OSHA Area Director OSHA Area Director ConcernsConcerns

OSHA Area Director OSHA Area Director ConcernsConcerns

Sheila Schulmeyer

PBSTEPS

August 12, 2008

Repeat ViolationsRepeat ViolationsRepeat ViolationsRepeat Violations

• Repeated Violation - A violation of any standard, regulation, rule, or order where, upon reinspection, a substantially similar violation can bring a fine of up to $70,000 for each such violation. To be the basis of a repeated citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeated citation.

Field Inspection Reference Field Inspection Reference Manual (FIRM) CPL 2.103Manual (FIRM) CPL 2.103

• C. 2. f. Repeated Violations. An employer may be cited for a repeated violation if that employer has been cited previously for a substantially similar condition and the citation has become a final order.

(1) Identical Standard. Generally, similar conditions can be demonstrated by showing that in both situations the identical standard was violated.

EXCEPTION: Previously a citation was issued for a violation of 29 CFR 1910.132(a) for not requiring the use of safety-toe footwear for employees. A recent inspection of the same establishment revealed a violation of 29 CFR 1910.132(a) for not requiring the use of head protection (hard hats). Although the same standard was involved, the hazardous conditions found were not substantially similar and therefore a repeated violation would not be appropriate.

(2) Different Standards. In some circumstances, similar conditions can be demonstrated when different standards are violated. Although there may be different standards involved, the hazardous conditions found could be substantially similar and therefore a repeated violation would be appropriate.

FIRMFIRM• (3) Time limitations. Although there are no statutory limitations upon the length of

time that a citation may serve as a basis for a repeated violation, the following policy shall be used in order to ensure uniformity.

(a) A citation will be issued as a repeated violation if:

1 The citation is issued within 3 years of the final order of the previous citation, or,

2 The citation is issued within 3 years of the final abatement date of that citation, whichever is later.

(b) When a violation is found during an inspection, and a repeated citation has been issued for a substantially similar condition which meets the above time limitations, the violation may be classified as a second instance repeated violation with a corresponding increase in penalty (see Chapter IV, C.2.l.).

C. 2. f. (3) (c) For any further repetition, the Area Director shall be consulted for guidance.

Failure To AbateFailure To Abate

• Failure to Abate Prior Violation - Failure to abate a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date.

MultifacilityMultifacility

• 1 Multifacility Employer. A multifacility employer shall be cited for a repeated violation if the violation recurred at any worksite within the same OSHA Area Office jurisdiction.

EXAMPLE: Where the construction site extends over a large area and/or the scope of the job is unclear (such as road building), that portion of the workplace specified in the employer's contract which falls within the Area Office jurisdiction is the establishment. If an employer has several worksites within the same Area Office jurisdiction, a citation of a violation at Site A will serve as the basis for a repeated citation in Area B.

FIRM on Failure to AbateFIRM on Failure to Abate

• Repeated vs. Failure to Abate. A failure to abate situation exists when an item of equipment or condition previously cited has never been brought into compliance and is noted at a later inspection. If, however, the violation was not continuous (i.e., if it had been corrected and then reoccurred), the subsequent occurrence is a repeated violation.

Why are we bringing these up?Why are we bringing these up?

• Enforcement is finding these repeated and failure to abate conditions in the oil patch.

• Specifically, PPE (handling chemicals) and eyewashes.• API RP 54: 4.4 EMERGENCY EYE OR BODY WASH• STATIONS• 4.4.1 Where the eyes or body of personnel may be

exposed to injurious materials, eyewash and shower equipment for emergency use should be provided. For information on emergency eyewash and shower equipment, see American National Standards Institute (ANSI Z358.1).

Need to Strategize on Some Best Need to Strategize on Some Best PracticesPractices

• In our area, Rich Tapio has been fairly lenient on these items, but he just wants to caution folks on enforcement continually finding these conditions which could result in repeat violations, or even failure to abate; both which can be very, very costly.

• As a participant of STEPS, OSHA considers working together to rid the industry of hazards that are really serious our biggest focus, but we must also consider conditions that might not seem serious when compared with the hazards that really do damage, that if left unabated, we must also understand that continuous exposure and proper treatment of those exposures can lead to serious complications.

This information has been developed by an OSHA Compliance Assistance Specialist and is intended to assist employers, workers, and others as they strive to improve workplace health and safety. While we attempt to thoroughly address specific topics [or hazards], it is not possible to include discussion of everything necessary to ensure a healthy and safe working environment in a presentation of this nature. Thus, this information must be understood as a tool for addressing workplace hazards, rather than an exhaustive statement of an employer’s legal obligations, which are defined by statute, regulations, and standards. Likewise, to the extent that this information references practices or procedures that may enhance health or safety, but which are not required by a statute, regulation, or standard, it cannot, and does not, create additional legal obligations. Finally, over time, OSHA may modify rules and interpretations in light of new technology, information, or circumstances; to keep apprised of such developments, or to review information on a wide range of occupational safety and health topics, you can visit OSHA’s website at www.osha.gov.