Sparks Will Fly at 1910.269 Hearing

The proposal is OSHA's most important rulemaking of 2005; it will have a big impact.

A 90-day postponement delayed it just as this column was being written, but the tug of war over OSHA's proposed expansion of 29 CFR 1910.269 and related rules is still looming. Shortly before the comment period's original closing date of Oct. 13, about 40 people had filed notices of intent to appear at the agency's hearing that was moved to March 6, 2006, in Washington, D.C. Testimony there will come from several camps--including contractors, unions, protective apparel manufacturers, and electric utilities--that will be affected if OSHA changes its standards regarding construction and maintenance of electric power generation, transmission, and distribution lines and equipment and applies the same rules to the construction industry.

The National Electrical Contractors Association and several other organizations asked for the delay, saying their personnel were busy with hurricane response and needed more time. OSHA, having granted it, should be ready for a spirited debate. One challenger will be Stephen C. Yohay, a partner in the Washington law firm Arent Fox who represents the Edison Electric Institute (EEI) in its lawsuit to overturn a June 2003 OSHA lockout/tagout directive. In a 62-page paper for EEI listing concerns about the agency's proposal (www.eei.org/meetings/nonav_2005-08-16-cs/RULEMAKING_SubpartV.pdf.), Yohay and colleague Michael C. Taylor say many items in the proposal are worrisome, especially language on arc-rated clothing for employees who are exposed to electric arcs: "Depending on the method that is used, an employee could be required to wear FR clothing that is either inadequate or excessive."

The proposal is OSHA's most important rulemaking of 2005; it will have a big impact. Contractors may oppose the new provisions on host employers and contractors; utilities may dispute whether flame-resistant clothing is PPE and will try to head off an employer-payment requirement. AEDs, training, recordkeeping, enclosed spaces, minimum approach distances, arc potential, grounding, work on underground and overhead installations, and many more areas are covered, with the possibility that language from NFPA 70E and other standards may be incorporated. No wonder so many witnesses want to testify. OSHA cites a $34 million estimated annual cost against $135 million in annual benefits. Can another lawsuit be far behind?

This editor's note appeared in the December 2005 issue of Occupational Health & Safety.

This article originally appeared in the December 2005 issue of Occupational Health & Safety.

About the Author

Jerry Laws is Editor of Occupational Health & Safety magazine, which is owned by 1105 Media Inc.

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