This is the first of a two-part update on OSHA’s new rules on electric power generation, transmission, and distribution.
|OSHA issues memorandum to delay enforcement pertaining to the new final rule
OSHA has issued a memorandum to both the construction and maintenance sectors to delay enforcement (hence citations) pertaining to the new final rule issued April 2014. Read Bob's recent blog post to learn more.
On April 11, the U.S. Occupational Safety and Health Administration (OSHA) released its long-awaited changes to rules that affect electric power generation, transmission, and distribution. The saga began with a public release of proposed changes on June 15, 2005. Any time a governmental agency changes the rules, it sends shockwaves of nervousness through the business sector it regulates. “What does this mean for my business operations? How will it affect the ability of my workers to get things done? Will I be able to continue with business as usual, or will it mean drastic changes to my bottom line?” These are all valid questions foremost in the minds of health and safety professionals tasked with ensuring safety and compliance for their employers. The major OSHA changes will affect utilities and manufacturers that own or operate their own utility-type installations as a secondary part of business operations.
When OSHA was first established, it caused quite a stir. The year was 1971, and our world was already in turmoil. Political unrest, dissent within our military, and a book published a generation earlier about the not-so-distant future was seemingly playing out right before our eyes. George Orwell’s classic, “1984,” predicted a time when “big brother” would monitor and control mankind. My electrical apprenticeship had just begun and the big brothers in the trade who were training me warned that, with the onset of an agency such as OSHA overlooking our every move, life on the job would never be the same. Our world had changed in an instant for no conceivable reason, they concluded. But was it for no reason, and why exactly was OSHA established to begin with? Maybe the answers to these basic questions could give some insight to the ever-constant evolution of changes from this agency since its inception, and better still, help us to reason why the change process must never end.
Statistics proved the need for such a move by our U.S. Congress in 1971. The annual tally of fatality rates among all trades was 18 per 100,000 workers. And occupational illnesses and diseases were in the hundreds of thousands consistently during the previous decade. All of this was happening during a time of great expansion among American businesses with even greater training and preparation of the workforce. Preserving the health and safety of a skilled workforce became the focus of OSHA, called “the Agency” in its own documents. It was established because American workers needed protection, but protection from whom or protection from what?
With obvious and glaring exceptions, many of the skilled workers needed as much if not more protection from themselves as they did from those that employ them. Were our fathers or grandfathers less skilled than the workers of today? When they reported to work, was there less resolve to go home with all the body parts they began with? This was a time of great invention and creativity in manufacturing, production, and electrical power. These talented and skilled forerunners needed a foundational set of guidelines to put boundaries around their creativity and invention while on the job. Great strides have been made in the work arena since those initial guidelines, or work rules, were released. Annual incident and injury rates in all areas have fallen across the board, and fatality rates have decreased to near 3 per 100,000. Much of this success can be directly traced to developing, or promulgating, foundational work rules, hazard awareness, and clear expectations.
Figure 1. The electric power generation, transmission, and distribution sector, commonly called utility companies, has long been considered so technically unique and self-regulating that further intervention was not necessary or already was being addressed internally.
OSHA tracks each work sector separately and establishes or modifies rules to meet current trends as they’re discovered. The electrical utilization sector was not self-regulated well, and the focus for electrical safe work practices began in that arena. Work rules for both construction and maintenance were released to that sector by the early 1980s. The electric power generation, transmission, and distribution sector, commonly called utility companies, has long been considered so technically unique and self-regulating that further intervention was not necessary or already was being addressed internally (Figure 1). As some utility companies are privately owned and under the watchful eye of OSHA, others are municipal or governmentally owned and by definition not entirely under OSHA oversight; as a result, consistent work practices were not commonly followed. Contractors working for either of these entities were left in a sense of confusion as to what or to whom they were ultimately responsible. There’s no evidence that utilities, regardless of their ownership, were intentionally placing any worker at risk, but this atmosphere of inconsistency could easily escalate into unsafe practices if not controlled.
The industrial work community has two basic areas of concern. The first is design and installation, called construction, and the other is maintaining and operating what has been constructed, or general industry. The applicable construction rules, called standards, are found in the 29 CFR 1926 series in the Code of Federal Regulations (CFR), while the general industry, or maintaining and operating concerns, are in the 29 CFR 1910 series. OSHA began releasing rules for utility and utility type construction beginning in 1972 and, on January 31, 1994, released work practice rules for maintaining and operating the utility and utility type installations. Although 29 CFR 1910.269 was different in focus from 29 CFR 1926.950 – 968, both were covering critical safety aspects of the same industry.
Why does it take so long to promulgate and release guidelines that will have such a positive effect on worker safety? When writing rules that then are enforced as law, OSHA tries to follow the guidelines of accepted industry consensus standards while ensuring their accuracy and consistency to its prime purpose, that of preserving the health and safety of the worker. These consensus standards can change rapidly within any given industry so OSHA typically only references a standard rather than adopting it. Their rules become performance-based requirements mostly consistent with the relevant consensus standards. When establishing these rules, OSHA follows a pattern mandated by Congress in minimizing, or at least estimating, the economic impact to the different-size entities it will affect while maximizing the expected benefit of any established rule or change to a rule.
The process begins with monitoring accident and injury data under current regulations and determining what if any change to the regulation could be made to decrease those numbers. Basically, establish the need. Second, cost analyses must be completed to determine compliance costs to companies of various sizes. The third step is to release the rule and watch the chaos it has produced. Not really, but sometimes it seems that way until a closer examination of the changes is completed.
Figure 2. In the final rule, OSHA intended to impose mandatory flame resistant and arc-rated clothing for workers exposed to the electrical arc flash hazard.
Recently an estimated 74 fatalities and 444 serious injuries have occurred annually in the construction and maintenance of electric power generation, transmission, and distribution work. Proposed changes to relevant sections of both sets of rules were released in 2005. OSHA held hearings and called witnesses much like a court proceeding and closed the process by assimilating the information gathered during those hearings before it issued a final order. The rule processes in this case were closed and reopened several times until 2010 to address important changes to industry consensus standards affecting the previous testimony, which partially explains the delay in issuing the final rule. Two major areas of contention were identified during this process. OSHA was proposing to change the way minimum approach distances for workers from energized lines and circuit parts is determined, and in the final rule it intended to impose mandatory “flame resistant and arc rated” clothing for workers exposed to the electrical arc flash hazard (Figure 2). Rather than placing a performance goal on the employer, which is normally the case, and allowing the employer to determine the best way to accomplish this goal within the worksite or facility, OSHA was seemingly now, by regulation, dictating the only way it could be accomplished. Since compliance is never as easy as doing one thing to achieve another, all safety managers should scan the 1,400 pages of the preamble and explanation section of the standard to get insight into concerns voiced by the rule-making participants and OSHA’s decisions to their concerns. Getting into the mind of OSHA will go a long way in achieving compliance.
In the recently released final rules, 29 CFR 1910.269 and 29 CFR 1926.950 - 968 with their corresponding annexes were aligned, harmonized, and updated to reflect current safety needs and trends. OSHA concludes that compliance with the requirements of the final rule is economically feasible for every affected industry sector. More importantly, OSHA estimates that, had there been full compliance with the existing rules, there would have been 52.9% fewer injuries and fatalities. That equates to 39 fewer fatalities and 235 fewer injuries if there had been compliance to existing rules. By fully complying with the new or revised rules, a 79.6% reduction is expected. This adds another 20 lives from being lost and 118 bodies from being seriously injured. Adding these together, OSHA’s expectation is that 59 fewer deaths and 353 fewer serious injuries are possible if full compliance is achieved. The expectations are not reductions of 100%, which might be attributed to factors beyond employer control and a strong indication why those safety champions in electrical equipment design, installation, operations, and maintenance must never rest on the laurels of past achievement. The bottom line is the bar has now been set a little higher and big brother will be watching.
Let’s examine the major changes and their effects on utility and potentially affected companies that own or operate their own utility-type installations as a secondary part of their business operations. Along the way, for those firms following 2012 NFPA 70E or 2012 NESC, let’s also examine if and when following those consensus standards will be in compliance with the new 1910 and 1926 rules.
Let’s first examine which of these standards may apply. Electrical utilization installation rules can be found in 1910.302-308, which is basically the NFPA 70 or National Electrical Code. As that code is updated every three years and OSHA has no authority over industry standards, OSHA expects inspection authorities to enforce the most current cycle, which has been adopted in their area. OSHA’s version of 1910.302-308 was built upon a much earlier version of the NEC as is now adopted in any part of the United States today. Electrical utilization work rules are found in 1910.331-335. These are the rules to which the NFPA has written a how-to-comply guideline known as NFPA 70E, Standard for Electrical Safety in the Workplace. Both the NEC and NFPA 70E in Article 90.2 (B) of each respective standard state that “installations under exclusive control of an electric utility” are not covered. OSHA has inserted handy flow charts in Annex A-1 and A-2 of 1910.269 to assist safety professionals in the decision process.
There are a few ground rules of the industry, which must be considered before we can fully appreciate and understand these flow charts.
1. 1910.269 and 1926.950-968 primarily affect firms that construct, operate, maintain, or repair power generation, transmission, or distribution installations.
2. Some large firms whose primary function is not to generate or distribute electrical power may still be covered if they have similar installations as part of their business operations. This is becoming increasingly possible as more firms begin to incorporate energy sources such as wind or solar into their electrical schemes. The key to determining which rules apply is whether or not that added power source is connected to work independent and completely separate from the normal utility source or connected in such a way as to share the resident electrical load, called co-generation.
3. Those who employ or work with higher voltages think differently about the hazards and consequences of risks taken while working around those hazards than those who work at lower voltages. In the industry and in OSHA’s rules that dividing line is above or below 600 V, although this will be changing as the most current NEC is increasing that level to 1,000 V and higher as new technologies emerge. The unfortunate yet all too common thought is that working above 600 V is much more dangerous than working below 600 V. A reading of the comment section of the new standard will reveal some enlightening responses from industry leaders who fall on one side of that line or the other. The problem is exacerbated when field workers follow the same line of thought and enact work practices based solely on which side of the line they may be working on at the moment. OSHA reminded everyone in its comments and conclusions that it considers all voltages above 50 V to be potentially lethal and appropriate protections must be put in place according to that voltage level and the hazards encountered.
4. NEC installations are inherently safer to any user than are installations built to utility standards. There are many good engineering reasons why utility type installations are built with open and, in some cases, accessible energized parts, but the result is a less inherently safe installation — less safe to the untrained and unqualified. NEC installations with all of its covering, guarding, and grounding requirements are much safer to the unqualified individual. This installation is more hands-on and relies upon the use of work procedures and PPE for safety during maintenance activities. Utility installations recognize isolation, or out of easy reach, as the means of primary personnel protection. Typically greater distance, greater training, and the use of specialized tools produce the desired level of safety. The result is, in NEC installations, the safety is more built into the system, as long as all the energized parts remain covered. With utility-type installations where the majority of the parts are not covered, the safety is primarily built into the worker by means of additional training and work practices. This is a very simplified explanation, and the analysis of work procedures chosen must take into consideration more thought and insight, but it does help to explain the choices we have been given in OSHA’s Annex A flow charts for which rules to apply.
5. Since federal and local government agencies regulate the reliability of electrical systems to ensure public safety, utility lines and equipment are often left energized during work activities. Thankfully even this practice is being questioned by the industry and increased de-energizing is taking place on tasks once commonly done in an energized state. Unfortunately the horse is out of the barn so to speak and most non-utility workers think that working in an energized state so as not to disrupt in-plant processes is somehow equivalent to pubic safety and is both common and expected. This is often based on their level of comfort and their perceived risk and consequence in doing a task. Employers must have clear statements and guidelines within their electrical safety programs on when it is acceptable to leave systems in an energized state while working.
The easy interpretation is this. If the installation has been built to NEC standards, then a firm with utility-type equipment has the choice of which work practices to apply. With the addition of NEC Article 399, Outdoor Overhead Conductors over 600 Volts, in the 2011 code and applications for switchgear, transformers, and generation above 600 V in other code articles, the gray area between utility and non-utility equipment and systems is becoming more defined. NFPA 70E has not yet undertaken a deeper involvement other than five tasks mentioned in Table 130.7(C)(15)(a), Other equipment 1kV through 38 kV, and, given its limited scope, likely has no need to tread into those waters. The 2012 NESC gives greater guidance in estimating electrical arc hazard energy and protection means for overhead line work especially from within a bucket or climbing a pole, as do new tables in Annex E in both the 1910 and 1926 rules.
For those companies that either must by reason of their work scope or voluntarily chose to follow the new rules, the waters are not really all that murky. When given choices between standards, OSHA typically demands the one that provides the greatest level of protection be chosen. Where a choice does not exist but another standard may give a greater level of protection by reason of its existence it must be considered. Companies in today’s world market environment have a deep desire to compete. Safety managers are tasked with balancing what is required by regulation with what additional may be included to provide reasonably affordable and efficient protection. Most companies regardless of their utility or non-utility status seem to have adopted the NFPA 70E where it is clearly applicable, even if they are in one of the areas of its scope where compliance is not mandatory. We have the NESC to thank for that. Beginning in the 2007 version and enhanced in 2012 version, estimating electrical arc flash incident energy system-wide and protecting workers in flame-resistant/arc-rated clothing became a voluntary norm many embraced. In the new OSHA rules, what was once voluntary has now become the law. In most cases the protection means chosen when there are multiple standards from which to choose is at least equal. The work tasks most misunderstood and in need of a unique set of work practices and protection are ones involving overhead energized lines.
Individual state plans
What about the 27 states and U.S. territories with their own OSHA-approved occupational and safety plans? How are the people who live or work in those states and territories affected when OSHA changes the rules?
1. The foundational guideline for these states to have retained their own rules when OSHA was enacted is that these state rules be “at least as effective” as the OSHA federal rules.
2. When OSHA promulgates a new standard or amendment that doesn’t impose additional or more stringent requirements than an existing standard, state-plan states are not required to amend their standards, although OSHA might encourage them to do so.
3. States have six months from the promulgation date of the final federal rule to complete amending their own plans to reflect any needed changes unless they can demonstrate their existing plans are at least as effective as the new federal rule.
This final federal rule results in more stringent requirements. States have until October 10, 2014 (six months from April 11, 2014), to present their cases to OSHA as to why they don’t need to change their existing plans or make the necessary changes to their own plans to remain in compliance with the OSHA state-plan requirements.
The 21 states and one U.S. territory with OSHA-approved occupational safety and health plans covering private employers and state and local employers are Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. In addition, four states and one U.S. territory have OSHA-approved state-plans that apply to state and local government employees only. They are Connecticut, Illinois, New Jersey, New York, and the Virgin Islands.
Automatic electric defibrillators
What about mandatory automatic electric defibrillator (AED) availability? OSHA requested comment in the June 15, 2005, proposed rules from the industry on mandated AED availability for electrical workers covered by this final rule. It has long been know that CPR with the use of an AED results in a much greater success for a victim in heart fibrillation than CPR alone. As a past first responder and user of AEDs, I can say that any technology that will enhance my response is a welcome assistant in the minutes that stretch into eternity until the ambulance arrives. This comment section of the final rule was of great personal importance and my hopes were that OSHA would indeed mandate such equipment. The work covered by the final rule is typically far from the 4-min response of advanced life support responders, and any help in this regard would be of great benefit. One utility had two successful uses of AEDs over a 17-month period and a comment from a labor representative in the process: “Based on what the experts tell you about the need to have AEDs in certain environments, (electric utility work) is (at the) top of the list. We have an aging workforce. The possibilities of sudden cardiac arrest to occur to people in this industry are very high.” Unfortunately my hopes were not realized. After long and very insightful discussion and comment from those in the rule-making process, OSHA did not require AED availability in the final rule.
Automatic electric defibrillators are sensitive electronic devices. There is a large amount of evidence from all industry sectors that the use of AEDs within a fixed location has been very successful. AEDs must be stored and, in this case, transported in padded cases in moderate temperatures. Banging around in the line truck as it is on some off-road trek to the next pole is no place for such a sensitive device.
OSHA ended this topic with the following explanation: “The Agency stresses that defibrillation is a necessary part of the response to electric shock incidents that occur during work covered by the final rule. OSHA is not adopting a rule requiring AEDs because the record is insufficient for the Agency to conclude that these devices will be effective in the conditions under which they would be used. OSHA encourages employers to purchase and deploy AEDs in areas where they could be useful and efficacious. This action likely will save lives and provide the Agency with useful information on the use of AEDs under a wide range of conditions.”
The 2012 NESC directs employers to ensure employees are instructed in first aid and emergency procedures, including approved methods of resuscitation. 2012 NFPA 70E gets specific in Article 110.2 (C) Emergency Procedures by stating employees exposed to shock hazards and those responsible for taking action in case of emergency be trained in the following areas:
1. appropriate methods of release
2. first aid and approved methods of resuscitation
b. AED use.
Some states require a doctor’s prescription to purchase and deploy AEDs. Recommended best practices include the following.
1. For the non-fixed locations: Since many line-truck activities utilize multiple vehicles, consider purchasing one or two, depending on company size, and deploy them on the trucks. Have their function and calibration checked after the summer and winter extremes to validate OSHA’s concerns and your diligence to worker safety.
2. For fixed locations: The evidence is in; AEDs in fixed locations work. Deploy enough in the switchgear rooms or electrical areas to be potentially effective. At least make AED units available to the electrical workers as part of the job-ready tool list and issue them accordingly. Ensure the job briefing prior to beginning work includes a discussion on AED use and who will be the ones to obtain and use them if needed.
At least two employees shall be present in five conditions. Four of these are when the employee is performing specific tasks while exposed to voltages greater than 600 V. The final condition is work that exposes an employee to electrical hazards greater than, or equal to, the electrical hazards posed by operations listed in the other four. Two criteria come to the mind:
- when the employees are working from a position in such close quarters they may not be able to notice when they encroach too close to other energized electrical conductors or circuit parts
- where the arc flash incident energy, or remoteness of the area where that work is being performed, might create a greater hazard to the employee or increase injury by delayed or lack of appropriate response (Figure 3).
Figure 3. The two-person rule applies to circumstances where the arc flash incident energy, or remoteness of the area where that work is being performed, might create a greater hazard to the employee or increase injury by delayed or lack of appropriate response.
In the June 2005 proposal to the rule change, OSHA requested comments on whether to extend the two-person rule to any operations involving work on installations operating at 600 V or less. Most commenters opposed this change. The comments reinforced the chasm that remains in perceiving hazard awareness in the electrical industry by both employer and employee alike: “Some rule-making participants likened this work to the work performed by electricians, for which consensus standards do not require the presence of two people.” High-voltage and low-voltage, or utility and non-utility electrical, workers do not think the same way about the electrical hazards. Although there exists less specificity about the low-voltage hazards in the Agency’s records, the hazard of electrocution begins at 50 V. The purpose of the second-person requirement is to prevent fatalities from electric shock by direct supervision of the task or immediate response if an incident would occur. OSHA did not adopt the proposed requirement but anticipates “in certain cases, an employer will need to ensure that at least two trained persons are present for such work to satisfy the employer’s obligations under the general duty clause.” In the preamble OSHA reiterates that the exceptions to the two-person rule will be “interpreted and applied narrowly.”
Recommended best practices include the following.
1. Ensure employees are trained just as thoroughly and effectively when work tasks are 600 V and below as they are when working above 600 V.
2. Set clear guidelines in the electrical safety program about the tasks employees are expected and allowed to do when working alone.
3. Develop job hazard analysis procedures that are task-specific to include criteria to question the number of workers needed and the training/qualification of the workers chosen.
Robert S. LeRoy, CESCP - A recognized subject matter expert in the NFPA 70 (NEC), 70B/NETA-MTS (Recommended Maintenance Practices) and 70E (Workplace Electrical Safety), Mr. LeRoy is an electrical safety and compliance consultant to industrial clients worldwide. Mr. LeRoy is a master electrician, certified electrical inspector, certified electrical safety compliance professional performing electrical safety and compliance consultanting to clients worldwide. With 42 years in the electrical industry he is a licensed master electrician and electrical inspector. As the past Director of Electrical Programs for a major international training company he has consulted with and trained thousands of workers for clients in the US, Canada and 17 other countries around the world. He is an active member of NFPA, IAEI, IEEE and ASSE. Mr. LeRoy is the author of numerous articles, training manuals and curriculum as well as a sought after conference speaker focusing on safety training and compliance.
After a long and arduous process, the new rules covering electrical generation, transmission, and distribution are finally here. Blog sites and industry communications are echoing with comments ranging from “It says what?” to “OK, now what does this really mean to me?” Some feel OSHA went a bit too far and supersized the rule and included items that should perhaps have been left to the employer’s discretion. Others indicate the final rule was just about what was expected and reflected new technology and work practices in regulation that the industry has already imposed upon itself by means of current consensus standards. Both may be true.
In the past several years, I’ve been privileged to meet and speak with many of the individuals who sit on our industry’s committees and are responsible for the consensus standards and regulations listed in this article. Regardless of their minimalist (regular size) or extremist (supersize) views, one thing is solidly common between them: They express a passion about the purpose of personnel protection.
The rule-changing procedure is much longer of a process than writing a consensus standard. As such, the industry can police itself and begin to introduce ideas into work practices long before they become law. Such has been the case with most of the changes expressed in this final rule. The majority of firms are likely already in compliance with most of the new rules requiring only a few minor adjustments. Those companies that have chosen the wait-and-see business model have some ground to make up. The enforcement dates given in the final rule don’t seem overly oppressive, but in retrospect they could be painful if a firm were just beginning. The bar has been set just a little higher and the focus and energy to clear it just a bit more intense. Workplace safety even from the unseen electrical hazard is attainable. The goal is well worth the cost.