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

<PHONE_NUMBER>

    ALSO PRESENT:

       Charles J. Kelly

       Director, Industry Human Resource Issues

       Edison Electric Institute (“EEI”)

       701 Pennsylvania Avenue, N.W.

       Washington, D.C. 20004-2696

<PHONE_NUMBER>

       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

<PHONE_NUMBER>

       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