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The Cohen Group Newsletter - Volume 6  Issue 1, Article 2.  January 2004

Change in Permits Proposed

Joel Cohen, CIH

A Cal/OSHA Advisory Committee was formed about a year ago to change the manner in which Cal/OSHA has been handling permits. Specifically, the committee was to address Labor Code §6500 (see also CCR §341 "Permit Requirements") which states:

For those employments or places of employment that by their nature involve a substantial risk of injury, the division shall requires the issuance of a permit prior to the initiation of any practices, work, method, operation, or process of employment. The permit requirement of this section is limited to employment or places of employment that any of the following:

1) Construction of trenches or excavations that are five feet or deeper
2) Construction of any building, structure, falsework, or scaffolding more than three stories high
3) The demolition of any building, structure, falsework or scaffold more than three stories high
4) Underground use of diesel engines in work in mines and tunnels

The impetus for the change by Cal/OSHA’s was three-fold. First, Cal/OSHA wanted to overturn an Appeals Board interpretation dealing with permits, known as the Fluor Daniel Decision. We are not going to offer a legal ruling, but in the Fluor Daniel Appeal, the Cal/OSHA Appeals Board concluded the following:

· The duty to obtain a permit on a multi-employer worksite falls upon the employer most directly involved.          For example, the permit on scaffolding work over 36 feet rests with the scaffolding subcontractor and not          with contractors who may use the scaffold or the general contractor;
· Cal/OSHA can only require one of the employers at a multi-employer construction project to obtain a           permit for the ‘activity’; and,
· Once Cal/OSHA has issued a permit, it can not cite another employer at a multi-employer worksite for          failure to obtain a permit for the same activity.

Cal/OSHA wanted to broaden the scope of the standard to require subcontractors who may be performing work on a permitted activity to also obtain a permit. For example, a painting contractor (not currently required to obtain a permit) would be required to obtain a permit under the proposed rule change if it used a scaffold over 36 feet, even though it did not construct the scaffold or was responsible for its maintenance.

Second, Cal/OSHA wanted to better describe to affected contractors the information needed to obtain a permit. Lastly, Cal/OSHA wanted to establish uniformity between Cal/OSHA district offices on requirements to obtain a permit.

The committee met several times and reviewed several draft regulation changes. Cal/OSHA did not have consensus from the committee on increasing the scope of the standard essentially maintaining the Fluor Daniel decision. However, if the latest draft is approved, several changes will be made to the permitting requirements. Of particular interest involves the requirement for the "Project Administrator" to obtain a permit. A Project Administrator is defined as;

"…a prime contractor, general contractor, owner/builder, construction manager, or similar entity that has overall onsite responsibility for the planning, quality, management or completion of a project involving the erection or demolition of a structure. When a Specialty Contractor acts in the capacity of a Project Administrator, the Specialty Contractor is considered a Project Administrator..."

Under the new rules, the Project Administrator, as defined above, and the Specialty Contractor will be required to obtain a permit prior to certain work activities. The Project Administrator will be required to obtain a Project Permit, and the Specialty Contractor performing the work will be required to obtain an Annual Permit. A Project Permit is obtained at the Cal/OSHA office closest to the project. Annual Permits are obtained at the Cal/OSHA office closest to the employer’s main office or headquarters. Annual Permits and activity notifications (i.e., verbal confirmation with the District Office in which the project will take place) remain the same for falsework, scaffolds and trenches.

There are many more proposed changes which are not described above. It is unclear whether the proposal will be approved anytime soon in the wake of Governor Schwarzenegger’s executive order placing all pending regulatory action on hold, but I would expect to hear a change to the permit requirements in the ‘near future.’