Abatement Verification

(1) Purpose. TOSHA inspections are intended to result in the abatement of violations of the Tennessee Occupational Safety and Health Act of 1972 (Act) as amended (T.C.A. §§50-3- 101 - 50-3-919). This rule sets forth the procedures TOSHA will use to ensure abatement. These procedures are tailored to the nature of the violation and the employer's abatement actions. (2) Scope and Application. This rule applies to employers who receive a citation for one or more violations of the Act. OCCUPATIONAL SAFETY AND HEALTH INSPECTIONS, CHAPTER 0800-01-04 CITATIONS AND PROPOSED PENALTIES (3) Definitions. (a) “Abatement” means action by an employer to comply with a cited provision of the Act or a standard or regulation promulgated pursuant to the Act or to eliminate a recognized hazard identified by TOSHA during an inspection. (b) “Abatement date” means: 1. For an uncontested citation item, the later of: (i) The date in the citation for abatement of the violation; or (ii) The date approved by TOSHA or established in litigation as a result of a petition for modification of abatement date (PMA). 2. For a contested citation item for which the Tennessee Occupational Safety and Health Review Commission (TOSHRC) has issued a final order affirming the violation, the later of: (i) The date identified in the final order for abatement; or (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. (c) “Affected employees” means those employees who are exposed to the hazard(s) identified as violation(s) in a citation. (d) “Final order” means an order of the TOSHRC which affirms, modifies, or revokes a citation or monetary penalty issued by TOSHA, or an order affirming a formal settlement agreement entered into by an employer and TOSHA. (e) “Final order date” means: 1. For an uncontested citation item, the twentieth calendar day after the employer's receipt of the citation; 2. For a contested citation item: (i) The thirtieth day after the date on which a decision or order of an administrative law judge or the commission en banc is issued; (ii) The thirtieth day after the date on which a decision or order of a Chancery Court or Court of Appeals is issued if the TOSHRC decision or order is appealed; or (iii) The date on which the Tennessee Supreme Court issues a decision or order if the decision of a Court of Appeals decision or order is appealed. (f) “Movable equipment” means a hand-held or non-hand-held machine or device, powered or unpowered, that is used to do work and is moved within or between worksites. (4) Abatement Certification. OCCUPATIONAL SAFETY AND HEALTH INSPECTIONS, CHAPTER 0800-01-04 CITATIONS AND PROPOSED PENALTIES (a) Within ten (10) calendar days after the abatement date, the employer must certify to TOSHA that each cited violation has been abated, except as provided in subparagraph (b) of this rule. (b) The employer is not required to certify abatement if the TOSHA compliance officer, during the on-site portion of the inspection: 1. Observes, within twenty-four (24) hours after a violation is identified, that abatement has occurred; and 2. Notes in the citation that abatement has occurred. (c) The employer's certification that abatement is complete must include, for each cited violation, in addition to the information required by paragraph (9) of this rule, the date and method of abatement and a statement that the affected employees and their representatives have been informed of the abatement. Appendix A to this rule contains a sample Abatement Certification Letter. (5) Abatement Documentation. (a) The employer must submit to TOSHA, along with the information on abatement certification required by subparagraph (c) of paragraph (4) of this rule, documents demonstrating that abatement is complete for each willful or repeat violation and for any serious violation for which TOSHA indicates in the citation that such abatement documentation is required. (b) 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. (6) Abatement Plans. (a) TOSHA may require an employer to submit an abatement plan for each cited violation (except an other-than-serious/non-serious violation) when the time permitted for abatement is more than ninety (90) calendar days. If an abatement plan is required, the citation must so indicate. (b) The employer must submit an abatement plan for each cited violation within twenty-five (25) 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. Appendix B to this rule contains a Sample Abatement Plan form. (7) Progress Reports. (a) 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: 1. That periodic progress reports are required and the citation items for which they are required; 2. The date on which an initial progress report must be submitted, which may be no sooner than thirty (30) calendar days after submission of an abatement plan; OCCUPATIONAL SAFETY AND HEALTH INSPECTIONS, CHAPTER 0800-01-04 CITATIONS AND PROPOSED PENALTIES 3. Whether additional progress reports are required; and 4. The date(s) on which additional progress reports must be submitted. (b) 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. Appendix “B” to this rule contains a Sample Progress Report form. (8) Employee Notification. (a) The employer must inform affected employees and their representative(s) about abatement activities covered by this rule by posting a copy of each document submitted to TOSHA or a summary of the document near the place where the violation occurred. (b) Where such posting does not effectively inform employees and their representative(s) about abatement activities (for example, for employers who have mobile work operations), the employer must: 1. Post each document or a summary of the document in a location where it will be readily observable by affected employees and their representative(s); or 2. Take other steps to communicate fully to affected employees and their representative(s) about abatement activities. (c) The employer must inform employees and their representative(s) of their right to examine and copy all abatement documents submitted to TOSHA. 1. An employee or an employee representative must submit a request to examine and copy abatement documents within three (3) working days of receiving notice that the documents have been submitted. 2. The employer must comply with an employee's or employee representative's request to examine and copy abatement documents within five (5) working days of receiving the request. (d) The employer must ensure that notice to employees and employee representative(s) is provided at the same time or before the information is provided to TOSHA and that abatement documents are: 1. Not altered, defaced, or covered by other material; and 2. Remain posted for three (3) working days after submission to TOSHA. (9) Transmitting Abatement Documents. (a) The employer must include, in each submission required by this rule, the following information: 1. The employer's name and address; 2. The inspection number to which the submission relates; 3. The citation and item numbers to which the submission relates; OCCUPATIONAL SAFETY AND HEALTH INSPECTIONS, CHAPTER 0800-01-04 CITATIONS AND PROPOSED PENALTIES 4. A statement that the information is accurate; and 5. The signature of the employer or the employer's authorized representative. (b) The date of postmark is the date of submission for mailed documents. For documents transmitted by other means, the date TOSHA receives the document is the date of submission. (10) Movable Equipment. (a) For serious, repeat, and willful violations involving movable equipment, the employer must attach a warning tag or a copy of the citation to the operating controls or to the cited component of equipment that is moved within the worksite or between worksites. Note: Attaching a copy of the citation to the equipment is deemed by TOSHA to meet the tagging requirements of subparagraph (a) of paragraph (10) of this rule as well as the posting requirements of Rule 0800-01-04-.17. (b) The employer must use a warning tag that properly warns employees about the nature of the violation involving the equipment and identifies the location of the citation issued. Appendix C to this rule contains a sample tag that employers may use to meet this requirement. (c) If the violation has not already been abated, a warning tag or copy of the citation must be attached to the equipment: 1. For hand-held equipment, immediately after the employer receives the citation; or 2. For non-hand-held equipment, prior to moving the equipment within or between worksites. (d) For the construction industry, a tag that is designed and used in accordance with 29 CFR 1926.20(b)(3) and 29 CFR 1926.200(h) is deemed by TOSHA to meet the requirements of this rule when the information required by subparagraph (b) of this paragraph is included on the tag. (e) 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. (f) The employer must assure that the tag or copy of the citation attached to movable equipment remains attached until: 1. The violation has been abated and all abatement verification documents required by this rule have been submitted to TOSHA; 2. The cited equipment has been permanently removed from service or is no longer within the employer's control; or 3. The TOSHRC issues a final order vacating the citation. (11) The following Appendices A through C provide information and nonmandatory guidelines to assist employers and employees in complying with the appropriate requirements of this rule: (a) Appendix A - Sample Abatement Certification Letter (Nonmandatory) OCCUPATIONAL SAFETY AND HEALTH INSPECTIONS, CHAPTER 0800-01-04 CITATIONS AND PROPOSED PENALTIES (b) Appendix B - Sample Abatement Plan or Progress Report (Nonmandatory) (c) Appendix C - Sample Warning Tag (Nonmandatory)