APPENDIX II APPENDIX II Table II.3: H.R. 3160 Imminent Danger Penalty Provisions Compared With Those of Selected Federal Agencies and States M.R. 3160 Federal agency OSHA MSHA Penalties In the event that an employer does not immediately correct the hazard or remove all employees from exposure thereto, the employer shall be assessed a civil penalty of not less than $10,000 and not more than $50,000 daily during which an employee continues to be exposed to the hazard. No separate penalty for imminent danger. However, agency may assess civil penalties if imminent danger involves citation(s) for willful, serious, or repeat violations, or for failure to abate hazard within the time allotted. No separate civil penalty for imminent danger. Criminal: $250,000 maximum for failure or refusal to comply with imminent danger closure order, imprisonment for not more than 1 year, or both. State Alaska California Kentucky Minnesota Tennessee Vermont Washington No separate penalty for imminent danger. Same as OSHA, except that anyone who uses any workplace or equipment that No separate penalty for imminent danger. No separate penalty for imminent danger. Same as OSHA, except that employers who continue to use procedures that APPENDIX II APPENDIX II STATE OFFICIALS' OPINIONS ABOUT ADVANTAGES OF INSPECTORS' SHUTDOWN AUTHORITY IN IMMINENT DANGER SITUATIONS State program officials in Alaska, Oregon, Tennessee, and Washington told us that the major advantage of inspector shutdown authority is the ability to provide immediate protection to workers by stopping the practice or work condition that the inspector believes is causing the imminent danger. Without this authority, such protection may be delayed while the inspector seeks a court order, and workers could be killed or injured. An Alaska official, for example, commented that shutdown authority is especially important for remote work sites where there are no judges or courts in the immediate area. He also said that authority to issue a stop order often results in the employer correcting a serious hazard immediately, without the inspector having to issue a red tag, because the employer knows the inspector can stop the operation. A Vermont official noted that speed is critical in imminent danger situations to reduce the likelihood of death or serious injury. He contrasted a federal OSHA inspector's requirement to get a court order with a Vermont inspector's authority in situations, such as short-term construction projects like trenching, which may last only 4 to 8 hours. The Vermont inspector could order an immediate halt to operations if an imminent danger arose, whereas an employer in a state without shutdown authority could order employees to continue working in imminent danger conditions and even finish the project while the OSHA or state inspector without shutdown authority awaited a court order. STATE PROCEDURAL CONTROLS TO PREVENT POTENTIAL One concern regarding giving inspectors greater authority in imminent danger situations might be the possibility that they would misuse or abuse that authority. In response to our questions, we found procedures designed to prevent such abuse. For example, the Minnesota state official said the potential for inspector abuse is negated in that state by the requirement that any imminent danger situation be reported to and discussed with the inspector's supervisor and/or the Commissioner. In addition, statistics on imminent danger situations/inspections show that, with the exception of Alaska, imminent danger/closure orders or notices were issued in about 2 percent or less of all inspections conducted. (See table II.4.) The number of such notices may understate the extent of imminent danger situations, however, because employers may correct the hazard immediately, thus preventing the need for the inspector to post a notice. 56-856 O 9214 ENDIX II APPENDIX II ple II.4: Number and Percent of Imminent Danger/Closure Orders sued by Selected Federal Agencies and States. Fiscal Year 1991 This may include some imminent danger situations in which the employer voluntarily corrected the identified hazard without an order. APPENDIX III OSHA State APPENDIX III PERCENT OF CONTESTED VIOLATIONS UPHELD UPON REVIEW, We consider these data, from OSHA's 1992 special evaluation report, not comparable with those of other states because they reflect the number and percentage of total cases rather than violations. According to OSHA's January 1992 special evaluation of Wyoming's state plan, the state's data are not comparable with federal data because Wyoming uses a different definition of contested case. APPENDIX IV APPENDIX IV OSHA ACTIONS TO IMPROVE EMPLOYERS' PROOF OF HAZARD ABATEMENT H.R. 3160 contains a provision' that would require employers to verify--in writing--that a hazard has been abated. OSHA, in response to our recommendation that employers be required to provide detailed evidence of abatement actions, has taken steps to develop such a regulation. 2 Under existing laws and regulations, employers are asked to provide documentation that they have corrected cited hazards but compliance with OSHA's requests is voluntary, not mandatory. When OSHA mails a citation to an employer, it requests that employers respond with letters detailing specific abatement actions and the date abatement was achieved for each violation. Employers are asked to send photographs, invoices, diagrams, and other documentary evidence but there is no requirement that they do so. If the employer does not respond to OSHA's request or if the response is inadequate, it then becomes the OSHA inspector's responsibility to verify abatement by telephone or by follow-up inspection. If the inspector verifies abatement by telephone, OSHA procedures require the inspector to record in the case file what the employer said about the corrective actions taken. GAO and OSHA internal audits have shown that incomplete abatement documentation is a problem. Auditors reviewing case files were often unable to determine how area offices had confirmed abatement and what types of information they had accepted as evidence. In September 1989, the Director of the Office of Field Programs notified all OSHA regional administrators that the audits also revealed many abatement assurance problems and improvements were needed in regional oversight efforts. Confirming abatement is important to ensure that workers are protected and employers have fulfilled their responsibilities to provide safe and healthful workplaces. Because we believe that the responsibility for providing evidence of abatement should rest with the employer, we recommended in May 1991 that OSHA promulgate a regulation requiring employers to submit detailed evidence of what 'Title V, section 506. 2See Occupational Safety & Health: OSHA Policy Changes Needed to Confirm That Employers Abate Serious Hazards (GAO/HRD-91-35, May 8, 1991). |