OSHA Issues Temporary Enforcement Policy for Confined Spaces in Construction

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On May 4, 2015, OSHA issued its final rule on Confined Spaces in the Construction Industry, found at 29 CFR 1926.1201-1213. The rule becomes effective August 3, 2015. However, as matter of policy, OSHA is postponing full enforcement of the rule until October 2, 2015. OSHA has adopted this 60 day postponement to allow employers additional time to train employees and acquire the equipment necessary to comply with the new standard.

During this 60-day period, OSHA will not issue citations to employers who exhibit good faith efforts to comply with the new rule, such as:

  • Scheduling employee training on the requirements of the new rule
  • Ordering new equipment necessary to comply with the rule
  • Taking other alternative measures to protect, and fully educate, employees regarding confined space hazards

Employers are not relieved of the obligation to comply with the rule‚ requirements, but for the next sixty days likely will not be cited for violating the rule if the employer can demonstrate that it has already undertaken concrete steps to become compliant.

Employers engaged in construction activities will be well served to familiarize themselves with the requirements of the new construction related confined space rule. For more information, contact Tom Ullrich or Derek Brostek at Wharton Aldhizer & Weaver.

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REGION III Update: OSHA Conducts Over 600 Inspections Last Month

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REGION III Update: OSHA Conducted Over 600 Inspections Last Month.

From June 1, 2015 through June 30, 2015, approximately 646 inspections were conducted in OSHA‚ Region III. Over 45% of the total inspections were conducted in Virginia. Slightly over 50% of total inspections were conducted in the Construction industry and approximately 20% in the Manufacturing industry. The remaining inspections were conducted in other sectors (Wholesale Trade, Retail Trade, and Transportation & Warehousing).

OSHAs Region III Insp. June 2015 Pie Chart

 

 

 

 

 

Of the inspections conducted in June, most of them were Planned/Program-Related Inspections.

Types of Inspections Conducted in OSHAs Region III June 2015

 

 

 

 

 

The June inspection data for Region III is consistent with OSHA’s current enforcement policy of conducting more thorough inspections under emphasis and other programs, intended to address workplace safety in industry sectors identified as high hazard.

 

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Region III OSHA Weekly Report

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The Occupational Safety and Health Administration defines its division of Region III to include Delaware, Pennsylvania, Maryland, District of Columbia, Virginia, and West Virginia.

The Department of Labor recorded 112 inspections conducted in Region III during the week beginning Monday, June 22 and ending Friday, June 26, 2015.

Reported inspections in the Region III States are as follows:

Virginia 56 inspections

Pennsylvania 41 inspections

West Virginia 8 inspections

Maryland 4 inspections

District of Columbia 2 inspections

Delaware 1 inspection

Inspections conducted in the Commonwealth of Virginia totaled fifty-six (56). Of those inspections, thirty-four (34) were construction-related facilities while the remaining twenty-one (21) were done in areas of general industry, as well as one (1) unspecified location.

VOSH, which administers and enforces OSHA in Virginia, reported the following inspections for the week of 6/22-26:

Source of Authority

Planned: 38

Complaint: 7

Referral: 5

Follow Up: 1

Other: 1

Municipality

Arlington 1; Boones Mill 1; Danville 2; Dulles 1; Forest 1; Gainesville 1; Harrisonburg 8; Henrico 3; Lynchburg 2; Mcgaheysville 1; Mclean 2; Midland 1; Norfolk 7; Orange 5; Portsmouth 2; Prince George 1; Purcellville 1; Richmond 2; Roanoke 1; Rustburg 1; Smithfield 3; Suffolk 1; Verona 1; Virginia Beach 7

Scope of Inspection

Partial: 28

Comprehensive/Complete: 20

Other: 8

Nature of Inspection

Construction: 34

General Industry: 21

Unspecified: 1

Please note that not all OSHA inspections are reported on OSHA‚ inspection database website.
OSHA may inspect a worksite under various sources of authority, including inspections
conducted as the result of a complaint- generally lodged by an employee who reports purportedly unsafe working conditions to OSHA; as the result of a referral- generally from the media due to reports of an incident (e.g, accident involving injuries) taking place at the worksite; as part of an OSHA program (programmed inspection)- these inspections take place because the employer appears on a list created by OSHA relating to an emphasis program it has undertaken, including National Emphasis Programs (e.g., fall protection, chemical issues (PSM-related processes)); or self-reported fatalities or injuries taking place at the facility (e.g., employer contacts OSHA pursuant to regulations mandating reporting certain incidents).
If your worksite is inspected, feel free to contact our firm with any questions you may have
regarding the OSHA citation defense process. OSHA will issue citations from any given inspection within six (6) months from the beginning of the inspection. In federal OSHA plan states, you only have 15 working days to contest the citation, including the proposed penalties and abatement periods set forth therein, from once it is received. If you participate in an informal settlement conference, this participation may not toll the time in which you must issue a notice of contest. If a timely notice of contest is not provided, you may lose your right to contest the proposed citations, including the attendant penalties and abatement periods. Once your notice of contest is received, OSHA or its state-plan equivalent will initiate the prosecution of the proposed OSHA citations by filing a complaint against your company.

Source: www.osha.gov

 

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VOSH‚ Activity – First 6 Months of 2015

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Virginia Occupational Safety & Health (VOSH) has undertaken over 1,400 inspections in the Commonwealth of Virginia since January 1, 2015 through June 23, 2015. Consistent with national trends, the vast majority of the inspections have been Planned and/or Program-related, amounting to 74% of the inspections commenced in the first half of this year. Complaint based inspections are the next highest category, but still comprise only 15% of inspections. As for inspection scope, 65% of VOSH inspections so far this year have been partial (limited scope) while 31% have been complete (comprehensive) inspections.

VOSH administers and enforces the federal OSHA regulations in Virginia as well as Virginia‚ own occupational safety and health standards such as:

fall protection in steel erection
overhead high voltage line safety
confined spaces in the construction and telecommunication industries
reverse signal operation in construction and general industry
tree trimming
compliance with manufacturer‚ instructions for vehicles, machinery, tools and equipment in
general industry, construction, maritime and agriculture

Virginia is in federal OSHA‚ Region III (along with Pennsylvania, West Virginia, Delaware, Maryland and Washington, D.C.). In addition to federal OSHA‚ National Emphasis Programs, Region III has the following Regional and Local Emphasis Programs, which also lead to occupation safety and health inspections.

Regional Programs:

Oil and Gas Service Industry
High Level Noise
Fall Hazards in the Construction Industry
Silica
Tree Trimming & Clearing Operations

Local Programs:

Programmed maritime Inspections (Pittsburg, PA Area Office)
Program for Ship/Boat Building & Repair (Norfolk, VA Area office)
Program for the Health Care Industry (Philadelphia, PA Area office)
Program for logging in West Virginia

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Region III OSHA Inspection Report; May 2015

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OSHA‚ Region III area consists of Virginia, Pennsylvania, West Virginia, Delaware, Maryland, and the District of Columbia.

During May 2015, the Department of Labor reported at total of 220 OSHA inspections taking place in the Commonwealth of Virginia, with 14 of those inspections originating from the Norfolk office, and 206 originating in other offices. By way of comparison, during May 2014 OSHA conducted 17 inspections originating in the Norfolk office and 252 inspections originating from other Virginia offices taking place during that time.

Reported OSHA inspections occurring in the remaining Region III States are as follows:

Pennsylvania (federal OSHA plan): 220 inspections
West Virginia (federal OSHA plan): 31 inspections
Delaware (federal OSHA plan): 12 inspections
Maryland (state plan): 98 inspections
District of Columbia (federal OSHA plan): 30 inspections

Please note that not all OSHA inspections are reported on OSHA‚ inspection database website.
OSHA may inspect a worksite under various sources of authority, including inspections
conducted as the result of a complaint- generally lodged by an employee who reports purportedly unsafe working conditions to OSHA; as the result of a referral- generally from the media due to reports of an incident (e.g, accident involving injuries) taking place at the worksite; as part of an OSHA program (programmed inspection)- these inspections take place because the employer appears on a list created by OSHA relating to an emphasis program it has undertaken, including National Emphasis Programs (e.g., fall protection, chemical issues (PSM-related processes)); or self-reported fatalities or injuries taking place at the facility (e.g., employer contacts OSHA pursuant to regulations mandating reporting certain incidents).
If your worksite is inspected, feel free to contact our firm with any questions you may have
regarding the OSHA citation defense process. OSHA will issue citations from any given inspection within six (6) months from the beginning of the inspection. In federal OSHA plan states, you only have 15 working days to contest the citation, including the proposed penalties and abatement periods set forth therein, from once it is received. If you participate in an informal settlement conference, this participation may not toll the time in which you must issue a notice of contest. If a timely notice of contest is not provided, you may lose your right to contest the proposed citations, including the attendant penalties and abatement periods. Once your notice of contest is received, OSHA or its state-plan equivalent will initiate the prosecution of the proposed OSHA citations by filing a complaint against your company.

Source: www.osha.gov.

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RAGAGEP and PSM Enforcement

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OSHA‚ Directorate of Enforcement Programs recently issued enforcement guidance on the application of the PSM standard (29 CFR 1910.119) requirements regarding Recognized and Generally Accepted Good Engineering Practices (RAGAGEP). These good engineering practices are most often found in published industry consensus standards (e.g. ANSI/IIAR 2-2008 Ammonia Refrigeration Systems) and codes (e.g. NFPA 70 National Electric Codes). Under certain circumstances RAGAGEP can include a facility‚ internal standards.

There are three provisions of 29 CFR 1910.119 which reference RAGAGEP:

  • (d)(3)(ii): Employers must document that all equipment in PSM-covered processes complies with RAGAGEP
  • (j)(4)(ii): Inspection and tests on process equipment subject to the mechanical integrity requirements must be conducted in accordance with RAGAGEP
  • (j)(4(iii): Frequency of tests and inspections must follow manufacturer‚ recommendations and RAGAGEP.

In short, under the PSM Standard, RAGAGEP applies to the following components of covered process equipment:

  • Installation
  • Operation
  • Maintenance
  • Inspection and test practices
  • Inspection and test frequencies

 

Shall’ and Should in RAGAGEP

In this memorandum OSHA sets forth its view that the use of shall, must or similar language in published RAGAGEP establishes that the practice is mandatory, and if an employer deviates from shall or shall not requirements in the applicable RAGAGEP, a violation will be presumed.

OSHA contends that the use of should or similar language in the RAGAGEP reflects an acceptable or preferred approach to controlling a recognized hazard. If the employer complies with the RAGAGEP recommended approach, OSHA will presume that such an approach to the hazard is acceptable.

However, if an employer chooses an approach other than the one the RAGAGEP says should apply, OSHA inspectors (CSHOs) are instructed to evaluate whether the employer‚ alternate approach is at least as protective as the RAGAGEP suggested approach.

CSHO‚ are given additional guidance in evaluating an employer‚ RAGAGEP compliance and are instructed to:

  1. Evaluate whether multiple RAGAGEP apply to a specific process.
  2. Remember that employers do not need to comply with a RAGAGEP provision that is not applicable to its specific worksite conditions, situations or applications.
  3. Evaluate whether an employer is using a RAGAGEP outside of its intended application (e.g., applying ammonia refrigeration standards in a chemical plant or refinery). Use of inapplicable RAGAGEP is grounds for a citation.
  4. If a RAGAGEP does not fully apply, the employer‚ internal standards are expected to address the process hazards; the adequacy of these internal standards is to be addressed on a case-by-case basis.
  5. An employer‚ internal standards may be more stringent that the relevant RAGAGEP (to control hazards unique to the process). Under these circumstances, if an employer meets RAGAGEP requirements, but fails to comply with its own internal standards, it may be grounds for a citation.
  6. Selectively applying individual provisions from multiple RAGAGEP addressing similar hazards may be inappropriate, and may lead to citations (to be evaluated on a case-by-case basis).
  7. Failure to document that the inspection and testing of equipment complies with RAGAGEP (1910.119 (j)(4)(ii) and (iii)) constitutes a violation.
  8. Employers must document that the covered process equipment complies with RAGAGEP. Failure to document compliance (and any deviation from compliance) with RAGAGEP is a violation.
  9. Equipment covered under PSM‚ Mechanical Integrity provision (1910.119(j)) that is outside acceptable limits as defined by the Process Safety Information (with reference to RAGAGEP) is a violation.
  10. Older equipment may not be subject to a RAGAGEP (because none existed at the time of design and construction, or the design and construction was done pursuant to codes and standards no longer in use). In such cases, employers are required to document that the equipment is designed and operating in a safe manner.
  11. If an updated RAGAGEP explicitly provides that the new requirements are retroactive, OSHA expects employers to conform to the new requirements. If the update is not retroactive, OSHA still expects employers to confirm that the process equipment is designed, maintained, inspected, tested and operated in a safe manner, through use of Process Hazard Analysis (PHA) revalidation, management of change (MOC) process, or corporate monitoring and review of published standards.

 

OSHA has shifted its enforcement emphasis to longer, more thorough inspections, and PSM inspections rank as one of OSHA‚ enforcement priorities. This new enforcement guidance addresses potential citations related to the application of RAGAGEP to covered processes. Citations for RAGAGEP related violations are often seen with respect to Process Safety Information (identifying the applicable RAGAGEP), Mechanical Integrity, and Testing and Inspections. Employers are well served to regularly review the RAGAGEP which apply to their processes.

source: www.osha.gov

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VOSH Increases Focus on Shipbuilding Sites in Last Full Week of 2014

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It was a very busy final full week of 2014 in terms of the number
of OSHA inspections occurring in Virginia. VOSH focused its attention on
construction sites, general manufacturing, and Tidewater ship building sites.
With reports, such as this one – indicating that the Port of Virginia is busier than ever, VOSH likely
will continue to focus its resources on shipping-related industries in the
Tidewater region pursuant to its local emphasis program on boating safety
(Department of Labor Directive # 2014-20; effective date October 1, 2013).
According to the directive, “OSHA has targeted ship/boat building
and repair as one of five industries where the agency will concentrate its
efforts in order to significantly reduce workplace injuries and illnesses.”

During the period beginning Monday, December 15 and ending Friday, December 19,
2014, the Department of Labor reported fifty-two (52) OSHA inspections
taking place in the Commonwealth of Virginia, with three (3) inspections originating
from the Norfolk office, and forty-nine (49) originating in other offices. 30 of the
52 reported inspections related to construction, in both the residential and
commercial settings.

The general industry employers inspected included the following types of worksites:

  • amusement industry
  • automotive repair
  • car dealer (2)
  • convenience store
  • countertop manufacturing
  • digital printing
  • food processing
  • fruit wholesaler
  • general freight trucking
  • government support (military)
  • home center
  • motor manufacturing
  • physician group (2)
  • plumbing supplier
  • ship building (3)
  • sign manufacturing
  • transit system

OSHA (or its state equivalent, in this case, VOSH) may inspect a worksite under various
sources of authority, including inspections conducted as the result of a complaint-
generally lodged by an employee who reports purportedly unsafe working conditions to
OSHA; as the result of a referral- generally from the media due to reports of an
incident (e.g, accident involving injuries) taking place at the worksite; or as part of
a local, regional, or national emphasis program (CHEMNEP, fall protection, etc).;
these inspections take place because the employer appears on a list created by
OSHA relating to an emphasis program it has undertaken.

This week the Department of Labor reported the following inspections in Virginia:

Total inspections: 52

Source of Authority:

Complaint Based: 9
Programmed/Planned: 36
Referral Based: 1
Follow-up: 1
Other: 5

Municipality:

Accomac- 1; Ashland- 5; Blackstone- 1; Blacksburg- 2; Chesapeake- 2;
Christiansburg- 1; Falls Church- 1; Glen Allen- 1; Hampton- 1; Harrisonburg- 2; Henrico- 2;
Manassas- 1; Natural Bridge- 1; Norfolk- 7; Petersburg- 1; Portsmouth- 1; Richmond- 3;
Ridgeway- 2; Roanoke- 2; Salem- 2; Spotsylvania- 1; Springfield- 1; Staunton- 1; Suffolk- 1;
Unspecified- 1; Virginia Beach- 4; Wallops Island- 1; Winchester- 3

Scope of Inspection:

Partial: 28
Comprehensive/Complete: 14
Other: 10

Nature of Inspection:

Construction: 30
General Industry: 21
Unspecified: 1

Please note that not all OSHA inspections are reported on OSHA‚ inspection database
website. If your worksite is inspected, feel free to contact our firm with any
questions you may have regarding the OSHA citation defense process. OSHA will
issue citations from any given inspection within six (6) months from the beginning of
the inspection. In federal OSHA plan states and Virginia, you only have 15 working days
to contest the citation, including the proposed penalties and abatement periods set forth
therein, from its receipt. If you participate in an informal settlement conference,
this participation may not toll the time in which you must issue a notice of contest.
If a timely notice of contest is not provided, you may lose your right to contest the
proposed citations, including the attendant penalties and abatement periods. Once your
notice of contest is received, OSHA or its state-plan equivalent will initiate the prosecution
of the proposed OSHA citations by filing a complaint against your company.

Source: www.osha.gov

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VOSH Focused Its Inspections on Construction Sites and Landscapers Last Week

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Worker at dusk

Each week, www.oshalawfirm.com will keep you informed regarding OSHA inspection activity in the
Commonwealth of Virginia. We welcome you to visit our site to learn if OSHA is active in your
area of the state. In order to be prepared for an OSHA inspection, it is important to learn what
types of OSHA inspections are taking place in your area.

It was a moderately light week in terms of the number of OSHA inspections occurring in
Virginia. VOSH focused its attention on construction worksites in Richmond and the Tidewater
area, and also conducted several inspections of landscapers and nursing home facilities.
During the week beginning Friday, November 7 and ending Thursday, November 13, 2014,
the Department of Labor reported twenty-three (23) OSHA inspections taking place in
the Commonwealth of Virginia, with zero (0) inspections originating from the Norfolk
office, and twenty-three (23) originating in other offices. 15 of the 23 reported
inspections related to construction, in both the residential and commercial settings.
The general industry workplaces inspected included the following types of worksites:

janitorial services
landscapers
nursing home facilities
rolled steel shape manufacturing
tree trimming service

OSHA (or its state equivalent, in this case, VOSH) may inspect a worksite under various
sources of authority, including inspections conducted as the result of a complaint-
generally lodged by an employee who reports purportedly unsafe working conditions to
OSHA; as the result of a referral- generally from the media due to reports of an
incident (e.g, accident involving injuries) taking place at the worksite; or as part of
a local, regional, or national emphasis program (CHEMNEP, fall protection, etc);
these inspections take place because the employer appears on a list created by
OSHA relating to an emphasis program it has undertaken.

This week the Department of Labor reported the following inspections in Virginia:

Total inspections: 23

Source of Authority:

Complaint Based: 3
Programmed/Planned: 17
Referral Based: 0
Follow-up: 0
Other: 3

Municipality:

Arlington- 2; Charlottesville- 1; Chesapeake- 1; Colonial Heights- 1; Goochland- 2; Hampton- 1;
Hardy- 1; Henrico- 4; Norfolk- 2; Richmond- 2; Suffolk- 1; Troutdale- 1; Virginia Beach- 4

Scope of Inspection:

Partial: 19
Comprehensive/Complete: 2
Other: 2

Nature of Inspection:

Construction: 15
General Industry: 8

Please note that not all OSHA inspections are reported on OSHA‚ inspection database
website. If your worksite is inspected, feel free to contact our firm with any
questions you may have regarding the OSHA citation defense process. OSHA will
issue citations from any given inspection within six (6) months from the beginnizng of
the inspection. In federal OSHA plan states and Virginia, you only have 15 working days
to contest the citation, including the proposed penalties and abatement periods set forth
therein, from once it is received. If you participate in an informal settlement conference,
this participation may not toll the time in which you must issue a notice of contest.
If a timely notice of contest is not provided, you may lose your right to contest the
proposed citations, including the attendant penalties and abatement periods. Once your
notice of contest is received, OSHA or its state-plan equivalent will initiate the prosecution
of the proposed OSHA citations by filing a complaint against your company.

Previous Virginia Weekly OSHA Inspection Reports:

Weekly Virginia OSHA Inspection Report; Friday, October 31- Thursday, November 6, 2014

Source: www.osha.gov

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