Violations - Chapter 8

1. AS 18.60.075(a)(1) states that each employer has a responsibility to comply with occupational safety and health standards promulgated under AKOSH laws and regulations, which include federal and national consensus standards incorporated by reference. For example, the American National Standard Institute (ANSI) standard A92.2 - 1969, "Vehicle Mounted Elevating and Rotating Work Platforms," including appendix, is incorporated by reference as specified in 29 C.F.R. 1910.67, which is adopted in Alaska under 8 AAC 61.1010(b). Only the mandatory provisions, i.e., those containing the word "shall" or other mandatory language of standards incorporated by reference, are adopted as standards under Alaska law.
2. The specific standards and regulations are found in 8 AAC 61.1010 - 1190. Federal regulations adopted as Alaska's occupational safety and health standards are found in Title 29 Code of Federal Regulations (CFR) 1900 series. Standards cited will be subdivided as follows per the preferred nomenclature:

   Code of Federal Regulations
   Subdivision Naming Convention	Example
   Title	29 CFR
   Part	1910
   Subpart	D (subparts group related sections)
   Section	1910.23
   Paragraph	1910.23(c)
   Subparagraph	1910.23(c)(1)
   Subparagraph	1910.23(c)(1)(i)

   Alaska Administrative Code
   Subdivision Naming Convention	Example
   Title	8 AAC
   Section	8 AAC 61.1020
   Subsection	8 AAC 61.1020(a)
   Paragraph	8 AAC 61.1020(a)(1)
   Sub-paragraph	8 AAC 61.1020(a)(1)(A)
   Sub-subparagraph	8 AAC 61.1020(a)(1)(A)(i)

   NOTE: The most specific provision of a standard shall be used for citing violations.

3. Definition and Application of Vertical and Horizontal Standards. Vertical standards are standards that apply to a particular industry or particular operations, practices, conditions, processes, means, methods, equipment, or installations. Horizontal standards are other (more general) standards applicable to multiple industries. See 29 CFR 1910.5(c).
4. Application of Horizontal and Vertical Standards.

   If a CSHO is uncertain whether to cite under a horizontal or a vertical standard when both may be applicable, the Assistant Chief of Enforcement shall be consulted. The following guidelines shall be considered:

   1. When a hazard in a particular industry is covered by both a vertical (e.g., 29 CFR 1928) and a horizontal (e.g., 29 CFR 1910) standard, the vertical standard shall take precedence even if the horizontal standard is more stringent.
   2. In situations covered by both a horizontal (general) and a vertical (specific) standard where the horizontal standard appears to offer greater protection, the horizontal (general) standard may be cited only if its requirements are not inconsistent or in conflict with the requirements of the vertical (specific) standard. To determine whether there is a conflict or inconsistency between the standards, an analysis of the intent of the two standards must be performed. For the horizontal standard to apply, the analysis must demonstrate that the vertical standard does not adequately address the precise hazard involved, even if it addresses related or similar hazards.

      EXAMPLE 8-1: When employees are connecting structural steel, 29 CFR 1926.501(b)(15) may not be cited for fall hazards above 6 feet since that specific situation is covered by 29 CFR 1926.760(b)(1) for fall distances of more than 30 feet.

   3. If the particular industry does not have a vertical standard that covers the hazard, then the CSHO shall use the horizontal (general industry) standard.
   4. When determining whether a horizontal or a vertical standard is applicable to a work situation, the CSHO shall focus attention on the particular activity an employer is engaged in rather than on the nature of the employer's general business.
   5. Hazards found in construction work that are not covered by a specific 29 CFR-1926 standard shall not normally be cited under 29 CFR 1910 unless that standard has been identified as being applicable to construction. See Incorporation of General Industry Safety and Health Standards Applicable to Construction Work, 58 FR 35076 (June 30, 1993).
   6. If a question arises as to whether an activity is deemed construction for purposes of Alaska's occupational safety and health laws, the Director of Labor Standards and Safety will be contacted for a potential referral to the Assistant Attorney General. See 29 CFR 1910.12, Construction Work.
5. Violation of Variances.

   The employer's requirement to comply with a standard may be modified through the granting of a variance, as outlined in AS 18.60.077.

   1. In the event that the employer is not in compliance with the requirements of the variance, a violation of the controlling standard shall be cited. The citation shall include a reference to the variance provision that has not been met.
   2. If, during an inspection, CSHOs discover that an employer has filed a variance application regarding a condition that is an apparent violation of a standard, the Chief of Enforcement shall determine whether the variance request has been granted. If the variance has not been granted, a citation may be issued for the violative condition.

A hazardous condition that violates an AKOSH standard or the general duty clause shall be cited only when employee exposure can be documented. The exposure need not have occurred within a set time period to serve as a basis for a violation.

However, citations must be issued within six months of the violative condition being discovered by AKOSH or abated (AS 18.60.091).

1. Determination of Employer/Employee Relationship.

   Whether or not workers are employees of a particular employer depends on several factors, the most important of which is who controls the manner in which employees perform their assigned work. The question of who pays these employees may not be the key factor. The following factors should be considered:

   1. The degree of permanence of the working relationship;
   2. Whether the alleged employee has special skills and/or specialized licenses;
   3. Whether the alleged employee has an investment in tools or equipment used for their work, or whether the alleged employer provides tools or equipment used by the alleged employee;
   4. Whether the alleged employee has an opportunity for profit or loss in the performance of work for the alleged employer; and,
   5. Whether the alleged employee employs other workers or hires other independent businesses to perform tasks for the alleged employer.

   Determining the employer of exposed employees may be complex; in such cases, the Assistant Attorney General may be consulted.

2. Proximity to the Hazard.

   The actual and/or potential proximity of the employees to a hazard shall be thoroughly documented. (i.e., photos, measurements, employee interviews).

3. Observed Exposure.
   1. Employee exposure is established if CSHOs witness, observe, or monitor the proximity or access of an employee to the hazard or potentially hazardous condition.
   2. The use of personal protective equipment may not, in itself, adequately prevent employee exposure to hazardous conditions. Such exposures may be cited where the applicable standard requires the additional use of engineering and/or administrative controls (including work practices), or where the personal protective equipment used is inadequate.
4. Unobserved Exposure.

   Where employee exposure is not observed, witnessed, or monitored by CSHOs, it may be established through witness statements or other evidence that a hazardous condition has occurred or may continue to occur.

   1. Past Exposure.

      In fatality/catastrophe (or other "accident/incident") investigations, prior employee exposure(s) may be established if CSHOs establish, through written statements or other evidence, that exposure(s) to a hazardous condition occurred at the time of the accident/incident. Additionally, prior exposures may serve as the basis for a violation when:

      • The hazardous condition continues to exist, or it is reasonably predictable that the same or similar condition could recur;
      • It is reasonably predictable that employee exposure to a hazardous condition could recur when:
        • Employee exposure has occurred in the previous six months;
        • The hazardous condition is an integral part of an employer's normal operations; or
        • The employer has not established a policy or program to ensure that exposure to hazardous conditions will not recur.

      NOTE: AS 18.60.091(c) allows AKOSH to issue a citation for a particular violation within 180 days of its discovery of the violation or the abatement of the violation, whichever occurs first.

   2. Potential Exposure.

      Potential exposure to a hazardous condition may be established if there is evidence that employees have access to the hazard, and may include one or more of the following:

      • When a hazard has existed and could recur because of work patterns, circumstances, or anticipated work requirements.
      • When a hazard poses a danger to employees simply by their presence in an area, and it is reasonably predictable that they could come into that area during the course of their work, to rest or to eat, or to enter or exit from an assigned work area; or
      • When a hazard is associated with the use of unsafe machinery or equipment, or arises from the presence of hazardous materials, and it is reasonably predictable that an employee could again use the equipment or be exposed to the materials in the course of work; however
      • If the inspection reveals an adequately communicated and effectively enforced safety policy or program that would prevent or minimize employee exposure, including accidental exposure to the hazardous condition, it would not be reasonably predictable that employee exposure could occur. In such circumstances, no citation should be issued concerning the condition.
   3. Documenting Employee Exposure.

      CSHOs shall thoroughly document exposure, both observed and unobserved, for each potential violation. This includes:

      • Statements by the exposed employees, the employer (particularly the immediate supervisor of the exposed employee), other witnesses (other employees who have observed exposure to the hazardous condition), union representatives, engineering personnel, management, or members of the exposed employee's family;
      • Recorded statements or signed written statements;
      • Photographs, videotapes, and/or measurements; and
      • All relevant documents (e.g., autopsy reports, police reports, job specifications, site plans, OSHA-300/301, equipment manuals, employer work rules, employer sampling results, employer safety and health programs, and employer disciplinary policies, etc.).

Violations of 29 CFR Parts 1903 and 1904 (as adopted in Alaska Statutes and Administrative Code) shall be documented and cited when an employer fails to comply with the posting, record-keeping, and reporting requirements of the regulations contained in these parts, as provided by agency policy.

NOTE: If, before the lapse of the 8-hour reporting period, AKOSH becomes aware of an incident required to be reported under AS 18.60.058 through means other than an employer report, there is no violation for failure to report.

29 CFR 1910.1200, adopted in 8 AAC 61.1010(b), requires chemical manufacturers and importers to assess the hazards of chemicals they produce or import, and applies to these employers even though they may not have their own employees exposed.

Violations of this standard by manufacturers or importers shall be documented and cited, irrespective of any employee exposure at the manufacturing or importing location.

1. Employer Responsibilities.

   AS 18.60.075(a)(1) states: An employer shall do everything necessary to protect the life, health, and safety of employees including, complying with all occupational safety and health standards and regulations adopted by the department

   In addition, paragraph (4) of this statute states: "An employer shall do everything necessary to protect the life, health, and safety of employees including, furnishing to each employee employment and a place of employment that are free from recognized hazards that, in the opinion of the commissioner, are causing or are likely to cause death or serious physical harm to the employees."

2. Employee Responsibilities.
   1. AS 18.60.075(b) states: An employee shall comply with occupational safety and health standards and all regulations issued under AS 18.60.010 - 18.60.105 that are applicable to the employee's own actions and conduct. Alaska statutes do not provide for the issuance of citations or the imposition of penalties against employees. Employers are responsible for employee compliance with the standards.
   2. In cases where the CSHO determines that employees are systematically refusing to comply with a standard applicable to their actions and conduct, the matter shall be referred to the Chief of Enforcement, who shall consult with the Director of Labor Standards and Safety.
   3. The CSHO is expected to obtain information to ascertain whether the employer is exercising appropriate oversight of the workplace to ensure compliance with Alaska's occupational safety and health laws. Concerted refusals by employees to comply will not ordinarily bar the issuance of a citation where the employer has failed to exercise its authority to adequately supervise employees, including taking appropriate disciplinary action.
3. Affirmative Defenses.

   An affirmative defense is a claim that, if established by the employer, will excuse it from a violation that the CSHO has otherwise documented. Although the employer must prove affirmative defenses at the time of the hearing, CSHOs should preliminarily gather evidence to evaluate and/or rebut an employer's potential argument supporting any such defenses. The CSHO should discuss significant evidence supporting an affirmative defense with the Assistant Chief or Chief of Enforcement. See Chapter 7, Section VI, Affirmative Defenses, for additional information.

4. Multi-Employer Worksites.

   On multi-employer worksites in all industry sectors, more than one employer may be cited for a hazardous condition that violates an AKOSH standard. For specific and detailed guidance, refer to the multi-employer policy outlined in the most recent multi-employer compliance directive.

AS 18.60.095(b) provides that a serious violation is considered to exist if the violation creates in the place of employment a substantial probability of death or serious physical harm. However, a serious violation is not considered to exist if the employer did not, and could not, with the exercise of reasonable diligence, know of the presence of the violation. Substantial probability means there is a 51% chance of an injury occurring.

1. CSHOs shall consider four factors in determining whether a violation is serious. The first three factors address whether there is a substantial probability that death or serious physical harm could result from an accident/incident or exposure relating to the violative condition. The likelihood that an incident or illness will occur is not considered in determining whether a violation is serious, but rather in determining the relative gravity of the violation. The fourth factor addresses whether the employer knew or could have known of the violative condition.
2. The classification of a violation does not need to be completed for each instance. It should be done once for each citation or, if violation items are grouped in a citation, once for the group.
3. If the citation consists of multiple instances or grouped violations, the overall classification shall normally be based on the most serious item.
4. The four-factor analysis outlined below will be used to determine whether a violation is serious. Potential violations of the general duty clause shall also be evaluated on the basis of these steps to establish whether they may cause death or serious physical harm.

1. Type of Hazardous Exposure(s).

   The first step is to identify the type of potential exposure to a hazard that the violated standard or the general duty clause is designed to prevent.

   1. CSHOs need not establish the exact manner in which an exposure to a hazard could occur. However, CSHOs shall note all facts that could affect the probability of an injury or illness resulting from a potential accident or hazardous exposure.
   2. If more than one type of hazardous exposure exists, CSHOs shall determine which hazard could reasonably be predicted to result in the most severe injury or illness and base the classification of the violation on that hazard.
   3. The following are examples of some types of hazardous exposure that a standard is designed to prevent:

   EXAMPLE 8-2: Employees are observed working at the unguarded edge of an open-sided floor 30 feet above a lower level in apparent violation of 29 CFR 1926.501(b)(1). The regulation requires the installation of fall protection to protect the edge of the open-sided floor. The type of hazard the standard is designed to prevent is a fall from the edge of the floor to the ground below.

   EXAMPLE 8-3: Employees are observed working in an area in which debris is located in apparent violation of 29 CFR 1910.22(a)(3). The type of hazard the standard is designed to prevent here is employees tripping or slipping on debris, liquids, or ice/snow.

   EXAMPLE 8-4: An 8-hour time-weighted average sample reveals regular, ongoing employee overexposure to methylene chloride at 100 ppm in apparent violation of 29 CFR 1910.1052. This is 75 ppm above the PEL mandated by the standard.

2. The Type of Injury or Illness.

   The second step is to identify the most serious injury or illness that could reasonably be expected to result from the potential hazardous exposure identified in Step 1.

   1. In making this determination, CSHOs shall consider all factors that would affect the severity of the injury or illness that could reasonably result from the exposure to the hazard. CSHOs shall not give consideration at this point to factors relating to the probability that an injury or illness will occur.
   2. The following are examples of types of injuries that could reasonably be predicted to result from exposure to a particular hazard:

      EXAMPLE 8-5: If an employee falls from the edge of an open-sided floor 30 feet to the ground below, the employee could die, break bones, suffer a concussion, or experience other serious injuries that would substantially impair a body function.

      EXAMPLE 8-6: If an employee trips on debris, the trip may cause abrasions or bruises, but it is only marginally predictable that the employee could suffer a substantial impairment of a bodily function. If, however, the area is littered with broken glass or other sharp objects, it is reasonably predictable that an employee who tripped on debris could suffer deep cuts, which could require suturing.

   3. For conditions involving exposure to air contaminants or harmful physical agents, the CSHO shall consider the concentration levels of the contaminant or physical agent in determining the types of illness that could reasonably result from the exposure. The Occupational Chemical Database webpage shall be used to determine both the toxicological properties of substances listed and the Health Code Number. (See also the Label Abbreviations and Descriptions webpage)
   4. To support a classification of serious, a determination must be made that exposure(s) at the sampled level could lead to illness. Thus, CSHOs must document all evidence demonstrating that the sampled exposure(s) is representative of employee exposure(s) under normal working conditions, including identifying and recording the frequency and duration of employee exposure(s). Evidence to be considered includes:
      • The nature of the operation from which the exposure results.
      • Whether the exposure is regular and ongoing or is of limited frequency and duration.
      • How long employees have worked at the operation in the past.
      • Whether employees are performing functions that can be expected to continue; and
      • Whether work practices, engineering controls, production levels, and other operating parameters are typical of normal operations.
   5. Where such evidence is difficult to obtain or inconclusive, CSHOs shall estimate frequency and duration of exposures from any evidence available. In general, if it is reasonable to infer that regular, ongoing exposures could occur, CSHOs shall consider such potential exposures in determining the types of illness that could result from the violative condition. The following are some examples of illnesses that could reasonably result from exposure to a health hazard:

      EXAMPLE 8-7: If an employee is exposed regularly to methylene chloride at 100 ppm, it is reasonable to predict that cancer could result.

      EXAMPLE 8-8: If an employee is regularly exposed to acetic acid at 20 ppm, it is reasonable to expect that the resulting illnesses would include irritation of the eyes, nose, and throat, as well as occupational asthma, chronic rhinitis, and sinusitis.

3. Potential for Death or Serious Physical Harm.

   The third step is to determine whether the type of injury or illness identified in Step 2 could include death or a form of serious physical harm. In making this determination, the CSHO shall utilize the following definition of "serious physical harm:"

   NOTE: Impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job. Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would typically require treatment by a medical doctor or other licensed healthcare professional.

   1. Injuries that constitute serious physical harm include, but are not limited to:
      • Amputations (loss of all or part of a bodily appendage);
      • Concussion;
      • Crushing (internal, even though the skin surface may be intact);
      • Fractures (simple or compound);
      • Burns or scalds, including electric and chemical burns;
      • Cuts, lacerations, or punctures involving significant bleeding and/or requiring suturing;
      • Sprains and strains; and
      • Musculoskeletal disorders.
   2. Illnesses that constitute serious physical harm include, but are not limited to:
      • Cancer;
      • Respiratory illnesses (silicosis, asbestosis, byssinosis, etc.);
      • Hearing impairment;
      • Central nervous system impairment;
      • Visual impairment; and
      • Poisoning.
   3. The following are examples of injuries or illnesses that could reasonably result from an accident/incident or exposure and lead to death or serious physical harm:

      EXAMPLE 8-9: If an employee falls 15 feet to the ground, suffers broken bones or a concussion, and experiences substantial impairment of a part of the body requiring treatment by a medical doctor, the injury would constitute serious physical harm.

      EXAMPLE 8-10: If an employee trips on debris and, because of the presence of sharp debris or equipment, suffers a deep cut to the hand requiring suturing, the use of the hand could be substantially reduced. This injury would be classified as serious.

      EXAMPLE 8-11: An employee develops chronic beryllium disease after long-term exposure to beryllium at a concentration in air of 0.004 mg/m3, and their breathing capacity is significantly reduced. This illness would constitute serious physical harm.

      NOTE: The key determination is the likelihood that death or serious harm will result IF an accident or exposure occurs. The likelihood of an accident occurring is addressed in penalty assessments and not by the classification.

4. Knowledge of Hazardous Conditions.

   The fourth step is to determine whether the employer knew or, with the exercise of reasonable diligence, could have known of the presence of the hazardous condition. However, AKOSH CSHOs are discouraged from applying the reasonable diligence standard unless there is no other more specific evidence of employer knowledge available.

   1. The knowledge requirement is met if it is established that the employer actually knew of the hazardous condition constituting the apparent violation.

      Examples include: the employer observed the condition, an employee or employee representative reported it to the employer, or an employee was previously injured by the condition, and the employer was aware of the injury. CSHOs shall record any/all evidence that establishes employer knowledge of the condition or practice.

   2. If it cannot be determined that the employer has actual knowledge of a hazardous condition, the knowledge requirement may be established if there is evidence that the employer could have known of it through the exercise of reasonable diligence. CSHOs shall record any evidence that substantiates that the employer could have known of the hazardous condition. Examples of such evidence include:
      • The violation/hazard was in plain view and obvious.
      • The duration of the hazardous condition was not brief.
      • The employer failed to regularly inspect the workplace for readily identifiable hazards.
      • The employer failed to train and supervise employees regarding the particular hazard.
   3. The actual or constructive knowledge of a supervisor who is aware of a violative condition or practice can usually be imputed to the employer for purposes of establishing knowledge. In cases where the employer contends that the supervisor's conduct constitutes an isolated incident of employee misconduct, the CSHO shall attempt to determine whether the supervisor violated an established work rule and the extent to which the supervisor was trained in and supervised regarding compliance with the rule to prevent such conduct.

In general, the Review Board and court precedent have established that the following elements are necessary to prove a violation of the general duty clause:

1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
2. The hazard was recognized;
3. The hazard was causing or was likely to cause death or serious physical harm; and
4. There was a feasible and useful method to correct the hazard.

   A general duty citation must involve both the presence of a serious hazard and exposure of the cited employer's own employees.

1. Definition of a Hazard.
   1. The hazard in an AS 18.60.075(a)(4) citation is a workplace condition or practice to which employees are exposed, creating the potential for death or serious physical harm to employees.
   2. These conditions or practices must be clearly stated in a citation to apprise employers of their obligations regarding the hazard. The hazard must therefore be defined in terms of the presence of hazardous conditions or practices that present a particular danger to employees. Also, the hazard must be a condition or practice that can reasonably be abated by the employer.
2. Do Not Cite the Lack of a Particular Abatement Method.
   1. General duty clause citations are not intended to allege that the violation is a failure to implement certain precautions, corrective actions, or other abatement measures but rather addresses the failure to prevent or remove a particular hazard. AS 18.60.075(a)(4) therefore does not mandate a particular abatement measure but only requires an employer to render the workplace free of recognized hazards by any feasible and effective means the employer wishes to utilize.
   2. In situations where a question arises regarding distinguishing between dangerous workplace conditions or practices and the lack of an abatement method, the Assistant Chief of Enforcement shall consult with the Chief of Enforcement, who may consult with the Assistant Attorney General for assistance in correctly identifying the hazard.

   EXAMPLE 8-12: Employees are conducting sanding operations that create sparks in the proximity of magnesium dust (a workplace condition or practice), exposing them to the serious injury of burns from a fire (a potential for physical harm). One proposed method of abatement may be engineering controls, such as adequate ventilation. The "hazard" is sanding that creates sparks in the presence of magnesium that may result in a fire capable of seriously injuring employees, not the lack of adequate ventilation.

   EXAMPLE 8-13: Employees are operating tools that generate sparks in the presence of ignitable gas (a workplace condition), exposing them to the danger of an explosion (a physical harm). The hazard is the use of tools that create sparks in a volatile atmosphere that may cause an explosion capable of seriously injuring employees, not the lack of approved equipment.

   EXAMPLE 8-14: In a workplace situation involving high-pressure machinery that vents gases next to a work area where the employer has not installed proper high-pressure equipment, has improperly installed the equipment that is in place, and does not have adequate work rules addressing the dangers of high-pressure gas, there are three abatement measures the employer has failed to take. However, there is only one hazard (i.e., employee exposure to the venting of high-pressure gases into a work area that may cause serious burns from steam discharges).

3. The Hazard is Not a Particular Accident/Incident.
   1. The occurrence of an accident or incident does not necessarily mean that the employer has violated AS 18.60.075(a)(4), although the accident/incident may be evidence of a hazard. In some cases, an AS 18.60.075(a)(4) violation may be unrelated to the cause of the accident/incident. Although accident/incident facts may be relevant and shall be documented, the citation shall address the hazard in the workplace that existed prior to the accident/incident, not the particular facts that led to the occurrence of the accident/incident.

      EXAMPLE 8-15: A fire occurred in a workplace where flammable materials were present. No one was injured by the fire, but an employee, disregarding the clear instructions of his supervisor to use an available exit, jumped out of a window and broke a leg. The danger of fire due to the presence of flammable materials may be a recognized hazard, causing or likely to cause death or serious physical harm, but the action of the employee may be an instance of unpreventable employee misconduct. The citation must address the underlying workplace fire hazard, not the accident/incident involving the employee.

4. The Hazard Must be Reasonably Foreseeable.

   The hazard for which a citation is issued must be reasonably foreseeable. All factors that could cause a hazard need not be present in the same place or at the same time to prove foreseeability of the hazard; for example, an explosion need not be imminent.

   EXAMPLE 8-16: If combustible gas and oxygen are present in sufficient quantities in a confined area to cause an explosion if ignited, but no ignition source is present or could be present, a violation of AS 18.60.075(a)(4) would not exist. However, if the employer has not taken sufficient safety precautions to preclude the presence or use of ignition sources in the confined area, then a foreseeable hazard may exist.

   NOTE: It is necessary to establish the reasonable foreseeability of the workplace hazard, rather than the particular circumstances that led to an accident/incident.

   EXAMPLE 8-17: A titanium dust fire spreads from one room to another because an open can of gasoline was in the second room. An employee who usually works in both rooms is burned in the second room as a result of the gasoline igniting. The presence of gasoline in the second room may be a rare occurrence. However, it is not necessary to demonstrate that a fire in both rooms could reasonably occur, but only that a fire hazard, in this case due to the presence of titanium dust, was reasonably foreseeable.

5. The Hazard Must Affect the Cited Employer's Employees.
   1. The employees exposed to the AS 18.60.075(a)(4) hazard must be the employees of the cited employer. An employer who may have created, contributed to, and/or controlled the hazard normally shall not be cited for an AS 18.60.075(a)(4) violation if their employees are not exposed to the hazard.
   2. In complex situations, such as multi-employer worksites, where it may be difficult to identify the precise employment relationship between the employer to be cited and the exposed employees, the Assistant Chief of Enforcement shall consult with the Chief of Enforcement and the Assistant Attorney

      General to determine the sufficiency of the evidence regarding the employment relationship.

   3. The fact that an employer denies that exposed workers are his/her employees is not necessarily determinative of the employment relationship issue. Whether or not exposed persons are employees of an employer depends on several factors, the most important of which is who controls the manner in which the employees perform their assigned work. The question of who pays employees, in and of itself, may not be the determining factor in establishing a relationship. CSHOs must document who controls the alleged employees and other relevant factors, such as whether they provide tools or equipment, whether the work requires specialized skills, whether the alleged employee employs other workers on the site, and other relevant details.
6. The Hazard Must Be Recognized.

   Recognition of a hazard can be established based on employer recognition, industry recognition, or "common-sense" recognition. The use of common sense as the basis for establishing recognition shall be limited to special circumstances. The following evidence and adequate documentation in the file must support recognition of the hazard:

   1. Employer Recognition.
      • A recognized hazard can be established by evidence of the employer's actual knowledge of a hazardous condition or practice. Evidence of employer recognition may include written or oral statements made by the employer or other management or supervisory personnel during or prior to the AKOSH inspection.
      • Employer awareness of a hazard may also be demonstrated by reviewing company memoranda, safety work rules that specifically identify the hazard, operations manuals, standard operating procedures, and collective bargaining agreements. Additionally, prior accidents/incidents, near misses known to the employer, injury and illness reports, or workers' compensation data may also indicate employer knowledge of a hazard.
      • Employer awareness of a hazard may also be demonstrated by prior AKOSH or Federal OSHA inspection history which involved the same hazard.
      • Employee complaints or grievances and safety committee reports to supervisory personnel may establish recognition of the hazard, but the evidence should show that the complaints were not merely infrequent, off-hand comments.
      • An employer's own corrective actions may serve as the basis for establishing employer recognition of the hazard if the employer did not adequately continue or maintain the corrective action or if the corrective action did not afford effective protection to the employees.

      NOTE: CSHOs are to gather as many of these facts as possible to support establishing an AS 18.60.075(a)(4) violation.

   2. Industry Recognition.
      • A hazard is recognized if the employer's relevant industry is aware of its existence. Recognition by an industry other than the industry to which the employer belongs is generally insufficient to prove this element of an

        AS 18.60.075(a)(4) violation. Although evidence of recognition by an employer's similar operations within an industry is preferred, evidence that the employer's overall industry recognizes the hazard may be sufficient. The Assistant Chief of Enforcement shall consult with the Chief of Enforcement and the Director of Labor Standards and Safety on this issue. Industry recognition of a hazard can be established in several ways:

        • Statements by safety or health experts who are familiar with the relevant conditions (regardless of whether they work in the industry);
        • Evidence of implementation of abatement methods to deal with the particular hazard by other members of the employer's industry;
        • Manufacturers' warnings on equipment or in literature that are relevant to the hazard;
        • Statistical or empirical studies conducted by the employer's industry demonstrate awareness of the hazard. Evidence such as studies conducted by the employee representatives, the union or other employees must also be considered if the employer or the industry has been made aware of them;
        • Government and insurance industry studies, if the employer or the employer's industry is familiar with the studies and recognizes their validity;
        • State and local laws or regulations that apply in the jurisdiction where the violation is alleged to have occurred and which are currently enforced against the industry in question. In such cases, however, corroborating evidence of recognition is recommended; and/or
        • If the relevant industry participated in the committees drafting national consensus standards, such as the American National Standards Institute (ANSI), the National Fire Protection Association (NFPA), and other private standard-setting organizations, this can constitute industry recognition. Otherwise, such private standards shall normally be used only as corroborating evidence of recognition. Preambles to these standards that discuss the hazards involved may show hazard recognition as much as, or more than, the actual standards. However, these private standards cannot be enforced as AKOSH/OSHA standards, but they may be used to provide evidence of industry recognition, seriousness of the hazard, or feasibility of abatement methods.
      • In cases where state and local government agencies have codes or regulations covering hazards not addressed by AKOSH standards, the Assistant Chief of Enforcement, upon consultation with the Chief of Enforcement, shall determine whether the hazard is to be cited under AS 18.60.075(a)(4) or referred to the appropriate local agency for enforcement.

        EXAMPLE 8-18: A safety hazard on a personnel elevator in a factory is documented during an inspection. It is determined that the hazard may not be cited under AS 18.60.075(a)(4), but a local code addresses this hazard, and the local agency actively enforces the code. The situation shall normally be referred to the local enforcement agency in lieu of citing AS 18.60.075(a)(4).

      • References that may be used to supplement other evidence to help demonstrate industry recognition include the following:
        • NIOSH criteria documents.
        • EPA publications.
        • National Cancer Institute and other agency publications.
        • AKOSH and OSHA Hazard Alerts.
        • OSHA Technical Manual.
   3. Common Sense Recognition.

      If industry or employer recognition of the hazard cannot be established under (a) and (b), hazard recognition can still be established if a hazardous condition is so apparent that any reasonable person would have recognized it. This form of recognition should only be used in cases that are flagrant or obvious.

      EXAMPLE 8-19: In a general industry situation, courts have held that any reasonable person would recognize that it is hazardous to use an unenclosed chute to dump bricks into an alleyway 26 feet below where unwarned employees worked. In construction, AS 18.60.075(a)(4) could not be cited in this situation because 29 CFR 1926.252 or §1926.852 applies. In the context of a chemical processing plant, common-sense recognition was established where hazardous substances were being vented into a work area.

7. The Hazard Was Causing or Likely to Cause Death or Serious Physical Harm.
   1. This element of an AS 18.60.075(a)(4) violation is virtually identical to the substantial probability element of a serious violation under AS 18.60.095. Serious physical harm is defined in Paragraph II.C.3. of this chapter.
   2. This element of an AS 18.60.075(a)(4) violation can be established by showing that:
      • An actual death or serious injury resulted from the recognized hazard, whether immediately prior to the inspection or at other times and places; or
      • If an accident/incident occurred, the likely result would be death or serious physical harm.

        EXAMPLE 8-20: An employee is standing at the edge of an unguarded floor 25 feet above a lower level. If a fall occurred, death or serious physical harm (e.g., broken bones) is likely to result.

   3. In the health context, establishing serious physical harm at the cited levels may be challenging if the potential for illness/harm requires the passage of a substantial period of time. In such cases, expert testimony is crucial to establish there is a probability that long-term serious physical harm will occur. It will generally be less difficult to establish this element for acute illnesses, since the immediacy of the effects will make the causal relationship clearer. In general, the following must be shown to establish that the hazard causes, or is likely to cause, death or serious physical harm when such illness or death will occur only after the passage of time:
      • Regular and continuing employee exposure at the workplace to the toxic substance at the measured levels could reasonably occur;
      • An illness reasonably could result from such regular and continuing employee exposures; and
      • If illness does occur, the likely result is death or serious physical harm.
8. The Hazard May be Corrected by a Feasible and Useful Method.
   1. To establish an AS 18.60.075(a)(4) violation, the agency must also identify the existence of a feasible abatement measure(s) that are available, and likely to correct the hazard. Evidence regarding feasible abatement measures shall indicate that the recognized hazard, rather than a particular accident/incident, is preventable.
   2. If the proposed abatement method would eliminate or significantly reduce the hazard beyond whatever measures the employer may be taking, an AS 18.60.075(a)(4) citation may be issued. A citation will not be issued merely because the agency is aware of an abatement method different from that of the employer if the proposed method would not significantly reduce the hazard more than the employer's method. In some cases, only a series of abatement methods will materially reduce a hazard, and then all potential abatement methods shall be listed. For example, an abatement note shall be included on the OIS Violation Worksheet, such as Among other methods, one feasible and acceptable means of abatement would be to. (Fill in the blank with the specified abatement recommendation.)
   3. Examples of such feasible and acceptable means of abatement include, but are not limited to:
      • The employer's own abatement method, which existed prior to the inspection but was not implemented;
      • The implementation of feasible abatement measures by the employer after the accident/incident or inspection;
      • The implementation of abatement measures by other employers/companies; and
      • Recommendations made by the manufacturer addressing safety measures for the hazardous equipment involved, as well as suggested abatement methods contained in trade journals, national consensus standards and individual employer work rules. National consensus standards shall not be relied upon solely to mandate specific abatement methods.

        EXAMPLE 8-21: An ANSI standard addresses the hazard of exposure to hydrogen sulfide gas and recommends various abatement methods, including the prevention of material buildup that generates the gas and the provision of adequate ventilation. The ANSI standard may be used as general evidence of the existence of feasible abatement measures.

        In this example, the citation shall state that the recognized hazard of exposure to hydrogen sulfide gas was present in the workplace and that a feasible and useful abatement method existed, e.g., preventing the buildup of gas by providing an adequate ventilation system. It would not be correct to base the citation on the employer's failure to prevent the buildup of materials that could create the gas and to provide a ventilation system, as both of these are abatement methods, not recognized hazards.

   4. Evidence provided by expert witnesses may be used to demonstrate the feasibility of abatement methods. In addition, although it is not necessary to establish that an industry recognizes a particular abatement measure, such evidence may be used if available.

1. The general duty clause shall be used only where there is no standard that applies to the particular hazard and in situations where a recognized hazard is created in whole or in part by conditions not covered by a standard.

   EXAMPLE 8-22: A hazard covered only partially by a standard would be construction employees who are exposed to collapse hazards because of a failure to properly install reinforcing steel. Construction standards contain requirements for reinforcing steel in walls, piers, columns, and similar vertical structures; however, they do not specify requirements for steel placement in horizontal planes, such as a concrete floor. A failure to properly install reinforcing steel in a floor in accordance with industry standards and/or structural drawings could be cited under the general duty clause.

   EXAMPLE 8-23: The powered industrial truck standard at 29 CFR 1910.178 does not address all potential hazards associated with forklift use. For instance, while that standard addresses the hazards associated with a forklift operator leaving their vehicle unattended or dismounting the vehicle and working in its vicinity, it does not contain requirements for the use of operator restraint systems. An employer's failure to address the hazard of a tip over (forklifts are particularly susceptible to tip-overs) by requiring operators of powered industrial trucks equipped with restraint devices or seat belts to use those devices could be cited under the general duty clause.

2. The general duty clause may also apply to some types of employment that are inherently dangerous (fire brigades, emergency rescue operations, confined space entry, etc.).
   1. Employers involved in such occupations must take the necessary steps to eliminate or minimize employee exposure to all recognized hazards that are likely to cause death or serious physical harm. These steps include assessing hazards that may be encountered, providing appropriate protective equipment, and any necessary training, instruction, or equipment.
   2. An employer who has failed to take such steps and allows their employees to be exposed to a hazard may be cited under the general duty clause.

AS 18.60.075(a)(4) is to be used only within the guidelines given in this chapter.

1. AS 18.60.075(a)(4) shall not be used when a standard applies to a hazard.

   As discussed above, AS 18.60.075(a)(4) may not be cited if an AKOSH standard applies to the hazardous working condition. If there is a question as to whether a standard applies, the Assistant Chief of Enforcement shall consult with the Chief of Enforcement and the Director of Labor Standards and Safety. The Assistant Attorney General will assist the Director of Labor Standards and Safety in determining the applicability of a standard before the issuance of a citation.

   EXAMPLE 8-24: AS 18.60.075(a)(4) shall not be cited for electrical hazards as 29 CFR 1910.303(b) and §1926.403(b) require that electrical equipment is to be kept free from recognized hazards that are likely to cause death or serious physical harm to employees.

2. AS 18.60.075(a)(4) shall normally not be used to impose a stricter requirement than that required by the standard.

   When an existing standard is inadequate to protect worker safety and health, an AS 18.60.075(a)(4) citation may be considered. All of the AS 18.60.075(a)(4) elements discussed above must be satisfied, AND there must be actual employer knowledge that the standard was inadequate to protect employees from death or serious physical harm. See Int'l Union UAW v. Gen. Dynamics Land Sys. Div., 815 F.2d 1570 (D.C. Cir. 1987). The Chief of Enforcement shall contact the Assistant Attorney General early in the investigation of these types of cases, which will also be subject to pre-citation review by the Director of Labor Standards and Safety.

   EXAMPLE 8-25: A standard provides for a permissible exposure limit (PEL) of 5 ppm. Even if data establishes that the level of 3 ppm is a recognized hazard, AS 18.60.075(a)(4) shall not be cited to require that the lower level be achieved. If the standard has only a time-weighted average permissible exposure level and the hazard involves exposure above a recognized ceiling level, the Assistant Chief of Enforcement shall consult with the Chief of Enforcement and the Director of Labor Standards and Safety, who shall discuss any proposed citation with the Assistant Attorney General.

3. AS 18.60.075(a)(4) shall normally not be used to require additional abatement methods not set forth in an existing standard.

   If a toxic substance standard covers engineering control requirements but not requirements for medical surveillance, AS 18.60.075(a)(4) shall not be cited to create the requirement of medical surveillance. The Assistant Chief of Enforcement shall evaluate the circumstances of special situations in accordance with guidelines stated herein and consult with the Chief of Enforcement and the Division Director to determine whether an AS 18.60.075(a)(4) citation can be issued in those special cases.

4. Alternative Standards.

   The following standards shall be considered carefully before issuing an AS 18.60.075(a)(4) citation for a health hazard.

   1. There are a number of general standards that shall be considered rather than AS 18.60.075(a)(4) in situations where a particular standard does not cover the hazard. If a hazard not covered by a specific standard can be substantially corrected by compliance with a personal protective equipment (PPE) standard, the PPE standard shall be cited. In General Industry, 29 CFR 1910.132(a) may be appropriate where the wearing of PPE may prevent exposure to a hazard.
   2. For a health hazard, the particular toxic substance standard, such as asbestos and coke oven emissions, shall be cited where appropriate. If those specific standards do not apply, however, other standards may be applicable; e.g., the air contaminant levels contained in 29 CFR 1910.1000 in general industry and §1926.55 for construction.
   3. Another general standard is 29 CFR 1910.134(a), which addresses the hazards of breathing harmful air contaminants not covered under §1910.1000 or another specific standard, and which may be cited for failure to use feasible engineering controls or respirators.
   4. Violations of 29 CFR 1910.141(g)(2) may be cited when employees are allowed to consume food or beverages in an area exposed to a toxic material, and §1910.132(a) where there is a potential for toxic materials to be absorbed through the skin.

Only hazards presenting serious physical harm or death may be cited under the general duty clause (including willful and/or repeated violations that would otherwise qualify as serious violations). Other-than-serious citations shall not be issued for general duty clause violations.

To ensure that General Duty Clause citations are defensible, the following procedures shall be followed:

1. Gathering Evidence and Preparing the File.
   1. The evidence necessary to establish each element of an AS 18.60.075(a)(4) violation shall be documented in the file. This includes all photographs, videotapes, sampling data, witness statements, and other documentary and physical evidence necessary to establish the violation. Additional documentation includes evidence of specific and/or general awareness of a hazard, why it was detectable and recognized, and any supporting statements or reference materials.
   2. If copies of documents are relied on to establish the various AS 18.60.075(a)(4) elements, and cannot be obtained before issuing the citation, these documents shall be accurately cited and identified in the file so they can be obtained later if necessary.
   3. If experts are necessary to establish any element(s) of an AS 18.60.075(a)(4) violation, such experts and the Assistant Attorney General shall be consulted prior to the citation being issued, and their opinions shall be noted in the file.
2. Pre-Citation Review.

   The Chief of Enforcement shall review and approve all proposed AS 18.60.075(a)(4) citations. These citations shall undergo additional pre-citation review as follows:

   1. The Division Director and Assistant Attorney General shall be consulted prior to the issuance of all AS 18.60.075(a)(4) citations where complex issues or exceptions to the outlined procedures are involved; and
   2. If a standard does not apply and all criteria for issuing an AS 18.60.075(a)(4) citation are not met, yet the Chief of Enforcement determines that the hazard warrants some type of notification, a Hazard Alert Letter shall be sent to the employer and employee representative describing the hazard and suggesting corrective action.

An employer commits an intentional and knowing violation if:

1. An employer was aware of the requirements of Alaska's occupational safety and health laws or of an applicable standard or regulation and was also aware of a condition or practice in violation of those requirements, but did not abate the hazard; or
2. An employer was not aware of the requirements of the Alaska occupational safety and health laws or standards, but had knowledge of a comparable legal requirement (e.g., state or local law) and was also aware of a condition or practice in violation of that requirement.

   NOTE: Good faith efforts made by the employer to minimize or abate a hazard may sometimes preclude the issuance of a willful violation. In such cases, CSHOs should consult the Assistant Chief of Enforcement if a willful classification is under consideration.

3. A willful citation also may be issued where an employer knows that specific steps must be taken to address a hazard but substitutes its judgment for the requirements of the standard.

   EXAMPLE 8-26: The employer was issued repeated citations addressing the same or similar conditions, but did not take corrective action.

1. An employer commits a violation with plain indifference to employee safety and health where:
   1. Management officials were aware of an AKOSH requirement applicable to the employer's business but made little or no effort to communicate the requirement to lower-level supervisors and employees.
   2. Company officials were aware of a plainly obvious hazardous condition but made little or no effort to prevent violations from occurring.

      EXAMPLE 8-27: The employer is aware of the existence of unguarded power presses that have caused near misses, lacerations, and amputations in the past and does nothing to abate the hazard.

   3. An employer was not aware of any legal requirement but knew that a condition or practice in the workplace was a serious hazard to the safety or health of employees and made little or no effort to determine the extent of the problem or to take corrective action. Knowledge of a hazard may be gained through various means, including insurance company reports, safety committee or other internal reports, the occurrence of illnesses or injuries, or complaints from employees or their representatives.

      NOTE: Voluntary employer self-audits that assess workplace safety and health conditions shall not normally be used as a basis for a willful violation. However, once an employer's self-audit identifies a hazardous condition, the employer must promptly take appropriate measures to correct the violative condition and provide interim protection to employees.

   4. Willfulness may also be established despite a lack of knowledge of a legal requirement if circumstances show that the employer would have placed no importance on such knowledge.

   EXAMPLE 8-28: An employer sends employees into a deep, unprotected excavation containing a hazardous atmosphere without conducting any inspections for potential hazards.

2. It is not necessary that the violation be committed with a bad purpose or malicious intent to be deemed "willful." It is sufficient that the violation was deliberate, voluntary, or intentional as distinguished from inadvertent, accidental, or ordinarily negligent.
3. CSHOs shall develop and record on the OIS Violation Worksheet all evidence that indicates employer knowledge of the requirements of a standard, and any reasons why it disregarded statutory or other legal obligations to protect employees against hazardous conditions. Willfulness may exist if employees or employee representatives inform an employer about an alleged hazardous condition and the employer fails to make a reasonable effort to verify or correct the hazard. Additional factors to consider in determining whether to characterize a violation as willful include:
   1. The nature of the employer's business and the knowledge regarding safety and health matters that could reasonably be expected in the industry;
   2. Any precautions taken by the employer to limit the hazardous conditions;
   3. The employer's awareness of Alaska's occupational safety and health laws and of its responsibility to provide safe and healthful working conditions; and
   4. Whether similar violations and/or hazardous conditions have been brought to the attention of the employer through prior citations, accidents, warnings from AKOSH, OSHA, or officials from other government agencies, or an employee safety committee regarding the requirements of a standard.

   NOTE: This includes prior citations or warnings from other Federal OSHA or State Plan officials.

4. Additionally, include facts demonstrating that even if the employer was not consciously violating Alaska occupational safety and health laws, it was aware that the violative condition existed and made no reasonable effort to eliminate it.

The Chief of Enforcement, in coordination with the Assistant Attorney General, shall carefully evaluate all willful cases involving employee deaths to determine whether they may involve criminal violations of AS 18.60.095(e). Because the quality of the evidence available is of paramount importance in these investigations, there shall be early and close discussions between the CSHO, the Assistant Chief of Enforcement, the Chief of Enforcement, the Director of Labor Standards and Safety, and the Assistant Attorney General in developing all evidence when there is a potential AS 18.60.095(e) violation.

The following criteria shall be considered in investigating possible criminal/willful violations:

1. To establish a criminal/willful violation, AKOSH must prove that:
   1. The employer violated an AKOSH standard. A criminal/willful violation cannot be based on the general duty clause.
   2. The violation was willful in nature.
   3. The violation caused the death of an employee. In order to prove that the violation caused the death of an employee, there must be evidence that clearly demonstrates that the violation was the direct cause of, or a contributing factor to, an employee's death.
2. If asked during an investigation, CSHOs should inform employers that any violation found to be willful that has caused or contributed to the death of an employee is evaluated for potential criminal referral to the Alaska District Attorney's Office.
3. Following the investigation, if the Chief of Enforcement decides to recommend criminal prosecution, a memorandum shall be forwarded promptly to the Director of Labor Standards and Safety. It shall include an evaluation of the possible criminal charges, taking into consideration the burden of proof, which requires that the case be proven beyond a reasonable doubt. In addition, if the correction of the hazardous condition is at issue, this shall be noted in the transmittal memorandum, because in most cases, prosecution of a criminal/willful case stays the resolution of the civil case and its abatement requirements.
4. The Chief of Enforcement shall normally issue a civil citation following current procedures, even if the citation involves charges under consideration for criminal prosecution. The Director of Labor Standards and Safety shall be notified of such cases. In addition, the case shall be promptly forwarded to the Assistant Attorney General for possible referral to the Alaska Office of Special Prosecutions or to the Alaska District Attorney's Office.

Where a willful violation is related to a fatality and a decision is made not to recommend a criminal referral, the Assistant Chief of Enforcement shall ensure the case file contains documentation justifying that conclusion. The file documentation should indicate which elements of a potential criminal violation make the case unsuitable for referral.

1. An employer may be cited for a repeated violation if that employer has been cited previously for the same or substantially similar condition or hazard and the citation has become a final order of the Alaska OSH Review Board. A citation may become a final order by law when an employer fails to contest it, or pursuant to a court decision or settlement. The underlying citation on which the repeated violation will be based must have become a final order before the occurrence or observation of the second substantially similar violation.
2. Prior citations by other State Plan states or OSHA cannot be used as a basis for repeated violations issued by AKOSH. Only violations that have become final orders of the Alaska OSH Review Board can be considered.

Generally, similar workplace conditions or hazards can be demonstrated by showing that in both situations, the identical standard was violated; however, there are exceptions.

EXAMPLE 8-29: A citation was previously 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 §1910.132(a) for not requiring the use of head protection (hard hats). Although the same standard was involved, the hazardous conditions in each case are not substantially similar, and therefore, a repeated violation would not be appropriate.

In some circumstances, similar conditions or hazards can be demonstrated even when different standards are violated.

EXAMPLE 8-30: A citation was previously issued for a violation of 29 CFR 1926.501(b)(11) for not providing fall protection on a steep roof with unprotected sides and edges six feet or more above lower levels. A recent inspection of the same employer reveals a violation of 29 CFR 1926.501(b)(13) for not providing fall protection during residential construction activities performed six feet or more above lower levels. Although different standards are involved, the conditions and hazards

(falls) The conditions present during both inspections were substantially similar, and therefore, a repeated violation would be appropriate.

NOTE: There is no requirement that the previous and current violations occur at the same workplace or under the same supervisor.

For the purpose of determining whether a violation is repeated, the following criteria shall apply:

1. High Gravity Serious Violations.
   1. When high gravity serious violations are to be cited, the Assistant Chief of Enforcement shall obtain a history of citations previously issued to this employer at all of its identified establishments in AKOSH jurisdiction, within the same two-digit Standard Industrial Classification (SIC) or three-digit North American Industry Classification System (NAICS) code.
   2. If these violations have been previously cited within the time limitations (described in Paragraph VII.E. of this chapter) and have become final orders, a repeated citation may be issued.
   3. Under special circumstances, the Chief of Enforcement, in consultation with the Assistant Attorney General, may also issue citations for repeated violations without regard for the SIC code.
2. Violations of Lesser Gravity.

   When violations are of lesser gravity than high gravity serious, the Assistant Chief of Enforcement should obtain an inspection history whenever the circumstances of the current inspection would result in multiple serious, repeat, or willful citations. This is particularly essential if the employer is known to have multiple establishments in AKOSH jurisdiction and has been subject to a significant case in other areas or at other mobile worksites.

1. Although there are no statutory limitations on the length of time that a prior citation was issued as a basis for a repeated violation, the following policy shall generally be followed.

   A citation will be issued as a repeated violation if:

   1. The citation is issued within 5 years of the final order date of the previous citation or 5 years of the final abatement date, whichever is later; and
   2. If the previous citation was contested, within 5 years of the final order.
2. When a violation is found during an inspection and a repeated citation has previously been issued for a substantially similar condition, the violation may be classified as a second instance repeated violation with a corresponding increase in penalty.

   EXAMPLE 8-31: An inspection is conducted in an establishment, and a violation of 29 CFR 1910.217(c)(1)(i) is found. That citation is not contested by the employer and becomes a final order of the Board on October 17, 2006. On December 8, 2008, a citation was issued for a repeated violation of the same standard. The violation found during the December inspection may be treated as a second instance of a repeated violation.

3. In cases of multiple prior repeated citations, the Director of Labor Standards and Safety shall be consulted for guidance.

A failure to abate exists when a previously cited hazardous condition, practice, or non-complying equipment has not been brought into compliance since the prior inspection (i.e., the violation is continuously present) and is discovered at a later inspection. If, however, the violation was corrected, but later recurs, the subsequent occurrence constitutes a repeated violation.

After the CSHO recommends that a violation should be cited as repeated, the Assistant Chief of Enforcement shall:

1. Ensure that the violation meets the criteria outlined in the preceding subparagraphs of this section;
2. Ensure that the case file includes a copy of the citation for the prior violation, the OIS Violation Worksheets describing the prior violation that serves as the basis for the repeated citation, and any other supporting evidence that describes the violation. If the previous violation citation is not available, the basis for the repeated citation shall, nevertheless, be adequately documented in the case file. The file shall also include all documents showing that the citation is a final order and on what date it became final (i.e., if the case was not contested, the certified mail card (final 15 working days from employer's receipt of the citation), signed Informal Settlement Agreement (final 15 working days from when both parties signed) or Formal Settlement Agreements and Notice of Docketing (final 30 days after docketing date), or Judge's Decision and Notice of Docketing (final 30 days after docketing));
3. OIS information shall not be used as the sole means to establish that a prior violation has been issued.
4. In circumstances when it is not clear that the violation meets the criteria outlined in this section, consult with the Chief of Enforcement or the Director of Labor Standards and Safety before issuing a repeated citation; and
5. If a repeated citation is issued, ensure that the cited employer is fully informed of the previous violations serving as a basis for the repeated citation by notation in the Alleged Violation Description (AVD) portion of the citation, using the following or similar language:

   The (employer name) was previously cited for a violation of this occupational safety and health standard or its equivalent standard (name previously cited standard), which was contained in AKOSH inspection number , citation number , item number , and was affirmed as a final order on (date), with respect to a workplace located at .

Separate violations of a single standard, for example, 29 CFR 1910.212(a)(3)(ii), having the same classification found during the inspection of an establishment or worksite, shall generally be combined into one alleged citation item. Different options presented in the Standard Alleged Violation Elements (SAVEs) of the same standard shall normally also be combined. Each instance of the violation shall be separately set out within that item of the citation.

NOTE: Except for standards which deal with multiple hazards (e.g., Tables Z-1-A cited under 8 AAC 61.1100, and Tables Z-2 and Z-3 cited under 29 CFR 1910.1000 (b), or (c)), the same standard may not normally be cited more than once on a single citation. However, the same standard may be cited in different citations based on separate classifications and facts on the same inspection.

Then a source of a hazard is identified that involves interrelated violations of different standards, the violations may be grouped into a single violation. The following situations normally call for grouping violations:

1. Grouping Related Violations.

   If violations classified either as serious or other than serious are so closely related that they may constitute a single hazardous condition, such violations shall be grouped, and the overall classification shall normally be based on the most serious item.

2. Grouping Other-than-Serious Violation Where Grouping Results in a Serious Violation.

   When two or more violations are found that, if considered individually, do not constitute serious violations but, together, create a substantial probability of death or serious physical harm, the violations shall be grouped as a serious violation.

3. Where Grouping Results in High Gravity Other-than-Serious Violation.

   Where the CSHO finds, during the inspection, that a number of other-than-serious violations are present, the violations shall be considered in relation to each other to determine the overall gravity of the possible injury resulting from an accident or incident involving the hazardous condition.

4. Penalties for Grouped Violations.

   If penalties are to be proposed for grouped violations, the penalty shall be written across from the first violation item appearing on the Citation and Notification of Penalty.

1. Multiple Inspections.

   Violations discovered during multiple inspections of a single establishment or worksite may not be grouped. Where only one OIS Inspection Report has been completed, an inspection at the same establishment or worksite shall be considered a single inspection even if it continues for a period of more than one day or is discontinued with the intention of resuming it later.

2. Separate Establishments of the Same Employer.

   The employer shall be issued separate citations for each establishment or worksite where inspections are conducted, either simultaneously or at different times. If CSHOs conduct inspections at two establishments belonging to the same employer and instances of the same violation are discovered during each inspection, the violations shall not be grouped.

3. General Duty Clause.

   Because an AS 18.60.075(a)(4) citation covers all aspects of a serious hazard where no standard exists, there shall be no grouping of separate violations of this statute. This policy, however, does not prohibit grouping an AS 18.60.075(a)(4) violation with a related violation of a specific standard.

4. Egregious Violations.

   Violations, which are proposed as instance-by-instance citations, shall not normally be combined or grouped.

In cases where a citation of a ventilation standard is appropriate, consideration shall be given to standards intended to control exposure to hazardous levels of air contaminants, prevent fire or explosions, or regulate operations that may involve confined spaces or specific hazardous conditions. In such cases, the following guidelines shall be observed:

1. Health-Related Ventilation Standards.
   1. Where an over-exposure to an airborne contaminant is present, the appropriate air contaminant engineering control requirement shall be cited; e.g., 29 CFR 1910.1000(e). Citations of this standard shall not be issued to require specific volumes of air to reduce such exposures.
   2. Other requirements contained in health-related ventilation standards shall be evaluated without regard to the concentration of airborne contaminants. Where a specific standard has been violated and an actual or potential hazard has been documented, a citation shall be issued.
2. Fire and Explosion-Related Ventilation Standards.

   Although not normally considered health violations, the following guidelines shall be observed when citing fire and explosion-related ventilation standards:

   1. Adequate Ventilation.

      An operation is considered to have adequate ventilation when both of the following criteria are present:

      • The requirements of the specific standard have been met.
      • The concentration of flammable vapors is 25 percent or less of the lower explosive limit (LEL).
   2. Citation Policy.

      If 25 percent of the LEL has been exceeded, and:

      • The standard's requirements have not been met; violations of the applicable ventilation standard shall normally be cited as serious.
      • If there is no applicable ventilation standard, AS 18.60.075(a)(4) shall be cited in accordance with the guidelines in Section III of this chapter, General Duty Requirement.

Enforcement policy regarding 29 CFR 1910.95(b)(1) allows employers to rely on personal protective equipment and a hearing conservation program, rather than engineering and/or administrative controls, when hearing protectors will effectively attenuate the noise to which employees are exposed to acceptable levels. (See Tables G-16 or G-16a of the standard.)

1. Citations for violations of 29 CFR 1910.95(b)(1) shall be issued when technologically and economically feasible engineering and/or administrative controls have not been implemented; and
   1. Employee exposure levels are so elevated that hearing protectors alone may not reliably reduce noise levels received to levels specified in Tables G-16 or G-16a of the standard. (e.g., Hearing protectors which offer the greatest attenuation may reliably be used to protect employees when their exposure levels border 100 dBA); or
   2. The costs of engineering and/or administrative controls are less than the cost of an effective hearing conservation program.
2. When an employer has an ongoing hearing conservation program and the results of audiometric testing indicate that existing controls and hearing protectors are adequately protecting employees, no additional controls may be necessary. In making this assessment, factors such as exposure levels present, the number of employees tested, and the duration of the testing program shall be considered.
3. When employee noise exposures are less than 100 dBA, but the employer does not have an ongoing hearing conservation program, or results of audiometric testing indicate that the employer's existing program is inadequate, the CSHO shall consider whether:
   1. Reliance on an effective hearing conservation program would be less costly than engineering and/or administrative controls.
   2. An effective hearing conservation program can be established or improvements made in an existing program, which could bring the employer into compliance with Tables G-16 or G-16a.
   3. Engineering and/or administrative controls are both technically and economically feasible.
4. If workplace noise levels can be reduced to the levels specified in Tables G-16 or 16a, utilizing hearing protectors along with an effective hearing conservation program, a citation for any missing program elements shall be issued rather than for lack of engineering controls. If improvements in the hearing conservation program cannot be made or, if made, cannot reasonably be expected to reduce exposures, but feasible controls exist to address the hazard, then 29 CFR 1910.95(b)(1) shall be cited.
5. When hearing protection is required but not used and employee exposures exceed the limits of Table G-16, 29 CFR 1910.95(i)(2)(i) shall be cited and classified as serious (see (8), below) whether or not the employer has instituted a hearing conservation program. 29 CFR 1910.95(a) shall no longer be cited except in the case of the oil and gas drilling industry.

   NOTE: Citations of 29 CFR 1910.95(i)(2)(ii)(b) shall also be classified as serious.

6. Where an employer has instituted a hearing conservation program and a violation of one or more elements (other than 29 CFR 1910.95(i)(2)(ii)(b) or (i)(2)(ii)(b)) is found, citations for the deficient elements of the noise standard shall be issued if exposures equal or exceed an 8-hour time-weighted average of 85 dba.
7. If an employer has not instituted a hearing conservation program and employee exposures equal or exceed an 8-hour time-weighted average of 85 dBA, a citation for 29 CFR 1910.95(c) only shall be issued.
8. Violations of 29 CFR 1910.95(i)(2)(i) may be grouped with violations of 29 CFR 1910.95(b)(1) and classified as serious when employees are exposed to noise levels above the limits of Table G-16 and:
   1. Hearing protection is not utilized or is not adequate to prevent overexposures; or
   2. There is evidence of hearing loss that could reasonably be considered:
      • To be work-related, and
      • To have been preventable, if the employer had been in compliance with the cited provisions.

   NOTE: No citation shall be issued where, in the absence of feasible engineering or administrative controls, employees are exposed to elevated noise levels, but effective hearing protection is being provided and used, and the employer has implemented a hearing conservation program.

1. Section 29 CFR 1910.1000(a) through (d) provides ceiling values and 8-hour time-weighted averages applicable to employee exposure to air contaminants, except that table Z-1-A and a specific crystalline silica limit, adopted in 8 AAC 61.1100, replace table Z-1.
2. Section 29 CFR 1910.1000(e) provides that to achieve compliance with those exposure limits, administrative or engineering controls shall first be identified and implemented to the extent feasible. When such controls do not achieve full compliance, personal protective equipment shall be used. Whenever respirators are used, their use shall comply with 29 CFR 1910.134 and 8 AAC 61.1030.
3. Section 29 CFR 1910.134(a) provides that when effective engineering controls are not feasible, or while they are being instituted, appropriate respirators shall be used.
4. There may be cases where workplace conditions require employers to provide both engineering controls and administrative controls (including work practice controls) as well as personal protective equipment. Section 29 CFR 1910.1000(e) allows employers to implement feasible engineering controls and/or administrative and work practice controls in any combination, provided the selected abatement eliminates the overexposure.
5. Where engineering and/or administrative controls are feasible but do not, or would not, reduce air contaminant levels below applicable ceiling values or threshold limit values, an employer must nevertheless institute such controls to reduce the exposure levels. In cases where the implementation of all feasible engineering and administrative controls fails to reduce the level of air contaminants below applicable levels, employers must also provide personal protective equipment to reduce exposures.

Where employees are exposed to a toxic substance above the PEL established by AKOSH standards (without regard to the use of respirator protection), a citation for exceeding the air contaminant standard shall be issued. The violation shall be classified as serious or other-than-serious based on the criteria set forth on the Occupational Chemical Database web page, in conjunction with the health effects codes on the Label Abbreviations & Descriptions web page and considering whether respirators are being used.

Classification of these violations is dependent upon the determination that an illness is reasonably predictable at the measured exposure level.

1. Classification Considerations.

   Exposure to regulated substances shall be characterized as serious if exposures could cause impairment to the body as described in Paragraph II.C.3. of this chapter.

   1. In general, substances having a single health code of 13 or less shall be considered as posing a serious health hazard at any level above the Permissible Exposure Limit (PEL). Substances in categories 6, 8, and 12, however, are not considered serious at levels where only mild, temporary effects would be expected to occur.
   2. Substances causing irritation (i.e., categories 14 and 15) shall be considered other-than-serious up to levels at which "moderate" irritation could be expected.
   3. For a substance having multiple health codes covering both serious and other-than-serious effects (e.g., cyclohexanol), a classification of other-than-serious is appropriate up to levels where serious health effects could be expected to occur.
   4. For a substance having an ACGIH Threshold Limit Value (TLV) or a NIOSH recommended value, but no OSHA PEL, a citation for exposure in excess of the recommended value may be considered under AS 18.60.075(a)(4). Prior to citing an AS 18.60.075(a)(4) violation under these circumstances, it is essential that CSHOs document that a hazardous exposure is occurring or has occurred at the workplace, not just that a recognized occupational exposure recommendation has been exceeded. See instructions in Section III of this chapter, General Duty Requirements.
   5. If an employee is exposed to concentrations of a substance that exceed a recommended value (e.g., ACGIH TLV or NIOSH recommended value) but are below the PEL, citations will not normally be issued. CSHOs shall advise employers that a PEL reduction has been recommended.

      NOTE: An exception to this may apply if it can be documented that an employer knows that a particular safety or health standard fails to protect their workers against the specific hazard it is intended to address.

   6. For a substance having an 8-hour PEL with no ceiling PEL but ACGIH or NIOSH has recommended a ceiling value, the case shall be referred to the Chief of Enforcement in accordance with Paragraph III.D.2. of this chapter. If no citation is issued, CSHO shall advise employers that a recommended ceiling value exists.
2. Additive and Synergistic Effects.
   1. Substances which have a known additive effect and, therefore, result in a greater probability/severity of risk when found in combination with each other shall be evaluated using the formula found in 29 CFR 1910.1000(d)(2). Use of this formula requires that exposures have an additive effect on the same body organ or system.
   2. If CSHOs suspect that synergistic effects are possible, they shall consult with the Assistant Chief of Enforcement, who shall then consult with the Chief of Enforcement. If a synergistic effect of the cited substances is determined to be present, violations shall be grouped to accurately reflect the severity of the hazard and/or penalty.

A citation under 29 CFR 1910.141(g)(2) and (4) shall be issued where there is a reasonable probability that, in areas where employees consume food or beverages (including drinking fountains), a significant quantity of a toxic material may be ingested and subsequently absorbed.

1. For citations under 29 CFR 1910.141(g)(2) and (4), wipe sampling results shall be taken to establish the potential for a serious hazard.
2. Where, for any substance, a serious hazard is determined to exist due to potential for ingestion or absorption for reasons other than the consumption of contaminated food or drink (e.g., smoking materials contaminated with the toxic substance), a serious citation shall be considered under AS 18.60.075(a)(4).

A citation for exposure to materials that may be absorbed through the skin or can cause a skin effect (e.g., dermatitis) shall be issued where appropriate personal protective clothing is necessary but is not provided or worn. If a serious skin absorption or dermatitis hazard exists that cannot be eliminated with protective clothing, an AS 18.60.075(a)(4) citation may be considered. Engineering or administrative (including work practice) controls may be required in these cases to prevent the hazard. See 29 CFR 1910.132(a).

In general, wipe samples, rather than air concentration measurements, will be necessary to establish the presence of a toxic substance posing a potential absorption or ingestion hazard. See the most current OSHA Technical Manual for sampling procedures.

The following criteria should be considered prior to issuing a citation for ingestion or absorption hazards:

1. A health risk exists as demonstrated by one of the following:
   1. A potential for an illness, such as dermatitis, and/or
   2. The presence of a toxic substance that may be potentially ingested or absorbed through the skin. (See the Chemical Sampling Information web page.)
2. The potential for employee exposure by ingestion or absorption may be established by taking both qualitative and quantitative wipe samples. The substance must be present on surfaces that employees come into contact with (such as lunch tables, water fountains, and work areas) or on other surfaces that, if contaminated, present the potential for ingestion or absorption.
3. The sampling results must reveal that the substance has properties and exists in quantities that pose a serious hazard.