Section 350.110  Violations

 

a)         Standards and Regulations.  The Health and Safety Act states that each public employer has a responsibility to comply with the occupational safety and health standards promulgated under the Act.  The specific standards are found in the federal Department of Labor's Occupational Safety and Health Standards in 29 CFR 1910 (see Section 350.300 for incorporation by reference information).  Subparts A and B of 29 CFR 1910 specifically establish the source of the standards that are the basis of violations.  The most specific subdivision of the standard shall be used for citing violations.  Any employer who has been granted a variance from a standard can be cited for violating the standard with a reference to the fact that the provisions of the variance had not been met.

 

b)         Types of Violations.  The citations will be classified according to the following categories:

 

1)         Other-than-Serious.  This type of violation shall be cited where the most serious injury or illness that would be likely to result form a hazardous condition cannot reasonably be predicted to cause death or serious physical harm to exposed employees, but does have a direct and immediate relationship to their safety and health.

 

2)         Serious.  A serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition that exists, or from one or more practices, means, methods, operations, or processes that have been adopted or are in use in the place of employment, unless the employer did not, and could not with the exercise of reasonable discipline, know of the violation.  Four elements must be considered before deeming a violation to be serious:

 

A)        The type of accident or health hazard exposure that the violated standard is designed to prevent.

 

B)        The most serious injury or illness that could reasonably be expected to result from the type of accident or health exposure.

 

C)        Whether the results of the injury or illness could include death or serious physical harm.

 

D)        Whether the employer knew, or with the exercise of due diligence could have known, of the hazardous condition.

 

3)         General Duty Clause.  The general duty provisions of the Health and Safety Act shall be used for citations only where there is no standard that applies to the particular hazard involved.

 

4)         Willful.  A willful violation exists under the Act when the evidence shows either an intentional violation of the Act or plain indifference to its requirements.  It is not necessary that the violation be committed with a bad purpose or evil intent.  It is sufficient that the violation was deliberate, voluntary or intentional.

 

5)         Criminal/Willful.  Any employer who willfully violates any standard, rule or order promulgated under the Health and Safety Act, or of any regulations prescribed pursuant to that Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months or both (Section 2.3 of Safety Inspection and Education Act).  The following criteria shall be considered in investigating possible criminal/willful violations:

 

A)        The employer violated a specific standard.  A criminal/willful violation cannot be based on a general duty clause violation.

 

B)        The violation was willful in nature.

 

C)        The violation of the standard caused the death of an employee.  There must be evidence in the file that clearly demonstrates that the violation of the standard was the cause of, or a contributing factor to, an employee's death.  When a willful violation is related to a fatality and a civil citation is issued, the case file must contain succinct documentation regarding the decision not to make a criminal referral.

 

c)         Repeated.  An employer may be cited for a repeated violation if that employer has been cited previously for a substantially similar condition and that citation has become a final order.

 

d)         De Minimis.  Violations of the standards that have no direct or immediate relationship to safety or health shall not be included in citations.  The employer shall be verbally notified of the violations and the inspector shall record the violation and the notification in the case file.

 

e)         Writing Citations.  The inspector shall, with reasonable promptness, issue a citation to the employer.  To facilitate the prompt issuance of citations, the Area Manager may issue citations that are unrelated to health inspection air sampling prior to the receipt of sampling results.

 

1)         Each citation shall include the following:

 

A)        The date of the inspection;

 

B)        A description of the conditions or practices found to be in violation of the health and safety standards;

 

C)        The specific health and safety standards that have been or are being violated;

 

D)        A specific abatement date based upon consideration of factors such as the availability of necessary materials, cost, degree of risk present prior to abatement, and extent of anticipated disruption of business;

 

E)         A statement that the employer has the right to appeal the citation and a description of the procedures for appealing the citation; and

 

F)         A statement that the employer may not discharge or discriminate against any employee because the employee has filed a complaint or otherwise provided information to the Department concerning any conditions or practices related to alleged health and safety violations or because of the employee's exercise of any other rights provided by the Health and Safety Act.

 

2)         Issuance Time Frame.  A citation shall not be issued when any violation alleged in the citation occurred six months or more prior to the date on which the citation is actually signed and dated.

 

3)         Mailing.  Citations shall be sent by certified mail.  Hand delivery of citations to the employer or an appropriate agent of the employer may be substituted for certified mailing if it is believed that this method would be more effective.  Citations shall be mailed to employee representatives no later than one day after the citation is sent to the employer.

 

4)         Amending.  A citation shall be amended or withdrawn when information is presented to the Area Manager indicating a need for the revision.

 

5)         Posting.  A copy of the citation shall be posted prominently at or near the place where the violation occurred for three days or until the hazard is abated, whichever is longer.

 

f)          Abatement.  The abatement period shall be the shortest interval within which the employer can reasonably be expected to correct the violation.

 

1)         Verification.   The Area Manager is responsible for determining if abatement has been accomplished.  When abatement is not accomplished during the inspection or the employer does not notify the Area Manager by letter of the abatement, either a follow-up inspection will be scheduled or a letter requesting confirmation of abatement will be mailed.  The type of violation will dictate the degree of follow-up response.

 

2)         Contested Citation or Abatement Period.  In situations where an employer contests either the period set for the abatement or the citation itself, the abatement period shall not begin until the citation and abatement period have been affirmed by the Area Manager.

 

3)         Long-term Abatement Date.  Long-term abatement is abatement that will be completed more than one year from the citation issuance date.  If it is difficult to set a specific abatement date when the citation is originally issued (e.g., because of extensive redesign requirements associated with appropriate engineering controls and uncertainty as to when the job can be finished), the inspector shall discuss the problem with the employer at the closing conference and, in appropriate cases, shall encourage the employer to seek an informal conference with the Area Manager.

 

A)        A specific date for final abatement shall, in all cases, be included in the citation.

 

B)        The employer is required to submit an abatement plan outlining the anticipated long-term abatement procedures.

 

g)         Penalties.  The penalty structure is designed primarily to provide an incentive toward correcting violations voluntarily, not only to the offending employer but, more especially, to other employers who may be guilty of the same infractions.  While penalties are not designed primarily as a punishment for violations, the penalty amounts should be sufficient to serve as an effective deterrent to violations.

 

1)         Civil Penalties

 

A)        Serious, Other-than-Serious and Failure to Abate.  Any employer who has received a citation for any alleged violation that is determined to be of serious or other-than-serious nature under subsection (b)(1) or (b)(2) or for failure to abate shall be assessed a civil penalty of up to $1,000 for each violation.  This is a statutory minimum and is not subject to administrative discretion.

 

B)        Repeated Violations.  An employer who repeatedly violates the Health and Safety Act may be assessed a civil penalty of not more than $10,000 for each violation.

 

C)        Willful Violations.  An employer who willfully violates the Health and Safety Act may be assessed a civil penalty of not more than $10,000.

 

2)         Criminal Penalties.

 

A)        The Health and Safety Act provides for criminal penalties in the following cases:

 

i)          Willful violation of a standard, rule or order causing the death of an employee.

 

ii)         Giving unauthorized advance notice of an inspection.

 

iii)        Giving false statements or information to the Department.

 

iv)        Killing, assaulting or hampering the work of an inspector.

 

B)        Criminal penalties are imposed by the court system after trials and not by the Illinois Department of Labor.