LABOR CABINET

Department of Workplace Standards

Division of Occupational Safety and Health Compliance

Division of Occupational Safety and Health Education and Training

(Amendment)

 

      803 KAR 2:309. General environmental controls.

 

      RELATES TO: KRS 338.051(3), 338.061, 29 C.F.R. 1910.141 -1910.147

      STATUTORY AUTHORITY: KRS 338.051(3), 338.061

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to adopt and promulgate occupational safety and health administrative regulations necessary to accomplish the purposes of KRS Chapter 338. 29 C.F.R. 1910.141 to 1910.147 establishes the federal requirements relating to general environmental controls. This administrative regulation establishes the general environmental controls standards to be enforced by the Department of Workplace Standards in general industry.

 

      Section 1. Definitions. (1) "Act" means KRS Chapter 338.

      (2) "Assistant Secretary of Labor" means Secretary, Labor Cabinet, or Commissioner Department of Workplace Standards, Labor Cabinet.

      (3) "C.F.R." means Code of Federal Regulations.

      (4) "Employee" is defined in KRS 338.015(2).

      (5) "Employer" is defined in KRS 338.015(1).

      (6) "Established federal standard" is defined in KRS 338.015(10).

      (7) "National consensus standard" is defined in KRS 338.015(9).

      (8) "Secretary of Labor" means Secretary, Labor Cabinet, or Commissioner, Department of Workplace Standards, Labor Cabinet.

      (9) "Standard" is defined in KRS 338.015(3).

      (10) "U.S. Department of Labor" means U.S. Department of Labor or Kentucky Labor Cabinet, U.S. 127 South, Frankfort, Kentucky 40601.

 

      Section 2. Except as modified by the definitions in Section 1 and the requirements in Section 3 of this administrative regulation, general industry shall comply with the following federal requirements published by the Office of the Federal Register, National Archives and Records Services, General Services Administration:

      (1) 29 C.F.R. 1910.141-1910.147, revised July 1, 2013; and

      (2) The amendments to 29 C.F.R. 1910.145 published in the June 13, 2014 Federal Register, Volume 78, Number 114, and confirmed and corrected in the November 6, 2013 Federal Register, Volume 78, Number 215[2011; and (2) The amendments to 29 C.F.R. 1910.146 published in the December 27, 2011, Federal Register, Volume 76, Number 248].

 

      Section 3. (1)(a) Construction of Water Closets. The requirements relating to construction of water closets in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1910.141(c)(2)(i).

      (b) Each water closet shall occupy a separate compartment with walls or partitions between fixtures sufficiently high to assure privacy.

      (2)(a) Lockout. The requirements relating to the utilization of lockout procedures in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1910.147(c)(2)(ii).

      (b) If an energy isolating device is capable of being locked out, the employer's energy control program under 29 C.F.R. 1910.147(c)(1) shall utilize lockout.

      (3)(a) Full employee protection. The requirements relating to tag location in subsection (b) of this section shall apply in lieu of 29 C.F.R. 1910.147(c)(3)(i).

      (b) When a tagout device is used on an energy isolating device which is incapable of being locked out, the tagout device shall be attached at the same location that the lockout device would have been attached, and the employer shall demonstrate that the tagout program will provide a level of safety equivalent to that obtained by using a lockout program. If tagout devices are used with energy isolating devices designed with the incapability of being locked, the tag attachment shall be fastened at the same point at which the lock would have been attached.[As approved by the Kentucky Occupational Safety and Health Standards Board.]

 

LARRY L. ROBERTS, Chairman

      APPROVED BY AGENCY: May 13, 2014

      FILED WITH LRC: May 14, 2014 at 11 a.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on June 25, 2014 at 10:30 a.m. (EDT) at the Labor Cabinet, 1047 US HWY 127 South, Suite 4, Frankfort, Kentucky. Individuals interested in being heard at this hearing shall notify this agency in writing five (5) working days prior to the hearing of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to attend the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until June 30, 2014. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.

      CONTACT PERSON: Kristi Redmon, OSH Standards Specialist, Kentucky Department of Workplace Standards, 1047 U.S. HWY 127 South, Suite 4, Frankfort, Kentucky 40601, phone (502) 564-3504, fax (502) 564-1682.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact person:    Kristi Redmon

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation, in Section 1, defines terms not found in the federal standard. Section 2 requires employers to comply with the requirements of 29 C.F.R. 1910. Section 2 also updates the C.F.R. to July 2013 and establishes the amendments to 29 C.F.R. 1910.145 published in the June 13, 2013 Federal Register, Volume 78, Number 114, which was corrected and confirmed in the November 6, 2013 Federal Register, Volume 78, Number 215. The Kentucky OSH Standards Board adopted these amendments on May 6, 2014. As a result of the adoption of the aforementioned direct final rules 803 KAR 2:309 must be amended to include the adopted changes. With the June 13, 2013 direct final rule OSHA is updating its references to national consensus standards for signage. OSHA’s rule will update references to the American National Standards Institute (ANSI) standards within the rules for accident prevention signs and tags throughout the regulations. The direct final rule amendments specific to this KAR updates references to signage requirements that are incorporated within the regulations. This amendment keeps and allows employers to follow the older existing consensus signage standards or permits them to use the newer standard. Finally, this amendment updates this administrative regulation to meet KRS Chapter 13A considerations.

      (b) The necessity of this administrative regulation: The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. Since OSHA’s amendment did not impose any additional or more stringent requirements on employers than the existing standard, the Kentucky Occupational Safety and Health Standards Board was not obligated to adopt this amendment. However, to promote consistency and provide employers and employees with a clear understanding of the requirements, the Kentucky Occupational Safety and Health Standards Board adopted this amendment.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation conforms to the content of the authorizing statutes of KRS Chapter 338.051 and 338.061.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation will promote worker health and safety throughout Kentucky and keep the state program as effective as the federal program.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

      (a) How the amendment will change this existing administrative regulation: Section 2 requires employers to comply with the requirements of 29 C.F.R. 1910. Section 2 also updates the C.F.R. to July 2013 and establishes the amendments to 29 C.F.R. 1910.145 published in the June 13, 2013 Federal Register, Volume 78, Number 114, which was corrected and confirmed in the November 6, 2013 Federal Register, Volume 78, Number 215. The amendments to the regulation revise references to consensus standards incorporated by reference within OSHA standards to include the updated consensus standard. This amendment also updates this administrative regulation to meet KRS Chapter 13A considerations.

      (b) The necessity of the amendment to this administrative regulation: The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. Since OSHA’s amendment did not impose any additional or more stringent requirements on employers than the existing standard, the Kentucky Occupational Safety and Health Standards Board was not obligated to adopt this amendment. However, to promote consistency and provide employers and employees with a clear understanding of the requirements, the Kentucky Occupational Safety and Health Standards Board adopted this amendment.

      (c) How the amendment conforms to the content of the authorizing statutes: This amendment conforms to the content of the authorizing statutes of KRS Chapter 338.051 and 338.061.

      (d) How the amendment will assist in the effective administration of the statutes: This amendment maintains consistency with the federal requirements, providing all a clear understanding of the requirements. This amendment promotes worker health and safety throughout Kentucky and keeps the state program as effective as the federal program.

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This administrative regulation affects all employers in the Commonwealth engaged in general industry activities covered by KRS Chapter 338.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including: (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: This amendment changes references to consensus standards incorporated by reference within OSHA’s standards. No additional compliance duties are expected from the revisions to 1910.145.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): Because there are no additional compliance duties based on the revision, OSHA does not expect any costs associated with the amendment.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3):

Improved employee protection is likely to result from the promulgation of this amendment due to the consistency with the federal requirement, providing all a clear understanding of the requirements.

      (5) Provide an estimate of how much it will cost to implement this administrative regulation:

      (a) Initially: There will be no cost to implement this specific amendment.

      (b) On a continuing basis: There will be no costs on a continuing basis to implement this amendment to the administrative regulation.

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Current state and federal funding.

      (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: There is neither an increase in fees nor an increase in funding necessary to implement these revisions.

      (8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: This administrative regulation neither establishes any fees nor directly or indirectly increases any fees.

      (9) TIERING: Is tiering applied? Tiering is not applied. All employers covered by KRS Chapter 338 are treated equally.

 

FEDERAL MANDATE ANALYSIS COMPARISON

 

      1. Federal statute or regulation constituting the federal mandate.

Public Law 91-596, the Occupational Safety and Health Act of 1970, Section 18; 29 C.F.R. Part 1952; 29 C.F.R. Part 1953

      2. State compliance standards. The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. Since OSHA’s amendment did not impose any additional or more stringent requirements on employers than the existing standard, the Kentucky Occupational Safety and Health Standards Board was not obligated to adopt this amendment. However, to promote consistency and provide employers and employees with a clear understanding of the requirements, the Kentucky Occupational Safety and Health Standards Board adopted this amendment on May 06, 2014.

      3. Minimum or uniform standards contained in the federal mandate. The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. Since OSHA’s amendment did not impose any additional or more stringent requirements on employers than the existing standard, the Kentucky Occupational Safety and Health Standards Board was not obligated to adopt this amendment. However, to promote consistency and provide employers and employees with a clear understanding of the requirements, the Kentucky Occupational Safety and Health Standards Board adopted this amendment on May 06, 2014.

      4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? Yes, Section 3 of this administrative regulation imposes stricter requirement than those required by the federal mandate. This section places requirements on employers related to the construction of water closets and the utilization of lockout/tagout procedures. These requirements have been in effect since December 15, 1989. The amendments to the regulation do not impose stricter requirements than those required by the federal mandate.

      5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. Section 3(1)(a) and (b) of this administrative regulation differs from the federal requirement only insofar as to require that water closets be equipped with a door. Section 3(2)(a) and (b) of this administrative regulation differ from the federal requirement such that if an energy isolating device is capable of being locked out, then the employer's energy control program shall utilize lockout, whereas the federal requirement allows the use of either the lockout or tagout method. Section 3(3)(a) and (b) of this administrative regulation differ from the federal requirement such that a tagout device may be used on an energy isolating device only if the device is incapable of being locked out, whereas the federal requirement allows the use of either the lockout or tagout method. These provisions provide for greater employee protections, and have been in place since December 15, 1989. The amendments to the regulation do not impose stricter requirements than those required by the federal mandate.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? This administrative regulation will affect any unit, part, or division of local government covered by KRS 338 and engaged in general industry activities.

      2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 338.051, KRS 338.061, Public Law 91-596 84 STAT. 1590, 29 C.F.R. Parts 1952 and 1953.

      3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? None.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? None.

      (c) How much will it cost to administer this program for the first year? Because no additional compliance duties are required as a result of the revisions, no costs are associated with the amendment of this regulation.

      (d) How much will it cost to administer this program for subsequent years? There are no expected costs associated with the direct final rule updating references to a national consensus standard.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-): Unknown.

      Expenditures (+/-): Unknown.

      Other explanation: The specific amendment to this regulation is not expected to create any additional costs to the entities. No information was available specific to this state.