Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
338.101
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
338.051(3) requires the
Kentucky Occupational Safety and Health Standards Board to promulgate
occupational safety and health administrative regulations and authorizes the
chairman to reference federal standards without board approval if necessary to
meet federal time requirements.
KRS
338.061 authorizes the board to establish,
modify, or repeal standards and reference standards. This administrative
regulation establishes the authority for conducting occupational safety and
health inspections and the procedure to be followed by the compliance officers
during the conduct of the inspections.
Section
1. Definitions.
(1)
"Commissioner" is defined by
KRS
338.015.
(2) "Compliance safety and health officer"
means a person authorized by the commissioner to conduct occupational safety
and health inspections and investigations.
(3) "Compulsory process" means the
institution of any appropriate action, including ex parte application for an
inspection, investigation, or warrant or its equivalent.
(4) "Director" means Director, Division of
Occupational Safety and Health Compliance.
(5) "Employee" is defined by
KRS
338.015(2).
(6) "Employer" is defined by
KRS
338.015(1).
Section 2. Authority for
Inspections.
(1) Compliance safety and health
officers shall be authorized to conduct inspections pursuant to
KRS
338.101.
(2) Prior to inspecting areas containing
information classified by an agency of the United States Government in the
interest of national security, compliance safety and health officers shall
obtain the appropriate security clearance.
Section 3. Objection to Inspection.
(1) If an employer refuses to permit a
compliance safety and health officer to enter without delay and at reasonable
times any place of employment to inspect; review records; question any
employer, owner, operator, agent, or employee; or permit a representative of
employees to accompany the compliance safety and health officer during the
physical inspection of any workplace, the compliance safety and health officer
shall terminate the inspection or confine the inspection to areas, conditions,
structures, machines, apparatus, devices, equipment, materials, records, or
interviews concerning which no objection is raised.
(2) The compliance safety and health officer
shall endeavor to ascertain the reason for the refusal and immediately report
the refusal and reason to the commissioner.
(3) The commissioner shall promptly take
appropriate action including compulsory process if necessary.
(4)
(a)
Compulsory process may be sought in advance of an inspection if, in the
judgment of the commissioner, circumstances exist that make a pre-inspection
process desirable or necessary.
(b)
It may be desirable or necessary to seek compulsory process in advance of an
attempt to inspect if:
1. The employer's past
practice implicitly or explicitly puts the commissioner on notice that a
warrantless inspection will not be allowed;
2. Procuring a warrant prior to conducting
the inspection would avoid, in case of refusal, the expenditure of significant
time and resources to obtain a warrant and return to the establishment or
worksite; or
3. An inspection
includes the use of special equipment or the presence of an expert, or experts,
is needed to conduct the inspection and procuring a warrant prior an inspection
would alleviate the difficulties or costs encountered in coordinating the
availability of equipment or an expert.
(5) With the approval of the commissioner as
established in this section, the director or other designee may obtain
compulsory process.
(6) Ex parte
inspection warrants shall be the preferred form of compulsory process if
compulsory process is relied upon.
Section 4. Entry not a Waiver. Any permission
to enter, inspect, review records, or question any person, shall not imply or
be conditioned upon a waiver of any cause of action, citation, or penalty
pursuant to KRS Chapter 338.
Section
5. Conduct of Inspections.
(1)
Inspections shall take place at times and places as the commissioner or
designee directs.
(2) At the
beginning of an inspection, or as soon as practical, the compliance safety and
health officer shall:
(a) Present her or his
credentials to the owner, operator, or agent in charge at the establishment or
worksite;
(b) Explain the nature
and purpose of the inspection;
(c)
Indicate generally the scope of the inspection and the records she or he wishes
to review. The designation of records shall not preclude access to additional
records;
(d) Have authority to take
environmental samples, photographs, videos, oral recordings, and statements;
and
(e) Employ other reasonable
investigative techniques, such as the use of devices to measure employee
exposures and the attachment of personal sampling equipment such as dosimeters,
pumps, badges, and other similar devices to employees in order to monitor their
exposures.
(3) In taking
photographs and samples, compliance safety and health officers shall take
reasonable precautions to ensure that actions with flash, spark-producing, or
other equipment shall not be hazardous.
(4) Compliance safety and health officers
shall comply with employer safety and health rules and practices at the
establishment or worksite and wear, as well as use, appropriate personal
protective equipment.
(5) The
conduct of an inspection shall preclude unreasonable disruption of operations
at the employer's establishment or worksite.
(6)
(a) At
the conclusion of an inspection, the compliance safety and health officer shall
offer conference with the employer and informally advise her or him of apparent
violations.
(b) The employer shall
be afforded an opportunity to bring to the attention of the compliance safety
and health officer any pertinent information regarding conditions in the
workplace.
STATUTORY AUTHORITY:
KRS
338.051,
338.061