by , on February 19, 2015

A settlement has been reached regarding EEI’s challenge to OSHA pertaining to electrical power generation, transmission and distribution.  See below.

I am pleased to announce that EEI has reached a settlement agreement with the Occupational Safety and Health Administration resolving EEI’s challenge to the final rules for electric power generation, transmission and distribution, which were issued by OSHA in April 2014.

EEI worked extensively and cooperatively with member companies, OSHA and the IBEW to develop compliance guidance addressing the most significant issues in the revised standards. This process has resulted in compliance guidance on 45 key issues, as well as negotiated compliance dates that will be phased in based on the complexity of the issue.   Among the issues addressed are minimum approach distances; electric arc protection/FR clothing; host employer/contractor communications; underground operations; and fall protection.

This favorable outcome is a direct result of the engagement and hard work of EEI members, who provided the detailed and valuable information that EEI needed to make the persuasive arguments necessary to convince OSHA to issue compliance guidance.

The settlement agreement and exhibits are attached.  The settlement agreement is currently being circulated among the attorneys for signature, so the version included here is unsigned.  The negotiated compliance guidance is attached as Exhibit A.  An enforcement policy addressing fall protection issues (Exhibit B), and an enforcement policy setting out the extended compliance dates (Exhibit C) are also attached.  Exhibit D is a policy document that addresses technical amendment OSHA plans to make with regard to line-clearance tree trimming.  Specifically, line-clearance tree trimming work is only covered by 1910.269 if the purpose of the work is to clear the right-of-way on behalf of a utility.  OSHA plans to post these documents on its  website within the next week, but they will be in effect on Tuesday, February 17.  EEI plans to publish a “Compliance Dashboard” intended to help members easily reference the relevant compliance guidance and deadlines for key issues.

Again, thank you for your continued support and the valuable information you provided throughout this successful settlement process.

Charles J. Kelly

Director, Industry Human Resource Issues
Edison Electric Institute

 

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
EDISON ELECTRIC INSTITUTE, ) ) Petitioner, ) ) v. ) Docket No. 14-1098 ))
OCCUPATIONAL SAFETY AND ) HEALTH ADMINISTRATION, et al., ) ) Respondents. ) __________________________________________)
Consolidated with 14-1102, 14-1117

SETTLEMENT AGREEMENT

The parties to this Settlement Agreement are the Occupational Safety and Health Administration (OSHA), the Edison Electric Institute (EEI), the Utility Line Clearance Coalition (ULCC), and the Tree Care Industry Association (TCIA).

WHEREAS, On April 11, 2014, OSHA promulgated a final rule revising the general industry and construction standards for work on electric power generation, transmission, and distribution installations (the Standard) at 79 Fed. Reg. 20316;

WHEREAS, EEI filed a Petition for Review of the Standard in the United States Court of Appeals for the District of Columbia Circuit (Case No. 14-1098);

WHEREAS, ULCC filed a Petition for Review of the Standard in the United States Court of Appeals for the District of Columbia Circuit (Case No. 14-1102);

WHEREAS, TCIA filed a Petition for Review of the Standard in the United States Court of Appeals for the First Circuit (Case No. 14-1630), which was transferred to the United States Court of Appeals for the District of Columbia Circuit (Case No. 14-1117);

WHEREAS, the United States Court of Appeals for the District of Columbia Circuit consolidated the petitions filed by EEI, ULCC, and TCIA;

NOW, THEREFORE, the parties to this Agreement do hereby agree to the following terms:

  1. This Agreement will resolve all pending challenges to the Standard.
  2. OSHA agrees that on or before February 20, 2015, it will issue the

documents attached hereto as Exhibit A (“Questions and Answers on 29 CFR 1910.269 and 29 CFR Part 1926, Subpart V”), Exhibit B (“29 CFR 1910.269 and 29 CFR Part 1926, Subpart V– Fall protection”), Exhibit C (“29 CFR 1910.269 and 29 CFR Part 1926, Subpart V–Enforcement dates”), and Exhibit D (“Clarification of the applicability of 29 CFR 1910.269 to line-clearance tree trimming”).

3. OSHA agrees that if, at any time after the signing of this Settlement Agreement, it plans to withdraw or revise any of the documents attached as Exhibit A, Exhibit B, and Exhibit C, it will first provide interested stakeholders, including the parties to this Agreement, an opportunity to provide input on the planned change.

4. OSHA agrees that upon the signing of this Settlement Agreement it will begin the process of promulgating a correcting amendment to clarify, in relevant part: (a) that work meeting the definition of line-clearance tree trimming at 29 CFR 1910.269(x) is covered by 29 CFR 1910.269 only to the extent it is done for the purpose of clearing space around electric power generation, transmission, or distribution lines or equipment and on behalf of an organization that operates, or that controls the operating procedures for, those lines or equipment; and (b) that the electrical safety-related work practices in 29 CFR 1910.331 through 1910.335 (Subpart S) may apply to line-clearance tree-trimming work near, but not directly associated with, electric power generation, transmission, or distribution installations. OSHA agrees to keep the document attached as Exhibit D in effect until such time as the correcting amendment is final and effective. If OSHA plans to revise that document, it will first provide interested stakeholders, including the parties to this Agreement, an opportunity to provide input on the planned change. In no event will OSHA revise Exhibit D to permit enforcement of 29 CFR

1910.269 with respect to line-clearance tree trimming that is not done both for the purpose of clearing space around electric power generation, transmission, or distribution lines or equipment and on behalf of an organization that operates, or that controls the operating procedures for, those lines or equipment.

5. EEI, ULCC, and TCIA agree to move to withdraw their petitions for review of the Standard within five calendar days after OSHA issues the documents attached hereto as Exhibit A, Exhibit B, Exhibit C, and Exhibit D.

6. Nothing in this Agreement constitutes an admission by any of the parties hereto for purposes of this litigation.

7. Each party agrees to bear its own attorneys’ fees, costs, and other expenses that have been incurred in connection with the parties’ petitions for review and the negotiation of this Agreement.

8. This Agreement constitutes the complete and exclusive statement of agreement between OSHA, EEI, ULCC, and TCIA with respect to the subject matter of this Agreement. All prior or contemporaneous statements, understandings, and agreements by and between the parties, whether written or oral, are deemed to be superseded by this Agreement.

Agreed to this ___ day of February, 2015.

_________________________
Melissa A. Bailey
Counsel for EEI and ULCC
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 1909 K. Street, NW

Suite 1000
Washington, DC 20006
(202) 887-0855 melissa.bailey@ogletreedeakins.com

_________________________ Tressi L. Cordaro
Counsel for TCIA
Jackson Lewis P.C.

10701 Parkridge Blvd.
Suite 300
Reston, VA 20191
(703) 483-8300 tressi.cordaro@jacksonlewis.com

_________________________ Lauren S. Goodman
Counsel for OSHA
United States Department of Labor Office of the Solicitor

200 Constitution Avenue, NW Room S4004
Washington, DC 20210
(202) 693-5445 goodman.lauren@dol.gov


Hugh Hoagland
About author:
Hugh Hoagland is the foremost tester of clothing and PPE exposed to electrical arcs and is an arc flash expert. Read more about Hugh.

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