(1) The Commissioner shall review the
inspection report of the compliance officer. If, on the basis of the report the
Commissioner believes that the employer has violated a requirement of T.C.A.
§
50-3-105;
any standard, rule, or order promulgated pursuant to T.C.A. §§
50-3-201,
50-3-601
or
50-3-605; or
of any substantive rule published in Chapters 0800-1-1 through 0800-01-04 and
Chapters 0800-01-6 through 0800-01-9, he shall issue to the employer a
citation. An appropriate citation shall be issued even though after being
informed of an alleged violation by the compliance officer, the employer
immediately abates, or initiates steps to abate, such alleged violation. Any
citation shall be issued with reasonable promptness and in no event later than
six (6) months following the inspection.
(2) Any inspection shall describe with
particularity the nature of the alleged violation, including a reference to the
provision(s) of the Act, standard, rule, or order alleged to have been
violated. Any citation shall also fix a reasonable time or times for the
abatement of the alleged violation.
(3) If a citation is issued for a violation
alleged in a request for inspection under Rule 0800-01-04-.12(1) or a
notification of violation under Rule 0800-01-04-.12(3), a copy of the citation
shall also be sent to the employee or representative of employees who made such
request or notification.
(4) After
an inspection, if the Commissioner determines that a citation is not warranted
with respect to a danger or violation alleged to exist in a request for
inspection under Rule 0800-01-04-.12(1) or a notification of violation under
Rule 0800-01-04-.12(3), the informal review procedures prescribed in Rule
0800-01-04-.13(1) shall be applicable. After considering all views presented,
the Commissioner shall affirm the original determination, order a reinspection
or issue a citation if he believes that the inspection discloses a violation.
The Commissioner shall furnish the complaining party and the employer with
written notification of his determination and the reasons therefore. The
determination of the Commissioner shall be final and not subject to
review.
(5) Every citation shall
state that the issuance of a citation does not constitute a finding that a
violation of the Act has occurred unless there is a failure to contest as
provided for in the Act or, if contested, unless the citation is affirmed by
the TOSHRC.
(6) No citation may be
issued to an employer because of a rescue activity undertaken by an employee of
that employer with respect to an individual in imminent danger unless:
(a) Designated/Assigned Employee.
1. Such employee is designated or assigned by
the employer to have responsibility to perform or assist in rescue operations;
and
2. The employer fails to
provide protection of the safety and health of such employee, including failing
to provide appropriate training and rescue equipment; or
(b) Directed Employee.
1. Such employee is directed by the employer
to perform rescue activities in the course of carrying out the employee's job
duties; and
2. The employer fails
to provide protection of the safety and health of such employee, including
failing to provide appropriate training and rescue equipment; or
(c) Hazardous workplace.
1. Such employee is employed in a workplace
that requires the employee to carry out duties that are directly related to a
workplace operation where the likelihood of life-threatening accidents is
foreseeable, such as a workplace operation where employees are located in
confined spaces or trenches, handle hazardous waste, respond to emergency
situations, perform excavations or perform construction over water;
and
2. Such employee has not been
designated or assigned to perform or assist in rescue operations and
voluntarily elects to rescue such an individual; and
3. The employer has failed to instruct
employees not designated/assigned or directed to perform or assist in rescue
operations of the arrangements for rescue, not to attempt rescue, and of the
hazards of attempting rescue without adequate training or equipment.
(d) For purposes of this policy,
the term "imminent danger" means the existence of any condition or practice
that could reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated.
(7) Petitions for modification of abatement
date.
(a) An employer may file a petition for
modification of abatement date when he has made a good faith effort to comply
with the abatement requirements of a citation, but such abatement has not been
completed because of factors beyond his reasonable control.
(b) A petition for modification of abatement
date shall be in writing and shall include the following information:
1. All steps taken by the employer, and the
dates of such action, in an effort to achieve compliance during the prescribed
abatement period.
2. The specific
additional abatement time necessary in order to achieve compliance.
3. The reasons such additional time is
necessary, including the unavailability of professional or technical personnel
or of materials and equipment, or because necessary construction or alteration
of facilities cannot be completed by the original abatement date.
4. All available interim steps being taken to
safeguard the employees against the cited hazard during the abatement
period.
5. A certification that a
copy of the petition has been posted and, if appropriate, served on the
authorized representative of affected employees, in accordance with item 1. of
subparagraph (c) of paragraph (7) of this rule and a certification of the date
upon which such posting and service was made.
(c) A petition for modification of abatement
date shall be filed with the TOSHA Administrator no later than the close of the
next working day following the date on which abatement was originally required.
A later-filed petition shall be accompanied by the employer's statement of
exceptional circumstances explaining the delay.
1. A copy of such petition shall be posted in
a conspicuous place where all affected employees will have notice thereof or
near such location where the violation occurred. The petition shall remain
posted for a period of twenty (20) calendar days. Where affected employees are
represented by an authorized representative, said representative shall be
served with a copy of such petition.
2. Affected employees or their
representative(s) may file an objection in writing to such petition with the
aforesaid Administrator. Failure to file such objection within twenty (20)
calendar days of the date of posting of such petition or of service upon an
authorized representative shall constitute a waiver of any further right to
object to said petition.
3. The
Commissioner or his duly authorized agent shall have the authority to approve
any petition for modification of abatement date filed pursuant to subparagraphs
(b) and (c) of paragraph (7) of this rule. Such uncontested petitions shall
become final orders pursuant to T.C.A. §
50-3-307(a) and
(b).
4. The Commissioner or his authorized
representative shall not exercise his approval power until the expiration of
twenty (20) calendar days from the date the petition was posted or served
pursuant to items 1. and 2. of subparagraph (c) of paragraph (7) of this rule
by the employer.
(d)
When any such petition is objected to by the Commissioner or affected employees
or their authorized representative(s), the petition, citation and any
objections shall be forwarded to the TOSHRC within three (3) working days after
the expiration of the twenty (20) day period set out in item 4. of subparagraph
(c) of paragraph (7) of this rule.
