Notice of Initial Approval Determination; Illinois Public Employee Only State Plan, 45107-45116 [E9-21044]
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Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations
(2) The nature, circumstances, extent
and gravity of the violation. Under this
factor, the Commission will consider the
totality of the circumstances
surrounding a violation, including how
many provisions of law were violated.
The Commission will continue to look
at the enumerated statutory factors, as
well as other factors (as described in
paragraph (b) of this section) that the
Commission may determine are
appropriate, and consider all of the
factors in determining the civil penalty
amount.
(3) Nature of the product defect. The
Commission will consider the nature of
the product hazard/substance for which
a penalty is sought. A product defect
under this factor includes violations for
products that contain defects which
could create substantial product hazards
as referenced in the CPSA and defined
and explained in 16 CFR 1115.4;
regulatory violations of a rule,
regulation, standard or ban; or product
hazards presented by any other
violation of the prohibited acts of
section 19 of the CPSA.
(4) Severity of the risk of injury.
Consistent with its discussion of
severity of the risk at 16 CFR 1115.12,
the Commission will consider, among
other factors, the potential for serious
injury or death (and whether any injury
required actual medical treatment
including hospitalization or surgery);
the likelihood of injury; the intended or
reasonably foreseeable use or misuse of
the product; and the population at risk
(including vulnerable populations such
as children, the elderly, or those with
disabilities).
(5) The occurrence or absence of
injury. The Commission will consider
whether injuries have or have not
occurred with respect to any product
associated with the violation.
(6) The number of defective products
distributed. The Commission will
consider the actual number of products
or amount of substances imported or
placed in the stream of commerce to
distributors, retailers, and consumers.
(7) The appropriateness of such
penalty in relation to the size of the
business of the person charged
including how to mitigate undue
adverse economic impacts on small
businesses. (i) The Commission is
required to consider the size of a
business in relation to the amount of the
proposed penalty. This factor reflects
the relationship between the size of the
business of the person charged and the
deterrent effect of civil penalties. In
considering business ‘‘size,’’ the
Commission may look to several factors
including the firm’s number of
employees, net worth, and annual sales.
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The Commission may be guided, where
appropriate, by any relevant financial
factors to help determine a violator’s
ability to pay a proposed penalty
including: liquidity factors; solvency
factors; and profitability factors.
(ii) The statute requires the
Commission to consider how to mitigate
the adverse economic impacts on small
business violators only if those impacts
would be ‘‘undue.’’ What the
Commission considers to be ‘‘undue’’
will vary based upon the violator’s
business size and financial condition as
well as the nature, circumstances, extent
and gravity of the violation(s). When
considering how to mitigate undue
adverse economic consequences, the
Commission may also follow its Small
Business Enforcement Policy set forth at
16 CFR 1020.5.
(b) Other factors as appropriate. In
determining the amount of any civil
penalty to be pursued when a knowing
violation of the prohibited acts section
of the CPSA, FHSA, or FFA has
occurred, the Commission may
consider, where appropriate, other
factors in addition to those listed in the
statutes. Both the Commission and the
violator are free to raise any other
factors they believe are relevant in
determining an appropriate penalty
amount. Which, if any, additional
factors the Commission considers in
determining an appropriate penalty
amount, including but not limited to
those listed above, will be unique to
each case. In all civil penalty matters,
any additional factors beyond those
enumerated in the statute that the
Commission takes into consideration for
purposes of determining an appropriate
civil penalty amount will be made
known to and discussed with the
violator. Additional factors which may
be considered in an individual case
include, but are not limited to, the
following:
(1) Safety/Compliance Program and/
or System: The Commission may
consider, for example, whether a
violator had at the time of the violation,
a reasonable program/or system for
collecting and analyzing information
related to safety issues, including
incident reports, lawsuits, warranty
claims, and safety-related issues related
to repairs or returns; and whether a
violator conducted adequate and
relevant premarket and production
testing of the product(s) at issue.
(2) History of noncompliance: The
Commission may consider if the violator
has a history of noncompliance with the
CPSC and whether a higher penalty
should be assessed for repeated
noncompliance.
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45107
(3) Economic Gain from
Noncompliance: The Commission may
consider whether a firm benefitted
economically from a delay in complying
with statutory and regulatory
requirements.
(4) Failure of the violator to respond
in a timely and complete fashion to the
Commission’s requests for information
or remedial action: The Commission
may consider whether a violator’s
failure to respond in a timely and
complete fashion to requests from the
Commission for information or for
remedial action should increase the
amount of the penalty.
§ 1119.5
Enforcement notification.
A potential violator will be informed
in writing that the Commission believes
it is subject to a possible civil penalty.
The violator will be able to submit
evidence and arguments that it is not
subject to such a penalty.
Dated: August 19, 2009.
Alberta E. Mills,
Acting Secretary, Consumer Product Safety
Commission.
[FR Doc. E9–20591 Filed 8–31–09; 8:45 am]
BILLING CODE 6355–01–P
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1956
[Docket No. OSHA–2009–0010]
RIN 1218–AC44
Notice of Initial Approval
Determination; Illinois Public
Employee Only State Plan
AGENCY: Occupational Safety and Health
Administration, Department of Labor
(OSHA).
ACTION: Final rule.
SUMMARY: The Illinois Public Employee
Only State Plan, a State occupational
safety and health plan applicable only
to public sector employees (employees
of the State and its political
subdivisions), is approved as a
developmental plan under the
Occupational Safety and Health Act of
1970 and OSHA regulations. Under the
approved Plan, the Illinois Department
of Labor is designated as the State
agency responsible for the development
and enforcement of occupational safety
and health standards applicable to
public employment throughout the
State. The Occupational Safety and
Health Administration (OSHA) retains
full authority for coverage of private
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sector employees in the State of Illinois
as well as for coverage of Federal
government employees.
DATES: Effective Date: September 1,
2009.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Contact Jennifer Ashley,
Office of Communications, Room N–
3647, OSHA, U.S. Department of Labor,
200 Constitution Avenue, NW.,
Washington, DC 20210; Telephone (202)
693–1999.
General and technical inquiries:
Contact Barbara Bryant, Director, Office
of State Programs, Directorate of
Cooperative and State Programs, OSHA,
U.S. Department of Labor, Room N–
3700, 200 Constitution Avenue, NW.,
Washington, DC 20210, Telephone (202)
693–2244 or Fax (202) 693–1671.
SUPPLEMENTARY INFORMATION:
A. Introduction
Section 18 of the Occupational Safety
and Health Act of 1970 (the ‘‘Act’’), 29
U.S.C. 667, provides that a State which
desires to assume responsibility for the
development and enforcement of
standards relating to any occupational
safety and health issue with respect to
which a Federal standard has been
promulgated may submit a State Plan to
the Assistant Secretary of Labor for
Occupational Safety and Health
(‘‘Assistant Secretary’’) documenting the
proposed program in detail. Regulations
promulgated pursuant to the Act at 29
CFR Part 1956 provide that a State may
submit a State Plan for the development
and enforcement of occupational safety
and health standards applicable only to
employees of the State and its political
subdivisions (‘‘public employees’’).
State and local government workers are
excluded from Federal coverage under
the Act and are provided protection
only through the vehicle of a State Plan
approved pursuant to Section 18 of the
Act.
Under these regulations the Assistant
Secretary will approve a State Plan for
public employees if the Plan provides
for the development and enforcement of
standards relating to hazards in
employment covered by the Plan which
are or will be at least as effective in
providing safe and healthful
employment and places of employment
for public employees as standards
promulgated and enforced under section
6 of the OSH Act, giving due
consideration to differences between
public and private sector employment.
In making this determination the
Assistant Secretary will consider,
among other things, the criteria and
indices of effectiveness set forth in 29
CFR Part 1956, Subpart B.
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A State Plan for public employees
may receive initial approval even
though, upon submission, it does not
fully meet the criteria set forth in
§§ 1956.10 and 1956.11, if it includes
satisfactory assurances by the State that
it will take the necessary steps, and
establishes an acceptable developmental
schedule, to meet the criteria within a
three year period (29 CFR 1956.2(b)).
The Assistant Secretary may publish a
notice of ‘‘certification of completion of
developmental steps’’ when all of a
State’s developmental commitments
have been met satisfactorily (29 CFR
1956.23; 1902.33 and 1902.34) and the
Plan is structurally complete. After
certification of a State Plan for public
employees, OSHA may initiate a period
of at least one year of intensive
performance monitoring, after which
OSHA may make a determination under
the procedures of §§ 1902.38, 1902.39,
1902.40 and 1902.41 as to whether, on
the basis of actual operations, the
criteria set forth in §§ 1956.10 and
1956.11 for ‘‘at least as effective’’ State
Plan performance are being applied
under the Plan.
B. History of the Present Proceeding
In 1973 the Illinois Industrial
Commission and the Illinois Department
of Labor obtained OSHA approval of a
State Plan for the enforcement of
occupational safety and health
standards covering private sector
workplaces as well as a program for
public employees in Illinois. That Plan
was approved by the Assistant Secretary
on November 5, 1973 (38 FR 30436; 29
CFR 1952.280 et seq.). The Plan was
subsequently withdrawn effective June
30, 1975 by the State of Illinois under
the authority of then Governor Dan
Walker after the State was unable to
make necessary modifications to its
program and statutory authority, and its
State funding was withdrawn (40 FR
24523).
Since 1985, the Illinois Department of
Labor (IDOL), Safety Inspection and
Education Division (SIED), has adopted
standards and performed inspections in
the public sector (State, county, and
municipal employees) as outlined under
the provisions of the State’s existing
enabling legislation: the Illinois Safety
Inspection and Education Act (SIEA)
[820 ILCS 220] and the Illinois Health
and Safety Act (HSA) [820 ILCS 225]. In
2005, Illinois began working on a Public
Employee Only State Plan and
submitted a draft Plan to OSHA in May
2006. OSHA’s review findings were
detailed in various memoranda and
other documents, including a May 18,
2007 letter to the Illinois Department of
Labor Director Catherine Shannon.
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OSHA determined that the Illinois
statutes, as structured, and the proposed
State Plan presented several obstacles to
meeting the Federal Public Employee
Only State Plan approval criteria in 29
CFR 1956. Amendments to both the
Illinois Safety Inspection and Education
Act and the Illinois Health and Safety
Act were proposed and enacted by the
Illinois General Assembly and signed
into law by the Governor in 2006 and
2007. The amended legislation provides
the basis for establishing a
comprehensive occupational safety and
health program applicable to public
employees in the State.
Illinois formally submitted a revised
Plan applicable only to public
employees for Federal approval on June
18, 2008. Over the next several months,
OSHA worked with Illinois in
identifying areas of the proposed Plan
which needed to be addressed or
required clarification. In response to
Federal review of the proposed State
Plan, supplemental assurances, and
revisions, corrections and additions to
the Plan were submitted on April 8,
2009 and May 15, 2009. Further
modifications were submitted by the
State on June 8, 2009. The revised
IDOL/SIED Plan has been found to be
conceptually approvable as a
developmental State Plan.
The Act provides for funding of up to
50% of the State Plan costs, but
longstanding language in OSHA’s
appropriation legislation further
provides that OSHA must fund ‘‘* * *
no less than 50% of the costs required
to be incurred’’ by an approved State
Plan. Such Federal funds to support the
State Plan must be available prior to
State Plan approval. The Omnibus
Appropriations Act for Fiscal Year 2009
includes $1.5 million in additional
OSHA State Plan grant funds to allow
for Department of Labor approval of an
Illinois State Plan.
On July 10, 2009, OSHA published
notice in the Federal Register (74 FR
33189) concerning the submission of the
Illinois Public Employee Only State
Plan, announcing that initial Federal
approval of the Plan was at issue, and
offering interested parties an
opportunity to review the Plan and
submit data, views, arguments or
requests for a hearing concerning the
Plan. The Illinois Department of Labor
similarly published notice of the
availability of the State Plan for
comment on July 15, 2009 in the Daily
Herald newspaper in Illinois.
To assist and encourage public
participation in the initial approval
process, the documents constituting the
Illinois State Plan for Public Employees
Only are available at https://
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www.regulations.gov as Docket No.
OSHA–2009–0010. Copies of the Illinois
State Plan also were maintained and are
available for inspection in the OSHA
Docket Office, Technical Data Center,
Room N–2625, OSHA, U.S. Department
of Labor, 200 Constitution Avenue,
NW., Washington, DC 20210; OSHA’s
Regional Office in Chicago, Illinois, at
230 South Dearborn Street, 32nd Floor,
Room 3244, Chicago, IL 60604; and at
the Offices of the Illinois Department of
Labor, Safety Inspection and Education
Division at 1 West Old State Capitol
Plaza, 3rd floor, Springfield, IL 62701;
160 North LaSalle Street, Suite C–1300,
Chicago, IL 60601; or 2309 West Main
Street, Suite 115, Marion IL 62959.
Electronic copies of this notice, as
well as news releases and other relevant
information, are available on OSHA’s
Web page at https://www.osha.gov.
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C. Summary and Evaluation of
Comments Received
In response to OSHA’s July 10, 2009,
Federal Register notice, which
announced the submission of the
Illinois Public Employee Only State
Plan and its availability for public
comment, nine (9) written public
comments were submitted by: (1) Mark
Bishop, Deputy Director, Healthy
Schools Campaign (Document # OSHA–
2009–0010–0024); (2) Linda Gibbons,
Certified School Nurse, Illinois
Association of School Nurses
(Document # OSHA–2009–0010–0028);
(3) Brenda McCracken and (4) Patrick
Genovese, President, Three Rivers
Chapter of the American Society of
Safety Engineers (Document # OSHA–
2009–0010–0025 and 0026); (5) Lorraine
M. Conroy, Associate Professor,
Environmental and Occupational Health
Sciences, and eight other officials of the
University of Illinois, School of Public
Health at Chicago (Document # OSHA–
2009–0010–0029); (6) Symantha Aydt,
School of Labor and Employment
Relations, University of Illinois
(Document # OSHA–2009–0010–0030
and 0031); (7) Scott D. Miller, Counsel,
American Federation of State, County
and Municipal Employees, Council 31,
Chicago, Illinois (Document # OSHA–
2009–0010–0032); (8) C. Christopher
Patton, President, American Society of
Safety Engineers (Document # OSHA–
2009–0010–0034); and (9) John T. Coli,
President, Teamsters Joint Council 25
(Document # OSHA–2009–0010–0035).
Mark Bishop, Deputy Director of the
Healthy Schools Campaign (exhibit
0024), expressed support for the Illinois
PEO State Plan, in particular IDOL’s
protection of the health and safety of
school teachers and staff.
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Linda J. Gibbons, Certified School
Nurse and member of the Illinois
Association of School Nurses (exhibit
0028), also expressed support for the
Illinois PEO State Plan.
The comments from Patrick Genovese,
President, Three Rivers Chapter of the
American Society of Safety Engineers
(ASSE) (exhibit 0026), as transmitted by
Brenda McCrackin (exhibit 0025),
supported the State of Illinois, for its
‘‘* * * intent to establish an Illinois
Public Employee Only State Plan’’, and
the extension of such coverage to all
public employees either under Federal
standards or through other non-State
Plan states following Illinois’ example.
In addition, Mr. Genovese mentioned
efforts ASSE members in Florida have
taken to see that public sector workers
are protected and the successes that
other established State Plans have
achieved.
The comments from Lorraine M.
Conroy, Associate Professor of
Environmental and Occupational Health
Sciences at the University of Illinois at
Chicago and eight other officials of the
University of Illinois, School of Public
Health (exhibit 0029), supported
approval of the Illinois PEO State Plan.
In addition, Ms. Conroy requested
clarification in the areas of coverage, the
complaint process, discrimination, rule
making, penalties, and comprehensive
safety and health programs in order to
assure that the Illinois program is as
effective, or more effective, than Federal
OSHA.
Symantha Aydt of the School of Labor
and Employment Relations at the
University of Illinois (exhibits 0030 and
0031) requested clarifications in several
areas, including methods for compelling
compliance, the State’s voluntary
compliance program, and coverage of
prisoners and volunteers.
Scott D. Miller, Counsel, American
Federation of State, County and
Municipal Employees (AFSCME),
Council 31 (exhibit 0032), which
represents more than 75,000 State
government public-service workers as
well as ‘‘thousands’’ of local
government employees in Illinois,
supported approval of the Illinois PEO
State Plan. However, Mr. Miller, on
behalf of AFSCME, requested that the
State provide ‘‘a heightened level of
assurances’’ that it will provide
adequate matching funds, that its
compliance officers will receive
comprehensive training on hazards in
the public sector, that it consider
expanded use of its first-instance
sanction authority, that the
independence of its Administrative Law
Judges be assured through specific
regulations and separation from IDOL’s
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45109
legal department, that procedural rules
be developed to implement the right of
employees and their representatives to
challenge the State’s failure to enforce,
and that IDOL undertake outreach
beyond its poster to inform public
employees of their rights and
responsibilities under the Plan.
C. Christopher Patton, President,
American Society of Safety Engineers
(exhibit 0034) on behalf of its 32,000
members nationwide and 1,400
members in Illinois, supported approval
of the Illinois PEO State Plan. Mr.
Patton also supported the extension of
such coverage to all public employees
either under Federal standards or
through other non-State Plan states
following Illinois’ example and
mentioned efforts ASSE members in
Florida have taken to see that public
sector workers are protected.
John T. Coli, President, Teamsters
Joint Council 25 (exhibit 0035)
supported approval of the Illinois PEO
State Plan on behalf of the Joint Council
and the 22 local unions under its
jurisdiction, who collectively represent
approximately 50,000 members in
Illinois State and municipal
governments. Mr. Coli emphasized the
need for adequate assurances that
Illinois will fund ‘‘a fully trained and
adequate staff,’’ support for monetary
penalties for failure to correct and
egregious violations, the importance of
the independence of the adjudicatory
process, and workers’ right to request a
hearing regarding the reasonableness of
the abatement period.
Several of the commenters requested
that the Plan extend coverage to include
safety and health protection of students
and other non-employee classes. Both
Federal OSHA’s and State Plans’
jurisdiction is statutorily limited to the
working conditions of employees and
does not extend to coverage of the
general public or of students. However,
the Illinois PEO State Plan extends
coverage to students who are working,
such as teaching or research assistants
in public colleges and universities.
Improved working conditions for public
school employees likely result in
benefits for students as well.
OSHA has carefully considered the
public comments and finds that none of
the commenters offered specific facts or
observations that would preclude
approval of the Illinois State Plan or
questioned whether the plan meets the
statutory and regulatory criteria for
initial approval as a developmental
plan. All of the commenters listed above
indicated their support for OSHA
approval of the Illinois Public Employee
Only State Plan. However, included in
the public comment are many useful
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suggestions for program clarifications
and enhancements. OSHA will require
the State to address these issues as they
develop the key elements of their
program during the next three years. No
requests for a public hearing were
submitted.
D. Review Findings
As required by 29 CFR 1956.2 in
considering the granting of initial
approval to a Public Employee Only
State Plan, OSHA must determine
whether the State Plan meets or will
meet the criteria in 29 CFR 1956.10 and
the indices of effectiveness in 29 CFR
1956.11. Findings and conclusions in
each of the major State Plan areas
addressed by 29 CFR 1956 are as
follows:
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(1) Designated Agency
Section 18(c)(1) of the OSH Act
provides that a State occupational safety
and health program must designate a
State agency or agencies responsible for
administering the Plan throughout the
State (29 CFR 1956.10(b)(1)). The Plan
must describe the authority and
responsibilities of the designated agency
and provide assurance that other
responsibilities of the agency will not
detract from its responsibilities under
the Plan (29 CFR 1956.10(b)(2)). The
Illinois Department of Labor is
designated by the Illinois Safety
Inspection and Education Act [820 ILCS
220] and the Illinois Health and Safety
Act [820 ILCS 225] as the sole agency
responsible for administering and
enforcing the public employee
protection program in Illinois. The
Illinois Department of Labor, Safety
Inspection and Education Division is
designated as the agency responsible for
the Public Employee Only State Plan.
The Plan describes the authority of the
Illinois Department of Labor and its
other responsibilities. (A separate
agency, the Illinois Department of
Commerce and Economic Development
delivers OSHA’s On-Site Consultation
program to private sector employers
throughout the State.) (Illinois State
Plan, pp. 1–3)
(2) Scope
Section 18(c)(6) of the OSH Act
provides that the State, to the extent
permitted by its law, shall under its
Plan establish and maintain an effective
and comprehensive occupational safety
and health program applicable to all
employees of the State and its political
subdivisions. Only where a State is
constitutionally precluded from
regulating occupational safety and
health conditions in certain political
subdivisions may the State exclude such
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political subdivision employees from
further coverage (29 CFR 1956.2(c)(1)).
Further, the State may not exclude any
occupational, industrial or hazard
groupings from coverage under its Plan
unless OSHA finds that the State has
shown there is no necessity for such
coverage (29 CFR 1956.2(c)(2)).
The scope of the Illinois State Plan
includes any employee of the State,
including members of the General
Assembly, members of the various State
commissions, persons employed by
public universities and colleges, and
employees of counties, cities,
townships, school districts, municipal
corporations, etc. No employees of any
political subdivision of the State or local
government are excluded from the Plan.
However, the definition of public
employee does not extend to students or
incarcerated or committed individuals
in public institutions, or volunteers,
unless they receive benefits such as
health insurance or Workers’
Compensation. The Illinois Department
of Labor will adopt all Federal OSHA
occupational safety and health
standards, and the Plan excludes no
occupational, industrial or hazard
grouping.
Consequently, OSHA finds that the
Illinois Plan contains satisfactory
assurances that no employees of the
State and its political subdivisions are
excluded from coverage, and the plan
excludes no occupational, industrial or
hazard grouping. (Illinois State Plan, p.
2)
(3) Standards
Section 18(c)(2) of the OSH Act
requires State Plans to provide for
occupational safety and health
standards which are at least as effective
as Federal OSHA standards. A State
Plan for public employees must
therefore provide for the development
or adoption of such standards and must
contain assurances that the State will
continue to develop or adopt such
standards (29 CFR 1956.10(c);
1956.11(b)(2)(ii)). A State may establish
the same standards as Federal OSHA (29
CFR 1956.11(a)(1)), or alternative
standards that are at least as effective as
those of Federal OSHA (29 CFR
1956.11(a)(2)). Where a State’s standards
are not identical to Federal OSHA, they
must meet the following criteria: they
must be promulgated through a
procedure allowing for consideration of
all pertinent factual information and
participation of all interested persons
(29 CFR 1956.11(b)(2)(iii)); must, where
dealing with toxic materials or harmful
physical agents, assure employee
protection throughout his or her
working life (29 CFR 1956. 11(b)(2)(i));
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must provide for furnishing employees
appropriate information regarding
hazards in the workplace through labels,
posting, medical examinations, etc. (29
CFR 1956.11(b)(2)(vi)); and, must
require suitable protective equipment,
technological control, monitoring, etc.
(29 CFR 1956.11(b)(2)(vii)).
In addition, the State Plan must
provide for prompt and effective
standards setting actions for protection
of employees against new and
unforeseen hazards, by such means as
authority to promulgate emergency
temporary standards (29 CFR
1956.11(b)(2)(v)).
Under the Plan’s legislation, the
Illinois Safety Inspection and Education
Act [820 ILCS 220] and the Illinois
Health and Safety Act [820 ILCS 225],
the Illinois Department of Labor has full
authority to adopt standards and
regulations and enforce and administer
all laws and rules protecting the safety
and health of employees of the State and
its political subdivisions. The
procedures for State adoption of Federal
occupational safety and health
standards include publication of a first
and second notice in the Illinois
Register, opportunity for a public
hearing, notification to the Joint
Committee on Administrative Rules,
etc., in accordance with the Illinois
Administrative Procedures Act [5 ICLS
100]. Illinois has adopted State
standards identical to Federal
occupational safety and health
standards as promulgated through
September 30, 2005. The State Plan
includes a commitment to update all
standards within one year after Plan
approval. The Plan also provides that
future OSHA standards and revisions
will be adopted by the State within six
months of Federal promulgation in
accordance with the requirements at 29
CFR 1953.5.
Under the Plan, the Illinois
Department of Labor has the authority to
adopt alternative or different
occupational safety and health
standards where no Federal standards
are applicable or where more stringent
standards are deemed advisable. Such
standards will be adopted in accordance
with the State Acts and the Illinois
Administrative Procedures Act, which
include provisions allowing
submissions from interested persons
and the opportunity to participate in
any hearing for the development,
modification or establishment of
standards. (Illinois State Plan, pp. 4–6)
The Illinois State Plan also provides
for the adoption of Federal emergency
temporary standards within 30 days of
Federal promulgation. (Illinois State
Plan pp. 5–6)
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Based on the preceding Plan
provisions, assurances, and
commitments, OSHA finds the Illinois
State Plan to have met the statutory and
regulatory requirements for initial plan
approval with respect to occupational
safety and health standards.
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(4) Variances
A State Plan must provide authority
for the granting of variances from State
standards upon application of a public
employer or employers which
corresponds to variances authorized
under the OSH Act, and for
consideration of the views of interested
parties, by such means as giving affected
employees notice of each application
and an opportunity to request and
participate in hearings or other
appropriate proceedings relating to
applications for variances (29 CFR
1956.11(b)(2)(iv)).
Section 4.2 of the Illinois Health and
Safety Act [820 ILCS 225] includes
provisions for the granting of permanent
and temporary variances from State
standards to public employers in terms
substantially similar to the variance
provisions contained in the Federal Act.
The State provisions require employee
notification of variance applications as
well as employee rights to participate in
hearings held on variance applications.
Variances may not be granted unless it
is established that adequate protection
is afforded employees under the terms
of the variance. However, the State’s
variance procedures at 56 ILAC 350.40
require revision. The State has provided
assurances in its developmental
schedule that within two years of initial
plan approval it will amend its
regulations to reflect variance
provisions equivalent to those contained
in the Federal 29 CFR 1905. (Illinois
State Plan pp. 7–8 and 19)
(5) Enforcement
Section 18(c)(2) of the OSH Act and
29 CFR 1956.10(d)(1) require a State
Plan to include provisions for
enforcement of State standards which
are or will be at least as effective in
providing safe and healthful
employment and places of employment
as the Federal program, and to assure
that the State’s enforcement program for
public employees will continue to be at
least as effective as the Federal program
in the private sector.
(a) Legal Authority. The State must
require public employer and employee
compliance with all applicable
standards, rules and orders (29 CFR
1956.10(d)(2)) and must have the legal
authority for standards enforcement
(section 18(c)(4)), including compulsory
process (29 CFR 1956.11(c)(2)(viii)).
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Section 3 of the Illinois Health and
Safety Act [820 ILCS 225/3] establishes
the duty of public employers to provide
a place of employment free of
recognized hazards, to comply with the
Illinois Department of Labor’s
occupational safety and health
standards, to inform employees of their
protections and obligations and provide
information on hazards in the
workplace. Public employees must
comply with all standards and
regulations applicable to their own
actions and conduct.
(b) Inspections. A State Plan must
provide for inspection of covered
workplaces, including in response to
complaints, where there are reasonable
grounds to believe a hazard exists (29
CFR 1956.11(c)(2)(i)).
When no compliance action results
from inspection of violations alleged by
employee complaints, the State must
notify the complainant of its decision
not to take compliance action by such
means as written notification and
opportunity for informal review (29 CFR
1956.11(c)(2)(iii)).
Sections 2 and 2.1 of the Illinois
Safety Inspection and Education Act
(SIEA) [820 ILCS 220] provide for
inspections of covered workplaces,
including inspections in response to
employee complaints, by the Director of
Labor. If a determination is made that an
employee complaint does not warrant
an inspection, the complainant will be
notified in writing of such
determination. The complainant will be
notified of the results of any inspection
in writing and provided a copy of any
citation that is issued. Employee
complainants may request that their
names not be revealed. (Illinois State
Plan, pp. 10–11)
(c) Employee Notice and Participation
in Inspection. In conducting
inspections, the State Plan must provide
an opportunity for employees and their
representatives to point out possible
violations through such means as
employee accompaniment or interviews
with employees (29 CFR
1956.11(c)(2)(ii)).
The Illinois Safety Inspection and
Education Act provides the opportunity
for employer and employee
representatives to accompany a
Department of Labor inspector for the
purpose of aiding the inspection. Where
there is no authorized employee
representative, the inspectors are
required to consult with a reasonable
number of employees concerning
matters of safety and health in the
workplace. (820 ILCS 220/2(b)(6))
In addition, the State Plan must
provide that employees be informed of
their protections and obligations under
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45111
the Act by such means as the posting of
notices (29 CFR 1956.11(c)(2)(iv)); and
provide that employees have access to
information on their exposure to
regulated agents and access to records of
the monitoring of their exposure to such
agents (29 CFR 1956.11(c)(2)(vi)).
The Plan provides for notification to
employees of their protections and
obligations under the Plan by such
means as a State poster, required
posting of notices of violation, etc. The
State has provided assurances in its
developmental schedule to update and
submit the State poster for posting at all
public sector workplaces in the State
within one year of initial plan approval.
(Illinois State Plan, p. 20)
Section 2.5 of the Illinois Safety
Inspection and Education Act
authorizes the Director of Labor to issue
rules requiring employers to maintain
accurate records of employee exposures
to potentially toxic materials or harmful
physical agents. Information on
employee exposure to regulated agents,
access to medical and exposure records,
and provision and use of suitable
protective equipment is provided
through State standards which will be
updated within one year of plan
approval. (Illinois State Plan, p. 13; p.
19)
(d) Nondiscrimination. A State is
expected to provide appropriate
protection to employees against
discharge or discrimination for
exercising their rights under the State’s
program, including provision for
employer sanctions and employee
confidentiality (29 CFR
1956.11(c)(2)(v)).
Section 2.2 of the Illinois Safety
Inspection and Education Act [820 ILCS
220] provides that a person may not
discharge or in any other way
discriminate against any employee
because the employee has filed a
complaint or instituted or caused to be
instituted any proceeding under or
related to the Acts or has testified or is
about to testify in any such proceeding
or because of the exercise by the
employee on behalf of himself or herself
or others of any right afforded by the
State Acts.
The SIEA provides that an employee
who believes that he or she has been
discharged or otherwise discriminated
against by any person in violation of
this section may, within 30 calendar
days after the violation occurs, file a
complaint with the Director of Labor
alleging the discrimination. The Plan
provides that the Director shall
investigate such complaints as
appropriate and make a determination
within 90 days. If the Director
determines that the provisions of this
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section have been violated, the Director
shall bring an action in the circuit court
for appropriate relief. (820 ILCS 220/2.2
and Illinois State Plan, p.11)
The Illinois State Plan provides for
protection of employees against
discharge or discrimination resulting
from exercise of their rights under the
State Acts in terms essentially identical
to section 11(c) of the Federal Act.
(e) Restraint of Imminent Danger. A
State Plan is required to provide for the
prompt restraint of imminent danger
situations (29 CFR 1956.11(c)(2)(vii)).
Section 2(b)(7)(B) of the Illinois Safety
Inspection and Education Act [820 ILCS
220] provides that the Director may file
a complaint in the circuit court for
appropriate relief, by such means as an
order to cease and desist, to restrain any
conditions or practices in the workplace
which the Director determines, in
accordance with the State Acts, are such
that a danger exists which could
reasonably be expected to cause death
or serious physical harm immediately or
before the danger could be eliminated
through the enforcement process.
(Illinois State Plan, p. 10)
(f) Right of Entry; Advance Notice. A
State program is required to have
authority for right of entry to inspect
and compulsory process to enforce such
right equivalent to the Federal program
(section 18(c)(3) of the OSH Act and 29
CFR 1956.10(e)). Likewise, a State is
expected to prohibit advance notice of
inspection, allowing exception thereto
no broader than in the Federal program
(29 CFR 1956.10(f)).
Section 2(b)(3) of the Illinois Safety
Inspection and Education Act [820 ILCS
220] provides that the Director of Labor
has the right to inspect and investigate
during regular working hours and at
other reasonable times, and within
reasonable limits and in a reasonable
manner, any such place of employment
and all pertinent conditions, structures,
machines, apparatus, devices,
equipment, and materials therein, and
to question privately any such
employer, agent or employee.
Section 2.6(a) of the SIEA prohibits
advance notice of inspections. A person
who gives advance notice of any
inspection to be conducted under the
authority of this Act or the Health and
Safety Act without authority from the
Director of Labor, or his or her
authorized representative, commits a
Class B misdemeanor. (Illinois State
Plan, p. 9)
(g) Citations, Sanctions, and
Abatement. A State Plan is expected to
have authority and procedures for
promptly notifying employers and
employees of violations, including
proposed abatement requirements,
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identified during inspection, for the
proposal of effective first-instance
sanctions against employers found in
violation of standards, and for prompt
employer notification of any such
sanctions. In lieu of monetary penalties
as a sanction, a complex of enforcement
tools and rights, including
administrative orders and employees’
right to contest, may be demonstrated to
be as effective as monetary penalties in
achieving compliance in public
employment (29 CFR 1956.11(c)(2)(ix)
and (x)).
The Illinois Safety Inspection and
Education Act establishes the authority
and general procedures for the Director
of Labor to promptly notify public
employers and employees of violations,
abatement requirements, and to compel
compliance. The Director of Labor must
issue a written order to comply with
reasonable promptness, which in no
case may be more than six months after
the occurrence of any violation. The
SIEA provides that when an inspection
of an establishment has been made, and
the Director of Labor has issued a
citation, the employer shall post such
citation or a copy thereof at or near the
location where the violation occurred.
Each citation shall be in writing;
describe with particularity the nature of
the violation and include a reference to
the provision of the Act, standard, rule,
regulation, or order alleged to have been
violated; and fix a reasonable time for
the abatement of the violation. (820
ILCS 220/2.3)
Although Section 2.3 of the SIEA
contains authority for a system of firstinstance monetary penalties, in practice
it is the State’s intent to issue monetary
penalties only for failure to correct and
egregious violations. The State has
discretionary authority for civil
penalties of not more than $10,000 for
repeat and willful violations. Serious
and other-than-serious violations may
be assessed a penalty of up to $1,000 per
violation and failure-to-correct
violations may be assessed a penalty of
up to $1,000 per violation per day. In
addition, any public employer who
willfully violates any standard, rule, or
order can be charged by the Attorney
General with a Class 4 felony if that
violation causes death to any employee.
(Illinois State Plan, p. 11–12)
The State has given an assurance that
it will revise its regulations regarding
inspections, citations, and proposed
penalties to be equivalent to 29 CFR
1903 within two years of plan approval.
(Illinois State Plan, p. 19)
(h) Contested Cases. A State Plan
must have authority and procedures for
employer contest of violations alleged
by the State, penalties/sanctions and
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abatement requirements at full
administrative or judicial hearings.
Employees must also have the right to
contest abatement periods and the
opportunity to participate as parties in
all proceedings resulting from an
employer’s contest (29 CFR
1956.11(c)(2)(xi)).
Public employers or their
representatives who receive a citation or
a proposed penalty may within 15
working days contest the citation,
proposed penalty and/or abatement
period and request a hearing before an
Administrative Law Judge (ALJ) on
behalf of the Director. Any public
employee or representative may within
15 working days request a hearing
before an ALJ regarding the
reasonableness of the abatement period.
Informal review prior to contest may
also be requested at the division level.
The ALJ’s decision is subject to appeal
to the courts. (Illinois State Plan, pp.
12–13)
Although the Illinois Plan does not
include an independent authority for
review of contested cases, and the
Director technically has statutory
responsibility for both the enforcement
and the appeals process (820 ILCS 220/
2.4), in practice, Administrative Law
Judges hear contested cases without any
oversight or review by the Director.
ALJ’s decisions are subject to judicial
review under the Illinois Administrative
Review Law. (56 ILCS 350.120). Within
one year of plan approval, the State will
make appropriate changes to its
regulations and procedures to ensure
the separation of these functions and the
independence of the adjudicatory
process. The Director of Labor will
remain responsible for the enforcement
process, including the issuance of
citations and penalties, and their
defense, if contested.
The State’s developmental schedule
also includes an assurance that it will
revise its regulations regarding the
review system for contested cases to be
equivalent to 29 CFR 2200 within two
years of plan approval. (Illinois State
Plan, p. 19)
(i) Enforcement Conclusion.
Accordingly, OSHA finds that the
enforcement provisions of the Illinois
State Plan as described above meet or
will meet the statutory and regulatory
requirements for initial State Plan
approval.
(6) Staffing and Resources
Section 18(c)(4) of the OSH Act
requires State Plans to provide the
qualified personnel necessary for the
enforcement of standards. In accordance
with 29 CFR 1956.10(g), one factor
which OSHA must consider in
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considering a plan for initial approval is
whether the State has or will have a
sufficient number of adequately trained
and competent personnel to discharge
its responsibilities under the plan.
The Illinois State Plan (p. 17; pp. 19–
20) provides assurances of a fully
trained, adequate staff, including 11
safety and 3 health compliance officers
for enforcement inspections, and 3
safety and 2 health consultants to
provide consultation, training and
education services in the public sector.
The State has a currently authorized
staff of 8 safety and 3 health compliance
officers who, in addition to inspections,
also perform duties equivalent to
OSHA’s on-site consultation program.
The Plan provides assurances that
within three years of plan approval no
staff will have dual roles, and the State
will have a fully trained, adequate, and
separate staff of compliance officers for
enforcement inspections, and
consultants to perform consultation
services in the public sector. As new
staff members are hired they will
perform either enforcement or
consultation functions. The compliance
staffing requirements (or benchmarks)
for State Plans covering both the private
and public sectors are established based
on the ‘‘fully effective’’ test established
in AFL–CIO v. Marshall, 570 F.2d 1030
(DC Cir. 1978). This staffing test, and the
complicated formula used to derive
benchmarks for complete private/public
sector Plans, are not intended, nor are
they appropriate, for application to the
staffing needs of public employee only
Plans. However, the State has given
satisfactory assurance in its Plan that it
will meet the requirements of 29 CFR
1956.10 for an adequately trained and
qualified staff sufficient for the
enforcement of standards. (Illinois State
Plan, p. 17; pp. 19–20)
Section 18(c)(5) of the OSH Act
requires that the State Plan devote
adequate funds for the administration
and enforcement of its standards (29
CFR 1956.10(h)). Illinois has funded its
public employee safety and health
program since 1985 solely utilizing
State funds. The State Plan will be
funded at $3 million ($1.5 million
Federal 50% share and $1.5 million
State 50% matching share) during
Federal Fiscal Year 2009.
Accordingly, OSHA finds that the
Illinois State Plan has provided for
sufficient, qualified personnel and
adequate funding for the various
activities to be carried out under the
Plan.
(7) Records and Reports
State Plans must assure that
employers in the State submit reports to
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Jkt 217001
the Assistant Secretary in the same
manner as if the Plan were not in effect
(section 18(c)(7)) of the OSH Act).
Under a public employee State Plan,
public employers must maintain records
and make reports on occupational
injuries and illnesses in a manner
similar to that required of private sector
employers under the OSH Act and 29
CFR 1956.10(i). The Plan must also
provide assurances that the designated
agency will make such reports to the
Assistant Secretary in such form and
containing such information as he or
she may from time to time require
(section 18(c)(8) of the OSH Act and 29
CFR 1956.10(j)).
Illinois has provided assurances in its
State Plan (p. 19) that all jurisdictions
covered by the State Plan will maintain
valid records and make timely reports
on occupational injuries and illnesses,
as required for private sector employers
under the OSH Act. Specific regulations
on this aspect of the State Plan will be
submitted by Illinois in accord with its
developmental schedule, in which the
State has agreed to adopt amendments
to regulations regarding recordkeeping
equivalent to 29 CFR 1904 within two
years of plan approval.
Illinois has also provided assurance in
its State Plan (p. 20) that it will
coordinate with the Illinois Department
of Public Health and the Bureau of
Labor Statistics (BLS) to expand the
current BLS Annual Survey of Injuries
and Illnesses in the State to provide
more detailed injury, illness, and
fatality rates for the public sector within
two years of plan approval. Illinois will
also provide reports to OSHA in the
desired form and participate in OSHA’s
Integrated Management Information
System as well as OSHA’s Information
System, once deployed. (Illinois State
Plan p. 16; p. 20)
OSHA finds that the Illinois State
Plan has met the requirements of section
18(c)(7) and (8) of the OSH Act on the
employer and State reports to the
Assistant Secretary.
(8) Voluntary Compliance Program
A State Plan must undertake programs
to encourage voluntary compliance by
employers by such means as conducting
training and consultation with
employers and employees (29 CFR
1956.11(c)(2)(xii)).
The Illinois State Plan (pp. 13–14)
provides that the State Department of
Labor will continue and expand
educational programs for public
employees specifically designed to meet
the regulatory requirements and needs
of the public employer. The Plan also
provides that consultation visits and
training classes will be conducted at
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45113
work sites by request of the employer
and will be tailored to the public
employer’s concerns. In addition, public
agencies are encouraged to develop and
maintain their own safety and health
programs as an adjunct to but not a
substitute for the IDOL enforcement
program.
Illinois will establish an on-site
consultation program for the public
sector parallel to Illinois’ existing
private sector on-site consultation
program (under section 21(d) of the
OSH Act) within three years of plan
approval, which includes establishing a
public sector consultation staff separate
from enforcement. (Illinois State Plan, p.
19)
OSHA finds that the Illinois State
Plan provides for the establishment and
administration of an effective voluntary
compliance program.
E. Decision
OSHA, after carefully reviewing the
Illinois State Plan for the development
and enforcement of State standards
applicable to State and local
government employees and the record
developed during the above described
proceedings, has determined that the
requirements and criteria for initial
approval of a developmental State Plan
have been met. The Plan is hereby
approved as a developmental plan for
public employees only under section 18
of the Act and 29 CFR 1956. This
decision incorporates the requirements
of the Act and of regulations applicable
to State Plans generally.
The initial approval of a State Plan for
public employees in Illinois is not a
significant regulatory action as defined
in Executive Order 12866.
F. Regulatory Flexibility Act
OSHA certifies pursuant to the
Regulatory Flexibility Act of 1980 (5
U.S.C. 601 et seq.) that the initial
approval of the Illinois State Plan will
not have a significant economic impact
on a substantial number of small
entities. By its own terms, the Plan will
have no effect on private sector
employment, but is limited to the State
and its political subdivisions. Moreover,
the Illinois Safety Inspection and
Education Act has been in effect since
1961 and the Illinois Health and Safety
Act has been in effect since 1936, when
the State first established a safety and
health program. Since 1985, the Illinois
program for public employees has been
in operation under the Illinois
Department of Labor with State funding
and most public sector employers in the
State, including small units of local
government, have been subject to its
terms. Compliance with State OSHA
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standards is required by State law;
Federal approval of a State Plan imposes
regulatory requirements only on the
agency responsible for administering the
State Plan. Accordingly, no new
obligations would be placed on public
sector employers as a result of Federal
approval of the Plan.
G. Federalism
Executive Order 13132, ‘‘Federalism,’’
emphasizes consultation between
Federal agencies and the States and
establishes specific review procedures
the Federal government must follow as
it carries out policies which affect State
or local governments. OSHA has
consulted extensively with Illinois
throughout the development,
submission and consideration of its
proposed State Plan. Although OSHA
has determined that the requirements
and consultation procedures provided
in Executive Order 13132 are not
applicable to initial approval decisions
under the Act, which have no effect
outside the particular State receiving the
approval, OSHA has reviewed today’s
Illinois initial approval decision, and
believes it is consistent with the
principles and criteria set forth in the
Executive Order.
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H. Effective Date
OSHA’s decision granting initial
Federal approval to the Illinois State
Plan for public employees only is
effective September 1, 2009. Although
the State has had a program in effect for
many years, modification of the program
will be required over the next three
years by today’s decision. Federal 50%
matching funds have been explicitly
provided in the U.S. Department of
Labor’s FY 2009 appropriation. Notice
of proposed initial approval of the plan
was published in both the Federal
Register and in the Daily Herald
newspaper in Illinois with requests for
comment. No comments opposing
initial approval of the Plan were
received, and OSHA believes that no
party is adversely affected by initial
approval of the Plan. OSHA therefore
finds, pursuant to section 553(d) of the
Administrative Procedures Act, that
good cause exists for making Federal
approval of the Illinois Public Employee
Only State Plan effective upon
publication in today’s Federal Register.
I. Authority and Signature
This document was prepared under
the direction of Jordan Barab, Acting
Assistant Secretary of Labor for
Occupational Safety and Health. It is
issued under Section 18 of the
Occupational Safety and Health Act of
1970, (29 U.S.C. 667), 29 CFR parts 1956
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Jkt 217001
and 1902, and Secretary of Labor’s
Order No. 5–2007 (72 FR 31160).
Signed at Washington, DC, this 26th day of
August 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for
Occupational Safety and Health.
List of Subjects in 29 CFR 1956
Administrative practice and
procedure, Government employees,
Intergovernmental relations, Law
enforcement, Occupational safety and
health.
For the reasons set out in the
preamble, 29 CFR part 1956 is amended
as follows:
PART 1956—[AMENDED]
1. The authority citation for part 1956
is revised to read as follows:
■
Authority: Section 18 of the Occupational
Safety and Health Act of 1970, (29 U.S.C.
667), 29 CFR 1902, 1952, and 1955, and
Secretary of Labor’s Order No. 5–2007 (72 FR
31160).
2. Subpart I is added to read as
follows:
■
Subpart I—Illinois
Sec.
1956.80 Description of the plan as initially
approved.
1956.81 Developmental schedule.
1956.82 [Reserved]
1956.83 [Reserved]
1956.84 Location of plan for inspection
and copying.
Subpart I—Illinois
§ 1956.80 Description of the plan as
initially approved.
(a) Authority and scope. The Illinois
State Plan for Public Employee
Occupational Safety and Health
received initial OSHA approval on
September 1, 2009. The Plan designates
the Illinois Department of Labor as the
State agency responsible for
administering the Plan throughout the
State. The Plan includes as enabling
legislation the Illinois Safety Inspection
and Education Act (SIEA) [820 ILCS
220] and the Illinois Health and Safety
Act (HSA) [820 ILCS 225]. Under the
legislation, the State Director of Labor
has full authority to adopt, enforce and
administer all laws and rules protecting
the safety and health of all employees of
the State and its political subdivisions
under the Illinois Public Employee Only
State Plan.
(b) Standards. Illinois has adopted
State standards identical to OSHA
occupational safety and health
standards promulgated through
September 30, 2005. The State Plan
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provides that these standards will be
updated within one year of plan
approval and future OSHA standards
and revisions will be adopted by the
State within six months of Federal
promulgation, in accordance with 29
CFR 1953.5. Any emergency temporary
standards will be adopted within 30
days of Federal adoption. The State will
adopt Federal OSHA standards in
accordance with the provisions of the
Illinois Health and Safety Act [820 ILCS
225/4.1]. The Plan also provides for the
adoption of alternative or different
occupational safety and health
standards by the Director of Labor,
where no Federal standards are
applicable to the conditions or
circumstances or where standards more
stringent than Federal are deemed
appropriate.
(c) Variances. The Plan includes
provisions for the granting of permanent
and temporary variances from State
standards in terms substantially similar
to the variance provisions contained in
the OSH Act. The State provisions
require employee notification of
variance applications as well as
employee rights to participate in
hearings held on variance applications.
Variances may not be granted unless it
is established that adequate protection
is afforded employees under the terms
of the variance. The State has
committed to amend its current variance
procedures at 56 ILAC 350.40 to bring
them into conformance with Federal
procedures at 29 CFR 1905 within two
years of plan approval.
(d) Employee notice and
discrimination protection. The Plan
provides for notification to employees of
their protections and obligations under
the Plan by such means as the State
poster and required posting of notices of
violations. The Plan also provides for
protection of employees against
discharge or discrimination resulting
from exercise of their rights under the
State’s Acts in terms similar to section
11(c) of the OSH Act. The SIEA
provides that an employee who believes
that he or she has been discharged or
otherwise discriminated against by any
person in violation of this section may,
within 30 calendar days after the
violation occurs, file a complaint with
the Director of Labor alleging the
discrimination. The Plan provides that
the Director shall investigate such
complaints as appropriate and make a
determination within 90 days. If the
Director determines that the provisions
of this section have been violated, the
Director shall bring an action in the
circuit court for appropriate relief.
(e) Inspections and enforcement. The
Plan provides for inspection of covered
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workplaces, including inspections in
response to employee complaints by the
Department of Labor. If a determination
is made that an employee complaint
does not warrant an inspection, the
complainant shall be notified, in
writing, of such determination and
afforded an opportunity to seek informal
review of the determination. The Plan
provides the opportunity for employer
and employee representatives to
accompany the inspector during an
inspection for the purpose of aiding in
the inspection and in the absence of
such a representative, the right to
interview a reasonable number of
employees during the inspection. The
Plan also provides for the right of entry
for inspection and prohibition of
advance notice of inspection. The
Director of Labor is responsible for all
enforcement actions, including the
issuance of all citations which must
specify the abatement period, posting
requirements, and the employer’s and
employees’ right to contest any or all
citations. Although the Plan contains
authority for a system of first-instance
monetary penalties, in practice it is the
State’s intent to issue monetary
penalties only for failure to correct and
egregious violations. The State has
discretionary authority for civil
penalties of not more than $10,000 for
repeat and willful violations. Serious
and other-than-serious violations may
be assessed a penalty of up to $1,000 per
violation and failure-to-correct
violations may be assessed a penalty of
up to $1,000 per violation per day. In
addition, any public employer who
willfully violates any standard, rule, or
order can be charged by the Attorney
General with a Class 4 felony if that
violation causes death to any employee.
(f) Review procedures. Although the
Director has statutory responsibility for
both the enforcement and the appeals
process (820 ILCS 220/2.4), in practice,
Administrative Law Judges (ALJ) hear
contested cases without any oversight or
review by the Director. The State will
make appropriate changes to its
regulations and procedures to ensure
the separation of these functions and the
independence of the adjudicatory
process within one year of plan
approval. The Director of Labor will
remain responsible for the enforcement
process, including the issuance of
citations and penalties, and their
defense, if contested. Public employers
or their representatives who receive a
citation or a proposed penalty may
within 15 working days contest the
citation, proposed penalty and/or
abatement period and request a hearing
before an Administrative Law Judge.
VerDate Nov<24>2008
16:24 Aug 31, 2009
Jkt 217001
Any public employee or representative
may within 15 working days request a
hearing before an ALJ regarding the
reasonableness of the abatement period.
Informal review prior to contest may
also be requested at the division level.
The ALJ’s decision is subject to appeal
to the courts.
(g) Staffing and resources. The Plan
further provides assurances of a fully
trained, adequate staff within three
years of plan approval, including 11
safety and 3 health compliance officers
for enforcement inspections, and 3
safety and 2 health consultants to
perform consultation services in the
public sector. The State has assured that
it will continue to provide a sufficient
number of adequately trained and
qualified personnel necessary for the
enforcement of standards as required by
29 CFR 1956.10. The State has also
given satisfactory assurance of adequate
funding to support the Plan.
(h) Records and reports. The Plan
provides that public employers in
Illinois will maintain appropriate
records and make timely reports on
occupational injuries and illnesses in a
manner substantially identical to that
required for private sector employers
under Federal OSHA. Illinois has
assured that it will coordinate with the
Illinois Department of Health to expand
its participation in the Bureau of Labor
Statistics Annual Survey of Injuries and
Illnesses to include public sector
employers. The State will comply with
the provisions of 29 CFR 1904.7, which
allow full employee and employee
representative access, including
employee’s names, to the log of
workplace injuries and illnesses; and
will amend its recordkeeping
regulations within two years of plan
approval. The Plan also contains
assurances that the Director of Labor
will provide reports to OSHA in such
form as the Assistant Secretary may
require, and that Illinois will participate
in OSHA’s Integrated Management
Information System as well as it
successor, OSHA Information System,
once deployed.
(i) Voluntary compliance programs.
The Plan provides that training will be
provided to public employers and
employees; a separate on-site
consultation program in the public
sector will be established to provide
services to public employers who
request assistance; and all State agencies
and political subdivisions will be
encouraged to develop and maintain
internal safety and health programs as
an adjunct to, but not a substitute for,
the Director of Labor’s enforcement.
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
§ 1956.81
45115
Developmental schedule.
The Illinois State Plan is
developmental. The following is a
schedule of major developmental steps
as provided in the Plan that will be
accomplished within three years of plan
approval:
(a) Illinois will adopt standards
identical to or at least as effective as the
applicable existing OSHA standards and
revise the Rules of Procedures in
Administrative Hearings (56 ILAC 120),
clarifying the separation of the
enforcement role of the Director of
Labor from the adjudicatory role in
contested cases, within one year after
plan approval.
(b) Illinois will update and adopt
amendments to the Illinois
Administrative Rules (56 ILAC 350)
regarding identical standards, variances,
inspections, review system for contested
cases and employee access to
information equivalent to 29 CFR parts
1903, 1905, 1911 and 2200 within two
years after plan approval.
(c) Illinois will adopt amendments to
rules regarding recordkeeping
substantially identical to 29 CFR part
1904 within two years after plan
approval.
(d) An annual performance plan will
be developed and submitted with the
FY 2010 Grant Application. The
performance plan will focus on
achievement of developmental steps
and activity reporting until such time as
the program is fully operational, at
which point objective, results-oriented
performance goals will be established.
(e) Illinois will develop an inspection
scheduling system that targets high
hazard establishments within two years
of plan approval.
(f) Illinois will develop a
comprehensive field operations manual
that is at least as effective as the Federal
Field Operations Manual within two
years after plan approval.
(g) Illinois will begin hiring critical
program management staff and filling
current vacancy positions within 30
days of plan approval.
(h) Illinois will hire the additional
Enforcement program field and support
staff within two years of plan approval.
(i) Illinois will fully implement and
staff a public employer/employee
Consultation program equivalent to 29
CFR part 1908, and training and
education programs separate from
Enforcement, within three years after
plan approval.
(j) Illinois will have an authorized
compliance staff of 11 Safety Inspectors
and 3 Industrial Hygienists (nonsupervisory) and a public sector
consultation staff of 3 Safety
Consultants and 2 Industrial Hygiene
E:\FR\FM\01SER1.SGM
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45116
Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations
Consultants within three years of plan
approval.
(k) Illinois and OSHA will develop a
plan for joining the OSHA Integrated
Management Information System to
report State plan activity, including
specific information on inspections,
consultation visits, etc., in conjunction
with OSHA, within six months of plan
approval. Illinois will convert to the
new OSHA Information System upon its
deployment. In the interim, Illinois will
provide monthly reports on its activity
in an agreed upon format.
(l) Illinois will coordinate with the
Illinois Department of Public Health and
the Bureau of Labor Statistics to expand
the current Illinois survey to provide
more detailed injury/illness/fatality
rates on State and local government,
within two years of plan approval.
(m) Illinois will revise and submit a
State poster for posting at all public
sector workplaces in the State within
one year of plan approval.
§ 1956.82
[Reserved]
§ 1956.83
[Reserved]
§ 1956.84 Location of plan for inspection
and copying.
A copy of the plan may be inspected
and copied during normal business
hours at the following locations: Office
of State Programs, U.S. Department of
Labor, Occupational Safety and Health
Administration, 200 Constitution
Avenue, NW., Room N–3700,
Washington, DC 20210; OSHA’s
Regional Office in Chicago, Illinois, at
230 South Dearborn Street, 32nd Floor,
Room 3244, Chicago, IL 60604; and at:
the Offices of the Illinois Department of
Labor, Safety Inspection and Education
Division at 1 West Old State Capitol
Plaza, 3rd floor, Springfield, IL 62701;
160 North LaSalle Street, Suite C–1300,
Chicago, IL 60601; or 2309 West Main
Street, Suite 115, Marion, IL 62959.
[FR Doc. E9–21044 Filed 8–31–09; 8:45 am]
BILLING CODE 4510–26–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
mstockstill on DSKH9S0YB1PROD with RULES
30 CFR Part 944
[SATS No. UT–045–FOR; Docket ID No.
OSM–2008–0011]
Utah Regulatory Program
AGENCY: Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment.
VerDate Nov<24>2008
16:24 Aug 31, 2009
Jkt 217001
SUMMARY: We are approving an
amendment to the Utah regulatory
program (the ‘‘Utah program’’) under the
Surface Mining Control and
Reclamation Act of 1977 (‘‘SMCRA’’ or
‘‘the Act’’). Utah proposed revisions to
and additions of rules about the sealing
of wells and boreholes, Division of Oil,
Gas and Mining (‘‘Division’’ or
‘‘DOGM’’) responsibilities when
requesting additional information
during permit reviews, and the
definition of intermittent stream. Utah is
revising its program to be consistent
with the corresponding Federal
regulations, to achieve greater scientific
accuracy, and to improve operational
efficiency.
DATES: Effective Date: September 1,
2009.
FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Chief, Denver Field
Division, (303) 293–5015,
jfulton@OSMRE.gov.
SUPPLEMENTARY INFORMATION:
seq.). Utah sent the amendment at its
own initiative.
We announced receipt of the
proposed amendment in the June 24,
2008, Federal Register (73 FR 35607). In
the same document, we opened the
public comment period and provided an
opportunity for a public hearing or
meeting on the amendment’s adequacy
(Document ID No. OSM–2008–0011–
0001). We did not hold a public hearing
or meeting because no one requested
one. We received comments from two
industry groups and one Federal agency.
I. Background on the Utah Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and
Enforcement’s (OSM’s) Findings
IV. Summary and Disposition of Comments
V. OSM’s Decision
VI. Procedural Determinations
Casing and Sealing of Underground
Openings. When no longer needed for
monitoring or other use approved by the
Division upon a finding of no adverse
environmental or health and safety effects,
each shaft, drift, adit, tunnel, drill hole, or
other opening to the surface from
underground will be capped, sealed and
backfilled, or otherwise properly managed, as
required by the Division and consistent with
MSHA, 30 CFR 75.1711 and all other
applicable state and federal regulations as
soon as practical. Permanent closure
measures will be designed to prevent access
to the mine workings by people, livestock,
fish and wildlife, machinery and to keep acid
or other toxic drainage from entering ground
or surface waters. With respect to drill holes,
unless otherwise approved by the Division,
compliance with the requirements of 43 CFR
3484.1(a)(3) or R649–3–24 will satisfy these
requirements.
I. Background on the Utah Program
Section 503(a) of the Act permits a
State to assume primacy for the
regulation of surface coal mining and
reclamation operations on non-Federal
and non-Indian lands within its borders
by demonstrating that its State program
includes, among other things, ‘‘a State
law which provides for the regulation of
surface coal mining and reclamation
operations in accordance with the
requirements of this Act * * * and
rules and regulations consistent with
regulations issued by the Secretary
pursuant to this Act.’’ See 30 U.S.C.
1253(a)(1) and (7). On the basis of these
criteria, the Secretary of the Interior
conditionally approved the Utah
program on January 21, 1981. You can
find background information on the
Utah program, including the Secretary’s
findings, the disposition of comments,
and conditions of approval of the Utah
program in the January 21, 1981,
Federal Register (46 FR 5899). You can
also find later actions concerning Utah’s
program and program amendments at 30
CFR 944.15 and 944.30.
II. Submission of the Proposed
Amendment
By letter dated May 28, 2008 Utah
sent us an amendment to its program
(Document ID No. OSM–2008–0011–
0001) under SMCRA (30 U.S.C. 1201 et
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
III. OSM’s Findings
The following are our findings
concerning the amendment under
SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17. We are
approving the amendment.
A. The Casing and Sealing of
Underground Openings
Utah is amending R645–301–551 to
read:
This amendment adds ‘‘drill holes’’ to
the list of underground openings
specified in R645–301–551. The
amendment also adds a requirement
that the casing and sealing of
underground openings be consistent
with ‘‘all other applicable State and
Federal regulations as soon as
practical.’’ Finally, the amendment adds
the following sentence to the end of the
regulatory provision: ‘‘With respect to
drill holes, unless otherwise approved
by the Division, compliance with the
requirements of 43 CFR 3484.1(a)(3) or
R649–3–24 will satisfy these
requirements.’’
‘‘Drill hole’’ is defined by the
Dictionary of Mining, Minerals, and
Related Terms (2nd ed. 1997.) as ‘‘a hole
in rock or coal made with an auger or
a drill’’. Drill holes, unlike other types
of openings to underground mines, such
E:\FR\FM\01SER1.SGM
01SER1
Agencies
[Federal Register Volume 74, Number 168 (Tuesday, September 1, 2009)]
[Rules and Regulations]
[Pages 45107-45116]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21044]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1956
[Docket No. OSHA-2009-0010]
RIN 1218-AC44
Notice of Initial Approval Determination; Illinois Public
Employee Only State Plan
AGENCY: Occupational Safety and Health Administration, Department of
Labor (OSHA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Illinois Public Employee Only State Plan, a State
occupational safety and health plan applicable only to public sector
employees (employees of the State and its political subdivisions), is
approved as a developmental plan under the Occupational Safety and
Health Act of 1970 and OSHA regulations. Under the approved Plan, the
Illinois Department of Labor is designated as the State agency
responsible for the development and enforcement of occupational safety
and health standards applicable to public employment throughout the
State. The Occupational Safety and Health Administration (OSHA) retains
full authority for coverage of private
[[Page 45108]]
sector employees in the State of Illinois as well as for coverage of
Federal government employees.
DATES: Effective Date: September 1, 2009.
FOR FURTHER INFORMATION CONTACT: Press inquiries: Contact Jennifer
Ashley, Office of Communications, Room N-3647, OSHA, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; Telephone
(202) 693-1999.
General and technical inquiries: Contact Barbara Bryant, Director,
Office of State Programs, Directorate of Cooperative and State
Programs, OSHA, U.S. Department of Labor, Room N-3700, 200 Constitution
Avenue, NW., Washington, DC 20210, Telephone (202) 693-2244 or Fax
(202) 693-1671.
SUPPLEMENTARY INFORMATION:
A. Introduction
Section 18 of the Occupational Safety and Health Act of 1970 (the
``Act''), 29 U.S.C. 667, provides that a State which desires to assume
responsibility for the development and enforcement of standards
relating to any occupational safety and health issue with respect to
which a Federal standard has been promulgated may submit a State Plan
to the Assistant Secretary of Labor for Occupational Safety and Health
(``Assistant Secretary'') documenting the proposed program in detail.
Regulations promulgated pursuant to the Act at 29 CFR Part 1956 provide
that a State may submit a State Plan for the development and
enforcement of occupational safety and health standards applicable only
to employees of the State and its political subdivisions (``public
employees''). State and local government workers are excluded from
Federal coverage under the Act and are provided protection only through
the vehicle of a State Plan approved pursuant to Section 18 of the Act.
Under these regulations the Assistant Secretary will approve a
State Plan for public employees if the Plan provides for the
development and enforcement of standards relating to hazards in
employment covered by the Plan which are or will be at least as
effective in providing safe and healthful employment and places of
employment for public employees as standards promulgated and enforced
under section 6 of the OSH Act, giving due consideration to differences
between public and private sector employment. In making this
determination the Assistant Secretary will consider, among other
things, the criteria and indices of effectiveness set forth in 29 CFR
Part 1956, Subpart B.
A State Plan for public employees may receive initial approval even
though, upon submission, it does not fully meet the criteria set forth
in Sec. Sec. 1956.10 and 1956.11, if it includes satisfactory
assurances by the State that it will take the necessary steps, and
establishes an acceptable developmental schedule, to meet the criteria
within a three year period (29 CFR 1956.2(b)). The Assistant Secretary
may publish a notice of ``certification of completion of developmental
steps'' when all of a State's developmental commitments have been met
satisfactorily (29 CFR 1956.23; 1902.33 and 1902.34) and the Plan is
structurally complete. After certification of a State Plan for public
employees, OSHA may initiate a period of at least one year of intensive
performance monitoring, after which OSHA may make a determination under
the procedures of Sec. Sec. 1902.38, 1902.39, 1902.40 and 1902.41 as
to whether, on the basis of actual operations, the criteria set forth
in Sec. Sec. 1956.10 and 1956.11 for ``at least as effective'' State
Plan performance are being applied under the Plan.
B. History of the Present Proceeding
In 1973 the Illinois Industrial Commission and the Illinois
Department of Labor obtained OSHA approval of a State Plan for the
enforcement of occupational safety and health standards covering
private sector workplaces as well as a program for public employees in
Illinois. That Plan was approved by the Assistant Secretary on November
5, 1973 (38 FR 30436; 29 CFR 1952.280 et seq.). The Plan was
subsequently withdrawn effective June 30, 1975 by the State of Illinois
under the authority of then Governor Dan Walker after the State was
unable to make necessary modifications to its program and statutory
authority, and its State funding was withdrawn (40 FR 24523).
Since 1985, the Illinois Department of Labor (IDOL), Safety
Inspection and Education Division (SIED), has adopted standards and
performed inspections in the public sector (State, county, and
municipal employees) as outlined under the provisions of the State's
existing enabling legislation: the Illinois Safety Inspection and
Education Act (SIEA) [820 ILCS 220] and the Illinois Health and Safety
Act (HSA) [820 ILCS 225]. In 2005, Illinois began working on a Public
Employee Only State Plan and submitted a draft Plan to OSHA in May
2006. OSHA's review findings were detailed in various memoranda and
other documents, including a May 18, 2007 letter to the Illinois
Department of Labor Director Catherine Shannon. OSHA determined that
the Illinois statutes, as structured, and the proposed State Plan
presented several obstacles to meeting the Federal Public Employee Only
State Plan approval criteria in 29 CFR 1956. Amendments to both the
Illinois Safety Inspection and Education Act and the Illinois Health
and Safety Act were proposed and enacted by the Illinois General
Assembly and signed into law by the Governor in 2006 and 2007. The
amended legislation provides the basis for establishing a comprehensive
occupational safety and health program applicable to public employees
in the State.
Illinois formally submitted a revised Plan applicable only to
public employees for Federal approval on June 18, 2008. Over the next
several months, OSHA worked with Illinois in identifying areas of the
proposed Plan which needed to be addressed or required clarification.
In response to Federal review of the proposed State Plan, supplemental
assurances, and revisions, corrections and additions to the Plan were
submitted on April 8, 2009 and May 15, 2009. Further modifications were
submitted by the State on June 8, 2009. The revised IDOL/SIED Plan has
been found to be conceptually approvable as a developmental State Plan.
The Act provides for funding of up to 50% of the State Plan costs,
but longstanding language in OSHA's appropriation legislation further
provides that OSHA must fund ``* * * no less than 50% of the costs
required to be incurred'' by an approved State Plan. Such Federal funds
to support the State Plan must be available prior to State Plan
approval. The Omnibus Appropriations Act for Fiscal Year 2009 includes
$1.5 million in additional OSHA State Plan grant funds to allow for
Department of Labor approval of an Illinois State Plan.
On July 10, 2009, OSHA published notice in the Federal Register (74
FR 33189) concerning the submission of the Illinois Public Employee
Only State Plan, announcing that initial Federal approval of the Plan
was at issue, and offering interested parties an opportunity to review
the Plan and submit data, views, arguments or requests for a hearing
concerning the Plan. The Illinois Department of Labor similarly
published notice of the availability of the State Plan for comment on
July 15, 2009 in the Daily Herald newspaper in Illinois.
To assist and encourage public participation in the initial
approval process, the documents constituting the Illinois State Plan
for Public Employees Only are available at https://
[[Page 45109]]
www.regulations.gov as Docket No. OSHA-2009-0010. Copies of the
Illinois State Plan also were maintained and are available for
inspection in the OSHA Docket Office, Technical Data Center, Room N-
2625, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210; OSHA's Regional Office in Chicago, Illinois, at
230 South Dearborn Street, 32nd Floor, Room 3244, Chicago, IL 60604;
and at the Offices of the Illinois Department of Labor, Safety
Inspection and Education Division at 1 West Old State Capitol Plaza,
3rd floor, Springfield, IL 62701; 160 North LaSalle Street, Suite C-
1300, Chicago, IL 60601; or 2309 West Main Street, Suite 115, Marion IL
62959.
Electronic copies of this notice, as well as news releases and
other relevant information, are available on OSHA's Web page at https://www.osha.gov.
C. Summary and Evaluation of Comments Received
In response to OSHA's July 10, 2009, Federal Register notice, which
announced the submission of the Illinois Public Employee Only State
Plan and its availability for public comment, nine (9) written public
comments were submitted by: (1) Mark Bishop, Deputy Director, Healthy
Schools Campaign (Document OSHA-2009-0010-0024); (2) Linda
Gibbons, Certified School Nurse, Illinois Association of School Nurses
(Document OSHA-2009-0010-0028); (3) Brenda McCracken and (4)
Patrick Genovese, President, Three Rivers Chapter of the American
Society of Safety Engineers (Document OSHA-2009-0010-0025 and
0026); (5) Lorraine M. Conroy, Associate Professor, Environmental and
Occupational Health Sciences, and eight other officials of the
University of Illinois, School of Public Health at Chicago (Document
OSHA-2009-0010-0029); (6) Symantha Aydt, School of Labor and
Employment Relations, University of Illinois (Document OSHA-
2009-0010-0030 and 0031); (7) Scott D. Miller, Counsel, American
Federation of State, County and Municipal Employees, Council 31,
Chicago, Illinois (Document OSHA-2009-0010-0032); (8) C.
Christopher Patton, President, American Society of Safety Engineers
(Document OSHA-2009-0010-0034); and (9) John T. Coli,
President, Teamsters Joint Council 25 (Document OSHA-2009-
0010-0035).
Mark Bishop, Deputy Director of the Healthy Schools Campaign
(exhibit 0024), expressed support for the Illinois PEO State Plan, in
particular IDOL's protection of the health and safety of school
teachers and staff.
Linda J. Gibbons, Certified School Nurse and member of the Illinois
Association of School Nurses (exhibit 0028), also expressed support for
the Illinois PEO State Plan.
The comments from Patrick Genovese, President, Three Rivers Chapter
of the American Society of Safety Engineers (ASSE) (exhibit 0026), as
transmitted by Brenda McCrackin (exhibit 0025), supported the State of
Illinois, for its ``* * * intent to establish an Illinois Public
Employee Only State Plan'', and the extension of such coverage to all
public employees either under Federal standards or through other non-
State Plan states following Illinois' example. In addition, Mr.
Genovese mentioned efforts ASSE members in Florida have taken to see
that public sector workers are protected and the successes that other
established State Plans have achieved.
The comments from Lorraine M. Conroy, Associate Professor of
Environmental and Occupational Health Sciences at the University of
Illinois at Chicago and eight other officials of the University of
Illinois, School of Public Health (exhibit 0029), supported approval of
the Illinois PEO State Plan. In addition, Ms. Conroy requested
clarification in the areas of coverage, the complaint process,
discrimination, rule making, penalties, and comprehensive safety and
health programs in order to assure that the Illinois program is as
effective, or more effective, than Federal OSHA.
Symantha Aydt of the School of Labor and Employment Relations at
the University of Illinois (exhibits 0030 and 0031) requested
clarifications in several areas, including methods for compelling
compliance, the State's voluntary compliance program, and coverage of
prisoners and volunteers.
Scott D. Miller, Counsel, American Federation of State, County and
Municipal Employees (AFSCME), Council 31 (exhibit 0032), which
represents more than 75,000 State government public-service workers as
well as ``thousands'' of local government employees in Illinois,
supported approval of the Illinois PEO State Plan. However, Mr. Miller,
on behalf of AFSCME, requested that the State provide ``a heightened
level of assurances'' that it will provide adequate matching funds,
that its compliance officers will receive comprehensive training on
hazards in the public sector, that it consider expanded use of its
first-instance sanction authority, that the independence of its
Administrative Law Judges be assured through specific regulations and
separation from IDOL's legal department, that procedural rules be
developed to implement the right of employees and their representatives
to challenge the State's failure to enforce, and that IDOL undertake
outreach beyond its poster to inform public employees of their rights
and responsibilities under the Plan.
C. Christopher Patton, President, American Society of Safety
Engineers (exhibit 0034) on behalf of its 32,000 members nationwide and
1,400 members in Illinois, supported approval of the Illinois PEO State
Plan. Mr. Patton also supported the extension of such coverage to all
public employees either under Federal standards or through other non-
State Plan states following Illinois' example and mentioned efforts
ASSE members in Florida have taken to see that public sector workers
are protected.
John T. Coli, President, Teamsters Joint Council 25 (exhibit 0035)
supported approval of the Illinois PEO State Plan on behalf of the
Joint Council and the 22 local unions under its jurisdiction, who
collectively represent approximately 50,000 members in Illinois State
and municipal governments. Mr. Coli emphasized the need for adequate
assurances that Illinois will fund ``a fully trained and adequate
staff,'' support for monetary penalties for failure to correct and
egregious violations, the importance of the independence of the
adjudicatory process, and workers' right to request a hearing regarding
the reasonableness of the abatement period.
Several of the commenters requested that the Plan extend coverage
to include safety and health protection of students and other non-
employee classes. Both Federal OSHA's and State Plans' jurisdiction is
statutorily limited to the working conditions of employees and does not
extend to coverage of the general public or of students. However, the
Illinois PEO State Plan extends coverage to students who are working,
such as teaching or research assistants in public colleges and
universities. Improved working conditions for public school employees
likely result in benefits for students as well.
OSHA has carefully considered the public comments and finds that
none of the commenters offered specific facts or observations that
would preclude approval of the Illinois State Plan or questioned
whether the plan meets the statutory and regulatory criteria for
initial approval as a developmental plan. All of the commenters listed
above indicated their support for OSHA approval of the Illinois Public
Employee Only State Plan. However, included in the public comment are
many useful
[[Page 45110]]
suggestions for program clarifications and enhancements. OSHA will
require the State to address these issues as they develop the key
elements of their program during the next three years. No requests for
a public hearing were submitted.
D. Review Findings
As required by 29 CFR 1956.2 in considering the granting of initial
approval to a Public Employee Only State Plan, OSHA must determine
whether the State Plan meets or will meet the criteria in 29 CFR
1956.10 and the indices of effectiveness in 29 CFR 1956.11. Findings
and conclusions in each of the major State Plan areas addressed by 29
CFR 1956 are as follows:
(1) Designated Agency
Section 18(c)(1) of the OSH Act provides that a State occupational
safety and health program must designate a State agency or agencies
responsible for administering the Plan throughout the State (29 CFR
1956.10(b)(1)). The Plan must describe the authority and
responsibilities of the designated agency and provide assurance that
other responsibilities of the agency will not detract from its
responsibilities under the Plan (29 CFR 1956.10(b)(2)). The Illinois
Department of Labor is designated by the Illinois Safety Inspection and
Education Act [820 ILCS 220] and the Illinois Health and Safety Act
[820 ILCS 225] as the sole agency responsible for administering and
enforcing the public employee protection program in Illinois. The
Illinois Department of Labor, Safety Inspection and Education Division
is designated as the agency responsible for the Public Employee Only
State Plan. The Plan describes the authority of the Illinois Department
of Labor and its other responsibilities. (A separate agency, the
Illinois Department of Commerce and Economic Development delivers
OSHA's On-Site Consultation program to private sector employers
throughout the State.) (Illinois State Plan, pp. 1-3)
(2) Scope
Section 18(c)(6) of the OSH Act provides that the State, to the
extent permitted by its law, shall under its Plan establish and
maintain an effective and comprehensive occupational safety and health
program applicable to all employees of the State and its political
subdivisions. Only where a State is constitutionally precluded from
regulating occupational safety and health conditions in certain
political subdivisions may the State exclude such political subdivision
employees from further coverage (29 CFR 1956.2(c)(1)). Further, the
State may not exclude any occupational, industrial or hazard groupings
from coverage under its Plan unless OSHA finds that the State has shown
there is no necessity for such coverage (29 CFR 1956.2(c)(2)).
The scope of the Illinois State Plan includes any employee of the
State, including members of the General Assembly, members of the
various State commissions, persons employed by public universities and
colleges, and employees of counties, cities, townships, school
districts, municipal corporations, etc. No employees of any political
subdivision of the State or local government are excluded from the
Plan. However, the definition of public employee does not extend to
students or incarcerated or committed individuals in public
institutions, or volunteers, unless they receive benefits such as
health insurance or Workers' Compensation. The Illinois Department of
Labor will adopt all Federal OSHA occupational safety and health
standards, and the Plan excludes no occupational, industrial or hazard
grouping.
Consequently, OSHA finds that the Illinois Plan contains
satisfactory assurances that no employees of the State and its
political subdivisions are excluded from coverage, and the plan
excludes no occupational, industrial or hazard grouping. (Illinois
State Plan, p. 2)
(3) Standards
Section 18(c)(2) of the OSH Act requires State Plans to provide for
occupational safety and health standards which are at least as
effective as Federal OSHA standards. A State Plan for public employees
must therefore provide for the development or adoption of such
standards and must contain assurances that the State will continue to
develop or adopt such standards (29 CFR 1956.10(c); 1956.11(b)(2)(ii)).
A State may establish the same standards as Federal OSHA (29 CFR
1956.11(a)(1)), or alternative standards that are at least as effective
as those of Federal OSHA (29 CFR 1956.11(a)(2)). Where a State's
standards are not identical to Federal OSHA, they must meet the
following criteria: they must be promulgated through a procedure
allowing for consideration of all pertinent factual information and
participation of all interested persons (29 CFR 1956.11(b)(2)(iii));
must, where dealing with toxic materials or harmful physical agents,
assure employee protection throughout his or her working life (29 CFR
1956. 11(b)(2)(i)); must provide for furnishing employees appropriate
information regarding hazards in the workplace through labels, posting,
medical examinations, etc. (29 CFR 1956.11(b)(2)(vi)); and, must
require suitable protective equipment, technological control,
monitoring, etc. (29 CFR 1956.11(b)(2)(vii)).
In addition, the State Plan must provide for prompt and effective
standards setting actions for protection of employees against new and
unforeseen hazards, by such means as authority to promulgate emergency
temporary standards (29 CFR 1956.11(b)(2)(v)).
Under the Plan's legislation, the Illinois Safety Inspection and
Education Act [820 ILCS 220] and the Illinois Health and Safety Act
[820 ILCS 225], the Illinois Department of Labor has full authority to
adopt standards and regulations and enforce and administer all laws and
rules protecting the safety and health of employees of the State and
its political subdivisions. The procedures for State adoption of
Federal occupational safety and health standards include publication of
a first and second notice in the Illinois Register, opportunity for a
public hearing, notification to the Joint Committee on Administrative
Rules, etc., in accordance with the Illinois Administrative Procedures
Act [5 ICLS 100]. Illinois has adopted State standards identical to
Federal occupational safety and health standards as promulgated through
September 30, 2005. The State Plan includes a commitment to update all
standards within one year after Plan approval. The Plan also provides
that future OSHA standards and revisions will be adopted by the State
within six months of Federal promulgation in accordance with the
requirements at 29 CFR 1953.5.
Under the Plan, the Illinois Department of Labor has the authority
to adopt alternative or different occupational safety and health
standards where no Federal standards are applicable or where more
stringent standards are deemed advisable. Such standards will be
adopted in accordance with the State Acts and the Illinois
Administrative Procedures Act, which include provisions allowing
submissions from interested persons and the opportunity to participate
in any hearing for the development, modification or establishment of
standards. (Illinois State Plan, pp. 4-6)
The Illinois State Plan also provides for the adoption of Federal
emergency temporary standards within 30 days of Federal promulgation.
(Illinois State Plan pp. 5-6)
[[Page 45111]]
Based on the preceding Plan provisions, assurances, and
commitments, OSHA finds the Illinois State Plan to have met the
statutory and regulatory requirements for initial plan approval with
respect to occupational safety and health standards.
(4) Variances
A State Plan must provide authority for the granting of variances
from State standards upon application of a public employer or employers
which corresponds to variances authorized under the OSH Act, and for
consideration of the views of interested parties, by such means as
giving affected employees notice of each application and an opportunity
to request and participate in hearings or other appropriate proceedings
relating to applications for variances (29 CFR 1956.11(b)(2)(iv)).
Section 4.2 of the Illinois Health and Safety Act [820 ILCS 225]
includes provisions for the granting of permanent and temporary
variances from State standards to public employers in terms
substantially similar to the variance provisions contained in the
Federal Act. The State provisions require employee notification of
variance applications as well as employee rights to participate in
hearings held on variance applications. Variances may not be granted
unless it is established that adequate protection is afforded employees
under the terms of the variance. However, the State's variance
procedures at 56 ILAC 350.40 require revision. The State has provided
assurances in its developmental schedule that within two years of
initial plan approval it will amend its regulations to reflect variance
provisions equivalent to those contained in the Federal 29 CFR 1905.
(Illinois State Plan pp. 7-8 and 19)
(5) Enforcement
Section 18(c)(2) of the OSH Act and 29 CFR 1956.10(d)(1) require a
State Plan to include provisions for enforcement of State standards
which are or will be at least as effective in providing safe and
healthful employment and places of employment as the Federal program,
and to assure that the State's enforcement program for public employees
will continue to be at least as effective as the Federal program in the
private sector.
(a) Legal Authority. The State must require public employer and
employee compliance with all applicable standards, rules and orders (29
CFR 1956.10(d)(2)) and must have the legal authority for standards
enforcement (section 18(c)(4)), including compulsory process (29 CFR
1956.11(c)(2)(viii)).
Section 3 of the Illinois Health and Safety Act [820 ILCS 225/3]
establishes the duty of public employers to provide a place of
employment free of recognized hazards, to comply with the Illinois
Department of Labor's occupational safety and health standards, to
inform employees of their protections and obligations and provide
information on hazards in the workplace. Public employees must comply
with all standards and regulations applicable to their own actions and
conduct.
(b) Inspections. A State Plan must provide for inspection of
covered workplaces, including in response to complaints, where there
are reasonable grounds to believe a hazard exists (29 CFR
1956.11(c)(2)(i)).
When no compliance action results from inspection of violations
alleged by employee complaints, the State must notify the complainant
of its decision not to take compliance action by such means as written
notification and opportunity for informal review (29 CFR
1956.11(c)(2)(iii)).
Sections 2 and 2.1 of the Illinois Safety Inspection and Education
Act (SIEA) [820 ILCS 220] provide for inspections of covered
workplaces, including inspections in response to employee complaints,
by the Director of Labor. If a determination is made that an employee
complaint does not warrant an inspection, the complainant will be
notified in writing of such determination. The complainant will be
notified of the results of any inspection in writing and provided a
copy of any citation that is issued. Employee complainants may request
that their names not be revealed. (Illinois State Plan, pp. 10-11)
(c) Employee Notice and Participation in Inspection. In conducting
inspections, the State Plan must provide an opportunity for employees
and their representatives to point out possible violations through such
means as employee accompaniment or interviews with employees (29 CFR
1956.11(c)(2)(ii)).
The Illinois Safety Inspection and Education Act provides the
opportunity for employer and employee representatives to accompany a
Department of Labor inspector for the purpose of aiding the inspection.
Where there is no authorized employee representative, the inspectors
are required to consult with a reasonable number of employees
concerning matters of safety and health in the workplace. (820 ILCS
220/2(b)(6))
In addition, the State Plan must provide that employees be informed
of their protections and obligations under the Act by such means as the
posting of notices (29 CFR 1956.11(c)(2)(iv)); and provide that
employees have access to information on their exposure to regulated
agents and access to records of the monitoring of their exposure to
such agents (29 CFR 1956.11(c)(2)(vi)).
The Plan provides for notification to employees of their
protections and obligations under the Plan by such means as a State
poster, required posting of notices of violation, etc. The State has
provided assurances in its developmental schedule to update and submit
the State poster for posting at all public sector workplaces in the
State within one year of initial plan approval. (Illinois State Plan,
p. 20)
Section 2.5 of the Illinois Safety Inspection and Education Act
authorizes the Director of Labor to issue rules requiring employers to
maintain accurate records of employee exposures to potentially toxic
materials or harmful physical agents. Information on employee exposure
to regulated agents, access to medical and exposure records, and
provision and use of suitable protective equipment is provided through
State standards which will be updated within one year of plan approval.
(Illinois State Plan, p. 13; p. 19)
(d) Nondiscrimination. A State is expected to provide appropriate
protection to employees against discharge or discrimination for
exercising their rights under the State's program, including provision
for employer sanctions and employee confidentiality (29 CFR
1956.11(c)(2)(v)).
Section 2.2 of the Illinois Safety Inspection and Education Act
[820 ILCS 220] provides that a person may not discharge or in any other
way discriminate against any employee because the employee has filed a
complaint or instituted or caused to be instituted any proceeding under
or related to the Acts or has testified or is about to testify in any
such proceeding or because of the exercise by the employee on behalf of
himself or herself or others of any right afforded by the State Acts.
The SIEA provides that an employee who believes that he or she has
been discharged or otherwise discriminated against by any person in
violation of this section may, within 30 calendar days after the
violation occurs, file a complaint with the Director of Labor alleging
the discrimination. The Plan provides that the Director shall
investigate such complaints as appropriate and make a determination
within 90 days. If the Director determines that the provisions of this
[[Page 45112]]
section have been violated, the Director shall bring an action in the
circuit court for appropriate relief. (820 ILCS 220/2.2 and Illinois
State Plan, p.11)
The Illinois State Plan provides for protection of employees
against discharge or discrimination resulting from exercise of their
rights under the State Acts in terms essentially identical to section
11(c) of the Federal Act.
(e) Restraint of Imminent Danger. A State Plan is required to
provide for the prompt restraint of imminent danger situations (29 CFR
1956.11(c)(2)(vii)).
Section 2(b)(7)(B) of the Illinois Safety Inspection and Education
Act [820 ILCS 220] provides that the Director may file a complaint in
the circuit court for appropriate relief, by such means as an order to
cease and desist, to restrain any conditions or practices in the
workplace which the Director determines, in accordance with the State
Acts, are such that a danger exists which could reasonably be expected
to cause death or serious physical harm immediately or before the
danger could be eliminated through the enforcement process. (Illinois
State Plan, p. 10)
(f) Right of Entry; Advance Notice. A State program is required to
have authority for right of entry to inspect and compulsory process to
enforce such right equivalent to the Federal program (section 18(c)(3)
of the OSH Act and 29 CFR 1956.10(e)). Likewise, a State is expected to
prohibit advance notice of inspection, allowing exception thereto no
broader than in the Federal program (29 CFR 1956.10(f)).
Section 2(b)(3) of the Illinois Safety Inspection and Education Act
[820 ILCS 220] provides that the Director of Labor has the right to
inspect and investigate during regular working hours and at other
reasonable times, and within reasonable limits and in a reasonable
manner, any such place of employment and all pertinent conditions,
structures, machines, apparatus, devices, equipment, and materials
therein, and to question privately any such employer, agent or
employee.
Section 2.6(a) of the SIEA prohibits advance notice of inspections.
A person who gives advance notice of any inspection to be conducted
under the authority of this Act or the Health and Safety Act without
authority from the Director of Labor, or his or her authorized
representative, commits a Class B misdemeanor. (Illinois State Plan, p.
9)
(g) Citations, Sanctions, and Abatement. A State Plan is expected
to have authority and procedures for promptly notifying employers and
employees of violations, including proposed abatement requirements,
identified during inspection, for the proposal of effective first-
instance sanctions against employers found in violation of standards,
and for prompt employer notification of any such sanctions. In lieu of
monetary penalties as a sanction, a complex of enforcement tools and
rights, including administrative orders and employees' right to
contest, may be demonstrated to be as effective as monetary penalties
in achieving compliance in public employment (29 CFR 1956.11(c)(2)(ix)
and (x)).
The Illinois Safety Inspection and Education Act establishes the
authority and general procedures for the Director of Labor to promptly
notify public employers and employees of violations, abatement
requirements, and to compel compliance. The Director of Labor must
issue a written order to comply with reasonable promptness, which in no
case may be more than six months after the occurrence of any violation.
The SIEA provides that when an inspection of an establishment has been
made, and the Director of Labor has issued a citation, the employer
shall post such citation or a copy thereof at or near the location
where the violation occurred. Each citation shall be in writing;
describe with particularity the nature of the violation and include a
reference to the provision of the Act, standard, rule, regulation, or
order alleged to have been violated; and fix a reasonable time for the
abatement of the violation. (820 ILCS 220/2.3)
Although Section 2.3 of the SIEA contains authority for a system of
first-instance monetary penalties, in practice it is the State's intent
to issue monetary penalties only for failure to correct and egregious
violations. The State has discretionary authority for civil penalties
of not more than $10,000 for repeat and willful violations. Serious and
other-than-serious violations may be assessed a penalty of up to $1,000
per violation and failure-to-correct violations may be assessed a
penalty of up to $1,000 per violation per day. In addition, any public
employer who willfully violates any standard, rule, or order can be
charged by the Attorney General with a Class 4 felony if that violation
causes death to any employee. (Illinois State Plan, p. 11-12)
The State has given an assurance that it will revise its
regulations regarding inspections, citations, and proposed penalties to
be equivalent to 29 CFR 1903 within two years of plan approval.
(Illinois State Plan, p. 19)
(h) Contested Cases. A State Plan must have authority and
procedures for employer contest of violations alleged by the State,
penalties/sanctions and abatement requirements at full administrative
or judicial hearings. Employees must also have the right to contest
abatement periods and the opportunity to participate as parties in all
proceedings resulting from an employer's contest (29 CFR
1956.11(c)(2)(xi)).
Public employers or their representatives who receive a citation or
a proposed penalty may within 15 working days contest the citation,
proposed penalty and/or abatement period and request a hearing before
an Administrative Law Judge (ALJ) on behalf of the Director. Any public
employee or representative may within 15 working days request a hearing
before an ALJ regarding the reasonableness of the abatement period.
Informal review prior to contest may also be requested at the division
level. The ALJ's decision is subject to appeal to the courts. (Illinois
State Plan, pp. 12-13)
Although the Illinois Plan does not include an independent
authority for review of contested cases, and the Director technically
has statutory responsibility for both the enforcement and the appeals
process (820 ILCS 220/2.4), in practice, Administrative Law Judges hear
contested cases without any oversight or review by the Director. ALJ's
decisions are subject to judicial review under the Illinois
Administrative Review Law. (56 ILCS 350.120). Within one year of plan
approval, the State will make appropriate changes to its regulations
and procedures to ensure the separation of these functions and the
independence of the adjudicatory process. The Director of Labor will
remain responsible for the enforcement process, including the issuance
of citations and penalties, and their defense, if contested.
The State's developmental schedule also includes an assurance that
it will revise its regulations regarding the review system for
contested cases to be equivalent to 29 CFR 2200 within two years of
plan approval. (Illinois State Plan, p. 19)
(i) Enforcement Conclusion. Accordingly, OSHA finds that the
enforcement provisions of the Illinois State Plan as described above
meet or will meet the statutory and regulatory requirements for initial
State Plan approval.
(6) Staffing and Resources
Section 18(c)(4) of the OSH Act requires State Plans to provide the
qualified personnel necessary for the enforcement of standards. In
accordance with 29 CFR 1956.10(g), one factor which OSHA must consider
in
[[Page 45113]]
considering a plan for initial approval is whether the State has or
will have a sufficient number of adequately trained and competent
personnel to discharge its responsibilities under the plan.
The Illinois State Plan (p. 17; pp. 19-20) provides assurances of a
fully trained, adequate staff, including 11 safety and 3 health
compliance officers for enforcement inspections, and 3 safety and 2
health consultants to provide consultation, training and education
services in the public sector. The State has a currently authorized
staff of 8 safety and 3 health compliance officers who, in addition to
inspections, also perform duties equivalent to OSHA's on-site
consultation program. The Plan provides assurances that within three
years of plan approval no staff will have dual roles, and the State
will have a fully trained, adequate, and separate staff of compliance
officers for enforcement inspections, and consultants to perform
consultation services in the public sector. As new staff members are
hired they will perform either enforcement or consultation functions.
The compliance staffing requirements (or benchmarks) for State Plans
covering both the private and public sectors are established based on
the ``fully effective'' test established in AFL-CIO v. Marshall, 570
F.2d 1030 (DC Cir. 1978). This staffing test, and the complicated
formula used to derive benchmarks for complete private/public sector
Plans, are not intended, nor are they appropriate, for application to
the staffing needs of public employee only Plans. However, the State
has given satisfactory assurance in its Plan that it will meet the
requirements of 29 CFR 1956.10 for an adequately trained and qualified
staff sufficient for the enforcement of standards. (Illinois State
Plan, p. 17; pp. 19-20)
Section 18(c)(5) of the OSH Act requires that the State Plan devote
adequate funds for the administration and enforcement of its standards
(29 CFR 1956.10(h)). Illinois has funded its public employee safety and
health program since 1985 solely utilizing State funds. The State Plan
will be funded at $3 million ($1.5 million Federal 50% share and $1.5
million State 50% matching share) during Federal Fiscal Year 2009.
Accordingly, OSHA finds that the Illinois State Plan has provided
for sufficient, qualified personnel and adequate funding for the
various activities to be carried out under the Plan.
(7) Records and Reports
State Plans must assure that employers in the State submit reports
to the Assistant Secretary in the same manner as if the Plan were not
in effect (section 18(c)(7)) of the OSH Act). Under a public employee
State Plan, public employers must maintain records and make reports on
occupational injuries and illnesses in a manner similar to that
required of private sector employers under the OSH Act and 29 CFR
1956.10(i). The Plan must also provide assurances that the designated
agency will make such reports to the Assistant Secretary in such form
and containing such information as he or she may from time to time
require (section 18(c)(8) of the OSH Act and 29 CFR 1956.10(j)).
Illinois has provided assurances in its State Plan (p. 19) that all
jurisdictions covered by the State Plan will maintain valid records and
make timely reports on occupational injuries and illnesses, as required
for private sector employers under the OSH Act. Specific regulations on
this aspect of the State Plan will be submitted by Illinois in accord
with its developmental schedule, in which the State has agreed to adopt
amendments to regulations regarding recordkeeping equivalent to 29 CFR
1904 within two years of plan approval.
Illinois has also provided assurance in its State Plan (p. 20) that
it will coordinate with the Illinois Department of Public Health and
the Bureau of Labor Statistics (BLS) to expand the current BLS Annual
Survey of Injuries and Illnesses in the State to provide more detailed
injury, illness, and fatality rates for the public sector within two
years of plan approval. Illinois will also provide reports to OSHA in
the desired form and participate in OSHA's Integrated Management
Information System as well as OSHA's Information System, once deployed.
(Illinois State Plan p. 16; p. 20)
OSHA finds that the Illinois State Plan has met the requirements of
section 18(c)(7) and (8) of the OSH Act on the employer and State
reports to the Assistant Secretary.
(8) Voluntary Compliance Program
A State Plan must undertake programs to encourage voluntary
compliance by employers by such means as conducting training and
consultation with employers and employees (29 CFR 1956.11(c)(2)(xii)).
The Illinois State Plan (pp. 13-14) provides that the State
Department of Labor will continue and expand educational programs for
public employees specifically designed to meet the regulatory
requirements and needs of the public employer. The Plan also provides
that consultation visits and training classes will be conducted at work
sites by request of the employer and will be tailored to the public
employer's concerns. In addition, public agencies are encouraged to
develop and maintain their own safety and health programs as an adjunct
to but not a substitute for the IDOL enforcement program.
Illinois will establish an on-site consultation program for the
public sector parallel to Illinois' existing private sector on-site
consultation program (under section 21(d) of the OSH Act) within three
years of plan approval, which includes establishing a public sector
consultation staff separate from enforcement. (Illinois State Plan, p.
19)
OSHA finds that the Illinois State Plan provides for the
establishment and administration of an effective voluntary compliance
program.
E. Decision
OSHA, after carefully reviewing the Illinois State Plan for the
development and enforcement of State standards applicable to State and
local government employees and the record developed during the above
described proceedings, has determined that the requirements and
criteria for initial approval of a developmental State Plan have been
met. The Plan is hereby approved as a developmental plan for public
employees only under section 18 of the Act and 29 CFR 1956. This
decision incorporates the requirements of the Act and of regulations
applicable to State Plans generally.
The initial approval of a State Plan for public employees in
Illinois is not a significant regulatory action as defined in Executive
Order 12866.
F. Regulatory Flexibility Act
OSHA certifies pursuant to the Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) that the initial approval of the Illinois State
Plan will not have a significant economic impact on a substantial
number of small entities. By its own terms, the Plan will have no
effect on private sector employment, but is limited to the State and
its political subdivisions. Moreover, the Illinois Safety Inspection
and Education Act has been in effect since 1961 and the Illinois Health
and Safety Act has been in effect since 1936, when the State first
established a safety and health program. Since 1985, the Illinois
program for public employees has been in operation under the Illinois
Department of Labor with State funding and most public sector employers
in the State, including small units of local government, have been
subject to its terms. Compliance with State OSHA
[[Page 45114]]
standards is required by State law; Federal approval of a State Plan
imposes regulatory requirements only on the agency responsible for
administering the State Plan. Accordingly, no new obligations would be
placed on public sector employers as a result of Federal approval of
the Plan.
G. Federalism
Executive Order 13132, ``Federalism,'' emphasizes consultation
between Federal agencies and the States and establishes specific review
procedures the Federal government must follow as it carries out
policies which affect State or local governments. OSHA has consulted
extensively with Illinois throughout the development, submission and
consideration of its proposed State Plan. Although OSHA has determined
that the requirements and consultation procedures provided in Executive
Order 13132 are not applicable to initial approval decisions under the
Act, which have no effect outside the particular State receiving the
approval, OSHA has reviewed today's Illinois initial approval decision,
and believes it is consistent with the principles and criteria set
forth in the Executive Order.
H. Effective Date
OSHA's decision granting initial Federal approval to the Illinois
State Plan for public employees only is effective September 1, 2009.
Although the State has had a program in effect for many years,
modification of the program will be required over the next three years
by today's decision. Federal 50% matching funds have been explicitly
provided in the U.S. Department of Labor's FY 2009 appropriation.
Notice of proposed initial approval of the plan was published in both
the Federal Register and in the Daily Herald newspaper in Illinois with
requests for comment. No comments opposing initial approval of the Plan
were received, and OSHA believes that no party is adversely affected by
initial approval of the Plan. OSHA therefore finds, pursuant to section
553(d) of the Administrative Procedures Act, that good cause exists for
making Federal approval of the Illinois Public Employee Only State Plan
effective upon publication in today's Federal Register.
I. Authority and Signature
This document was prepared under the direction of Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
It is issued under Section 18 of the Occupational Safety and Health Act
of 1970, (29 U.S.C. 667), 29 CFR parts 1956 and 1902, and Secretary of
Labor's Order No. 5-2007 (72 FR 31160).
Signed at Washington, DC, this 26th day of August 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
List of Subjects in 29 CFR 1956
Administrative practice and procedure, Government employees,
Intergovernmental relations, Law enforcement, Occupational safety and
health.
For the reasons set out in the preamble, 29 CFR part 1956 is
amended as follows:
PART 1956--[AMENDED]
0
1. The authority citation for part 1956 is revised to read as follows:
Authority: Section 18 of the Occupational Safety and Health Act
of 1970, (29 U.S.C. 667), 29 CFR 1902, 1952, and 1955, and Secretary
of Labor's Order No. 5-2007 (72 FR 31160).
0
2. Subpart I is added to read as follows:
Subpart I--Illinois
Sec.
1956.80 Description of the plan as initially approved.
1956.81 Developmental schedule.
1956.82 [Reserved]
1956.83 [Reserved]
1956.84 Location of plan for inspection and copying.
Subpart I--Illinois
Sec. 1956.80 Description of the plan as initially approved.
(a) Authority and scope. The Illinois State Plan for Public
Employee Occupational Safety and Health received initial OSHA approval
on September 1, 2009. The Plan designates the Illinois Department of
Labor as the State agency responsible for administering the Plan
throughout the State. The Plan includes as enabling legislation the
Illinois Safety Inspection and Education Act (SIEA) [820 ILCS 220] and
the Illinois Health and Safety Act (HSA) [820 ILCS 225]. Under the
legislation, the State Director of Labor has full authority to adopt,
enforce and administer all laws and rules protecting the safety and
health of all employees of the State and its political subdivisions
under the Illinois Public Employee Only State Plan.
(b) Standards. Illinois has adopted State standards identical to
OSHA occupational safety and health standards promulgated through
September 30, 2005. The State Plan provides that these standards will
be updated within one year of plan approval and future OSHA standards
and revisions will be adopted by the State within six months of Federal
promulgation, in accordance with 29 CFR 1953.5. Any emergency temporary
standards will be adopted within 30 days of Federal adoption. The State
will adopt Federal OSHA standards in accordance with the provisions of
the Illinois Health and Safety Act [820 ILCS 225/4.1]. The Plan also
provides for the adoption of alternative or different occupational
safety and health standards by the Director of Labor, where no Federal
standards are applicable to the conditions or circumstances or where
standards more stringent than Federal are deemed appropriate.
(c) Variances. The Plan includes provisions for the granting of
permanent and temporary variances from State standards in terms
substantially similar to the variance provisions contained in the OSH
Act. The State provisions require employee notification of variance
applications as well as employee rights to participate in hearings held
on variance applications. Variances may not be granted unless it is
established that adequate protection is afforded employees under the
terms of the variance. The State has committed to amend its current
variance procedures at 56 ILAC 350.40 to bring them into conformance
with Federal procedures at 29 CFR 1905 within two years of plan
approval.
(d) Employee notice and discrimination protection. The Plan
provides for notification to employees of their protections and
obligations under the Plan by such means as the State poster and
required posting of notices of violations. The Plan also provides for
protection of employees against discharge or discrimination resulting
from exercise of their rights under the State's Acts in terms similar
to section 11(c) of the OSH Act. The SIEA provides that an employee who
believes that he or she has been discharged or otherwise discriminated
against by any person in violation of this section may, within 30
calendar days after the violation occurs, file a complaint with the
Director of Labor alleging the discrimination. The Plan provides that
the Director shall investigate such complaints as appropriate and make
a determination within 90 days. If the Director determines that the
provisions of this section have been violated, the Director shall bring
an action in the circuit court for appropriate relief.
(e) Inspections and enforcement. The Plan provides for inspection
of covered
[[Page 45115]]
workplaces, including inspections in response to employee complaints by
the Department of Labor. If a determination is made that an employee
complaint does not warrant an inspection, the complainant shall be
notified, in writing, of such determination and afforded an opportunity
to seek informal review of the determination. The Plan provides the
opportunity for employer and employee representatives to accompany the
inspector during an inspection for the purpose of aiding in the
inspection and in the absence of such a representative, the right to
interview a reasonable number of employees during the inspection. The
Plan also provides for the right of entry for inspection and
prohibition of advance notice of inspection. The Director of Labor is
responsible for all enforcement actions, including the issuance of all
citations which must specify the abatement period, posting
requirements, and the employer's and employees' right to contest any or
all citations. Although the Plan contains authority for a system of
first-instance monetary penalties, in practice it is the State's intent
to issue monetary penalties only for failure to correct and egregious
violations. The State has discretionary authority for civil penalties
of not more than $10,000 for repeat and willful violations. Serious and
other-than-serious violations may be assessed a penalty of up to $1,000
per violation and failure-to-correct violations may be assessed a
penalty of up to $1,000 per violation per day. In addition, any public
employer who willfully violates any standard, rule, or order can be
charged by the Attorney General with a Class 4 felony if that violation
causes death to any employee.
(f) Review procedures. Although the Director has statutory
responsibility for both the enforcement and the appeals process (820
ILCS 220/2.4), in practice, Administrative Law Judges (ALJ) hear
contested cases without any oversight or review by the Director. The
State will make appropriate changes to its regulations and procedures
to ensure the separation of these functions and the independence of the
adjudicatory process within one year of plan approval. The Director of
Labor will remain responsible for the enforcement process, including
the issuance of citations and penalties, and their defense, if
contested. Public employers or their representatives who receive a
citation or a proposed penalty may within 15 working days contest the
citation, proposed penalty and/or abatement period and request a
hearing before an Administrative Law Judge. Any public employee or
representative may within 15 working days request a hearing before an
ALJ regarding the reasonableness of the abatement period. Informal
review prior to contest may also be requested at the division level.
The ALJ's decision is subject to appeal to the courts.
(g) Staffing and resources. The Plan further provides assurances of
a fully trained, adequate staff within three years of plan approval,
including 11 safety and 3 health compliance officers for enforcement
inspections, and 3 safety and 2 health consultants to perform
consultation services in the public sector. The State has assured that
it will continue to provide a sufficient number of adequately trained
and qualified personnel necessary for the enforcement of standards as
required by 29 CFR 1956.10. The State has also given satisfactory
assurance of adequate funding to support the Plan.
(h) Records and reports. The Plan provides that public employers in
Illinois will maintain appropriate records and make timely reports on
occupational injuries and illnesses in a manner substantially identical
to that required for private sector employers under Federal OSHA.
Illinois has assured that it will coordinate with the Illinois
Department of Health to expand its participation in the Bureau of Labor
Statistics Annual Survey of Injuries and Illnesses to include public
sector employers. The State will comply with the provisions of 29 CFR
1904.7, which allow full employee and employee representative access,
including employee's names, to the log of workplace injuries and
illnesses; and will amend its recordkeeping regulations within two
years of plan approval. The Plan also contains assurances that the
Director of Labor will provide reports to OSHA in such form as the
Assistant Secretary may require, and that Illinois will participate in
OSHA's Integrated Management Information System as well as it
successor, OSHA Information System, once deployed.
(i) Voluntary compliance programs. The Plan provides that training
will be provided to public employers and employees; a separate on-site
consultation program in the public sector will be established to
provide services to public employers who request assistance; and all
State agencies and political subdivisions will be encouraged to develop
and maintain internal safety and health programs as an adjunct to, but
not a substitute for, the Director of Labor's enforcement.
Sec. 1956.81 Developmental schedule.
The Illinois State Plan is developmental. The following is a
schedule of major developmental steps as provided in the Plan that will
be accomplished within three years of plan approval:
(a) Illinois will adopt standards identical to or at least as
effective as the applicable existing OSHA standards and revise the
Rules of Procedures in Administrative Hearings (56 ILAC 120),
clarifying the separation of the enforcement role of the Director of
Labor from the adjudicatory role in contested cases, within one year
after plan approval.
(b) Illinois will update and adopt amendments to the Illinois
Administrative Rules (56 ILAC 350) regarding identical standards,
variances, inspections, review system for contested cases and employee
access to information equivalent to 29 CFR parts 1903, 1905, 1911 and
2200 within two years after plan approval.
(c) Illinois will adopt amendments to rules regarding recordkeeping
substantially identical to 29 CFR part 1904 within two years after plan
approval.
(d) An annual performance plan will be developed and submitted with
the FY 2010 Grant Application. The performance plan will focus on
achievement of developmental steps and activity reporting until such
time as the program is fully operational, at which point objective,
results-oriented performance goals will be established.
(e) Illinois will develop an inspection scheduling system that
targets high hazard establishments within two years of plan approval.
(f) Illinois will develop a comprehensive field operations manual
that is at least as effective as the Federal Field Operations Manual
within two years after plan approval.
(g) Illinois will begin hiring critical program management staff
and filling current vacancy positions within 30 days of plan approval.
(h) Illinois will hire the additional Enforcement program field and
support staff within two years of plan approval.
(i) Illinois will fully implement and staff a public employer/
employee Consultation program equivalent to 29 CFR part 1908, and
training and education programs separate from Enforcement, within three
years after plan approval.
(j) Illinois will have an authorized compliance staff of 11 Safety
Inspectors and 3 Industrial Hygienists (non-supervisory) and a public
sector consultation staff of 3 Safety Consultants and 2 Industrial
Hygiene
[[Page 45116]]
Consultants within three years of plan approval.
(k) Illinois and OSHA will develop a plan for joining the OSHA
Integrated Management Information System to report State plan activity,
including specific information on inspections, consultation visits,
etc., in conjunction with OSHA, within six months of plan approval.
Illinois will convert to the new OSHA Information System upon its
deployment. In the interim, Illinois will provide monthly reports on
its activity in an agreed upon format.
(l) Illinois will coordinate with the Illinois Department of Public
Health and the Bureau of Labor Statistics to expand the current
Illinois survey to provide more detailed injury/illness/fatality rates
on State and local government, within two years of plan approval.
(m) Illinois will revise and submit a State poster for posting at
all public sector workplaces in the State within one year of plan
approval.
Sec. 1956.82 [Reserved]
Sec. 1956.83 [Reserved]
Sec. 1956.84 Location of plan for inspection and copying.
A copy of the plan may be inspected and copied during normal
business hours at the following locations: Office of State Programs,
U.S. Department of Labor, Occupational Safety and Health
Administration, 200 Constitution Avenue, NW., Room N-3700, Washington,
DC 20210; OSHA's Regional Office in Chicago, Illinois, at 230 South
Dearborn Street, 32nd Floor, Room 3244, Chicago, IL 60604; and at: the
Offices of the Illinois Department of Labor, Safety Inspection and
Education Division at 1 West Old State Capitol Plaza, 3rd floor,
Springfield, IL 62701; 160 North LaSalle Street, Suite C-1300, Chicago,
IL 60601; or 2309 West Main Street, Suite 115, Marion, IL 62959.
[FR Doc. E9-21044 Filed 8-31-09; 8:45 am]
BILLING CODE 4510-26-P