OSHA Field Inspection Reference Manual CPL 2.103
Section 7 - Chapter III. Inspection Documentation


OSHA Field Inspection Reference Manual - Table of ContentsOSHA Field Inspection Reference Manual - Table of Contents
  • Chapter Number: III
  • Chapter Title: Inspection Documentation

Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and no longer represents OSHA Policy. It is presented here as historical content, for research and review purposes only.


                              CHAPTER III


INSPECTION DOCUMENTATION

A. Four Stage Case File Documentation.

1. General.

a. Guidelines. These guidelines are developed to assist the CSHO in determining the minimum level of written documentation appropriate for each of four case file stages. All necessary information relative to violations shall be obtained during the inspection, using any means deemed appropriate by the CSHO (i.e., notes, audio/videotapes, photographs, and employer records).

b. Solicitor Coordination. Consultation in accordance with regional procedures, including Solicitor procedures, shall be considered when the inspection or investigation could involve important, novel or complex litigation or when consultation is necessary in the CSHO or Area Director's professional judgment. If consultation is deemed necessary, such consultation shall be conducted at the earliest stage possible of the investigation.

2. Case File Stages. The following paragraphs indicate what documentation is required for each of the four case file stages.

NOTE: The difference between Stage III and Stage IV is one of format and organization only. A Stage III case file is not understood as involving a lesser degree of documentation.

a. Stage I.

No on-site inspection conducted ---

o OSHA-1 or equivalent, and brief statement expanding upon the reason for not conducting the inspection.

o If refusal of entry, information necessary to secure a warrant (see Chapter II, A.2.c.).

o Complainant/referral response, if complaint/referral inspection.

A. 2. b. Stage II.

In-compliance inspection ---

o OSHA-1 or equivalent.

o OSHA-1A or pertinent information (see B.1. of this chapter).

o Records obtained during the inspection, based on the CSHO's professional judgment as to what should be obtained.

NOTE: The CSHO need not document that a condition was in compliance beyond a general statement that no conditions were observed in violation of any standard.

o Complainant/referral response, if complaint/referral inspection.

c. Stage III.

Inspection conducted, citations to be issued ---

o OSHA-1 or equivalent.

o OSHA-1A or equivalent (see B.1. of this chapter).

o Records obtained during the inspection which, based on the CSHO's professional judgment, are necessary to support the violations.

o OSHA-1B forms or the equivalent with the following included: Inspection # Instances on page (a,b,/) Type of violation (S,W,R,O,FTA) Citation number and item number Number exposed REC Abatement Period SAVE, AVD, and/or standard reference Photo/video location Severity Rating (H,M,L) and brief justification Probability Rating (G,L) and brief justification GBP and multiplier if applicable % reduction (adjustment) Proposed penalty

NOTE: Information in relation to exposed employees shall be documented on the OSHA-1B, or referenced on the OSHA-1B as to the specific location of this information.

o Complainant/referral response, if complaint/referral inspection.

A. 2. d. Stage IV.

Citations are contested ---

o CSHO's will determine after consultation with the Solicitor if the documentation obtained during the inspection needs to be transferred to a different format or location within the file (e.g., transfer of video/audio information to a written format). The information will then be transferred to the appropriate areas as needed. Items which may be considered include transfer of exposed employee information, instance description, employer knowledge, employer's affirmative defenses, employer/ employee comments, and other employer information to the OSHA-1B or equivalent.

B. Specific Forms.

1. Narrative, Form OSHA-1A.

a. General. The OSHA-1A Form, or its equivalent, shall be used to record information relative to the following, at a minimum:

ITEM: Establishment Name.

ITEM: Inspection Number.

ITEM: Additional Citation Mailing Addresses.

ITEM: Names and Addresses of all Organized Employee Groups.

ITEM: Names, Addresses, and Phone Numbers of Authorized Representatives of Employees.

ITEM: Employer Representatives Contacted and extent of their participation in the inspection.

ITEM: Comment on S&H program to the extent necessary, based on CSHO's professional judgment, including penalty reduction justifications for good faith.

ITEM: Document whether closing conference was held, describe any unusual circumstances.

ITEM: Additional Comments (CSHO's shall use their professional judgment to determine if any additional information shall be added to the case file.)

B. 1. b. Specific. The following information may be located on the OSHA-1A Form or referenced on the OSHA-1A as to the specific location of this information:

ITEM: Names, Addresses, and Phone Numbers of Other Persons Contacted.

ITEM: Accompanied By.

2. Photo Mounting Worksheet, Form OSHA-89. This worksheet may be utilized by the CSHO, if mounting is necessary. Other methods of mounting the photograph may be used, such as attaching it to the OSHA-1B. The photograph shall be annotated "trade secret," if applicable.

3. Inspection Case File Activity Diary Insert. The Inspection Case File Activity Diary is designed to provide a ready record and summary of all actions relating to a case. The diary sheet will be used to document important events related to the case, especially those not found elsewhere in the case file.

C. Violations.

1. Basis of Violations.

a. Standards and Regulations. Section 5(a)(2) of the Occupational Safety and Health Act states that each employer has a responsibility to comply with the occupational safety and health standards promulgated under the Act. The specific standards and regulations are found in Title 29 Code of Federal Regulations (CFR) 1900 series. Subparts A and B of 29 CFR 1910 specifically establish the source of all the standards which are the basis of violations.

NOTE: The most specific subdivision of the standard shall be used for citing violations.

(1) Definition and Application of Universal Standards (Horizontal) and Specific Industry Standards (Vertical). Specific Industry standards are those standards which apply to a particular industry or to particular operations, practices, conditions, processes, means, methods, equipment or installations. Universal standards are those standards which apply when a condition is not covered by a specific industry standard. Within both universal and specific industry standards there are general standards and specific standards.

C. 1. a. (1) (a) When a hazard in a particular industry is covered by both a specific industry (e.g., 29 CFR Part 1915) standard and a universal (e.g., 29 CFR Part 1910) standard, the specific industry standard shall take precedence. This is true even if the universal standard is more stringent.

(b) When determining whether a universal or a specific industry standard is applicable to a work situation, the CSHO shall focus attention on the activity in which the employer is engaged at the establishment being inspected rather than the nature of the employer's general business.

(2) Variances. The employer's requirement to comply with a standard may be modified through granting of a variance, as outlined in Section 6 of the Act.

(a) An employer will not be subject to citation if the observed condition is in compliance with either the variance or the standard.

(b) In the event that the employer is not in compliance with the requirements of the variance, a violation of the standard shall be cited with a reference in the citation to the variance provision that has not been met.

b. Employee Exposure.

(1) Definition of Employee. Whether or not exposed persons are employees of an employer depends on several factors, the most important of which is who controls the manner in which the employees perform their assigned work. The question of who pays these employees may not be the determining factor. Determining the employer of an exposed person may be a very complex question, in which case the Area Director may seek the advice of the Regional Solicitor.

(2) Proximity to the Hazard. The proximity of the workers to the point of danger of the operation shall be documented.

C. 1. b. (3) Observed Exposure. Employee exposure is established if the CSHO witnesses, observes, or monitors exposure of an employee to the hazardous or suspected hazardous condition during work or work-related activities. Where a standard requires engineering or administrative controls (including work practice controls), employee exposure shall be cited regardless of the use of personal protective equipment.

(4) Unobserved Exposure. Where employee exposure is not observed, witnessed, or monitored by the CSHO, employee exposure is established if it is determined through witness statements or other evidence that exposure to a hazardous condition has occurred, continues to occur, or could recur.

(a) In fatality/catastrophe (or other "accident") investigations, employee exposure is established if the CSHO determines, through written statements or other evidence, that exposure to a hazardous condition occurred at the time of the accident.

(b) In other circumstances, based on the CSHO's professional judgment and determination, exposure to hazardous conditions has occurred in the past, and such exposure may serve as the basis for a violation when employee exposure has occurred in the previous six months.

(5) Potential Exposure. A citation may be issued when the possibility exists that an employee could be exposed to a hazardous condition because of work patterns, past circumstances, or anticipated work requirements, and it is reasonably predictable that employee exposure could occur, such as:

(a) The hazardous condition is an integral part of an employer's recurring operations, but the employer has not established a policy or program to ensure that exposure to the hazardous condition will not recur; or

(b) The employer has not taken steps to prevent access to unsafe machinery or equipment which employees may have reason to use.

2. Types of Violations.

a. Other-Than-Serious Violations. This type of violation shall be cited in situations where the most serious injury or illness that would be likely to result from a hazardous condition cannot reasonably be predicted to cause death or serious physical harm to exposed employees but does have a direct and immediate relationship to their safety and health.

C. 2. b. Serious Violations.

(1) Section 17(k) of the Act provides ". . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

(2) The CSHO shall consider four elements to determine if a violation is serious.

(a) Step 1. The types of accident or health hazard exposure which the violated standard or the general duty clause is designed to prevent.

(b) Step 2. The most serious injury or illness which could reasonably be expected to result from the type of accident or health hazard exposure identified in Step 1.

(c) Step 3. Whether the results of the injury or illness identified in Step 2 could include death or serious physical harm. Serious physical harm is defined as:

1 Impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job. Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would usually require treatment by a medical doctor.

2 Illnesses that could shorten life or significantly reduce physical or mental efficiency by inhibiting the normal function of a part of the body.

(d) Step 4. Whether the employer knew, or with the exercise of reasonable diligence, could have known of the presence of the hazardous condition.

1 In this regard, the supervisor represents the employer and a supervisor's knowledge of the hazardous condition amounts to employer knowledge.

2 In cases where the employer may contend that the supervisor's own conduct constitutes an isolated event of employee misconduct, the CSHO shall attempt to determine the extent to which the supervisor was trained and supervised so as to prevent such conduct, and how the employer enforces the rule.

3 If, after reasonable attempts to do so, it cannot be determined that the employer has actual knowledge of the hazardous condition, the knowledge requirement is met if the CSHO is satisfied that the employer could have known through the exercise of reasonable diligence. As a general rule, if the CSHO was able to discover a hazardous condition, and the condition was not transitory in nature, it can be presumed that the employer could have discovered the same condition through the exercise of reasonable diligence.

C. 2. c. Violations of the General Duty Clause. Section 5(a)(1) of the Act requires that "Each employer shall furnish to each of his (sic) employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his (sic) employees." The general duty provisions shall be used only where there is no standard that applies to the particular hazard involved, as outlined in 29 CFR 1910.5(f).

(1) Evaluation of Potential Section 5(a)(1) Situations. In general, Review Commission and court precedent has established that the following elements are necessary to prove a violation of the general duty clause:

(a) The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;

(b) The hazard was recognized;

(c) The hazard was causing or was likely to cause death or serious physical harm; and

(d) There was a feasible and useful method to correct the hazard.

(2) Discussion of Section 5(a)(1) Elements. The above four elements of a Section 5(a)(1) violation are discussed in greater detail as follows:

(a) A Hazard to Which Employees Were Exposed. A general duty citation must involve both a serious hazard and exposure of employees.

C. 2. c. (2) (a) 1 Hazard. A hazard is a danger which threatens physical harm to employees.

a Not the Lack of a Particular Abatement Method. In the past some Section 5(a)(1) citations have incorrectly alleged that the violation is the failure to implement certain precautions, corrective measures or other abatement steps rather than the failure to prevent or remove the particular hazard. It must be emphasized that Section 5(a)(1) does not mandate a particular abatement measure but only requires an employer to render the workplace free of certain hazards by any feasible and effective means which the employer wishes to utilize.

EXAMPLE: In a hazardous situation involving high pressure gas where the employer has failed to train employees properly, has not installed the proper high pressure equipment, and has improperly installed the equipment that is in place, there are three abatement measures which the employer failed to take; there is only one hazard (that is, exposure to the hazard of explosion due to the presence of high pressure gas) and hence only one general duty clause citation.

b The Hazard Is Not a Particular Accident. The occurrence of an accident does not necessarily mean that the employer has violated Section 5(a)(1) although the accident may be evidence of a hazard. In some cases a Section 5(a)(1) violation may be unrelated to the accident. Although accident facts may be relevant and shall be gathered, the citation shall address the hazard in the workplace, not the particular facts of the accident.

EXAMPLE: A fire occurred in a workplace where flammable materials were present. No employee was injured by the fire itself but an employee, disregarding the clear instructions of his/her supervisor to use an available exit, jumped out of a window and broke a leg. The danger of fire due to the presence of flammable materials may be a recognized hazard causing or likely to cause death or serious physical harm, but the action of the employee may be an instance of unpreventable employee misconduct. The citation should deal with the fire hazard, not with the accident involving the employee who broke his/her leg.

C. 2. c. (2) (a) 1 c The Hazard Must Be Reasonably Foreseeable. The hazard for which a citation is issued must be reasonably foreseeable.

i. All the factors which could cause a hazard need not be present in the same place at the same time in order to prove foreseeability of the hazard; e.g., an explosion need not be imminent.

EXAMPLE: If combustible gas and oxygen are present in sufficient quantities in a confined area to cause an explosion if ignited but no ignition source is present or could be present, no Section 5(a)(1) violation would exist. If an ignition source is available at the workplace and the employer has not taken sufficient safety precautions to preclude its use in the confined area, then a foreseeable hazard may exist.

ii. It is necessary to establish the reasonable foreseeability of the general workplace hazard, rather than the particular hazard which led to the accident.

EXAMPLE: A titanium dust fire may have spread from one room to another only because an open can of gasoline was in the second room. An employee who usually worked in both rooms was burned in the second room from the gasoline. The presence of gasoline in the second room may be a rare occurrence. It is not necessary to prove that a fire in both rooms was reasonably foreseeable. It is necessary only to prove that the fire hazard, in this case due to the presence of titanium dust, was reasonably foreseeable.

2 The Hazard Must Affect the Cited Employer's Employees. The employees exposed to the Section 5(a)(1) hazard must be the employees of the cited employer.

(b) The Hazard Must be Recognized. Recognition of a hazard can be established on the basis of industry recognition, employer recognition, or "common-sense" recognition. The use of common-sense as the basis for establishing recognition shall be limited to special circumstances. Recognition of the hazard must be supported by satisfactory evidence and adequate documentation in the file as follows:

C. 2. c. (2) (b) 1 Industry Recognition. A hazard is recognized if the employer's industry recognizes it. Recognition by an industry other than the industry to which the employer belongs is generally insufficient to prove this element of a Section 5(a)(1) violation. Although evidence of recognition by the employer's specific branch within an industry is preferred, evidence that the employer's industry recognizes the hazard may be sufficient.

a In cases where State and local government agencies not falling under the preemption provisions of Section 4(b)(1) have codes or regulations covering hazards not addressed by OSHA standards, the Area Director shall determine whether the hazard is to be cited under Section 5(a)(1) or referred to the appropriate local agency for enforcement.

b Regulations of other Federal agencies or of State atomic energy agencies generally shall not be used. They raise substantial difficulties under Section 4(b)(1) of the Act, which provides that OSHA is preempted when such an agency has statutory authority to deal with the working condition in question.

2 Employer Recognition. A recognized hazard can be established by evidence of actual employer knowledge. Evidence of such recognition may consist of written or oral statements made by the employer or other management or supervisory personnel during or before the OSHA inspection, or instances where employees have clearly called the hazard to the employer's attention.

3 Common-Sense Recognition. If industry or employer recognition of the hazard cannot be established in accordance with (a) and (b), recognition can still be established if it is concluded that any reasonable person would have recognized the hazard. This theory of recognition shall be used only in flagrant cases.

(c) The Hazard Was Causing or Was likely to Cause Death or Serious Physical Harm. This element of Section 5(a)(1) violation is identical to the elements of a serious violation, see C.2.b. of this chapter.

(d) The Hazard Can Be Corrected by a Feasible and Useful Method.

1 To establish a Section 5(a)(1) violation the agency must identify a method which is feasible, available and likely to correct the hazard. The information shall indicate that the recognized hazard, rather than a particular accident, is preventable.

C. 2. c. (2) (d) 2 If the proposed abatement method would eliminate or significantly reduce the hazard beyond whatever measures the employer may be taking, a Section 5(a)(1) citation may be issued. A citation shall not be issued merely because the agency knows of an abatement method different from that of the employer, if the agency's method would not reduce the hazard significantly more than the employer's method. It must also be noted that in some cases only a series of abatement methods will alleviate a hazard. In such a case all the abatement methods shall be mentioned.

(3) limitations on Use of the General Duty Clause. Section 5(a)(1) is to be used only within the guidelines given in C.2.c. of this chapter.

(a) Section 5(a)(1) may be cited in the alternative when a standard is also cited to cover a situation where there is doubt as to whether the standard applies to the hazard.

(b) Section 5(a)(1) violations shall not be grouped together, but may be grouped with a related violation of a specific standard.

(c) Section 5(a)(1) shall not normally be used to impose a stricter requirement than that required by the standard. For example, if the standard provides for a permissible exposure limit (PEL) of 5 ppm, even if data establishes that a 3 ppm level is a recognized hazard, Section 5(a)(1) shall not be cited to require that the 3 ppm level be achieved unless the limits are based on different health effects. If the standard has only a time-weighted average permissible exposure level and the hazard involves exposure above a recognized ceiling level, the Area Director shall consult with the Regional Solicitor.

NOTE: An exception to this rule may apply if it can be documented that "an employer knows a particular safety or health standard is inadequate to protect his workers against the specific hazard it is intended to address." International Union, U.A.W. v. General Dynamics Land Systems Div., 815 F.2d 1570 (D.C. Cir. 1987). Such cases shall be subject to pre-citation review.

C. 2. c. (3) (d) Section 5(a)(1) shall normally not be used to require an abatement method not set forth in a specific standard. If a toxic substance standard covers engineering control requirements but not requirements for medical surveillance, Section 5(a)(1) shall not be cited to require medical surveillance.

(e) Section 5(a)(1) shall not be used to enforce "should" standards.

(f) Section 5(a)(1) shall not normally be used to cover categories of hazards exempted by a standard. If, however, the exemption is in place because the drafters of the standard (or source document) declined to deal with the exempt category for reasons other than the lack of a hazard, the general duty clause may be cited if all the necessary elements for such a citation are present.

(4) Pre-Citation Review. Section 5(a)(1) citations shall undergo a pre-citation review following established area office procedures when required by the Area Director or Assistant Area Director.

NOTE: If a standard does not apply and all criteria for issuing a Section 5(a)(1) citation are not met, but it is determined that the hazard warrants some type of notification, a letter shall be sent to the employer and the employee representative describing the hazard and suggesting corrective action.

d. Willful Violations. The following definitions and procedures apply whenever the CSHO suspects that a willful violation may exist:

(1) A willful violation exists under the Act where the evidence shows either an intentional violation of the Act or plain indifference to its requirements.

(a) The employer committed an intentional and knowing violation if:

1 An employer representative was aware of the requirements of the Act, or the existence of an applicable standard or regulation, and was also aware of a condition or practice in violation of those requirements, and did not abate the hazard.

2 An employer representative was not aware of the requirements of the Act or standards, but was aware of a comparable legal requirement (e.g., state or local law) and was also aware of a condition or practice in violation of that requirement, and did not abate the hazard.

C. 2. d. (1) (b) The employer committed a violation with plain indifference to the law where:

1 Higher management officials were aware of an OSHA requirement applicable to the company's business but made little or no effort to communicate the requirement to lower level supervisors and employees.

2 Company officials were aware of a continuing compliance problem but made little or no effort to avoid violations.

EXAMPLE: Repeated issuance of citations addressing the same or similar conditions.

3 An employer representative was not aware of any legal requirement, but was aware that a condition or practice was hazardous to the safety or health of employees and made little or no effort to determine the extent of the problem or to take the corrective action. Knowledge of a hazard may be gained from such means as insurance company reports, safety committee or other internal reports, the occurrence of illnesses or injuries, media coverage, or, in some cases, complaints of employees or their representatives.

4 Finally, in particularly flagrant situations, willfulness can be found despite lack of knowledge of either a legal requirement or the existence of a hazard if the circumstances show that the employer would have placed no importance on such knowledge even if he or she had possessed it, or had no concern for the health or safety of employees.

(2) It is not necessary that the violation be committed with a bad purpose or an evil intent to be deemed "willful." It is sufficient that the violation was deliberate, voluntary or intentional as distinguished from inadvertent, accidental or ordinarily negligent.

(3) The CSHO shall carefully develop and record, during the inspection, all evidence available that indicates employer awareness of and the disregard for statutory obligations or of the hazardous conditions. Willfulness could exist if an employer is advised by employees or employee representatives of an alleged hazardous condition and the employer makes no reasonable effort to verify and correct the condition. Additional factors which can influence a decision as to whether violations are willful include:

C. 2. d. (3) (a) The nature of the employer's business and the knowledge regarding safety and health matters which could reasonably be expected in the industry.

(b) The precautions taken by the employer to limit the hazardous conditions.

(c) The employer's awareness of the Act and of the responsibility to provide safe and healthful working conditions.

(d) Whether similar violations and/or hazardous conditions have been brought to the attention of the employer.

(e) Whether the nature and extent of the violations disclose a purposeful disregard of the employer's responsibility under the Act.

(4) If the Area Office cannot determine whether to issue a citation as a willful or a repeat violation due to the raising of difficult issues of law and policy which will require the evaluation of complex factual situations, the Area Director shall normally consult with the Regional Solicitor.

e. Criminal/Willful Violations. Section 17(e) of the Act provides that: "Any employer who willfully violates any standard, rule or order promulgated pursuant to Section 6 of this Act, or of any regulations prescribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be a fine of not more than $20,000 or by imprisonment for not more than one year, or by both."

(1) The Area Director, in coordination with the Regional Solicitor, shall carefully evaluate all willful cases involving worker deaths to determine whether they may involve criminal violations of Section 17(e) of the Act. Because the nature of the evidence available is of paramount importance in an investigation of this type, there shall be early and close liaison between the OSHA investigator, the Area Director, the Regional Administrator, and the Regional Solicitor in developing any finding which might involve a violation of Section 17(e) of the Act.

C. 2. e. (2) The following criteria shall be considered in investigating possible criminal/willful violations:

(a) In order to establish a criminal/willful violation OSHA must prove that:

1 The employer violated an OSHA standard. A criminal/willful violation cannot be based on violation of Section 5(a)(1).

2 The violation was willful in nature.

3 The violation of the standard caused the death of an employee. In order to prove that the violation of the standard caused the death of an employee, there must be evidence in the file which clearly demonstrates that the violation of the standard was the cause of or a contributing factor to an employee's death.

(b) Although it is generally not necessary to issue "Miranda" warnings to an employer when a criminal/willful investigation is in progress, the Area Director shall seek the advice of the Regional Solicitor on this question.

(c) Following the investigation, if the Area Director decides to recommend criminal prosecution, a memorandum containing that recommendation shall be forwarded promptly to the Regional Administrator. It shall include an evaluation of the possible criminal charges, taking into consideration the greater burden of proof which requires that the Government's case be proven beyond a reasonable doubt. In addition, if the correction of the hazardous condition appears to be an issue, this shall be noted in the transmittal memorandum because in most cases the prosecution of a criminal/willful case delays the affirmance of the civil citation and its correction requirements.

(d) The Area Director shall normally issue a civil citation in accordance with current procedures even if the citation involves allegations under consideration for criminal prosecution. The Regional Administrator shall be notified of such cases, and they shall be forwarded to the Regional Solicitor as soon as practicable for possible referral to the U.S. Department of Justice.

(3) When a willful violation is related to a fatality, the Area Director shall ensure the case file contains succinct documentation regarding the decision not to make a criminal referral. The documentation should indicate which elements of a criminal violation make the case unsuitable for criminal referral.

C. 2. f. Repeated Violations. An employer may be cited for a repeated violation if that employer has been cited previously for a substantially similar condition and the citation has become a final order.

(1) Identical Standard. Generally, similar conditions can be demonstrated by showing that in both situations the identical standard was violated.

EXCEPTION: Previously a citation was issued for a violation of 29 CFR 1910.132(a) for not requiring the use of safety-toe footwear for employees. A recent inspection of the same establishment revealed a violation of 29 CFR 1910.132(a) for not requiring the use of head protection (hard hats). Although the same standard was involved, the hazardous conditions found were not substantially similar and therefore a repeated violation would not be appropriate.

(2) Different Standards. In some circumstances, similar conditions can be demonstrated when different standards are violated. Although there may be different standards involved, the hazardous conditions found could be substantially similar and therefore a repeated violation would be appropriate.

(3) Time limitations. Although there are no statutory limitations upon the length of time that a citation may serve as a basis for a repeated violation, the following policy shall be used in order to ensure uniformity.

(a) A citation will be issued as a repeated violation if:

1 The citation is issued within 3 years of the final order of the previous citation, or,

2 The citation is issued within 3 years of the final abatement date of that citation, whichever is later.

(b) When a violation is found during an inspection, and a repeated citation has been issued for a substantially similar condition which meets the above time limitations, the violation may be classified as a second instance repeated violation with a corresponding increase in penalty (see Chapter IV, C.2.l.).

C. 2. f. (3) (c) For any further repetition, the Area Director shall be consulted for guidance.

(4) Obtaining Inspection History. For purposes of determining whether a violation is repeated, the following criteria shall apply:

(a) High Gravity Serious Violations. When high gravity serious violations are to be cited, the Area Director shall obtain a history of citations previously issued to this employer at all of its identified establishments, nationwide, (Federal enforcement only) within the same two-digit SIC code. If these violations have been previously cited within the time limitations described in C.2.f.(3), above, and have become a final order of the Review Commission, a repeated citation may be issued. Under special circumstances, the Area Director, in consultation with the Regional Solicitor, may also issue citations for repeated violations without regard for the SIC code.

(b) Violations of Lesser Gravity. When violations of lesser gravity than high gravity serious are to be cited, Agency policy is to encourage the Area Director to obtain a national inspection history whenever the circumstances of the current inspection will result in a large number of serious, repeat, or willful citations. This is particularly so if the employer is known to have establishments nationwide and if significant citations have been issued against the employer in other areas, or at other mobile worksites.

(c) Geographical limitations. Where a national inspection history has not been obtained, the following criteria regarding geographical limitations shall apply:

1 Multifacility Employer. A multifacility employer shall be cited for a repeated violation if the violation recurred at any worksite within the same OSHA Area Office jurisdiction.

EXAMPLE: Where the construction site extends over a large area and/or the scope of the job is unclear (such as road building), that portion of the workplace specified in the employer's contract which falls within the Area Office jurisdiction is the establishment. If an employer has several worksites within the same Area Office jurisdiction, a citation of a violation at Site A will serve as the basis for a repeated citation in Area B.

2 Longshoring Establishment. A longshoring establishment will encompass all longshoring activities of a single stevedore within any single port area. Longshoring employers are subject to repeated violation citations based on prior violations occurring anywhere. Other maritime employers covered by OSHA standards (e.g., shipbuilding, ship repairing) are multifacility employers as defined in a., above.

C. 2. f. (5) Repeated vs. Willful. Repeated violations differ from willful violations in that they may result from an inadvertent, accidental or ordinarily negligent act. Where a repeated violation may also meet the criteria for willful but not clearly so, a citation for a repeated violation shall normally be issued.

(6) Repeated vs. Failure to Abate. A failure to abate situation exists when an item of equipment or condition previously cited has never been brought into compliance and is noted at a later inspection. If, however, the violation was not continuous (i.e., if it had been corrected and then reoccurred), the subsequent occurrence is a repeated violation.

(7) Alleged Violation Description (AVD). If a repeated citation is issued, the CSHO must ensure that the cited employer is fully informed of the previous violations serving as a basis for the repeated citation, by notation in the AVD portion of the citation, using the following or similar language:

THE (COMPANY NAME) WAS PREVIOUSLY CITED FOR A VIOLATION OF THIS OCCUPATIONAL SAFETY AND HEALTH STANDARD OR ITS EQUIVALENT STANDARD (NAME PREVIOUSLY CITED STANDARD) WHICH WAS CONTAINED IN OSHA INSPECTION NUMBER_________, CITATION NUMBER_________, ITEM NUMBER_________, ISSUED ON (DATE), WITH RESPECT TO A WORKPLACE LOCATED AT ___________.

g. De Minimis Violations. De Minimis violations are violations of standards which have no direct or immediate relationship to safety or health and shall not be included in citations. An OSHA-1B/1BIH is no longer required to be completed for De Minimis violations. The employer should be verbally notified of the violation and the CSHO should note it in the inspection case file. The criteria for finding a de minimis violation are as follows:

(1) An employer complies with the clear intent of the standard but deviates from its particular requirements in a manner that has no direct or immediate relationship to employee safety or health. These deviations may involve distance specifications, construction material requirements, use of incorrect color, minor variations from recordkeeping, testing, or inspection regulations, or the like.

EXAMPLE #1: 29 CFR 1910.27(b)(1)(ii) allows 12 inches (30 centimeters) as the maximum distance between ladder rungs. Where the rungs are 13 inches (33 centimeters) apart, the condition is de minimis.

EXAMPLE #2: 29 CFR 1910.28(a)(3) requires guarding on all open sides of scaffolds. Where employees are tied off with safety belts in lieu of guarding, often the intent of the standard will be met, and the absence of guarding may be de minimis.

EXAMPLE #3: 29 CFR 1910.217(e)(1)(ii) requires that mechanical power presses be inspected and tested at least weekly. If the machinery is seldom used, inspection and testing prior to each use is adequate to meet the intent of the standard.

(2) An employer complies with a proposed standard or amendment or a consensus standard rather than with the standard in effect at the time of the inspection and the employer's action clearly provides equal or greater employee protection or the employer complies with a written interpretation issued by the OSHA Regional or National Office.

(3) An employer's workplace is at the "state of the art" which is technically beyond the requirements of the applicable standard and provides equivalent or more effective employee safety or health protection.

C. 3. Health Standard Violations.

a. Citation of Ventilation Standards. In cases where a citation of a ventilation standard may be appropriate, consideration shall be given to standards intended to control exposure to recognized hazardous levels of air contaminants, to prevent fire or explosions, or to regulate operations which may involve confined space or specific hazardous conditions. In applying these standards, the following guidelines shall be observed:

(1) Health-Related Ventilation Standards. An employer is considered in compliance with a health-related airflow ventilation standard when the employee exposure does not exceed appropriate airborne contaminant standards; e.g., the PELs prescribed in 29 CFR 1910.1000.

(a) Where an over-exposure to an airborne contaminant is detected, the appropriate air contaminant engineering control requirement shall be cited; e.g., 29 CFR 1910.1000(e). In no case shall citations of this standard be issued for the purpose of requiring specific volumes of air to ventilate such exposures.

(b) Other requirements contained in health-related ventilation standards shall be evaluated without regard to the concentration of airborne contaminants. Where a specific standard has been violated and an actual or potential hazard has been documented, a citation shall be issued.

C. 3. a. (2) Fire- and Explosion-Related Ventilation Standards. Although they are not technically health violations, the following guidelines shall be observed when citing fire- and explosion-related ventilation standards:

(a) Adequate Ventilation. In the application of fire- and explosion- related ventilation standards, OSHA considers that an operation has adequate ventilation when both of the following criteria are met:

1 The requirement of the specific standard has been met.

2 The concentration of flammable vapors is 25 percent or less of the lower explosive limit (LEL).

EXCEPTION: Certain standards specify violations when 10 percent of the LEL is exceeded. These standards are found in maritime and construction exposures.

(b) Citation Policy. If 25 percent (10 percent when specified for maritime or construction operations) of the LEL has been exceeded and:

1 The standard requirements have not been met, the standard violation normally shall be cited as serious.

2 There is no applicable specific ventilation standard, Section 5(a)(1) of the Act shall be cited in accordance with the guidelines given in C.2.c. of this chapter.

b. Violations of the Noise Standard. Current enforcement policy regarding 29 CFR 1910.95(b)(1) allows employers to rely on personal protective equipment and a hearing conservation program rather than engineering and/or administrative controls when hearing protectors will effectively attenuate the noise to which the employee is exposed to acceptable levels as specified in Tables G-16 or G-16a of the standard.

(1) Citations for violations of 29 CFR 1910.95(b)(1) shall be issued when engineering and/or administrative controls are feasible, both technically and economically; and

C. 3. b. (1) (a) Employee exposure levels are so high that hearing protectors alone may not reliably reduce noise levels received by the employee's ear to the levels specified in Tables G-16 or G-16a of the standard. Given the present state of the art, hearing protectors which offer the greatest attenuation may not reliably be used when employee exposure levels border on 100 dBA (See OSHA Instruction CPL 2-2.35A, Appendix.); or

(b) The costs of engineering and/or administrative controls are less than the cost of an effective hearing conservation program.

(2) A control is not reasonably necessary when an employer has an ongoing hearing conservation program and the results of audiometric testing indicate that existing controls and hearing protectors are adequately protecting employees. (In making this decision such factors as the exposure levels in question, the number of employees tested, and the duration of the testing program shall be taken into consideration.)

(3) When employee noise exposures are less than 100 dBA but the employer does not have an ongoing hearing conservation program or the results of audiometric testing indicate that the employer's existing program is not working, the CSHO shall consider whether:

(a) Reliance on an effective hearing conservation program would be less costly than engineering and/or administrative controls.

(b) An effective hearing conservation program can be established or improvements can be made in an existing hearing conservation program which could bring the employer into compliance with Tables G-16 or G-16a.

(c) Engineering and/or administrative controls are both technically and economically feasible.

(4) If noise levels received by the employee's ear can be reduced to the levels specified in Tables G-16 or G-16a by means of hearing protectors and an effective hearing conservation program, citations under the hearing conservation shall normally be issued rather than citations requiring engineering controls. If improvements in the hearing conservation program cannot be made or, if made, cannot be expected to reduce exposure sufficiently and feasible controls exist, a citation under 1910.95(b)(1) shall normally be issued.

(5) When hearing protection is required but not used and employee exposure exceeds the limits of Table G-16, 29 CFR 1910.95(i)(2)(i) shall be cited and classified as serious (see (8), below) whether or not the employer has instituted a hearing conservation program. 29 CFR 1910.95(a) shall no longer be cited except in the case of the oil and gas drilling industry.

NOTE: Citations of 29 CFR 1910.95(i)(2)(ii)(b) shall also be classified as serious.

C. 3. b. (6) If an employer has instituted a hearing conservation program and a violation of the hearing conservation amendment (other than 1910.95 (i)(2)(i) or (i)(2)(ii)(b)) is found, a citation shall be issued if employee noise exposures equal or exceed an 8-hour time-weighted average of 85 dB.

(7) If the employer has not instituted a hearing conservation program and employee noise exposures equal or exceed an 8-hour time-weighted average of 85 dB, a citation for 1910.95(c) only shall be issued.

(8) Violations of 1910.95(i)(2)(i) from the hearing conservation amendment may be grouped with violations of 29 CFR 1910.95(b)(1) and classified as serious when an employee is exposed to noise levels above the limits of Table G-l6 and:

(a) Hearing protection is not utilized or is not adequate to prevent overexposure to an employee; or

(b) There is evidence of hearing loss which could reasonably be considered:

1 To be work-related, and

2 To have been preventable, at least to some degree, if the employer had been in compliance with the cited provisions.

(9) When an employee is overexposed but effective hearing protection is being provided and used, an effective hearing conservation program has been implemented and no feasible engineering or administrative controls exist, a citation shall not be issued.

c. Violations of the Respirator Standard. When considering a citation for respirator violations, the following guidelines shall be observed:

(1) In Situations Where Overexposure Does Not Occur. Where an overexposure has not been established:

C. 3. c. (1) (a) But an improper type of respirator is being used (e.g., a dust respirator being used to reduce exposure to organic vapors), a citation under 29 CFR 1910.134(b)(2) shall be issued, provided the CSHO documents that an overexposure is possible.

(b) And one or more of the other requirements of 29 CFR 1910.134 is not being met; e.g., an unapproved respirator is being used to reduce exposure to toxic dusts, generally a de minimis violation shall be recorded in accordance with OSHA procedures. (Note that this policy does not include emergency use respirators.) The CSHO shall advise the employer of the elements of a good respirator program as required under 29 CFR 1910.134.

(c) In exceptional circumstances a citation may be warranted if an adverse health condition due to the respirator itself could be supported and documented. Examples may include a dirty respirator that is causing dermatitis, a worker's health being jeopardized by wearing a respirator due to an inadequately evaluated medical condition or a significant ingestion hazard created by an improperly cleaned respirator.

(2) In Situations Where Overexposure Does Occur. In cases where an overexposure to an air contaminant has been established, the following principles apply to citations of 1910.134:

(a) 29 CFR 1910.134(a)(2) is the general section requiring employers to provide respirators ". . . when such equipment is necessary to protect the health of the employee" and requiring the establishment and maintenance of a respiratory protection program which meets the requirements outlined in 29 CFR 1910.134(b). Thus, if no respiratory program at all has been established, 1910.134(a)(2) alone shall be cited; if a program has been established and some, but not all, of the requirements under 1910.134(b) are being met, the specific standards under 1910. 134(b) that are applicable shall be cited.

(b) An acceptable respiratory protection program includes all of the elements of 29 CFR 1910.134; however, the standard is structured such that essentially the same requirement is often specified in more than one section. In these cases, the section which most adequately describes the violation shall be cited.

C. 3. d. Additive and Synergistic Effects.

(1) Substances which have a known additive effect and, therefore, result in a greater probability/severity of risk when found in combination shall be evaluated using the formula found in 29 CFR 1910.1000(d)(2). The use of this formula requires that the exposures have an additive effect on the same body organ or system.

(2) If the CSHO suspects that synergistic effects are possible, it shall be brought to the attention of the supervisor, who shall refer the question to the Regional Administrator. If it is decided that there is a synergistic effect of the substances found together, the violations shall be grouped, when appropriate, for purposes of increasing the violation classification severity and/or the penalty.

e. Absorption and Ingestion Hazards. The following guidelines apply when citing absorption and ingestion violations. Such citations do not depend on measurements of airborne concentrations, but shall normally be supported by wipe sampling.

(1) Citations under 29 CFR 1910.132, 1910.141 and/or Section 5(a)(1) may be issued when there is reasonable probability that employees will be exposed to these hazards.

(2) Where, for any substance, a serious hazard is determined to exist due to the potential of ingestion or absorption of the substance for reasons other than the consumption of contaminated food or drink (e.g., smoking materials contaminated with the toxic substance), a serious citation shall be considered under Section 5(a)(1) of the Act.

f. Biological Monitoring. If the employer has been conducting biological monitoring, the CSHO shall evaluate the results of such testing. The results may assist in determining whether a significant quantity of the toxic material is being ingested or absorbed through the skin.

4. Writing Citations.

a. General. Section 9 of the Act controls the writing of citations.

(1) Section 9(a). ". . . the Secretary or his authorized representative . . . shall with reasonable promptness issue a citation to the employer." To facilitate the prompt issuance of citations, the Area Director may issue citations which are unrelated to health inspection air sampling, prior to receipt of sampling results.

C. 4. a. (2) Section 9(c). "No citation may be issued . . . after the expiration of six months following the occurrence of any violation." Accordingly, a citation shall not be issued where any violation alleged therein last occurred 6 months or more prior to the date on which the citation is actually signed and dated. Where the actions or omissions of the employer concealed the existence of the violation, the time limitation is suspended until such time that OSHA learns or could have learned of the violation. The Regional Solicitor shall be consulted in such cases.

b. Alternative Standards.

(1) In rare cases, the same factual situation may present a possible violation of more than one standard. For example, the facts which support a violation of 29 CFR 1910.28(a)(1) may also support a violation of 1910.132(a) if no scaffolding is provided when it should be and the use of safety belts is not required by the employer.

(2) Where it appears that more than one standard is applicable to a given factual situation and that compliance with any of the applicable standards would effectively eliminate the hazard, it is permissible to cite alternative standards using the words "in the alternative." A reference in the citation to each of the standards involved shall be accompanied by a separate Alleged Violation Description (AVD) which clearly alleges all of the necessary elements of a violation of that standard. Only one penalty shall be proposed for the violative condition.

5. Combining and Grouping of Violations.

a. Combining. Violations of a single standard having the same classification found during the inspection of an establishment or worksite generally shall be combined into one alleged citation item. Different options of the same standard shall normally also be combined. Each instance of the violation shall be separately set out within that item of the citation. Other-than-serious violations of a standard may be combined with serious violations of the same standard when appropriate.

NOTE: Except for standards which deal with multiple hazards (e.g., Tables Z-1, Z-2 and Z-3 cited under 29 CFR 1910.1000 (a), (b), or (c)), the same standard may not be cited more than once on a single citation. The same standard may be cited on different citations on the same inspection, however.

b. Grouping. When a source of a hazard is identified which involves interrelated violations of different standards, the violations may be grouped into a single item. The following situations normally call for grouping violations:

C. 5. b. (1) Grouping Related Violations. When the CSHO believes that violations classified either as serious or as other-than-serious are so closely related as to constitute a single hazardous condition.

(2) Grouping Other-Than-Serious Violations Where Grouping Results in a Serious Violation. When two or more individual violations are found which, if considered individually represent other-than-serious violations, but if grouped create a substantial probability of death or serious physical harm.

(3) Where Grouping Results in Higher Gravity Other-Than-Serious Violation. Where the CSHO finds during the course of the inspection that a number of other-than-serious violations are present in the same piece of equipment which, considered in relation to each other affect the overall gravity of possible injury resulting from an accident involving the combined violations.

(4) Violations of Posting and Recordkeeping Requirements. Violations of the posting and recordkeeping requirements which involve the same document; e.g., OSHA-200 Form was not posted or maintained. (See Chapter IV, C.2.n. for penalty amounts.)

(5) Penalties for Grouped Violations. If penalties are to be proposed for grouped violations, the penalty shall be written across from the first violation item appearing on the OSHA-2.

c. When Not to Group. Times when grouping is normally inappropriate.

(1) Multiple Inspections. Violations discovered in multiple inspections of a single establishment or worksite may not be grouped. An inspection in the same establishment or at the same worksite shall be considered a single inspection even if it continues for a period of more than one day or is discontinued with the intention of resuming it after a short period of time if only one OSHA-1 is completed.

(2) Separate Establishments of the Same Employer. Where inspections are conducted, either at the same time or different times, at two establishments of the same employer and instances of the same violation are discovered during each inspection, the employer shall be issued separate citations for each establishment. The violations shall not be grouped.

(3) General Duty Clause Violations. Because Section 5(a)(1) of the Act is cited so as to cover all aspects of a serious hazard for which no standard exists, no grouping of separate Section 5(a)(1) violations is permitted. This provision, however, does not prohibit grouping a Section 5(a)(1) violation with a related violation of a specific standard.

(4) Egregious Violations. Violations which are proposed as violation-by-violation citations shall not normally be combined or grouped. (See OSHA Instruction CPL 2.80.)

C. 6. This paragraph has been replaced by a revised multi-employer policy contained in OSHA Instruction CPL 2-0.124. Multiemployer Worksites. On multiemployer worksites, both construction and non-construction, citations normally shall be issued to employers whose employees are Vexposed to hazards (the exposing employer).

a. Additionally, the following employers normally shall be cited, whether or not their own employees are exposed, but see C.2.c.(2)(a)2 of this chapter for Section 5(a)(1) violation guidance:

(1) The employer who actually creates the hazard (the creating employer);

(2) The employer who is responsible, by contract or through actual practice, for safety and health conditions on the worksite; i.e., the employer who has the authority for ensuring that the hazardous condition is corrected (the controlling employer);

(3) The employer who has the responsibility for actually correcting the hazard (the correcting employer).

b. Prior to issuing citations to an exposing employer, it must first be determined whether the available facts indicate that employer has a legitimate defense to the citation, as set forth below:

(1) The employer did not create the hazard;

(2) The employer did not have the responsibility or the authority to have the hazard corrected;

(3) The employer did not have the ability to correct or remove the hazard;

(4) The employer can demonstrate that the creating, the controlling and/or the correcting employers, as appropriate, have been specifically notified of the hazards to which his/her employees are exposed;

(5) The employer has instructed his/her employees to recognize the hazard and, where necessary, informed them how to avoid the dangers associated with it.

(a) Where feasible, an exposing employer must have taken appropriate alternative means of protecting employees from the hazard.

(b) When extreme circumstances justify it, the exposing employer shall have removed his/her employees from the job to avoid citation.

C. 6. c. If an exposing employer meets all these defenses, that employer shall not be cited. If all employers on a worksite with employees exposed to a hazard meet these conditions, then the citation shall be issued only to the employers who are responsible for creating the hazard and/or who are in the best position to correct the hazard or to ensure its correction. In such circumstances the controlling employer and/or the hazard-creating employer shall be cited even though no employees of those employers are exposed to the violative condition. Penalties for such citations shall be appropriately calculated, using the exposed employees of all employers as the number of employees for probability assessment.

7. Employer/Employee Responsibilities.

a. Section 5(b) of the Act states: "Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to the Act which are applicable to his own actions and conduct." The Act does not provide for the issuance of citations or the proposal of penalties against employees. Employers are responsible for employee compliance with the standards.

b. In cases where the CSHO determines that employees are systematically refusing to comply with a standard applicable to their own actions and conduct, the matter shall be referred to the Area Director who shall consult with the Regional Administrator.

c. Under no circumstances is the CSHO to become involved in an onsite dispute involving labor-management issues or interpretation of collective-bargaining agreements. The CSHO is expected to obtain enough information to understand whether the employer is using all appropriate authority to ensure compliance with the Act. Concerted refusals to comply will not bar the issuance of an appropriate citation where the employer has failed to exercise full authority to the maximum extent reasonable, including discipline and discharge.

8. Affirmative Defenses.

a. Definition. An affirmative defense is any matter which, if established by the employer, will excuse the employer from a violation which has otherwise been proved by the CSHO.

b. Burden of Proof. Although affirmative defenses must be proved by the employer at the time of the hearing, OSHA must be prepared to respond whenever the employer is likely to raise or actually does raise an argument supporting such a defense. The CSHO, therefore, shall keep in mind the potential affirmative defenses that the employer may make and attempt to gather contrary evidence when a statement made during the inspection fairly raises a defense. The CSHO should bring the documentation of the hazards and facts related to possible affirmative defenses to the attention of the Assistant Area Director. Where it appears that each and every element of an affirmative defense is present, the Area Director may decide that a citation is not warranted.

C. 8. c. Explanations. The following are explanations of the more common affirmative defenses with which the CSHO shall become familiar. There are other affirmative defenses besides these, but they are less frequently raised or are such that the facts which can be gathered during the inspection are minimal.

(1) Unpreventable Employee Misconduct or "Isolated Event". The violative condition was:

(a) Unknown to the employer; and

(b) In violation of an adequate work rule which was effectively communicated and uniformly enforced.

EXAMPLE: An unguarded table saw is observed. The saw, however, has a guard which is reattached while the CSHO watches. Facts which the CSHO shall document may include: Who removed the guard and why? Did the employer know that the guard had been removed? How long or how often had the saw been used without guards? Did the employer have a work rule that the saw guards not be removed? How was the work rule communicated? Was the work rule enforced?

(2) Impossibility. Compliance with the requirements of a standard is:

(a) Functionally impossible or would prevent performances of required work; and

(b) There are no alternative means of employee protection.

EXAMPLE: During the course of the inspection an unguarded table saw is observed. The employer states that the nature of its work makes a guard unworkable. Facts which the CSHO shall document may include: Would a guard make performance of the work impossible or merely more difficult? Could a guard be used part of the time? Has the employer attempted to use guards? Has the employer considered alternative means or methods of avoiding or reducing the hazard?

C. 8. c. (3) Greater Hazard. Compliance with a standard would result in greater hazards to employees than noncompliance and:

(a) There are no alternative means of employee protection; and

(b) An application of a variance would be inappropriate.

EXAMPLE: The employer indicates that a saw guard had been removed because it caused particles to be thrown into the operator's face. Facts which the CSHO shall consider may include: Was the guard used properly? Would a different type of guard eliminate the problem? How often was the operator struck by particles and what kind of injuries resulted? Would safety glasses, a face mask, or a transparent shelf attached to the saw prevent injury? Was operator technique at fault and did the employer attempt to correct it? Was a variance sought?

(4) Multiemployer Worksites. Refer to C.6. of this chapter.



Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and no longer represents OSHA Policy. It is presented here as historical content, for research and review purposes only.



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