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CITATION,
CONFERENCE, CONTEST
The findings and recommendations of the
compliance officer are reviewed at the office of
the OSHA area director, who will issue the
citations if they are appropriate. After the
issuance of a citation the area director of the
OSHA region in which the employer is located
will hold an informal settlement conference if
requested by the employer. The purpose of the
informal conference is to discuss the citations,
including the existence of a hazard and the
amount of proposed penalties and abatement
requirements, in the hope of resolving the
matter without litigation. To reach settlement
agreement, the area director has the authority
to modify penalties, abatement actions and
dates, and characterizations of violations
(willful, serious, etc.). If no settlement can
be worked out, the employer may file a notice of
contest with 15 working days of the receipt of
the citation, in order to initiate the
administrative litigation process. (Or, of
course, pay the fine.)
VIOLATIONS
Section 17 of the OSH Act provides for the
issuance of civil and criminal penalties
ranging, for example, from $1,000 for each
violation for a non-serious ("other") type of
violation to six months imprisonment for
falsification of records. Of particular
importance is the statutory provision for the
issuance of either a "serious" or "willful"
violation because these types of violations
frequently form the basis for a citation.
Under the OSH Act, the agency is instructed to
issue a "serious" violation if there existence
of a "substantial probability" that death or
serious physical harm "could" result from a
condition and that the employer did not and
could not, exercising "reasonable diligence",
know of the violation.
As for a "will" violation, the OSH Act fails to
define the term. OSHA, however, has defined the
term to include circumstances in which the
employer "committed an intentional and knowing
violation of the act", was aware that a
hazardous condition existed and did not make a
"reasonable effort" to eliminate the conditions;
and/or was aware that a condition violated a
standard or other requirement of the act and was
aware of the standard or other requirement
violated. One significant factor in determining
a willful violation is whether the violation was
"deliberate, voluntary, or intentional as
distinguished from inadvertent, accidental, or
ordinarily negligent." Next Month -OSHA
INSPECTION PROCESS Part 5: Contesting a
Citation?
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