FOLLOW-UP INSPECTION AND FAILURE TO ABATE

AUTHORITY: California Labor Code Sec. 6320 and 6430.

POLICY: It is the policy of the Division of Occupational Safety and Health to conduct a follow-up inspection of a recently inspected workplace when required by the California Labor Code and when deemed appropriate by the Division to ensure that a cited violation has been abated in a timely fashion, and to issue civil penalties when an employer has failed to abate the cited violation.

PROCEDURES:

A. SCHEDULING

1. Mandatory Follow-up Inspections
   1. For a Citation alleging a Serious violation of the Injury and Illness Prevention (IIP) Program (8 CCR Sec. 3203) not abated during the original inspection, a follow-up inspection shall be conducted at the end of the time fixed for abatement or within thirty (30) days thereafter;

   2. For a Special Order, a follow-up inspection shall be conducted at the end of the time fixed for abatement or within thirty (30) days thereafter;

   3. For an Order to Take Special Action, a follow-up inspection shall be conducted at the end of the time fixed for abatement or within thirty (30) days thereafter;

   4. For a Citation alleging a Willful/Serious or Repeat/Serious violation not abated during the inspection, a follow-up inspection shall be conducted at the end of the time fixed for abatement or within thirty (30) days thereafter;

   5. For a Citation alleging a Serious violation requiring abatement within less than six (6) days, a follow-up inspection shall be conducted at the end of the time fixed for abatement or within thirty (30) days thereafter;

   6. For a Citation alleging a serious violation not abated during the original inspection and not otherwise subject to a follow-up inspection, a follow-up inspection shall be conducted in at least twenty percent (20%) of workplaces with such Citations at the end of the time fixed for abatement or within a reasonable time thereafter, even though the Division has received the Employer's Signed Statement of Abatement of Serious Violation (Cal/OSHA Form 161); and

   7. For a Citation alleging a serious violation not abated during the original inspection and not otherwise subject to a follow-up inspection, a follow-up inspection shall be conducted within 45 days after the time fixed for abatement has elapsed when the Division has not received the Employer's Signed Statement of Abatement of Serious Violation (Cal/OSHA Form 161).

2. Discretionary Follow-up Inspections
   1. When an Order Prohibiting Use is issued, a follow- up inspection may be conducted;

   2. When a Restraining Order is issued, a follow-up inspection may be conducted;

   3. When a Citation alleges a Willful or Repeat Regulatory or General violation, a follow-up inspection may be conducted;

   4. When a Citation alleges a Regulatory or General violation and the employer fails to return the Employer's Signed Statement of Abatement of Regulatory and/or General Violations (Cal/OSHA Form 160), a follow-up inspection may be conducted;

   5. Whenever the District Manager determines that a follow-up inspection is an appropriate use of compliance resources.

      NOTE: In making a determination that a follow-up inspection of a cited violation is appropriate, the District Manager shall consider the employer's attitude about workplace safety and health, the number and type of cited violations, and any recommendations made by compliance personnel about the need for a follow-up inspection.

3. Effect of Appeal on Follow-up Inspection
   1. If the employer appeals any Order, Citation or Citation Item, the scope of a follow-up inspection shall be limited to the non-appealed Order, Citation or Citation Item.

   2. A follow-up inspection of an appealed Order, Citation or Citation Item shall only be conducted after the appeals process has been completed.

      NOTE: In most cases, the appeals process for a contested violation is complete when the ALJ's Decision is filed, and the time period for a party to petition for reconsideration of the ALJ's Decision has elapsed, i.e., 35 days.

1. Opening Conference

   Compliance personnel shall conduct a brief Opening Conference and shall explain to the employer, or the employer's representative, the purpose and scope of the follow-up inspection. See P&P C-1A, Section C, for requirements pertaining to the Opening Conference.

2. Walkaround
   1. Cited Violation

      During the walkaround, compliance personnel shall inspect all areas of the workplace in which violations were cited during the original inspection to ascertain if the cited violations have been abated by the employer.

   2. New Violation

      If compliance personnel note new violative conditions during the walkaround which were not present during the original inspection, these new violations shall be cited according to the violation documentation procedures found in P&P C- 1B and the penalty calculation procedures found in P&P C-10.

3. Exit and Closing Conferences
   1. After completing the walkaround, compliance personnel shall conduct either an Exit Conference or a Closing Conference with the employer before leaving the worksite. See P&P C-1A, Sections E. and F.

   2. During the Exit or Closing Conference, compliance personnel shall discuss with the employer the results of the follow-up inspection and review the status of the abated and unabated violations. Compliance personnel shall inform the employer if a Notification of Failure to Abate Alleged Violation (Cal/OSHA Form 2B) will be issued and if additional penalties for the failure-to-abate violation(s) will be proposed.

   NOTE: All Cal/OSHA Form 2Bs shall be office- issued.

C. FAILURE TO ABATE

1. Violation Elements
   1. A failure-to-abate violation exists when evidence obtained by the Division during the performance of a follow-up inspection demonstrates that an employer failed to correct a previously cited violation by the date fixed for abatement on the Cal/OSHA Form 2.

   2. Unless an extension of the time originally fixed for abatement has been granted to the employer prior to the follow-up inspection, compliance personnel shall cite an employer for his or her failure to abate a previously cited violation and impose a civil penalty of not more than fifteen thousand dollars ($15,000) for each calendar day they fail to abate the violation.

      NOTE: If a previously cited violation is under appeal, a Notification of Failure to Abate Alleged Violation shall not be issued.

2. Penalty Calculation

   See P&P C-10, Section B.7. for procedures about the calculation of a failure-to-abate penalty.

3. Governmental Educational Entities
   1. State of California and local governmental entities are not exempt from the imposition of any civil penalties.

   2. However, any school district, county board of education, county superintendent of schools or charter school community college district, California State University, University of California, or a joint powers agency performing education functions, may apply to the Department of Industrial Relations for a refund of their civil penalty (with interest), if the following three conditions have been met:
      1. All conditions previously cited by the Division have been abated;

         NOTE: The term "previously cited" means all violative conditions cited, beginning from the date of the citation for which the entity is seeking a refund of the associated civil penalty, and ending with the date of any citations issued up to the date of the refund request.

      2. Any other outstanding citation has been abated; and

         NOTE: The phrase "any other outstanding citation" includes contested citations which are under appeal at the time the refund request is made.

      3. The requesting employer has not been cited by the Division for a serious violation at the same school within two (2) years of the date of the original violation, i.e., the citation for which they are seeking a refund of the associated civil penalty.

   3. The District shall direct all refund requests from governmental educational entities to the Manager of the Accounting Unit in the Department of Industrial Relations.

      NOTE: Upon request of the Accounting Unit, the District shall make available to Accounting all documents relating to abatement by the requesting governmental educational entity.

4. Submission of a Fraudulent Statement of Abatement

   Any employer who submits a signed statement affirming compliance with the abatement terms of the citation, and is found by the District during a follow-up inspection not to have abated the violation(s), is guilty of a public offense punishable by imprisonment for not more than one year, a fine of $30,000 for an individual or $300,000 for a corporation or a limited liability company, or both.

   NOTE: If compliance personnel determine that an employer has submitted a fraudulent statement of abatement, they shall make a referral to the Bureau of Investigations (BOI). See P&P C-90.

1. All Cal/OSHA Forms 2B shall be office-issued and computer-generated or typewritten by compliance personnel or Office Support Staff.

   NOTE: The address of the Cashier, Accounting Office, shall be changed by compliance personnel or Office Support Staff to the following address: P.O. Box 420603, San Francisco, CA 94142

2. After District manager review, approval and signature, Office Support Staff shall mail the completed and signed original Cal/OSHA Form 2B and second copy to the employer by certified mail (return receipt requested).

E. FORMS DISTRIBUTION

1. File a copy of the Cal/OSHA Form 2B in the employer's case file.

2. Send the goldenrod or third copy to Accounting.

F. FORM COMPLETION

Cal/OSHA 2B (Notification of Failure to Abate Alleged Violation)

1. Original Inspection Date(s)

   Enter the date(s) when the original inspection was conducted.

2. Original Inspection Number

   Enter the Inspection Number from the original inspection.

3. Issuance Date

   Enter the date of issuance of the failure-to-abate citation.

4. Inspection Number

   Enter the preprinted nine-digit number from the Cal/OSHA Form 1 of the follow-up inspection.

5. Reporting ID

   Enter the District Office Reporting ID number.

6. CSE/IH ID

   Enter the Identification number of the safety engineer or industrial hygienist who conducted the inspection which would normally be the first letter of the last name and the last four digits of their Social Security Number.

7. Optional Report No.

   Enter the compliance personnel's individual inspection number from the Cal/OSHA Form 1 of the follow-up inspection.

8. Page No.

   Indicate the number of the page(s) for each citation issued.

9. To:

   Indicate the name and mailing address of the employer and the Index Code.

10. Inspection Date(s)

    Enter the beginning and ending date(s) of the follow-up inspection.

11. Inspection Site Enter the address of the inspection site.

12. Citation Number -- Item Number

    Enter the Citation Number and Item Number in numerical order of the failure-to-abate items from the original Cal/OSHA Form 2.

13. Standard, Regulation or Section of the Act Violated

    Enter the correct Title 8 section, subsection, paragraph, or other number, which is being cited from the original Cal/OSHA Form 2.

14. Description

    Enter the text of the cited Title 8 Safety Order violated. Below the text of the Title 8 Safety Order violated, specify with particularity in a separate paragraph how the cited Title 8 Safety Order was violated by the employer (the allegation) from the original Cal/OSHA Form 2.

15. Additional Penalty and Number of Days Fail to Abate

    Enter the additional penalty from the C-10 and the number of days which the violation was unabated from the date fixed for abatement.

16. Signature

    Cal/OSHA Engineer/Industrial Hygienist

    Sign your name legibly on the line provided and print your name below the line if your handwriting cannot be easily read by those not already familiar with your signature.

    District Manager/Sr. Industrial Hygienist

    Sign your name legibly on the line provided and print your name below the line if your handwriting cannot be easily read by those not already familiar with your signature.

17. Total

    Add all the penalty amounts in Item 15 and display the total in Item 17. If the Citation is more than one page, enter the words, "See Last Page" in Item 17, and on the last page, enter the total failure-to-abate penalty for the Citation.

Attachment: Cal/OSHA Form 2B