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E. Abatement.
1. Period. The abatement period
shall be the shortest interval within which the employer can reasonably
be expected to correct the violation. An abatement date shall be set
forth in the citation as a specific date, not a number of days. When
the abatement period is very short (i.e., 5 working days or less),
the abatement date shall be set so as to consider a mail delay and
the agreed-upon abatement time. When abatement is witnessed by the
CO/IH during the inspection, the abatement period shall be
"corrected during inspection" on the citation.
2. Reasonable Abatement Date. The
establishment of an abatement date requires the exercise of maximum
professional judgment on the part of the CO/IH.
a. The exercise of this judgment will
generally be based on data found during the inspection and/or
whatever subsequent information gathering is deemed necessary.
In all cases, the employer shall be asked for any available
information relative to the time required to accomplish
abatement and/or any factors unique to the employer's operation
which may have an affect on the time needed for abatement.
b. All pertinent factors shall be
considered in determining what is a reasonable period. The
following considerations may be useful in arriving at a
decision.
(1) The seriousness of the alleged
violation.
(2) The number of exposed employees.
(3) The availability of needed equipment,
material, and/or personnel.
(4) The time required for delivery,
installation, modification or construction.
(5) The ability of the employer to
complete abatement himself or the need to contract for
services, parts, or equipment.
(6) Training of personnel.
3. Abatement Periods Exceeding 30
Calendar Days. Abatement periods exceeding 30 calendar days
should not normally be necessary, particularly for safety
violations. Situations may arise, however, especially for health
violations, where additional time is required (e.g., a condition
where extensive structural changes are necessary or where new
equipment or parts cannot be delivered within 30 calendar days).
When an abatement date is granted that is in excess of 30 calendar
days, an explanation for this action shall be placed in the official
file. Abatement dates in excess of 90 calendar days may be granted
by the Assistant Commissioner/Authorized Representative.
4. Verification of Abatement.
a. CO/IH Responsibilities.
(1) During the opening conference the
CO/IH shall explain the
advantages of immediate abatement to the employer. No abatement
certification/documentation is required for items that are
corrected during inspection and so noted on the citation. The CO/IH
shall appropriately mark the abatement documentation required
field on the 1B. Documentation shall be required for each willful,
repeat, failure to correct, or serious violation (with severity of
7 or above) not corrected during the inspection.
(2) The employer shall be informed of all requirements of abatement
certification and documentation during the closing conference. The
CO/IH shall advise the employer of those items which will require
certification/documentation, and the procedure for doing so. A
copy of the regulation should be provided and explained.
(3) When conducting a follow-up inspection as a result of the
employer's failure to submit abatement certification, the CO/IH
shall recommend a citation for such under the original case
number. (See Chapter VI, Violation of Regulatory Requirements for
penalty and classification information.)
(4) The CO/IH shall provide, at the employer's request, a sample
'warning tag' to use for marking moveable equipment that has been
involved in a willful, repeat, or serious violation.
b. Informal Conferee Responsibilities.
(1) Obtain the abatement certification form from the employer if
it has not already been submitted. Review the form for proper
completion. If abatement certification is not provided, or is
incorrect, instruct the employer regarding the requirements.
(2) Require documentation of abatement for all citation items
marked willful, repeat, or those serious items designated as
requiring verification.
(3) Ensure that employees were notified of abatement efforts by
posting, near the place where the violation occurred, a copy or
summary of the abatement certification. This is in addition to
the requirement for posting of citations. For willful, repeat,
or serious violations involving moveable equipment which have
not yet been abated, the employer must demonstrate that a
warning tag or a copy of the citation was affixed to the
equipment.
(4) Penalty reductions may not be offered for those items which
lack proper documentation of abatement.
c. MOSH Administrative Responsibilities.
(1) Ensure that all citations issued as a result of an inspection
are marked to indicate abatement verification requirements.
Serious citations having a high gravity rating (7 or above)
shall require documentation. Exceptions may be made by the
Assistant Commissioner/Authorized Representative to include low
gravity serious or other-than-serious citations.
(2). For those construction cases where abatement certification is
not provided by the employer a letter shall be issued. If the
employer fails to respond with the appropriate certification
within 10 calendar days, a telephone call shall be made to the
employer. If certification is not received within 10 calendar
days of the telephone call, a citation shall be generated by
Operations and mailed to the employer.
(3) For fixed-site employers who have failed to provide
certification, a letter shall be issued. If the employer fails
to respond with the appropriate certification within 10 calendar
days, a telephone call shall be made to the employer. If
certification is not received within 10 calendar days of the
telephone call, a follow-up inspection shall be scheduled per
existing procedures. A notation shall be made alerting the
assigned CO/IH that abatement certification was not provided.
5. Effect of Contest Upon Abatement
Period. In situations where an employer contests the citation item(s), the abatement period shall be considered not to have begun
until all administrative and court proceedings have been exhausted
and have resulted in affirmation of the citation and abatement
period. In situations where there is an employee contest of the
abatement date, the abatement requirements of the citation remain
unchanged.
a. Where an employer has contested only the
amount of the proposed penalty, the abatement period continues to
run unaffected by the contest.
b. Where the employer does not contest, they
must abide by the date set forth in the citation even if such
date is within the 15 working day notice of contest period.
Therefore, when the abatement period designated in the citation
is 15 working days or less and a notice of contest has not been
filed, a follow-up inspection of the worksite may be conducted
for purposes of determining whether abatement has been achieved
within the time period set forth in the citation. A failure to
abate citation may be issued on the basis of the CO/IH's
findings.
c. Where the employer has filed a notice of
contest to the initial citation within the proper contest
period, the abatement period does not begin to run until the
entry of a final order by the Commissioner. Where the hazards
cited in the original citation remain unabated and the process
has moved, an inspection may be conducted.
NOTE: If an early abatement date has been
designated in the initial citation and it is the opinion of
the CO/IH and the Assistant Commissioner/Authorized
Representative that a situation classified as imminent
danger is presented by the cited condition, appropriate
imminent danger proceedings may be initiated notwithstanding
the filing of a notice of contest by the employer.
6. Feasible Administrative, Work
Practice and Engineering Controls. Where applicable (generally
during health inspections), the CO/IH shall discuss control
methodology with the employer during the closing conference.
a. Engineering Controls.
Engineering controls consist of substitution, isolation,
ventilation and equipment modifications.
(1) Substitution may involve process
change, equipment replacement or material substitution.
(2) Isolation results in the reduction of
the hazard by providing a barrier around the material,
equipment, process or employee. This barrier may consist of
a physical separation or isolation by distance.
(3) Ventilation controls are more fully
disclosed in the IH Technical Manual.
(4) Equipment modification will result in
increased performance or change in character, such as the
application of sound absorbent material.
b. Administrative Controls. Any
procedure which significantly limits daily exposure by control
or manipulation of the work schedule or manner in which work is
performed is considered a means of administrative control. The
use of personal protective equipment is not considered a
means of administrative control.
c. Work Practice Controls. Work
practice controls are a type of administrative control by which
the employer modifies the manner in which the employee performs
assigned work. Such modification may result in a reduction of
exposure through such methods as changing work habits, improving
sanitation and hygiene practices, or making other changes in the
way the employee performs the job.
d. Feasibility. Abatement
measures required to correct a citation item are feasible when
they can be accomplished by the employer. The CO/IH, following
current directions and guidelines, shall inform the employer,
where appropriate, that a determination will be made as to
whether engineering or administrative controls are feasible.
(1) Types of Feasibility. In
general there are two types of feasibility determinations
that MOSH must make with regard to potential abatement
methods. Each will be discussed separately.
(2) Technical Feasibility.
Technical feasibility is the existence of technical know-how
as to materials and methods available or adaptable to
specific circumstances which can be applied to cited
violations with a reasonable possibility that employee
exposure to occupational hazards will be reduced.
(a) Sources which can provide
information useful in making this determination are the
following:
1 Similar situations observed
elsewhere where adequate engineering controls do, in
fact, reduce employee exposure.
2 Written source materials or
conference presentations that indicate that equipment
and designs are available to reduce employee exposure
in similar situations.
3 Studies by a qualified
consulting firm, professional engineer, industrial
hygienist, or insurance carrier that show engineering
controls are technically feasible.
4 Equipment catalogs and
suppliers that indicate engineering controls are
technically feasible and are available.
(b) MOSH's experience indicates that
feasible engineering or administrative controls exist
for most hazardous exposures.
(c) A determination that engineering
or administrative controls are not feasible shall not be
made without consultation with the Assistant
Commissioner/Authorized Representative.
(3) Economic Feasibility. Economic
feasibility means that the employer is financially able to
undertake the measures necessary to abate the citations
received. The CO/IH shall inform the employer that, although
the cost of corrective measures to be taken will generally
not be considered as a factor in the issuance of a citation,
it will be considered during an informal conference or
during settlement negotiations.
e. Reducing Employee Exposure.
Wherever feasible, engineering, administrative or work practice
controls can be instituted even though they are not sufficient
to reduce exposure to or below the permissible exposure level (PEL),
nonetheless, they may be required in conjunction with personal
protective equipment to reduce exposure to the lowest practical
level.
7. Long-term Abatement Date for
Implementation of Feasible Engineering Controls. Situations may
arise where it will be difficult to set a specific abatement date
when the citation is originally issued, such as where an employer
chooses to implement feasible engineering controls and there is
uncertainty as to when the necessary equipment may be available. The
CO/IH shall discuss the problem with the employer at the closing
conference and, in appropriate cases, shall encourage the employer
to seek an informal conference with the Assistant
Commissioner/Authorized Representative to discuss when further
information will be available.
a. Final Abatement Date. The CO/IH, and MOSH Supervisor shall make the best judgment possible
as to a reasonable abatement date. A specific date for final
abatement shall, in all cases, be included in the citation. The
employer shall not be permitted to propose an abatement plan
setting his own abatement dates. If necessary, an appropriate
petition to modify the abatement date may be submitted later by
the employer to the Assistant Commissioner/Authorized
Representative.
b. Employer Abatement Plan.
(1) If the employer wishes to submit an
abatement plan for consideration by the Assistant
Commissioner/Authorized Representative in setting the
citation abatement date:
(a) This fact shall be noted in the
file,
(b) The issuance of the citation may
be delayed for a brief period, and
(c) The citations must still be
issued with "reasonable promptness" within the
meaning of Section 5-212 of the Act.
(2) If it appears that the citation might
be delayed beyond 6 months from the date of alleged
violation, the citation shall be issued prior to full
consideration of the plan; but the employer shall be given
the opportunity to provide as much input as practicable in
the setting of the abatement period.
(3) Whether or not a plan is submitted
before issuing a citation, an abatement plan submission may
be provided for in the citation in addition to a final
abatement date.
(4) When the plan is submitted, if the
engineering or administrative corrections proposed by the
employer appear to be all that are feasible based on the
current technology, this fact may be stipulated and agreed
to between MOSH and the employer.
(a) Such an agreement shall permit
assurances in advance to the employer that the
establishment will be in compliance where the provisions
of the plan are fully implemented.
(b) It shall be made clear in the
agreement that the employer is not relieved from
instituting further engineering or administrative
controls as they become technically feasible, if it is
likely that such further controls will lower employee
exposure when exposure without personal protective
equipment remains over the PEL.
(c) In all situations where an
agreement is proposed, the advice of the Office of the
Attorney General shall be sought on the legal
implications.
(d) If an agreement is acceptable, an
Assistant Attorney General shall be requested to draft
the agreement.
8. Multi-step Abatement. The
question of writing citations with multi-step abatement periods will
normally arise only in those situations in which ultimate abatement
will require the implementation of feasible engineering methods, as
distinguished from feasible administrative methods or the use of
personal protective equipment. Multi-step abatements shall be based
on the conditions cited and the feasibility considerations.
a. General. A step-by-step
program for abatement provides a tool for the CO/IH to monitor
abatement progress after a citation has been issued, for the
employer to make abatement decisions and to set up schedules
efficiently concerning the corrective actions, and for the
employee to understand the changes being made to the working
environment.
(1) Where a violation of the noise
setting or an air contaminant standard has been cited, the
employer has the option of abating by feasible engineering
and/or administrative controls. In rare cases, as discussed
below, abatement may be accomplished through the use of
personal protective equipment.
(2) The procedures discussed below may
have applicability to the setting of multi-step abatement
periods. The employer's option to use feasible engineering
and/or administrative controls must be kept in mind when
determining an appropriate abatement period.
b. Interim and Long-Range Abatement.
It will often be found that the cited employer has no effective
personal protection program and, consequently, in addition to
long-term abatement through the use of feasible administrative
or engineering controls, proper abatement will include a
short-term requirement that appropriate personal protective
equipment be provided.
(1) The Assistant Commissioner/Authorized
Representative, in issuing the citation, shall set a
short-range abatement date for the employer to give prompt
temporary protection to employees pending formulation and
implementation of long-range feasible engineering and/or
administrative controls. Short-range administrative controls
and personal protective equipment shall be specified in the
citation as the interim protection. For example, the
abatement column of the citation might read,
"Appropriate personal protective equipment shall be
issued to all affected employees by (specify a date
approximately 5 days from the estimated date of receipt of
the citation). Final responsibility to ensure the use of the
protective equipment rests with the employer."
(2) If it has been determined that the
employer will use engineering controls to achieve abatement,
a specific date shall be set by which the employer can
reasonably be expected to implement engineering controls
including enough time for the development of engineering
plans and designs for such controls, as well as necessary
construction or installation time.
(3) If at a later time it is found that
the final abatement date cannot be met, the employer may
file with the Assistant Commissioner/Authorized
Representative an appropriate petition for modification of
abatement date.
c. Considerations. In providing
for multi-step abatement the following factors shall be taken
into consideration:
(1) It is MOSH's position that, in
general, engineering controls afford the best protection to
employees, and the employer should be encouraged to utilize
such controls in all instances to the extent feasible.
Administrative controls are the next best alternative to
engineering controls as a long-range abatement solution. The
noise and air contaminant standards require the use, at the
employer's option, of either engineering or administrative
controls if such controls are feasible. If there are no
feasible administrative controls or if the employer chooses
not to use them, feasible engineering controls must be used.
NOTE: Employee rotation is an
administrative control that MOSH prohibits as a method
of complying with the permissible exposure limits of
carcinogens.
(2) When an employer asserts that an
unbearable economic burden would result from implementation
of engineering or administrative controls, the employer
shall present evidence in support thereof to the Assistant
Commissioner/Authorized Representative by way of an informal
conference or settlement negotiation.
(3) MOSH may decide not to require
engineering controls for abatement but to allow the use of
PPE to abate the violation, at least until such time as
engineering controls become a less significant burden for
the company when the following conditions are met:
(a) If significant reconstruction of
a single establishment involving a capital expenditure
which would seriously jeopardize the financial condition
of the company is the only method whereby the employer
could achieve effective engineering controls;
(b) If there are no feasible
administrative or work practice controls; and
(c) If adequate personal protective
equipment or devices are available.
(4) Proper evaluation of the economic
feasibility of engineering or administrative controls does
not require the MOSH Supervisor to understand all available
economic information before deciding that the issue of
potential economic infeasibility is involved. It is
sufficient that the employer produce evidence of economic
hardship adequate to convince the Assistant
Commissioner/Authorized Representative that abatement by
such controls would involve considerable financial
difficulty.
(5) Whenever an employer complains that
an unbearable economic burden would result from
implementation of engineering or administrative controls,
the MOSH Supervisor shall request evidence from the
employer.
(a) Such evidence shall address the
reasonableness of the estimated costs of engineering or
administrative controls, including installation,
maintenance, and lost productivity, whenever applicable,
as well as the progress of the employer compared to that
of the industry in installing such controls.
(b) The relative costs of engineering
or administrative controls versus PPE may also be
provided. Such comparisons shall take replacement costs
into account.
(6) The Assistant Commissioner/Authorized
Representative shall determine whether engineering controls
are economically infeasible.
(7) In those limited situations where
there are no feasible engineering or administrative
controls, full abatement can be allowed by PPE.
9. Petitions for Modification of
Abatement Date (PMA). COMAR 09.12.20.20 governs the disposition
of petitions for modification of abatement (PMAs). If the employer
requests additional time after the 15 working day contest period has
passed, the following procedures for PMAs are to be observed:
a. Filing Date. A PMA shall be
filed with the Assistant Commissioner/Authorized Representative
no later than the close of the next working day following the
date on which abatement was originally required. A late petition
shall be accompanied by the employer's statement of exceptional
circumstances explaining the delay.
b. Requirements for a PMA. If a
letter is received from an employer requesting a modification of
abatement, the Assistant Commissioner/Authorized Representative
shall determine that all of the following requirements are set
forth in detail in the employer's petition:
(1) The actions the employer has taken in
an effort to achieve compliance during the prescribed
abatement period and the date of each action;
(2) The specific additional abatement
time necessary in order to achieve compliance;
(3) The reason the additional time is
necessary, including the:
(a) Unavailability of professional or
technical personnel, or materials and equipment; or
(b) Inability to complete, by the
original abatement date, necessary construction or
alteration of facilities;
(4) The available interim steps being
taken to safeguard the employees against the cited hazard
during the abatement period;
(5) A certification that a copy of the
PMA has been:
(a) Posted; and
(b) If appropriate, served on the
authorized representative of affected employees; and
(6) A certification of the date upon
which the petition was posted and service was made.
c. Failure to Meet All Requirements.
If the employer's letter does not meet all the above
requirements, a letter spelling out these requirements and
identifying the missing elements shall be sent to the employer
within 5 working days, specifying a reasonable amount of time
for the employer to return the completed PMA. If no response is
received or if the information returned is still insufficient, a
second attempt shall be made by telephone. The employer shall be
informed of the consequences of a failure to respond adequately;
namely, that the PMA may not be granted and that upon follow-up
inspection the employer may, consequently, be found in violation
for failure to correct.
d. Abatement Efforts. The
Assistant Commissioner/Authorized Representative shall take the
steps necessary to ensure that the employer is making a good
faith attempt to bring about abatement as expeditiously as
possible.
(1) Where engineering controls have been
cited or required for abatement, as a service to the
employer, a monitoring inspection normally shall be
scheduled to evaluate the employer's abatement efforts and
to provide any technical assistance.
(2) Where no engineering controls have
been cited but more time is needed for other reasons not
requiring assistance from MOSH, such as delays in receiving
equipment, a monitoring visit shall not normally be
scheduled.
(3) If a monitoring inspection is to be
conducted, it shall be scheduled as soon as possible after
the initial contact with the employer and shall not be
delayed until the actual receipt of the PMA.
(4) The CO/IH shall decide whether
sampling is necessary and, if so, to what extent (i.e., spot
sampling, short-term sampling, or full-shift sampling).
(5) The CO/IH shall include pertinent
findings relative to the inspection in the narrative along
with the recommendations for action. To reach a valid
conclusion when recommending action, it is important to have
all the relevant factors available in an organized manner.
The following factors shall be considered:
(a) Progress reports indicating the
employer's good faith, effective use of technical
expertise and/or management skills, accuracy of the
information, and timeliness of progress reports.
(b) The employer's assessment of the
hazards by surveys performed by in-house personnel,
consultants and/or the employer's insurance agency.
(c) Documentation collected including
verification of progress reports, successes and/or
failures, and an assessment of current exposure of the
employees.
(d) Employer and employee interviews.
(e) Specific reasons for requesting
additional time including specific plans for controlling
exposure and specific calendar dates.
(f) Personal protective equipment.
(g) Medical programs.
(h) Emergency action plans.
NOTE: Not all these factors will be
pertinent in every PMA review. Neither are all the
factors which must be considered in every case listed.
e. MOSH's Position on the PMA.
Within 15 working days following the receipt of a PMA meeting
the legal requirements:
(1) The Assistant Commissioner/Authorized Representative shall
confirm receipt to the requesting party, indicating the status
and pending approval.
(2) The Assistant Commissioner/Authorized Representative shall
determine MOSH's position relevant to the request and notify the
employer and the employee representative by letter.
(a) If an employee or employer
representative objects to extension of the abatement
date:
1 All relevant documentation
shall be sent to the Assistant Commissioner/Authorized
Representative. Confirmation of this action shall be
sent to the objecting party as soon as it is
accomplished.
2 Notification of the employee
objection shall be sent to the employer on the same
day that the case file is forwarded to the Assistant
Commissioner/Authorized Representative.
(b) If the Assistant
Commissioner/Authorized Representative opposes the PMA
both the employer and the employee representatives shall
be notified of the objection by letter. The letter shall
be issued on the same date of the objection by the
Assistant Commissioner/Authorized Representative.
f. Employee Objections.
Affected employees or their representatives may file an
objection to an employer's PMA, in writing, with the Assistant
Commissioner/Authorized Representative, within 10 working days
of the date of posting of the PMA by the employer or its service
upon an authorized employee representative. Failure to file such
written objection within the 10 working day period constitutes a
waiver of any further right to object to the PMA.
Continued
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