Tenn. Comp. R. & Regs. 0800-01-04-.23 - ABATEMENT VERIFICATION
(1) Purpose. TOSHA
inspections are intended to result in the abatement of violations of the
Tennessee Occupational Safety and Health Act of 1972 (Act) as amended (T.C.A.
§§
50-3-101 -
50-3-919). This rule sets forth the procedures TOSHA will use to ensure
abatement. These procedures are tailored to the nature of the violation and the
employer's abatement actions.
(2)
Scope and Application. This rule applies to employers who receive a citation
for one or more violations of the Act.
(3) Definitions.
(a) "Abatement" means action by an employer
to comply with a cited provision of the Act or a standard or regulation
promulgated pursuant to the Act or to eliminate a recognized hazard identified
by TOSHA during an inspection.
(b)
"Abatement date" means:
1. For an uncontested
citation item, the later of:
(i) The date in
the citation for abatement of the violation; or
(ii) The date approved by TOSHA or
established in litigation as a result of a petition for modification of
abatement date (PMA).
2.
For a contested citation item for which the Tennessee Occupational Safety and
Health Review Commission (TOSHRC) has issued a final order affirming the
violation, the later of:
(i) The date
identified in the final order for abatement; or
(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.
(c) "Affected employees" means those
employees who are exposed to the hazard(s) identified as violation(s) in a
citation.
(d) "Final order" means
an order of the TOSHRC which affirms, modifies, or revokes a citation or
monetary penalty issued by TOSHA, or an order affirming a formal settlement
agreement entered into by an employer and TOSHA.
(e) "Final order date" means:
1. For an uncontested citation item, the
twentieth calendar day after the employer's receipt of the citation;
2. For a contested citation item:
(i) The thirtieth day after the date on which
a decision or order of an administrative law judge or the commission en banc is
issued;
(ii) The thirtieth day
after the date on which a decision or order of a Chancery Court or Court of
Appeals is issued if the TOSHRC decision or order is appealed; or
(iii) The date on which the Tennessee Supreme
Court issues a decision or order if the decision of a Court of Appeals decision
or order is appealed.
(f) "Movable equipment" means a hand-held or
non-hand-held machine or device, powered or unpowered, that is used to do work
and is moved within or between worksites.
(4) Abatement Certification.
(a) Within ten (10) calendar days after the
abatement date, the employer must certify to TOSHA that each cited violation
has been abated, except as provided in subparagraph (b) of this rule.
(b) The employer is not required to certify
abatement if the TOSHA compliance officer, during the on-site portion of the
inspection:
1. Observes, within twenty-four
(24) hours after a violation is identified, that abatement has occurred;
and
2. Notes in the citation that
abatement has occurred.
(c) The employer's certification that
abatement is complete must include, for each cited violation, in addition to
the information required by paragraph (9) of this rule, the date and method of
abatement and a statement that the affected employees and their representatives
have been informed of the abatement. Appendix A to this rule contains a sample
Abatement Certification Letter.
(5) Abatement Documentation.
(a) The employer must submit to TOSHA, along
with the information on abatement certification required by subparagraph (c) of
paragraph (4) of this rule, documents demonstrating that abatement is complete
for each willful or repeat violation and for any serious violation for which
TOSHA indicates in the citation that such abatement documentation is
required.
(b) 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.
(6) Abatement Plans.
(a) TOSHA may require an employer to submit
an abatement plan for each cited violation (except an
other-than-serious/non-serious violation) when the time permitted for abatement
is more than ninety (90) calendar days. If an abatement plan is required, the
citation must so indicate.
(b) The
employer must submit an abatement plan for each cited violation within
twenty-five (25) 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. Appendix B to this rule contains a Sample Abatement Plan
form.
(7) Progress
Reports.
(a) 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:
1. That periodic progress reports are
required and the citation items for which they are required;
2. The date on which an initial progress
report must be submitted, which may be no sooner than thirty (30) calendar days
after submission of an abatement plan;
3. Whether additional progress reports are
required; and
4. The date(s) on
which additional progress reports must be submitted.
(b) 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. Appendix "B" to this rule contains
a Sample Progress Report form.
(8) Employee Notification.
(a) The employer must inform affected
employees and their representative(s) about abatement activities covered by
this rule by posting a copy of each document submitted to TOSHA or a summary of
the document near the place where the violation occurred.
(b) Where such posting does not effectively
inform employees and their representative(s) about abatement activities (for
example, for employers who have mobile work operations), the employer must:
1. Post each document or a summary of the
document in a location where it will be readily observable by affected
employees and their representative(s); or
2. Take other steps to communicate fully to
affected employees and their representative(s) about abatement
activities.
(c) The
employer must inform employees and their representative(s) of their right to
examine and copy all abatement documents submitted to TOSHA.
1. An employee or an employee representative
must submit a request to examine and copy abatement documents within three (3)
working days of receiving notice that the documents have been
submitted.
2. The employer must
comply with an employee's or employee representative's request to examine and
copy abatement documents within five (5) working days of receiving the
request.
(d) The
employer must ensure that notice to employees and employee representative(s) is
provided at the same time or before the information is provided to TOSHA and
that abatement documents are:
1. Not altered,
defaced, or covered by other material; and
2. Remain posted for three (3) working days
after submission to TOSHA.
(9) Transmitting Abatement Documents.
(a) The employer must include, in each
submission required by this rule, the following information:
1. The employer's name and address;
2. The inspection number to which the
submission relates;
3. The citation
and item numbers to which the submission relates;
4. A statement that the information is
accurate; and
5. The signature of
the employer or the employer's authorized representative.
(b) The date of postmark is the date of
submission for mailed documents. For documents transmitted by other means, the
date TOSHA receives the document is the date of submission.
(10) Movable Equipment.
(a) For serious, repeat, and willful
violations involving movable equipment, the employer must attach a warning tag
or a copy of the citation to the operating controls or to the cited component
of equipment that is moved within the worksite or between worksites.
Note: Attaching a copy of the citation to the equipment is deemed by TOSHA to meet the tagging requirements of subparagraph (a) of paragraph (10) of this rule as well as the posting requirements of Rule 0800-01-04-.17.
(b) The
employer must use a warning tag that properly warns employees about the nature
of the violation involving the equipment and identifies the location of the
citation issued. Appendix C to this rule contains a sample tag that employers
may use to meet this requirement.
(c) If the violation has not already been
abated, a warning tag or copy of the citation must be attached to the
equipment:
1. For hand-held equipment,
immediately after the employer receives the citation; or
2. For non-hand-held equipment, prior to
moving the equipment within or between worksites.
(d) For the construction industry, a tag that
is designed and used in accordance with
29 CFR
1926.20(b)(3) and
29 CFR
1926.200(h) is deemed by
TOSHA to meet the requirements of this rule when the information required by
subparagraph (b) of this paragraph is included on the tag.
(e) 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.
(f) The
employer must assure that the tag or copy of the citation attached to movable
equipment remains attached until:
1. The
violation has been abated and all abatement verification documents required by
this rule have been submitted to TOSHA;
2. The cited equipment has been permanently
removed from service or is no longer within the employer's control;
or
3. The TOSHRC issues a final
order vacating the citation.
(11) The following Appendices A through C
provide information and nonmandatory guidelines to assist employers and
employees in complying with the appropriate requirements of this rule:
(a) Appendix A - Sample Abatement
Certification Letter (Nonmandatory)
(b) Appendix B - Sample Abatement Plan or
Progress Report (Nonmandatory)
(c)
Appendix C - Sample Warning Tag (Nonmandatory)
Notes
Authority: T.C.A. §§ 4-3-1411, 50-3-105, 50-3-201, 50-3-307 and 50-3-802.
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.