Title of Regulation: 16VAC25-40. Standard for Boiler and Pressure Vessel Operator Certification (amending 16VAC25-40-10, 16VAC25-40-20, 16VAC25-40-30).

Statutory Authority: §§ 15.2-910 and 40.1-51.6 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 31, 2013.

Effective Date: August 15, 2013.

Agency Contact: Ed Hilton, Director, Boiler Safety Compliance, Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-3169, FAX (804) 371-2324, TTY (804) 786-2376, or email ed.hilton@doli.virginia.gov.

Basis: The Safety and Health Codes Board is authorized by § 40.1-51.6 of the Code of Virginia to "...formulate definitions, rules, regulations and standards which shall be designed for the protection of human life and property from the unsafe or dangerous construction, installation, inspection, operation, maintenance and repair of boilers and pressure vessels in this Commonwealth."

The Safety and Health Codes Board is authorized by § 15.2-910 of the Code of Virginia to "...establish standards to be used in determining an applicant's ability, proficiency and qualifications."

Purpose: The purpose of this regulatory action is to delete requirements in subsection C of 16VAC25-40-30, necessitating actions by the Commonwealth's chief boiler inspector to provide or evaluate the written examination for boiler operator certification for any locality in the Commonwealth because no such requests to the department have ever been made by any county, city, or town.

Rationale for Using Fast-Track Process: The Boiler Safety Compliance Program of the Department of Labor and Industry sought the repeal of the requirement that it provide and evaluate written examinations referenced in subsection C of 16VAC25-40-30 since the department has never been asked to provide or evaluate such an examination. Subsection C has never been implemented by any locality. Therefore, it has been determined by the department to be of no value in protecting the public health, safety, or welfare.

Amending the regulation is noncontroversial and no individual or entity will be adversely affected.

Substance: This regulatory action:

1. In 16VAC25-40-30 C deletes the phrase "provided and evaluated by the chief boiler inspector of the Commonwealth, or his designee, and be administered by the agent or board." The sentence now reads: "The written examination for boiler operator certification shall be administered by the agent or board."

2. In 16VAC25-40-30 I deletes the term "receive and" preceding "evaluate" to be consistent with the changes made in subsection C. Subsection I now will read: "The agent or board shall evaluate the applications and examinations and issue Certificates of Competency to applicants successfully completing the examination process."

3. In 16VAC25-40-30 L for continuity with the revisions proposed for subsection C, (i) deletes the term "receipt" preceding "examination"; (ii) inserts the term "date" following "following the"; (iii) inserts "the" preceding "examination"; and (iv) deletes the phrase "results from the chief boiler inspector of the Commonwealth or his designee" following "the examination." Subsection L now will read: "Applicants shall be notified in writing by the agent or board of the results of their application within 30 days following the date of the examination."

4. In 16VAC25-40-30 N substitutes the term "Competency" for "competency" following "Certificates of" to more accurately reflect the reference; and removes the term "the department and issued by" also for continuity with subsection C. Subsection N now will read: "Certificates of Competency shall be provided by the adopting jurisdiction at a frequency established by the adopting jurisdiction."

5. In 16VAC25-40-30 O substitutes the term "Certificate of Competency" for "certificate of competency" to more accurately reflect this reference.

6. In 16VAC25-40-10 deletes the unnecessary definitions of terms "Commissioner" and "Department" for continuity with revisions to subsection C of 16VAC25-40-30.

7. In 16VAC25-40-20 D substitutes the term "board" for "Office of Boiler and Pressure Vessel Safety in the Virginia Department of Labor and Industry" following "amendment to the."

Issues: The department does not anticipate any advantages or disadvantages to Virginia employers, Virginia employees, or self-employed individuals, with the adoption of these changes.

The department does not anticipate any advantages or disadvantages to the department or the Commonwealth with the adoption of these changes. This regulation requiring the chief boiler inspector of the Commonwealth or his designee to provide and evaluate the written examination for boiler operator in 16VAC25-40-30 C is being repealed because the department has never been requested to provide and evaluate written examinations for boiler operator certification pursuant to this subsection nor has this subsection ever been implemented by any locality.

The department believes that there are no disadvantages to the public or the Commonwealth with the adoption of these changes as these services have never been requested or utilized.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Safety and Health Codes Board (Board) proposes to amend its regulations that govern certification for boiler and pressure vessel operators by making several clarifying changes to regulatory text and by eliminating a requirement that the chief boiler inspector or his designee provide and evaluate a written certification examination for boiler and pressure vessel operators who maintain boilers in any locality in the Commonwealth.

Result of Analysis. There is insufficient information to ascertain whether benefits will outweigh costs for these proposed regulations.

Estimated Economic Impact. Current regulations require the chief boiler inspector or his designee to provide and evaluate a written examination for boiler and pressure vessel operators. Board staff reports that this regulatory requirement has been in place since 1993 but that no locality has ever actually implemented it by asking the Department of Labor and Industry (DOLI) to provide or evaluate the required written examination. As a consequence, the Board now proposes to eliminate this requirement. Board staff reports that, absent this requirement, localities would provide an examination should they ever decide to implement 16VAC25-40-30 C. This change will increase uncertainty for boiler operators because regulations will no longer state who is responsible for providing and evaluating a written certification exam. Any localities that choose to implement 16VAC25-40-30 C in the future would also incur costs for providing and evaluating a written exam.

Businesses and Entities Affected. Board staff reports that affected entities include Virginia localities and any boiler operators that operate/maintain boilers in any county, city or town in the Commonwealth. Board staff further reports that between several dozen and several hundred entities are subject to these regulations and, therefore, will be affected by these proposed regulatory changes.

Localities Particularly Affected. Localities that employ boiler and pressure vessel operators will be particularly affected by these proposed regulations.

Projected Impact on Employment. This proposed regulatory action is unlikely to have any effect on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. No small business is likely to incur any additional expense on account of these regulatory changes.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business is likely to incur any additional expense on account of these regulatory changes.

Real Estate Development Costs. This regulatory action will likely have little effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The purpose of this regulatory action is to delete requirements in the Standard for Boiler and Pressure Vessel Operator Certification, 16VAC25-40, requiring actions by the Department of Labor and Industry that have never been requested by any county, city, or town. The department anticipates that no entities or businesses will be affected by this amendment and that this regulatory action will result in no economic impacts, costs, or other effects on Virginia localities, employers, employees, the department, real estate development costs, or the use and value of private property.

Summary:

This regulatory action discontinues the requirement in 16VAC25-40-30 that the Department of Labor and Industry provide and evaluate the written examination for boiler operator certification for local governments. Since the enactment of the regulation, no locality has ever requested the department to provide and evaluate any such written examinations for boiler operators who would be covered under this regulation. This action is in response to the Governor's Regulatory Reform Initiative.

16VAC25-40-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Accredited" means accredited by an accrediting body recognized by the U.S. Department of Education.

"Act" refers to § 15.2-910 of the Code of Virginia.

"Agent" means the agent established by a county, city or town, under local ordinance to examine and determine an applicant's qualifications for certification under the Act.

"Approved" means acceptable to the Commissioner of Labor and Industry.

"Board" means the board established by a county, city or town, under local ordinance to examine and determine an applicant's qualifications for certification under the Act.

"Boiler" means a closed vessel in which water is heated, steam is generated, steam is superheated, or any combination of them, under pressure or vacuum for use externally to itself by the direct application of heat. The term "boiler" shall include fired units for heating or vaporizing liquids other than water where these units are separate from processing systems and are complete within themselves.

"Boiler operator" means an individual who would normally be the senior operational and maintenance person at the site of the boiler who would be expected to react to changing operational and maintenance situations.

"Certificate of Competency" means a certificate issued to a person who has passed the prescribed examination as provided in subsection C of 16VAC25-40-30.

"Commissioner" means the Commissioner of the Department of Labor and Industry.

"Department" means the Department of Labor and Industry.

"Heating plant" means a heating system containing a low pressure steam or hot water boiler used to generate energy for use in heating buildings, potable water or processing.

"High pressure boiler" means a steam boiler where the safety valves are set to relieve at a pressure of more than 15 pounds per square inch.

"Horsepower rating of a boiler" for the purpose of this chapter shall be the largest rating determined in accordance with each of the following (i) by dividing the square feet of boiler heating surface by 10; or (ii) the manufacturer's rated output in horsepower; or (iii) where the manufacturer's rated output is expressed in terms other than horsepower, such rating converted into horsepower by the use of one of the factors as defined in this chapter.

"Hot water heating boiler" means any hot water boiler operated at pressures not exceeding 160 psi or temperatures not exceeding 250°F.

"Jurisdiction" as referred to in this standard shall mean counties, cities and towns in the Commonwealth.

"Low pressure boiler" means a steam boiler where the safety valves are set to relieve at a pressure of 15 pounds per square inch or less and hot water heating boilers.

"Pressure vessel" as referred to in this chapter shall be any vessel in which (i) the pressure is obtained from an external source, or by an internal or external application of heat; and (ii) is an auxiliary to a boiler plant.

"One boiler horsepower" shall be defined as (i) the evaporation of 34.5 pounds of water per hour from and at 212°F; or (ii) 33475 British Thermal Units (B.T.U.) per hour; or (iii) 140 square feet of steam radiation; or (iv) 224 square feet of water radiation at 150°F; or (v) 10 kilowatt per hour electrical input to boiler.

"Steam plant" means a system containing a high pressure boiler to generate energy for use in heating, power generation or processing operations.

16VAC25-40-20. Authority and application.

A. This chapter is established in accordance with § 15.2-910 of the Code of Virginia for use by counties, cities and towns for the certification of boiler and pressure vessel operators.

B. This chapter shall apply to any person who engages in, or offers to engage in, for the general public for compensation, the operation or maintenance of a boiler or pressure vessel. All jurisdictions who choose to regulate the certification of boiler and pressure vessel operators shall utilize this standard for control of certification within the Commonwealth.

C. This chapter shall not affect licensing or inspection under any other provision of the Code of Virginia.

D. Localities shall forward a copy of their certification ordinance upon adoption or amendment to the Office of Boiler and Pressure Vessel Safety in the Virginia Department of Labor and Industry board.

E. The Department of Labor and Industry will provide advisory opinions concerning interpretation and application of this chapter upon request.

F. This chapter shall not apply to any person who, in his capacity as an employee, is engaged in the operation or maintenance of a boiler or pressure vessel owned by his employer.

16VAC25-40-30. Certification.

A. Boiler operators and pressure vessel operators covered under this chapter shall be duly certified in the proper class by the examining agent or board of the jurisdiction adopting a boiler certification ordinance.

B. The agent or board shall be appointed by the adopting jurisdiction. Any such agent or board shall provide for the examination of applicants for boiler and pressure vessel operator certification no less than 12 times per year.

C. The written examination for boiler operator certification shall be provided and evaluated by the chief boiler inspector of the Commonwealth, or his designee, and be administered by the agent or board.

Such examination shall include questions, diagrams and practical tests of sufficient scope to demonstrate that the applicant has the necessary qualifications, experience and knowledge of the basic principles involved in operation, care and maintenance to operate safely the boiler and auxiliary pressure vessels of the class for which an application for certification has been made.

Specific competencies shall include, but not be limited to the following:

1. Principles of boiler design;

2. General operation practices;

3. Effects of water treatment;

4. Inspection requirements; and

5. Emergency shutdown procedures.

D. The class of certification and the training and experience requirements are as follows:

1. Class-1 Boiler Operator - To take charge of and operate or maintain any steam plant.

Requirements:

Two years experience as an operator of high pressure boiler beyond that experience which is required for a Class-2 operator.

Substitution of a degree in mechanical engineering from an accredited college, university or school of technology or successful completion of an approved boiler operator apprenticeship program or a U.S. military training course may be permitted for one year of the required experience.

2. Class-2 Boiler Operator - To take charge of and operate any of the following:

a. A high pressure steam plant where the total horsepower rating of the boiler is not in excess of 500 boiler horsepower, or a combination of high pressure boilers and heating boilers and auxiliary pressure vessels; or

b. A heating plant having low pressure boilers with a pump return with no limitation on total capacity; or

c. A heating plant having hot water heating boilers, with no limitation on total capacity.

Requirements:

At least two years experience as a boiler operator or an assistant boiler operator, fireman or oiler, in a high pressure steam plant of more than 75 boiler horsepower; or

Four years of such experience in a plant of not less than 50 boiler horsepower.

Substitution of a degree in mechanical engineering from an accredited college, university or school of technology or successful completion of any approved boiler operator apprenticeship program or a U.S. military training course may be permitted for one year of the required experience.

E. In cases where a boiler operator has been operating a plant for a period of at least one year prior to the effective date of implementation of this chapter by the adopting jurisdiction, or where the classification of such a boiler operator has been changed by this chapter, such an operator may be conditionally certified for a three-year period by the agent or board in order that the operator may continue operation of that plant and no other. A suitable endorsement should be noted on his certification documents.

F. Application for examination in the class of certification shall be made on an approved form provided by the agent or board of the adopting jurisdiction. A notarized statement of education, training and experience in operating steam boilers or low pressure boiler plants and auxiliary pressure vessels shall be provided with the application.

G. No certification shall be required of an individual holding a valid license or certificate, under Chapter 3.1 (§ 40.1-51.5 et. seq.) of Title 40.1 of the Code of Virginia, or certified under this chapter by another jurisdiction. An applicant who holds a valid certificate or license from any state or local government outside the Commonwealth may be certified without examination upon the presentation of the following to the agent or board (i) a valid certificate or license from that authority and (ii) the certification or licensure requirements of that authority; provided that the authority's requirements for certification or licensure are equal to or greater than those established under this chapter.

H. Applicants must successfully complete an examination and the other requirements to be deemed certified, except as indicated in subsection G above.

I. The agent or board shall receive and evaluate the applications and examinations and issue certificates of competency to applicants successfully completing the examination process.

J. The agent or board of the adopting jurisdiction may permit an applicant to sit for a written examination at a lower class than that for which the applicant has applied, if it is determined that an applicant lacks either experience or requisite knowledge of the class applied for.

K. Applicants who fail to pass the required examination may not be reexamined until 90 days after the date of the last examination.

L. Applicants shall be notified in writing by the agent or board of the results of their application within 30 days following the receipt date of the examination results from the chief boiler inspector of the Commonwealth or his designee.

M. The certification fee shall be established by the adopting jurisdiction.

N. Certificates of competency Competency shall be provided by the department and issued by the adopting jurisdiction at a frequency established by the adopting jurisdiction.

O. When a certificate of competency Certificate of Competency has been lost or destroyed, the owner shall present a notarized statement to that effect and pay a processing charge established by that jurisdiction for issuance of a duplicate certificate.