaterally. OSHA made no commitments in resolving that case.

Second, we do not agree that portions of the draft appendices to CPL 2-1.38 "would significantly amend §1910.269" so that the Agency must make these amendments through notice and comment procedures. Specifically, the directive will not impose new lockout/tagout requirements when a group of employees is engaged in servicing and maintenance activities. Instead, it will state the standard's existing requirement, which is embodied in the text of 1910.269(d) and explained further in the standard's preamble, that an employer's energy control procedure must account for each authorized employee and accord each authorized employee control over energy isolation and lockout/tagout devices. This requirement was recognized recently by Chief Administrative Law Judge Irving Sommer in Exelon Corporation, OSHRC Docket 00-1198 (Petition for Discretionary Review granted December 11, 2001). The requirement also has been described in other Agency directives and interpretation letters since 1990.

Finally, OSHA does not believe that it is prudent to delay the completion of CPL 2-1.38 until the Agency amends its directive for the 1910.147, Control of Hazardous Energy (Lockout/Tagout), standard. Amendments to the 1910.147 directive (Instruction STD 1-7.3, The Control of Hazardous Energy (Lockout/Tagout) - Inspection Procedures and Interpretative Guidance) will not change an employer's obligations pursuant to 1910.147 or 1910.269. The scope of an electric utility's lockout/tagout compliance obligations is established by the two standards. CPL 2-1.38 and STD 1-7.3 provide additional guidance. If questions still exist, the Agency remains open to inquiries.

Substantive Issues

In addition to these procedural issues, EEI also has expressed concern about the draft directive's definition of "direct supervision," and about two aspects of the discussion of lockout/tagout requirements -- i.e., the role of operations personnel in lockout/tagout operations, and the discussion of the "system operator provision" in 1910.269(d)(8)(v). We believe that the revisions to CPL 2-1.38 will address most of EEI's concerns in a manner that is both compatible with the industry practices that you have described and consistent with the health and safety goals of the Occupational Safety and Health Act.

First, CPL 2-1.38 will clarify circumstances in which a trainee is considered "qualified" to perform certain work practices without "direct supervision." As you know, Note 2 to the standard's definition of "qualified employee" allows directly supervised trainees to act as "qualified" persons in certain circumstances. OSHA does not intend the directive's definition of "direct supervision" to expand the circumstances in which employees must be considered trainees who may not perform "qualified" employee functions without direct supervision. In response to EEI's comments, the directive will explain that 1910.269 permits employees who are being trained to perform multiple work practices to be certified as proficient in certain work practices, and considered qualified to perform those work practices without direct supervision, while they are still being trained in others.

Second, CPL 2-1.38 will recognize the vital role that operations personnel often play in the control of hazardous energy and will explicitly detail the role that operations personnel may play in the isolation of energy, the application and removal of lockout/tagout devices, and the re-energization of machinery following the conclusion of servicing and maintenance activities. We believe these revisions will take account of the power generation industry's concerns in this regard.

OSHA cannot, however, condone any lockout or tagout procedure that would dilute the standard's requirement for each authorized employee to maintain control over energy isolating devices. Thus we cannot agree to EEI's suggestions that the directive expand the scope of the standard's system operator provision and that it permit a supervisor to authorize the re-energization of machines or equipment on behalf of individual authorized employees. In both the Power Generation and the Lockout/Tagout rulemaking proceedings, OSHA concluded that providing individual authorized employees with control over their own lockout/tagout devices would enhance the protection afforded those employees significantly. A system that eliminates the requirement for authorized employees to maintain direct control over energy isolation devices would diminish that protection and also would be inconsistent with the plain language of the standard, the preamble explanation of the standard's provisions, and OSHA's interpretative and enforcement history.

Moreover, this requirement for each authorized employee to maintain control over energy isolating devices is not neutralized by the standard's system operator provision. That provision merely permits a system operator, on behalf of an authorized employee, to place and remove a lock or tag on an energy isolation device in the limited circumstance in which the device is in a central location that is physically isolated and not accessible to the authorized employee. The system operator provision was included in the standard in response to evidence that some power plants are configured so that certain energy isolation devices are accessible only to a system operator. It does not allow an employer, by establishing a work rule that administratively prohibits authorized employees from approaching an energy control device, to create its own exception to the requirement for individual authorized employee control.

Finally, let me reassure you that providing individual authorized employees with control of their own lockout/tagout devices need not impose large costs on power generating employers. As you are aware, OSHA has worked closely with EEI and other interested parties to develop effective and inexpensive methods of individual employee control and accountability. OSHA listed some of these options in the preamble to 1910.269 and provided additional guidance in Appendix C to Instruction STD 1-7.3. Although a few employers may adopt a procedure similar to the Exelon computer terminal method that you referred to, such an expensive and complex system certainly is not necessary. The directive will provide additional clarification on energy control procedures that comply with the provisions of 1910.269(d), but are not expensive or time-consuming.

OSHA appreciates its long-standing cooperative relationship with EEI and others associated with the power generation industry. We believe that the final version of CPL 2-1.38 will reflect the Agency's careful consideration of EEI's comments.

Sincerely,



John L. Henshaw
Assistant Secretaty