|
F.
Employer
Abatement Assistance.
1. Policy. CO/IHs shall offer suggestions and explanations
during the walk around as to how workplace hazards might be abated.
The information provided should enable the employer to develop
acceptable abatement methods or to seek appropriate professional
assistance. This is done to encourage and to facilitate expeditious
abatement of hazards. In addition, this policy reinforces MOSH's
goal of fostering cooperation between the agency and employers for
the purpose of reducing workplace hazards.
2. Type of Assistance. The type of assistance provided to the
employer will depend on the needs of the employer and the complexity
of the hazard. Where standards specify abatement methods, such as
guarding of belts and pulleys, the CO/IH shall, as a minimum, ensure
that the employer is aware of the specifications. For more complex
problems, the CO/IH shall offer general information on types of
controls or procedures commonly used to abate the hazard.
Alternative methods should be provided whenever possible.
3. Disclaimers. The employer shall be informed that:
a.
The employer is not limited to the abatement methods suggested
by MOSH;
b.
The methods explained are general and may not be effective in
all cases; and
c.
The employer is responsible for selecting and carrying out an
appropriate abatement method.
4. Procedures. Information provided by MOSH to assist the
employer in identifying possible methods of abatement for alleged
violations shall be provided to the employer as it becomes available
or necessary. The issuance of citations shall not be delayed.
a. Assistance Provided During an Inspection. CO/IHs shall
utilize their knowledge and experience in providing the employer
with abatement suggestions during the inspection.
(1)
Before leaving an inspection site, CO/IHs shall determine
whether the employer wishes to discuss possible means of
abating apparent violations. Such discussion should be
initiated during the walk around when an apparent violation
is noted. The discussion may continue at the closing
conference.
(2) CO/IHs shall briefly document abatement information provided
to the employer or the employer's negative response to the
offer of assistance on the appropriate forms.
b. Assistance Provided After An Inspection. If a CO/IH
cannot provide assistance during an inspection or if the
employer has abatement questions after the inspection has been
completed, the employer may request an informal conference for
the purpose of discussing methods of abatement.
G.
Informal
Conferences.
1. General. Pursuant to COMAR 09.12.20.11A, an affected
employer, employee or employee representative may request an
informal conference.
2. Procedures. Whenever an informal conference is requested
either by the employer or by the employee or employee
representative, both parties shall be afforded the opportunity to
participate fully. If the requesting party objects to the attendance
of the other party, separate informal conferences shall be held.
During the conduct of a joint informal conference, separate or
private discussions shall be permitted if either party so requests.
a. Notification of Participants. After an informal
conference has been scheduled, it is MOSH's responsibility to
ensure that all parties are notified of the date and time and
place of the informal conference. The affected parties shall be
notified in writing and, if possible, by telephone. This
notification shall be documented in the case file.
b. Participation by MOSH Officials.
(1)
At the discretion of the conferee and/or MOSH Supervisor,
the CO/IH who conducted the inspection may participate in
the informal conference.
(2)
A second MOSH staff member (compliance officer, MOSH
Supervisor, or other assigned person) shall attend
all informal conferences in the following situations:
(a)
Cases which involve total proposed penalties of $100,000
or more.
(b)
Cases which are so lengthy or complex that an additional
individual is needed to provide assistance to the
principal MOSH representative.
c. Telephone Conferences. The agency believes that better
settlements can be arrived at by means of personal conferences
between the MOSH Supervisor or MOSH representative and the
employer; consequently, informal conferences shall normally not
be held by telephone.
(1)
When circumstances exist (e.g., the employer or the employee
representatives would be required to travel long distances,
there is insufficient time remaining for travel, or only the
penalty amount is likely to be at issue) which the MOSH
Supervisor believes will justify a telephone conference,
such circumstances shall be documented in the conference
memorandum.
(2)
If a telephone conference is held, all of the procedures
regarding notification of affected parties, conduct of the
conference, documentation of discussions, and
decision-making, shall be followed as far as practicable.
(3)
The reasons justifying any departures from those procedures
shall be explained in the conference memorandum.
d. Conduct of the Informal Conference. The MOSH Supervisor
or a designee shall conduct the informal conference in
accordance with the following guidelines:
(1) Opening Remarks. The opening remarks shall include
discussions of the following:
(a)
Confirmation of posting of Notice of Conference,
(b)
Purpose of the informal conference,
(c)
The fact that recommendations from the MOSH
representative are recommendations only, and are not
binding on MOSH,
(d)
Rights of participants,
(e)
Contest rights and time restraints,
(f)
Limitations, if any,
(g)
Settlements of cases,
(h)
Other relevant information.
(2) Conference. The conference shall include discussion
of any relevant matters including citations, safety and
health programs, conduct of the inspection, means of
correction, and penalties, in accordance with the following:
(a)
All parties shall be encouraged to participate fully so
their views can be properly considered.
(b)
Issues discussed shall be fully considered before making
a determination regarding possible settlement of the
case in accordance with current MOSH procedures.
(c)
MOSH representatives shall make every effort to assist
both the employer and the affected employees and/or
their representatives to improve safety and health in
the workplace.
(d)
Relevant notes of the discussion shall be made and
placed in the case file.
e. Decisions. At the termination of the informal conference,
the MOSH Supervisor or MOSH representative shall make a decision
as to what action is appropriate in the light of the facts
brought up during the conference. A written summary shall be
prepared and submitted to the Assistant Commissioner /Authorized
Representative with a recommendation. The Assistant
Commissioner/Authorized Representative will make the final
decision.
(1)
When preparing to make a recommendation to amend a citation,
the MOSH Supervisor shall make a reasonable effort to obtain
the views of other involved parties.
(2)
Appropriate changes to citations shall be made in accordance
with current MOSH procedures.
(3)
Affected parties shall be notified in writing by the
Assistant Commissioner/ Authorized Representative of the
results and/or decisions of the informal conference.
(4)
Copies of results and/or decisions shall be made available
upon request.
(5)
For more detail on settlement agreements, see Chapter V.
H.
Follow-up
Inspections.
1. Inspection Procedures. The primary purpose of a follow-up
inspection is to determine if the previously cited violations have
been corrected. Normally, there will be no additional inspection
activity unless, in the judgment of the CO/IH there are serious
safety or health conditions observed in the workplace which warrant
further inspection activity. In such a case, the MOSH Supervisor
shall be consulted.
2. Failure to Abate. A failure to abate exists when the employer
has not corrected a violation for which a citation has been issued
or has not complied with interim measures involved in a multi-step
abatement within the time given.
a. Initial Follow-up. The initial follow-up is the first
follow-up inspection after issuance of the citation.
(1)
If an employer has failed to abate a violation, the CO/IH
shall inform the employer that the employer is subject to a
Notification of Failure to Correct an Alleged Violation and
to proposed additional daily penalties while such failure or
violation continues.
(2)
Failure to comply with enforceable interim abatement dates
involving multi-step abatement shall be subject to a
Notification of Failure to Correct an Alleged Violation.
(3)
Where the employer has implemented some controls, but other
technology was available at the time of violation which
would have brought the levels of airborne concentrations or
noise to within the regulatory requirements, a Notification
of Failure to Correct Alleged Violation normally shall be
issued. If the employer has exhibited good faith, a PMA for
extenuating circumstances shall be considered.
(4)
Where failure to abate by means of engineering controls is
found to be due to technical infeasibility, no failure to
correct notice shall be issued; however, if proper
administrative controls, work practices or personal
protective equipment are not utilized, a Notification of
Failure to Correct Alleged Violation shall be issued. A
determination of technical infeasibility shall not be made
without consultation with the MOSH Supervisor.
(5)
There may be times during the initial follow-up when,
because of an employer's flagrant disregard of a citation or
item on a citation, or other factors, it would be
appropriate to bring action for enforcement under Section
5-215 of the Act. In such cases the MOSH Supervisor shall be
contacted immediately, and shall confer with the Office of
the Assistant Commissioner.
b. Second Follow-up. Any subsequent follow-up after the
initial follow-up dealing with the same violations is a second
follow-up.
(1)
After the Notification of Failure to Correct an Alleged
Violation has been issued, the Assistant
Commissioner/Authorized Representative shall wait 15 working
days (the period of contest) before conducting a second
follow-up. If the employer contests the proposed additional
daily penalties, a follow-up inspection shall still be
scheduled to ensure correction of the original violation.
(2)
If a second follow-up inspection reveals the employer still
has not corrected the original violations, additional daily
penalties will again be proposed. If a third follow-up
reveals the items have not been corrected, the MOSH
Supervisor shall immediately contact the Assistant
Commissioner/Authorized Representative, in writing,
detailing the circumstances so the matter can be referred to
the Attorney General for appropriate action under Section
5-215, as the Assistant Commissioner/Authorized
Representative may deem necessary.
3. Reports. The "comments" section of the OSHA-1A
shall be used to document the corrective actions taken to abate
violations previously cited. If violation items were appropriately
grouped in the original case file, they may be grouped in the
follow-up and documented on the OSHA-1A or its supplements.
a. Proper Documentation. The correction circumstances
observed by the CO/IH shall be specifically described in the
OSHA-1A or its supplements, including any applicable dimensions,
materials, specifications, personal protective equipment,
engineering controls, measurements or readings, or other
conditions. Brief terms such as "corrected" or
"in compliance" will not be accepted as proper
documentation for violations having been corrected. When
appropriate this written description shall be supplemented by a
photograph and/or videotape to illustrate correction
circumstances. An inclusion of an applicable employer statement
concerning correction, if appropriate, may be included.
b. Sampling. The CO/IH conducting a follow-up inspection to
determine compliance with violations of air contaminants and
noise standards shall decide whether sampling is necessary, and
if so, what kind (i.e., spot sampling, short-term sampling or
full-shift sampling). If there is reasonable probability of an
issuance of a Notification of Failure to Correct Alleged
Violation, full-shift sampling is required.
c. Failure to Abate. In the event that any item has not been
abated, complete documentation shall be included on appropriate
forms.
4. Follow-up Files. The follow-up inspection report
identification case number shall be included on the case file jacket
of the original (parent) case file.
I.
Conduct
of Monitoring Inspection.
1. General. An inspection shall be classified as a monitoring
inspection when a safety/health inspection is conducted for one or
more of the following purposes:
a.
To determine the progress an employer is making toward final
correction.
b.
To ensure that the target dates of a multi-step abatement plan
are being met.
c.
To ensure that an employer's petition for the modification of
abatement dates is made in true and good faith and that the
employer has attempted to implement necessary controls as
expeditiously as possible.
d.
To ensure that the employees are being properly protected until
final controls are implemented.
2. Procedures. Monitoring inspections shall be conducted in the
same manner as follow-up inspections.
3. Assignment.
The Assistant Commissioner/Authorized Representative shall determine which
monitoring inspections will be conducted and will assign them to the
appropriate safety or health MOSH Supervisor.
|
