June 13, 2003

Mr. Robert J. Fisher
Vice-President, Operations Support
Exelon Generation
4300 Winfield Road
Warrenville, IL 60555

Dear Mr. Fisher:

Thank you for your March 17, 2003 letter commenting on the Occupational Safety and Health Administration's (OSHA's) Draft OSHA Instruction CPL 2-1.18A, Enforcement of the Electric Power Generation, Transmission and Distribution Standard.

As you know, when OSHA published Instruction CPL 2-1.38 in October 2002, it reserved portions of the Directive for additional consideration.⁽¹⁾ Since that time, the Agency has considered your comments, as well as those of the International Brotherhood of Electrical Workers (IBEW) and the Edison Electric Institute (EEI). These comments have been quite useful, and the final version of the Directive will reflect this input.

This letter addresses the three major issues that your letter raises concerning the Directive's treatment of hazardous energy control procedures. First, your letter asserts that the "group tagging" portions of the draft Directive impose new obligations for employers that OSHA can promulgate only through notice and comment rulemaking. Second, the letter contends that such allegedly new obligations have no discernible health or safety benefit for workers. Third, the letter asserts that these portions of the draft Directive would impose significant new costs on the power generation industry.

Whether the Directive Imposes Obligations beyond those of the Standard

OSHA need not engage in notice and comment rulemaking before finalizing the Directive because the Directive will not change employers' obligations pursuant to 1910.269. Specifically, the Directive will not impose new lockout/tagout requirements when a group of employees is engaged in servicing and maintenance activities. The Directive merely 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 the Exelon litigation (OSHRC Docket 00-1198, Petition for Discretionary Review granted December 11, 2001). The requirement also has been described in other Agency directives and interpretations since 1990.

The requirement for each authorized employee to maintain control over energy isolating devices is not nullified by the system operator provision in 1910.269(d)(8)(v). That provision merely permits a system operator, on behalf of authorized employees, to place and remove locks or tags on energy isolation devices in limited circumstances where those devices are in areas that are physically isolated and not accessible to the authorized employees. 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 to create its own exception to the requirement for individual authorized employee control of energy isolation devices by establishing a work rule that administratively prohibits certain authorized employees from approaching an energy control device.

OSHA does, however, recognize that system operators, and other operations personnel, play a vital role in the control of hazardous energy, and the Directive will explicitly address that role. We hope that the portions of the Directive addressing operations personnel will resolve the substantive concerns that were raised concerning the role of the system operator in the control of hazardous energy.

The Safety Value of Individual Employee Control over Energy Isolation Devices

OSHA also cannot accept your assertion that individual employee control over energy isolation devices produces no safety benefit for workers engaged in the servicing and maintenance of machines and equipment. During the rulemaking process that preceded the adoption of both 29 CFR 1910.147 and 29 CFR 1910.269, OSHA determined that individual employee control over energy isolation devices was an essential component of an effective energy control procedure. While Exelon and its predecessor may have been fortunate in avoiding accidents using a procedure that fails to provide individual employee control, OSHA's regulatory determinations that individual employee control over energy isolation devices would yield a significant reduction in worker deaths and injuries were based on data and evidence in the rulemaking records associated with the promulgation of both 1910.147 and 1910.269.

The Costs Associated with Individual Employee Control over Energy Isolation Devices

Finally, OSHA does not agree that compliance with the provisions in 1910.269(d) that require individual authorized employees to take an affirmative and physical step prior to authorizing the re-energization of machines or equipment is necessarily as costly as you describe. While the computer terminal method that you describe may permit the requisite degree of employee control, so too would significantly simpler approaches, which would cost little, if anything, to implement.

Indeed, in the Exelon litigation to which you refer, the Secretary of Labor claimed that Exelon's energy control procedure, as described, was deficient in only one respect. The deficiency was that Exelon allowed a supervisor to authorize the re-energization of equipment or machinery on behalf of individual authorized employees after orally accounting for the employees and checking off the employees' names on a Worker Tagout Tracking List (WTTL). During the litigation, the Secretary clearly and repeatedly stated that the same procedure would permit the requisite degree of employee control, if amended slightly to require that each individual employee sign the WTTL before beginning work and sign off the WTTL to authorize re-energization of the machinery after completing work. This minor modification would produce the individual employee accountability and control mandated by the standard.

Over the years, OSHA has worked cooperatively with EEI, the IBEW, individual power generation companies, and other interested parties to help develop cost-effective methods to achieve individual employee control over energy isolation devices. Some of these methods are listed in the Federal Register preamble to 29 CFR 1910.269 and additional guidance is found in Appendix C to OSHA Instruction STD 1-7.3. These methods would be significantly less expensive to implement than the program that you described.

Again, thank you for your comments concerning OSHA Instruction CPL 2-1.38.

Sincerely,



John L. Henshaw
Assistant Secretary

¹ The Directive number was changed to OSHA Instruction CPL 2-1.38 when it was issued. [Back to Text]