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A. General.
1. Definition.
"Imminent Danger" means a condition or practice at a place
of employment that creates an imminent danger that reasonably could
be expected to cause death or serious physical harm to an employee.
2. Requirements.
The following conditions must be met before a hazard becomes an
imminent danger:
a. Death or
serious physical harm must be threatened. Serious physical harm is
impairment of the body such as to render the part of the body
affected functionally useless or substantially reduced in
efficiency.
b. For a
health hazard there must be a reasonable expectation that toxic
substances or other health hazards are present and exposure to
them will cause harm to such a degree as to shorten life or cause
substantial reduction in physical or mental efficiency even though
the resulting harm may not manifest itself immediately.
c. The threat
must be immediate or imminent. The required imminence would be
present where it is reasonable to believe that death or serious
physical harm could occur within a short time (i.e., before MOSH
could respond through complaint, referral or programmed inspection
procedures).
B.
Preinspection Procedures for Handling Imminent Danger Situations.
1. When an
Allegation of Imminent Danger is Received by the Field. Any
allegation of imminent danger received by a MOSH office shall be
handled in accordance with the following procedures:
a. The MOSH
Supervisor shall immediately determine whether there is a
reasonable basis for the allegation.
b. If the
imminent danger allegation appears to have merit, the MOSH
Supervisor shall make an evaluation of the inspection requirements
and select a CO/IH to conduct the inspection, and shall notify the
Assistant Commissioner/Authorized Representative. If conducted as
an unprogrammed inspection the MOSH Supervisor shall notify MOSH
Operations.
c. Imminent
danger investigations shall be scheduled the same day that the
report is received, if possible, but not later than the employer's
next working day after receipt of the report.
d. The
inspection of a workplace believed to contain an imminent danger
shall be thoroughly planned and expeditiously accomplished in
accordance with the procedures given in this chapter.
e. When an
immediate inspection as required by this section cannot be made,
the MOSH Supervisor shall contact the employer immediately, obtain
as many pertinent details as possible concerning the situation and
attempt to have any employees affected by imminent danger
voluntarily removed. A record of what steps, if any, the employer
intends to initiate in order to eliminate the danger shall be
attached to the case file. Such notification shall be considered
advance notice and shall be handled in accordance with the
procedures given in this chapter and in Chapter II.
2. Technical
Considerations. The MOSH Supervisor and the CO/IH selected to
perform the inspection shall review the known facts and ascertain
what technical equipment and personnel may be necessary to conduct
the inspection.
a. In highly
complex situations, consideration shall be given to use
appropriate compliance specialists or industrial hygienist.
b. Calibration
and testing of equipment to be used shall be currently valid.
c. If samples
are required to determine whether there is an imminent danger
situation, rapid analysis is essential. The MOSH Supervisor shall
make advance arrangements with the State Department of Health and
Mental Hygiene for rapid analysis of samples from suspected
imminent danger situations which require immediate action.
3. Scheduling.
Any allegation of imminent danger received by a MOSH office, whether
written or oral, shall be handled on a highest priority basis. Other
commitments, weekends, holidays, leave and other considerations
cannot interfere with the expedited and thorough handling of these
cases.
a. As
indicated above, the imminent danger allegation shall be evaluated
immediately and, if appropriate, scheduled for investigation as
soon as possible. Except in extraordinary circumstances, the
inspection shall be conducted the same day that the report is
received, but no later than the employer's next working day.
b. When the
time necessary to obtain special equipment or technical personnel
for inspection would unduly delay the inspection, it may
nevertheless be advisable to schedule and conduct a preliminary
inspection within the time limits given in the preceding
subparagraph. The required equipment and/or personnel can be
brought in later.
C. Inspection.
1. Scope. Any
alleged imminent danger situation brought to the attention of or
discovered by the CO/IH shall be inspected immediately, whether or
not the inspection was initiated in response to an allegation of
imminent danger. The CO/IH shall contact the MOSH Supervisor as soon
as possible following the observation of any imminent danger
situation. Additional inspection activity should take place only
after resolution of the imminent danger situation. After the
imminent danger situation has been resolved, a complete inspection
of the establishment may, if appropriate and assigned, be conducted.
2. Procedures.
Any inspection that involves an imminent danger situation shall be
conducted as expeditiously as possible. The opportunity to accompany
the CO/IH shall be offered to employer and employee representatives
unless the imminence of the hazard makes it impractical to delay
inspection in order to afford any or all such representatives time
to reach the area of the alleged imminent danger.
a. Advance
Notice. The Commissioner may give advance notice of an inspection
of an apparent imminent danger situation to enable the employer to
eliminate the dangerous condition as quickly as possible.
(1) Where an
immediate inspection cannot be made, the MOSH Supervisor shall
give notice of the impending inspection to the employer after
the known facts have been reviewed with the Assistant
Commissioner/Authorized Representative and it has been concluded
that advance notice would speed the elimination of the hazard.
(2) If
advance notice is given to the employer, it shall also be given
to the authorized employee representative. If the inspection is
in response to a complaint made under Section 5-209 of the MOSH
Act (the Act), advance notice shall also be given to the
complainant unless such a procedure will cause a delay in
speeding the elimination of the hazard.
b. Refusal to
Permit Inspection. If a CO/IH is refused entry while attempting to
investigate an alleged imminent danger complaint, a warrant shall
be obtained as quickly as possible. The CO/IH shall take
photographs of the alleged imminent danger from a public
right-of-way, when possible.
3. Elimination
of the Imminent Danger. As soon as it is concluded that conditions
or practices exist which constitute an imminent danger, the employer
shall be so advised and requested to notify employees of the danger
and remove them from the area of imminent danger. It is the duty of
the CO/IH at the site of an imminent danger situation to encourage
the employer to do whatever is possible to eliminate the danger.
a. Voluntary
Elimination of the Imminent Danger. The employer may voluntarily
and permanently eliminate the imminent danger as soon as it is
pointed out. In such cases, no imminent danger proceeding shall be
instituted; and, therefore, no Notice of Alleged Imminent Danger
shall be completed although an appropriate citation and
notification of penalty shall be issued.
(1) What
Constitutes Voluntary Elimination. Although there may be
instances in which the employer will not be able to eliminate
the danger permanently as soon as it is pointed out, the CO/IH
shall nevertheless consider that voluntary elimination of the
danger has been accomplished when the employer:
(a) Has
removed employees from the danger area; and
(b) Has
given satisfactory assurance that the dangerous condition will
have been eliminated before permitting employees to work in
the area.
(2) Action
Where Voluntary Elimination is Accomplished. If the employer
agrees and proceeds to eliminate the imminent danger immediately
and permanently, the CO/IH and any other technical support staff
present shall assist the employer to the maximum extent
possible. However, the employer is ultimately responsible for
determining the manner in which the hazardous condition is to be
eliminated.
(a)
If elimination of the imminent danger is achieved
voluntarily, the CO/IH shall make the appropriate
notation in the case file. Appropriate citation(s) and
notice(s) of proposed penalties shall be issued
regarding the hazard.
(b)
The CO/IH shall inform affected employees or their
authorized representative(s) that, although an imminent
danger had existed, the CO/IH has determined that such
danger no longer exists. They shall also be informed of
the steps to be taken by the employer to eliminate the
dangerous condition.
(c)
No Notice of Alleged Imminent Danger shall be prepared
and no imminent danger proceedings instituted when
voluntary elimination of the imminent danger is
accomplished.
b. Action
Where Voluntary Elimination is Not Accomplished. If the employer
either cannot or does not voluntarily eliminate the hazard, the
following procedures shall be followed:
(1) The CO/IH
shall call the MOSH Supervisor, who shall:
(a)
Contact the Assistant Commissioner/Authorized Representative
who shall contact the Office of the Attorney General to obtain
a Temporary Restraining Order (TRO); and
(b) Advise
the CO/IH to post the Notice of Alleged Imminent Danger form.
NOTE:
The CO/IH has no authority either to order the closing down of the
operation or to direct employees to leave the area of the imminent
danger or the workplace.
(2) If it is
not feasible to contact the MOSH Supervisor, the CO/IH shall
contact the Assistant Commissioner/Authorized Representative and
shall contact the MOSH Supervisor as soon as possible
thereafter.
(3) The
Assistant Commissioner/Authorized Representative and the
Assistant Attorney General shall make immediate arrangements for
the initiation of court action.
(4) The MOSH
Supervisor shall give first priority in scheduling the CO/IH's
activities to preparing for litigation in imminent danger
matters.
4. Issuing
Notice of Alleged Imminent Danger. If the employer does not
immediately eliminate the imminent danger or give satisfactory
assurance that the danger will be voluntarily eliminated before any
exposure occurs, the CO/IH shall contact the MOSH Supervisor for
approval to complete and post the Notice of Alleged Imminent Danger
form, immediately. The MOSH Supervisor shall not authorize this
action without prior consultation with the Assistant
Commissioner/Authorized Representative. The Notice of Alleged
Imminent Danger does not constitute a citation of alleged violation
or a notice of proposed penalty. It is only a notice that an
imminent danger is believed to exist and that the Commissioner of
Labor and Industry will be seeking a court order to restrain the
employer from permitting employees to work in the area of the danger
until it is eliminated.
a. The
original Notice of Alleged Imminent Danger form shall be signed
and posted at or near the area in which the exposed employees are
working. A copy shall be signed and included in the MOSH case
file.
b. Where there
is not a suitable place for posting the Notice of Alleged Imminent
Danger form, the employer(s) shall be requested to provide a means
for posting.
c. If there is
reason to believe that the employees may not see the notice, the
CO/IH shall orally inform the affected employees of the location
of the Notice of Alleged Imminent Danger, after taking adequate
precautions not to be exposed to the danger.
d. The
employer shall be advised that Section 5-216(b) of the Act gives
State circuit courts jurisdiction to restrain any condition or
practice which is an imminent danger to employees.
5. Notice
Prohibiting Use of Equipment. Section 5-210(b) of the Act provides
that the Commissioner or an authorized representative may prohibit
the use of any apparatus if, after an inspection, the Commissioner
or authorized representative determines that "the apparatus or
part of the apparatus violates an occupational safety and health
standard; and there is a substantial probability that death or
serious physical harm could result from continued use." The Act
further provides that "the Commissioner or authorized
representative... give an employer or the agent in charge of such
operation written notice that prohibits use." A copy of the
notice shall be attached to the apparatus and may not be removed
until the apparatus is made safe and the required safeguards
provided. Use of the apparatus is prohibited while a notice under
this section is posted on the apparatus. Accordingly, when a danger
arises from the use of such machinery, apparatus, device or
mechanical equipment or any part thereof, the Notice Prohibiting Use
of Equipment form shall be prepared by the CO/IH, one copy to be
given to the employer or the agent in charge of the operation and
one to be attached to the device.
6. Report
Following Issuance of Imminent Danger Notice or Notice Prohibiting
Use of Equipment. The MOSH Supervisor shall promptly notify the
Assistant Commissioner/Authorized Representative when a Notice of
Alleged Imminent Danger or Notice Prohibiting Use of Equipment has
been posted. The following items shall be reported:
a. Name and
address of establishment.
b. Number of
employees affected.
c. Violative
condition.
d. Region,
Area Office and CO/IH involved.
e. Actions
taken by employer following posting.
D. Citations and Proposed Penalties.
1. Citations and
Penalties. After an imminent danger has been found or equipment has
been posted to prohibit use, appropriate citations and penalties
shall be completed in accordance with established procedures. All
violations discovered during the inspection shall be cited and
penalties proposed, where appropriate, whether or not they relate to
the imminent danger situation or prohibition of use of equipment.
2. Effect of
Court Action. No citation shall be issued when court action is being
or will be pursued relative to the issuance of a Notice of Imminent
Danger or Notice Prohibiting Use of Equipment without prior
clearance from the Assistant Commissioner/Authorized Representative.
E. Follow-up Inspection For Imminent Danger.
1. Court Action.
Where a court has issued an injunction in an imminent danger
situation, the follow-up inspection shall take place immediately
after the court order has been issued to determine if the employer
is complying with the terms of the order.
2. No Court
Action. Where no court proceeding has been initiated because the
imminence of the danger has been voluntarily eliminated in
accordance with the provisions of this chapter but permanent
correction of the condition has not been achieved at the time of the
inspection, appropriate citations shall be issued promptly and a
follow-up inspection conducted on the date set for abatement.
3. Immediate
Correction. Where the dangerous condition has been permanently
corrected at the time of the inspection, the Assistant
Commissioner/Authorized Representative shall determine whether a
follow-up inspection is necessary.
F.
Removal of Imminent Danger Notice. If a Notice of Imminent Danger
form has been posted at the worksite in accordance with the procedures
given in this chapter the CO/IH shall remove the notice as soon as the
imminent danger situation has been eliminated or it has been
determined that a temporary restraining order will not be sought.
G. Follow-up Inspection for Notice Prohibiting Use of Equipment.
1. Where no
court proceeding has been initiated by the employer because the
employer recognizes the hazard associated with use of the equipment,
a follow-up inspection shall be scheduled in accordance with the
abatement date set forth on any citation issued.
2. Where an
employer has exercised his rights in the circuit court against the
Commissioner, a court may not stay an order of the Commissioner
unless certain specified requirements are met. (Section 5-210(e) of
the Act) That action shall not influence MOSH's decision to conduct
a follow-up for the purpose of ensuring that the equipment is not
operating.
H.
Removal of Notice Prohibiting Use of Equipment. The Notice
Prohibiting Use of Equipment shall be removed only upon satisfactory
abatement by the employer or by order of the Court.
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