United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2004 Decided June 14, 2005
No. 03-1280
EDISON ELECTRIC INSTITUTE,
PETITIONER
V.
OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION AND
SECRETARY OF LABOR,
RESPONDENTS
On Petition for Review of an Order of the
Occupational Safety and Health Administration
Stephen C. Yohay argued the cause for petitioner. With him
on the briefs were Edward H. Comer and J. Bruce Brown.
James F. Laboe entered an appearance.
Lee Grabel, Attorney, U.S. Department of Labor, argued
the cause for respondent Secretary of Labor. With him on the
brief were Joseph M. Woodward, Associate Solicitor, and Ann
S. Rosenthal, Counsel.
Before: EDWARDS, HENDERSON, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: Edison Electric Institute (EEI)
petitions for review of a compliance directive issued by the
Occupational Safety and Health Administration in 2003. We
conclude that because the directive did not promulgate a new
occupational safety or health standard under the Occupational
Safety and Health Act, but rather merely reiterated a preexisting
standard, this court lacks jurisdiction over EEI’s petition for
review.
I
The Occupational Safety and Health Act of 1970 (OSH Act)
authorizes the Secretary of Labor, through the Occupational
Safety and Health Administration (OSHA), to ensure safe and
healthful working conditions by creating and enforcing
mandatory occupational safety and health standards. 29 U.S.C.
§§ 651(b)(9), 655(b). In 1989, OSHA promulgated a general
industry standard for Control of Hazardous Energy, 29 C.F.R. §
1910.147. See UAW v. OSHA, 37 F.3d 665 (D.C. Cir. 1994).
OSHA exempted electric utilities from the general standard,
promising “to propose in the near future” a standard “to meet the
special safety needs of that industry.” 53 Fed. Reg. 15,496,
15,504 (Apr. 29, 1988). Fulfilling that promise in 1994, OSHA
promulgated the Electric Power Generation, Transmission, and
Distribution Standard, 29 C.F.R. § 1910.269 (Power Generation
Standard or 1994 Standard), specifically to protect maintenance
workers in electric power generation plants from being injured
or killed by the accidental activation of equipment while they
are servicing it.
The Power Generation Standard requires electric power
plants to establish hazardous energy control protocols known as
“lockout/tagout procedures.” Under these procedures, a worker
must shut down the equipment and place a lock or tag on the
“energy isolating device” or control switch before commencing
3
repairs. 29 C.F.R. § 1910.269(d)(6)(iv). A lock is a mechanical
device that keeps the equipment from being energized until the
lock is removed. A tag is a warning placed to caution others not
to operate the device. After the maintenance is completed, the
worker removes the lock or tag and reenergizes the equipment.
Id. § 1910.269(d)(7)(iv).
This case primarily concerns two further elements of the
1994 Power Generation Standard: the “group servicing”
provision, 29 C.F.R. § 1910.269(d)(8)(ii), and the “system
operator” exception, id. § 1910.269(d)(8)(v). The group
servicing provision applies when “servicing or maintenance is
performed by a . . . group” of workers. Id. § 1910.269(d)(8)(ii).
It requires each employee in the group to “affix a personal
lockout or tagout device” to a “group lockout device” or
comparable mechanism “when he or she begins work,” and to
“remove those devices when he or she stops working.” Id. §
1910.269(d)(8)(ii)(D). The system operator exception -- an
exception to the general requirements of the Power Generation
Standard -- provides that when “energy isolating devices are
installed in a central location and are under the exclusive control
of a system operator,” the “system operator [may] place and
remove lockout and tagout devices in place of” the employee
doing the repair work. Id. § 1910.269(d)(8)(v).
EEI is a national association of shareholder-owned electric
utility companies. Many of EEI’s members generate, transmit,
and distribute electricity, and are therefore subject to the Power
Generation Standard. Soon after OSHA promulgated that
standard in 1994, EEI filed a petition for review in the Eleventh
Circuit. EEI was particularly concerned that the standard limits
the system operator exception “to situations where ‘energy
isolat[ing] devices are installed in a central location and are
under the exclusive control of a system operator.’” Pet’r Br. at
11 (quoting 29 C.F.R. § 1910.269(d)(8)(v)). EEI eventually
4
withdrew its petition for review, however, see Edison Elec. Inst.
v. OSHA, No. 94-2389 (11th Cir. Apr. 18, 1995) (dismissing
petition for review), and entered into negotiations with OSHA
over the terms of a forthcoming OSHA compliance directive
concerning the Power Generation Standard, Pet’r Br. at 12.
In 1997, OSHA issued that directive, OSHA Directive CPL
2-1.18A (Oct. 20, 1997) (1997 Directive). In its discussion of
the group servicing provision, the 1997 Directive refers to an
earlier OSHA directive that offers examples of group
lockout/tagout procedures that would comply with the general
industry energy control standard. According to the 1997
Directive, those sample procedures “can be used to comply
with” the group servicing provision of the Power Generation
Standard as well. 1997 Directive at 32. The earlier directive
provides “several alternatives for having . . . employees affix
personal lockout/tagout devices in a group . . . setting,”
including procedures involving master lockboxes and master
tags. OSHA Directive STD 1-7.3, at C-2 to C-3 (Sept. 11,
1990). The 1997 Directive states that those sample procedures
“are intended as examples only,” and that “[o]ther means of
meeting the” 1994 Standard “may also be used.” 1997 Directive
at 32 n.5.
On several occasions after the publication of the 1997
Directive, EEI and its members urged OSHA to interpret the
Power Generation Standard to permit supervisors, rather than
individual maintenance workers, to control locks and tags during
group servicing. In a June 1999 letter to OSHA, EEI stated its
understanding that individual worker control of locks and tags
is not required by the standard’s group servicing provision, and
that supervisor control is adequate as long as the supervisor
“accounts for” each crew member and notifies each member
before reenergizing the equipment. Letter from Charles Kelly,
EEI, to Richard Fairfax, OSHA (June 2, 1999). OSHA
5
responded in an October 1999 letter that EEI’s understanding
was wrong, and that “each employee in the group needs to be
able to affix his/her personal . . . device as part of the group
lockout.” Letter from Fairfax to Kelly at 2 (Oct. 14, 1999)
(quoting 59 Fed. Reg. 4320, 4361 (Jan. 31, 1994)). “[V]erbal
accountability steps,” OSHA said, “are not equivalent to each
employee placing a personal device on a group [lockout/tagout]
mechanism.” Id. EEI filed a petition for review of that letter in
this court, asserting that the letter amended the standard in the
same way that it asserts the 2003 directive at issue in this case
does. Once again, however, EEI withdrew its petition. See
Edison Elec. Inst. v. DOL, No. 99-1518 (D.C. Cir. Feb. 28,
2000) (dismissing petition for review).
In 2000, OSHA issued a citation to Exelon Generating
Corp., an EEI member, for violating the Power Generation
Standard by permitting a supervisor to verbally notify individual
crew members of the application and removal of lockout/tagout
devices from a master tag, rather than requiring each employee
to affix and remove a personal lock or tag from the master tag.
Exelon defended on the ground that its method complied with
the 1994 Standard, as the 1999 EEI letter had asserted. An
Administrative Law Judge (ALJ) rejected that argument. Exelon
Generating Corp., OSHRC Docket No. 00-1198, 2001 O.S.H.D.
(CCH) ¶ 32,495 (Nov. 13, 2001). At the time of EEI’s petition
to this court, Exelon’s petition for review was pending before
the Occupational Safety and Health Review Commission
(OSHRC).1
1
On April 26, 2005, OSHRC affirmed the ALJ’s finding of
violation. OSHRC held that the 1994 Standard “mandates use of a
personal tagout device in a group tagging situation,” Exelon
Generating Corp., 2005 OSHRC No. 17, slip op. at 5, and that neither
post-promulgation negotiations nor the 1997 Directive evidences any
agreement “to substitute verbal notification of the application and
6
Despite OSHA’s continued refusal to adopt EEI’s
interpretation of the Power Generation Standard, EEI persisted.
In February 2000, EEI wrote OSHA two more letters, again
arguing that supervisor control of locks and tags during group
servicing complies with the Power Generation Standard. In
addition, EEI contended that the system operator exception
applies regardless of whether the system operator has exclusive
physical control over the energy isolating device, so long as the
system operator is the only person authorized to use the device.
Letter from Kelly to Charles N. Jeffress, OSHA (Feb. 24, 2000);
Letter from Kelly to Fairfax (Feb. 17, 2000). OSHA’s
November 21, 2000 reply again disagreed with both points. In
response to the latter contention, OSHA noted that the exception
permitting a system operator “to place and remove lockout and
tagout devices” applies “only when the energy isolating devices
are in a central location under the exclusive control of the
system operator,” and that “central location” means “a location
to which access is physically limited to one or more persons
acting as a system operator during the servicing operation.”
Letter from Jeffress to Kelly at 4 (Nov. 21, 2000).
On June 18, 2003, OSHA issued the compliance directive
at issue in this case. The directive expressly rejects EEI’s views
of the 1994 Power Generation Standard’s group servicing
provision. It states:
Group lockout/tagout procedures . . . must assure . . .
that each individual is the only person who can release
his or her personal lockout device, personal tagout
device, or equivalent means of controlling hazardous
energy sources. Procedures that rely solely on visual
removal of [lockout/tagout] protection for the requirement of
individual worker sign on/off,” id. at 6.
7
or audible means of accounting for employees are not
acceptable.
OSHA Directive CPL 2-1.38, at B-4 (June 18, 2003) (2003
Directive). The directive also rejects EEI’s understanding of the
system operator exception, expressly defining the term “central
control location under the exclusive control of a system
operator” as:
An area to which access by employees, other than the
system operator, to energy isolating devices is
physically limited to a person(s) acting as a “system
operator” during the maintenance or servicing
operation. The system operator has complete control
over the hazardous energy sources because no other
employees have access to the area and its energy
control devices.
Id. at A-2. Finally, the directive defines the term “personal
tagout devices” as:
Prominent warning devices, secured to energy isolating
devices in accordance with an established procedure
that uniquely identify each employee performing the
servicing/maintenance activity and that indicate that
the energy isolating device(s), and the machines or
equipment being controlled, cannot be operated until
the personal tagout device is removed.
Id. at A-8.
On September 12, 2003, EEI filed a petition for review in
this court. EEI challenges the 2003 Directive on the following
grounds, among others: that OSHA issued it without following
the notice-and-comment requirements applicable to occupational
8
safety standards under the OSH Act, see 29 U.S.C. § 655(b); that
the directive is unsupported by substantial evidence in the
record, see id. § 655(f); and that the directive is arbitrary and
capricious, see 5 U.S.C. § 706. Before we may consider the
merits of EEI’s challenges, however, we must first determine
whether we have jurisdiction to entertain its petition for review.
II
The OSH Act provides that any person adversely affected
by an “occupational safety or health standard,” 29 U.S.C. §
655(b), may, “at any time prior to the sixtieth day after such
standard is promulgated,” file a petition challenging the validity
of the standard in an appropriate court of appeals, id. § 655(f).
The OSH Act defines an “occupational safety and health
standard” as “a standard which requires conditions, or the
adoption or use of one or more practices . . . reasonably
necessary or appropriate to provide safe . . . places of
employment.” Id. § 652(8). If an OSHA rule 2 does not amount
to an “occupational safety or health standard,” this court does
not have jurisdiction to review it. See Chamber of Commerce v.
United States Dep’t of Labor, 174 F.3d 206, 209-11 (D.C. Cir.
1999) (distinguishing between a “standard” and a “regulation”
for purposes of jurisdiction under the OSH Act); Workplace
Health & Safety Council v. Reich, 56 F.3d 1465, 1467-68 (D.C.
Cir. 1995) (same). Challenges to rules that are not occupational
2
Section 655(b) provides that OSHA may promulgate, modify, or
revoke an occupational safety or health standard “by rule.” 29 U.S.C.
§ 655(b). In addition, the OSH Act gives the Secretaries of Labor and
Health and Human Services the authority to promulgate “such rules
and regulations as [they] may deem necessary to carry out their
responsibilities” under the Act. Id. § 657(g)(2).
9
safety and health standards must be filed in federal district court
pursuant to the Administrative Procedure Act, 5 U.S.C. § 703;
see Reich, 56 F.3d at 1467, although other considerations may
preclude immediate review in that court as well, see Sturm,
Ruger & Co. v. Chao, 300 F.3d 867, 872-73 & n.5 (D.C. Cir.
2002).
In addition, we have indicated that we lack jurisdiction to
review an OSHA rule unless it is a “new” standard. Chamber of
Commerce, 174 F.3d at 211. The jurisdictional requirement that
the standard be new -- and not simply the reiteration of an
existing standard -- is supported by a number of rationales.
Textually, it would be a stretch to say that a rule that merely
restates an existing standard “requires conditions, or the
adoption or use of one or more practices,” as the definition of
standard provides. 29 U.S.C. § 652(8) (emphasis added). In
such a circumstance, it is the existing standard, not the
reiteration, that compels employer practices. And it would be an
even greater textual stretch to say that an OSHA rule that merely
restates an earlier standard “promulgate[s]” that standard, as
required by the jurisdictional language of § 655(f). Cf.
Independent Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 426
(D.C. Cir. 2004) (holding that, “because the . . . EPA Letter does
not reflect any change in EPA’s . . . regulations or its
interpretation of those regulations, it is difficult to see how that
letter ‘promulgat[ed] or revis[ed] . . . any regulation’”
(alterations in original)). Again, the better reading is that a
standard is “promulgated” only when it is originally issued.
Moreover, to permit review whenever OSHA reiterates the
requirements of a standard -- which is what OSHA contends it
did in the 2003 Directive (as well as in the 1997 Directive and
in the 1999-2000 correspondence with EEI) -- would circumvent
§ 655(f)’s requirement that any petition for review be filed
“prior to the sixtieth day after such standard is promulgated.” If
10
the 2003 Directive is no different from the 1994 Power
Generation Standard, then EEI should have petitioned for review
in 1994. Indeed, EEI did file a petition for review that year, but
voluntarily withdrew it. If OSHA is correct that it has not
changed its position since it promulgated the Power Generation
Standard, then to permit review now would allow EEI to avoid
the consequences of its failure to adhere to the congressionally
prescribed jurisdictional window of § 655(f). See Independent
Equip. Dealers, 372 F.3d at 428 (“Just as it would be folly to
allow parties to challenge a regulation anew each year upon the
annual re-publication of the Code of Federal Regulations, so too
it is silly to permit parties to challenge an established regulatory
interpretation each time it is repeated.”); see also General
Motors Corp. v. EPA, 363 F.3d 442, 451 (D.C. Cir. 2004)
(holding that a challenge to agency letters reiterating the
agency’s consistently held position was untimely); Molycorp,
Inc. v. EPA, 197 F.3d 543, 546-47 (D.C. Cir. 1999) (same).
The parties do not dispute that our jurisdiction depends
upon whether the 2003 Directive establishes new obligations
beyond those imposed by the 1994 Power Generation Standard.
See 11/9/04 Oral Arg. Tape at 1:55-2:01. As might be expected,
however, each has a different view as to the directive’s novelty.
OSHA contends that the directive “does not impose any new or
independent obligations,” Resp. Br. at 16, and that it is “a mere
restatement of OSHA’s decade-old position on the energy
control provisions of the power generation standard,” id. at 23.
EEI, by contrast, insists that the directive “states new and
revised mandatory and enforceable requirements,” Pet’r Br. at
1, and thereby “substantively amends” the 1994 Standard, id. at
5.
In the following Part we consider whether the directive is
(as OSHA contends) merely old wine in a new bottle, or (as EEI
insists) a new vintage altogether.
11
III
The heart of EEI’s argument is that the 2003 Directive
alters the 1994 Power Generation Standard’s group servicing
provision by requiring each employee to take a physical step,
such as personally affixing and removing a lock, or signing on
to and off of a tag -- rather than permitting the group’s
supervisor to accomplish lockout/tagout for the entire group
following, for example, oral communication with the employees.
There is no question that the directive does require personal
control of locks and tags. The directive mandates that: “Group
lockout/tagout procedures . . . must . . . ensur[e] that each
individual is uniquely accounted for and that each individual is
the only person who can release his or her personal lockout
device [or] personal tagout device.” 2003 Directive at B-4. And
it further states that “[p]rocedures that rely solely on visual or
audible means of accounting for employees are not acceptable.”
Id. Accordingly, the question is whether these statements
deviate from the original standard, or merely reiterate it (albeit
in somewhat clearer language). We consider EEI’s five
arguments in favor of the former proposition in turn.
EEI’s first contention is that the 2003 Directive constitutes
a change from the Power Generation Standard because neither
the text of the 1994 Standard, nor that of the preamble
accompanying it, requires that maintenance employees working
in a group “exercise personal accountability by affixing personal
locks or tags or their equivalent to energy control devices.”
Pet’r Br. at 33. But this contention is simply incorrect. The
1994 Standard expressly states that, “[w]hen servicing or
maintenance is performed by” a group, “[e]ach authorized
employee shall affix a personal lockout or tagout device . . . , or
comparable mechanism, when he or she begins work and shall
remove those devices when he or she stops working.” 29
C.F.R. § 1910.269(d)(8)(ii)(D) (emphasis added). That
12
provision reflects OSHA’s view, as stated in the 1994 preamble,
that “the only way to ensure that the employee is aware of
whether or not the lockout or tagout device is in place is to
permit only that employee to remove the device himself or
herself.” 59 Fed. Reg. at 4360; see id. at 4361 (“[E]ach
employee in the group needs to be able to affix his/her personal
lockout or tagout system device as part of the group lockout.”
(quoting 54 Fed. Reg. 36,644, 36,681-82 (Sept. 1, 1989))).
Indeed, in announcing the 1994 Standard, OSHA expressly
rejected “EEI[’s] argu[ment] that the person removing a lockout
or tagout device need not be the same as the person who placed
it,” and instead adopted the position that “each employee must
have the assurance that the device is in his or her control, and
that it will not be removed by anyone else except in an
emergency situation.” Id. at 4360; see also id. at 4361 (“The
authorized employee in charge of the group lockout or tagout
cannot reenergize the equipment until each employee in the
group has removed his/her personal device.” (quoting 54 Fed.
Reg. at 36,681-82)).3
EEI’s second argument is that the 2003 Directive changes
the Power Generation Standard by adding, for the first time, a
definition of the term “central location under the exclusive
control of a system operator” that assertedly alters the term’s
original meaning. The term plays a key role in the system
operator exception to the general requirements of the Power
Generation Standard. Under the 1994 Standard, the exception
3
As EEI points out, the 1994 preamble also states that “the
procedure must ensure that no lock or tag is removed without the
permission of the authorized employee.” 59 Fed. Reg. at 4364
(emphasis added). But whatever the word “permission” may
otherwise connote, in the context of the other statements quoted above
it plainly requires personal handling of a lock or tag and not mere oral
assent.
13
applies only when “energy isolating devices are installed in a
central location and are under the exclusive control of a system
operator.” 29 C.F.R. § 1910.269(d)(8)(v). In such
circumstances, the “system operator” may “place and remove
lockout and tagout devices in place of” the individual
maintenance employee. Id. § 1910.269(d)(8)(v)(B).
The 2003 Directive defines this key term as an “area to
which access by employees, other than the system operator, to
energy isolating devices is physically limited.” 2003 Directive
at A-2. It further explains that the system operator exception
applies only when the “system operator has complete control
over the hazardous energy sources because no other employees
have access to the area and its energy control devices.” Id.
According to EEI, this definition marks a dramatic change from
the Power Generation Standard, because it limits the system
operator exception to cases in which the operator is the only
employee with physical access to the equipment. By contrast,
in EEI’s view the 1994 Standard permits a supervisor to place
and remove locks and tags for other employees whenever the
supervisor has exclusive administrative control over the
machinery under repair -- i.e., whenever the system operator is
the only person authorized to operate the equipment.
But what EEI calls a “new definition,” Pet’r Br. at 21, is in
fact a near-verbatim recitation of the text of the 1994 preamble.
Compare 2003 Directive at A-2 (“The system operator has
complete control over the hazardous energy sources because no
other employees have access to the area and its energy control
devices.” (emphasis added)), with 59 Fed. Reg. at 4364 (“Under
[the system operator exception], the system operator has
complete control over hazardous energy sources . . . . Other
employees do not even have access to the energy control devices
and cannot operate them.” (emphasis added)). And the
preamble’s insistence that the system operator have “complete
14
control” because “[o]ther employees do not even have access to
the energy control devices,” id. at 4364, strongly supports the
directive’s focus on physical control.
The 2003 Directive’s definition of “central location” is also
consistent with the definition in the letter that OSHA sent EEI
on November 21, 2000. In response to EEI’s contention that the
system operator exception applies regardless of whether the
system operator has exclusive physical control of the energy
isolating device, OSHA there explained that “central location”
means “a location to which access is physically limited to one or
more persons acting as a system operator during the servicing
operation.” Letter from Jeffress to Kelly at 4 (Nov. 21, 2000).
EEI’s third argument is that dramatic change is wrought by
yet another definition in the 2003 Directive: that of “personal
tagout devices.” The directive defines such devices as
“[p]rominent warning devices” that “uniquely identify each
employee performing the servicing/maintenance activity and
that indicate that” the equipment under repair “cannot be
operated until the personal tagout device is removed.” 2003
Directive at A-8. Although EEI does not explain what it thinks
the term meant in the original standard, the directive’s definition
is perfectly consistent with that standard. The requirement that
personal tagout devices “uniquely identify each” maintenance
employee can be found in the 1994 Standard at §
1910.269(d)(3)(ii)(E), which states that “[e]ach lockout device
or tagout device shall include provisions for the identification of
the employee applying the device.” And the requirement that
the equipment under repair “cannot be operated until the
personal tagout device is removed” simply restates the command
of § 1910.269(d)(7)(iv), that “[e]ach lockout or tagout device
shall be removed from each energy isolating device by the
authorized employee who applied the lockout or tagout device”
before “energy is restored to the” equipment.
15
Fourth, EEI contends that the 2003 Directive is a new
standard because it is inconsistent with OSHA’s 1997 Directive
regarding the Power Generation Standard. EEI directs our
attention to Appendix B of the 1997 Directive, which in turn
refers to Appendix C of the earlier directive regarding the
general industry lockout/tagout standard. Appendix B states:
“Appendix C [of the earlier directive] presents example group
lockout/tagout procedures that can be used to comply with” the
1994 Power Generation Standard. 1997 Directive at 32.
At first glance, the 1997 Directive’s reference to Appendix
C seems to offer little succor to EEI, since the text of Appendix
C is completely consistent with the 2003 Directive. It states:
Normal group lockout/tagout procedures require the
affixing of individual lockout/tagout devices by each
authorized employee to a group lockout device . . . .
The use of the work permit or “master tag” system
(with each employee personally signing on and signing
off the job to ensure continual employee accountability
and control) . . . is an acceptable approach to
compliance with the group lockout/tagout and shift
transfer provisions of the standard.
OSHA Directive STD 1-7.3, at C-6 to C-7 (emphasis added).
Appendix C also provides “examples to illustrate . . . several
alternatives for having authorized employees affix personal
lockout/tagout devices in a group lockout/tagout setting.” Id. at
C-2 to C-3. The examples include “a lockbox procedure” in
which the energy isolating device is placed in a lockbox to
which “[e]ach authorized employee assigned to the job then
affixes his/her personal lock or tag,” id. at C-5 (emphasis
added), and a “Master Tag” system in which a master tag “is
subsequently signed by all of the maintenance/servicing
workers,” id. at C-9 (emphasis added).
16
Notwithstanding this apparent consistency with the 2003
Directive, EEI takes comfort from Appendix C’s further
statement that “[t]his discussion is intended only as an example
and is not anticipated to reflect operations at any specific
facility.” Id. at C-7 to C-8. Similarly, a footnote to Appendix
B of the 1997 Directive states: “These [Appendix C
illustrations] are intended as examples only. Other means of
meeting the standard may also be used.” 1997 Directive at 32
n.5. In EEI’s view, these caveats demonstrate OSHA’s intention
-- at least in 1997 -- to permit lockout/tagout procedures
different from those discussed in Appendix C, and particularly
to permit procedures that do not require individual crew
members to personally place or sign a device.
But describing as “examples” procedures that comply with
the literal terms of the 1994 Standard -- which requires
“personal lockout or tagout device[s] . . . or comparable
mechanism[s],” 29 C.F.R. § 1910.269(d)(8)(ii)(D) -- hardly
means that employers are free to use different procedures that do
not comply with those terms. Under the established interpretive
canon of ejusdem generis, “[w]here general words follow
specific words,” the general words are “construed to embrace
only objects similar in nature to those objects enumerated by the
preceding specific words.” Washington State Dep’t of Social &
Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371,
384 (2003) (alteration in original) (citation omitted). The “other
means” sanctioned by the 1990 and 1997 Directives include
procedures similar to the examples offered in those directives,
but do not include procedures that are fundamentally different.
EEI endeavors to buttress its reliance on the 1997 Directive
by adverting to the “negotiation history” that preceded it.
According to the petitioner, “OSHA initially proposed to
include” language in the directive that would require “personally
signing on and off a tag, or physically applying a lock,” but
17
subsequently “agreed to exclude it” in the face of opposition
from EEI during the settlement negotiations following EEI’s
withdrawal of its petition for review of the 1994 Standard. Pet’r
Br. at 5. OSHA, however, recalls the history differently.
According to a 2003 letter from OSHA to EEI, no “agreement
was ever executed, EEI eventually withdrew its challenge [to the
1994 Standard] unilaterally, [and] OSHA made no commitments
in resolving that case.” Letter from John L. Henshaw, OSHA,
to Carl D. Behnke, EEI, at 2 (June 13, 2003). Unfortunately, we
have no way to determine which entity is the better historian.
And regardless of whether negotiation history is ever useful in
explaining the meaning of a regulation that is clear on its face,
irresolvably disputed history can be of no help at all.
Finally, EEI claims that the heart of the controversy
between it and OSHA is a “fundamental error” that OSHA made
when it crafted the Power Generation Standard in 1994. Pet’r
Br. at 11. As the preamble to the standard reflects, OSHA
thought the system operator exception ratified “lockout and
tagout practices that are common in the electric utility industry,”
particularly the “use of a system operator who initiates and
controls switching and tagging procedures.” 59 Fed. Reg. at
4364. In EEI’s estimation, however, “[w]hile intending to craft
a provision that endorsed longstanding utility power plant
practices,” OSHA instead “inexplicably conditioned the
application of” the system operator exception “upon the
presence of power plant configurations and practices that simply
do not exist” -- i.e., configurations in which the system operator
is the only employee with physical access to the equipment.
Pet’r Br. at 11. EEI insists that it was this 1994 “misperception”
about how “power plants are configured” that led to “errors and
omissions” that greatly limited the scope of the exception. Id.
at 12. As counsel for EEI put it at oral argument, EEI’s
contention is essentially that “[t]here is a mistake in the
preamble.” 11/9/04 Oral Arg. Tape at 11:45.
18
What this argument makes manifest is that EEI’s true
quarrel is not with the 2003 Directive, but with the 1994
Standard and its preamble. Cast in this light, EEI’s problem is
clear: it should have made these points in a challenge to the
1994 Standard -- a challenge that it began but later withdrew --
not in a petition to review a compliance directive issued nearly
a decade later. If OSHA was mistaken about the configuration
of electric power plants, it made that mistake in 1994, not in
2003. And even if OSHA’s policy is based on a faulty empirical
premise (a point OSHA vigorously disputes), there is no doubt
that the policy the agency set forth in the 2003 Directive is the
same one it has consistently followed since 1994 -- in the
original Standard, in the 1997 Directive, and in the 1999-2000
correspondence with EEI.
In short, the 2003 Directive is not a new standard, but rather
“merely restate[s] in an abstract setting -- for the umteenth time
-- [OSHA’s] longstanding interpretation” of its Power
Generation Standard. Independent Equip. Dealers, 372 F.3d at
427. Indeed, OSHA foreswears drawing any independent
authority at all from the directive, contending that in an
enforcement action, any finding of a violation must be
predicated on the standard itself, “just as if the [directive] had
never been issued.” Pacific Gas & Elec. Co. v. FPC, 506 F.2d
33, 38 (D.C. Cir. 1974). As EEI is therefore “no worse off than
it would be had the [directive] not been issued at all,” Molycorp,
197 F.3d at 547, it may not obtain review of the directive in the
court of appeals.
IV
Because OSHA’s 2003 Directive does not render any
significant change to the agency’s 1994 Power Generation
Standard, the directive is not itself a new occupational safety or
health standard within the meaning of 29 U.S.C. § 655(b).
19
Accordingly, we have no jurisdiction to review it. Workplace
Health, 56 F.3d at 1468-69.4 The petition for review is
Dismissed.
4
In a footnote to its brief, EEI suggests that, if this court
concludes it lacks jurisdiction to review EEI’s petition directly, the
case should be transferred to the district court. Pet’r Br. at 35 n.19;
see Workplace Health, 56 F.3d at 1469 (citing 28 U.S.C. § 1631). We
deny this request because the question of the district court’s
jurisdiction raises a host of issues, see Sturm, Ruger, 300 F.3d at 871-
77, that have been neither fully briefed nor argued. As a consequence,
we cannot conclude that a transfer to the district court would be “in the
interest of justice,” as 28 U.S.C. § 1631 requires.