Current through August, 2024
(a) Purpose.
HIOSH's inspections are intended to result in the abatement of violations of
the Hawaii occupational safety and health act. This section sets forth the
procedures HIOSH will use to ensure abatement. These procedures are tailored to
the nature of the violation and the employer's abatement actions.
(b) Scope and application. This section
applies to employers who receive a citation for a violation of the Hawaii
occupational safety and health law, chapter 396, HRS.
(c) Definitions.
(1) Abatement means action by an employer to
comply with a cited standard or regulation or to eliminate a recognized hazard
identified by HIOSH during an inspection.
(2) Abatement date means:
(A) For an uncontested citation item, the
later of:
(i) The date in the citation for
abatement of the violation;
(ii)
The final date established as a result of a petition for modification of the
abatement date (PMA); or
(iii) The
date established in a citation by an informal settlement agreement.
(B) For a contested citation item
for which the Hawaii labor and industrial relations appeals board has issued a
final order affirming the violation, the later of:
(i) The date identified in the final order
for abatement;
(ii) The date
computed by adding the period allowed in the citation for abatement to the
final order date; or
(iii) The date
established by a formal settlement agreement.
(3) Affected employees means those employees
who are exposed to the hazard(s) identified as violation(s) in a
citation.
(4) Final order date
means:
(A) For an uncontested citation item,
the twentieth calendar day after the employer's receipt of a
citation;
(B) For a contested
citation item:
(i) The thirtieth day after
the date on which a decision or order of the Hawaii labor and industrial
relations appeals board has been filed; or
(ii) The thirtieth day after the date on
which an appropriate State court issues a decision affirming the
violation.
(5) Movable equipment means any machine or
device, powered or unpowered, that is used to do work and is capable of being
moved within or between worksites.
(d) Abatement certification.
(1) Within five calendar days after the
abatement date, the employer must certify to HIOSH that each cited violation
has been abated, except as provided in paragraph (d)(2).
(2) The employer is not required to certify
abatement if the HIOSH compliance officer:
(A) Observes during the on-site portion of
the inspection, within twenty four hours after a violation is identified, that
abatement has occurred; and
(B)
Notes in the citation that abatement has occurred.
(3) The employer's certification that
abatement is complete must include, for each cited violation item, in addition
to the information required by paragraph (i), the date and method of abatement
and a statement that affected employees and their representatives have been
informed of the abatement.
Note to paragraph (d): Appendix A contains a
sample abatement certification letter.
(e) Abatement documentation.
(1) The employer must submit to HIOSH, along
with the information on abatement certification required by paragraph (d)(3) of
this section, documents demonstrating that abatement is complete for each
willful or repeat violation and for any serious violation for which HIOSH
indicates in the citation that such abatement documentation is
required.
(2) Documents
demonstrating that abatement is complete may include, but are not limited to,
evidence of the purchase or repair of equipment, photographic or video evidence
of abatement, or other written records.
(f) Abatement plans.
(1) HIOSH may require an employer to submit
an abatement plan for each cited violation (except an other-than-serious
violation) when the time permitted for abatement is more than ninety calendar
days. If an abatement plan is required, the citation must so
indicate.
(2) The employer must
submit an abatement plan for each cited violation within twenty-five calendar
days from the final order date when the citation indicates that such a plan is
required. The abatement plan must identify the violation and the steps to be
taken to achieve abatement, including a schedule for completing abatement and,
where necessary, how employees will be protected from exposure to the violative
condition in the interim until abatement is complete.
Note to paragraph (f): Appendix B contains a
sample abatement plan form.
(g)
Progress reports.
(1) An employer who is
required to submit an abatement plan may also be required to submit periodic
progress reports for each cited violation. The citation must indicate:
(A) That periodic progress reports are
required and the citation items for which they are required;
(B) The date on which an initial progress
report must be submitted, which may be no sooner than thirty calendar days
after submission of an abatement plan;
(C) Whether additional progress reports are
required; and
(D) The date(s) on
which additional progress reports must be submitted.
(2) For each violation, the progress report
must identify, in a single sentence if possible, the action taken to achieve
abatement and the date the action was taken.
Note to paragraph (g): Appendix B contains a
sample progress report form.
(h)
Employee notification.
(1) The employer must
inform affected employees and their representative(s) about abatement
activities covered by this section by posting a copy of each document submitted
to HIOSH or a summary of the document near the place where the violation
occurred.
(2) Where such posting
does not effectively inform employees and their representatives about abatement
activities (for example, for employers who have mobile work operations), the
employer must:
(A) Post each document or a
summary of the document in a location where it will be readily observable by
affected employees and their representatives; or
(B) Take other steps to communicate fully to
affected employees and their representatives about abatement
activities.
(3) The
employer must inform employees and their representatives of their right to
examine and copy all abatement documents submitted to HIOSH.
(A) An employee or an employee representative
must submit a request to examine and copy abatement documents within three
working days of receiving notice that the documents have been
submitted.
(B) The employer must
comply with an employee's or employee representative's request to examine and
copy abatement documents within five working days of receiving the
request.
(4) The
employer must ensure that notice to employees and employee representatives is
provided at the same time or before the information is provided to HIOSH and
that abatement documents are:
(A) Not
altered, defaced, or covered by other material; and
(B) Remain posted for three working days
after submission to HIOSH.
(i) Transmitting abatement documents.
(1) The employer must include, in each
submission required by this section, the following information:
(A) The employer's name and
address;
(B) The inspection number
to which the submission relates;
(C) The citation and item numbers to which
the submission relates;
(D) A
statement that the information submitted is accurate; and
(E) A signature of the employer or the
employer's authorized representative.
(2) The date of postmark by the United States
Postal Service is the date of submission for mailed documents. For documents
transmitted by other means, the date HIOSH file-stamps the document is the date
of submission.
(j)
Movable equipment.
(1) For high gravity
violations involving movable equipment, the HIOSH inspector shall attach a
danger tag to the operating controls or to the cited component of equipment
that is capable of being moved within the worksite or between
worksites.
(2) Use of the cited
component of equipment that has a danger tag attached is prohibited.
(3) For medium and lesser gravity violations
the employer must use a warning tag or attach a copy of the citation to the
operating controls or to the cited component of equipment that is capable of
being moved within or between jobsites. The warning tag:
(A) must appropriately warn employees about
the nature of the violation involving the equipment, and
(B) must identify the location of the
citation issued.
Note to paragraph (j)(3): Attaching a copy of
the citation to the equipment is deemed by HIOSH to meet the posting
requirement of section
12-51-16. Non-Mandatory appendix C
contains a sample tag that employers may use to meet this requirement.
(4) If the violation has not already been
abated, a warning tag or copy of the citation must be attached to the equipment
immediately after the employer receives the citation for both hand-held and
non-hand-held equipment.
(5) For
the construction industry, a tag that is designed and used in accordance with
sections 12-110-2 and 12-119.1-1 is deemed by HIOSH to meet the requirements of
this section when the information required by paragraph (j)(3) is included on
the tag.
(6) The employer must
assure that the tag or copy of the citation attached to movable equipment is
not altered, defaced, or covered by other material.
Note to paragraph (j)(6): A medium or lesser
gravity violation is deemed by HIOSH to have been abated if the cited equipment
has been removed from service by tagging it out-of-service or is no longer
within the employer's control.
(7) The
employer must assure that the tag or copy of the citation attached to movable
equipment remains attached until:
(A) A HIOSH
inspector or authorized representative determines that the high gravity hazard
has been abated and removes the tag; or
(B) The medium and lesser gravity violation
has been abated and all abatement verification documents required by this
regulation have been submitted to HIOSH; or
(C) The Hawaii labor and industrial relations
appeals board or appropriate court issues a final order vacating the
citation.
Note to paragraph (j)(7): If the employer
believes that the gravity of the hazard has been reduced from the time of the
inspection, the employer may notify HIOSH to conduct a re-inspection. If the
inspector agrees that the gravity of the hazard has been reduced, the danger
tag may be removed. In some cases, it may be replaced by the warning tag. If
the tag issued was for a medium or lesser gravity violation, the employer may
remove the warning tag simultaneously with notification to HIOSH that the cited
violation has been abated.
Appendices to Section 12-51-22 --Abatement
Verification
Note: Appendices A through C provide
information and nonmandatory guidelines to assist employers and employees in
complying with the appropriate requirements of this section.
Appendix A to Section 12-51-22 --Sample
Abatement-Certification Letter (Nonmandatory)
(Name), Director
Department of Labor and Industrial Relations-HIOSH
830 Punchbowl St. Room 423
Honolulu, Hawaii 96813-5017
[Company's Name]
[Company's Address]
The hazard referenced in Inspection Number [insert 9-digit
#] for violation identified as: Citation [insert #] and item [insert #] was
corrected on [insert date] by (how corrected - documentation required):
------------------------------
Citation [insert #] and item [insert #] was corrected on
[insert date] by (how corrected - documentation required):
------------------------------
Citation [insert #] and item [insert #] was corrected on
[insert date] by (how corrected - documentation required):
------------------------------
Citation [insert #] and item [insert #] was corrected on
[insert date] by (how corrected - documentation required):
------------------------------
Citation [insert #] and item [insert #] was corrected on
[insert, date] by (how corrected -documentation required):
------------------------------
Citation [insert #] and item [insert #] was corrected on
[insert date] by (how corrected - documentation required):
------------------------------
Citation [insert #] and item [insert #] was corrected on
[insert date] by (how corrected - documentation required):
------------------------------
Citation [insert #] and item [insert #] was corrected on
[insert date] by (how corrected - documentation required):
------------------------------
I attest that the information contained in this document is
accurate and that the affected employees and their representative(s) have been
informed of the abatement activities mentioned above and of their right to
examine and copy this and all other abatement documents submitted to
HIOSH.
------------------------------
Signature & Title
------------------------------
Typed or Printed Name
------------------------------
Date
Appendix B to Section 12-51-22 --Sample Abatement
Plan or Progress Report (Nonmandatory)
(Name), Director
Department of Labor and Industrial Relations-HIOSH
830 Punchbowl St. Room 423
Honolulu, Hawaii 96813-5017
[Company's Name]
[Company's Address]
Check one:
Abatement Plan [ ]
Progress Report [ ]
Inspection Number
Page of
Citation Number(s)
Item Number(s)
| Action | Proposed Completion Date (for
abatement plans only) | Completion Date (for progress reports only)
|
1____________________________________________________________________
2____________________________________________________________________
3____________________________________________________________________
4____________________________________________________________________
5____________________________________________________________________
6____________________________________________________________________
7____________________________________________________________________
Date required for final
abatement:__________________________________________ I attest that the
information contained in this document is accurate and that the affected
employees and their representative(s) have been informed of the abatement
activities mentioned above and of their right to examine and copy this and all
other abatement documents submitted to HIOSH.
____________________________________________________________________________
Signature & Title
_____________________________________________________________________________
Typed or Printed Name
_____________________________
Date
Name of primary point of contact for questions:
[optional]
Telephone number:
__________________________________________________________
* Abatement plans or progress reports for more than one
citation item may be combined in a single abatement plan or progress report if
the abatement actions, proposed completion dates, and actual completion dates
(for progress reports only) are the same for each of the citation items.
Appendix C to § 12-51-22 -Sample Warning
Tag
Click here to view Appendix C
(Image 1)
Click here to view Appendix C
(Image 2)
