What You Need to Know About OSHA’s New Rule on Electric Power
From the Law Offices of Adele Abrams, Esq. –
OSHA’s Final Rule on Electric Power Generation, Transmission, and Distribution is published in the April 11, 2014, Federal Register. (79 Fed.Reg. 20316 et seq.). Most parts of the rule become effective 90 days after publication, on July 10, 2014. Certain provisions have later compliance deadlines.
The major focus of the rule is the revision of the construction standard on Power Transmission and Distribution, 29 C.F.R. 1926, Subpart V (1926.950 ff). That standard has not been updated since it was issued in 1972. In addition, the new rule makes conforming and updating changes to the General Industry Standard, 1910.269, which was last revised in 1994.The result will be that the same rules and protections will apply regardless of whether OSHA’s construction or general industry standard applies to the particular work involved.
In addition to the updates and changes to 1926, Subpart V and 1910.269, the final rule also updates the Electrical Protective Equipment standard in the general industry standards (1910.137), and makes it applicable to construction work by adding a new section, 1926.97. That standard applies to the design, manufacture, and care and maintenance of insulating gloves, sleeves, matting, blankets and similar items used for electrical protection. The standard previously applied to insulating equipment made of rubber. The new standard covers insulating material and equipment made of rubber as well as other materials.
The final rule also makes a small change to the general industry standard on foot protection, 1910.136, which would apply to any employer, not only to electric utilities and their contractors. The current rule states that protective footwear must be used “where such employee’s feet are exposed to electrical hazards.” In the proposed rule OSHA proposed to delete the reference to electrical hazards. The final rule, however, changes it to read “when the use of protective footwear will protect the affected employee from an electrical hazard, such as a static-discharge or electric shock hazard, that remains after the employer takes necessary protective measures.”
OSHA issued the proposed rule (NPRM) on this standard on June 15, 2005, and held public hearings in March, 2006 and again in October, 2009. Although it has not been as controversial as are many OSHA standards, there are a number of significant issues and changes in the new rule.
Obligations of host employers and contractors – The rule includes extensive requirements regarding communication between host employers (defined as the operator or controller of operating procedures for the installation) and contractors. The requirements are similar to those in the Process Safety Management standard.
Tree trimming –Provisions for line clearance tree trimming operations are currently included in 1910.269, but not in the existing Subpart V. The new rule states that tree trimming done as part of construction work must also comply with the provisions in 1910.269.
Training and Certification– Under current 1910.269, the employer must certify that employees have been trained and are proficient in the work practices involved in the employee’s work. The new rule for both construction and general industry eliminates the certification requirement, but nonetheless requires that the employer assure that workers are trained and proficient in the necessary work practices, with “the degree of training … determined by the risk to the employee for the hazard involved.”
In the preamble to the final rule, OSHA notes that it received many comments on this change in the proposed rule, with some commenters favoring a more “performance oriented” approach and others favoring certification, particularly with a largely transient workforce. OSHA states that the final rule still requires that employees be trained, and that it “does not need training certifications for enforcement purposes …because compliance with the training requirements can be determined through interviews with management and workers.”
Fall protection – the new rule includes requirements for fall protection when using aerial lifts or when climbing or changing location on poles, towers or similar structures.
Minimum approach distance – The new rule includes specific and detailed requirements for calculating “minimum approach distances.” No employee may enter or take any conductive object within the applicable minimum approach distance unless the employee or energized part is insulated.
In the preamble, OSHA notes there was considerable discussion in the comments to the proposed rule on requirements for use of protective (particularly, flame resistant/fire retardant) clothing and the issue of heat stress. OSHA notes that the standard does not specifically address heat stress, but that employers have an obligation under the general duty clause to prevent and abate heat stress hazards.
The preamble also includes a lengthy discussion of whether fire-resistant and other arc-rated clothing required by the rule is covered by the PPE standards, 1910.132 and 1926.95. OSHA states in the preamble that it does consider such clothing to be PPE, and addressed the issue of paying for such clothing, citing the rule, adopted in 2007 (after the proposed standard for this rule) that the employer must generally pay for PPE, and states “an exemption [for the FR or arc-rated clothing required in this rule] is neither necessary or appropriate.”
 The construction standard applies to the erection of new electric power transmission or distribution lines or equipment as well as the “alteration, conversion, and improvement” of existing lines and equipment. The general industry standard applies to operation and maintenance of such lines and equipment. OSHA provides this example demonstrating the usefulness of consistent rules: “an employer replacing a switch on a transmission and distribution system is performing construction work if it is upgrading the cutout, but general industry work if it is simply replacing the cutout with the same model.”