OSHA Instruction STP 2.23 June 4, 1997 Office of State Programs

Subject: Final Rule on Abatement Verification

A. Purpose. This instruction describes a Federal Program Change to the Regions and State designees.

B. Scope. This instruction applies OSHA-wide.

C. Reference. 29 CFR 1903.19, Abatement Verification.

D. Federal Program Change. This instruction describes a Federal Program Change which impacts State programs.

1. The Regional Administrator (RA) shall ensure that this change is promptly forwarded to each State designee using a format consistent with the Plan Change Two-way Memorandum in Appendix A, Part 1, State Plan Policies and Procedures Manual (SPM).

2. The RA shall explain the content of this change to the State designee as required and shall provide a copy of the Federal Register notice at 62 FR 15324, Abatement Verification, published March 31, 1997, to the State designee upon request.

3. Inform each State designee that States will need to adopt an abatement verification regulation or other equivalent mechanism that can be enforced with citations and penalties and that is at least as effective as the new Federal provisions at 29 CFR 1903.19, as published on March 31, 1997. States that already have an abatement verification requirement similar to the new Federal rule will only need to reissue it as a regulation or other enforceable mechanism.

4. The State shall respond to this change within 70 days in accordance with paragraph I.1.a.(2)(a) and (b), Chapter III of the SPM.

5. The State's acknowledgment shall include (a) the State's plan to promulgate an enforceable abatement verification regulation; (b) the State's plan to develop an enforceable alternative, which is as effective; or (c) the reasons why no change is necessary to maintain a program which is as effective. States with an existing similar abatement verification requirement may decide to simply reissue it as an enforceable regulation. If a State believes that its procedures are enforceable without the need for adoption of a formal regulation, it should submit appropriate documentation, such as an Attorney General's opinion. The State shall submit a plan supplement within 6 months in accordance with I.1.a.(3)(c), Chapter III of the SPM.

6. The RA shall review policies, instructions and guidelines issued by the State to determine that this change has been communicated to State compliance personnel.

E. Background.

1. This regulation, published March 31, 1997, effective May 30, 1997, amends 29 CFR 1903 by adding a new section 1903.19, which requires employers to certify abatement of hazards cited by OSHA, unless the hazard is abated immediately while the CSHO is present. A simple form letter describing the completed abatement actions meets the requirement for most violations. Employers must also provide evidence of abatement actions for willful, repeat, failure-to-abate, and any serious violation for which the citation indicates that such abatement documentation is required. Abatement plans and progress reports may be required only for abatement periods that exceed 90 days. (Examples are provided in the rule of the documents and documentary evidence required.) Affected employees and their reps must be notified about abatement activities, and must be informed of their right to examine and copy all abatement documents submitted to OSHA. Except for other-than-serious violations, a warning tag or copy of the citation must be placed on all cited movable equipment to alert affected employees that a hazardous condition exists while abatement is being accomplished. Violation of this regulation will result in civil penalties as prescribed by section 17 of the Occupational Safety and Health Act.

2. This regulation was developed in response to a recommendation in a 1991 General Accounting Office report. OSHA previously had asked employers to notify the Area Director by letter of abatement of violations, but had no legal authority to enforce this request.

Greg Watchman Acting Assistant Secretary

Distribution: National, Regional, and Area Offices State Designees OSHA Training Institute