Section 16VAC25-60-120 currently provides as follows:

\\\"The employer shall comply with the manufacturer\\\'s specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in 29 CFR Part 1910. The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited, and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation.”

The petition requests the following language be added to the end of the current regulation:

\\\"Any employer who is using machinery, vehicles, tools, materials or equipment as part of a Process Safety Management (PSM) covered process, as defined in 29 CFR (Code of Federal Regulations) 1910.119, may adjust the operation, training, use, installation, inspection, testing, repair or maintenance after completion of the following:

•           Documenting the adjustment from the Manufacturer’s Specifications and Limitations (MS&L) in the Process Safety Information (PSI)

•           Completing the Management of Change (MOC) requirement described in 29 C.F.R. 1910.119(l) and

•           Certification from a company executive that they have examined this adjustment and that to the best of their knowledge the information is true, accurate and complete.”

In accordance with Va. Code §2.2-4007.B, the petition has been filed with the Register of Regulations and will be published on January 8, 2018.  Comment on the petition may be sent by email, regular mail or posted on the Virginia Regulatory Townhall at www.townhall.virginia.gov.  Comment will be requested until January 28, 2018.  Following receipt of all comments on the petition to amend the regulation, the Safety and Health Codes Board will decide whether to make any changes to the regulatory language.  This matter will be on the Board\\\\\\'s agenda for its next regularly schedule meeting following the end of the comment period.  The Board does not currently have a meeting scheduled.  The Board will issue a written decision on the petition within 90 days of the close of the comment period, or within 14 days of its next meeting should the Board not meet within the initial 90 day period.   

June 25, 2018

Having given due consideration to your December 8, 2017 petition to amend the referenced Virginia Occupational Safety and Health (VOSH) regulation, the Virginia Safety and Health Codes Board at its meeting on June 14, 2018 voted unanimously to deny your petition based on a briefing from the Commissioner  of Labor and Industry.

Summary of the Petition to Amend Process

On December 8, 2017, Robert R. Payne, University of Alabama at Birmingham, submitted to the Department of Labor and Industry a petition to amend 16VAC25-60-120.B pursuant to Va. Code §2.2-4007 (see Attachment A).

The Department of Labor and Industry's initial response to the petition was filed on the Virginia Regulatory Townhall on December 18, 2017.  The agency's plan to address the petition provided as follows:

"In accordance with Va. Code §2.2-4007.B, the petition has been filed  with the Register of Regulations and will be published on January 8, 2018. Comment on the petition may be sent by email, regular mail or posted on the Virginia Regulatory Townhall at www.townhall.virginia.gov.

Comments will be requested until January 28, 2018. Following receipt of all comments on the petition to amend the regulation, the Safety and Health Codes Board will decide whether to make any changes to the regulatory language.  This matter will be on the Board's agenda for its next regularly scheduled meeting following the end of the comment period. The Board does not currently have a meeting scheduled.  The Board will issue a written decision on the petition within 90 days of the close of the comment period, or within 14 days of its next meeting should the Board not meet within the initial 90 day period."

The petition was published in the Virginia Register of Regulations on January 8, 2018 with a 21 day comment period ending January 28, 2018. No comments were received.

The Board considered the petition at its meeting on June 14, 2018 (see pages 45-50 of the Agenda posted to townhall from the June 14, 2018 SHCB meeting at:

https://townhall.virginia.gov/L/GetFile.cfm?File=meeting\92\27752\Agenda_DOLI_27752_v3.pdf 

Summary of the Petition

The petition seeks to amend 16VAC25-60-120.B, which provides as follows:

16VAC25-60-120.B, General industry standards.

B. The employer shall comply with the manufacturer's specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in 29 CFR Part 1910.  The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation.

The petition asks that the following language be added to 16VAC25-60-120.B:

Any employer who is using machinery, vehicles, tools, materials or equipment as part of a Process Safety Management (PSM) covered process, as defined in 29 CFR (Code of Federal Regulations) 1910.119, may adjust the operation, training, use, installation, inspection, testing, repair or maintenance after completion of the following:

•            Documenting the adjustment from the Manufacturer's Specifications and Limitations (MS&L) in the Process Safety Information (PSI)

•           Completing the Management of Change (MOC) requirement described in 29 C.F.R. 1910.119 (1) and

•           Certification from a company executive that they have examined this adjustment and that to the best of their knowledge the information is true, accurate and complete.

Decision

The Board finds the following:

1 .         While the Petitioner has identified one or more scenarios where an employer operating a process safety management (PSM) work site may be negatively impacted by 16VAC25-60.120.B, he is incorrect in stating that VOSH regulations do not provide an option for employers to vary from the requirements of 16VAC25-60.120.B.

The VOSH Administrative  Regulations describe procedures for employers to seek variances from VOSH regulations to address exactly the kind of situations described by the Petitioner:

16VAC25-60-190. General provisions.

16VAC25-60-210.  Permanent variances.

16VAC25-60-220. Interim Order.

The variance procedures provide employers the opportunity to apply to the Commissioner for either an interim order and/or a permanent variance from an existing VOSH regulation. The application requires no special form. The information can be forwarded by letter with attachments (e.g., written procedures, photographs, videos, diagrams, manufacturer's specifications, etc.).

VOSH ARM§§190-220 explain the different forms of variances and describe the process for obtaining an interim order from the Commissioner of Labor and Industry.  Permanent variances are addressed in §210. Temporary variances are addressed in §200, but are only used in special instances where an employer is unable to comply with a standard before its effective date.

Interim orders are addressed in §220 and can be obtained for a limited amount of time without going through the full notice and comment procedures required for a permanent variance. Because interim orders are not subject to public comment and receive expedited review by the Commissioner, the burden of proof for the employer in support of its interim order request is higher than for a permanent variance (see §220.C. which requires "clear and convincing evidence" that employees will be protected).

The variance application must address the general requirements contained in §190.B.l to §190.B.3 concerning notification to employees and this Department, and then specify the type of variance requested: permanent variance, temporary variance and/or interim order. The application must also address each of the documentation  requirements listed in §21O.B. for permanent variances and, as applicable, the requirements in §§220.B and 220.C. for interim orders.

Once the Commissioner issues a decision on the variance request, any party may, within 15 days, file a notice of appeal with the Safety and Health Codes Board.

2.         Va. Code §40.1-22(5)  provides that in deciding whether to adopt or amend a regulation the Safety and Health Codes Board shall take into consideration "experiences gained under this and other health and safety laws." The Process Safety Management of Highly Hazardous Chemicals (PSM) Standard, 1910.119, was originally adopted by OSHA and the Safety and Health Codes Board in 1992. Section 16VAC25-60-120.B was adopted by the Board in 2006 after multiple notice and comment periods and a public hearing. To the knowledge of Department staff no Virginia employer responsible for operating a PSM covered work site has ever applied for a variance from 16VAC25-60-120.B; or requested an interpretation of 16VAC25-60-120.B and its application to a PSM covered work site in Virginia. Nor does the Petitioner identify a specific PSM work site in Virginia negatively impacted by 16VAC25-60-120.B.

Based on the "experiences gained" under 1910.119 and 16VAC25-60-120.B, it does not appear that a significant enough number of PSM employers/employees are impacted negatively in Virginia by 16VAC25-60-120.B to warrant the undertaking of a potentially costly and time consuming regulatory amendment process; particularly when VOSH variance procedures discussed above may be used by PSM employers on a case-by-case basis to address the situations described by the Petitioner. Should the Department ultimately receive a significant number of variance requests on this issue, it stated that it will reconsider its recommendation on this petition to amend.

3.          While the Department has not researched in depth the ramifications of an amendment to 16VAC25-60-120.B that would permit an employer to violate manufacturer's specifications and limitations without first contacting the manufacturer and/or a governing body, such as the VOSH Program, it would appear that there would be significant legal and liability ramifications and complexities involved in any proposed rulemaking that could affect such a potentially broad range of manufactured items.

PSM facilities by their very nature also involve the handling of large amounts of highly hazardous chemicals, and in the event of a failure can result in catastrophic consequences for the worksite, its employees and potentially the surrounding community and the environment.  The advantages of addressing the Petitioner's concerns with employers on a case-by-case basis through a relatively stream-lined process, and one which includes the opportunity for interaction with the manufacturer, as well as notice and comment to affected employees and the general public, are apparent.

ATTACHMENT  A

Va. Code§ 2.2-4007. Petitions for new or amended regulations; opportunity for public comment.

A.       Any person may petition an agency to request the agency to develop a new regulation or amend an existing regulation. The petition shall state (i) the substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections, and (ii) reference to the legal authority of the agency to take the action requested.

B.         Within 14 days of receiving a petition, the agency shall send a notice identifying the petitioner, the nature of the petitioner's request and the agency's plan for disposition of the petition to the Registrar for publication in the Virginia Register of Regulations in accordance with the provisions of subsection B of§ 2.2-4031.

C.         A 21-day period for acceptance of written public comment on the petition shall be provided after publication in the Virginia Register. The agency shall issue a written decision to grant or deny the petitioner's request within 90 days following the close of the comment period. However, if the rulemaking authority is vested in an entity that has not met within that 90-day period, the entity shall issue a written decision no later than 14 days after it next meets. The written decision issued by the agency shall include a statement of its reasons and shall be submitted to the Registrar for publication in the Virginia Register of Regulations. Agency decisions to initiate or not initiate rulemaking in response to petitions shall not be subject to judicial review.