29 C.F.R. Subpart EE—Virginia
Title 29 - Labor
(a) The Virginia Department of Labor and Industry is the agency responsible for administering the plan and the Virginia Department of Health is designated as responsible for occupational health matters. The plan defines the covered occupational safety and health issues as defined by the Secretary of Labor in 29 CFR 1902.2(c)(1) and all safety and health standards adopted by the Secretary of Labor, except those found in 29 CFR parts 1915, 1916, 1917, and 1918 (ship repairing, shipbuilding, shipbreaking and longshoring), will be enforced by the State upon approval of the plan by the Assistant Secretary. The State will retain its existing standard applicable to ionizing radiation. New Federal standards will be adopted by the Safety and Health Codes Commission within 6 months after Federal promulgation. (b)(1) The plan includes enabling legislation passed by the Virginia legislature in February 1973, and amendments thereto enacted in 1975 and 1976. The Commissioner of the Department of Labor and Industry will have authority to enforce and adminster laws regarding the safety and health of employees. Safety inspections will be conducted by the Department of Labor and Industry whereas health inspections will be conducted by the Department of Health. The Department of Labor and Industry will issue citations, set abatement dates, and issue summons and/or warrants for a civil district court determination of violations and assessment of proposed penalties for such safety and health violations. Appeals of the district court's determination shall be to the circuit court sitting without a jury. Fire safety inspections and enforcement will be provided by agreement with the State Fire Marshal. The State plan provides for the coverage of all employees including coverage of public employees within the Commonwealth with the exception of maritime workers, employees of the United States, and employees whose working conditions are regulated by Federal agencies other than the U.S. Department of Labor under section 4(b)(1) of the Occupational Safety and Health Act of 1970. The Commissioner is authorized to establish a program applicable to employees of the State and its political subdivisions. (2) The legislation also insures inspections in response to employee complaints; right of employer and employee representatives to accompany inspectors; notification to employees or their representatives when no compliance action is taken as a result of alleged violations; notification to employees of their protections and obligations; protection of employees against discharge or discrimination in terms and conditions of employment; adequate safeguards to protect trade secrets; prompt notice to employers and employees of alleged violations of standards and abatement requirements; effective sanctions against employers for violations of rules, regulations, standards and orders; employee right of review in the State civil courts and employee participation in this judicial review process. In addition, there is provision for prompt restraint of imminent danger situations by injunction and “red-tag” procedures. The plan also proposes to develop a program to encourage voluntary compliance by employers and employees, including provision for onsite consultation, which program will not detract from its enforcement program. (c) The plan sets out goals and provides a timetable for bringing it into conformity with part 1902 of this chapter at the end of three years after commencement of operations under the plan. The plan also includes the State Administrative Process Act. A merit system of personnel administration will be utilized. (d) The plan includes the following documents as of the date of approval: (1) The plan document and appendices including revised legislation, submitted June 21, 1976. (2) Letters from the Department of Labor and Industry dated January 15, March 4, and August 23, 1976, and from the Department of Health dated August 18, 1976. [41 FR 42658, Sept. 28, 1976, as amended at 51 FR 2489, Jan. 17, 1986] The Virginia plan is developmental. Following is a schedule of major developmental steps: (a) Standards identical to the Federal standards will be completely adopted by January 1, 1978. (b) A plan for delegation of authority to the State Fire Marshal for fire standards development and enforcement will be completed by December 31, 1976, with necessary legislative action and program implementation by July 1, 1978. (c) State poster(s) informing public and private employees of their rights and responsibilities will be developed and distributed within 6 months of plan approval. (d) A voluntary compliance program (including on-site consultation services) will be initiated within 6 months of plan approval. (e) Both safety and health conpliance programs will be fully staffed by FY 1979. (f) Both safety and health consultation programs will be fully staffed by FY 1979. (g) An automated Management Information System, including a court reporting system, will be developed within 6 months of plan approval. (h) An Administrative Procedures Manual which will contain State regulations on standards promulgation, inspections, citations, proposal of penalties, review procedures, variances, etc., will be developed within 6 months of plan approval. (i) A Compliance Manual establishing procedures to be used by safety and health inspectors and voluntary compliance personnel will be developed within 6 months of plan approval. (j) The State is now responsible for enforcement of the State explosive code. That code will be amended within 6 months of plan approval to contain only standards identical to OSHA's standards. (k) Job descriptions for both safety and health personnel will be reviewed and revised to accurately reflect job functions within 12 months of plan approval. (l) The Directors of the Industry and Construction Safety Divisions in the Department of Labor and Industry will be brought under State merit system coverage by January 1, 1977. (m) An inspection scheduling system will be developed for the health program within 6 months of plan approval and for the safety program within 8 months of plan approval. (n) A public employee program will be developed and implemented within 6 months of plan approval. [41 FR 42658, Sept. 28, 1976, as amended at 42 FR 10989, Feb. 25, 1977. Redesignated at 51 FR 2489, Jan. 17, 1986] (a) In accordance with 29 CFR 1952.373(b), Virginia was to develop a plan for delegation of authority to the State Fire Marshal for fire standards enforcement. The State has since announced that the authority for fire standards enforcement will rest with the Department of Labor and Industry, which has been enforcing fire standards since plan approval. This action is judged to have sufficiently fulfilled the commitments of this step. (b) In accordance with 29 CFR 1952.373(c) and 1952.10. Virginia's safety and health posters for public and private employers were approved by the Assistant Secretary on November 13, 1980. (c) In accordance with 29 CFR 1952.373(d), Virginia initiated a voluntary compliance program which includes on-site consultation services on March 15, 1977. (The State subsequently arranged for on-site consultation activities for the private sector to be covered by an agreement with the U.S. Department of Labor under section 7(c)(1) of the Act). (d) In accordance with 29 CFR 1952.373(f), the State had met its developmental commitment for the staffing of its on-site consultation program in the public sector by fiscal year 1979. On-site consultation in the private sector is covered by a section 7(c)(1) agreement with the U.S. Department of Labor. (e) In accordance with the relevant part of 29 CFR 1952.373(g), Virginia met its developmental commitment of developing and implementing an automated Management Information System on July 1, 1977. (f) In accordance with 29 CFR 1952.373(l), the Directors of the Industry and the Construction Safety Divisions have been placed under the State merit system as of September 1, 1976. (g) In accordance with 29 CFR 1952.373(a), Virginia was to completely adopt standards identical to the Federal standards by January 1, 1978. State standards identical to the Federal standards of 29 CFR part 1910 (General Industry) and part 1926 (Construction) and as effective as the Federal standards for ionizing radiation exposure became effective on April 15, 1977, and were approved by the Regional Administrator in the (h) In accordance with 29 CFR 1952.373(e), the State met its developmental commitment for the staffing of its compliance program by Fiscal Year 1979 with the submission of its Fiscal Year 1979 grant application on August 11, 1978, which allocated 38 safety and 18 health compliance officer positions. This supplement was approved by the Assistant Secretary on October 14, 1983. (i) In accordance with 29 CFR 1952.373(g), Virginia met its developmental commitment for the development and implementation of a system for the reporting of court decisions resulting from the State's system for the judicial review of contested cases with the submission of a publication on May 27, 1981, which compiled final orders and decisions regarding cases contested to the Virginia General District and Circuit Courts. The State has subsequently submitted other compilations which are to be published annually. This amendment was approved by the Assistant Secretary on October 14, 1983. (j) In accordance with 29 CFR 1952.373(j), Virginia submitted revised standards for explosives and blasting agents on March 23, 1977, which were found to be identical to the Federal standards and were approved by the Regional Administrator in the (k) In accordance with 29 CFR 1952.373(k), the State met its developmental commitment of reviewing and revising job descriptions for both safety and health personnel with the submission of revised job specifications on October 5, 1977. This supplement was approved by the Assistant Secretary on October 14, 1983. (l) In accordance with 29 CFR 1952.373(m), Virginia submitted inspection scheduling systems for its health and safety programs on September 7 and November 2, 1977, and a revised health scheduling system on May 9, 1979. The State has subsequently adopted revisions identical to revisions to the Federal scheduling system for safety as well as health inspections with submissions dated December 11, 1980, October 30, 1981, and May 28, 1982. These amendments were approved by the Assistant Secretary on October 14, 1983. (m) In accordance with 29 CFR 1952.373(h), Virginia submitted an administrative procedures manual containing State rules and regulations on standards promulgation, inspections, recordkeeping and reporting of occupational injuries and illnesses, nondiscrimination, citations, proposal of penalties, review procedures, variances, etc., on March 31, 1977. The State has subsequently submitted revised versions of and clarifications to the manual by letters dated September 8, 1978, May 26, 1981, November 12, 1982, January 20, 1983, March 16, 1983 and September 13, 1983 in response to OSHA comments, and these actions are adjudged to have sufficiently fulfilled the commitments of this step. The Virginia Occupational Safety and Health Administrative Regulations Manual (which became effective on October 31, 1983 and was clarified by a letter dated June 13, 1984) was approved by the Assistant Secretary on August 15, 1984. (n) In accordance with 29 CFR 1952.373(i), the State was to develop a compliance manual establishing procedures to be used by safety and health compliance officers and voluntary compliance personnel. A voluntary compliance and training manual was initially submitted by the State on March 31, 1977 and a completely revised version was submitted by a letter dated March 21, 1984. The State submitted a compliance manual for safety and health compliance officers on August 2, 1977. By letters dated November 20, 1978 and August 2, 1979, Virginia informed OSHA that it would adopt and implement Federal OSHA's Field Operations Manual and Industrial Hygiene Field Operations Manual. The State has adopted subsequent Federal changes to these manuals by letters dated August 26, 1981, February 9, 1984, and June 18, 1984. On July 30, 1984, the State submitted a completely revised Field Operations Manual reflecting changes to the Federal manual through June 1, 1984. In addition, by a letter dated June 5, 1984, the State indicated its intent to utilize and adopt the March 30, 1984 Federal Industrial Hygiene Technical Manual. These supplements were approved by the Assistant Secretary on August 15, 1984. (o) In accordance with 29 CFR 1952.373(n), Virginia met its developmental commitment of developing and implementing an occupational safety and health program applicable to employees of the State and local governments. On March 31, 1977, the State submitted rules and regulations applying Virginia occupational safety and health law and standards to State, local and municipal governments. These regulations were subsequently revised and incorporated into the State's Administrative Regulations Manual as submitted on September 13, 1983. These supplements were approved by the Assistant Secretary on August 15, 1984. (p) In accordance with part 1953 of this chapter, Virginia submitted legislative amendments to Title 40.1 of the Labor Laws of Virginia as enacted by the Virginia General Assembly of February 6, 1979. These legislative amendments, which dealt primarily with the Commissioner's delegation authority, procedures concerning Virginia's system of judicial review of contested cases, and penalty provisions, were approved by the Assistant Secretary on August 15, 1984. (q) In accordance with §1902.34 of this chapter, the Virginia occupational safety and health plan was certified effective August 15, 1984 as having completed all developmental steps specified in the plan as approved on September 23, 1976 on or before September 23, 1979. This certification attests to structural completion, but does not render judgment on adequacy of performance. [45 FR 77003, Nov. 21, 1980, as amended at 48 FR 48823, Oct. 21, 1983; 49 FR 33122 and 33126, Aug. 21, 1984. Redesignated at 51 FR 2489, Jan. 17, 1986; 67 FR 60129, Sept. 25, 2002] Under the terms of the 1978 Court Order in AFL-CIO v. Marshall compliance staffing levels (benchmarks) necessary for a “fully effective” enforcement program were required to be established for each State operating an approved State plan. In September 1984 Virginia, in conjunction with OSHA, completed a reassessment of the levels initially established in 1980 and proposed revised compliance staffing benchmarks of 38 safety and 21 health compliance officers. After opportunity for public comment and service on the AFL-CIO, the Assistant Secretary approved these revised staffing requirements on January 17, 1986. [51 FR 2489, Jan. 17, 1986] (a) In accordance with section 18(e) of the Act and procedures in 29 CFR part 1902, and after determination that the State met the “fully effective” compliance staffing benchmarks as revised in 1984 in response to a Court Order in AFL-CIO v. Marshall (CA 74–406), and was satisfactorily providing reports to OSHA through participation in the Federal-State Integrated Management Information System, the Assistant Secretary evaluated actual operations under the Virginia State plan for a period of at least one year following certification of completion of developmental steps (49 FR 33123). Based on the 18(e) Evaluation Report for the period of January 1, 1987 through March 31, 1988, and after opportunity for public comment, the Assistant Secretary determined that in operation the State of Virginia's occupational safety and health program is at least as effective as the Federal program in providing safe and healthful employment and places of employment and meets the criteria for final State plan approval in section 18(e) of the Act and implementing regulations at 29 CFR part 1902. Accordingly, the Virginia plan was granted final approval and concurrent Federal enforcement authority was relinquished under section 18(e) of the Act effective November 30, 1988. (b) Except as otherwise noted, the plan which has received final approval covers all activities of employers and all places of employment in Virginia. The plan does not cover private sector maritime employment; worksites located within Federal military facilities as well as on other Federal enclaves where civil jurisdiction has been ceded by the State to the Federal government; employment at the U.S. Department of Energy's Southeastern Power Administration Kerr-Philpott System; Federal government employers and employees; and the U.S. Postal Service (USPS), including USPS employees, and contract employees and contractor-operated facilities engaged in USPS mail operations. (c) Virginia is required to maintain a State program which is at least as effective as operations under the Federal program; to submit plan supplements in accordance with 29 CFR part 1953; to allocate sufficient safety and health enforcement staff to meet the benchmarks for State staffing established by the U.S. Department of Labor, or any revisions to those benchmarks; and, to furnish such reports in such form as the Assistant Secretary may from time to time require. [53 FR 48258, Nov. 30, 1988, as amended at 65 FR 36630, June 9, 2000; 71 FR 36991, June 29, 2006] (a) As a result of the Assistant Secretary's determination granting final approval to the Virginia plan under section 18(e) of the Act, effective November 30, 1988, occupational safety and health standards which have been promulgated under section 6 of the Act do not apply with respect to issues covered under the Virginia plan. This determination also relinquishes concurrent Federal OSHA authority to issue citations for violations of such standards under section 5(a)(2) and 9 of the Act; to conduct inspections and investigations under section 8 (except those necessary to conduct evaluation of the plan under section 18(f) and other inspections, investigations, or proceedings necessary to carry out Federal responsibilities not specifically preempted by section 18(e)); to conduct enforcement proceedings in contested cases under section 10; to institute proceedings to correct imminent dangers under section 13; and to propose civil penalties or initiate criminal proceedings for violations of the Federal Act under section 17. The Assistant Secretary retains jurisdiction under the above provisions in any proceeding commenced under section 9 or 10 before the effective date of the 18(e) determination. (b)(1) In accordance with section 18(e), final approval relinquishes Federal OSHA authority only with regard to occupational safety and health issues covered by the Virginia plan. OSHA retains full authority over issues which are not subject to State enforcement under the plan. Thus, Federal OSHA retains its authority relative to safety and health in private sector maritime activities and will continue to enforce all provisions of the Act, rules or orders, and all Federal standards, current or future, specifically directed to maritime employment (29 CFR Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918, longshoring; Part 1919, gear certification) as well as provisions of general industry and construction standards (29 CFR Parts 1910 and 1926) appropriate to hazards found in these employments, and employment at worksites located within Federal military facilities as well as on other Federal enclaves where civil jurisdiction has been ceded by the State to the Federal government. Federal jurisdiction is also retained with respect to employment at the U.S. Department of Energy's Southeastern Power Administration Kerr-Philpott System; Federal government employers and employees; and the U.S. Postal Service (USPS), including USPS employees, and contract employees and contractor-operated facilities engaged in USPS mail operations. (2) In addition, any hazard, industry, geographical area, operation or facility over which the State is unable to effectively exercise jurisdiction for reasons which OSHA determines are not related to the required performance or structure of the plan shall be deemed to be an issue not covered by plan which has received final approval, and shall be subject to Federal enforcement. Where enforcement jurisdiction is shared between Federal and State authorities for a particular area, project, or facility, in the interest of administrative practicability Federal jurisdiction may be assumed over the entire project or facility. In any of the aforementioned circumstances, Federal enforcement authority may be exercised after consultation with the State designated agency. (c) Federal authority under provisions of the Act not listed in section 18(e) is unaffected by final approval of the plan. Thus, for example, the Assistant Secretary retains his authority under section 11(c) of the Act with regard to complaints alleging discrimination against employees because of the exercise of any right afforded to the employee by the Act, although such complaints may be referred to the State for investigation. The Assistant Secretary also retains his authority under section 6 of the Act to promulgate, modify or revoke occupational safety and health standards which address the working conditions of all employees, including those in States which have received an affirmative 18(e) determination, although such standards may not be Federally applied. In the event that the State's 18(e) status is subsequently withdrawn and Federal authority reinstated, all Federal standards, including any standards promulgated or modified during the 18(e) period, would be Federally enforceable in that State. (d) As required by section 18(f) of the Act, OSHA will continue to monitor the operations of the Virginia State program to assure that the provisions of the State plan are substantially complied with and that the program remains at least as effective as the Federal program. Fairlure by the State to comply with its obligations may result in the revocation of Federal enforcement, and/or proceedings for withdrawal of plan approval. [53 FR 48258, Nov. 30, 1988, as amended at 65 FR 36630, June 9, 2000; 71 FR 36991, June 29, 2006] A copy of the principal documents comprising the plan may be inspected and copied during normal business hours at the following locations:
Office of State Programs, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700, Washington, DC 20210; Office of the Regional Administrator, Occupational Safety and Health Administration, U.S. Department of Labor, The Curtis Center, 170 South Independence Mall West—Suite 740 West, Philadelphia, Pennsylvania Office of the Commissioner, Virginia Department of Labor and Industry, Powers-Taylor Building, 13 South 13th Street, Richmond, Virginia 23219. [65 FR 36630, June 9, 2000] In accordance with part 1953 of this chapter, the following Virginia plan changes were approved by the Assistant Secretary: (a) The State submitted legislative amendments related to the issuance and judicial review of administrative search warrants which became effective on July 1, 1987. The Assistant Secretary approved these amendments on 14 September, 1987. (b) Legislation. (1) On March 29, 1994, the Assistant Secretary approved Virginia's revised statutory penalty levels which are the same as the revised Federal penalty levels contained in section 17 of the Act as amended on November 5, 1990. [52 FR 35070, Sept. 17, 1987, as amended at 59 FR 14556, Mar. 29, 1994]
Title 29: Labor
PART 1952—APPROVED STATE PLANS FOR ENFORCEMENT OF STATE STANDARDS
Subpart EE—Virginia
§ 1952.370 Description of the plan as initially approved.
§ 1952.371 Developmental schedule.
§ 1952.372 Completion of developmental steps and certification.
§ 1952.373 Compliance staffing benchmarks.
§ 1952.374 Final approval determination.
§ 1952.375 Level of Federal Enforcement.
§ 1952.376 Where the plan may be inspected.
§ 1952.377 Changes to approved plans.
