Edison Elec. Institute v. Occupational Safety and Health Admin., No. 86-1486

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore EDWARDS and D.H. GINSBURG; D.H. GINSBURG
Citation849 F.2d 611
Parties, 56 USLW 2736, 13 O.S.H. Cas.(BNA) 1744, 1988 O.S.H.D. (CCH) P 28,234 EDISON ELECTRIC INSTITUTE, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Respondent.
Docket NumberNo. 86-1486
Decision Date07 June 1988

Page 611

849 F.2d 611
270 U.S.App.D.C. 280, 56 USLW 2736,
13 O.S.H. Cas.(BNA) 1744,
1988 O.S.H.D. (CCH) P 28,234
EDISON ELECTRIC INSTITUTE, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Respondent.
No. 86-1486.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 18, 1987.
Decided June 7, 1988.

Page 613

Petition for Review of an Order of the Occupational Safety and Health Administration.

Stephen C. Yohay, with whom Robert E. Williams, Washington, D.C., was on the brief, for petitioner. Mark E. Baker, Washington, D.C., also entered an appearance for petitioner.

Laura V. Fargas, Atty., Dept. of Labor, with whom Cynthia L. Attwood, Associate Sol., and Sandra Lord, Acting Counsel for Dept. of Labor, Washington, D.C., were on the brief, for respondent. Joseph M. Woodward, Atty., Dept. of Labor, Washington, D.C., also entered an appearance for respondent.

Dale R. Schmidt, Washington, D.C., was on the brief for amicus curiae Nat. Elec. Manufacturers Ass'n. Elihu I. Leifer, Washington, D.C., was on the brief for amicus curiae Intern. Broth. of Elec. Workers, AFL-CIO, urging reversal.

Before EDWARDS and D.H. GINSBURG, Circuit Judges, and McGOWAN, * Senior Circuit Judge.

Opinion for the Court by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

The Edison Electric Institute ("EEI") petitions for review of certain provisions of the revised Electrical Standards for Construction, 29 C.F.R. Part 1926, Subpart K (1987) ("revised Subpart K"), issued by the Occupational Safety and Health Administration ("OSHA" or "the agency") pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et seq. (1982 & Supp. IV 1986) ("the OSH Act" or "the Act"). Subpart K sets forth electrical safety

Page 614

requirements designed to protect employees involved in construction work. Following an informal rulemaking, OSHA promulgated revised standards that became effective on October 9, 1986, and are now codified at 29 C.F.R. Sec. 1926.400 et seq. (1987). EEI, an association of investor-owned electric utilities, challenges three separate provisions of revised Subpart K as applied to the electric utility industry, namely, 29 C.F.R. Sec. 1926.402(b) (1987), limiting the scope of Subpart K; 29 C.F.R. Sec. 1926.432(a) (1987), requiring laboratory testing of certain equipment, and 29 C.F.R. Sec. 1926.417(b) (1987), governing the locking and tagging of deenergized circuits. 1 For the reasons discussed below, we deny the petition for review.

I.

The OSH Act was adopted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. Sec. 651(b). In order to effectuate these policies, the Act authorizes the Secretary of Labor to promulgate "occupational safety and health standards" governing worker exposure to health and safety hazards in the workplace. 2 The Act provides three means for promulgating these standards. First, for the two year period following the effective date of the Act, Sec. 6(a) allowed the Secretary to adopt as an occupational safety and health standard any then-existing "national consensus standard" or "established Federal standard" without following the procedures set forth in the Administrative Procedure Act. 29 U.S.C. Sec. 655(a). Second, Sec. 6(b) of the Act allows the Secretary to promulgate, modify or revoke safety standards after notice and comment rulemaking proceedings. 29 U.S.C. Sec. 655(b). Finally, Sec. 6(c) allows the Secretary to promulgate emergency temporary standards when necessary to protect employees from a "grave danger." 29 U.S.C. Sec. 655(c). This rulemaking authority has been delegated by the Secretary to the Assistant Secretary for Occupational Safety and Health, who heads OSHA.

OSHA has enacted three existing standards governing electrical safety in the workplace. Two of these standards, Subparts K and V of 29 C.F.R. Part 1926, address electrical safety in construction work. The former governs general electrical safety requirements for construction, while the latter addresses the more specialized area of safety in the construction of electric transmission and distribution lines. The third standard, Subpart S of 29 C.F.R. Part 1910, governs electrical safety in general industry workplaces.

This case involves Subpart K, which was adopted in 1971 pursuant to Sec. 6(a) of the OSH Act. Its provisions were drawn from the electrical safety regulations originally issued under Sec. 107 of the Construction Safety Act, 40 U.S.C. Sec. 333 (1982). See Safety and Health Regulations for Construction, 36 Fed.Reg. 7340 (1971); Redesignation of Safety and Health Regulations for Construction, 36 Fed.Reg. 25232 (1971). In addition to adopting these pre-existing federal regulations, former Subpart K also incorporated by reference the 1971 National Electrical Code ("the NEC"), a model code promulgated by the National Fire Protection Association ("NFPA"). 3 See 36

Page 615

Fed.Reg. 7370 (1971); Notice Concerning Applicability of Certain Electrical Standards, 37 Fed.Reg. 3431 (1972). The 1971 NEC was also incorporated by reference and by the direct adoption of certain provisions, into former Subpart S. See 36 Fed.Reg. 10466 (1971), 37 Fed.Reg. 3431 (1972).

In 1979, OSHA decided to revise the electrical safety standards for general industry contained in Subpart S. See Notice of Proposed Rulemaking, 44 Fed.Reg. 55274 (1979). As part of this revision, OSHA proposed that all the relevant provisions of the NEC be included in the text of the regulations, thereby eliminating the need to incorporate the code by reference. See id. at 55276. Following notice and comment, this change was adopted in the final revision, which was published on January 16, 1981, and became effective on April 16, 1981. See Final Electrical Standards, 46 Fed.Reg. 4034 (1981).

After the revision of Subpart S, OSHA turned to the revision of Subpart K, the standard at issue in this litigation. On January 2, 1982, a draft of the proposed revision was prepared by OSHA and submitted to the Advisory Committee on Construction Safety and Health ("the Advisory Committee"). After the Advisory Committee discussed this draft at their meeting of March 3, 1982, OSHA reviewed the suggested changes and published a revised proposal and notice of proposed rulemaking. See 48 Fed.Reg. 45872 (1983). According to the notice, the proposal was designed to place the relevant NEC requirements directly in the text of the standard, integrate the existing requirements of Subpart K into a new format, and draft the requirements in "performance language" so that "changes in technology could be accommodated, without compromising safety." Id. Thirty-six written comments were filed in response to the notice. On April 10, 1984, a hearing was held before an administrative law judge. The final revised Subpart K was published on July 11, 1986, with an effective date of October 9, 1986. 51 Fed.Reg. 25294. This petition followed. 4

II.

The petitioner's most significant claim is that the revised standard, for the first time, extends some provisions of Subpart K to electrical installations in utility power generation plants. EEI contends that prior to this revision, these generating plants were completely exempt from regulation under Subpart K by virtue of the "utility exclusion" contained in the NEC and incorporated by reference into the original Subpart K. Because the agency did not adopt the language of that exclusion verbatim in the revised Subpart K, petitioner asserts that it has "created uncertainty and confusion" by applying inappropriate requirements to utility power plants. EEI contends that "[t]he resulting standard would have an enormously adverse impact on the industry and ... will not serve the cause of utility employee safety." Petitioner argues

Page 616

further that the agency's decision to alter the scope of the utility exclusion was not supported by substantial evidence and that OSHA failed to follow several procedural requirements that are mandatory when an existing safety standard is changed. We conclude that all of these claims must be rejected because the petitioner has failed to demonstrate that the revised standard covers EEI's members any differently than did the original standard.

We start with the language of the exclusion from coverage in revised Subpart K since there is no substantial dispute among the parties as to its meaning. The relevant provision is 29 C.F.R. Sec. 1926.402(b) (1987), which provides:

Not covered. Sections 1926.402 through 1926.408 do not cover installations used for the generation, transmission, and distribution of electric energy, including related communication, metering, control, and transformation installations. (Emphasis added).

The parties agree that this provision, unlike the NEC exclusion that was incorporated by reference in the original Subpart K, applies to generation facilities operated by non-utilities as well as to those operated by the utilities. This change was made in response to the comments of members of the steel industry who successfully argued that their generating facilities should also be entitled to the benefits of the exclusion. See 51 Fed.Reg. 25299 (1986); see also Comments of the American Iron & Steel Institute at 3-5, reprinted in J.A. at 616, 618-20.

It is also agreed that Sec. 1926.402(b) exempts only those "installations," i.e., electrical conductors and equipment, 5 that are actually used for the "generation, transmission and distribution" of electric energy. Thus, installations used for "utilization" purposes, such as lighting or heating (also known as "premises wiring"), are not included within the scope of the exclusion and are therefore subject to Secs. 1926.402 through 1926.408 of revised Subpart K even though they may be located in buildings used for the generation of electric energy. It is the last-mentioned aspect of Subpart K that, petitioner contends,...

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