Administrative Code

Virginia Administrative Code
8/5/2021

Part VII. Abatement

16VAC25-60-307. Abatement verification.

A. Virginia Occupational Safety and Health Program (VOSH) inspections are intended to result in the abatement of violations of the Virginia Occupational Safety and Health Act (§ 40.1-1 of the Code of Virginia). This section sets forth the procedures VOSH will use to ensure abatement. These procedures are tailored to the nature of the violation and the employer's abatement actions.

B. This section applies to employers who receive a citation for a violation of the Virginia Occupational Safety and Health Act.

C. Definitions.

"Abatement" means action by an employer to comply with a cited standard or regulation or to eliminate a recognized hazard identified by VOSH during an inspection.

"Abatement date" means:

1. For an uncontested citation item, the later of:

a. The date in the citation for abatement of the violation;

b. The date approved by VOSH or established in litigation as a result of a petition for modification of the abatement date (PMA); or

c. The date established in a citation by an informal settlement agreement.

2. For a contested citation item, the date established in a formal settlement agreement between VOSH and the employer, or for a contested citation item for which a Virginia circuit court has issued an order affirming the violation, the later of:

a. The date identified in the final order;

b. The date computed by adding the period allowed in the citation for the abatement to the final order date; or

c. The date established by an agreed order.

"Affected employees" means those employees who are exposed to the hazard(s) identified as violation(s) in a citation.

"Final order date" means:

1. For an uncontested citation item, the 15th working day after the employer's receipt of the citation;

2. For a contested citation item:

a. The date that a formal settlement agreement is signed by VOSH;

b. The 30th day after the date on which a decision or order of a circuit court judge has been entered; or

c. The date on which the Virginia Court of Appeals issues a decision affirming the violation in a VOSH case.

"Movable equipment" means a hand-held or nonhand-held machine or device, powered or unpowered, that is used to do work and is moved within or between worksites.

D. Abatement certification.

1. Within 10 calendar days after the abatement date, the employer must certify to the department that each cited violation has been abated, except as provided in subdivision 2 of this subsection.

2. The employer is not required to certify abatement if the VOSH compliance officer, during the on-site portion of the inspection:

a. Observes within 24 hours after a violation is identified that abatement has occurred; and

b. Notes in the citation that abatement has occurred.

3. The employer's certification that abatement is complete must include, for each cited violation, in addition to the information required by subsection I of this section, the date and method of abatement and a statement that affected employees and their representatives have been informed of the abatement. A sample abatement certification letter is shown as Form A.

E. Abatement documentation.

1. The employer must submit to the department, along with the information on abatement certification required by subdivision D 3 of this section documents demonstrating that abatement is complete for each willful or repeat violation and for any serious violation for which the department indicates in the citation that such abatement documentation is required.

2. Documents demonstrating that abatement is complete may include, but are not limited to, evidence of the purchase or repair of equipment, photographic or video evidence of abatement, or other written records.

F. Abatement plans.

1. The department may require an employer to submit an abatement plan for each cited violation (except an other-than-serious violation) when the time permitted for abatement is more than 90 calendar days. If an abatement plan is required, the citation must so indicate.

2. The employer must submit an abatement plan for each cited violation within 25 calendar days from the final order date when the citation indicates that such a plan is required. The abatement plan must identify the violation and the steps to be taken to achieve abatement, including a schedule for completing abatement and, where necessary, how employees will be protected from exposure to the violative condition in the interim until abatement is complete. A sample abatement plan is shown as Form B.

G. Progress reports.

1. An employer who is required to submit an abatement plan may also be required to submit periodic progress reports for each cited violation. The citation must indicate:

a. That periodic progress reports are required and the citation items for which they are required;

b. The date on which an initial progress report must be submitted, which may be no sooner than 30 calendar days after submission of an abatement plan;

c. Whether additional progress reports are required; and

d. The date or dates on which additional progress reports must be submitted.

2. For each violation, the progress report must identify, in a single sentence if possible, the action taken to achieve abatement and the date the action was taken. A sample progress report is shown as Form B.

H. Employee notification.

1. The employer must inform affected employees and their representatives about abatement activities covered by this section by posting a copy of each document submitted to the department or a summary of the document near the place where the violation occurred.

2. Where such posting does not effectively inform employees and their representatives about abatement activities (for example, for employers who have mobile work operations), the employer must:

a. Post each document or a summary of the document in a location where it will be readily observable by affected employees and their representatives; or

b. Take other steps to communicate fully to affected employees and their representatives about abatement activities.

3. The employer must inform employees and their representatives of their right to examine and copy all abatement documents submitted to the department.

a. An employee or an employee representative must submit a request to examine and copy abatement documents within three working days of receiving notice that the documents have been submitted.

b. The employer must comply with an employee's or employee representative's request to examine and copy abatement documents within five working days of receiving the request.

4. The employer must ensure that notice to employees and employee representatives is provided at the same time or before the information is provided to the department and that abatement documents are:

a. Not altered, defaced, or covered by other material; and

b. Remain posted for three working days after submission to the department.

I. Transmitting abatement documents.

1. The employer must include, in each submission required by this section, the following information:

a. The employer's name and address;

b. The inspection number to which the submission relates;

c. The citation and item numbers to which the submission relates;

d. A statement that the information submitted is accurate; and

e. The signature of the employer or the employer's authorized representative.

2. The date of postmark is the date of submission for mailed documents. For documents transmitted by other means, the date the department receives the document is the date of submission.

J. Movable equipment.

1. For serious, repeat, and willful violations involving movable equipment, the employer must attach a warning tag or a copy of the citation to the operating controls or to the cited component of equipment that is moved within the worksite or between worksites. Attaching a copy of the citation to the equipment is deemed by VOSH to meet the tagging requirement of this section as well as the posting requirement of 16VAC25-60-40.

2. The employer must use a warning tag that properly warns employees about the nature of the violation involving the equipment and identifies the location of the citation issued. Form C is a sample tag that employers may use to meet this requirement.

3. If the violation has not already been abated, a warning tag or copy of the citation must be attached to the equipment:

a. For hand-held equipment, immediately after the employer receives the citation; or

b. For nonhand-held equipment, prior to moving the equipment within or between worksites.

4. For the construction industry, a tag that is designed and used in accordance with 16VAC25-175-1926.20(b)(3) and 16VAC25-175-1926.200(h) is deemed by VOSH to meet the requirements of this section when the information required by subdivision 2 of this subsection is included on the tag.

5. The employer must ensure that the tag or copy of the citation attached to movable equipment is not altered, defaced, or covered by other material.

6. The employer must ensure that the tag or copy of the citation attached to movable equipment remains attached until:

a. The violation has been abated and all abatement verification documents required by this chapter have been submitted to the department;

b. The cited equipment has been permanently removed from service or is no longer within the employer's control; or

c. The Virginia circuit court issues a final order vacating the citation.

Statutory Authority

§ 40.1-22(5) of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 14, Issue 4, eff. December 15, 1997.

16VAC25-60-310. Contest of abatement period.

A. The employer, employees, or employee representative may, by written notification to the commissioner, contest the time permitted for abatement.

B. The notice of contest of abatement period must be in writing and shall have been delivered by hand or mailed to the commissioner within 15 working days from the date of the receipt of the citation and order of abatement.

C. The same procedures and requirements used for contest of citation and penalty, set forth at 16VAC25-60-270, 16VAC25-60-280, 16VAC25-60-290, and 16VAC25-60-300, shall apply to contests of abatement period.

D. The time permitted for abatement, if contested in good faith and not merely for delay, does not begin to run until the entry of a final order of the circuit court.

Statutory Authority

§ 40.1-22(5) of the Code of Virginia.

Historical Notes

Derived from VR425-02-95 § 7.1, eff. July 1, 1994.

16VAC25-60-320. Extension of abatement time.

A. Where an extension of abatement is sought concerning a final order of the commissioner or of a court, the extension can be granted as an exercise of the enforcement discretion of the commissioner. While the extension is in effect the commissioner will not seek to cite the employer for failure to abate the violation in question. The employer shall carry the burden of proof to show that an extension should be granted.

B. The commissioner will consider a written petition for an extension of abatement time if the petition is mailed to or received by the commissioner prior to the expiration of the established abatement time.

C. A written petition requesting an extension of abatement time shall include the following information:

1. All steps taken by the employer, and the dates such actions were taken, in an effort to achieve compliance during the prescribed abatement period;

2. The specific additional abatement time necessary in order to achieve compliance;

3. The reasons such additional time is necessary, such as the unavailability of professional or technical personnel or of materials and equipment, or because necessary construction or alteration of facilities cannot be completed by the original abatement date;

4. All available interim steps being taken to safeguard the employees against the cited hazard during the abatement period; and

5. A certification that a copy of the petition has been posted and served on the authorized representative of affected employees, if there is one, in accordance with 16VAC25-60-40, and a certification of the date upon which such posting and service was made.

D. A written petition requesting an extension of abatement which is filed with the commissioner after expiration of the established abatement time will be accepted only if the petition contains an explanation satisfactory to the commissioner as to why the petition could not have been filed in a timely manner.

1. The employer is to notify the commissioner as soon as possible.

2. Notification of the exceptional circumstances which prevents compliance within the original abatement period shall accompany a written petition which includes all information required in subsection C of this section.

E. The commissioner will not make a decision regarding such a petition until the expiration of 15 working days from the date the petition was posted or served.

F. Affected employees, or their representative, may file a written objection to a petition for extension of abatement time. Such objections must be received by the commissioner within 10 working days of the date of posting of the employer's petition. Failure to object within the specified time period shall constitute a waiver of any right to object to the request.

G. When affected employees, or their representatives object to the petition, the commissioner will attempt to resolve the issue in accordance with 16VAC25-60-330. If the matter is not settled or settlement does not appear probable, objections will be heard in the manner set forth in subsection I of this section.

H. The employer or an affected employee may seek review of an adverse decision regarding the petition for extension of abatement to the Commissioner of Labor and Industry within five working days after receipt of the commissioner's decision.

I. An employee's objection not resolved under subsection G of this section or an employer or employee appeal under subsection H of this section will be heard using the procedures of §§ 2.2-4019 and 2.2-4021 of the Code of Virginia. Burden of proof for a hearing under subsection G of this section shall lie with the employer. Burden of proof for an appeal under subsection H of this section shall lie with the party seeking review.

1. All parties shall be advised of the time and place of the hearing by the commissioner.

2. All parties will be advised of the decision within 15 working days of the hearing.

Statutory Authority

§§ 40.1-6 and 40.1-22 of the Code of Virginia.

Historical Notes

Derived from VR425-02-95 § 7.2, eff. July 1, 1994; amended, Virginia Register Volume 19, Issue 9, eff. March 1, 2003; Volume 22, Issue 25, eff. September 21, 2006.

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