Current through Reg. 49, No. 38; September 20, 2024
(a) Inspections may
be conducted by the commissioner or his representative to determine if an
employer is in violation of the Act or the rules. An employer will be notified
in writing of any alleged violations. The employer shall send a written
response to the department within 15 business days of receipt of the
notification. The employer's response must conform to at least one of the
options listed in the notification from the department.
(b) Employers who do not respond to the
written notice from the department in accordance with subsection (a) of this
section shall be subject to administrative penalties. Each violation of the Act
may be cited separately in the written notice and a separate penalty may be
proposed for each citation. Each day a violation continues may be considered a
separate violation.
(c) Penalties
shall be due after an order is issued by the commissioner. An order may be
issued on or after the 16th business day following the date that a written
notification of violations is received by the employer, unless the department
receives a written response which documents that each violation has been
corrected or that an informal conference or a formal hearing has been
requested. If an informal settlement conference is requested, the employer must
respond that each violation has been corrected within 11 business days after
the employer receives a summary letter following the informal
conference.
(d) The written
response from the employer must address each violation separately and must
provide the documentation requested by the department or an alternative agreed
to by the department. An inappropriate or unacceptable response may result in a
penalty being assessed for the underlying violations.
(e) Violations will be classified in one of
four severity levels:
(1) a minor violation is
related to a minor records keeping deficiency;
(2) a serious violation is related to failure
to take an action that poses a threat of harm to any employee or a substantial
records keeping deficiency;
(3) a
severe violation is related to failure to take an action that poses a
substantial threat of harm to any employee or a major records keeping
deficiency; or
(4) a critical
violation is related to failure to take an action that has caused harm or is
likely to cause significant harm to any employee.
(f) Penalty amounts will be assessed based on
the following schedule:
Attached
Graphic
(g)
Proposed penalties for individual violations may be reduced or enhanced by the
department based on consideration of the history of previous violations, good
faith efforts made to correct violations, duration of the violation, or any
other considerations that justice may require. A maximum reduction or
enhancement of 50% per individual proposed penalty may be considered, based on
the facts presented to the department.
(h) Follow-up inspections may be made to
confirm the status of violations. In cases where the department determines that
one or more specific violations of the Act are ongoing, the department may
issue a written notice to the employer proposing a per day penalty for each
violation.
(i) Examples of
violations for the various severity levels include, but are not limited to:
(1) Minor violation:
(A) failure to update the workplace chemical
list as needed; failure to maintain previous workplace chemical lists for 30
years; or failure to develop the current workplace chemical list;
(B) failure to include one to five required
elements in employee training records for one or more training sessions. Each
employee name, training subject, instructor's name, and the date of the
training session is a separate element;
(C) having a written hazard communication
program which fails to describe how one to three of the criteria specified in
§
295.7(c)
of this title (relating to Written Hazard Communication Program and Employee
Education and Training) will be met;
(D) failure to post the workplace notice
specified in §
295.12
of this title (relating to Employee Notice; Rights of Employees) in up to 25%
of the locations where notices are normally posted in the workplaces covered by
an inspection;
(E) failure to
maintain consistent names for hazardous chemicals on MSDSs, labels, and the
workplace chemical list; or
(F)
failure to maintain a current MSDS for one hazardous chemical in one
workplace.
(2) Serious
violation:
(A) failure to provide the proper
identity or required hazard information on replacement or secondary labels for
up to three containers of hazardous chemicals in a workplace;
(B) failure to provide a replacement or
secondary label on a hazardous chemical container;
(C) failure to maintain five or more required
elements in employee training records for one or more training sessions. Each
employee name, training subject, instructor's name, and the date of the
training session is considered a separate element;
(D) failure to post the workplace notice
specified in §
295.12
of this title in 26% to 99% of the locations where notices are normally posted
in the workplaces covered by an inspection;
(E) failure to provide up to 10% of employees
in the workplaces covered during an inspection the training required under the
Act, §502.009(c);
(F) having a
written hazard communication program which fails to describe how four to six of
the criteria specified in §
295.7(c)
of this title will be met;
(G)
failure to maintain current MSDSs for more than one and less than 6.0% of the
hazardous chemicals in one workplace which are surveyed during an inspection;
or
(3) Severe violation:
(A) failure to post the notice to employees
specified in §
295.12
of this title in any of the locations where employee notices are normally
posted in any workplace;
(B)
failure to provide the proper identity or required hazard information on
replacement or secondary labels of four to ten containers of hazardous
chemicals in a workplace;
(C)
failure to provide replacement or secondary labels on up to five hazardous
chemical containers;
(D) failure to
provide 11% to 25% of employees in the workplaces covered during an inspection
the training required under the Act, §502.009(c);
(E) having a written hazard communication
program which fails to describe how more than six of the criteria specified in
§
295.7(c)
of this title will be met;
(F)
failure to maintain current MSDSs for 6.0% to 10% of the hazardous chemicals in
one workplace which are surveyed during an inspection;
(G) failure by a chemical manufacturer or
distributor to provide an MSDS to an employer within three business days of
receipt of the employer's written request; or
(H) failure to report an incident to the
department as required under the Act, §502.012.
(4) Critical violation:
(A) intentionally removing or defacing a
label on a primary container of a hazardous chemical or maintaining another
product's label on a hazardous chemical container;
(B) failure to provide the proper identity or
required hazard information on replacement or secondary labels of more than ten
containers of hazardous chemicals in the workplace;
(C) failure to provide replacement or
secondary labels on more than five hazardous chemical containers;
(D) failure to provide more than 25% of
employees in the workplaces covered during an inspection the training required
under the Act, §502.009(c);
(E) denial by an employer to allow a
representative of the department to conduct a compliance inspection;
(F) failure to maintain current MSDSs for
greater than 10% of the hazardous chemicals in one workplace which are surveyed
during an inspection;
(G) failure
to provide, at the request of an employee, a copy of an MSDS for a hazardous
chemical to a physician or emergency responder for purposes of treating any
employee who may have suffered a chemical exposure; or
(H) a request or a requirement for an
employee to waive any rights provided by the Act, §502.107.
