HAR §12-51-22. Abatement verification

(a) Purpose. HIOSH's inspections are intended to result in the abatement of violations of the Hawaii occupational safety and health act. This section sets forth the procedures HIOSH will use to ensure abatement. These procedures are tailored to the nature of the violation and the employer's abatement actions. (b) Scope and application. This section applies to employers who receive a citation for a violation of the Hawaii occupational safety and health law, chapter 396, HRS. (c) Definitions. (1) Abatement means action by an employer to comply with a cited standard or regulation or to eliminate a recognized hazard identified by HIOSH during an inspection. (2) Abatement date means: (A) For an uncontested citation item, the later of: (i) The date in the citation for abatement of the violation; (ii) The final date established as a result of a petition for modification of the abatement date (PMA); or (iii) The date established in a citation by an informal settlement agreement. (B) For a contested citation item for which the Hawaii labor and industrial relations appeals board has issued a final order affirming the violation, the later of: (i) The date identified in the final order for abatement; (ii) The date computed by adding the period allowed in the citation for abatement to the final order date; or (iii) The date established by a formal settlement agreement. (3) Affected employees means those employees who are exposed to the hazard(s) identified as violation(s) in a citation. (4) Final order date means: (A) For an uncontested citation item, the twentieth calendar day after the employer's receipt of a citation; (B) For a contested citation item: (i) The thirtieth day after the date on which a decision or order of the Hawaii labor and industrial relations appeals board has been filed; or (ii) The thirtieth day after the date on which an appropriate State court issues a decision affirming the violation. (5) Movable equipment means any machine or device, powered or unpowered, that is used to do work and is capable of being moved within or between worksites. (d) Abatement certification. (1) Within five calendar days after the abatement date, the employer must certify to HIOSH that each cited violation has been abated, §12-51 13 except as provided in paragraph (d)(2). (2) The employer is not required to certify abatement if the HIOSH compliance officer: (A) Observes during the on-site portion of the inspection, within twenty four hours after a violation is identified, that abatement has occurred; and (B) Notes in the citation that abatement has occurred. (3) The employer's certification that abatement is complete must include, for each cited violation item, in addition to the information required by paragraph (i), the date and method of abatement and a statement that affected employees and their representatives have been informed of the abatement. Note to paragraph (d): Appendix A contains a sample abatement certification letter. (e) Abatement documentation. (1) The employer must submit to HIOSH, along with the information on abatement certification required by paragraph (d)(3) of this section, documents demonstrating that abatement is complete for each willful or repeat violation and for any serious violation for which HIOSH indicates in the citation that such abatement documentation is required. (2) Documents demonstrating that abatement is complete may include, but are not limited to, evidence of the purchase or repair of equipment, photographic or video evidence of abatement, or other written records. (f) Abatement plans. (1) HIOSH may require an employer to submit an abatement plan for each cited violation (except an other-than-serious violation) when the time permitted for abatement is more than ninety calendar days. If an abatement plan is required, the citation must so indicate. (2) The employer must submit an abatement plan for each cited violation within twenty-five calendar days from the final order date when the citation indicates that such a plan is required. The abatement plan must identify the violation and the steps to be taken to achieve abatement, including a schedule for completing abatement and, where necessary, how employees will be protected from exposure to the violative condition in the interim until abatement is complete. Note to paragraph (f): Appendix B contains a sample abatement plan form. (g) Progress reports. (1) An employer who is required to submit an abatement plan may also be required to submit periodic progress reports for each cited violation. The citation must indicate: (A) That periodic progress reports are required and the citation items for which they are required; (B) The date on which an initial progress report must be submitted, which may be no sooner than thirty calendar days after submission of an abatement plan; (C) Whether additional progress reports are required; and (D) The date(s) on which additional progress reports must be submitted. (2) For each violation, the progress report must identify, in a single sentence if possible, the action taken to achieve abatement and the date the action was taken. Note to paragraph (g): Appendix B contains a sample progress report form. §12-51 14 (h) Employee notification. (1) The employer must inform affected employees and their representative(s) about abatement activities covered by this section by posting a copy of each document submitted to HIOSH or a summary of the document near the place where the violation occurred. (2) Where such posting does not effectively inform employees and their representatives about abatement activities (for example, for employers who have mobile work operations), the employer must: (A) Post each document or a summary of the document in a location where it will be readily observable by affected employees and their representatives; or (B) Take other steps to communicate fully to affected employees and their representatives about abatement activities. (3) The employer must inform employees and their representatives of their right to examine and copy all abatement documents submitted to HIOSH. (A) An employee or an employee representative must submit a request to examine and copy abatement documents within three working days of receiving notice that the documents have been submitted. (B) The employer must comply with an employee's or employee representative's request to examine and copy abatement documents within five working days of receiving the request. (4) The employer must ensure that notice to employees and employee representatives is provided at the same time or before the information is provided to HIOSH and that abatement documents are: (A) Not altered, defaced, or covered by other material; and (B) Remain posted for three working days after submission to HIOSH. (i) Transmitting abatement documents. (1) The employer must include, in each submission required by this section, the following information: (A) The employer's name and address; (B) The inspection number to which the submission relates; (C) The citation and item numbers to which the submission relates; (D) A statement that the information submitted is accurate; and (E) A signature of the employer or the employer's authorized representative. (2) The date of postmark by the United States Postal Service is the date of submission for mailed documents. For documents transmitted by other means, the date HIOSH file-stamps the document is the date of submission. (j) Movable equipment. (1) For high gravity violations involving movable equipment, the HIOSH inspector shall attach a danger tag to the operating controls or to the cited component of equipment that is capable of being moved within the worksite or between worksites. (2) Use of the cited component of equipment that has a danger tag attached is prohibited. (3) For medium and lesser gravity violations the employer must use a warning tag or attach a copy of the citation to the operating controls or to the cited component of equipment that is capable of being moved within or between jobsites. The warning tag: (A) must appropriately warn employees about the nature of the violation involving the equipment, and §12-51 15 (B) must identify the location of the citation issued. Note to paragraph (j)(3): Attaching a copy of the citation to the equipment is deemed by HIOSH to meet the posting requirement of section 12-51-16. Non-Mandatory appendix C contains a sample tag that employers may use to meet this requirement. (4) If the violation has not already been abated, a warning tag or copy of the citation must be attached to the equipment immediately after the employer receives the citation for both hand-held and non-hand-held equipment. (5) For the construction industry, a tag that is designed and used in accordance with sections 12-110-2 and 12-119.1-1 is deemed by HIOSH to meet the requirements of this section when the information required by paragraph (j)(3) is included on the tag. (6) The employer must assure that the tag or copy of the citation attached to movable equipment is not altered, defaced, or covered by other material. Note to paragraph (j)(6): A medium or lesser gravity violation is deemed by HIOSH to have been abated if the cited equipment has been removed from service by tagging it out-of-service or is no longer within the employer's control. (7) The employer must assure that the tag or copy of the citation attached to movable equipment remains attached until: (A) A HIOSH inspector or authorized representative determines that the high gravity hazard has been abated and removes the tag; or (B) The medium and lesser gravity violation has been abated and all abatement verification documents required by this regulation have been submitted to HIOSH; or (C) The Hawaii labor and industrial relations appeals board or appropriate court issues a final order vacating the citation. Note to paragraph (j)(7): If the employer believes that the gravity of the hazard has been reduced from the time of the inspection, the employer may notify HIOSH to conduct a re-inspection. If the inspector agrees that the gravity of the hazard has been reduced, the danger tag may be removed. In some cases, it may be replaced by the warning tag. If the tag issued was for a medium or lesser gravity violation, the employer may remove the warning tag simultaneously with notification to HIOSH that the cited violation has been abated. Appendices to Section 12-51-22--Abatement Verification Note: Appendices A through C provide information and nonmandatory guidelines to assist employers and employees in complying with the appropriate requirements of this section. §12-51 16 Appendix A to Section 12-51-22--Sample Abatement-Certification Letter (Nonmandatory) (Name), Director Department of Labor and Industrial Relations-HIOSH 830 Punchbowl St. Room 423 Honolulu, Hawaii 96813-5017 [Company's Name] [Company's Address] The hazard referenced in Inspection Number [insert 9-digit #] for violation identified as: Citation [insert #] and item [insert #] was corrected on [insert date] by (how corrected - documentation required): Citation [insert #] and item [insert #] was corrected on [insert date] by (how corrected - documentation required): Citation [insert #] and item [insert #] was corrected on [insert date] by (how corrected - documentation required): Citation [insert #] and item [insert #] was corrected on [insert date] by (how corrected - documentation required): Citation [insert #] and item [insert #] was corrected on [insert. date] by (how corrected -documentation required): Citation [insert #] and item [insert #] was corrected on [insert date] by (how corrected - documentation required): Citation [insert #] and item [insert #] was corrected on [insert date] by (how corrected - documentation required): Citation [insert #] and item [insert #] was corrected on [insert date] by (how corrected - documentation required): I attest that the information contained in this document is accurate and that the affected employees and their representative(s) have been informed of the abatement activities mentioned above and of their right to examine and copy this and all other abatement documents submitted to HIOSH. Signature & Title Typed or Printed Name Date §12-51 17 Appendix B to Section 12-51-22--Sample Abatement Plan or Progress Report (Nonmandatory) (Name), Director Department of Labor and Industrial Relations-HIOSH 830 Punchbowl St. Room 423 Honolulu, Hawaii 96813-5017 [Company's Name] [Company's Address] Check one: Abatement Plan [ ] Progress Report [ ] Inspection Number Page of Citation Number(s) Item Number(s) Proposed Completion Completion Date(for Action Date (for progress abatement reports plans only) only) 1 2 3 4 5 6 7 §12-51 18 Date required for final abatement: I attest that the information contained in this document is accurate and that the affected employees and their representative(s) have been informed of the abatement activities mentioned above and of their right to examine and copy this and all other abatement documents submitted to HIOSH. _____________________________________________________________________________ Signature & Title _____________________________________________________________________________ Typed or Printed Name _____________________________ Date Name of primary point of contact for questions: [optional] Telephone number: *Abatement plans or progress reports for more than one citation item may be combined in a single abatement plan or progress report if the abatement actions, proposed completion dates, and actual completion dates (for progress reports only) are the same for each of the citation items. §12-51 19 Appendix C to §12-51-22-Sample Warning Tag BACKGROUND COLOR - ORANGE MESSAGE COLOR – BLACK O WARNING EQUIPMENT HAZARD CITED BY HIOSH EQUIPMENT CITED: ____________________ ____________________ ____________________ HAZARD CITED: ____________________ ____________________ ____________________ FOR DETAILED INFORMATION SEE HIOSH CITATION POSTED AT: ____________________ ____________________ §12-51 20 Sample Danger Tag BACKGROUND COLOR--RED MESSAGE COLOR--BLACK [Eff. 10/23/97; am 4/11/98; am 3/29/99; am 1/10/03] (Auth: HRS §396-4) (Imp: HRS §396-4) O DANGER EQUIPMENT USE PROHIBITED EQUIPMENT CITED: ____________________ ____________________ HAZARD CITED: ____________________ ____________________ SEE HIOSH CITATION REMOVAL PROHIBITED UNLESS AUTHORIZED BY HIOSH