   

        OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION 

              UNITED STATED DEPARTMENT OF LABOR 

            

       PUBLIC HEARING FOR MINIMUM APPROACH DISTANCES IN 

       THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATIONS 

       PROPOSED STANDARDS FOR ELECTRIC POWER GENERATION, 

       TRANSMISSION, AND DISTRIBUTION 

   

               Docket No.  OSHA–S215–2006–0063 

                 Wednesday, October 28, 2009 

   

   

            The informal hearing in the above-captioned 

  matter was held pursuant to notice, at the U.S. 

  Department of Labor, Room N3457A, B, C, 200 Constitution Avenue, NW, 

  Washington, DC 20210, before Natasha Kornilova, of 

  Capital Reporting, a Notary Public in and for the 

  Commonwealth of Virginia, commencing at 9:42 a.m., 

  before the HONORABLE WILLIAM COLWELL: 

   

                                                   A P P E A R A N C E
S 

  On behalf of the Plaintiffs: 

       Dorothy Dougherty, Director  

       OSHA’s Directorate of Standards and Guidance 

       

       David Wallis, Director 

       OSHA’s Office of Engineering Safety 

    

       Blair Thompson  

       OSHA’s Office of Engineering Safety 

  

       Robert Biersner, Esquire 

       Counsel for Safety Standards in the Department 

       of Labor Solicitors Office 

    

       Lauren Goodman, Esquire  

       Project Attorney, Department of Labor 

       Solicitors Office 

  

       Robert Burt, Director 

       OSHA’s Office of Regulatory Analysis 

    

       Robert Stone, Project Economist 

       OSHA’s Office of Regulatory Analysis 

       200 Constitution Avenue, N.W. 

       Washington, CD 20210 

       (202) 693-1999 

    ALSO PRESENT: 

       Charles J. Kelly 

       Director, Industry Human Resource Issues 

       Edison Electric Institute (“EEI”) 

       701 Pennsylvania Avenue, N.W. 

       Washington, D.C. 20004-2696 

       (202) 508-5155 

    

       Dr. Randy Horton 

       Professional Engineer 

       Alabama Power Company  

       P. O. Box 2641 

       Birmingham, Alabama  35291 

    

       Stephen Yohay, Esquire,  

       Ogletree Deakins Law Firm 

       2400 N. Street, N.W. 

       Washington, D.C.  20037 

       (202) 263-0255 

    

       James Tomaseski, Director 

                   P R O C E E D I N G S 

            JUDGE COLWELL:  Good morning.  This hearing will 

  now come to order.  This is a public hearing on a 

  limited reopening to solicit additional testimonies, 

  evidence, and data on the minimum approach distances in 

  the Occupational Safety and Health Administrations 

  proposed standards for Electric Power Generation, 

  Transmission, and Distribution and elective electrical 

  protective equipment.   

            OSHA published the notice for this proceeding 

  in the Federal Register at Volume 74, Page 46,958 on 

  September 14, 2009.  The proposed Rule was published in 

  the Federal Register on June 15, 2005 at 70 F.R. 

  34,822.  I am Bill Colwell, an Associate Chief 

  Administrative Law Judge for the Department of Labor 

  and I will be presiding at this hearing today.   

            Details of the guidelines for these 

  proceedings are available in the Federal Register 

  Notice of September 14, 2009 and also in Chief Judge 

  John Vittone’s order on October 5, 2009.  Extra copies 

  of these documents as well as copies of OSHA’s 

  tentative hearing schedule are available in the back of   the room
for anyone who needs them.   

            The purpose of this hearing is to receive the 

  oral and written testimony of interested parties as 

  well as other information pertinent to minimum approach 

  distances as discussed in the September 14, 2009 

  Federal Register Notice.  At the conclusion of this 

  hearing, the record of these proceedings, including the 

  record of the hearings held in this Rule making from 

  March 6 to 14, 2006 will be reviewed by the Department 

  of Labor in determining whether a Rule should issue, 

  and if so, what the content of that Rule should be.   

            My participation as presiding officer will be 

  to conduct these hearings to ensure that a complete 

  record is made and that all concerned and interested 

  parties receive a far hearing and an opportunity to 

  participate in these proceedings.   

            All these proceedings can be described as 

  informal.  Several basic guidelines will govern the 

  proceedings to ensure that everyone has an opportunity 

  to speak and express their point of view.  Unduly, 

  repetitious testimony will not be allowed.  The written 

  submissions, already submitted will be a manner of   record.   

            So participants in this proceeding should 

  concentrate their testimony on presenting the 

  highlights for clarifying their written submissions.  

  Witnesses may identify and sponsor the written 

  submissions and then make themselves available for 

  questioning by the other participants.  When a witness 

  or panel finishes testifying I will ask for a show of 

  hands from other hearing participants who wish to 

  question that witness or panel of witnesses.   

            Then I will determine the order in which the 

  interested participants will conduct their questioning 

  and allocate available time among the questioners.  I 

  am asking all participants in this hearing to please 

  turn off cell phones, pagers, and other devices that 

  could disrupt these proceedings.  If you need to make a 

  phone call or take care of other business, please leave 

  the room.   

            Let me begin these proceedings by introducing 

  Ms. Lauren Goodman from the Office of the Solicitor.  

  Ms. Goodman? 

            MS. GOODMAN:  Thank you, Judge Colwell.             JUDGE
COLWELL:  You are welcome. 

            MS. GOODMAN:  Good morning, everyone.  My name 

  is Lauren Goodman.  I am the project attorney for this 

  rulemaking.  On behalf of the Office of the Solicitor, 

  I would like to welcome you to this informal public 

  hearing.   

            The role of the Solicitor’s Office in this 

  hearing is to facilitate the development of a complete, 

  clear, and accurate record upon which OSHA can base its 

  final Rule.  We will do this by asking questions of the 

  witnesses as necessary and working with the OSHA 

  representatives to elicit information on the 

  substantive issues that arise today.   

            We will also be here to assist with the 

  resolution of any procedural issues that might come up.  

            At this time, Your Honor, I would like to 

  offer you the master index of the complete record of 

  this rulemaking to date for inclusion in the hearing 

  record. 

            JUDGE COLWELL:  Thank you. 

            MS. GOODMAN:  This is not a copy of all the 

  documents that have been submitted to the docket,   rather it is a
list of all the documents that are 

  contained in the public docket of this Rule making, 

  Docket number OSHA-S215-2006-0063.  All of the 

  documents are available for inspection and copying at 

  the OSHA docket office in room N-2625 in this building.  

  In addition, the documents are listed in the docket 

  index for this rulemaking at regulations.gov, the 

  federal e-rulemaking portal.   

            I would like to take this opportunity to 

  request that the witnesses provide me with copies of 

  their testimony and any other documents they use today.  

  They should hand these documents prior to providing 

  their testimony if possible.  If they do not have 

  copies of these documents, but want the documents 

  entered into the docket, they can hand them to me at 

  the completion of their testimony.   

            Finally, I want to remind the hearing 

  participants of the limited scope of today’s hearing.  

  As indicated in the September 14, 2009 hearing notice, 

  all presentations and questions today should be 

  confined to matters pertinent to minimum approach 

  distances and the specific questions raised in the   September 14,
2009 reopening notice.   

            Now I would like to introduce Dorothy 

  Dougherty, the Director of OSHA’s Directorate of 

  Standards and Guidance, who will present a welcoming 

  statement and introduce the rest of the OSHA panel. 

            MS. DOUGHERTY:  Thank you.  Good morning, 

  Judge Colwell, ladies and gentlemen.   

            I am Dorothy Dougherty, the Director of the 

  Directorate of Standards and Guidance in the 

  Occupational Safety and Health Administration, OSHA.   

            On behalf of OSHA, I welcome you to this 

  informal hearing on the limited reopening of the record 

  for the proposed standards for the electric power 

  generation, transmission, and distribution, and on the 

  proposed standards for electrical protective equipment.   

            I will now introduce the staff that is with me 

  today.  David Wallis, Director of OSHA’s Office of 

  Engineering Safety, and Blair Thompson from OSHA’s 

  Office of Engineering Safety, Robert Biersner, Counsel 

  for Safety Standards in the Department of Labor 

  Solicitors Office, Lauren Goodman, Project Attorney 

  with the Department of Labor Solicitors Office, Robert   Burt,
Director of OSHA’s Office of Regulatory Analysis 

  and Robert Stone, Project Economist with OSHA’s Office 

  of Regulatory Analysis.   

            This hearing on minimum approach distances is 

  an important part of OSHA’s effort to update the 

  existing standard for the construction, operation, 

  maintenance, and repair of electric power 

  installations.   

            OSHA has two standards covering this work.  

  Subpart V of Part 1926, which covers the construction 

  of these installations, and Section 1920.269, which 

  covers their maintenance and repair.                

            Your participation and contributions through 

  your written comments and your testimony on the narrow 

  issues that are the subject of this public hearing are 

  greatly appreciated and will provide important 

  information for the record upon OSHA will base any 

  minimum approach distances that it includes in the 

  final Rule.   

            Today’s informal public hearing on minimum 

  approach distances which commences at 9:30 a.m. is 

  scheduled to end at 1:30 p.m.               On June 15, 2005, OSHA
published a proposed 

  Rule to revise the general industry and construction 

  standards for electric power generation, transmission, 

  and distribution work.  The proposed standards included 

  revised minimum approach distance tables.  Those tables 

  limit how close an employee or a conductive object he 

  or she is contacting my get to an energized circuit 

  part.   

            OSHA developed the minimum approach distances 

  in the proposed Rule using principles adopted from the 

  1993 National Electric Safety Code and the ANSI/IEEE 

  Standard 516-1987.  OSHA received public comments on 

  the proposed standard and held an informal public 

  hearing from March 6 through 14, 2006.  Hearing 

  participants had until July 14, 2006 to file post-

  hearing comments and briefs.   

           After the rulemaking record on the proposal 

  closed the Institute of Electrical and Electronic 

  Engineers Technical Committee that was responsible for 

  revising IEEE Standard 516 identified, what in its 

  view, was an error in its calculation of minimum 

  approach distances voltages.               So on October 22, 2008
OSHA reopened the 

  record on the proposal to obtain comments related to 

  the effected minimum approach distances.  The record 

  remained open on this limited basis for 30 days, or 

  until November 21, 2008.   

            After that first reopening period, the IEEE 

  Committee adopted and published a new addition of IEEE 

  Standard 516.  The revised standard adopts a new 

  methodology, using a different set of formulas for 

  calculating phase to phase minimum approach distances for 

  voltages of 72.6 kilovolts and higher.  The new IEEE 

  standard also contains a slightly revised methodology 

  for calculating minimum approach distances for voltages 

  up to 72.5 kilovolts.   

            In light of these recent changes to the IEEE 

  standard OSHA has reopened the record on this proposal 

  for a second time to obtain additional comments on the 

  minimum approach distances specified in OSHA’s 2005 

  proposed rule.   

            The second reopening notice was published on 

  September 14, 2009.  The record remained open for the 

  submission of comments about minimum approach distances   until
October 15, 2009.  In the September 14 Federal 

  Register notice OSHA also announced this public hearing 

  on the limited issues that are the subject of this 

  reopening of the record and that we are here today to 

  discuss.   

            Today OSHA has not revised its proposed 

  standard in any way.  Nor has the agency made a 

  determination as to whether there was an error in the 

  calculation of the minimum approach distances that 

  appeared in the 2005 proposal.  It should be noted 

  however, that the minimum approach distances contained 

  in OSHA’s proposed Rule were based on certain criteria 

  and OSHA will consider any comments or evidence in the 

  records suggesting that its calculations based on those 

  criteria were in error.   

            The OSHA witnesses here today will be glad to 

  answer any questions you may have on the minimum 

  approach distances in OSHA’s 2005 proposal.  However, 

  we will not take questions pertaining to the 

  methodology for calculating the minimum approach 

  distances that is used in the new IEEE Standard 516.   

            We are soliciting information from the public   on those
questions and we anticipate that the record 

  developed in response to the two reopening notices and 

  during and after this hearing will provide sufficient 

  evidence to permit OSHA to make a determination about 

  what the minimum approach distances should be in the 

  final rule. 

            Finally, as OSHA clearly stated in the hearing 

  notice and as I stated earlier, the reopening of the 

  record is limited to issues related to minimum approach 

  distances.  Consequently, OSHA considers questions 

  related to other issues or other provisions in the 

  proposed standard to be beyond the scope of this 

  hearing.   

            I know that all of here today share the goal 

  of protecting America’s employees who construct, 

  maintain and operate electric power installations.  To 

  accomplish that goal, we must ensure that we obtain the 

  best possible information during this rulemaking.  

  Minimum approach distances may be an important part of 

  the final rule and I want to assure you that OSHA will 

  consider all of the information, data, and testimony 

  presented to the agency during the two reopening   comment periods
and part of this public hearing as it 

  drafts the final standard.   

            Once again, thank you for your interest in 

  employee safety and health and for providing your views 

  to the Agency on this matter.  At this time, we will 

  answer any questions the hearing participants may have 

  about the minimum approach distances and OSHA’s 2005 

  proposal. 

            JUDGE COLWELL:  If you would just please raise 

  your hand when anybody who would like to ask questions 

  and identify yourselves.  Sir, please come forward. 

            MS. GOODMAN:  Your Honor, before we commence 

  with (inaudible) turn ourselves over to questioning, I 

  want to -- I’ve marked a copy of OSHA’s opening 

  statements as Exhibit A.  I would ask that this be 

  admitted to the record. 

    [Plaintiff’s Exhibit A was admitted into evidence.] 

            JUDGE COLWELL:  It has now been admitted.  Thank 

  you. 

            MS. GOODMAN:  Thank you, Your Honor.   

            JUDGE COLWELL:  Sir, for the record, please state 

  your full name.             MR. YOHAY:  Yes.  Good morning.  I am
Stephen 

  Yohay of the law firm Ogletree Deakins on behalf of the 

  Edison Electric Institute.   

            Ms. Dougherty, you made a comment in your 

  opening statement, which I did not quite catch, about 

  whether OSHA accepts -- did I understand correctly -- 

  did you make a comment about whether OSHA accepts the 

  premise that there was indeed an error in calculation.  

  Did I hear you correctly? 

            MS. DOUGHERTY:  I do not believe that is 

  accurate. 

            MR. YOHAY:  It went by very quickly and I do 

  not think that I caught it. 

            MS. GOODMAN:  We can clarify the language, but 

  I believe what she said was that she is expecting the 

  record to permit OSHA to make a determination as 

  whether, but let me clarify that. 

            MR. YOHAY:  Okay.  Let me go ahead with the 

  question that I prepared which is, do we understand 

  that the only reason that IEEE 516 can be issued a 

  revised minimum approach distance table was to correct 

  a mathematical error?  Is that OSHA’s understanding   what IEEE was
doing? 

            MS. GOODMAN:  If we can just go back to your 

  first question counselor, I just want to re-read what 

  Ms. Dougherty said.  She said, “To date OSHA has not 

  revised its proposed standard in anyway nor has the 

  Agency made a determination as to whether there was an 

  error in the calculation in the minimum approach 

  distances in the 2005 proposal.” 

            MR. YOHAY:  That is what I thought I heard.  

  Thank you.  Okay.  So do we understand correctly that 

  the only reason IEEE 516 issued a revised minimum 

  approach distances was to correct what they perceived 

  to be a mathematical error? 

            MS. GOODMAN:  We are obviously not in a 

  position to answer questions that really are more 

  appropriate to be directed to IEEE but to the extent --   

            MR. YOHAY:  I am asking what is OSHA’s 

  understanding.  

            MS. GOODMAN:  -- that David wants to talk 

  about --    

            JUDGE COLWELL:  Let her finish her answer. 

            MS. GOODMAN:  -- to the extent David wants to   respond
with respect to OSHA’s understanding I --   

            MR. YOHAY:  That is my question.  What is your 

  understanding what they did and why they did it?  

            MR. WALLIS:  This is my understanding.  I 

  attended at least one of the meetings where that was 

  discussed and --   

            MR. YOHAY:  In what, an error in what?  What 

  was the error that they discussed? 

            MR. WALLIS:  In calculating the phase-to-phase

  minimum approach distances at certain voltage levels. 

            MR. YOHAY:  Has OSHA yet developed a view on 

  how the correction of that error, if indeed it were a 

  correction, would further protect the safety of 

  employees performing electric line work? 

            MR. WALLIS:  No, we have not made that 

  determination and since we have not decided whether or 

  not it’s an error, we obviously have not made a 

  conclusion with respect to your, to that other issue 

  either. 

            MR. YOHAY:  Is OSHA considering adopting the 

  table as published by IEEE?   

            MR. WALLIS:  That is one of the pieces of   information in
the record and so yes, to answer your 

  question, yes we are considering that.  

            MR. YOHAY:  All right.  If OSHA is considering 

  adopting the IEEE standard in the final Rule, does OSHA 

  have any plan to present the IEEE 516-2009 Standard for 

  comment from by Advisory Committee on Construction 

  Safety and Health in as much as it would be 

  incorporated into the Construction Standard?   

            MS. GOODMAN:  We appreciate that as a comment.  

  That is something we will need to deliberate about 

  internally.  I do not think we are prepared to take a 

  position on that right now. 

            MR. YOHAY:  Okay.  You will hear it again as a 

  comment indeed.  I need to ask you this question.  

  Given the potential significance of the minimum 

  approach distances to the electric utility and 

  electrical contracting industry, why does the Agency 

  refuse allow disinterested parties more than thirty 

  days to evaluate the impact of the distances in 

  submitting comments?  What was the rush? 

            MS. GOODMAN:  I am not certain understanding 

  your question.  Are you asking about the thirty days   that we have
allowed comment period?     

            MR. YOHAY:  Yes.  Why was the comment period 

  limited to thirty days when this is such a potentially 

  significant issue to this American industry? 

            MS. GOODMAN:  Well, not an entirely accurate 

  representation.  We had thirty days in the pre-hearing 

  comment period and we will have time post-hearing to 

  submit additional data and evidence as well as 

  additional comments and briefs.  So this suggestion 

  that the industry was given a total of thirty days, I 

  do not believe is accurate.  And as always, we set our 

  time frames on what we believe to be necessary and we 

  did not receive this in response to the latest re-

  opening notice, any requests for extensions of time on 

  that comment period. 

            MR. YOHAY:  So if I understood you correctly, 

  you have determined that you will allow an additional 

  or request the Judge to allow additional period of time 

  for submission of evidence and comments. 

            MS. GOODMAN:  Yes, we will. 

            MR. YOHAY:  Okay, good.  What value, if any, 

  does OSHA perceive in having its minimum approach   distances in
1910.269 in Subpart V disharmonize with 

  the most current addition of the National Electric 

  Safety Code? 

            MR. WALLIS:  I missed your question. 

            MR. YOHAY:  What value if any, does OSHA 

  perceive in having its minimum approach distances in 

  final 1910.269 in Subpart V disharmonize with the most 

  current addition of the National Electric Safety Code? 

            MR. WALLIS:  The Occupational Health and 

  Safety Act requires us to evaluate any final Rule issue 

  to determine whether or not it significantly departs 

  from a National Consensus Standard and if it does, we 

  have to explain why it better effectuates the purpose 

  of the act. 

            MR. YOHAY:  And that --   

            MR. WALLIS:  And so we would evaluate that as 

  one of several considerations in determining whether or 

  not we are furthering the purpose of the act in either 

  conforming to or deviating from the National Electrical 

  Safety Code. 

            MR. YOHAY:  And so then, does OSHA agree that 

  the National Electric Safety Code is a National   Consensus Standard?


            MR. WALLIS:  Yes, it is one. 

            MR. YOHAY:  Is the IEEE 516 Standard a 

  National Consensus Standard in the same way that any 

  NESC is in OSHA’s view? 

            MR. WALLIS:  We do not have a position on 

  that right now. 

            MR. YOHAY:  Okay.  Considering that NESC is a 

  National Consensus Standard, am I correct that OSHA 

  particularly, Mr. Wallis is familiar, with the code 

  revision, the NESC code revision schedule for, that 

  will ultimately yield the 2012, I think it is, Edition 

  of the NESC?   

            MR. WALLIS:  Yes, we are aware of that and if 

  I could add to my previous answer, we do consider the 

  IEEE 516 Standard to be a National Consensus Standard 

  and if you would like to make arguments that one 

  standard should be considered more important so to 

  speak than the other I would encourage you to include 

  that in your post-hearing comments. 

            MR. YOHAY:  It is already in the comments, you 

  will hear more.  But, this is the question.  Would OSHA   consider
awaiting the publication of final minimum 

  approach distances in the NESC either until the NESC 

  Subcommittee 8 adopts its recommendations or until the 

  final ballot for the new NESC for 2011 and just to 

  explain my question; what you’re going to hear from us 

  is, would OSHA consider proceeding with the rest of the 

  Rule making if that is your determination to do so 

  while sort of separating out and keeping the record 

  open on minimum approach distances?  The point being 

  not to delay the completion of the rulemaking, but to 

  await at least the substantive completion of the next 

  round of the NESC.  Would you consider that? 

            MS. GOODMAN:  We will consider all of the 

  options that are on the table.  This is, I would say, 

  an important issue and we want to try to get it right 

  based on as much information as we can.  But we also 

  have to think practically how we can manage the Rule 

  making and how we can -- obviously this has been a long 

  time coming and we’d like to get most, if not all the 

  Rule complete in as rapid a time as we can.  So it is 

  obviously something we will consider, but we have not 

  made a determination as to how we will proceed at this   point.   

            MR. YOHAY:  Does OSHA at the moment have any 

  evidence that employees who have been performing 

  transmission, distribution line work subject to 

  1910.269 and Subpart V, have been at significant risk 

  of harm under the existing minimum approach distances?   

            MR. WALLIS:  That will be part of the record 

  of this.  We have not made that determination.  We will 

  make that determination as part of --  when we examine 

  the record. 

            MR. YOHAY:  I did not ask if you had made a 

  determination.  I asked is there anything in the record 

  today that you know of that addresses that question. 

            MR. WALLIS:  Yes. 

            MR. YOHAY:  And have -- is there evidence that 

  there has been harm suffered by employees (inaudible) 

  at risk under the existing clearance distances? 

            MR. WALLIS:  I can’t answer that questions 

  because we haven’t determined whether there is an error 

  in the minimum approach distance calculations because 

  that will determine, at least in part, it will 

  constitute one piece of evidence as to whether or not   employees are
at significant risk under the current 

  standards or under our proposed Rule. 

            MR. YOHAY:  My point is to get to the 

  question, whether it would put employees at risk to 

  follow the suggestion I just made, which is, finish the 

  rest of the Rule making while waiting for the NESC 

  process to complete itself without risking harm to 

  employees.  Is now as a matter of public record this 

  proceeding is not the only one at the moment in which 

  OSHA proposes changes in Subpart V.  There is another 

  public proceeding where the record is open and changes 

  Subpart V and that is a proposal to revise the Cranes 

  and Derricks Standard to construction.   

            Is OSHA considering the IEEE minimum approach 

  distances in the Cranes and Derricks Standard?  Or is 

  OSHA considers how IEEE 516 would affect work done 

  under the Cranes and Derricks Standard? 

            MS. GOODMAN:  That is not something that the 

  panel here is prepared to answer.  This is the OSHA 

  team that is responsible for the Subpart V making.  We 

  do not have the representatives here today who are 

  responsible for handling the Cranes Rule making.  I   understand
there is overlap and OSHA is aware of that 

  and its considering it. 

            MR. YOHAY:  Well, is there any plan to 

  coordinate OSHA’s work on Subpart V on this Rule making 

  with this work on the same standard in the Cranes and 

  Derricks proposal? 

            MS. GOODMAN:  Well this is um, a question that 

  is beyond the scope of this hearing.  This hearing is 

  limited to minimum approach distances but I will say 

  that it is something that we are cognizant of and we 

  will take steps to address.  We know that there is 

  overlap. 

            MR. YOHAY:  Well, has the IEEE Standard, the 

  new one 516-2009 that incorporated into the Rule making 

  record in the Cranes and Derricks proposal? 

            MS. GOODMAN:  I do not think we know that 

  here.  

            MR. YOHAY:  Does OSHA plan to incorporate the 

  record generated by the Federal Register proposal in 

  this situation, in this hearing, into the Cranes and 

  Derricks Rule making record?  Is that a plan? 

            MS. GOODMAN:  Again, we cannot answer that   question. 
That is a question that will have to be 

  asked of the Cranes Rule making team. 

            MR. YOHAY:  Do you disagree with me that if 

  you change Subpart V in this proposal that it is going 

  to have an impact on Cranes and Derricks if Subpart V 

  is used in that Standard? 

            MS. GOODMAN:  That is a question again, that 

  we are not prepared to answer.  This is a hearing 

  limited to minimum approach distances and Subpart V 

  proposal as potentially impacted by the new IEEE 

  standard. 

            MR. YOHAY:  I would suggest to you that it is 

  impossible for the electric utilities to come and 

  impact --    

            JUDGE COLWELL:  Excuse me, sir.  You are asking 

  questions.  Just ask questions.  You are not allowed to 

  make statements now. 

            MR. YOHAY:  Thank you.  Do you understand the 

  degree that in order to fully assess the impact of 

  changes in Subpart V, even for purposes for this 

  proposal, electric utility and electrical contracting 

  industries need to consider how those changes in that   standard will
affect the use of Cranes and Derricks 

  even to comment on this proposed rule successfully. 

            MS. GOODMAN:  I am not sure I understand the 

  question. 

            MR. YOHAY:  Well, --    

            JUDGE COLWELL:  I want you to move on to another 

  set of questions.  I think we have hit that -- you have 

  talked about that enough.  Try to answer another set of 

  question. 

            MR. YOHAY:  Does OSHA have any plan to engage 

  in expert, technical experts to review the technical 

  issues in this case, in this proceeding? 

            MR. WALLIS:  Yes. 

            MR. YOHAY:  Is that person under contract with 

  OSHA? 

            MR. WALLIS:  No. 

            MR. YOHAY:  Will you place the analysis of any 

  expert who reviews these proceedings into the record to 

  allow public comment on that review? 

            MR. WALLIS:  I do not think that is something 

  we are considering.  Typically, what we do when we use 

  contractors is, they will review technical information   for us, and
we consider that as basically an element of 

  our review of the record.  It is not new information.  

  It is an analysis of information in the record. 

            MR. YOHAY:  Can you see any reason why the 

  public should not have an opportunity to be informed of 

  that analysis and have the opportunity to comment on 

  it? 

            MS. GOODMAN:  That analysis will ultimately be 

  incorporated into our final Rule; I think is what David 

  trying to say. 

            MR. WALLIS:  Right.  Basically, that analysis 

  is an adjunct of the Agency’s function in analyzing the 

  record. 

            MR. YOHAY:  That is my point exactly.  So I 

  ask you again --   

            MR. WALLIS:  So the way and what I mean and 

  if I could explain that further.  When the OSHA and 

  team review the record, our analysis of that record is 

  not submitted to the docket for public review.  It is 

  published in, as part of the preamble for the final 

  Rule.  And so, any contract that we let to analyze the 

  record would be part of our analysis in the same way.             MR.
YOHAY:  It’s not my rule to testify at 

  this function, but I would ask that you entertain the 

  prospect that since there is obviously, as you said in 

  your opening statement, such confusion about the IEEE 

  Rule; this would be an occasion where any analysis of 

  it would be appropriate to show the industry and the 

  affected industry and let people have the opportunity 

  to act.   

            MR. WALLIS:  We are prepared to submit any 

  additional opinions or facts that are not part of the 

  record from our contractor.  We are prepared to put any 

  of that information into the record. 

            MR. YOHAY:  I have no further questions.  

  Thank you for your patience.   

            JUDGE COLWELL:  Thank you, Mr. Yohay.  Is there 

  anybody else that would like to ask questions of the 

  panel?   

            Mr. Tomaseski, please come forward.  Please 

  identify yourself for the record by stating your full 

  name. 

            MR. TOMASESKI:  Good morning.  I am James 

  Tomaseski, Director of Safety and Health from the   International
Brotherhood of Electrical Workers, and I 

  just have one question of the OSHA panel.  I think in 

  one of the questions that Mr. Yohay posed to the panel, 

  you acknowledged that the NESC Subcommittee that is 

  responsible for work on Part 4 is still in progress, 

  that work is still in progress.   

            My question is the relationship that I think 

  has been established between OSHA Regulations and the 

  NESC which goes back even to the Subpart V in the 

  existing minimum approach distances tables, there is a 

  long term relationship in terms either by reference or 

  use of the distances and so forth that have been 

  available to workers, available to employers to put 

  into their safety manuals and etcetera, and where we 

  are right now in this process, I guess my question is, 

  is OSHA still interested in keeping this relationship 

  going in terms of --   

            MS. GOODMAN:  Your Honor, I would like to know 

  if there is being a question asked or if we would just 

  present this as part of the testimony. 

            JUDGE COLWELL:  It sounded like; I think he was 

  getting to his question now.              MR. TOMASESKI:  Well, that
was my question.  

  In terms of keeping this relationship, is OSHA still 

  interested in using the NESC as a reference or getting 

  guidance from the NESC in terms of developing their 

  final Rule on this issue of minimum approach distances? 

            MR. WALLIS:  I guess the answer is yes.  I 

  mean, up to a certain point as long as the record is 

  open we can consider whatever information is in the 

  record to the extent that NESC is a recognized standard 

  for the work, then the answer would have to be yes.   

            MR. TOMASESKI:  That is all I have.  Thank 

  you. 

            JUDGE COLWELL:  Any other individuals who would 

  like to ask questions of the panel?   

            At this point, I would like to ask Mr. 

  Tomaseski to please come forward to be a witness.  

  Would you please have a seat and raise your hand?  Do 

  you swear and affirm that all the testimony you should 

  give in this hearing should be the truth, the whole 

  truth and nothing but the truth? 

            MR. TOMASESKI:  Yes, I do. 

            MS. GOODMAN:  Your Honor, we do not typically   swear in
witnesses. 

            JUDGE COLWELL:  Okay.  I am sorry.  I did on the 

  last one.  Let me just for the record again, please 

  state your full name and whom you are testifying for. 

            MR. TOMASESKI:  My name is James Tomaseski and 

  I am testifying on behalf of the National Electric 

  Safety Code. 

            JUDGE COLWELL:  Thank you very much. 

            MR. TOMASESKI:  Good morning again, and I 

  appreciate this opportunity to offer this testimony on 

  an issue that is important to the safety of line 

  workers in our country.  My position I hold with the 

  International Brotherhood of Electrical Workers is 

  Director of Safety and Health, but I am also Chairman 

  of the Subcommittee 8 from the National Electrical 

  Safety Code that is responsible for writing the Work 

  Rule Section of the Code.   

            I am also a member of the Interpretation 

  Subcommittee that develops and issues all 

  interpretation requests that are submitted to the Code, 

  I am also a member of the Executive Subcommittee of the 

  NESC, and I also hold the position as Vice-Chairman of   the National
Electric Safety Code.   

            I offer this testimony with the approval of 

  both Subcommittee 8 and the Main Committee of the NESC.   

  Just to offer a little bit of history about the 

  National Electric Safety Code, it was initially 

  developed in 1913 to bring consistency and safety to 

  the design, construction, and use of electric supply 

  communication installations throughout the United 

  States.   

            The requirements of the original NESC were 

  based on engineering theory and general accepted good 

  practices.  The Code has been revised many times since 

  the development of the original version and during each 

  revision process, members of the various Technical 

  Subcommittees responsible for their specific section 

  have continued to base decisions on sound engineering 

  principles and practical work practices.   

            The scope of the NESC states that the NESC 

  covers supply and communication lines, equipment and 

  associated work practices employed by public or private 

  electric supply, communications, railway, or similar 

  utility in the exercise of its function as a utility.    The purpose
of the NESC is straight forward; the 

  practical safeguarding of persons during the 

  installation, operation, or maintenance of electrical 

  supply, communication lines or associated equipment.  

  The NESC contains the basic provisions that are 

  considered necessary for the safety of the employees 

  and the public under the specified conditions.   

            The steadfast attention to the detail of the 

  work by the Technical Subcommittees ensure that the 

  NESC continues to be a stronghold in the U.S. 

  electrical industry and communications utility field 

  and serves as the authority on safety requirements for 

  power, telephone, cable T.V., and railroad signal 

  systems.   

            The NESC is revised every five years.  It used 

  to be three years and in recent times, we have changed 

  that revision cycle to five years.  Change proposals or 

  CP’s as their commonly called are submitted for 

  consideration that utilized a public access process.  

  The submitted CP’s are assigned to the appropriate 

  Technical Subcommittee for their review and 

  consideration.  The Technical Subcommittee then   develops a position
on each one of the submitted CP’s 

  which is then published in what’s called the preprint 

  or a draft of the next addition of the National 

  Electric Safety Code.   

            The Technical Subcommittee actions in the 

  preprint are reviewed and commented on by interested 

  members of the public.  Each Technical Subcommittee is 

  required to review these public comments and decide the 

  merit and validity of the comments prior to proposing 

  the final draft.  This final draft is published again 

  for public review prior to final approval.   

            The NESC is in the middle of the revision 

  cycle for the 2012 Edition.  The CPs have been 

  submitted and each one of the Technical Subcommittees 

  have finished their initial review.  The preprint for 

  the 2012 Edition of the NESC was published and made 

  available to the public on September 1, 2009.   

            The public comment period is scheduled to end 

  on May 1, 2010 and the Technical Subcommittees will be 

  scheduled to meet again during the months of September 

  and October of 2010 to review the comments that were 

  submitted by the public.  The final ballot for the 2012   Edition of
the NESC will be circulated on January 15, 

  2011 and the 2012 Edition of the NESC will be published 

  in August of 2011 and have an effective date of January 

  1, 2012. 

            The history of minimum approach distances or 

  MAD as we commonly refer to that in the NESC goes back 

  to the very first Edition of the Code.  In that first 

  edition, in Part II on General Rules of Employees, had 

  a minimum approach distance table and it was titled 

  “Handling Live Equipment and Lines” and there was, it 

  was a very simple table; there was only four -- four 

  entries.  Starting at 7500 Volts and concluding at 

  70,000 Volts.  There were additional provisions that 

  allowed for reducing required distances in dry 

  locations and the documentation available for the older 

  Edition of the NESC, the methodology used to establish 

  those distances was not available.   

            Since the first NESC minimum approach 

  distances both in theory and in actual values, have 

  evolved dramatically.  In the current revision cycle, 

  and the reason solely responsible I think for this 

  hearing and the reopening of the OSHA Record, the NESC   is faced
with deciding how to resolve these issues with 

  the MAD, some of the MAD concepts changing again.   

            In the recent edition of the NESC the 

  Technical Subcommittee or Subcommittee 8 responsible 

  for Part IV, which is entitled “Rules for the Operation 

  of Electric Supply, Communication Lines and Equipment”, 

  relied on IEEE 516 the guide for maintenance method on 

  energized power lines as the source for calculation 

  methods for the MAD values.   

            IEEE 516-2009 was in the revision process for 

  a number of years prior to final approval.  Because of 

  the date of the publication of the date of the 

  publication of the 2009 version of this guide, NESC 

  Subcommittee 8 has yet to have the opportunity to 

  review public comment on this issue.  Several CPs or 

  change proposals for the 2012 Edition of the Code were 

  submitted associated with adopting a revised IEEE 516 

  minimum approach distance calculation method which 

  produced for some voltage ranges significant changes to 

  the MAD values.  These CPs were based on unapproved 

  drafts of IEEE 516.  The IEEE Committee responsible for 

  writing the guide was in the process of developing an   acceptable
calculation method and as is noted in the 

  reopening announcement, possible errors were found in 

  the calculation method OSHA used to make their 

  proposal.  The errors, if they exist, need to be 

  corrected and that was one of the primary goals of the 

  IEEE Committee for the 2009 version of their Standard 

  516.  Anyone that participated in any of the 

  deliberations involving the revision of IEEE 516 can 

  attest to the controversy that existed.  We believe 

  that some of the controversies still exist.  Future 

  versions of this guide may contain different MAD values 

  from what is published today.   

            An NESC’s Subcommittee 8 has the task of 

  trying to make sense of and keep up with this evolving 

  problem.  Simply put, the IEEE 516 MAD Tables as they 

  are published today in that guide are confusing.   

            This takes us to the point what Subcommittee 8 

  recommends to OSHA for this Rule making.  The agency 

  should realize this is a difficult issue, not only for 

  the Technical Subcommittee responsible for the 

  different Codes, but most importantly for the users of 

  the Rules.  The MAD concept has been around for a long   time.  Even
though new engineering principles continue 

  to be developed, industry performance associated with 

  these rules have to be considered.   

            We do not believe there is a single accident 

  recorded that occurred from using MAD values that were 

  published in 1910.269 1994.  The question we should be 

  asking ourselves then is when are these changes going 

  to stop?  Subcommittee 8 recently met to discuss this 

  issue and how it applies to the NESC.  And how IEEE 516 

  2009 version can fit in with the NESC and again how it 

  is going to affect this Rule making.  The Subcommittee 

  recognizes the identified errors in the calculations, 

  but they also question the validity of adding 

  significant distance to establish MAD values that have 

  not resulted in any problems.   

            When OSHA revised this Rule, these changes are 

  somewhat permanent.  This rule will probably not be 

  revised again for a long time.  Subcommittee 8 wants to 

  do their part to make sure the MAD Concepts get fixed 

  correctly this time.  The NESC Subcommittee 8 

  recommends that OSHA leave the record open until the 

  time the Subcommittee has the opportunity to review   public comments
as to what MAD values should be in the 

  NESC.   

            The Subcommittee will officially meet to 

  discuss the results of the preprint comment period in 

  the fall of 2010.  Prior to that time, we have 

  established a working group that will have the task of 

  analyzing 516 and how this can or should affect the MAD 

  values contained in the NESC.   

            Once we review the public comment period the 

  Subcommittee will have the opportunity to hear all the 

  arguments for changing or not changing the NESC MAD 

  requirements and values and after the Subcommittee has 

  completed their review and recommended final NESC 

  language, they will have worked through the questions 

  asked in the Federal notice and offer a technically 

  sound recommendation to OSHA on that issue.  That 

  concludes my testimony. 

            JUDGE COLWELL:  You want to take his testimony now 

  and admit it into evidence. 

            MS. GOODMAN:  Do you have something to -- that 

  you would like to introduce to the record Mr. 

  Tomaseski?  Any written testimony other than what you   have already
submitted. 

            MR. TOMASESKI:  Other than what I have already 

  submitted?  No. 

            MS. GOODMAN:  Okay, thank you. 

            MR. WALLIS:  Since you are here testifying on 

  behalf of the NESC, is it correct that you are ready to 

  discuss in detail the methodology used in the 1914 

  minimum approach distances?  

            MR. TOMASESKI:  No. 

            MR. WALLIS:  I guess I will skip those 

  questions.  One of the things -- let me start this 

  question differently.  Can you describe the process, I 

  know you did here a little bit, but can you describe 

  maybe in a little more detail, the process of taking, 

  um, of how the NESC is developed on it; say you take 

  one provision for example, and go through how that 

  provision would be changed from one cycle to the next 

  in the NESC? 

            MR. TOMASESKI:  A change proposal has to be 

  submitted.  That change proposal can come from a member 

  of the public.  A change proposal can come from a 

  member of the Committee, the Subcommittee, or the   change proposal
can be initiated by the Subcommittee 

  itself.  Once the change proposal is submitted, the 

  Subcommittee has responsibility of analyzing that 

  proposal, and they have the responsibility of either 

  rejecting it and developing a reason why they rejected 

  it or they can accept it.  They also develop a reason 

  why the accepted it or they can accept it in part and 

  revise it.   

            There is several different ways they can work 

  that into the new Code.  The preprint that is currently 

  out contains all of the actions that were taken by all 

  the Subcommittees on the Technical Subcommittees on 

  each individual CP that was submitted.  The public now 

  has the opportunity now to review the change proposal 

  itself and review the action that was recommended by 

  the Subcommittee and they will offer their comments 

  specifically on that action that was taken.   

            Whether they agree or disagree, many people 

  will even submit why they disagree and submit something 

  different in the alternative.  There are many different 

  things that can happen at that time.  The Subcommittee 

  will then meet to review each one of those comments   that were
submitted on the actions taken by the 

  Subcommittee.  And they decide at that point whether 

  they agree or disagree.  And if they disagree, it is 

  required by our operating procedures that we state why.  

  We always do that at every level; why we disagree; try 

  to substantiate our action that we took.   

            At that point, the new Code is in a final 

  draft form that is then sent out for another ballot to 

  the Main Committee and it is also announced in the ANSI 

  process that it is available for public review.  And 

  that ballot is then collected and the Executive 

  Committee of the Code at that point has -- meets and 

  reviews the, any comments that were submitted at that 

  point.   

            Now there is also another way that something 

  can get introduced to a Technical Subcommittee and that 

  is by way of interpretation requests or TIA’s.  TIA is 

  a temporary interim amendment.  We have an opportunity 

  to the Code if we see an emergency or something that is 

  an issue that is life threatening to workers or the 

  public; we can issue a temporary interim amendment to 

  change a provision of the Code where we find that need.    Those only
last for the life of that cycle.  It is the 

  same thing with an interpretation request.   

            Anybody from the public can write to the Code 

  asking for an interpretation of any part or article 

  within that code and the interpretation Subcommittee 

  writes that interpretation.  It is not part of the 

  Code, but it helps understand -- it helps regulators 

  understand what the purpose of that section was.   

            At each one of the meetings at the beginning 

  of the Code cycle, the Technical Subcommittee 

  responsible for that part, where a TIA or an IR was 

  issued has responsibility of looking at those, 

  reviewing those and see if any changes need to be made 

  to the Code to either accept the concept of the TIA or 

  change Code language to clarify what was asked in the 

  IR.   

            MR. WALLIS:  A couple follow-ups to that.  I 

  take it from your testimony that the period for 

  submitting change proposals for the 2012 version of the 

  NESC has passed. 

            MR. TOMASESKI:  That is correct. 

            MR. WALLIS:  And is it possible during the   process for
someone to submit new information during -- 

  after you’ve gotten your change proposals, you’ve acted 

  on the change proposals, you’ve put this document out 

  for comment.  Is it possible for the public to submit 

  new information for the Code making panels or the 

  Subcommittees to evaluate and put into the Code as a 

  result of the comment process? 

            MR. TOMASESKI:  That is correct.  That will 

  happen in their -- as a comment in this preprint 

  process, yes. 

            MR. WALLIS:  So if someone makes a comment 

  and says -- I guess I will take one-step backward.  As 

  part of the change proposals that were made to this 

  cycle of the NESC, did anyone submit the methodology 

  used by the IEEE 516 2009?   

            MR. TOMASESKI:  Not yet. 

            MR. WALLIS:  But if, presumably someone could 

  submit a comment on IEEE and suggest that the minimum 

  approach distances in the NESC be based on the 

  methodology in IEEE 516 2009. 

            MR. TOMASESKI:  I am sure we will get several. 

            MR. WALLIS:  And your committee can accept   one of those
even if that is new material. 

            MR. TOMASESKI:  Correct.  That is correct.  

  And if I could add to that; anticipating that, and as I 

  stated in my testimony, we’ve had a Subcommittee agents 

  had a preliminary meeting, especially in light of the 

  Rule making and the reopening of the record; 

  anticipating we have to do something with the minimum 

  approach distances in the NESC and the fact that um, 

  the 2009 version of the IEEE 516 was finalized, we’ve 

  tried to get ahead of the curve as much as we can.   

            We have put this working group together to 

  actually study 516 and more than likely, I anticipate a 

  comment and a change proposal being made by the 

  Subcommittee itself to address what we need to.  

            MR. WALLIS:  Since you said that, how long do 

  you anticipate it will take to come up with a change 

  proposal, for the Subcommittee to come up with a change 

  proposal if they do?  Based on your prior experience, 

  how long does that process usually take? 

            MR. TOMASESKI:  Well, I think with the 

  preliminary work we have already accomplished in a day 

  and a half, I think we are probably close, very close   to a
proposal.  But that is all it would be, would be a 

  proposal.  We do not have the opportunity to see what 

  other proposals will come in from the public that might 

  fit better.  But to come up with our own proposal, I do 

  not think is going to be that difficult and that time 

  consuming at this point. 

            MR. WALLIS:  Would it be possible to submit 

  for the record a -- the set of proposals that were made 

  on minimum approach distances during this Code making 

  cycle? 

            MR. TOMASESKI:  The original CPs? 

            MR. WALLIS:  Yeah.  And that committee 

  actions on those CPs. 

            MR. TOMASESKI:  Yes.  I mean, I do not have 

  them with me. 

            MR. WALLIS:  Right.  That is why I suggest -- 

  I meant during the comment period.  According to your 

  testimony, the final ballot for the 2012 Edition of the 

  NESC is scheduled to be circulated on January 13, 2011.  

  Is that the earliest date the Subcommittee can take 

  action on minimum approach distances? 

            MR. TOMASESKI:  The Subcommittee will be   scheduled to
meet in either September or October of 

  2011 and at that meeting, we will write our final 

  draft.  We still have the opportunity of a 30-day 

  letter ballot that goes out after we are finished and 

  Subcommittee members at that point do have the 

  opportunity to change their vote if they choose.   

            Based on my experience in the last seventeen 

  years of the Code, that does not happen very often,  

  and also based on my experience with the Code and both 

  the Subcommittee level and Executive Subcommittee 

  level, once the Technical Subcommittees finish their 

  work it pretty much is the final Edition of the Code.   

            I know the process requires us to go through 

  our final ballot, but as an example last Code cycle, we 

  had two comments at the final ballot process.  For 

  whatever reasons it does not get a lot of public review 

  at that point, but the Subcommittee really does their 

  work at their last meeting.   

            I feel confident that what we come up with in 

  September of next year is going to be the final.   

            MR. WALLIS:  When are the comments due?  What 

  is the last period for the comment?             MR. TOMASESKI:  I
think it is May of 2010.   

            MR. WALLIS:  If the Subcommittee chose to, 

  could the Subcommittee address the minimum approach 

  distances separately and at an earlier time, instead of 

  waiting until October. 

            MR. TOMASESKI:  I am not sure of that to be 

  honest with you.  I do not know if our process will 

  allow us to take a vote earlier than that.  I do not 

  know for sure.  I would have to find out.  Actually the 

  problem with that is, if we, even though we take a 

  vote, all Subcommittee members are entitled to vote on 

  every single issue and if they did not attend a meeting 

  for whatever reason, they still get their opportunity 

  in the final letter ballot and that would not get 

  issued until the conclusion of our September meeting.  

            MR. WALLIS:  So the letter ballot is, the 

  date for that letter ballot is --   

            MR. TOMASESKI:  30 days after our meeting.  So 

  whenever we conclude, whether it is September or 

  October, I am not sure.  We have not scheduled the 

  meetings yet, so we do not know the date. 

            MS. GOODMAN:  If there is any additional   clarification,
you can provide about procedures and 

  some new way for making decisions sooner than that, any 

  information you could provide during post hearing 

  comment would be very helpful. 

            MR. WALLIS:  You had mentioned in your 

  testimony that there were several controversies 

  surrounding minimum approach distances.  Can you 

  elaborate a little more on that?  What were they? 

            MR. TOMASESKI:  In the development of 516? 

            MR. WALLIS:  Yes. 

            MR. TOMASESKI:  From my knowledge of the 

  issues that were discussed at 516 and the -- what 

  occurred at the meetings and what I heard etcetera at 

  the meetings, the calculation method includes several 

  different factors.  And of course, the resulting 

  numbers is what you get.  And so two plus two equals 

  four whether you agree with the 4 or not, you know, the 

  problem is in the calculation method and those factors 

  from how I understand it have somewhat evolved over the 

  years and there is a lot of opinions as to what those 

  factors should be.  Some of it may be an exact science 

  and some of it may not be.  Some of it may still be   developed or
underdeveloped.   

            And I think as we -- as that Committee moves 

  forward they are still trying to decide what some of 

  these factors -- if they cannot get to an exact 

  science, for an example, the phase-to-phase MAD for 

  Tools factor.  If you notice in the new 516 there is 

  certain values that are not included that were included 

  in the 2003 Edition of that standard.  And one of the 

  reasons again from my understanding is because of the 

  discrepancies between should it be or should it not be, 

  because do they know the factor or did they assume 

  certain things?   

            So I think when we talk about the factors that 

  are included in the formula itself trying to decide 

  which ones should be there and if they should be there 

  what the factors should be.  The easiest way for me to 

  explain how I understand it.   

            MR. WALLIS:  I just have two more questions.  

  With your -- I understand you’re going to be sitting on 

  a panel later with your IBEW hat on, but with your, so 

  this question is really with your NESC hat on.  

  Currently there are minimum approach distances in IEEE   516 in the
NESC and the OSHA standards and they are all 

  different.  I do not think the values in the two tables 

  are the same in many places, maybe not in every case, 

  but in many places.  How is this -- or has this mixed 

  approach distances caused any problems in your view as 

  the NESC Subcommittee Chair?   

            MR. TOMASESKI:  I think there have been 

  problems created.  First of all, the standard we had in 

  this industry prior to 1910.269 was Subpart V and those 

  distances in there were around for a long time.  And we 

  used those distances and we did not have any problems 

  with them.  269 came about and those distances changed.  

            And then in current revisions of both the NESC 

  and IEEE which has the ability to change every five 

  years and NESC use to change every three years.  Every 

  time these changes are made work practice safety 

  manuals, whatever employers provide to their workers in 

  terms of their training, in terms of their work 

  practice they use every day, those are subject to 

  change also.   

            And while it may only be an inch or two or six 

  inches in some situations, because it doesn’t sound   like a lot,
it is a lot when it comes to the retraining 

  of the workers and reprinting the books and manuals and 

  everything else so that in itself is the issue, is it 

  necessary or not to change that distance by two inches 

  just because there was a math error, and when the 

  distances from prior years have worked and we haven’t 

  had any problems.   

            The second thing is, there have been, because 

  of structure design, there have been some issues with 

  being able to work, perform certain work on structures 

  doing live line work.  And there are some structure 

  design that has changed over the years, specifically to 

  what they refer to as more compact design, and the 

  clearance or the distances between the energized 

  conductors and the structure itself may, with the 

  addition with extra distance in the minimum approach 

  distances it may not allow a worker to do certain work 

  that they’ve done in the past.  

            Even climbing in those windows of some of the 

  compact structures is difficult at times because of 

  adding inches or adding feet to the minimum approach 

  distances.  So it can create problems and it has   because there are
structures out there now that are 

  right at the limit with new numbers, 2007 NESC numbers 

  and it’s going to do the same thing with the 2009 IEEE 

  numbers.  It could pose some problems for continuing 

  the same work practices that have worked for the last 

  twenty years. 

            MR. WALLIS:  And this is mostly a question 

  going forward after OSHA issues a final Rule.  So it is 

  your understanding that many employers follow the NESC 

  numbers or the IEEE 516 numbers.  They do not just look 

  at the OSHA minimum approach distance. 

            MR. TOMASESKI:  They are all over the place 

  out there, of how minimum approach distances are used.  

  There is some that continue to have Subpart V numbers; 

  there is 269 numbers out there and there is NESC.  It 

  depends, it really depends on the -- what approach the 

  employer takes to writing their manuals.  They use all 

  of them.   

            MR. WALLIS:  And my last question.  Why 

  should OSHA -- there is two questions here and I will 

  ask both of them and you can combine them, combine your 

  answer to them in any way you see fit.               Why should OSHA
rely on the results of this 

  Subcommittees review of minimum approach distances 

  rather than the IEEE Committee and won’t there be 

  sufficient information in the record for OSHA to make 

  a determination of how to determine minimum approach 

  distances even without the results of the Subcommittees 

  deliberations? 

            MR. TOMASESKI:  I think that IEEE 516 Standard 

  is a really an engineering document.  The importance in 

  the approach distances where it talks about other than 

  MAD but it has several of the pieces of the puzzle that 

  are included in that with air instillation distance, 

  tool instillation distance and so forth.   

            If you look at the 516 Tables, they are 

  complicated.  For a worker, for a line worker out there 

  to grab IEEE and use it would be difficult.  It would 

  be extremely difficult.  So the way that the Tables 

  have been put together in the past with OSHA, the NESC, 

  the IEEE, there NESC and OSHA have been very similar 

  for a number of years and the IEEE has gone into this 

  pages and pages and pages of Tables that are good for 

  what they are designed to do and that is to give   engineers the
ability to use these Tables in 

  establishing, especially with live line work and 

  reduces distances and so forth because of their 

  structure designs, it’s there for a purpose.       

            Subcommittee 8, on the other hand, takes a 

  somewhat less of an engineering approach to develop 

  these Rules, but goes to a more practical worker 

  approach and to protect the public, not necessarily in 

  design, but pure safety and I think that the results of 

  the Subcommittee analysis of the principles that were 

  developed in the IEEE standard will give the worker and 

  the public the approach they can understand and that 

  they can use on a daily basis.   

            So it is -- I guess your question is, is there 

  enough in the record to make that determination.  I do 

  not know.  I really do not.  There are some issues that 

  I think still need to be resolved.  One of those issues 

  is MAD versus MAD for Tools.  One of your questions 

  specifically asked about MAD for Tools, and it is a 

  very interesting dilemma with the 2007 NESC minimum 

  approach distance tables that published MAD for Tool 

  Values.               That is the first time that has ever been 

  done.  So that is, I think a concept and approach to 

  publishing MAD Tables that Subcommittee 8 can sit down 

  and analyze and figure out what is best for the 

  industry, what is best for to protect the worker and 

  what is best to protect the public. 

            MR. WALLIS:  That is all I have. 

            MS. GOODMAN:  I have a few quick follow up 

  questions.  You indicated that employers my do 

  different things, whether it be using the OSHA numbers 

  or the NESC numbers or the IEEE numbers.  I would be 

  very interested to know if that has caused any problems 

  that, you are aware of; if that is proved a workable 

  scenario or if there are reasons why it is important or 

  critical to worker safety to make sure we try to get 

  consistent numbers.   

            MR. TOMASESKI:  Has it created any problems in 

  terms of worker safety?  Probably not.  I can’t say 

  that is has because as I mentioned earlier even going 

  back to the Subpart V numbers and going even farther 

  back than that, the NESC has had approach distances in 

  every version of the Code that it ever published and   they worked
for what they needed it for at the time.   

            As I said, things have changed and I guess 

  theoretically at some point I see the importance at 

  getting some consistency between, especially the NESC 

  and OSHA because that is the basis and it is the Rules 

  for work where the IEEE isn’t so much as the Rules for 

  work as it is some engineering principles, the 

  engineering guidelines and other recommendations also.  

            But I think that in the future as more work is 

  done on the accomplished, on the IEEE 516 side, and I 

  think some of discrepancies that we still have out 

  there are going to be decided.  I think it is important 

  that OSHA and the NESC find this consistency to insure 

  we have minimum approach distances that do offer the 

  level of safety that we need. 

            MS. GOODMAN:  Thank you.  And to follow up, I 

  believe you suggested, and correct me if I’m misstating 

  your testimony, but that under the numbers that are 

  currently out there that employers are working with, 

  whether it be the current OSHA numbers or the NESC 

  numbers or the IEEE numbers, if there are situations 

  where they are at the bounds of what is possible given   the
configuration of the systems.   

            Is there any way you can elaborate or find 

  additional information either now or during the post 

  hearing comment period about specific situations that 

  you are aware of or the NESC folks are aware of in 

  which that has either been a problem or is close to 

  being a problem. 

            MR. TOMASESKI:  I can provide you some of that 

  in our post hearing comments. 

            MS. GOODMAN:  That would be useful.  And 

  finally, I believe, and again correct me if I misstate 

  your testimony, that during your testimony you said 

  that the IEEE standard or the Tables in the IEEE 

  standard are confusing and then in response to one of 

  David’s questions I believe I heard you say that the 

  IEEE standard is hard for linemen to use.   

            Again, that is an area to the extent I am 

  accurately characterizing your testimony that is an 

  area where I would be very interested in some 

  elaboration either now or in post hearing comments. 

            MR. TOMASESKI:  Well, I guess I actually have 

  this PowerPoint that I put together.  I guess I could   get into that
now.  I thought we would get into it 

  later, but I can --   

            MS. GOODMAN:  Is that IEEE or IEBW testimony 

  part of the --   

            MR. TOMASESKI:  Yes. 

            MS. GOODMAN:  Then we can trade later.  That 

  is fine. 

            MR. TOMASESKI:  Okay. 

            MS. GOODMAN:  That is all I have.  Is there 

  anything else? 

            MR. BURT: 

                         A couple of things to clarify 

  background.  You mentioned that the MAD’s have changed 

  a number of times over the years.  When did they most 

  recently change? 

            MR. TOMASESKI:  Would you repeat that again 

  please? 

            MR. BURT: 

                         I am sorry?   

            MR. TOMASESKI:  Would you repeat that question 

  again please? 

            MR. BURT:                          You mentioned that the
MAD’s has 

  evolved in change many times over the years.  When did 

  they more recently change in you Code? 

            MR. TOMASESKI:  In our Code?  In the 2007 

  Edition. 

            MR. BURT: 

                         In? 

            MR. TOMASESKI:  In the 2007 Edition. 

            MR. BURT: 

                         And before that?  I am just trying 

  to get a feel for what happens here. 

            MR. TOMASESKI:  I’m not sure of the exact 

  dates each time it changed, but prior to that was the 

  2002 Edition of the Code and we had some minor changes 

  from that previous Edition, so that was 1997 prior to 

  that. 

            MR. BURT: 

                         And the most recent one; was this 

  an increase, a decrease or just a change? 

            MR. TOMASESKI:  Increase. 

            MR. BURT: 

                         Thank you.             MR. BIERSNER:  I will
just stand.  When it 

  develops the proposal, the Subcommittee develops its 

  change proposal does it consider employee risk?  That 

  is does it have data upon which it basis its 

  determination such as fatalities or injuries in those 

  situations?  And also, does it consider the cost of the 

  change proposal? 

            MR. TOMASESKI:  Well I would hope that all the 

  Subcommittees in the Code consider all those factors 

  when they develop Code language. 

            MR. BIERSNER:  But did your Subcommittee do so 

  and if so what did you use? 

            MR. TOMASESKI:  Did we specifically look at 

  accident data or cost factors?  No. 

            MR. BIERSNER:  Okay.  And what about cost 

  data? 

            MR. TOMASESKI:  No. 

            MR. BIERSNER:  Okay.  Thank you. 

            MS. GOODMAN:  Nothing else from us your Honor. 

            JUDGE COLWELL:    Any questions from the audience?  

  And we will take a break after the questions are done 

  here.  Mr. Yohay, please come forward.             MR. YOHAY:  I
propose Mr. Wallis’s comment 

  about 1914, we must all be doing this too long because 

  he asked the questions that I came prepared to ask, in 

  greater depth I might add.   

            But just to follow up on two, a couple quick 

  things, Mr. Tomaseski.  First, what is the date of the 

  Subcommittee’s next meeting?  The year?  I think you 

  said 2011, is that correct? 

            MR. TOMASESKI:  The next, no, 2010. 

            MR. YOHAY:  2010, okay.  Second, question by 

  Mr. Biersner prompts me to ask without getting into the 

  names of the people, what is the range of expertise 

  represented on the Subcommittee, Subcommittee 8? 

            MR. TOMASESKI:  We have linemen, we have 

  certified safety professionals, we have engineers, and 

  --   

            MR. YOHAY:  From what kinds of organizations? 

            MR. TOMASESKI:  The IBEW, the electric utility 

  companies invest their own Rule after co-ops, 

  municipals, public power, and consultants. 

            MR. YOHAY:  And I take it that none of these 

in the NESC?             MR. TOMASESKI:  That is correct, yes.  

            MR. YOHAY:  And then, I think that you said in 

  the course of your testimony that, if I understood you 

  that, the IEEE 516 values might create problems for 

  structure.  You said if I am paraphrasing, “up to the 

  limit” if I heard you said correctly and you said it 

  might affect work practices.  Can you elaborate 

  specifically on what you meant, that is if I understood 

  you right? 

            MR. TOMASESKI:  Yeah.  Transmission structures 

  are primarily what I was talking about, the higher 

  voltage.  That the lower voltage the same issue does 

  not exist.  But at the higher voltages the, whether it 

  is steel, or wood, or concrete, or whatever the 

  structure is made out of, when the worker is on the 

  structure he has to maintain the proper minimum 

  approach distances from the energized part.  And just 

  being on the -- trying to climb by the conductor to go 

  to the top of the structure or something, many times 

  under these new designs that have been around for a 

  long time, but some of the numbers have changed that --  

            MR. YOHAY:  Designs of what, sir?             MR.
TOMASESKI:  I am sorry? 

            MR. YOHAY:  Designs of what? 

            MR. TOMASESKI:  Designs of the structures have 

  been around for some time.  It is in some of the 

  structure design.  It does not allow the worker to do 

  that anymore.  To even climb past the energized --   

            MR. YOHAY:  What doesn’t allow it? 

            MR. TOMASESKI:  The minimum approach 

  distances. 

            MR. YOHAY:  And the IEEE? 

            MR. TOMASESKI:  Yes, and ANSI, yes. 

            MR. YOHAY:  And what work practices were you 

  referring to? 

            MR. TOMASESKI:  The working live.  Not de-

  energize the circuit but keep the circuit energized to 

  do maintenance work.   

            MR. YOHAY:  Are you speaking of live line bare 

  hand work?    

            MR. TOMASESKI:  Bare handing is one, but even 

  doing it with sticks.  Any live line work could be at 

  jeopardy if the distances have been compromised.   

            MR. YOHAY:  How so?             MR. TOMASESKI:  You just --
you cannot do it.  

  You cannot get that close. 

            MR. YOHAY:  And when you say sticks, you are 

  speaking about insulated hot sticks? 

            MR. TOMASESKI:  Yes. 

            MR. YOHAY:  Thanks very much. 

            JUDGE COLWELL:  Thank you, Mr. Yohay.  Are there 

  any more individuals who would like to ask questions?   

            Thank you very much Mr. Tomaseski for 

  testifying.   

            Why don’t we take a ten-minute break now?  

  This would be a good break time. 

  Stop Recording 10:58 a.m. 

  Start Recording 11:12 a.m. 

            JUDGE COLWELL:  Are you ready to go?  Let us 

  please go back in session. 

            MS. GOODMAN:  Your Honor, if I could just 

  clarify something real briefly for the record.  In 

  response to one of Mr. Yohay’s questions earlier, I 

  indicated that we had not received any requests for an 

  extension of the pre-hearing comment period.  I just 

  want to clarify that we did receive one request, I   believe, and
that request, in light of the fact that 

  there is going to be a post hearing comment period, 

  that request either has been or is being withdrawn. 

            JUDGE COLWELL:  Thank you very much.  I would like 

  to ask the new witnesses to please introduce themselves 

  and state for the record of whom they will be 

  testifying for.  Please go ahead. 

            MR. KELLY:  Good morning.  My name is Charles 

  J. Kelly.  I am the Director of Industry Human 

  Resources for Edison Electric Institute (“EEI”).  EEI 

  is the association of U.S. shareholder-owned electric 

  companies.  Its members serve 95 percent of the 

  ultimate customers in the shareholder-owned segment of 

  the industry, and represent approximately 70 percent of 

  the U.S. electric power industry.   

            With me today is Dr. Randy Horton on my far 

  left.  Dr. Horton is employed as a principal engineer 

  for Alabama Power Company.  Dr. Horton received his 

  B.S. in Electrical Engineering from the University of 

  Alabama at Birmingham, his Masters E.E. from Auburn, 

  and his Ph.D. from the University of Alabama.  He is a 

  registered professional engineer in the state of   Alabama, Senior
Member of IEEE, and is active on 

  several IEEE working groups in the areas of Power 

  Quality, ESMOL and General systems, and is currently 

  the Working Group Chair on Field Measured Overvoltage’s 

  and Their Analysis. 

            Also with us today, to my immediate left, is 

  Stephen Yohay of the Washington, D.C. office of the 

  Ogletree Deakins Law Firm.  He is EEI’s outside counsel 

  for occupational safety and health for the last 25 plus 

  years. 

            EEI appreciates OSHA’s positive response to 

  its request to hold a public hearing on the issues that 

  were raised in the Federal Register notice concerning 

  the IEEE Standard 516. 

            As OSHA and other hearing participants are 

  aware, EEI and its members have long placed primary 

  value on protecting the safety and health of our member 

  employees, and others who work in our industry.  In 

  this connection, EEI is proud of its long and 

  cooperative relationship with the International 

  Brotherhood of electrical workers (IBEW), especially as 

  to OSHA regulatory issues.  We are also very proud of   our
relationship with OSHA.  We have established a good 

  working relationship since 1910.269 has been 

  promulgated and hope to continue that as we work out 

  these issues and future issues. 

            Indeed, we’ve worked with the IBEW to analyze 

  the issues presented in this rulemaking beginning with 

  the original 29 C.F.R. 1910.269, including the 2005 

  proposals and continuing now.   

            We are also pleased to note that we have been 

  participating in the Electrical Transmission and 

  Distribution Construction Contractors and Trade 

  Associations partnership with OSHA over the last five 

  plus years.  This partnership has been one of the real 

  success stories in achieving meaningful results for 

  employee protection, and shows that progress can be 

  made when OSHA, industry, and labor genuinely work 

  together. 

            The issues raised in the notice are clearly 

  ones that could have a significant impact on the 

  operations of electric utilities.  EEI understands that 

  the minimum approach distances (MAD) stated in the 

  latest IEEE 516 Standard represent a correction of a   mathematical
error in the MAD tables that are 

  incorporated in 29 C.F.R. 1910.269 and Part 1926, 

  Subpart V.   

            However, before the IEEE distances could be 

  adopted by OSHA, the agency would be required to 

  satisfy the basic statutory requirements that apply 

  when any new safety standard is adopted.  Thus, under 

  Sections 3(8) and 6(b) of the Occupational Safety and 

  Health Act, as long interpreted by the Supreme Court, 

  OSHA would be required to show that the change in the 

  clearance distances are, as a matter of substantial 

  evidence, reasonably necessary to protect employees, 

  and that they would reduce or eliminate a significant 

  risk for employees.   

            As several people have stated previous to our 

  testimony, we are not aware that the existing MAD 

  distances, even though they may have been 

  mathematically incorrect for decades, have shown to be 

  unsafe in that they have contributed to accidents or 

  placed employees at substantial risk of harm.  We doubt 

  seriously that a desire to make a technical 

  mathematical correction is enough to satisfy this   requirement.   

            Indeed, there is no discussion of this issue 

  in the Federal Register notice we are here discussing 

  today.  This leads EEI to conclude that there is 

  insufficient record evidence to justify relying solely 

  on the new IEEE standard to change the distances from 

  existing 1910.269 as published today and incorporated 

  into Subpart V.   

            In the 2005 proposal, OSHA referenced the NESC 

  as the guiding document for the development of the 

  clearance tables.  Given this, EEI alternatively 

  submits that OSHA should defer action of the MAD issue 

  until the National Electric Safety Code (NESC) has 

  completed its code revisions cycle.  You have heard 

  that many times already.   

            I am sure you will hear it at least one more 

  time again in today’s testimony, but I think all 

  parties would agree that that would be the best process 

  to follow.  The NESC is in its comment period as Mr. 

  Tomaseski has referred to.  The public comment period 

  ends on May 1, 2010.  And then he has gone over the 

  schedule for public comment and the process that will   take place. 
We believe, as I have said, there are 

  several reasons to support, I think, this suggestion.  

  First, Section 6(b)(8) of the Act expresses that OSHA 

  standards should not deviate from National Consensus 

  Standards without an adequate statement of reason.   

            The NESC Committee may or may not adopt the 

  precise distances stated in the IEEE documents.  

  Therefore, if OSHA incorporates the IEEE distances in a 

  final standard that is promulgated in the next year or 

  so, OSHA my soon find its final standard at odds with 

  even the newest version of the NESC.   

            The NESC, however, is well recognized as the 

  preeminent National Consensus Standard on clearance 

  distances for electric utility work on high voltage 

  lines and equipment.  Such a result could only create 

  confusion in the industry. 

            Second, by virtue of the nature of its 

  membership and the mission of its Subcommittee 8, we 

  daresay with due respect to IEEE Committee 516, that 

  the NESC’s final standards on Work Rules tend to give 

  more attention to the practical impact that its Rules 

  will have in the workplace than do IEEE Technical   Standards. 

            Again, as Jim pointed out in his testimony, 

  the 516 Standard is basically an engineering standard 

  and built that way on the technical issues whereby the 

  NESC Subcommittee 8 Standard; it deals with the Work 

  Rules and Worker Protection more specifically. 

  Indeed, it is only due to very unusual timing that the 

  latest IEEE 516 Standard has been issued before the 

  current NESC Code cycle has been completed.   

            The usual cycle, and as I mean the historical 

  cycle that OSHA has followed, is that the IEEE 516 

  Standard develops its standard, ballots it and 

  publishes the standard over a period of time.   

            The NESC Subcommittee 8 reviews 516, develops 

  their standard, tables, ballots, and publishes it in 

  that order.  Then OSHA usually comes in and reviews the 

  documented proof by both groups, and incorporates the 

  NESC document into its particular Rule.   

            The above scenario reflects the past practices 

  used by OSHA in its development of standards affecting 

  electric power generation, transmission, and 

  distribution work.               As additional information, we have
submitted a 

  sample table in our comments that represents some of 

  the preliminary work by the NESC Subcommittee 8 has 

  developed.  Jim Tomaseski has referred to that in his 

  testimony.  These distances in that particular Table 

  which is in our submitted comments were derived from 

  IEEE 516 2009 Edition.   

            From our understanding, Subcommittee 8 is 

  scheduling a joint meeting with the IEEE 516 group to 

  discuss the format and substance of the Table prior to 

  any final action taken by the Subcommittee on the use 

  of the Table. 

            With these preliminary comments, I will turn 

  now to the questions OSHA posed in the Federal Register 

  notice and to discuss them, I will now turn over the 

  discussion to Dr. Horton who will outline EEI’s 

  responses. 

            DR. HORTON:  Thank you, Mr. Kelly.  I am going 

  to address the first seven questions that were posed by 

  OSHA, and Mr. Kelly will follow that and address the 

  eighth question that was posed by the OSHA.   

            Question 1.  Should OSHA adopt minimum   approach distances
that are different from those 

  proposed in Subpart V Tables V-2 through V-6 and 

  proposed 1910.269 Tables R-6 through R-10 and, if so, 

  what criteria and methodology are reasonably necessary 

  to protect employees from hazards associated with spark 

  over?   

            In short, the answer is yes.  The minimum 

  approach distances that are in Tables V-2 through V-5 

  are based on the minimum air insulation distances 

  (MAIF) as defined in IEEE Standard 516-2009, and as 

  such, do not provide adequate protection for a worker 

  when a tool is present in the air gap.   

            IEEE Standard 516-2009 provides two separate 

  calculation methods or formulae for determining the 

  approach distances with and without tools in the air 

  gap.  The reason for this is that the dielectric 

  strength of air is weaker when tools are present in the 

  air gap.   

            It is unclear how the OSHA can justify the use 

  of live line tool distances that are based on MAID.  

  OSHA should include two sets of minimum approach 

  distances for phase to ground work on voltages above   72.5 kV, one
for work performed without tools in the 

  air gap and one for work performed with tools in the 

  air gap.  Both of these tables should be developed 

  using the methodology found in IEEE Standard 516-2009.   

            Question 2.   Is there any scientific basis 

  for not extrapolating the saturation factor, “a”, 

  beyond the limits of the test data on which earlier, 

  that is, pre-2009, versions of IEEE Standard 516 

  relied?  Is there any test data that can be used to 

  validate or invalidate the use of extrapolated values 

  for “a”? 

            The answer is yes.  There are at least two 

  methods of estimating the dielectric strength of air 

  gaps that show that extrapolating the saturation 

  factor, “a”, beyond the test data for which it was 

  based is not valid.   

            A comparison of the MAID values computed using 

  the IEEE formula and those of Gallet and CRIEPI show 

  that extrapolating test points beyond the 1650 kV range 

  is dangerously inaccurate.   

            Using the same assumptions made with the IEEE 

  formula, in other words using a standard deviation of 5   percent for
the dielectric strength of the air gap and 

  assuming a rod–to-rod electrode geometry, the Gallet 

  and CRIEPI formulas can be manipulated to compute the 

  required clearance distance.  These formulas using the 

  Gallet and CRIEPI method are shown in equations (1) and 

  (2) respectively in our written testimony. 

            To show how these two methods compare with the 

  IEEE method, we performed calculations for air gaps up 

  to 12 meters and the results of these are shown in 

  Figure 1 and, as you can see in Figure 1, all three 

  methods basically align with one another up until you 

  get to the point where test data was not available for 

  the IEEE method.   

            At this point, if you assume, in other words, 

  just extrapolate the air saturation factor, you will 

  see that the slope of the blue curve, which is the IEEE 

  method keeps going up.  But the other two methods tend 

  to have a much more non-linear characteristic which 

  means in essence, you need more distance for the same 

  transient voltage.   

            If you go basically to Figure 2, which is sort 

  of a blown up version of Figure 1, at that point where   the test
data is not available, you can see the effect 

  more pronounced.  Again, the blue line would be what 

  the 516 curve is with an extrapolated value of “a” and 

  these other two methods are basically, as the 

  calculation method provides.  The basic reason for this 

  is, as I have said previously, these two methods are 

  based on test data in this area, whereas the blue curve 

  or IEEE method is not. 

            Question 3.   Does the new IEEE methodology 

  for calculating minimum approach distances for phase-

  to-phase exposures at voltages of 72.6 kV or higher 

  represent employee exposure conditions better than the 

  methodology OSHA used to generate the minimum approach 

  distances in the 2005 proposal?  In particular, is the 

  use of conductor-to-conductor test data modified with 

  the use of a 3.3-meter floating electrode preferable to 

  the use of rod-to-rod test data for representing the 

  range of employee exposure conditions? 

            We believe that the line-to-line MAD values 

  proposed by OSHA are safe.  Line workers have utilized 

  these values for many years without a single known 

  incident; thereby, proving their validity.                     
Additionally, we offer the following example 

  for an 800 kV system, using a different calculation 

  method, which is actually different from the 516-2009 

  as well, which further proves their validity.  

  The method is based on calculating the V50 percent or 

  critical flash-over voltage.  In other words, that is 

  essentially the point at which the point of flashover 

  is 50 percent for a certain surge value and determining 

  distances from the V50 percent value of conductor-to-

  conductor gap test data.   

            The V50 percent is derived from the required 

  withstand voltage, using the line-to-line overvoltage 

  factor, TLL.  The required distance for MAID and MAD is 

  then taken from Figure 3.  This is essentially the 

  calculation method where you are based on an 800 kV 

  system.  The assumed transient overvoltage’s is two per 

  unit which would correspond to a withstand voltage of 

  2058 kV.  If you assume that you have a sigma 5 percent 

  or standard deviation, you can back into what the CFO 

  value is or V50 percent which is 2421 kV.  You then 

  take this value and go to the Figure to determine what 

  the required distance is.  So we would go to the point   on the curve
that is 2421 kV --   

            JUDGE COLWELL:  Should we just say Figure 3 just 

  for the record? 

            DR. HORTON:  Yes, Figure 3.  And then you come 

  down and the required distance would be 6.5 meters.  

  Please go back to the previous one, with the 

  calculations.  Okay.  And that would correspond to what 

  the minimum air insulation distance is.  And then to 

  determine what the required minimum approach distances 

  would be there, add .3 meters or if you have converted 

  this to feet, add one foot, which would correspond to 

  21.4 feet and 22.4 feet for MAID and MAD comparatively.  

  And that compared to what is currently in 269 shows 

  that, you know, the value that is in 269 now is greater 

  than what would calculate using this method and we have 

  not had any problems that we are aware of so we suggest 

  the values that are in 269 now are safe and valid.  

  Figure 3, which is this same Figure here, is from 

  Figure 13 in an IEEE paper by Vaisman, which was 

  published in 1993, which represents conductor-to-

  conductor gap test data from five different 

  laboratories.               The test data is based on an alpha .5
which 

  is, alpha being the ration between the negative impulse 

  crest and the phase-to-phase transient voltage, which 

  provides more conservative results for V50 percent and 

  an alpha of .33.  The following example demonstrates 

  this method, which is basically showed you just a 

  second ago.  And as we concluded, the minimum approach 

  distance of 24 feet corresponds, very well with the 26 

  feet distance adapted by OSHA.   

            Although the proposed distances (Tables R-6 

  and V-2) are considered safe, we do question their 

  calculation technique.    

            The method proposed by OSHA to determine line-

  to-line minimum approach distances is flawed since it 

  is base on line-to-ground surge data (this is a line-

  to-line application); rod-to-rod electrode geometry, 

  and the method uses a scaling factor to determine 

  minimum approach distances based on line-to-ground MAID 

  or minimum air insulation distance. 

            The fact that the rod-to-rod electrode 

  geometry does not replicate realistic work situations, 

  in and of itself, is not necessary an issue.  However,   the fact
that the test data used to develop the IEEE 

  formula were based on line-to-ground switching surge 

  data as opposed to line-to-line switching surge data is 

  a significant issue.   

            It is well recognized that the dielectric 

  strength of a given electrode geometry is different for 

  line-to-ground surges than for line-to-line surges.  A 

  phase-to-phase surge between two phases is the voltage 

  difference between the phase-to-ground surges which may 

  be of opposite polarity and displaced in time, (and 

  many times are) whereas a maximum phase-to-ground surge 

  is considered uni-polar.   

            Figure 4 shows how two separate phase-to-

  ground surges combine to form a line-to-line surge.   

  Basically what we are showing here is, the red curve, 

  or excuse me, the blue curve and the green curve would 

  be line-to-ground surges.   

            In the case here, we have one for phase 1 and 

  we have got one for phase 2, and you can see that they 

  are displaced by some amount of time.  The resulting 

  transient overvoltage or surge that would be across the 

  air gap, which would be the line-to-line air gap, would   be the red
curve, which is a combination of the blue 

  curve and the green curve. 

            The resulting line-to-line surge, which again 

  is the red curve, will stress a given air gap geometry 

  differently than either of the line-to-ground surges 

  that the resulting waveform is comprised of.  Unlike 

  line-to-ground insulation characteristics of a given 

  electrode geometry, which depend primarily on the gap 

  spacing, line-to-line insulation characteristics of a 

  given electrode geometry, which depend primarily on the 

  gap spacing, line-to-line insulation characteristics 

  are more complex because one of the surges has a 

  positive polarity with respect to ground while the 

  other has a negative polarity with respect to ground.   

            The resulting insulation strength is a 

  function of alpha, which again, is the ratio of the 

  negative surge to the sum of the negative and positive 

  surge. 

            The IEEE recently tried to address this 

  limitation by developing a method based on a modified 

  version of the Gallet equation.  The upper voltage 

  limit of the resulting equation is 3500 kV peak or air   gap
distances of up to 15 meters.  This limitation is 

  well within the typical range of live-line working 

  scenarios in the United States.   

            Historically, IEEE Standard 516 has used rod-

  to-rod electrode geometry data for determining line-to-

  ground MAID.  One reason for this is that the test data 

  that the method is based on represents a rod-to-rod 

  electrode configuration.   

            In addition, the line-to ground resting that 

  was performed showed that the rod-to-rod results were 

  in the middle range for a wide range of conductor 

  configurations.  The rod-to-rod data presented neither 

  the worst case nor the best.  Thus, it was chosen as a 

  reasonable representation of all the possible gap 

  configurations to which a line worker might be exposed 

  while performing tasks, which are characterized as 

  line-to-ground.   

            When considering line-to-line minimum air 

  insulation distances, a rod-to-rod gap may not be the 

  most appropriate.  Typically, the worker will bond onto 

  one phase and will not need to bridge the gap to the 

  other phase.  Since the shape of the adjacent electrode   remains
unchanged during the task, (in other words it 

  remains a conductor) the resulting air gap geometry 

  more closely resembles that of a conductor-to-

  conductor.  The effect of the change in geometry of the 

  phase to which the worker is bonded is dealt with in 

  the new IEEE method by introducing an additional factor 

  that accounts for the effect of large conductive 

  objects floating in the air gap.   

            The methodology used by OSHA to determine 

  line-to-line MAD is based on the same method used to 

  determine the line-to-line minimum approach distances 

  values provided in the 1993 Edition of the National 

  Electric Safety Code.  This method has since been 

  proven to be invalid, and is the primary source of 

  error in the 2003 Edition of IEEE Standard 516. 

            Although the new IEEE method attempts to 

  address the many technical shortcomings of previous 

  methodologies, it is believed by some that the method 

  yields distances that are too conservative, 

  particularly at high voltage.  Slight variations in 

  some of the assumptions made to develop the equation 

  can modify the resulting approach distances by several   feet,
particularly at the EHV level.  Until the new 

  method proposed by IEEE is more mature, it is 

  recommended that the existing line-to-line approach 

  distances proposed by OSHA remain. 

            Question 4.  All of the minimum approach 

  distances in the 2005 proposed Rule are based on the 

  minimum air insulation distance.  Should the minimum 

  approach distances for voltages of 72.6kV and higher be 

  based on the minimum tool insulation distance, as is 

  the case in the 2007 NESC?  Should the minimum approach 

  distances for voltages of 72.5 kV and lower also be 

  based on the minimum tool insulation distance? 

            In the proposed rule, OSHA is using minimum 

  air insulation distances when a line worker is using a 

  tool in the air gap.  Allowing the minimum air 

  insulation distance plus an inadvertent movement factor 

  to be used as the line-to-line tool distance is an 

  incorrect interpretation of the science behind IEEE 

  method.  At a minimum, the note in the V and R Tables 

  that states that the referenced distances are for 

  “live-line tool distances” should be removed since they 

  are not.               However, we recommend that OSHA include two 

  sets of minimum approach distances for phase to ground 

  work on voltages above 72.5 kV.  One for work performed 

  without tools in the air gap and one for work performed 

  with tools in the air gap.  These distances should be 

  based on MAID and MTID respectively (minimum tool 

  insulation distance) respectively using the method 

  shown in IEEE 516-2009.   

            For voltages below 72.5 kV, the minimum tool 

  insulation distance is the same as the minimum air 

  insulation distance per IEEE 516-2009, so it is 

  appropriate to only include one table of minimum 

  approach distances.  Likewise, for phase-to-phase 

  exposure above 72.5 kV, one table of minimum approach 

  distances should be used based on the minimum air 

  insulation distance. 

            Question 5.  IEEE Standard 516-2009 does not 

  provide minimum tool insulation distances for phase-to-

  phase exposures.  Using an insulated boom on the top or 

  middle conductor in a vertical configuration and using 

  a live-line rope in a similar position involve the use 

  of an insulator across the air gap between two phases.             
Are there any other situations in which an 

  insulator or a live-line tool is used between two-phase 

  conductors during live-line work?  If, in the final 

  rule, OSHA bases minimum approach distances on minimum 

  tool insulation distances, but adopts IEEE’s 

  methodology to calculate phase-to-phase minimum 

  approach distances, how, if at all, should the final 

  Rule address situations in which insulation is present 

  across the air gap? 

            We are unaware of any live-line working 

  scenario situations above 72.5 kV where the phase-to-

  phase air gap is bridged by live-line tool.  Most work 

  practices are developed to work on only one phase at a 

  time per structure, phase to ground. 

            Question 6.  Existing 1910.269 and OSHA’s 2005 

  proposal set maximum transient overvoltage’s of 3.0 per 

  unit for voltages up to 362 kV, 2.4 per unit for 

  voltages in the 552 kV range, and 2.0 per unit for 

  voltages in the 800 kV range.  The Committee and the 

  electric utility industry, as reflected in the NESC and 

  earlier Editions of IEEE Standard 516, believed that 

  these were the highest possible transient over-  voltages.  However,
IEEE Standard 516-2009 now 

  recognizes that even higher maximum per unit transient 

  overvoltage’s can exist.  How, if at all, should the 

  final Rule address the possibility of higher maximum 

  transient over-voltages given that the proposed Rule 

  did not address this possibility? 

            Over the years, none of the field-measured 

  over-voltages on actual operating systems has produced 

  results which exceed the industry accepted T values 

  (transient overvoltage values).  The documentation of 

  these measurements and of numerous simulations, 

  encompassing all current transmission operating 

  voltages, and the results have consistently supported 

  the accepted T values. 

            There is a single exception, which has not 

  been published, has been stated for one special 230 kV 

  circuit.  At our request, BPA provided us with the 

  internal report on this special circuit (it is a 119 

  mile long, 230kV line) test results that were available 

  due to the test that they did there.  The test was 

  initiated in order to investigate a few flashovers of a 

  rod gap that occurred after a line ultra high speed re-  closings. 
The 36-inch rod gaps are installed on the 

  line for lightning protection and the gap flashovers 

  were due to line re-closings.  The test results show 

  that the gap flashovers actually occurred below 3.0 per 

  unit.  That is, the flashovers occurred at 2.69 per 

  unit, at 2.74 per unit and at 2.85 per unit.  However, 

  the flashovers did not occur at higher over-voltages, 

  which according to the test report is based on 

  statistical nature of the gap flashover phenomenon.   

            The BPA then varied the breaker switching 

  times for each phase in order to maximize the trapped 

  charge on the line, also breaker high speed-reclosing 

  times were varied in order to obtain maximum possible 

  over-voltages.  Sample waveforms for worst-case over-

  voltages are included in the internal report.  The line 

  breaker performance appears suspicious.  The breaker 

  current shows pre-strikes with abrupt interruptions and 

  subsequent re-ignitions.  The breaker pole closing 

  spans are also long, up to about five milliseconds.  In 

  addition, often inaccuracies in the monitoring system 

  and in the waveform calibration results in unrealistic 

  over-voltage readings.               In summary, the added changes in
the breaker 

  opening and closing controls, the unusual breaker 

  performance, the large pole closing spans, and possible 

  monitoring inaccuracies may be the cause of the stated 

  unrealistic over-voltages.   

            In order to address the possibility of higher 

  surge values, the General Systems Subcommittee of the 

  IEEE Transmission and Distribution Committee has 

  recently created a working group entitled “Field 

  Measured Over-Voltages and Their Analysis” to determine 

  if higher surge values actually exist, and if so, what 

  is their upper limits.  This working group is chaired 

  by myself (Dr. Randy Horton of Southern Company) and is 

  co-chaired by Dr. Albert Keri of American Electric 

  Power.  Numerous experts and utilities from around the 

  world are involved in this work, and initial findings 

  of the working group will likely be available in the 

  next 3 to 4 years.  Until such time, it is recommended 

  that the industry accepted values (in other words T 

  equal to 3 per unit, 2.4 per unit, and 2.0 per unit, 

  corresponding to 362 kV and below, 363 kV to 550 kV, 

  and 551 kV to 800 kV respectively) be used as the   maximum per unit
transient over-voltage values.    

            However, if the OSHA chooses to use the BPA 

  case as the basis of their maximum per unit over-

  voltages values prior to publication of the findings of 

  the IEEE working group addressing this issue, a 

  footnote similar to that contained in IEEE 516-2009 for 

  242 kV can be added.  That is, “AT for example, AT 242 

  kV”, it is assumed that automatic instantaneous 

  reclosing is disabled.   

            If not, the values shown in the Table may not 

  be valid, and an engineering evaluation should be 

  performed to determine “T”. 

            Question 7.  In drafting the final Rule, 

  should OSHA include the 362.1 to 420 kV voltage range 

  appearing in the IEEE Standard 516-2009 in addition to 

  the voltage ranges in the proposed Rule?  Do any 

  existing systems operate at these voltages? 

            OSHA should include these voltage ranges in 

  the final Rule in order to provide complete guidance to 

  the industry.  However, there are not many lines that 

  operate at these voltages within the American electric 

  utility industry.  I will now turn it over to Chuck to   answer
question 8. 

            MR. KELLY:  Thank you, Dr. Horton.  In 

  closing, let me address Question Number 8 of the OSHA 

  request in the Federal Register. 

            Question 8.  OSHA does not anticipate that 

  revising the minimum approach distances using one of 

  the methods outlined in this notice will have a 

  substantial impact on compliance costs.  However, the 

  Agency realizes that some companies might be affected 

  by revised minimum approach distances.  Would revised 

  minimum approach distances in accordance with one or 

  more of the methods described in this notice impose 

  additional compliance costs? 

            Many utility live line work practices and 

  construction standards have been established around the 

  utilities’ standard insulation length and the 

  historical values for MAD, especially at the higher 

  voltages.  This coordinated effort supports the 

  mechanic’s ability to safely install insulated 

  insulator carriers, insulated strain sticks, and other 

  such insulated tools while remaining beyond MAD.  

  If MAD were to be based upon only MAD for Tools, the   existing
tooling and work procedures of many utilities 

  may not support live line work.  These costs may result 

  in purchasing tools and/or revising work procedures and 

  training programs.   

            Additionally, minimum approach distance 

  changes can have a significant impact upon engineering 

  and construction costs.  Changes in minimum approach 

  distances can result in additional costs to utilities.  

  These costs can be mitigated by use of methods to 

  reduce minimum approach distances.   

            OSHA should ensure that the final Rule allows 

  the capability to reduce the minimum approach distances 

  using an appropriate method such as blocking reclosing 

  or using portable protective air gaps.   

            OSHA should understand that these comments 

  have had to be composed quickly, without all of the 

  detailed consideration and analysis these issues 

  deserve.  Within the thirty-day or thirty-one day to be 

  exact time period afforded by OSHA to respond to the 

  Federal Register notice, it has not been possible for 

  EEI and its members to fully estimate the likely impact 

  and cost that could flow from OSHA adopting the MAD   distances in
the new IEEE Standard 516.   

            With a proposed rule that has been pending 

  since 2005, EEI does not understand why allowing 

  interested parties at least an additional thirty or 

  sixty days would have compromised OSHA’s efforts in 

  reaching a final Rule. 

            The potential impact of adopting IEEE 516 

  could be great, especially when considering the 

  proposed changes and resulting implications for design 

  standards affecting a wide variety of electric utility 

  facilities.   

            For example, requiring minimum safe approach 

  distances that exceed the length of standard line 

  insulation would require the re-tooling of live line 

  maintenance equipment, the development of new work 

  procedures, changes in current design standards (that 

  are relatively common across the industry), and 

  prohibition of current live line maintenance until such 

  time that new tooling is available.  Any attempt at 

  increasing the distances could seriously interfere with 

  transmission line maintenance at a time when the nation 

  needs all the transmission capacity it can get.               In some
cases, on EHV lines, it is not 

  possible to state that new tooling and procedures can 

  be established until such time that maintenance experts 

  have had adequate time to fully evaluate the situation.  

  It is obvious that retrofitting all current facilities 

  would be an economic concern, especially during these 

  times.  

            The re-training of many employees will require 

  sufficient time and dollar expenditures.  In the long 

  run this would likely cause confusion within the 

  workforce, which has long been known as a factor that 

  contributes to errors and accidents. 

            Further, the advent of Regional Transmission 

  Organizations (or RTO’s), which help maintain the 

  security and reliability of the Bulk Electric system 

  (BES), introduces additional considerations into this 

  rulemaking.   

            As is well known in the industry, critical 

  “bulk electric circuits” and all UHV and EHV circuits 

  are controlled by these various RTO operators across 

  the nation.  Any change in distances could increase the 

  potential of needing more outages to perform   maintenance, based on
insulator length.  Planning and 

  scheduling for an outage can require as little as one 

  month and with three-day notification, to as long as 

  six months and three days required notification, 

  depending on the length of the outage.   

            Even with the best plan and scheduling along 

  the way, there are several issues that can cause the 

  delay and cancellation of a needed outage, up to 

  minutes before it starts.  Because of a potential for 

  requiring more outages, this would increase the 

  maintenance period on particular equipment, and in turn 

  diminish reliability.   

            By increasing the MAD as such, especially if 

  attempting to apply a MAD for Tools on phase-to-phase, 

  there will be a subsequent need for more outage type 

  work, which is limited because of the current nature of 

  the system.  

            All of these are complex issues, which are 

  emerging as the electric utility industry evolves.  

  OSHA should allow the industry a reasonable amount of 

  time to gather the necessary data and present it to the 

  agency.  Failing to allow such time now will only men   that the
agency will have to deal with these issue 

  later.   

            To be clear, we are not here today to hold up 

  Subpart V.  As a matter of fact, we would like to see 

  it go forth.  What we would suggest though, is that in 

  OSHA finalizing Subpart V it waits until such time that 

  the NESC work is done and leaves the record open on 

  that particular issue.   

            We appreciate the opportunity to participate 

  and we would be more than happy to answer questions.  

  Thank you. 

            MS. GOODMAN:  Thank you.  Let me begin by 

  asking the panel if they have a copy of the PowerPoint 

  presentation that they would like to submit to the 

  record. 

            MR. KELLY:  We do. 

            MS. GOODMAN:  Your Honor, I am going to mark 

  this as Hearing Exhibit B, titled EEI Testimony 

  Supplement, and I ask that it be admitted into the 

  hearing record. 

        [EEI’s Exhibit B was admitted into evidence.] 

            JUDGE COLWELL:  It is now admitted.             MS.
GOODMAN:  Thank you, Your Honor.  I am 

  going to start with a series of clarifying questions --   

            MR. WALLIS:  Do you have -- I thought I heard 

  a little -- few differences between your testimony here 

  and the statement that you had submitted earlier.  Is 

  that accurate or not? 

            MR. KELLY:  No.  I pretty much read it.   

            MR. WALLIS:  Okay. 

            MR. KELLY:  Except for the last part, David, 

  on the hold up on Subpart V and the --   

            MR. WALLIS:  My question really related to 

  your testimony.  Do you have a revised statement that 

  you wanted to submit? 

            MR. KELLY:  No. 

            MR. WALLIS:  Okay. 

            MS. GOODMAN:  I am going to ask a series of 

  questions aimed at clarifying your comments.  I am 

  going to be working off the comments that you submitted 

  to the records, so if I use page numbers, that is what 

  I am referring to.  I am going to leave the technical 

  stuff to David, so he will follow me.  And I will ask, 

  David, to the extent I ask any questions that do not   make any sense
from the technical perspective to please 

  jump in and make sure we are all on the same page here.   

            A few times throughout the testimony, and I am 

  looking at the top of Page 4 as just one example where 

  you refer to existing 269 and other times you refer to 

  the minimum approach distances and OSHA’s 2005 

  proposal, and I just want to clarify your position with 

  respect to the differences.   

            There are some differences between the 

  proposal that we put out in 2005 and the existing 

  minimum approach distances in 269, and I’m curious what 

  EEI’s position is on the question of whether they would 

  support adopting the minimum approach distances in the 

  proposal over those currently in 269.   

            MR. KELLY:  Yeah.  In our discussion we 

  basically would say that we would like OSHA to leave 

  the existing 269 numbers in there until such time that 

  the NESC work is done. 

            MR. WALLIS:  And one further point of 

  clarification.  Does that apply to Subpart V too, 

  because the Subpart V distances are not the same as the 

  269 distances?             MR. KELLY:  I would say yes, David. 

            MS. GOODMAN:  At the bottom of Page 4 of your 

  testimony you suggest there could be confusion in the 

  industry to the extent that OSHA goes forward and 

  adopts either the proposal or a version like IEEE 

  standard only to have the NESC come out with new 

  numbers later and I know we talked about this with the 

  prior witness.   

            I would be very interested to hear from this 

  panel about any problems that they are aware of that 

  have occurred by virtue of the fact that currently the 

  OSHA standards are different than the IEEE standard are 

  different that the NESC numbers. 

            MR. KELLY:  No.  Actually, we would probably 

  agree with Mr. Tomaseski’s statement that we are not 

  aware of any particular problems.   

            MR. YOHAY:  First, the question that Mr. Kelly 

  just answered had to do with whether the existing 

  standards have created any risk to employees and we are 

  joining Mr. Tomaseski’s assessment on that issue.   

            The other question you asked is whether this 

  confusion in the industry, and I am going to answer   this
anecdotally’ based on my experience in 

  representing employers in this industry.   

            I have often, not often, but more than 

  occasionally heard confusion expressed as to which 

  standards are the applicable standards, whether they 

  are the OSHA standards, whether they are the NESC 

  standards.  And as you heard Mr. Tomaseski say various 

  companies adopt different for their own work practices.  

            Now when you throw in the element of State 

  plans, you further confuse the mix.  So I think there 

  is some confusion and I think you all heard him say 

  here earlier, and I think we all agree it is time for 

  there to be consistency. 

            MS. GOODMAN:  And is your experience similar 

  to that that Mr. Tomaseski described that employers -- 

  there is no general rule whether employers are 

  following the OSHA standards or the NESC or the IEEE 

  standard. 

            MR. KELLY:  Yes. 

            MR. YOHAY:  Yeah.  And that is my experience, 

  too. 

            MS. GOODMAN:  One Page 7 of --               MR. YOHAY: 
Let me just clarify.  Employers 

  are at least following OSHA standards.   

            MS. GOODMAN:  Sure, sure. 

            MR. YOHAY:  Some are exceeding the values that 

  are in the OSHA standards and adopting more 

  conservative standards. 

            MS. GOODMAN:  And just to follow up again, you 

  indicated that has created some confusion to your 

  knowledge.  Has that created any safety issues? 

            MR. KELLY:  Well, the question of -- we have 

  already said that the existing standard, the numbers 

  have not created any accidents that we know of now.  

  The confusion, I think, stems from the question people 

  are asking questions on how to comply, how to train.  I 

  am not sure it creates safety issues. 

            MS. GOODMAN:  Yeah.  And my question is really 

  whether there, in EEI’s view, there is any risk to 

  employees by virtue of the fact that employers might be 

  confused about the standards. 

            MR. YOHAY:  I think we all seem to agree, 

  happily, the existing OSHA standards have protected 

  employees in the industry.  Some of the confusion   arises however
when you think about fashioning 

  safety/health programs.  I mean we deal in this 

  industry between, the difference between construction 

  and maintenance standards are a subject for another day 

  although it is pertinent to this Rule making and 

  ultimately of course you have heard us say before that 

  employer safety/health records have to come up with set 

  of safety Rules that are used in the work place.  And 

  those Rules are sometimes challenged in a variety of 

  ways.   

            So currently what to do in the workplace in 

  all respects has sometimes created some confusion.   

            MS. GOODMAN:  Thank you. 

            MR. YOHAY:  These choices have to be made. 

            MS. GOODMAN:  At Page 7 of EEI’s testimony, 

  there is a statement in response to question number 1; 

  that the minimum approach distances in Table V2 through 

  V5 are based on the minimum air insulation distance and 

  as such I quote, “do not add adequate protection for a 

  worker when a tool is present in the air gap” and I’m 

  curious how do you reconcile that statement with the 

  statements earlier in your testimony that, and also in   the
testimony that there are no risks that you know of 

  associated with the correct numbers in that OSHA 

  standard? 

            DR. HORTON:  Basically what we are trying to 

  say there is if you assume the IEEE method is correct, 

  and you are going to use that as your calculation 

  method, it has two specific criteria, basically two, 

  the equation is the same, it has a different 

  multiplying factor, but you can think of it as two 

  separate equations; one that will basically describe 

  the dielectric strength of the gap when you have tool 

  in the air gap and one with the out of tool in the air 

  gap.  And what we said in our testimony was, if you are 

  going to use the minimum air insulation distance for 

  your minimum approach distance, the little misnomer at 

  the bottom of the Table, where is says, this is 

  actually for live-line tools, needs to be removed, 

  because if the method is based on IEEE method, that 

  distance is not going to be for tools, it is going to 

  be just for someone climbing up a latter without a tool 

  in the air gap.  So is that -- 

            MS. GOODMAN:  I guess what I’m really trying   to clarify
is, this sentence here suggesting that the 

  numbers, the minimum approach distances in OSHA’s 

  current standard, do not provide adequate protection in 

  certain scenarios.  And I am trying to reconcile that, 

  with the notion that there is, that the current 

  standard is adequately protective, which I believe you 

  said, and it is also in your testimony.  

            DR. HORTON:  I think it actually goes back to 

  how people apply this.  Are they actually using these 

  distances for minimum tool length?  That is probably a 

  question posed to maybe the people testifying on behalf 

  of IBEW.   

            But if you are using that distance for your 

  minimum tool insulation distance, and you are assuming 

  that the IEEE method is correct, that distance is not 

  going to be valid, if you are basing it on minimum air 

  insulation distance. 

            MS. GOODMAN:  So then, you are agreeing that 

  there are potential safety concerns associated with 

  continuing to apply the minimum approach distances in 

  either OSHA’s proposal in 2005 or in 269. 

            DR. HORTON:  With the existing sentence that   says it is
for minimum tool insulation distances, is 

  that exactly like it is now?  Is that what you are 

  asking? 

            MS. GOODMAN:  Yes, as it reads now and as it 

  reads in the proposal. 

            DR. HORTON:  It is actually hard to answer 

  that question.  The actual safety factor is going to be 

  based on probability.  But, if you look specifically 

  just at the distance, they are different.  Is one 

  distance safe over the other?  Like I said, that is a 

  very difficult question to answer.   

            MR. YOHAY:  I am not attempting to answer this 

  question.  But I think maybe we ought to give Dr. 

  Horton a chance to elaborate on this in what we submit 

  post hearing.  I understand your question.  I do think 

  it is worth saying, I think this answer is limited to a 

  very narrow set of circumstances.  Not universally.  

  That is the applicability of the standards.   

            MS. GOODMAN:  Yeah.  I think you understand -- 

  what I am getting at.   

            MR. YOHAY:  I do. 

            MS. GOODMAN:  I just, you know, to the extent   that
EEI’s suggestion is that we leave the distances as 

  they are, at least for the time being, because there is 

  no risk associated with those distances.  I am trying 

  to just reconcile with that statement here. 

            MR. YOHAY:  I understand, but let us just sort 

  it out. 

            DR. HORTON:  We need to wait. 

            MS. GOODMAN:  Okay, thank you.  At Page 8 of 

  the testimony, again, your response to question number 

  one, you suggest that the Tables, and as I understand 

  it, you are talking about OSHA’s minimum approach 

  distance Tables, it should be developed using the 

  methodology found in IEEE 516-2009.  So my question 

  there is just to get clarification on that position.  

  You seem to suggest elsewhere that we should wait for 

  NESC to develop its own methods and its own numbers, 

  and I am trying to, if your position is actually, we 

  use the methodology in the IEEE standard, I do not know 

  the value in waiting for the NESC to complete its work. 

            MR. KELLY:  Let me, before Randy answers that, 

  let me just -- you need to understand that our 

  testimony is really from two different directions.    One, we
attempted to answer the eight questions that 

  were asked specifically and directly based on the 

  information provided in the questions in 516 and its 

  existing.   

            Obviously, in the testimony before we got to 

  the questions, there are some things that, conflict 

  with saying that we should adopt, that you should use 

  516-2009.  But those answers are strictly, you know, if 

  OSHA fails to agree with us to leave the standard until 

  NESC is done, then if they use 516, then this is what 

  they should do.  You know, it is thank you if you 

  appreciate what we said and you listened to us, but if 

  you do not, like we may anticipate, then here is what 

  you probably should do. 

            MS. GOODMAN:  Okay.  So is it EEI’s position 

  that if we do not wait for NESC to complete a new 

  standard, that we should use -- I, I, I, it just seems 

  inconsistent to me.  So you are --    

            MR. KELLY:  Based on the engineering analysis 

  that Randy and the folks in the industry have done, I 

  would say, yes. 

            MS. GOODMAN:  But I --               DR. HORTON:  But that
would be for the line-

  to-ground values.  What we are saying for the line-to-

  line in our MAD is to keep them as they are.  Do not 

  use the IEEE method is what our recommendation would 

  be.   

            MS. GOODMAN:  Okay.  So it is the specific 

  subset, of distances, that you are talking about here, 

  with respect to using the IEEE numbers. 

            DR. HORTON:  That is correct. 

            MS. GOODMAN:  And then that would, also 

  clarify on Page eleven where you indicate, “we believe 

  the line-to-line MAD values proposed by OSHA are safe”.  

  I assume that is part of the same response.   

            MR. YOHAY:  I am sorry.  Did you finish your 

  question? 

            MS. GOODMAN:  Yes, I did.  Go ahead. 

            MR. YOHAY:  Just to be clear on what Mr. Kelly 

  said, EEI’s position is, as we said earlier, in regard 

  to minimum approach distances, wait until the NESC 

  process is complete.  The EEI would not address the 

  IEEE issue had the question not been posed in the 

  Federal Register.  And so as you said, if you do not   agree with
EEI’s suggestion and the NESC suggestion, 

  then here are our comments on IEEE.  

            MS. GOODMAN:  Thank you for the clarification.  

  At Page 20 of your testimony, you make a reference to a 

measured over-voltages on actual 

  operating systems.  And, to the extent you have that 

  documentation you can make available to us as part of 

  the post-hearing comment period, we would be very 

  interested in seeing. 

            DR. HORTON:  We can do that.  I assume you are 

  referring to the test data from BPA? 

            MS. GOODMAN:  The test data from what?  I am 

  sorry I missed? 

            DR. HORTON:  Are you referring to the test 

  data from BPA? 

            MS. GOODMAN:  That, as well.  But I was -- 

  actually, my question was directed to the first 

  paragraph in your testimony in response to question six 

  where you reference the documentation of these 

  measurements and of numerous simulations. 

            DR. HORTON:  Basically, this is going to be a 

  culmination of documentation that several different   utility
companies have, i.e., literature, references 

  and so on.  So it is an enormous amount of data.   

            MS. GOODMAN:  Well anything you can provide to 

  us will certainly be --    

            DR. HORTON:  I mean, we can certainly provide 

  you with some examples if that would help. 

            MR. WALLIS:  Summaries or reports of those 

  measurements would certainly be adequate.   

            MS. GOODMAN:  If we can jump to Page 23, in 

  your testimony where you make reference to potential 

  engineering and construction costs and additional costs 

 minimum approach distances.  I 

  realize you indicated you did not have time to pull any 

  data together for us in the thirty days, but we will be 

  having an extended post-hearing period into the extent, 

  that if you could provide that it would obviously be 

  very useful to us as we prepare the final Rule. 

            MR. KELLY:  We will seek to get that. 

            MS. GOODMAN:  A couple more questions before I 

  turn it over to David.  On Page 24, towards the middle 

  of the page, you provide an example.  You said, For 

  example, requiring minimum safe approach distances that   exceed the
length of standard line insulation would 

  require the re-tooling of live-line maintenance 

  equipment, new work procedures, et cetera.  And I am 

  curious if it is EEI’s position that those step would 

  be required if OSHA were to adopt the new IEEE numbers. 

            DR. HORTON:  I think what they were referring 

  to there is, say for example, and this is typically 

  for, what I would say more typical for an EHV system, 

  say 500 kV and above.  But when the minimum approach 

  distance becomes longer than what the insulator length 

  is, if you do not use some method, say for example, a 

  portable air gap, to reduce the transient over-voltage, 

  you essentially cannot work on the line.  Say for 

  example, if the insulator length or the length from the 

  energized part to a grounded part is, say eleven feet, 

  three inches, and now your minimum approach distances 

  is now eleven feet, six inches, you physically would 

  not be able to meet that distance.  Now a couple ways 

  to get around that is to reduce the transient over-

  voltage which would in turn reduce the minimum approach 

  distance.           

            So you would have to use the portable, you   know,
protective, portable protective air gap or 

  something like that. So I would say that being perhaps 

  what is meant by re-tooling of live-line maintenance.  

  Plus you would have other training issues associated 

  with that as far as, you know, having to learn how to 

  use the protective air gap and things of that sort. 

            MS. GOODMAN:  And my question was more 

  specific than that, which is, do you know if, given the 

  numbers in the new IEEE standard we would run into that 

  situation where the minimum approach distances exceed 

  the length of the standard line insulation. 

            DR. HORTON:  I would answer it as, possibly.  

  If you think about your -- that is sort of a broad 

  question where you are looking at every conceivable 

  line configuration.  You can also have the issues at 

  lower voltages when you have compact timer designs.  So 

  I would say, perhaps. 

            MR. WALLIS:  Just taking one point of 

  clarification.  You are talking about the line-to-

  ground exposure distances, not the line-to-line 

  distances. 

            DR. HORTON:  That is correct.             MS. GOODMAN:  And
finally on Page 25, you had 

  a similar sentence where you suggest, any change in 

  distances would increase the potential for needing more 

  outages for perform maintenance based on insulator 

  life.  And again, I want to ask the same question.   

            If OSHA were to adopt the new IEEE numbers, do 

  you have reason to believe that that would increase the 

  need for more outages? 

            DR. HORTON:  It is quite possible.  For 

  example, if let’s say for, if a utility company did not 

  get, did not know this was coming, and sort of 

  discovered it once they saw the new Ruling, you know, 

  it would take some amount of time to get tooled up to 

  actually handle these new minimum approach distances.   

            If you were to have an outage during that 

  amount time and you were not capable of meeting the 

  minimum approach distances you would have to take the 

  line out of service to perform maintenance.   

            MS. GOODMAN:  And you have concerns about 

  that, given the specific numbers given in IEEE, or 

  about any numbers that are different in the proposal? 

            DR. HORTON:  I would say that the phase-to-  ground numbers
that are in IEEE 516, I would not 

  actually, I would not view that causing any issues.   

            MR. YOHAY:  Before you ask your question 

  David, we all agree, that that is another question we 

  all need to elaborate on in post-hearing. 

            MS. GOODMAN:  Thank you. 

            MR. WALLIS:  And my guess is -- my follow up 

  question is probably in the same category.  That is 

  sounds to me like, what you are really saying is that 

  it may take utility companies or employers, I guess I 

  should say, some additional time to figure out how to 

  comply with this standard in order to avoid outages.  

  That is the way I interpreted your question.  And so my 

  question is, how long -- this is really an effective 

  date question.  How long should OSHA delay 

  implementation of the final standard in regard to 

  minimum approach distances, so that, to avoid that 

  issue?  And feel free to offer that in the post-hearing 

  comments, that would be great. 

            MR. YOHAY:  Tell us what the final standard is 

  going to say and we can give you an answer. 

            MR. WALLIS:  There are only a limited number   of issues on
the table.  This is line-to-ground tool 

  distances you are talking about. 

            MS. GOODMAN:  I think David’s question was 

  assuming that we were to take the route with 

  incorporating the IEEE numbers.  How long would --   

            MR. WALLIS:  As you suggested by the way, it 

  seems to me. 

            MR. KELLY:  In one scenario. 

            MR. YOHAY:  As an alternative. 

            MR. KELLY:  As an alternative to what we 

  really want.  Yeah.  We will address that, yes. 

            MR. YOHAY:  If you can, did you understand the 

  enormity of the question that you just asked?   

            MR. WALLIS:  I understand. 

            MR. YOHAY:  That we should know the amount of 

  time this process should take? 

            MR. WALLIS:  We understand that.  The agency 

  also has historically been willing to push back the 

  effective date when we find out after we issue a Rule 

  that it will take a little longer than we had 

  anticipated. 

            MR. YOHAY:  That is appreciated, but who wants   to go
through that life of process --    

            MR. WALLIS:  That is why I asked --   

            MR. YOHAY:  -- of post promulgation 

  negotiation over implementation dates, which leaves us 

  all with the difficult question about, what does the 

  standard mean that is being published, and we can leave 

  that where it is.   

            MR. KELLY:  With that being said, we will do 

  our best to provide you with the information. 

            MS. GOODMAN:  Thank you.  I have no further 

  question. 

            MR. WALLIS:  I have a couple questions.  

            MR. KELLY:  Engineering, I hope. 

            DR. HORTON:  You can direct them to me. 

            MR. WALLIS:  Get out your calculator.  For 

  the record and for the sake of JUDGE COLWELL reporter, 

  could you spell out CRIEPI and tell us what it stands 

  for. 

            DR. HORTON:  Yes and no. 

            MR. WALLIS:  Which part? 

            DR. HORTON:  Well, let me make sure I get the 

  --               MR. WALLIS:  And also for the record, that is 

  an acronym, correct? 

            DR. HORTON:  Yes, it is, but I can give you a 

  generalization about what it is.  Hold on for just a 

  second.  CRIEPI is C-R-I-E-P-I, and basically it is a 

  consortium in Japan that does technical tests and 

  things of that sort.  They are well known in the high-

  voltage area.  And as far as what it stands for, I am 

  not sure.   

            MR. WALLIS:  I noticed you use several 

  different methods to calculate minimum approach 

  distances; CRIEPI, the Gallet method, and Vaisman, is 

  that right? 

            DR. HORTON:  Yes, for the line-to-line. 

            MR. WALLIS:  And could you explain why you 

  used a number of different methods instead of just 

  picking a single method and presenting that? 

            DR. HORTON:  Well, to use the Gallet and 

  CRIEPI was basically to address the question, specific 

  question about extrapolating the air-saturation factor 

  beyond the test data that is available for the IEEE 

  method.               And then for the Vaisman method, essentially 

  provided another means of determining the what the 

  minimum approach distances would be line-to-line, to 

  essentially show that the distance line-to-line MAD 

  that is in OSHA now is valid.   

            MR. WALLIS:  The IEEE standard – which is it 

  based on one of those? 

            DR. HORTON:  It is also based on the Vaisman 

  data, but the difference between that and what we 

  showed here was, there is some other multiplying 

  factors that is in the 516 method, essentially to take 

  into account all tower configurations, floating 

  conductor, you know, conductive objects, and that sort 

  of thing.  And in the process of all that, the -- 

  essentially the distances are different than what we 

  showed here.  They are more conservative than what we 

  showed. 

            MR. WALLIS:  That the -- 

            DR. HORTON:  Also, I would say what is a part 

  of this is, you can see that the variability of the 

  different methods obviously, you know, they are all 

  based on physics, but the different methods provide   different
distances based on where you get the test 

  data. 

            MR. KELLY:  Which creates more confusion for 

  you when deciding what to use, which will in turn 

  create confusion for us, so. 

            MR. WALLIS:  You will forgive me if it takes 

  me an extra couple of seconds while I bit my tongue.  

  The -- one of the Figures you put up on the screen, I 

  think it was Figure 4, with the graph that showed the 

  comparison of, I believe, Gallet and CRIEPI and 516-

  2003.  Figure 2, I think, is the one you are really 

  relying on to show why you cannot extrapolate.  You 

  labeled the blue line on that graph MAID 516-2003 and 

  did you use their equations and correct them with an 

  extrapolated “a”?  It is my understanding that IEEE, 

  that the numbers in IEEE 516-2003 contain the error 

  which actually does not extrapolate “a” accurately.   

            DR. HORTON:  Basically I guess you have two 

  points here.  The actual error that was in 516-2003, it 

  was with line-to-line distances.  There was a 

  multiplying factor that was used instead of determining 

  what the line-to-line transient over-voltage needed to   be and then
plugging that into the formula.  There was 

  much discussion going on in the early stages of what 

  became 516-2009 about the air-saturation factor and how 

  it is determined.  And we finally proved that, that 

  value was, which essentially came from the 1968 paper 

  where the formula is referenced from, is based on what 

  is referred to know, what now as minimum tool 

  insulation distance curve, which 516-2003 had correct.  

            What was going on once 2003 version of 516 

  came out, there was a push to try to push that on to 

  the MAID curve, which is incorrect.  So the 2003 

  version of 516, the way to compute the air saturation 

  factor is correct.  In fact, the only difference in 

  that, and the way it is done now, the 2009 version, is 

  that in 2003 you have essentially two formulas to use 

  depending on what level the voltage is at.  And in 

  2009, there are multiples just to have a little more 

  accuracy.   

            MR. WALLIS:  So to get back to my question 

  though, the line in your figure does not include the 

  error --    

            DR. HORTON:  That is correct.             MR. WALLIS:  --
from the 516-2003.  That was 

  the root of my question. 

            DR. HORTON:  Yes.  Another way of stating that 

  is this blue curve is correct. 

            MR. WALLIS:  The correct part of 516.   

            DR. HORTON:  Yes. 

            MR. WALLIS:  Assuming that the IEEE 516 

  formula for calculating minimum approach distance, or 

  the air insulation distance is accurate, what is the 

  probability of spark-over at that distance when that 

  over-voltage occurs? 

            DR. HORTON:  It is really based on what the, 

  the way to actually calculate it, because wave -- are 

  you talking about the 2009 version 516? 

            MR. WALLIS:  Yes. 

            DR. HORTON:  Because it actually uses the two-

  percent statistical over-voltage to determine what the 

  minimum air insulation distance is.  So the only way to 

  actually determine that probability would be, you would 

  have to know what the probability distribution of the 

  actual surge is that the air gap is subjected to.  And 

  then you could say, assume five-percent sigma for MAID   you could
use those two probability distributions, 

  multiply them together to create a third, and then 

  integrate that to get the area under that curve to 

  determine the probability of spark-over.  It would non-

  zero.  I would say, if you take a typical distribution 

  of surges, and assume five-percent you are probably on 

  the order of maybe one in a thousand.   

            MR. WALLIS:  Thank you.  I do not remember 

  exactly, I did not mark it down in my notes here, but 

  there were several places in your testimony where you 

  referred to line-insulation.  And I wanted to make it 

  clear for the record that you were talking about air-

  insulating, oops --   

            DR. HORTON:  Yep, oops.  See what you did? 

            MR. WALLIS:  You were talking about air as an 

  insulating medium.  You were not implying that the 

  conductors themselves were insulated. 

            DR. HORTON:  That is correct. 

            JUDGE COLWELL:  David, thanks.  In all my court 

  experience, I have never seen a question have such an 

  effect. 

            MR. KELLY:  -- cause this?             MR. WALLIS:  Now you
have. 

            MR. YOHAY:  Process safety update 

            MS. GOODMAN:  -- go to law school and 

  retirement. 

            MR. WALLIS:  You are too late then.  I just 

  wanted to clarify one of the points.  This is in Chuck 

  Kelly’s portion.  It seemed to me that, and I think you 

  actually already answered this question; I just wanted 

  to make sure I got the gist of your point.  The um, one 

  of the things you had mentioned as, where increases at 

  minimum approach distances could cause a problem is in 

  insulated tools such as insulator cradles and things 

  like that where the length of the tool is based on the 

  length of the insulation.  And I assume that, that 

  consideration only applies in for phase-to-ground 

  exposures, phase-to-ground minimum approach distances, 

  not phase-to-phase minimum approach distances. 

            MR. KELLY:  Is that right, Randy? 

            DR. HORTON:  I think that is accurate. 

            MR. WALLIS:  What portion of electric utility 

  work is performed using live-line bare-hand work 

  methods on voltages of 362 kV and higher?             MR. KELLY: 
Yeah. 

            MR. WALLIS:  If you can provide it and -- 

            MR. KELLY:  Okay.  We will. 

            MR. WALLIS:  In the post-hearing period. 

            MR. KELLY:   You know all of these questions 

  are going to require an extended period-of-time for 

  post-hearing comments.   

            MR. YOHAY:  It is not a joke.  Think about 

  what we have to do try to get you to answer a question 

  like that.   

            MR. WALLIS:  Are there -- you talked about 

  using a portable air gap, to reduce the over-voltage 

  (TOV).  Is, are there ways of using those kinds of 

  portable gaps to reduce transient over-voltage (TOV) 

  for a phase-to-phase exposure? 

            DR. HORTON:  I am not aware that there are 

  available.  I know that there is some research going on 

that 

  they are available. 

            MR. WALLIS:  Could you for example, if you 

  placed a portable protective gap, one line-to-ground 

  gap on each phase, would that also reduce the maximum   TOV on the,
three phase maximum TOV? 

            DR. HORTON:  Not necessarily.  The way the 

  actual surges interact with one another, just limiting 

  the phase-to -- well, let me state it this way.  

  Limiting the phase-to-ground over-voltage does not 

  necessarily give you the same reduction as line-to-line 

  over-voltage.  It could have some, depending on the 

  circumstances.  There are some circumstances where it 

  might not have any effect.  Some it might have a little 

  bit.  So it is not as cut and dry as you might think.  

            MR. WALLIS:  But the formulas and the method 

  in 516 base the phase-to-phase TOV on the phase-to-

  ground TOV, s that correct? 

            DR. HORTON:  Yes, that is correct.  Now the 

  formula that basically transfers that is based on the 

  interaction point --   

            MR. WALLIS:  I understand.  So by using the 

  IEEE method I could put a phase-to-ground gap on and 

  come up with a reduced phase-to-phase TOV.  It might 

  not be right, but I could do that under the 516. 

            DR. HORTON:  Mathematically you would possibly 

  do that.  But as you said, it would be incorrect.             MR.
WALLIS:  I thought that was as, you said.  

  I will ask the same question I asked of Jim.  It is two 

  questions and feel free to combine them in any way to 

  answer the questions.  Why should OSHA rely on the 

  results of the NESC Subcommittees review rather than 

  the IEEE Committee and won’t there be sufficient 

  information in the record for OSHA to make a 

  determination on how to determine MAD even without the 

  results of the NESC Subcommittees deliberation? 

            MR. YOHAY:  First, I think we would answer the 

  question as the first part of your question and the 

  second is, we do not have any way to evaluate what you 

  consider to be sufficient.  If you want to accept our 

  assessment of what is sufficient, that would be great.  

  But I do not know how we answer that.   

            MR. WALLIS:  That is okay.  There is a follow 

  up question.  If --   

            MR. KELLY:  Let me answer the first part of 

  your question.  Why should you wait for NESC and not 

  adopt 516?  Because as Mr. Tomaseski pointed out, the 

  NESC is basically geared toward the safety of the 

  worker and the work practices.  And 516 is an   engineering standard,
primarily used for design, 

  etcetera.  If you want to protect the worker, which is 

  what we are here for, you probably want to use what is 

  best for the workers.  And traditionally that is what 

  you have done.  To deviate from that would be a 

  significant change and I am not sure is necessary.   

            MR. WALLIS:  So what you are saying is, and 

  the way I understand the process is, the NESC takes the 

  engineering material in 516 and uses --   

            MR. KELLY:  NESC takes the engineering 

  material and basically makes it legible and readable 

  for the common person.  So most of us in the room who 

  listen to the questions and answers between you and 

  Randy probably did not understand any of it.  And what 

  the NESC does is takes that and makes it workable in 

  the field. 

            MR. WALLIS:  But you would not expect or in 

  your experience have you ever seen a case where the 

  NESC used a methodology that was different from what 

  was in 516? 

            MR. KELLY:  I could not, I do not know.  I 

  could not answer that.  I could answer that in the   future, but I
could not answer that now. 

            MR. WALLIS:  And, so if, the reason I asked 

  the question the way I did before is, to the extent the 

  NESC Subcommittee is looking at this same information 

  that we are, they, I mean, their record and our record 

  at this point are, when we get the material from Jim 

  Tomaseski, will be pretty much the same. 

            MR. YOHAY:  As you yourself said David, the 

  National Electric Safety Code is a National Consensus 

  Standard, and you acknowledged the statutory obligation 

  that OSHA has to explain clearly, why you would deviate 

  from a National Consensus Standard and that applies in 

  full force with respect to the NESC.  I would suggest, 

  that the reason that provision is in the statute, not 

  only is NESC, but all National Consensus Standards, is 

  recognition that those code committees collect 

  expertise from such a wide variety sources, that it is 

  a collection of expertise that OSHA should respect and 

  give some deference to.  With all due respect, OSHA’s 

  capability simply by virtue by the range of people 

  involved, the NESC Committee is going to involve a 

  consideration by people who come from a broad range of   the industry
and hopefully will have considered how the 

  standards will apply throughout the industry.  And that 

  is why that provision is in the statute.   

            MR. WALLIS:  Just two more it looks like.  

  No, three more, I finally figured out what that other 

  one was.  On Page 20, you refer to the BPA circuit as a 

  special 230 kV circuit.   

            DR. HORTON:  Special case. 

            MR. WALLIS:  It says one special 230 kV 

  circuit and it repeats it in the next sentence.  So you 

  are talking that this was a special case.  You are not 

  implying that the circuit is unique in some manner. 

            DR. HORTON:  Correct.  I mean, as far as like 

  the construction of the circuit, we are not aware of it 

  being abnormal. 

            MR. WALLIS:  Okay.  I just wanted to clarify 

  that.  On Page 17, I will read this sentence to you.  

  Since the shape of the adjacent electrode remains 

  unchanged during the task, that is, it remains a 

  conductor, the resulting air gap geometry more closely 

  resembles that of a conductor-to-conductor.   

            Is all line workers, I mean, are all line work   on, in a,
basically bare-hand line work, because that 

  is what we are talking about here, phase-to-phase.  The 

  other phase is only in the form of a conductor. 

            DR. HORTON:  Probably what this should have 

  said, more, maybe to add to it, it more closely 

  resembles that of a conductor-to-conductor rather than 

  a rod-to-rod gap.  If you compare those two, that is 

  essentially what the statement is trying to say. 

            MR. WALLIS:  As a follow-up to that, are you 

  aware of any testing that was done for different kinds 

  of configurations in a phase-to-phase, um for phase-to-

  phase testing?  For example, and let me explain that a 

  little further.  For phase-to-ground testing there are 

  several papers with results for testing for rod-to-rod, 

  rod-to-plane, conductor-to-conductor, various tower 

  configurations.   

            Is there a comparable body of evidence for 

  conductor-to-conductor or phase-to-phase? 

            DR. HORTON:  No, there is not.   

            MR. WALLIS:  And one last thing.  Your 

  proposal was to retain the existing 269 and Subpart V 

  minimum approach distances and leave that portion of   the Rule
making open, is that correct? 

            MR. KELLY:  Correct. 

            MR. WALLIS:  Since it appears that most of 

  the controversy is on line-to-line minimum approach 

  distances.  Would an option be to hold that, leave 

  those distances alone, and promulgate the others?   

            MR. KELLY:  So split it?  Finish line-to-

  ground and just leave line-to-line out there. 

            MR. WALLIS:  Well, just line -- in fact, 

  there, we could leave -- yes.  The answer would be yes. 

            MR. KELLY:  I do not think that would probably 

  be -- I mean, I do not think it would make much 

  difference to us because the issues are on line-to-

  line.  I think it would be more problematic for you to 

  split it, but I mean, as you could probably have 

  someone challenge you on both of them at two different 

  times.   

            MR. YOHAY:  I think it is an intriguing 

  question.  I think we need to think about it.  I would 

  be interested in not knowing how employers, how 

  companies in the industry go about putting together 

  their Rules and training and whether they segregate   these things --
if I could finish. 

            MR. WALLIS:  I guess that –  

            MR. YOHAY:  Could I finish my answer? 

            MR. WALLIS:  All right. 

            MR. YOHAY:  Thanks.  I do not know the answer 

  or we do not know the answer whether it would create a 

  practical matter, problems in implementation and terms 

  of Safety Rules, Operating Rules, Work Practice, all 

  that good stuff that flow from changes in the Rule.  I 

  just do not know the answer, whether it is as neatly 

  divisible in practice as it seems to be from your 

  question.  It is a legitimate question and we will 

  address it. 

            MR. KELLY:  We will pose it and we will ask 

  the question and see what kind of response we get. 

            MR. WALLIS:  Thanks.  That is all I have. 

            MR. BURT: 

                         Just one quick question.  As I 

  understand it, the minimum approach distances have 

  changed a number of times over the years; any 

  observations on past costs or economic implications of 

  such changes, the past changes?             MR. KELLY:  We would have
to go back and dig 

  into all the work that was done on 269 prior to that 

  coming out, but which you already have, but we 

  certainly could resurface that if possible. 

            MR. BURT: 

                         Thank you. 

            MS. GOODMAN:  That is all from us, Your Honor. 

            JUDGE COLWELL:  Let me just see how many 

  individuals have questions and we will determine the 

  break, whether we take it now or take it after the 

  questions.   

            Mr. Tomaseski, about how long do you think 

  your questions will be? 

            MR. TOMASESKI:  It should not take long. 

            JUDGE COLWELL:  Then why don’t we finish up with 

  you please and then, we will take a break.  Then we 

  have -- well, you’re up after that? 

            MR. TOMASESKI:  Thank you. 

            JUDGE COLWELL:  Just for the record, just please 

  state your name --    

            MR. TOMASESKI:  I am sorry.  I am James 

  Tomaseski --             JUDGE COLWELL:  Thanks. 

            MR. TOMASESKI:  from the IBEW.  These 

  questions are probably aimed at Randy, I would assume. 

            MR. KELLY:  Thank you. 

            MR. TOMASESKI:  In IEEE 516 there are terms 

  like MAID and MTID and we have talked a little bit 

  about air, and tools, and everything.  What -- two-part 

  question.  What is the principle difference and why is 

  that so important to worker safety?   

            DR. HORTON:  I think the principle difference 

  is to differentiate between the two conditions that a 

  worker may be subjected to.  Say for example, if you 

  have a worker is climbing a tower, does not have a 

  tool, you know, using a tool that would essentially 

  equivalate to one minimum approach distance, where as 

  if they are using a tool, it would equivalate to 

  another.  And the distance with the tool is going to be 

  larger than the distance without the tool.  So to use 

  the distance, to use one distance for everything that 

  is based on just the air insulation distance, you know, 

  theoretically that is less conservative than using a 

  distance that includes a tool in the air gap.  I think   we have
probably proven over the years that the latter 

  is safe.  We know we have talked many times, about not 

  ever having any issues. 

            MR. TOMASESKI:  Okay.  Are you aware that the 

  2007 NESC in their revision changed to, changed their 

  minimum approach distances Tables to MAD for Tools?   

            DR. HORTON:  Yes. 

            MR. TOMASESKI:  And also in the evolution of 

  IEEE 516 I think probably in the 2003 Edition they 

  started to include MAD for Tools also? 

            DR. HORTON:  That is correct. 

            MR. TOMASESKI:  The 2009 Edition of 516 does 

  not include the line-to-line MAD for Tools distances, 

  does it? 

            DR. HORTON:  No, it does not. 

            MR. TOMASESKI:  Can those distances actually 

  be calculated? 

            DR. HORTON:  I would say at this time, no.  

  Well, let me say it this way.  You could calculate a 

  distance, but it would not be based on test data for 

  that particular application.  And that is sort of the 

  whole history with the line-to-line methodology.  No   matter what
you choose, going back to what Mr. Wallis 

  asked me, there is really not the same body of test 

  data for line-to-line conditions, that there are for 

  line-to-ground conditions.   

            MR. TOMASESKI:  So the distances that were in 

  2003-516 which got into the 2007 NESC, those were based 

  on what in your opinion.  Was is based on an assumption 

  or --   

            DR. HORTON:  Well, actually they were based on 

  line-to-ground test data, which is what the IEEE data 

  is based on.  But the difference there is the actual 

  approach distance was computed using a multiplying 

  factor.  They would compute the, say the line-to-ground 

  over-voltage factor and then use a multiplying factor 

  to kind of essentially increase the distance to be 

  adequate for line-to-line applications.  What they 

  should have done, and where the error was, is to 

  actually compute what the resulting line-to-line 

  transient over-voltage is, and then use that in the 

  formula to compute the appropriate approach distance.   

            Again, the formula is based on line-to-ground 

  test data and there is some issues associated with   that.  But based
on that method, that is how it should 

  have been done. 

            MR. TOMASESKI:  One thing that you mentioned 

  to, in your comments on the re-closures being turned 

  off, or being defeated, 242 kV, did that -- was that 

  note that was added, I think you referenced 2009 

  Version of IEEE 516, was that for voltages operating at 

  242 kV or all voltages operating at or above 242? 

            DR. HORTON:  You are talking about as far as 

  the re-closing --   

            MR. TOMASESKI:  Yes. 

            DR. HORTON:  Specifically what were the -- I 

  guess the differentiation begins, is when you are at 

  say, 500 kV -765, the actual design of the system is 

  governed by switching surges.  So inherently you are 

  reducing the switching surges in those types of systems 

  in the order of 2.4 or so for 500 kV and around 2.0 for 

  about 800 kV.   

            So to do that, you have closing resisters for 

  your breakers, or you have surge arresters along the 

  line that is at specific points, or maybe at the end of 

  the line.  You actually reduce the switching surges to   a level so
that you can actually operate your system 

  regardless of live line work.  At 242 kV that is not 

  the case.  Fact, I do not know of -- there may be some 

  out there, but I do not know of a situation where you 

  have closure resisters in a 242 kV breaker that is 

  protecting a line.  Now for capacitor banks and so on 

  you have that.  So that is in there because if you were 

  to high-speed a reclose into the line and it has a 

  trapped charge, you can get the transient over-voltages 

  that are up to, say, three per unit, and that is why 

  that caveat is in there. If you have high-speed 

  reclosing blocked, you are not going to be reclosing 

  into those trapped charges so that the actual resulting 

  transient over-voltage is much less than what the 

  maximum is. 

            MR. TOMASESKI:  So that same principle can be 

  applied to all voltages above that also. 

            DR. HORTON:  Yes.  I guess what that does is, 

  the higher voltages is, say for example, 500 kV, if 

  you’ve got closing resisters, you can actually into a 

  trapped charge with a closing resister and limit the 

  transient over-voltages.               MR. TOMASESKI:  Okay.  Last
question.  On IEEE 

  516, it went through some significant changes this 

  revision cycle, a lot of debate on some principles and 

  debate on the calculation method and so forth.  I 

  believe the committee will begin meeting again this 

  January.   

            In your opinion, what is the likelihood of 

  change in the next revision cycle referencing the 

  minimum approach distances?   

            DR. HORTON:  I believe the line-to-ground 

  distances; they should stay the same.  There is not 

  really anything to debate as far as methodology, you 

  know, that is pretty much said.  Line-to-line 

  distances; I think there is a very good likelihood that 

  they will change.  The methodology that was adopted 

  was, you know, based on what was believed to be maybe a 

  little bit better science, better replicating what the 

  realistic work situations are.  But in the result to 

  try to come up with one formula to basically handle all 

  structure types, all voltage levels and so on, some of 

  the multiplying factors that are imbedded in that 

  equation are very conservative.                        In fact, you
know, if the EHV level being say 

  515 kV - 765 kV, you can change some of the assumptions 

  very slightly that were used to develop the equations 

  and you can change the minimum approach distances by 

  feet. So I would say, there is a high likelihood that 

  the line-to-line minimum approach distances will 

  change.  There definitely will be some discussion in 

  January about looking at that.   

            MR. TOMASESKI:  That is all I have. 

            JUDGE COLWELL:  Any individuals have any 

  questions?  Go ahead.   

            MR. WALLIS:  I have a follow-up to one of 

  Jim’s questions.  You talked about re-- blocking, re-

  closing eliminates the closing in on a trapped charge.  

  But does that also eliminate the possibility of re-

  strikes on a breaker opening? 

            DR. HORTON:  That would not eliminate the 

  possibility of that.  But what is done in IEC Standards 

  and what we adopted in IEEE Standards is to not include 

  the probability of re-strike in the calculations.  If 

  you look at the probability of a breaker, re-strike in 

  concert with the probability of a worker actually being   within the
minimum approach distances they are actually 

  more likely to be struck by lightning walking down the 

  street.  So the probability is extremely low, so we 

  ignore it.  Like I said, we follow the IEC Standards.  

            MR. WALLIS:  One more question.  Does the -- 

  never mind.  

            JUDGE COLWELL:  Let me just ask you about a break.  

  It is my understanding; we will take at least a ten-

  minute break.  Do you want to go all the way through 

  and finish?  I think that was the goal to finish around 

  1:30 p.m. instead of taking a lunch break. 

            MS. GOODMAN:  That was the plan.  Whatever you 

  prefer, Your Honor.  The original plan was to conclude 

  by 1:30 – 2:00. 

            JUDGE COLWELL:  Let me just ask how much time Mr. 

  Tomaseski will be needing to present.  It is up to you 

  all.  It does not matter to me.  We could have a short 

  break and then hopefully finish, and then we can have 

  lunch, head on off, and go to your offices.  How long 

  do you think Jim will be?   

            MS. GOODMAN:  Our preference would be to push 

  through it.               JUDGE COLWELL:  Is that pretty much
everybody’s 

  preference? 

            MR. YOHAY:  So stipulated. 

            JUDGE COLWELL:  Let’s take a ten-minute break and 

  then we will come back. 

  Stop Recording 12:50 p.m. 

  Start Recording 1:00 p.m. 

            JUDGE COLWELL:  Let’s go back on the record, 

  please.  Back in session.  We have our next witness.   

            Will you please, for the record, state your 

  full name and whom you represent? 

            MR. HARTLEY:  My name is Donald C. Hartley.  I 

  am an international representative with the IBEW 

  Utility Department here in Washington, D.C., and my 

  responsibilities are for electric utilities industry, 

  safety and the transmission distribution end.       

            And to my left is Jim Tomaseski who previously 

  testified this morning, Director of our Safety and 

  Health Department at the IBEW.   

            Thank you very much, Your Honor and the OSHA 

  panel.  We appreciate this opportunity.  No, let me re-

  state.  We are mad about this opportunity to address   this industry
issue. 

            JUDGE COLWELL:  Very good. 

            MR. HARTLEY:  I could not resist that.  The 

  International Brotherhood of Electrical Workers (IBEW) 

  is a labor organization representing approximately 

  750,000 members that work in a wide variety of 

  including utilities, construction, telecommunications, 

  broadcasting, manufacturing, railroad, and government.   

            Of these 750,000 members, over 200,000 are 

  employed in the electric utility industry as full-time 

  utility employees and her contractor employees; on 

  investor-owned, rural electric cooperative, municipal, or 

  other government properties.   

            The IBEW has reviewed the Occupational Safety 

  and Health Administration’s limited re-opening of the 

  record for Electric Power Generation, Transmission, 

  Distribution, and Electric Protective Equipment Rule 

  Making that was published in the Federal Register in 

  September 14, 2009.   

            The IBEW continues to support OSHA’s efforts 

  to update the existing standards and submits the 

  following comments in response to this notice:   The IBEW is
genuinely concerned in maintaining and 

  where necessary improving safe working conditions for 

  our members and for all electrical workers.  We 

  represent a significant number of employees in the 

  Electric Utility industry; workers that will be 

  directly affected by the final Rules developed through 

  this Rule Making.   

            It is our concern, and we believe this concern 

  is shared by the different employers performing work on 

  electric utility properties, such as Edison Electric 

  Institute, National Rural Electric Cooperative 

  Association, the American Public Power Association, and 

  quite a number of contractors, that adequate work rules 

  exist to protect workers when performing tasks on our 

  nation’s electric utility systems.  We have developed 

  strong relationships with these industry/employers’ 

  associations through work on industry related consensus 

  standard writing committees, including the NESC.   

            We are also participating on a one of a kind 

  OSHA strategic partnership with major construction 

  employers in this industry and we must say that the 

  partnership work is experiencing remarkable progress in   the
reduction of incidents by the partner members.   

            The issue at question in this re-opening of 

  the record is minimum approach distances or what we 

  would commonly refer to as MAD.  The MAD concept, 

  although titled differently over the years, has been 

  with us for a long time, almost a hundred years.   

            In 1914 the U.S. Department of Commerce 

  published in the circular of Bureau of Standards the 

  Safety Rules for the operation of electrical equipment 

  and lines.  This effort eventually became what we know 

  today as the NESC or the NESC-II Standard.  Since 1914, 

  in every revision of what is now the NESC, MAD has been 

  included in the published Rules.   

            Electric transmission and distribution systems 

  have changed over the years and so have some 

  engineering principles.  As a result, MAD calculation 

  methods and resulting values have also changed.  OSHA 

  1926 Subpart V originally issued in 1971 contain Tables 

  for minimum approach distances and bare-hand work 

  minimum clearance distances.  In 1987, the Institute of 

  Electrical and Electronics and Engineers (IEEE) 

  published Standard 516, Guide for Maintenance Methods   for Energized
Power Lines.   

            In this guide, the term “minimum approach 

  distance” was first introduced in the industry.  Among 

  other items, the new IEEE 516 included details on how 

  MAD values were derived and what factors need to be 

  considered in an engineering analysis on the subject.   

            The NESC, beginning with the 1990 Edition, 

  began adopting principles regarding MAD from the IEEE 

  document.  Even in a 1994 OSHA publication 1920.269, 

  OSHA relied on the NESC and IEEE 516 for the basis of 

  the minimum approach distances in their regulation.  

  That is how the progression should work. 

            It is important to look at how to use the MAD 

  values.  Regardless of the origin and year of 

  publication, we have protected workers performing tasks 

  in the vicinity of energized power lines.  The IBEW 

  regularly reviews accidents occurring in the electric 

  utility industry.  We cannot remember a single accident 

  caused by inadequate MAD values.   

            OSHA 1920.269 MAD values have proven to 

  protect workers, as they were intended to do.  The 

  obvious question then is, why change successful MAD   values.  Based
on industry performance, we do not see 

  why changes are necessary.  IEEE 2009 does contain 

  different MAD values and several voltage ranges from 

  those in OSHA 1920.269 and those contained in the NESC.  

  It does not appear that OSHA can deem any of the 

  published MAD values unsafe for workers.   

            We understand that mathematical errors were 

  identified in many publications containing MAD values.  

  We also understand the desire to correct those 

  identified errors.  The problem then becomes, the MAD 

  values will change and more specifically they will 

  likely increase depending on the calculation method 

  that is used.   

            Again, how can one justify increasing the MAD 

  values possibly jeopardizing long existing work 

  practices where there has been no determination that 

  safety has been compromised. 

            Ultimately, IBEW believes there is nothing 

  unsafe with the existing 1920.269 MAD values even 

  though there may exist a mathematical error.  The 

  dilemma is how OSHA’s new MAD protocol should be 

  developed.               The IBEW believes the responsibility for 

  developing this solution is the responsibility of the 

  NESC.  Technical Subcommittee 8 on Work Rules, the body 

  responsible for writing Part IV of the NESC where MAD 

  Rules and Tables are located, should do this for OSHA 

  to follow.   

            The NESC is adopted by many states in the 

  U.S.  The U.S. World Electric Service requires member 

  cooperatives to follow the NESC if they receive 

  government loans.  Many public power utilities, 

  municipalities are not covered by OSHA.  The NESC in 

  these instances becomes the rule to follow.  The value 

  of the NESC cannot be understated.  The NESC is 

  published every five years.  The 2007 Edition is 

  currently in place and the revision process for the 

  2012 Edition is well underway, but not completed.   

            The MAD issue is at the forefront of 

  Subcommittee responsibilities for the next edition, 

  including the consideration of IEEE 516 changes.  The 

  process of canvassing public opinion on proposals to 

  revise existing NESC language, a requirement for ANSI 

  approval of new Code, started September 1, 2009.    Determination of
the 2012 Code Language will not be 

  finalized by Subcommittee 8 until the Fall of 2010.   

            It is unfortunate that the timing of the 

  revision of the NESC and the reopening of this record 

  has not been better aligned.  There is a way to fix 

  that problem.  The IBEW strongly recommends that OSHA 

  keep this record open until Subcommittee 8 has the 

  opportunity to review public comment on this issue and 

  develop final Code Language on the MAD principles and 

  Rules.  

            While this may not be in the best interest of 

  implementation of other provisions of the revised 

  regulations that will surely enhance the safety of 

  workers in this industry, the MAD issue is equally 

  important and needs to be addressed correctly.   

            OSHA relied on the NESC in the past and that 

  should not change with this Rule Making.  By delaying 

  the Final Rule until Subcommittee can complete their 

  work, the opportunity to align the OSHA Regulations and 

  the NESC is a reality.   

            Again, it is unfortunate that timing is not 

  better, but the only responsible option is to allow the   delay.   

            Subcommittee 8 recently met to discuss the MAD 

  issues.  Several problems were apparent.  Why changing 

  existing MAD values if there are no documented safety 

  issues.  And, on a more technical issue, what changes 

  should be made to MAD and why use one methodology over 

  another?  Is there sound science available; our 

  assumption relying on to establish the MAD values.  If 

  IEEE 516 is used to revise the NESC, what will change 

  in the next revision cycle for IEEE 516 and will the 

  NESC have to change again?   

            It has become very complicated considering the 

  impact it could have on the industry.  On an additional 

  note, the following Table represents the preliminary 

  discussions during the recent Subcommittee 8 meeting.  

  It was apparent the MAD values published in the 2007 

  NESC were based on a tool in the air gap, or MAD for 

  Tools.         

            While this approach is necessary in some work 

  applications, it is not always necessary to add the 

  factor 4 tool in the air gap, thereby increasing MAD.  

  OSHA asked this as one of their questions in the re-  opening.   

            It was also apparent there is a need to 

  include, in the final Tables, both MAD in the Air and 

  MAD with Tools.  While the Subcommittee may have a 

  tentative agreement on the issue at that level, nothing 

  official can be concluded until the public comment 

  period is finalized. 

            Most of the questions OSHA asked in the 

  Federal Register notice are very technical or at least 

  deserve a technical response.  We will not attempt to 

  offer the necessary technical responses, but will offer 

  what we can, and make sense.   

            Question 1.  Should OSHA adopt minimum 

  approach distances that are different than those in 

  Subpart V Tables V-2 through V-6 and proposed 1920.269 

  Tables R-6 through R-10 and if so, what criteria and 

  methodology are reasonably necessary to protect 

  employees from hazards created from spark-over?   

            The answer, as stated earlier, we recognize 

  the mathematical errors were identified in trying to 

  correct the errors.  Different approach distances will 

  result.  How to correct the error is the problem.  The   problem with
distances was not unsafe based on industry 

  experience, so one should conclude the mathematical 

  error did not produce distances that did not protect 

  the worker. 

            Question 2.   Is there any scientific basis 

  for not extrapolating the saturation factor “a” beyond 

  the limits of the test data on which earlier versions 

  of IEEE Standard 516 relied?  And is there any test 

  data that can be used to validate or invalidate the use 

  of the extrapolated values for “a”?   

            Well, we will leave that up to the engineering 

  experts.  You have already heard that from previous 

  testimony.  We will leave that up to the engineering 

  experts. 

            Question 3.  Does the new IEEE methodology for 

  calculating minimum approach distances for phase-to-

  phase exposures and voltages of 72.6 kV and higher, 

  represent the employee exposure conditions better than 

  the methodology OSHA used to generate the minimum 

  approach distances in the 2005 proposal?  In 

  particular, is the use of conductor-to-conductor test 

  data modified with the use of a 3.3 meter floating   electrode
preferable to the use of rod-to-rod test data 

  for representing the range of employee exposure 

  conditions? 

            While this probably deserves a technical 

  response, it is important to repeat the fact that the 

  distances in the 2005 proposal evidently represented 

  employee exposure conditions adequately.  The proposed 

  distances were based on previously published distances 

  that did not experience any problems. 

            Question 4.  All of the minimum approach 

  distances in the 2005 proposed Rule are based on the 

  minimum air insulation distance.  Should the minimum 

  approach distances for voltages of 72.6kV and higher be 

  based on the minimum tool insulation distance, as is 

  the case in the 2007 NESC?   

            Should the minimum approach distances for 

  voltages of 72.5 kV and lower also be based on the 

  minimum tool insulation distance? 

            As we stated earlier, preliminary discussions 

  at the Subcommittee 8 meeting recognized the need to 

  publish both values. 

            Question 5.  IEEE Standard 516-2009 does not   provide
minimum tool insulation distances for phase-to-

  phase exposures.  Using an insulated boom on the top or 

  middle conductor in a vertical configuration and using 

  a live-line rope in a similar position involve the use 

  of an insulator across the air gap between two phases.  

            Are there any other situations in which an 

  insulator or a live-line tool is used between two phase 

  conductors during live-line work?  If, in the final 

  rule, OSHA bases minimum approach distances on minimum 

  tool insulation distances, but adopts IEEE’s 

  methodology to calculate phase-to-phase minimum 

  approach distances, how, if at all, should the final 

  Rule address situations in which insulation is present 

  across the air gap? 

            The answer, based on discussions with our 

  members that perform live-line work practices, phase-

  to-phase exposure where the entire air gap is 

  compromised is rare to non-existent.  The only work 

  practice that could even come close to this practice is 

  use of a helicopter between two phases.   

            Question 6.  Existing 1910.269 and OSHA’s 2005 

  proposal set maximum transient overvoltage’s of 3.0 per   unit for
voltages up to 362 kV, 2.4 per unit for 

  voltages in the 552 kV range, and 2.0 per unit for 

  voltages in the 800 kV range.  The committee and the 

  electric utility industry, as reflected in the NESC and 

  earlier Editions of IEEE Standard 516, believed that 

  these were the highest possible transient over-

  voltages.  However, IEEE Standard 516-2009 now 

  recognizes that even higher maximum per unit transient 

  overvoltage’s can exist.   

            How, if at all, should the final Rule address 

  the possibility of higher maximum transient over-

  voltages given that the proposed Rule did not address 

  this possibility? 

            The answer, higher transient over-voltages may 

  exist.  If the higher per unit factors are presented in 

  any document, specific instructions should be included 

  that explain their use.  IEEE 516 and NESC include 

  those higher factors.  There was a CP approved in the 

  last Subcommittee on Change Proposals that removed Rule 

  Language referring to higher factors.   

            It appears that Subcommittee 8 will be 

  addressing the continued inclusion of the higher   factors during the
Fall, 2010 meetings.   

            Question 7.  In drafting the final Rule, 

  should OSHA include the 362.1 to 420 kV voltage range 

  appearing in the IEEE Standard 516-2009 in addition to 

  the voltage ranges in the proposed Rule?  Do any 

  existing systems operate at these voltages? 

            When a final MAD Table or Tables are 

  developed, voltage ranges such as listed in 

  Subcommittee 8 included in the earlier discussions 

  documents should include all voltages. 

            Question 8.  OSHA does not anticipate that 

  revising the minimum approach distances using one of 

  the methods outlined in this notice will have a 

  substantial impact on compliance costs.  However, the 

  Agency realizes that some companies might be affected 

  by revised minimum approach distances.  Would revised 

  minimum approach distances in accordance with one or 

  more of the methods described in this notice impose 

  additional compliance costs? 

            Depending on the Final MAD Values, live-line 

  work practices traditionally used may not be possible, 

  if MAD increases to the point where the work cannot be   performed. 
This may require retraining of workers, 

  purchasing different equipment, and possibly de-

  energizing the circuits.   

            And lastly, I would like to add, the IBEW 

  believes the Final Rule may proceed to publication and 

  leave the record open for the purposes of revising MAD 

  clearances.   

            We thank you for the opportunity to address 

  the issues.  We will answer any questions you may have. 

            JUDGE COLWELL:  Let me ask you.  Is this in your 

  materials already?  That they have.   

            MR. TOMASESKI:  No.  This will be something 

  new at the end.   

            MS. GOODMAN:  Do you have something that you 

  want to submit as an Exhibit? 

            MR. TOMASESKI:  Oh, yes, I do.  I made several 

  copies. 

            MS. GOODMAN:  Your Honor, I am going to mark 

  the document I have just been handed by the witness, as 

  Exhibit C and I am going to title it, “Tables 

  Accompanying IBEW Testimony and I would ask that this 

  be admitted to the record.        [IBEW’s Exhibit C was admitted
into evidence.] 

            JUDGE COLWELL:  It is now admitted. 

            MS. GOODMAN:  Thank you, Your Honor. 

            JUDGE COLWELL:  Thank you. 

            MS. GOODMAN:  I will start with a few 

  questions and then I will turn it over to David.  Your 

  final recommendations seem to be, to go forward with 

  most of the ruling, with minimum approach distances to 

  be determined later.  If we were to take that approach, 

  would you support, adopting the numbers in the 2005 

  proposal, which were slightly different than those in 

  the current 269, or would it be your position that we 

  would stick with what is in the existing standard and 

  not change them at all? 

            MR. TOMASESKI:  Let me make sure I understand 

  the question.  If you’re going to publish something, -- 

            MS. GOODMAN:  Yes. 

            MR. TOMASESKI:  -- the difference between the 

  two isn’t that great on the line-to-line side.  I mean 

  the line-to-ground side.  The line-to-line side, 

  there’s some -- there’s some differences, but I -- I 

  really haven’t -- we haven’t really talked about which   one or
the other to publish because -- because we think 

  that again once Subcommittee 8 finishes their work, 

  it’s possible that we could see something different, 

  especially based on the 2007 NESC. 

            So I -- I wouldn’t say publish either, you 

  know.  I -- I -- our position is that we need to wait. 

            MS. GOODMAN:  So your default is to -- to 

  leave it as is and not to update it, as recommended or 

  as proposed in -- in 2005? 

            MR. TOMASESKI:  Yeah.  Either way.  Like I 

  say, I think the -- the OSHA needs to wait to publish 

  anything until -- until the issue has been settled by 

  the NESC. 

            MS. GOODMAN:  Okay.  Which brings me to my 

  next question.  You say in your testimony that there 

  have been no problems, no safety problems identified in 

  the existing minimum approach distances in the OSHA 

  standards. 

            You also indicate the need to promulgate the 

  rest of the proposal for -- for safety reasons. 

            So in that instance, why wait at all?  Why 

  shouldn’t OSHA simply proceed with its 2005 proposal?    And it
seems to me you’re saying there’s no safety 

  benefit to waiting for the NESC to complete its work 

  before we move forward with minimum approach distances.  

  So what is the reason then to wait? 

            MR. HARTLEY:  Well, one of the things that we 

  believe is that -- and it was a question asked earlier 

  -- is that because OSHA references the NESC and 

  recognizes that as a consensus standard and it is a 

  practicing document utilized by utilities and 

  referenced by workers, you know, in the field, that 

  harmony between the two is essential or as close as can 

  be, and given the fact that OSHA’s revisions of their 

  standards are not exactly frequent, that this is an 

  opportunity for the standards to meld or mimic each 

  other to as close as possible and to wait the period of 

  time that we’re talking about in getting the rest of 

  the standard but allowing this to exist is to pass up 

  that opportunity and in not doing so just adds to 

  confusion when it could be adequately addressed in a  

  relatively short period of time, given the time frame 

  that OSHA normally operates in promulgating rules. 

            MS. GOODMAN:  And to follow up on that   response, and this
is a question I’ve asked of the 

  earlier witnesses, in your experience, have there been 

  any safety repercussions of any confusion that may be 

  out there as a result of -- of the differing standards, 

  different OSHA and NESC and IEEE standards? 

            MR. HARTLEY:  We’re not aware of any of the 

  issues, as we state in our testimony, of any of the 

  standards that are out there now or the numbers, so to 

  speak, that may be utilized that have implicated 

  safety. 

            MS. GOODMAN:  I -- I probably didn’t state my 

  question very clearly.  My question was really did -- 

  because you’ve suggested that there’s some confusion 

  out there about the various standards. 

            Does that confusion in your experience rise to 

  the level of becoming a safety problem? 

            MR. HARTLEY:  Well, I would say it could, but 

  one of the fundamental things to understand is that 

  there is the attempt by workers in the field to -- and 

  -- and safety experts, okay, who help train those same 

  workers to address complying with the rules accurately 

  and to have differing rules that can be referenced only   enhances
that confusion. 

            So when trying to decide what the right thing 

  is to do, you really need to have a standard, 

  especially because they would purport to do the same 

  thing, which is to create a safe work environment for 

  the employees and those performing the work. 

            MS. GOODMAN:  Thank you.  At Page 5 of your 

  comments, you suggest that “increasing minimum approach 

  distance values could possibly jeopardize long-existing 

  work practices.” 

            If you have anything specific that you can 

  either share with us now or in the post-hearing comment 

  period as to particular work practices that would be in 

  jeopardy and whether the distances in the IEEE standard 

  in particular would jeopardize those work practices, 

  I’d be very interested to have that information. 

            MR. HARTLEY:  We can find those in the post-

  hearing. 

            MS. GOODMAN:  Thank you.  One final question.  

  On Page 11 of your comments, and this is a similar 

  question to the one I just asked, you suggest that 

  “live line work practices traditionally used may not be   possible
if MAD increases to the point where the work 

  cannot be performed.” 

            I’d be interested to know if you believe that 

  there would be problems with work being able to be 

  performed, given the IEEE, the numbers in the new IEEE 

  standard. 

            MR. HARTLEY:  Well, I know in -- you’ve heard 

  quite a bit of testimony today with regard to the 

  physical changes that this could impact with regard to 

  existing structures of which, you know, they’re 

  voluminous, beyond count, I would say, across the 

  United States, and the work -- the condition of those 

  physical transmission structures, okay, or pull-line 

  structures, whichever, and the way that the employees 

  or workers work those today would be implicated to the 

  point where they just simply couldn’t perform. 

            I know that you previously had a scenario 

  testified to, such as climbing a tower where you 

  couldn’t physically because of the circle that would be 

  drawn, you know, concerning MAD, that you couldn’t 

  encroach within that circle to even climb past the 

  conductor because of those -- those numbers and much   the same would
be the case in operating, doing, you 

  know, hot sticking of those same conductors, to the 

  point where perhaps you would run up situations where  

  -- and -- and really many of the -- the structures are 

  different physically that you could wind up not being 

  able to have even sticks long enough to be able to 

  perform the work or be able to be far enough away on 

  that structure to perform the work or implicating the 

  angles of which you’d actually move the conductors or 

  whatever in doing that work. 

            So, you know, they’re all very 

  individualistic, based on structure, but certainly it’s 

  -- it’s predictable that you could, you know, 

  complicate matters to the point of not being able to do 

  them under the current operating conditions. 

            MS. GOODMAN:  Okay. 

            MR. WALLIS:  Just a couple.  We’ve heard 

  testimony from you yourselves and from the other 

  witnesses that the current MAD, minimum approach 

  distances, have not led to accidents.  

            Does that mean that there haven’t been 

  accidents where employees have gotten too close to   power lines?  

            What I’m trying to get at is does that mean -- 

  does that mean that there aren’t any accidents when 

  employees are complying with the existing minimum 

  approach distances?  Is that the issue?  I mean, it 

  seems to me there are -- there have been accidents 

  where employees have gotten too close to lines, is that 

  correct or not?  Maybe I’ll ask that question first. 

            MR. HARTLEY:  That’s correct. 

            MR. WALLIS:  So is -- when you say that there 

  haven’t been any accidents, does that mean that there 

  haven’t been any accidents when employees are complying 

  with the minimum approach distances?  Is that the way 

  we should interpret your -- 

            MR. HARTLEY:  Yes. 

            MR. WALLIS:  -- your testimony? 

            MR. HARTLEY:  Yes, yes. 

            MR. WALLIS:  With respect to -- I think you 

  recommended setting two different tables, one with -- 

  one for -- one for tools and one without tools, and I 

  believe the last time we opened the record with a 

  question along that line, you recommended setting one   table using
the tool distance rather than the air 

  distance. 

            What made you change your position? 

            MR. TOMASESKI:  I -- I would have to say that 

  once we started taking a good look at what was changing 

  in IEEE 516 and also going back to prior versions of 

  the NESC and seeing what changed, it -- it made us take 

  a closer look at what -- what we’re doing and, in 

  particular, what the NESC did and IEEE 516, dated 2003, 

  but the 2007 NESC, and why the MAD for Tools was the 

  basis of the minimum approach distance tables in the 

  NESC and, to be honest with you, we couldn’t come up 

  with a good answer. 

            And so to recommend that we continue to use 

  MAD for Tools in the NESC and to recommend that MAD for 

  Tools be used for the basis for the OSHA distances, we 

  can’t do that now, and we -- this is one of the 

  subjects of discussion, hopefully, that -- that the 

  NESC’s group, you know, which we participate in, is -- 

  is going to look at in making their final 

  recommendation. 

            MR. WALLIS:  The -- ask the question this way.    The --
when -- your work methods when you’re working on 

  power lines, when -- if you’re not using an insulated 

  tool, say you’re using the rubber glove work method, 

  are there -- and I’m not talking about where a 

  conductor is insulated from you, but are there other 

  cases where there is insulating material between or 

  even conducting material between the employee and the 

  energized part, where that would be -- that would be in 

  the minimum approach distance? 

            MR. HARTLEY:  That’s -- that’s -- 

            MR. WALLIS:  In other words, -- 

            MR. HARTLEY:  -- not covered. 

            MR. WALLIS:  In other words, it says that the 

  IEEE standard gives two tables, one for minimum 

  approach distance where air is the insulation medium 

  and a second table when you’re using tools, but -- but 

  the -- are there other -- what I’m getting at, are 

  there other situations in the middle where I’m not 

  using tools but I still have insulation between me and 

  an energized part or if I’m at energized -- if I’m at 

  the -- my part potential, is there insulation between 

  me and the ground, even if I’m not using a tool?             My
question is right now the table is either 

  or, and I’m trying to figure out if there’s -- if 

  there’s a position in the middle.  Is -- is your work 

  situations give you -- put you in a position where 

  there’s some insulation between you and the energized 

  part, might not be rated insulation, but it’s a rope or 

  some other material -- 

            MR. TOMASESKI:  Were you asking that question 

  specific to -- you started out with talking about 

  distribution voltages, rubber gloves. 

            MR. WALLIS:  Well, it could be -- it could be 

  distribution voltage or transmission voltages.  I’m 

  mostly concerned about the line-to-ground exposure.  

  Forget -- the testimony here seems to indicate that 

  doesn’t happen on the phase-to-phase side, but on the 

  phase-to-ground side, it’s -- it -- it -- I’m just 

  checking.   

            There’s only two tables.  One’s with air and 

  one’s with insulation, and is there something in the 

  middle where there’s some insulation between you or 

  some other material between you and the energized part? 

            MR. TOMASESKI:  You know, my -- my response to   that is
anything could happen, but I don’t think it’s a 

  concern, and I think the two tables are -- are 

  adequate.  I don’t know if that’s what you were leading 

  to. 

            MR. WALLIS:  I’m just saying -- I’m not asking 

  if they’re adequate.  I’m asking is -- is it -- is 

  there a situation where I wouldn’t apply the insulated 

  tool table but I -- I have something other than air 

  between me and the conductor within the minimum 

  approach distance? 

            MS. GOODMAN:  Are you asking about the need 

  for a third table? 

            MR. WALLIS:  No, not really.  Let me put -- 

  let me explain it.  Maybe I’ll give you a little 

  technical information behind my question. 

            The -- the test performed to get you to the 

  minimum air insulation distances are with air-only 

  between the worker and the energized part.  If I have 

  another object between me and the -- and the live part, 

  usually -- normally, you would consider that to be a 

  tool, but it could be -- I can have something else in 

  my hand or there could be some other -- maybe I’m in an   insulated
aerial lift and there’s insulation in the -- 

  in the boom is between me and the adjacent phase and so 

  -- 

            MR. TOMASESKI:  You’re -- you’re asking about 

  a floating object -- 

            MR. WALLIS:  Right.  Exactly. 

            MR. TOMASESKI:  -- that hasn’t compromised the 

  entire -- 

            MR. WALLIS:  Right. 

            MR. TOMASESKI:  -- air gap. 

            MR. WALLIS:  Are there situations like that? 

            MR. TOMASESKI:  Sure.  There are situations, 

  yes. 

            MR. WALLIS:  Sorry that took so long. 

            MR. TOMASESKI:  That’s all right. 

            MR. WALLIS:  Lauren asked that one.  I’ll ask 

  -- I asked the question of the other -- you’ve had your 

  chance already.  This is for Don, I guess.  I’ll ask 

  these two questions together and you can -- if you -- 

  feel free to elaborate on either one or both of them. 

            Why should OSHA rely on the results of the 

  NESC Subcommittee’s review rather than the IEEE   Committee, and
won’t there be sufficient information in 

  the record for OSHA to make a determination of how to 

  determine MAD, even with the results of the NESC 

  Subcommittee’s deliberations? 

            MRHARTLEY:  Well, first of all, and I’ve 

  stated it earlier, we agree with that, that the IEEE is 

  an engineering -- an engineering standard.  It’s how 

  it’s -- it’s how it’s created and -- and recognized, 

  and it’s not something that’s referenced by workers. 

            I mean, nobody -- and having been a lineman 

  for many years, I can tell you that no one ever 

  approached me with MAD table referencing IEEE.  It was 

  something that was strictly reserved for those 

  designing the systems, you know, and the structures and 

  so on and ours was always related to OSHA and in the 

  case of where it was necessary, you might refer to the 

  NESC, but the point was, is that, OSHA was referencing 

  the NESC and -- and -- well, or as close as possible at 

  that time, but IEEE never played the role with us. 

            So it was -- it was just never applicable, 

  and, of course, in the more recent time being exposed 

  to it, you know, moving into this different arena of   employment,
that its application would be pretty 

  incoherent for those working in the field simply 

  because we’re talking about MTID, MAID, T Factors, you 

  know, transient over-voltage, and stuff for which 

  practical -- from a practical aspect, linemen, 

  underground linemen, so on, would do that work, would 

  have no -- would have no relevance to them. 

            It’s -- it’s strictly a question of how far do 

  I stay away from the conductor under what conditions, 

  period, and that is most accurately addressed through 

  the NESC. 

            MR. WALLIS:  So what you’re saying is the -- 

  the Subcommittee 8 uses the information from the IEEE 

  Committee and puts it in a more user-friendly format, 

  so it’s the application of -- of the information in the 

  IEEE standard? 

            MRHARTLEY:  Well, I’m not actually on the 

  committee, but as I have -- well, I tell you what.  Let 

  me -- Jim, can you answer that question -- 

            MR. TOMASESKI:  Yes, -- 

            MR. HARTLEY:  -- more accurately? 

            MR. TOMASESKI:  -- you’re correct.  You’re   correct,
yes.  Let me add one thing, though, to your 

  second part of that question about the fact of having 

  adequate information in the record to make this 

  determination, and I -- I would say that I think not 

  because there’s some -- with -- with the little amount 

  of comment that you received, specifically on this 

  issue, I don’t -- in reading what I’ve seen so far, 

  there really isn’t a very good explanation of why the 

  2007 NESC used MAD for Tools and whether that was right 

  or wrong. 

            As a matter of fact, I don’t know if anybody 

  specifically addressed that issue in itself and that’s 

  going to be a major area of concern and work for the 

  NESC Subcommittee and so to get that answered 

  correctly, I think that can only come from -- from that 

  body.  So the record would be lacking that response. 

            MR. WALLIS:  I think that’s everything I have. 

            MR. BURT:  I have a couple of questions.  

  Referring to your concerns about MAD could increase to 

  the point where work cannot be performed, has this 

  happened in the past when MAD has changed that there 

  was work that now could not be performed?             I mean MAD has
changed many times.  We’ve 

  heard many times today.  Did any of the previous ones 

  lead to scenarios where there was work that couldn’t be 

  performed of the kind you’re concerned with in your 

  response to Question 8? 

            MR. TOMASESKI:  I’ll respond to that, and -- 

  and I think so, especially in light of the -- talking 

  about structure design and being able to work inside 

  certain parts of the structure, the transmission 

  structure, and as MAD has -- has made some changes 

  specifically in -- in the NESC of how they may have 

  affected those work practices.  I think so, yes. 

            MS. GOODMAN:  I just want to ask to them to 

  submit any documentation or anything that you have on 

  that point in the post-hearing comment period. 

            MR. TOMASESKI:  Yes, we will try. 

            MR. BURT:  We’d appreciate that.  Would NESC 

  be gathering any further data about the extent to which 

  some structures might result in situations where work 

  can’t be performed? 

            MR. TOMASESKI:  It’s possible. 

            MR. BURT:  Just point of -- I’m speculating, I   admit. 
In many kinds of codes and in some OSHA 

  standards, situations where there’s a permanent 

  structure that would need to be changed or sometimes 

  grandfathered in. 

            Has anyone thought about this in this context?  

  In other words, older structures would be allowed to 

  use a different standard than newer structures?  I 

  mean, it’s very common in many codes.  Is it something 

  that would make any sense here?  I’m just throwing out 

  something that occurred to me as I was listening to the 

  testimony. 

            MR. HARTLEY:  Well, the straight-up answer is 

  no, but it becomes a safety issue.  One of the things I 

  think that you have to imagine is that from the 

  practicality of working, physically working on a 

  structure, okay, continuity is important, all right, or 

  as -- as, you know, contiguous as you can be in your 

  rules, you know, and having a wide variety of variables 

  or even quite a number of variables, meaning distances, 

  realizing that what structure am I on, okay, what do I 

  have to adhere to because there’s a couple of 

  variables, and I think David referred to that earlier   which is
there’s the actual physicality of the 

  structure, but then there’s also the person, you know. 

            Do they put themselves, extend themselves into 

  MAD or not?  You know, are they aware of the situation?  

  So you could find yourself on the new structure and 

  adequately finding clearance to be appropriate, but 

  then on the very next structure, it could be an old one 

  and are you or are you not in that same position and 

  aware of it? 

            So that would be a complication that would be 

  more of a detractor to safety than -- than something -- 

            MR. BURT:  It would add to confusion? 

            MR. HARTLEY:  Oh, absolutely. 

            MR. BURT:  Thank you. 

            MR. BIERSNER:  Bob Biersner.  I’m not an 

  electrical engineer or even an electrical worker, but 

  throughout this hearing, I’ve noticed that an issue 

  seems to be getting test data for line-to-line 

  conduction and that seems to be the big hole in -- in 

  the -- in the calculations in -- in determining a -- a 

  -- an MAD for -- for electrical workers. 

            What are the chances within the next year or   two or even
in the comments to the proposal that the 

  NESC has drafted of getting those kinds of data that 

  you can base it on, like they do in the line-to-ground 

  situation? 

            MR. TOMASESKI:  I think in the short term, it 

  would be -- it is not going to happen.  Long term, I -- 

  I think if getting the right people involved, the right 

  companies involved, the right laboratories involved, to 

  do the tests is -- is -- I think it’s imperative that 

  it get done, that it be accomplished, but how long 

  that’s going to take, I don’t know. 

            I think we heard Dr. Horton -- was -- was 

  testified earlier that one of the IEEE committees 

  that’s beginning some -- some work on part of this 

  issue, they’re looking at four and five years before we 

  get any data back from them. 

            So it’s not something that happens overnight 

  and it’s going to take some time. 

            MS. GOODMAN:  That’s it from us, right?        

            JUDGE COLWELL:  Any questions?  Please come up and 

  just again for the record just please identify 

  yourself.             MR. YOHAY:  Stephen Yohay on behalf of Edison 

  Electric Institute. 

            You’ve already expressed the view that OSHA 

  should wait to complete the revision to the MAD tables.  

  You heard Mr. Wallis make a suggestion at the end of 

  EEI’s testimony about separating out a portion of the 

  MAD issue and going ahead and promulgating part of the 

  new MAD tables but waiting on another piece of it. 

            Do you have a view of that?  Reaction to that 

  suggestion? 

            MR. TOMASESKI:  I think part of the -- part of 

  the issue that the -- the NESC Subcommittee will be 

  looking at, as was mentioned earlier, is the air 

  insulation distance-based MAD versus tool insulation 

  distance for MAD, and, you know, as -- as I also said 

  earlier, the -- the NESC committee, during the 2007 

  code cycle, used the -- the tool insulation distance 

  for all of their -- all of their MAD distances and 

  that’s -- that’s gotta be decided of whether or not 

  they’re going to continue to do that or not. 

            So if I had my preference, I would like to 

  see, I guess, nothing changed in terms of -- if we’re   going to
keep it open for -- to determine what the MAD 

  tables should be -- should look like, keep it open for 

  all of it, not part of it. 

            MR. YOHAY:  A question Mr. Burt asked prompts 

  me to ask this question and you can either answer it 

  now or in post-hearing. 

electric 

  utilities engage electrical contractors to perform 

  maintenance work on high-voltage transmission lines? 

            MR. TOMASESKI:  Yes. 

            MR. YOHAY:  And is a large portion of that 

  workforce comprised of IBEW journeyman linemen? 

            MR. TOMASESKI:  That’s correct. 

            MR. YOHAY:  And others who are trained by the 

  Journeyman Apprenticeship Training Program? 

            MR. TOMASESKI:  That’s correct. 

            MR. YOHAY:  My question is, first, Mr. Burt 

  raised the question about grandfathering.  Is it 

  conceivable that a journeyman lineman coming out of a 

  union hall could be asked to work on one structure one 

  day with one company and another structure another day 

  with another company?             MR. TOMASESKI:  Theoretically
possible, yes. 

            MR. YOHAY:  Yes.  Second, what would be the 

  impact, would you think, either answer now or later, on 

  Joint Apprenticeship Training Programs if OSHA were to 

  adopt the IEEE values in the format that they’re 

  currently issued? 

            MR. TOMASESKI:  I’m not sure -- 

            MR. YOHAY:  How -- how would -- how would it 

  affect the training of line workers by the Joint 

  Apprenticeship Training Programs?  If you don’t want to 

  answer now, that’s fine, but I wanted to ask you to 

  perhaps address that later, unless you want to answer 

  it now. 

            MR. TOMASESKI:  I -- I’m not -- I’m not sure I 

  understand the question.  I -- 

            MR. YOHAY:  Well, am I correct that Joint 

  Apprenticeship Training Programs teach clearance 

  distances? 

            MR. TOMASESKI:  Correct. 

            MR. YOHAY:  Okay.  So if the OSHA adopts the 

  IEEE values, how would that affect how line workers are 

  trained?             MR. TOMASESKI:  Well, they’d have to --
they’d 

  have to train under the new OSHA values. 

            MR. YOHAY:  So would that require modification 

  of existing Joint Apprenticeship Training Program 

  curriculums? 

            MR. TOMASESKI:  Depending upon what the 

  outcome of OSHA would be, yes. 

            MR. YOHAY:  Okay.  Thank you. 

            JUDGE COLWELL:  Any other questions? 

            MR. TOMASESKI:  Can I -- can I just add -- 

            JUDGE COLWELL:  Go ahead. 

            MR. TOMASESKI:  -- add one thing? 

            JUDGE COLWELL:  Go ahead. 

            MR. TOMASESKI:  And it might help if I explain 

  that -- 

            MS. GOODMAN:  Exhibit C? 

            MR. TOMASESKI:  -- Exhibit C, yes.  If I could 

  do that real quickly? 

            Basically, what this is is a series of tables 

  that show a little bit of history of -- of minimum 

  approach distances.  The first -- the first page here 

  is -- is not necessarily the -- the technical part of   this in the
numbers but how it looks. 

            When we were talking about -- in the question 

  that Mr. Yohay just asked about how is this going to 

  affect training, it’s -- part of that training is how 

  do you use a MAD table, and this is -- this is what 

  people are used to.  People are seeing -- used to 

  seeing a table like this. 

            Would you get the next slide?  This, very 

  similar, little bit different, this is a table that’s 

  currently in the 2007 of the NESC. 

            MS. GOODMAN:  And just for the record, you’re 

  referring to Table 44-1? 

            MR. TOMASESKI:  Table 441-1, yes.  That’s -- 

  that’s what’s currently in the 2007 NESC.  It looks 

  very much like it.  It’s very easy to follow.  It’s 

  very easy to read, very easy to use. 

            The next, referring to Table 441-2, gets a 

  little bit more complicated here, but in the -- in most 

  recent versions of the NESC, we added these -- this 

  type of approach from IEEE 516 where we could list the 

  different distances of MAD based on what the maximum 

  anticipated per unit over-voltage factor would be.             We
also kept in here, if you -- if you notice 

  -- if you notice here, these -- these are supposed to 

  be bold.  Those are the historical values of 3.0, 2.4, 

  and 2.0.  So we wanted to maintain those, but as you 

  can also see, the NESC went -- followed IEEE and added 

  these higher per unit over-voltage factors, also. 

            But this got a little bit more complicated, 

  not quite as simple as they were before. 

            Next one.  Now this is an example of one of 

  the many minimum approach distance tables that’s in the 

  current IEEE 516, and if you notice here, you’ve got 

  the MAID, minimum air insulation distance, MTID, MAD, 

  MAD for Tools, MHID.  You’ve got five different 

  distances for one voltage level. 

            Now this is -- this is what really gets 

  confusing here and if you took something like IEEE 516, 

  copied these tables and put it in work practice manuals 

  or put it in safety manuals, these workers out there 

  would not have any clue of how to use this.  They would 

  have no clue of what to do.  It would be complete chaos 

  out there on how to -- especially -- well, first of 

  all, the per unit over-voltage factors, while some   linemen that are
doing live line work understand that, 

  not all of them probably have a real good understanding 

  of it because the engineering department at the 

  utilities figure what this is and set up their work 

  practices accordingly. 

            So some of the linemen might get it and some 

  of them might not, but then you get into, especially 

  these two things here, you have a MAD and a MAD for 

  Tools.  Well, when I first saw this, when -- when this 

  edition of the Code came out, this is what caught my 

  eye in terms of how the NESC needs to address this 

  issue because it had really never been published 

  exactly like this before where you had one column that 

  says minimum approach distance and now you have MAD for 

  Tools. 

            Linemen and most of the employers out there, 

  when they publish their rules, they don’t have that.  

  They probably never have seen this before.  What 

  they’ve seen is MAD and so now how do you explain why  

  -- why these are different and which one do you use, 

  which one do you don’t use?  It’s going to take some 

  work, you know, to get the minimum approach distance   tables correct
where people can look at the OSHA 

  standard or look at the NESC and understand what 

  they’re supposed to do because this isn’t going to do 

  it for them. 

            Next one, please.  These get real kind of 

  confusing here, but basically what these are is some 

  tables that I put together to look at what’s happened 

  with minimum approach distances over the years. 

            JUDGE COLWELL:  Would you just state the top of 

  that, just so when we’re reading the record later, we 

  can see? 

            MR. TOMASESKI:  I’m sorry.  This is MAD 

  Comparisons from Published Standards, OSHA/IEEE 516, 

  NESC Phase-to-Ground Voltages. 

            Basically what this has done is it shows what 

  has happened with the minimum approach distances over 

  the years, from Subpart V and the evolution in IEEE and 

  the evolution in the NESC, and what’s important is -- 

  is this column right here, I think, compared with the 

  other -- other columns because this is where the NESC 

  chose to use the MAD for Tools as insulation distances, 

  the basis for MAD.             MS. GOODMAN:  And just for the record,
you’re 

  pointing to the column titled -- 

            MR. TOMASESKI:  NESC 2007.  Excuse me.  And 

  next slide.  And this is titled MAD Comparisons from 

  Published Standards, OSHA/IEEE 516, NESC Phase-to-Phase 

  Voltages. 

            And this is where you see some extreme 

  differences.  If you go back to the -- again look at 

  the 2007 NESC.  This is where you start to see these 

  distances increase by over a foot and that’s -- that’s 

  what’s critical and that’s what -- that’s what kind of, 

  I guess, started to upset folks out in the field when 

  we started looking at these -- these increased 

  distances where traditionally, like I say on this -- 

  this last column here, the 551 to 800, where it was 26 

  feet, phase-to-phase distance for a number of years, 

  and then it jumped up to 2710 and then in the 516, 

  which you can’t see on the side of the column here, but 

  that last -- that last column at the bottom is 29 feet 

  two inches.  That’s what really started to raise some 

  eyebrows is when we started to see these distances 

  increase.             Go to the next one.  Now the next one here is 

  part of the table that the NESC Subcommittee began some 

  work on and our approach here was to conceptually again 

  -- we haven’t voted on any of this.  None of this has 

  been approved, but to go back to simplicity and really 

  see what’s important to have in the Code and what’s 

  important to have in -- in OSHA’s regulations, also. 

            Do we need to have the complicated tables that 

  are difficult to understand or can we produce something 

  -- again, this -- this is the minimum approach distance 

  table, NESC 2012, that’s being considered by 

  Subcommittee 8 Working Group. 

            This is very much the same format that has 

  been used in the past with OSHA and the NESC for the 

  lower voltages.  If you go to the next -- the next 

  slide is again titled Minimum Approach Distance Table, 

  NESC 2012, Being Considered by Subcommittee 8 Working 

  Group.  This is the higher voltages, and we have both 

  without a live line tool in the air gap and with a live 

  line tool in the air gap, and if you notice on the 

  right side, all these values are missing under phase-

  to-phase with the live line tool in the air gap and   that was a
significant change that came out of the 2009 

  516 that we included in prior versions of both the IEEE 

  and the NESC. 

            So this is -- this is the -- the start of our 

  -- our work at the NESC that -- that hopefully we 

  conclude -- when we do conclude this -- this -- this 

  work, we would like OSHA to -- to follow our -- our 

  lead on what -- on what we find best for the industry 

  here. 

            Our -- the other concept that we’re looking at 

  is doing away with the tables that include the 

  different reduction in MAD distances based on the 

  maximum anticipated per unit over-voltage factor and 

  write our rule to direct the user that, if necessary, 

  they’re going to revert back to IEEE 516 to do an 

  engineering study on their system to establish what 

  those distances need to be. 

            I mean that’s -- that’s what we’ve talked 

  about at this point and we haven’t -- again, we haven’t 

  concluded that, but I just wanted to try to explain 

  what these things meant, what -- what they were put 

  together for, and I’ll leave it at that.             MS. GOODMAN: 
Thank you for that. 

            MR. WALLIS:  I do have one.  Since you brought 

  up training, do you anticipate -- you tell them what 

  the minimum approach distance is, but I -- I guess I’ll 

  ask it rather than presume. 

            Is -- is the training based on that’s where 

  they are the whole time at the minimum approach 

  distance or is the idea that -- that they’re -- they 

  never get any closer than that? 

            In other words, how -- 

            MR. HARTLEY:  The training is that you -- that 

  you don’t encroach on MAD. 

            MR. WALLIS:  Right.  So -- so most of the time 

  the worker is farther away than the minimum approach 

  distance, is that right? 

            MR. HARTLEY:  Well, depending on the voltages 

  you’re talking about.  We -- certainly the proximity 

  distributions are much closer.  So you can be closer to 

  MAD distances than you might find in some of your 

  transmission situations, such as climbing a tower on a 

  -- 

            MR. WALLIS:  I mean, I’m getting kind of --   I’m
getting back to your point that -- that there 

  haven’t been any accidents and -- and the probabilities 

  of -- given the way the probabilities are -- are -- are 

  determined, that some of the reason for the lack in 

  accidents may be that the employee is not always at the 

  minimum approach distance, is -- is -- would that be a 

  fair statement? 

            MR. TOMASESKI:  Well, I -- I would say that 

  hopefully they are and they should be, but that’s not 

  always the case.  I think what Don was referring to, 

  also, was the difference between rubber gloving work 

  methods because you’re going to get closer than MAD 

  when -- when you rubber glove, even to an exposed part, 

  where in -- and in bare hand work, you -- you are the  

  -- the energized part. 

            So there’s some -- there’s some differences 

  there, but, in general, to your question, it -- yes, 

  they -- they should be. 

            MS. GOODMAN:  Nothing else from us, Your 

  Honor.  Nothing else from us, Your Honor. 

            JUDGE COLWELL:  Any questions?  Any more questions 

  from the audience?  I understand that there’s a Mr.   Shill who
would like to make a few comments.  Is he 

  still here? 

            MR. SHILL:  I’m here, but I’ll pass. 

            JUDGE COLWELL:  Okay.  I believe the next matter 

  is to discuss the time to close the record or how many 

  days then to be able to submit additional data 

  information.  Then there will be a separate date after 

  that to close the record for submission of data and 

  information.  I mean, I’m sorry, we’ll leave it open 

  for written comments of summation and position 

  statements and briefs. 

            MS. GOODMAN:  Yes, Your Honor.  OSHA is 

  recommending -- we’re obviously going to run up against 

  the holidays here.  So we are recommending initial 45-

  day period for the submission of additional data and 

  that would take us to December 14th, 2009, I believe, 

  and then an additional 30-day period for the submission 

  of post-hearing comments and briefs and that would take 

  us to January 13th, 2010. 

            JUDGE COLWELL:  Any comments from any of the 

  parties?  Go ahead. 

            MR. KELLY:  I would request the time table be   90 days
from the date of receipt of the transcript.  

  Chuck Kelly with EEI. 

            Our request would be 90 days from the receipt 

  of the transcript. 

            MS. GOODMAN:  90 days from receipt of the 

  transcript for? 

            MR. KELLY:  Post-hearing comments. 

            MR. WALLIS:  The latter? 

            MR. KELLY:  The latter.   

            MR. WALLIS:  The final? 

            MR. KELLY:  Yes, yes. 

            MS. GOODMAN:  So you have no objection to 45 

  days.  So we’re then talking -- well, the problem is we 

  can’t set a firm date if we’re talking about -- 

            MR. WALLIS:  Well, give them another -- 

            MS. GOODMAN:  -- receipt of the transcript. 

            MR. WALLIS:  The transcript is supposed to be 

  in 10 days, so give them another -- 

            MR. KELLY:  You’ve given us 75, so what’s 

  another 15? 

            MS. GOODMAN:  Your Honor, OSHA’s willing to 

  move the second date of 90 days from today, which, if I   can get my
calendar up, is -- 

                                                     

            MR. WALLIS:  It’s the 28th, except the 28th is 

  a Saturday. 

            [Discussion off the record.] 

            JUDGE COLWELL:  I think the 28th. 

            MR. WALLIS:  It’s another 15 days. 

            MS. GOODMAN:  Okay.  Well, -- 

            MR. WALLIS:  Unless the 13th was wrong. 

            JUDGE COLWELL:  That’s pretty close anyway.  Close 

  enough. 

            MS. GOODMAN:  Yeah.  I think that’s right.  

  Okay.  Your Honor, I believe we’ve figured this out.  

  If we’re -- we’re prepared -- OSHA is prepared to 

  change the second date to January 28th, 2009, which I 

  believe is 90 days from today -- January 2010. I’m 

  sorry. 

            JUDGE COLWELL:  Okay. 

            MS. GOODMAN:  January 28th, 2010, which we 

  believe is 90 days from today. 

            JUDGE COLWELL:  Sounds good.  Go ahead. 

            MR. KELLY:  Okay.  My request was 90 days from   receipt of
the transcript.  When can we anticipate the 

  transcript?  Seeing it’s such a short hearing, it 

  probably shouldn’t be -- 

            MR. WALLIS:  That doesn’t change anything. 

            MR. KELLY:  Okay.   

            MS. GOODMAN:  We’re being told approximately 

  two weeks. 

            MR. KELLY:  Okay.  So -- so you’re giving me 

  90 days, but you’re really only giving me 75 days you 

  originally gave me. 

            MS. GOODMAN:  We’re giving you an additional 

  two weeks. 

            MR. WALLIS:  You get an additional 15 days. 

            MR. KELLY:  Not if I don’t have the 

  transcript, I don’t. 

            [Pause.] 

            MR. WALLIS:  Can’t start without the 

  transcript. 

            JUDGE COLWELL:  February 10 ?  That gives another 

  12 or so days. 

            MR. KELLY:  I would be happy with that. 

            JUDGE COLWELL:  That’s only 12 more days.  Usually   what
we do is we always make sure everybody -- 

  everything starts after the transcript is received.  

  There’s so much that went on with this testimony, 

  especially some star witnesses right here, that you 

  want to hear how they did, and you need to be able to  

  -- 

            MR. KELLY:  We want to hear what we all think 

  we heard. 

            JUDGE COLWELL:  That’s true.  Well said.  Okay.  

  Let’s change that to February 10 , the last date. 

            MS. GOODMAN:  Okay. 

            JUDGE COLWELL:  Anything else before I give the 

  closing statement?  Anything else anybody wishes to 

  raise before we -- we adjourn? 

            We now conclude the informal public hearing on 

  the limited reopening of the record to solicit 

  additional testimony, evidence, and data on the Minimum 

  Approach Distances in the Occupational Safety and 

  Health Administration’s Proposed Standards for Electric 

  Power Generation, Transmission, and Distribution, and 

  Electrical Protective Equipment. 

            Let the record show that all persons,   organizations, and
entities that filed Notices of 

  Intent to Appear had an opportunity to do so. 

            Let the record also show that following the 

  presentation of testimony, interested parties, 

  including OSHA representatives, had the opportunity to 

  question each witness and panel of witnesses. 

            Exhibits were offered and received at this 

  hearing and are identified as A through C, I think, A 

  through C, and placed into the record.   

            The record will remain open until December 

  14 , 2009, for the submission of additional data and 

  information.  The record will then close for the 

  submission of data and information but will remain open 

  for written comments, summations, position statements 

  and briefs until February 10 , 2010. 

            On behalf of the United States Department of 

  Labor, I wish to publicly thank all the participants in 

  today’s hearing for their promptness, preparation, and 

  attention, and their interest in this important matter. 

            This informal public hearing is adjourned, and 

  thank you very much.  Have a great rest of the day. 

            [Whereupon, at 2:07 p.m., the informal public            
hearing was concluded.] 

                           * * * * * 

   

   

   

   

   

   

  

  

  

  

  

  

  

  

  

  

  

  

  

                 CERTIFICATE OF COURT REPORTER

  

       I, NATASHA KORNILOVA, the officer before whom the

  foregoing deposition was taken, do hereby certify

  that the witness whose testimony appears in the

  foregoing deposition was duly sworn; that the

  testimony of said witness was taken by me in

  stenotypy and thereafter reduced to typewriting by

  me; that said deposition is a true record of the

  testimony given by said witness; that I am neither

  counsel for, related to, nor employed by any of the

  parties to the action in which this deposition was

  taken; and, further, that I am not a relative or

  employee of any counsel or attorney employed by the

  parties hereto, nor financially or otherwise

  interested in the outcome of this action.

  

  

  

                         ____________________ 

                         NATASHA KORNILOVA

                         NOTARY/COURT REPORTER

 PAGE   201 

 PAGE \# "'Page: '#'

 Add Don Hartley.

 PAGE \# "'Page: '#'

 I’m not sure what word he used here, but I’m fairly certain that it
wasn’t “printed.”

 PAGE \# "'Page: '#'

 I don’t think that this is the right word either.

 PAGE \# "'Page: '#'

 Or “changes in.”

 PAGE \# "'Page: '#'

 “not sure”?

 PAGE \# "'Page: '#'

 “Restaurant” is not the right word here.

