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Regulatory & Legislative Update
Charles J. Kelly, Edison Electric Institute Stephen C. Yohay,Esq., Ogletree Deakins Melissa A. Bailey, Esq., Ogletree Deakins
Title Goes Here
PRESENTED BY
Melissa Bailey (Washington, D.C.)
Update on Electric Power Generation, Transmission, & Distribution — Final Rule
Topics Covered
New Section 1910.269/Subpart V
Reporting & Recording Injuries & Illnesses
Proposed Silica Standard
Propose Beryllium Standard
OSHA Enforcement Trends
Significant Decisions
Section 1910.269/Subpart V
April 11, 2014: New standards issued with July 1, 2014 effective date
June 4, 2014: EEI v. OSHA (consolidated)
October 31, 2014: Compliance date for most provisions
April 1, 2015: Compliance with all provisions
1910.269/SUBPART V
EEI Regional Meetings
Three Meetings in June & July:
Phoenix, AZ
Baltimore, MD
Chicago, Ill
Detailed review of standards
Comments and suggestions from attendees
OSHA Meetings
May 13 Meeting: Compliance dates, underground installations and information transfer requirements
September 5 Meeting: Fall protection issues related to aerial lifts & steel towers ULCC, TCIA, &
IBEW also attended
September 16 Meeting: Discussion of proposed guidance
Main Areas of Concern
Training
Information Transfer
Fall Protection
Minimum Approach Distance
Protective Clothing
Underground Installations
TRAINING
New Provisions
The degree of training determined by the risk to the employee for the hazard involved
Training documentation no longer required
Retraining for tasks performed less than once per year
New Provisions
The proficiency of previously trained
employees may be established by:
Confirming prior training;
Testing or interviewing employee to
determine understanding of safety-related
practices and;
Supervising employee closely until they
demonstrate the required proficiency
Proposed Compliance Guidance
Defines “training for the risks involved”
Computer-based training acceptable
Frequency of CPR and first-aid training based on certification issued by accredited organizations
INFORMATION TRANSFER
New Provisions
Before job, the “host employer” must
determine and provide the contractor with
information on existing conditions:
Nominal voltage
Transient voltage
Induced voltage
Presence of grounds
Locations of circuits and equipment
New Provisions
Before work begins, the host employer must
provide information regarding the conditions
related to the safety of the work performed, if
known:
Condition of grounds
Condition of poles
Environmental conditions relating to safety
New Provisions
Contractor must inform host employer of Any unique hazardous conditions presented by
its work
any “unanticipated hazardous conditions” found during work
Host/contractor must coordinate work practices
Employers must provide “employee in charge” with information from “information transfer”
Proposed Compliance Guidance
Host employer meets information transfer duties by using “reasonable means” to transmit the information”
Contractor’s duty to report “unanticipated hazardous conditions” limited to electrical lines and ground systems
Host employer may require the primary contract employer to provide information to contractors and subcontractors it has no direct relationship with
Proposed Compliance Guidance
Limit host employer’s obligations to contract
employers performing work covered by the
standard
Limit “environmental conditions” to
information regarding the safety of the
electrical system
Proposed Compliance Guidance
During an emergency or following a storm, information may be provided through job briefing
“Employee in charge” (EIC) is person overseeing the job
EIC not required to conduct the job briefing
FALL PROTECTION
New Provisions
Three types of fall protection systems
1. Personal fall arrest system – prevent a
fall from a working level
2. Work-positioning system – allows
employees to be supported on elevated
vertical surface
3. Fall restraint system – prevents user from
falling any distance
New Fall Arrest System
Provisions
No body belts
Fall arrest equipment used by employees
exposed to flames or electric arcs must be
able to pass a drop test after exposure to a
40±5 cal/cm3 arc
New Aerial Lifts Provisions
Employees Only Permitted to Use:
Personal Fall Arrest System with body
harness (no body belt) or
Fall Restraint System
New Aerial Lifts Provisions
Issues with Fall Arrest Systems
Body harness requires a longer lanyard
Falling to the “lower level”
OSHA says power lines and tree limbs are
not part of the “lower level”
Ascending and descending to and from
work area
New Aerial Lifts Provisions
Issues with Fall Restraint System
Must be configured so employee cannot fall
out of bucket
No approved products on the market
Proposed Compliance Guidance
EEI has requested that OSHA extend the
compliance deadline for fall protection in
aerial lifts until April 1, 2015
EEI intends to submit proposed compliance
guidance for fall protection in aerial lifts
Work-Positioning Devices
The anchorage points must be a certain strength
EEI drafting proposed compliance guidance that does not require the employer to know exact anchorage strength
Work-Positioning Devices
As of April 1, 2015
Free climbing is prohibited
Free fall no more than 2 feet
EEI intends to propose compliance guidance
MINIMUM APPROACH
DISTANCE
New Provisions
For MAD >72.5 kv Engineering study to determine the maximum per-unit transient over voltage required
Additional tests required if portable gaps used to limit over voltage
Compliance Date: April 1, 2015
Proposed Compliance
Guidance
EEI proposed use of “generally accepted and
recognized engineering practices”
ARC PROTECTIVE CLOTHING
New Provisions
NEW – April 1,
2015 - Employees
must wear FR
pants
January 1, 2015 -
Estimated heat
incident energy
calculations due
Proposed Compliance
Guidance
EEI requested an extension on all protective
clothing requirements until April 1, 2015
Timing did not make sense –
order/implement FR pants program before
heat incident calculations completed
OSHA has granted this request
Proposed Compliance
Guidance
Incident heat energy calculation not required
for each generating plant
Use of meter shields for certain face and
head protection requirements
UNDERGROUND
INSTALLATION
New Provisions
Inspection of energized cables for
“abnormalities” before moving
Deenergize cables if work in manhole or
vault could cause a fault
OSHA believes removing covering on cable
or using power tool to break concrete casing
could cause a fault
Proposed Compliance
Guidance
Qualified employees may move energized
cables with no visible abnormalities
Clarifies work that “could cause a fault in a
cable”
When arc shields and other devices
necessary
Update on OSHA Reporting
and Recordkeeping
Requirements
Current Reporting
Requirements
Employers must report to OSHA work-
related:
Fatalities and
In-patient hospitalizations of 3 or more
employees
Must report within 8 hours of incident to
nearest OSHA Area Office or the toll free
number
New Reporting Requirements
Employers must report work-related: Fatalities within 8 hours
In-patient hospitalization of 1 or more employees within 24 hours
Amputations or the loss of an eye within 24 hours
Includes in-patient hospitalization, amputation, or eye loss resulting from motor vehicle accidents occurring in a construction zone on public streets/highways
New Reporting Requirement
Clock starts ticking when the employer learns about the reportable event and/or knows that the event is work-related
If the in-patient hospitalization, amputation, or eye loss occurs more than 24 hours after incident, not required to report
Employer may report incidents through new OSHA web portal
New Reporting Requirements
Increased in inspections
Increased request to review OSHA 300
Logs and 301 reports
Current Regulation
Submit 300 Logs, 301s, and 300As to
OSHA when requested
Proposed Electronic Filing
250 or more employees: Quarterly
electronic filing of 300 Logs and 301s
20 or more employees: Annual electronic
filing of OSHA 300As
Limited to certain industries
300 Logs and 301 Reports posted on OSHA
website
Implications
Regulation by Shaming
More Targeted Inspections
Easier to issue “willful” violations
Employee Privacy
Current Rules
Section 11(c) of the OSH Act
Recordkeeping Provisions
Record injury or illness in 7 days
Employee must be able to report an injury or
illness promptly
Proposed Recordkeeping
Regulation
Inform employees of right to report injury or
illness
Establish “reasonable” system for
employees to report injury and illnesses
Prohibition against disciplining employees
for reporting injuries or illnesses
Implications
“Reasonable” injury and illness reporting
system?
When can an employer take disciplinary
action against employees who are injured?
Incentive/disincentive employee safety
programs?
Benefits to union organizers and plaintiffs’
attorneys
Proposed Rule
Duty to Record
Failure to record must be cited within 6 months period AKM/Volks
If an injury occurs on May 1, OSHA can cite an employer for the failure to create a record beginning on May 8, and a citation issued within the following six months
Proposed Rule
Amend recordkeeping regulations to clarify
that duty to maintain injury and illness
records is an ongoing obligation
Proposal date August 2014
PROPOSED SILICA RULE
Current Standard
1910.1000, Table Z-3
PEL = 100 µg/m3 TWA @ 100 % Silica
1926.55, Appendix A
Proposed Standard
September 12, 2013: Standard Proposed
March 18 – April 4: Public Hearing
EEI Comments
August 18, 2014: Last day to submit briefs
Before final rule published
OSHA review of all public commentary
OMB Review (stakeholder meetings)
Legal challenges to final rule
Proposed Standard
Two standards:
General &
Construction
Action Level = 25
µg/m3 TWA 8 hours
PEL = 50 µg/m3
TWA 8 hours
Initial/Periodic
Sampling
Regulated Areas
Dust Control
Methods
Medical
Surveillance
Training
Recordkeeping
EEI Comments
No consideration of impact on electric utility industry
Exception for intermittent & short duration work with PPE
Alternative compliance methods for outage work
Exclude non-occupational exposure and trace amounts of silica in the atmosphere
Exempt coal dust & < 1% silicates
One standard for general industry and construction
EEI Comments
Action level
Difficulty detecting silica at low levels
Same deadline for employee notification requirement in general & construction industry
Monitoring requirements
Lower 3 to 6 month frequency for fixed schedule option
Clarify when additional monitoring required
EEI Comments
Uniform regulated area requirements
Medical Surveillance
B-Reader Scarcity
Limit latent TB testing
No SS# for records kept pursuant to this
standard
BERYLLIUM
Beryllium
Current PEL = 2.0 mg/u3 TWA
OMB reviewing proposal that would lower PEL to .2 mg/u3 TWA
Materion Brush Inc. and the United Steelworkers heavily involved
Proposed rule could be issued in a few months
OSHA ENFORCEMENT
TRENDS
2013 Most Cited
Fall Protection (C)
Hazard Communication
Scaffolding (C)
Respiratory Protection
Electrical – Wiring
Powered Industrial Trucks
Ladders (C)
LOTO
Electrical – System Design
Machine Guarding
Hazard Communication Standard
December 1, 2013: Label and SDS training
complete
June 1, 2015: Compliance will all new
provisions except distributor labeling and
SDSs
December 1, 2015: Distributor’s products
must have new labels & SDS
June 6, 2016: Update alternative workplace
labeling and HCS program
New Initiatives
Temporary Workers Initiative
Employee Representatives During
Inspections
SIGNIFICANT DECISIONS
Delta Elevator Service
Judge Rejects “Enterprise-Wide” Relief
Theory
Section 10(c) of OSH Act – “Other
Appropriate Relief”
Concluded OSH Act does not authorize
Review Commission to order so-called
“enterprise-wide” abatement
Delta Elevator Service
Employers against whom enterprise-wide relief
is sought should seriously consider
challenging the assertion of the Review
Commission’s authority to order such relief
Penalty Cases – MVP Piping
The ALJ affirmed willful citation but reduced the penalty from $42,000 to $7,000
The Review Commission raised penalty to $22,000 ALJ did not give sufficient weight to the high
gravity trenching violation
Foreman abdicated his safety responsibilities by relying on third-party engineering company
Davey Tree Expert
OSHA has used various means of
“backdoor rulemaking,” avoiding notice-and-
comment procedures, to effectively amend
standards
In Davey, OSHA attempted to expand the
scope of the logging standard, 1910.266,
which when promulgated, only applied to
the logging industry
Pending review before Review Commission
Sandifer v. US Steel
Section 203(o) of FLSA requires employers
to pay for time spent changing clothes,
unless a collective bargaining agreement
provides otherwise
Contract provided that employees not
compensated for changing clothes
Sandifer v. US Steel
In a unanimous decision, the Supreme Court
held that the time spent putting on or taking off
PPE is not compensable under FLSA, pursuant
to the exclusion in its collective bargaining
agreement
Leaves in place employers’ ability to collectively
bargain compensation for time spent changing
clothes, including PPE
No relief for unionized employers that have not
negotiated compensation of time spent
“changing clothes” in their collective bargaining
agreement, or for non-union employers
Blacklisting Federal Contractors
Fair Pay & Safe Workplaces Executive Order - projected effective date 2016
Contractors and subcontractors bidding for contracts over $500,000 must disclose information on compliance with labor laws: Occupational Safety and Health Act of 1970
(OSH Act)
Fair Labor Standards Act (FLSA)
National Labor Relations Act (NLRA)
Davis-Bacon Act
Family Medical Leave Act (FMLA)
Title VII of the Civil Rights Act of 1964
American Disabilities Act (ADA)
Blacklisting Federal Contractors
Disclose violations from past three years
Contracting officer determines whether
employer is responsible and eligible to
receive contract
Blacklisting Federal Contractors
Submit reports of violations every six
months during contract term
Possible debarment during term of contract
for serious, repeated, willful, or pervasive
OSHA violations
Contractors and subcontractors are not
required to report settlements
Blacklisting Federal Contractors
New factor for employers to consider when
considering whether to contest citations
Leverage for OSHA when negotiating
settlement
Melissa A. Bailey
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1909 K Street, NW Suite 1000 Washington, DC 20006
202-263-0265 [email protected]
