Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations 45107 

(2) The nature, circumstances, extent 

and gravity of the violation. Under this 

factor, the Commission will consider the 

totality of the circumstances 

surrounding a violation, including how 

many provisions of law were violated. 

The Commission will continue to look 

at the enumerated statutory factors, as 

well as other factors (as described in 

paragraph (b) of this section) that the 

Commission may determine are 

appropriate, and consider all of the 

factors in determining the civil penalty 

amount. 

(3) Nature of the product defect. The 

Commission will consider the nature of 

the product hazard/substance for which 

a penalty is sought. A product defect 

under this factor includes violations for 

products that contain defects which 

could create substantial product hazards 

as referenced in the CPSA and defined 

and explained in 16 CFR 1115.4; 

regulatory violations of a rule, 

regulation, standard or ban; or product 

hazards presented by any other 

violation of the prohibited acts of 

section 19 of the CPSA. 

(4) Severity of the risk of injury. 

Consistent with its discussion of 

severity of the risk at 16 CFR 1115.12, 

the Commission will consider, among 

other factors, the potential for serious 

injury or death (and whether any injury 

required actual medical treatment 

including hospitalization or surgery); 

the likelihood of injury; the intended or 

reasonably foreseeable use or misuse of 

the product; and the population at risk 

(including vulnerable populations such 

as children, the elderly, or those with 

disabilities). 

(5) The occurrence or absence of 

injury. The Commission will consider 

whether injuries have or have not 

occurred with respect to any product 

associated with the violation. 

(6) The number of defective products 

distributed. The Commission will 

consider the actual number of products 

or amount of substances imported or 

placed in the stream of commerce to 

distributors, retailers, and consumers. 

(7) The appropriateness of such 

penalty in relation to the size of the 

business of the person charged 

including how to mitigate undue 

adverse economic impacts on small 

businesses. (i) The Commission is 

required to consider the size of a 

business in relation to the amount of the 

proposed penalty. This factor reflects 

the relationship between the size of the 

business of the person charged and the 

deterrent effect of civil penalties. In 

considering business ‘‘size,’’ the 

Commission may look to several factors 

including the firm’s number of 

employees, net worth, and annual sales. 

The Commission may be guided, where 

appropriate, by any relevant financial 

factors to help determine a violator’s 

ability to pay a proposed penalty 

including: liquidity factors; solvency 

factors; and profitability factors. 

(ii) The statute requires the 

Commission to consider how to mitigate 

the adverse economic impacts on small 

business violators only if those impacts 

would be ‘‘undue.’’ What the 

Commission considers to be ‘‘undue’’ 

will vary based upon the violator’s 

business size and financial condition as 

well as the nature, circumstances, extent 

and gravity of the violation(s). When 

considering how to mitigate undue 

adverse economic consequences, the 

Commission may also follow its Small 

Business Enforcement Policy set forth at 

16 CFR 1020.5. 

(b) Other factors as appropriate. In 

determining the amount of any civil 

penalty to be pursued when a knowing 

violation of the prohibited acts section 

of the CPSA, FHSA, or FFA has 

occurred, the Commission may 

consider, where appropriate, other 

factors in addition to those listed in the 

statutes. Both the Commission and the 

violator are free to raise any other 

factors they believe are relevant in 

determining an appropriate penalty 

amount. Which, if any, additional 

factors the Commission considers in 

determining an appropriate penalty 

amount, including but not limited to 

those listed above, will be unique to 

each case. In all civil penalty matters, 

any additional factors beyond those 

enumerated in the statute that the 

Commission takes into consideration for 

purposes of determining an appropriate 

civil penalty amount will be made 

known to and discussed with the 

violator. Additional factors which may 

be considered in an individual case 

include, but are not limited to, the 

following: 

(1) Safety/Compliance Program and/ 

or System: The Commission may 

consider, for example, whether a 

violator had at the time of the violation, 

a reasonable program/or system for 

collecting and analyzing information 

related to safety issues, including 

incident reports, lawsuits, warranty 

claims, and safety-related issues related 

to repairs or returns; and whether a 

violator conducted adequate and 

relevant premarket and production 

testing of the product(s) at issue. 

(2) History of noncompliance: The 

Commission may consider if the violator 

has a history of noncompliance with the 

CPSC and whether a higher penalty 

should be assessed for repeated 

noncompliance. 

(3) Economic Gain from 

Noncompliance: The Commission may 

consider whether a firm benefitted 

economically from a delay in complying 

with statutory and regulatory 

requirements. 

(4) Failure of the violator to respond 

in a timely and complete fashion to the 

Commission’s requests for information 

or remedial action: The Commission 

may consider whether a violator’s 

failure to respond in a timely and 

complete fashion to requests from the 

Commission for information or for 

remedial action should increase the 

amount of the penalty. 

§ 1119.5 Enforcement notification. 

A potential violator will be informed 

in writing that the Commission believes 

it is subject to a possible civil penalty. 

The violator will be able to submit 

evidence and arguments that it is not 

subject to such a penalty. 

Dated: August 19, 2009. 

Alberta E. Mills, 

Acting Secretary, Consumer Product Safety 

Commission. 

[FR Doc. E9–20591 Filed 8–31–09; 8:45 am] 

BILLING CODE 6355–01–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1956 

[Docket No. OSHA–2009–0010] 

RIN 1218–AC44 

Notice of Initial Approval 

Determination; Illinois Public 

Employee Only State Plan 

AGENCY: Occupational Safety and Health 

Administration, Department of Labor 

(OSHA). 

ACTION: Final rule. 

SUMMARY: The Illinois Public Employee 

Only State Plan, a State occupational 

safety and health plan applicable only 

to public sector employees (employees 

of the State and its political 

subdivisions), is approved as a 

developmental plan under the 

Occupational Safety and Health Act of 

1970 and OSHA regulations. Under the 

approved Plan, the Illinois Department 

of Labor is designated as the State 

agency responsible for the development 

and enforcement of occupational safety 

and health standards applicable to 

public employment throughout the 

State. The Occupational Safety and 

Health Administration (OSHA) retains 

full authority for coverage of private 

mstockstill on DSKH9S0YB1PROD with RULES

45108 Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations 

sector employees in the State of Illinois 

as well as for coverage of Federal 

government employees. 

DATES: Effective Date: September 1, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Press inquiries: Contact Jennifer Ashley, 

Office of Communications, Room N– 

3647, OSHA, U.S. Department of Labor, 

200 Constitution Avenue, NW., 

Washington, DC 20210; Telephone (202) 

693–1999. 

General and technical inquiries: 

Contact Barbara Bryant, Director, Office 

of State Programs, Directorate of 

Cooperative and State Programs, OSHA, 

U.S. Department of Labor, Room N– 

3700, 200 Constitution Avenue, NW., 

Washington, DC 20210, Telephone (202) 

693–2244 or Fax (202) 693–1671. 

SUPPLEMENTARY INFORMATION: 

A. Introduction 

Section 18 of the Occupational Safety 

and Health Act of 1970 (the ‘‘Act’’), 29 

U.S.C. 667, provides that a State which 

desires to assume responsibility for the 

development and enforcement of 

standards relating to any occupational 

safety and health issue with respect to 

which a Federal standard has been 

promulgated may submit a State Plan to 

the Assistant Secretary of Labor for 

Occupational Safety and Health 

(‘‘Assistant Secretary’’) documenting the 

proposed program in detail. Regulations 

promulgated pursuant to the Act at 29 

CFR Part 1956 provide that a State may 

submit a State Plan for the development 

and enforcement of occupational safety 

and health standards applicable only to 

employees of the State and its political 

subdivisions (‘‘public employees’’). 

State and local government workers are 

excluded from Federal coverage under 

the Act and are provided protection 

only through the vehicle of a State Plan 

approved pursuant to Section 18 of the 

Act. 

Under these regulations the Assistant 

Secretary will approve a State Plan for 

public employees if the Plan provides 

for the development and enforcement of 

standards relating to hazards in 

employment covered by the Plan which 

are or will be at least as effective in 

providing safe and healthful 

employment and places of employment 

for public employees as standards 

promulgated and enforced under section 

6 of the OSH Act, giving due 

consideration to differences between 

public and private sector employment. 

In making this determination the 

Assistant Secretary will consider, 

among other things, the criteria and 

indices of effectiveness set forth in 29 

CFR Part 1956, Subpart B. 

A State Plan for public employees 

may receive initial approval even 

though, upon submission, it does not 

fully meet the criteria set forth in 

§§ 1956.10 and 1956.11, if it includes 

satisfactory assurances by the State that 

it will take the necessary steps, and 

establishes an acceptable developmental 

schedule, to meet the criteria within a 

three year period (29 CFR 1956.2(b)). 

The Assistant Secretary may publish a 

notice of ‘‘certification of completion of 

developmental steps’’ when all of a 

State’s developmental commitments 

have been met satisfactorily (29 CFR 

1956.23; 1902.33 and 1902.34) and the 

Plan is structurally complete. After 

certification of a State Plan for public 

employees, OSHA may initiate a period 

of at least one year of intensive 

performance monitoring, after which 

OSHA may make a determination under 

the procedures of §§ 1902.38, 1902.39, 

1902.40 and 1902.41 as to whether, on 

the basis of actual operations, the 

criteria set forth in §§ 1956.10 and 

1956.11 for ‘‘at least as effective’’ State 

Plan performance are being applied 

under the Plan. 

B. History of the Present Proceeding 

In 1973 the Illinois Industrial 

Commission and the Illinois Department 

of Labor obtained OSHA approval of a 

State Plan for the enforcement of 

occupational safety and health 

standards covering private sector 

workplaces as well as a program for 

public employees in Illinois. That Plan 

was approved by the Assistant Secretary 

on November 5, 1973 (38 FR 30436; 29 

CFR 1952.280 et seq.). The Plan was 

subsequently withdrawn effective June 

30, 1975 by the State of Illinois under 

the authority of then Governor Dan 

Walker after the State was unable to 

make necessary modifications to its 

program and statutory authority, and its 

State funding was withdrawn (40 FR 

24523). 

Since 1985, the Illinois Department of 

Labor (IDOL), Safety Inspection and 

Education Division (SIED), has adopted 

standards and performed inspections in 

the public sector (State, county, and 

municipal employees) as outlined under 

the provisions of the State’s existing 

enabling legislation: the Illinois Safety 

Inspection and Education Act (SIEA) 

[820 ILCS 220] and the Illinois Health 

and Safety Act (HSA) [820 ILCS 225]. In 

2005, Illinois began working on a Public 

Employee Only State Plan and 

submitted a draft Plan to OSHA in May 

2006. OSHA’s review findings were 

detailed in various memoranda and 

other documents, including a May 18, 

2007 letter to the Illinois Department of 

Labor Director Catherine Shannon. 

OSHA determined that the Illinois 

statutes, as structured, and the proposed 

State Plan presented several obstacles to 

meeting the Federal Public Employee 

Only State Plan approval criteria in 29 

CFR 1956. Amendments to both the 

Illinois Safety Inspection and Education 

Act and the Illinois Health and Safety 

Act were proposed and enacted by the 

Illinois General Assembly and signed 

into law by the Governor in 2006 and 

2007. The amended legislation provides 

the basis for establishing a 

comprehensive occupational safety and 

health program applicable to public 

employees in the State. 

Illinois formally submitted a revised 

Plan applicable only to public 

employees for Federal approval on June 

18, 2008. Over the next several months, 

OSHA worked with Illinois in 

identifying areas of the proposed Plan 

which needed to be addressed or 

required clarification. In response to 

Federal review of the proposed State 

Plan, supplemental assurances, and 

revisions, corrections and additions to 

the Plan were submitted on April 8, 

2009 and May 15, 2009. Further 

modifications were submitted by the 

State on June 8, 2009. The revised 

IDOL/SIED Plan has been found to be 

conceptually approvable as a 

developmental State Plan. 

The Act provides for funding of up to 

50% of the State Plan costs, but 

longstanding language in OSHA’s 

appropriation legislation further 

provides that OSHA must fund ‘‘* * * 

no less than 50% of the costs required 

to be incurred’’ by an approved State 

Plan. Such Federal funds to support the 

State Plan must be available prior to 

State Plan approval. The Omnibus 

Appropriations Act for Fiscal Year 2009 

includes $1.5 million in additional 

OSHA State Plan grant funds to allow 

for Department of Labor approval of an 

Illinois State Plan. 

On July 10, 2009, OSHA published 

notice in the Federal Register (74 FR 

33189) concerning the submission of the 

Illinois Public Employee Only State 

Plan, announcing that initial Federal 

approval of the Plan was at issue, and 

offering interested parties an 

opportunity to review the Plan and 

submit data, views, arguments or 

requests for a hearing concerning the 

Plan. The Illinois Department of Labor 

similarly published notice of the 

availability of the State Plan for 

comment on July 15, 2009 in the Daily 

Herald newspaper in Illinois. 

To assist and encourage public 

participation in the initial approval 

process, the documents constituting the 

Illinois State Plan for Public Employees 

Only are available at http:// 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations 45109 

www.regulations.gov as Docket No. 

OSHA–2009–0010. Copies of the Illinois 

State Plan also were maintained and are 

available for inspection in the OSHA 

Docket Office, Technical Data Center, 

Room N–2625, OSHA, U.S. Department 

of Labor, 200 Constitution Avenue, 

NW., Washington, DC 20210; OSHA’s 

Regional Office in Chicago, Illinois, at 

230 South Dearborn Street, 32nd Floor, 

Room 3244, Chicago, IL 60604; and at 

the Offices of the Illinois Department of 

Labor, Safety Inspection and Education 

Division at 1 West Old State Capitol 

Plaza, 3rd floor, Springfield, IL 62701; 

160 North LaSalle Street, Suite C–1300, 

Chicago, IL 60601; or 2309 West Main 

Street, Suite 115, Marion IL 62959. 

Electronic copies of this notice, as 

well as news releases and other relevant 

information, are available on OSHA’s 

Web page at http://www.osha.gov. 

C. Summary and Evaluation of 

Comments Received 

In response to OSHA’s July 10, 2009, 

Federal Register notice, which 

announced the submission of the 

Illinois Public Employee Only State 

Plan and its availability for public 

comment, nine (9) written public 

comments were submitted by: (1) Mark 

Bishop, Deputy Director, Healthy 

Schools Campaign (Document # OSHA– 

2009–0010–0024); (2) Linda Gibbons, 

Certified School Nurse, Illinois 

Association of School Nurses 

(Document # OSHA–2009–0010–0028); 

(3) Brenda McCracken and (4) Patrick 

Genovese, President, Three Rivers 

Chapter of the American Society of 

Safety Engineers (Document # OSHA– 

2009–0010–0025 and 0026); (5) Lorraine 

M. Conroy, Associate Professor, 

Environmental and Occupational Health 

Sciences, and eight other officials of the 

University of Illinois, School of Public 

Health at Chicago (Document # OSHA– 

2009–0010–0029); (6) Symantha Aydt, 

School of Labor and Employment 

Relations, University of Illinois 

(Document # OSHA–2009–0010–0030 

and 0031); (7) Scott D. Miller, Counsel, 

American Federation of State, County 

and Municipal Employees, Council 31, 

Chicago, Illinois (Document # OSHA– 

2009–0010–0032); (8) C. Christopher 

Patton, President, American Society of 

Safety Engineers (Document # OSHA– 

2009–0010–0034); and (9) John T. Coli, 

President, Teamsters Joint Council 25 

(Document # OSHA–2009–0010–0035). 

Mark Bishop, Deputy Director of the 

Healthy Schools Campaign (exhibit 

0024), expressed support for the Illinois 

PEO State Plan, in particular IDOL’s 

protection of the health and safety of 

school teachers and staff. 

Linda J. Gibbons, Certified School 

Nurse and member of the Illinois 

Association of School Nurses (exhibit 

0028), also expressed support for the 

Illinois PEO State Plan. 

The comments from Patrick Genovese, 

President, Three Rivers Chapter of the 

American Society of Safety Engineers 

(ASSE) (exhibit 0026), as transmitted by 

Brenda McCrackin (exhibit 0025), 

supported the State of Illinois, for its 

‘‘* * * intent to establish an Illinois 

Public Employee Only State Plan’’, and 

the extension of such coverage to all 

public employees either under Federal 

standards or through other non-State 

Plan states following Illinois’ example. 

In addition, Mr. Genovese mentioned 

efforts ASSE members in Florida have 

taken to see that public sector workers 

are protected and the successes that 

other established State Plans have 

achieved. 

The comments from Lorraine M. 

Conroy, Associate Professor of 

Environmental and Occupational Health 

Sciences at the University of Illinois at 

Chicago and eight other officials of the 

University of Illinois, School of Public 

Health (exhibit 0029), supported 

approval of the Illinois PEO State Plan. 

In addition, Ms. Conroy requested 

clarification in the areas of coverage, the 

complaint process, discrimination, rule 

making, penalties, and comprehensive 

safety and health programs in order to 

assure that the Illinois program is as 

effective, or more effective, than Federal 

OSHA. 

Symantha Aydt of the School of Labor 

and Employment Relations at the 

University of Illinois (exhibits 0030 and 

0031) requested clarifications in several 

areas, including methods for compelling 

compliance, the State’s voluntary 

compliance program, and coverage of 

prisoners and volunteers. 

Scott D. Miller, Counsel, American 

Federation of State, County and 

Municipal Employees (AFSCME), 

Council 31 (exhibit 0032), which 

represents more than 75,000 State 

government public-service workers as 

well as ‘‘thousands’’ of local 

government employees in Illinois, 

supported approval of the Illinois PEO 

State Plan. However, Mr. Miller, on 

behalf of AFSCME, requested that the 

State provide ‘‘a heightened level of 

assurances’’ that it will provide 

adequate matching funds, that its 

compliance officers will receive 

comprehensive training on hazards in 

the public sector, that it consider 

expanded use of its first-instance 

sanction authority, that the 

independence of its Administrative Law 

Judges be assured through specific 

regulations and separation from IDOL’s 

legal department, that procedural rules 

be developed to implement the right of 

employees and their representatives to 

challenge the State’s failure to enforce, 

and that IDOL undertake outreach 

beyond its poster to inform public 

employees of their rights and 

responsibilities under the Plan. 

C. Christopher Patton, President, 

American Society of Safety Engineers 

(exhibit 0034) on behalf of its 32,000 

members nationwide and 1,400 

members in Illinois, supported approval 

of the Illinois PEO State Plan. Mr. 

Patton also supported the extension of 

such coverage to all public employees 

either under Federal standards or 

through other non-State Plan states 

following Illinois’ example and 

mentioned efforts ASSE members in 

Florida have taken to see that public 

sector workers are protected. 

John T. Coli, President, Teamsters 

Joint Council 25 (exhibit 0035) 

supported approval of the Illinois PEO 

State Plan on behalf of the Joint Council 

and the 22 local unions under its 

jurisdiction, who collectively represent 

approximately 50,000 members in 

Illinois State and municipal 

governments. Mr. Coli emphasized the 

need for adequate assurances that 

Illinois will fund ‘‘a fully trained and 

adequate staff,’’ support for monetary 

penalties for failure to correct and 

egregious violations, the importance of 

the independence of the adjudicatory 

process, and workers’ right to request a 

hearing regarding the reasonableness of 

the abatement period. 

Several of the commenters requested 

that the Plan extend coverage to include 

safety and health protection of students 

and other non-employee classes. Both 

Federal OSHA’s and State Plans’ 

jurisdiction is statutorily limited to the 

working conditions of employees and 

does not extend to coverage of the 

general public or of students. However, 

the Illinois PEO State Plan extends 

coverage to students who are working, 

such as teaching or research assistants 

in public colleges and universities. 

Improved working conditions for public 

school employees likely result in 

benefits for students as well. 

OSHA has carefully considered the 

public comments and finds that none of 

the commenters offered specific facts or 

observations that would preclude 

approval of the Illinois State Plan or 

questioned whether the plan meets the 

statutory and regulatory criteria for 

initial approval as a developmental 

plan. All of the commenters listed above 

indicated their support for OSHA 

approval of the Illinois Public Employee 

Only State Plan. However, included in 

the public comment are many useful 

mstockstill on DSKH9S0YB1PROD with RULES

45110 Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations 

suggestions for program clarifications 

and enhancements. OSHA will require 

the State to address these issues as they 

develop the key elements of their 

program during the next three years. No 

requests for a public hearing were 

submitted. 

D. Review Findings 

As required by 29 CFR 1956.2 in 

considering the granting of initial 

approval to a Public Employee Only 

State Plan, OSHA must determine 

whether the State Plan meets or will 

meet the criteria in 29 CFR 1956.10 and 

the indices of effectiveness in 29 CFR 

1956.11. Findings and conclusions in 

each of the major State Plan areas 

addressed by 29 CFR 1956 are as 

follows: 

(1) Designated Agency 

Section 18(c)(1) of the OSH Act 

provides that a State occupational safety 

and health program must designate a 

State agency or agencies responsible for 

administering the Plan throughout the 

State (29 CFR 1956.10(b)(1)). The Plan 

must describe the authority and 

responsibilities of the designated agency 

and provide assurance that other 

responsibilities of the agency will not 

detract from its responsibilities under 

the Plan (29 CFR 1956.10(b)(2)). The 

Illinois Department of Labor is 

designated by the Illinois Safety 

Inspection and Education Act [820 ILCS 

220] and the Illinois Health and Safety 

Act [820 ILCS 225] as the sole agency 

responsible for administering and 

enforcing the public employee 

protection program in Illinois. The 

Illinois Department of Labor, Safety 

Inspection and Education Division is 

designated as the agency responsible for 

the Public Employee Only State Plan. 

The Plan describes the authority of the 

Illinois Department of Labor and its 

other responsibilities. (A separate 

agency, the Illinois Department of 

Commerce and Economic Development 

delivers OSHA’s On-Site Consultation 

program to private sector employers 

throughout the State.) (Illinois State 

Plan, pp. 1–3) 

(2) Scope 

Section 18(c)(6) of the OSH Act 

provides that the State, to the extent 

permitted by its law, shall under its 

Plan establish and maintain an effective 

and comprehensive occupational safety 

and health program applicable to all 

employees of the State and its political 

subdivisions. Only where a State is 

constitutionally precluded from 

regulating occupational safety and 

health conditions in certain political 

subdivisions may the State exclude such 

political subdivision employees from 

further coverage (29 CFR 1956.2(c)(1)). 

Further, the State may not exclude any 

occupational, industrial or hazard 

groupings from coverage under its Plan 

unless OSHA finds that the State has 

shown there is no necessity for such 

coverage (29 CFR 1956.2(c)(2)). 

The scope of the Illinois State Plan 

includes any employee of the State, 

including members of the General 

Assembly, members of the various State 

commissions, persons employed by 

public universities and colleges, and 

employees of counties, cities, 

townships, school districts, municipal 

corporations, etc. No employees of any 

political subdivision of the State or local 

government are excluded from the Plan. 

However, the definition of public 

employee does not extend to students or 

incarcerated or committed individuals 

in public institutions, or volunteers, 

unless they receive benefits such as 

health insurance or Workers’ 

Compensation. The Illinois Department 

of Labor will adopt all Federal OSHA 

occupational safety and health 

standards, and the Plan excludes no 

occupational, industrial or hazard 

grouping. 

Consequently, OSHA finds that the 

Illinois Plan contains satisfactory 

assurances that no employees of the 

State and its political subdivisions are 

excluded from coverage, and the plan 

excludes no occupational, industrial or 

hazard grouping. (Illinois State Plan, p. 

2) 

(3) Standards 

Section 18(c)(2) of the OSH Act 

requires State Plans to provide for 

occupational safety and health 

standards which are at least as effective 

as Federal OSHA standards. A State 

Plan for public employees must 

therefore provide for the development 

or adoption of such standards and must 

contain assurances that the State will 

continue to develop or adopt such 

standards (29 CFR 1956.10(c); 

1956.11(b)(2)(ii)). A State may establish 

the same standards as Federal OSHA (29 

CFR 1956.11(a)(1)), or alternative 

standards that are at least as effective as 

those of Federal OSHA (29 CFR 

1956.11(a)(2)). Where a State’s standards 

are not identical to Federal OSHA, they 

must meet the following criteria: they 

must be promulgated through a 

procedure allowing for consideration of 

all pertinent factual information and 

participation of all interested persons 

(29 CFR 1956.11(b)(2)(iii)); must, where 

dealing with toxic materials or harmful 

physical agents, assure employee 

protection throughout his or her 

working life (29 CFR 1956. 11(b)(2)(i)); 

must provide for furnishing employees 

appropriate information regarding 

hazards in the workplace through labels, 

posting, medical examinations, etc. (29 

CFR 1956.11(b)(2)(vi)); and, must 

require suitable protective equipment, 

technological control, monitoring, etc. 

(29 CFR 1956.11(b)(2)(vii)). 

In addition, the State Plan must 

provide for prompt and effective 

standards setting actions for protection 

of employees against new and 

unforeseen hazards, by such means as 

authority to promulgate emergency 

temporary standards (29 CFR 

1956.11(b)(2)(v)). 

Under the Plan’s legislation, the 

Illinois Safety Inspection and Education 

Act [820 ILCS 220] and the Illinois 

Health and Safety Act [820 ILCS 225], 

the Illinois Department of Labor has full 

authority to adopt standards and 

regulations and enforce and administer 

all laws and rules protecting the safety 

and health of employees of the State and 

its political subdivisions. The 

procedures for State adoption of Federal 

occupational safety and health 

standards include publication of a first 

and second notice in the Illinois 

Register, opportunity for a public 

hearing, notification to the Joint 

Committee on Administrative Rules, 

etc., in accordance with the Illinois 

Administrative Procedures Act [5 ICLS 

100]. Illinois has adopted State 

standards identical to Federal 

occupational safety and health 

standards as promulgated through 

September 30, 2005. The State Plan 

includes a commitment to update all 

standards within one year after Plan 

approval. The Plan also provides that 

future OSHA standards and revisions 

will be adopted by the State within six 

months of Federal promulgation in 

accordance with the requirements at 29 

CFR 1953.5. 

Under the Plan, the Illinois 

Department of Labor has the authority to 

adopt alternative or different 

occupational safety and health 

standards where no Federal standards 

are applicable or where more stringent 

standards are deemed advisable. Such 

standards will be adopted in accordance 

with the State Acts and the Illinois 

Administrative Procedures Act, which 

include provisions allowing 

submissions from interested persons 

and the opportunity to participate in 

any hearing for the development, 

modification or establishment of 

standards. (Illinois State Plan, pp. 4–6) 

The Illinois State Plan also provides 

for the adoption of Federal emergency 

temporary standards within 30 days of 

Federal promulgation. (Illinois State 

Plan pp. 5–6) 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations 45111 

Based on the preceding Plan 

provisions, assurances, and 

commitments, OSHA finds the Illinois 

State Plan to have met the statutory and 

regulatory requirements for initial plan 

approval with respect to occupational 

safety and health standards. 

(4) Variances 

A State Plan must provide authority 

for the granting of variances from State 

standards upon application of a public 

employer or employers which 

corresponds to variances authorized 

under the OSH Act, and for 

consideration of the views of interested 

parties, by such means as giving affected 

employees notice of each application 

and an opportunity to request and 

participate in hearings or other 

appropriate proceedings relating to 

applications for variances (29 CFR 

1956.11(b)(2)(iv)). 

Section 4.2 of the Illinois Health and 

Safety Act [820 ILCS 225] includes 

provisions for the granting of permanent 

and temporary variances from State 

standards to public employers in terms 

substantially similar to the variance 

provisions contained in the Federal Act. 

The State provisions require employee 

notification of variance applications as 

well as employee rights to participate in 

hearings held on variance applications. 

Variances may not be granted unless it 

is established that adequate protection 

is afforded employees under the terms 

of the variance. However, the State’s 

variance procedures at 56 ILAC 350.40 

require revision. The State has provided 

assurances in its developmental 

schedule that within two years of initial 

plan approval it will amend its 

regulations to reflect variance 

provisions equivalent to those contained 

in the Federal 29 CFR 1905. (Illinois 

State Plan pp. 7–8 and 19) 

(5) Enforcement 

Section 18(c)(2) of the OSH Act and 

29 CFR 1956.10(d)(1) require a State 

Plan to include provisions for 

enforcement of State standards which 

are or will be at least as effective in 

providing safe and healthful 

employment and places of employment 

as the Federal program, and to assure 

that the State’s enforcement program for 

public employees will continue to be at 

least as effective as the Federal program 

in the private sector. 

(a) Legal Authority. The State must 

require public employer and employee 

compliance with all applicable 

standards, rules and orders (29 CFR 

1956.10(d)(2)) and must have the legal 

authority for standards enforcement 

(section 18(c)(4)), including compulsory 

process (29 CFR 1956.11(c)(2)(viii)). 

Section 3 of the Illinois Health and 

Safety Act [820 ILCS 225/3] establishes 

the duty of public employers to provide 

a place of employment free of 

recognized hazards, to comply with the 

Illinois Department of Labor’s 

occupational safety and health 

standards, to inform employees of their 

protections and obligations and provide 

information on hazards in the 

workplace. Public employees must 

comply with all standards and 

regulations applicable to their own 

actions and conduct. 

(b) Inspections. A State Plan must 

provide for inspection of covered 

workplaces, including in response to 

complaints, where there are reasonable 

grounds to believe a hazard exists (29 

CFR 1956.11(c)(2)(i)). 

When no compliance action results 

from inspection of violations alleged by 

employee complaints, the State must 

notify the complainant of its decision 

not to take compliance action by such 

means as written notification and 

opportunity for informal review (29 CFR 

1956.11(c)(2)(iii)). 

Sections 2 and 2.1 of the Illinois 

Safety Inspection and Education Act 

(SIEA) [820 ILCS 220] provide for 

inspections of covered workplaces, 

including inspections in response to 

employee complaints, by the Director of 

Labor. If a determination is made that an 

employee complaint does not warrant 

an inspection, the complainant will be 

notified in writing of such 

determination. The complainant will be 

notified of the results of any inspection 

in writing and provided a copy of any 

citation that is issued. Employee 

complainants may request that their 

names not be revealed. (Illinois State 

Plan, pp. 10–11) 

(c) Employee Notice and Participation 

in Inspection. In conducting 

inspections, the State Plan must provide 

an opportunity for employees and their 

representatives to point out possible 

violations through such means as 

employee accompaniment or interviews 

with employees (29 CFR 

1956.11(c)(2)(ii)). 

The Illinois Safety Inspection and 

Education Act provides the opportunity 

for employer and employee 

representatives to accompany a 

Department of Labor inspector for the 

purpose of aiding the inspection. Where 

there is no authorized employee 

representative, the inspectors are 

required to consult with a reasonable 

number of employees concerning 

matters of safety and health in the 

workplace. (820 ILCS 220/2(b)(6)) 

In addition, the State Plan must 

provide that employees be informed of 

their protections and obligations under 

the Act by such means as the posting of 

notices (29 CFR 1956.11(c)(2)(iv)); and 

provide that employees have access to 

information on their exposure to 

regulated agents and access to records of 

the monitoring of their exposure to such 

agents (29 CFR 1956.11(c)(2)(vi)). 

The Plan provides for notification to 

employees of their protections and 

obligations under the Plan by such 

means as a State poster, required 

posting of notices of violation, etc. The 

State has provided assurances in its 

developmental schedule to update and 

submit the State poster for posting at all 

public sector workplaces in the State 

within one year of initial plan approval. 

(Illinois State Plan, p. 20) 

Section 2.5 of the Illinois Safety 

Inspection and Education Act 

authorizes the Director of Labor to issue 

rules requiring employers to maintain 

accurate records of employee exposures 

to potentially toxic materials or harmful 

physical agents. Information on 

employee exposure to regulated agents, 

access to medical and exposure records, 

and provision and use of suitable 

protective equipment is provided 

through State standards which will be 

updated within one year of plan 

approval. (Illinois State Plan, p. 13; p. 

19) 

(d) Nondiscrimination. A State is 

expected to provide appropriate 

protection to employees against 

discharge or discrimination for 

exercising their rights under the State’s 

program, including provision for 

employer sanctions and employee 

confidentiality (29 CFR 

1956.11(c)(2)(v)). 

Section 2.2 of the Illinois Safety 

Inspection and Education Act [820 ILCS 

220] provides that a person may not 

discharge or in any other way 

discriminate against any employee 

because the employee has filed a 

complaint or instituted or caused to be 

instituted any proceeding under or 

related to the Acts or has testified or is 

about to testify in any such proceeding 

or because of the exercise by the 

employee on behalf of himself or herself 

or others of any right afforded by the 

State Acts. 

The SIEA provides that an employee 

who believes that he or she has been 

discharged or otherwise discriminated 

against by any person in violation of 

this section may, within 30 calendar 

days after the violation occurs, file a 

complaint with the Director of Labor 

alleging the discrimination. The Plan 

provides that the Director shall 

investigate such complaints as 

appropriate and make a determination 

within 90 days. If the Director 

determines that the provisions of this 

mstockstill on DSKH9S0YB1PROD with RULES

45112 Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations 

section have been violated, the Director 

shall bring an action in the circuit court 

for appropriate relief. (820 ILCS 220/2.2 

and Illinois State Plan, p.11) 

The Illinois State Plan provides for 

protection of employees against 

discharge or discrimination resulting 

from exercise of their rights under the 

State Acts in terms essentially identical 

to section 11(c) of the Federal Act. 

(e) Restraint of Imminent Danger. A 

State Plan is required to provide for the 

prompt restraint of imminent danger 

situations (29 CFR 1956.11(c)(2)(vii)). 

Section 2(b)(7)(B) of the Illinois Safety 

Inspection and Education Act [820 ILCS 

220] provides that the Director may file 

a complaint in the circuit court for 

appropriate relief, by such means as an 

order to cease and desist, to restrain any 

conditions or practices in the workplace 

which the Director determines, in 

accordance with the State Acts, are such 

that a danger exists which could 

reasonably be expected to cause death 

or serious physical harm immediately or 

before the danger could be eliminated 

through the enforcement process. 

(Illinois State Plan, p. 10) 

(f) Right of Entry; Advance Notice. A 

State program is required to have 

authority for right of entry to inspect 

and compulsory process to enforce such 

right equivalent to the Federal program 

(section 18(c)(3) of the OSH Act and 29 

CFR 1956.10(e)). Likewise, a State is 

expected to prohibit advance notice of 

inspection, allowing exception thereto 

no broader than in the Federal program 

(29 CFR 1956.10(f)). 

Section 2(b)(3) of the Illinois Safety 

Inspection and Education Act [820 ILCS 

220] provides that the Director of Labor 

has the right to inspect and investigate 

during regular working hours and at 

other reasonable times, and within 

reasonable limits and in a reasonable 

manner, any such place of employment 

and all pertinent conditions, structures, 

machines, apparatus, devices, 

equipment, and materials therein, and 

to question privately any such 

employer, agent or employee. 

Section 2.6(a) of the SIEA prohibits 

advance notice of inspections. A person 

who gives advance notice of any 

inspection to be conducted under the 

authority of this Act or the Health and 

Safety Act without authority from the 

Director of Labor, or his or her 

authorized representative, commits a 

Class B misdemeanor. (Illinois State 

Plan, p. 9) 

(g) Citations, Sanctions, and 

Abatement. A State Plan is expected to 

have authority and procedures for 

promptly notifying employers and 

employees of violations, including 

proposed abatement requirements, 

identified during inspection, for the 

proposal of effective first-instance 

sanctions against employers found in 

violation of standards, and for prompt 

employer notification of any such 

sanctions. In lieu of monetary penalties 

as a sanction, a complex of enforcement 

tools and rights, including 

administrative orders and employees’ 

right to contest, may be demonstrated to 

be as effective as monetary penalties in 

achieving compliance in public 

employment (29 CFR 1956.11(c)(2)(ix) 

and (x)). 

The Illinois Safety Inspection and 

Education Act establishes the authority 

and general procedures for the Director 

of Labor to promptly notify public 

employers and employees of violations, 

abatement requirements, and to compel 

compliance. The Director of Labor must 

issue a written order to comply with 

reasonable promptness, which in no 

case may be more than six months after 

the occurrence of any violation. The 

SIEA provides that when an inspection 

of an establishment has been made, and 

the Director of Labor has issued a 

citation, the employer shall post such 

citation or a copy thereof at or near the 

location where the violation occurred. 

Each citation shall be in writing; 

describe with particularity the nature of 

the violation and include a reference to 

the provision of the Act, standard, rule, 

regulation, or order alleged to have been 

violated; and fix a reasonable time for 

the abatement of the violation. (820 

ILCS 220/2.3) 

Although Section 2.3 of the SIEA 

contains authority for a system of firstinstance monetary penalties, in practice 

it is the State’s intent to issue monetary 

penalties only for failure to correct and 

egregious violations. The State has 

discretionary authority for civil 

penalties of not more than $10,000 for 

repeat and willful violations. Serious 

and other-than-serious violations may 

be assessed a penalty of up to $1,000 per 

violation and failure-to-correct 

violations may be assessed a penalty of 

up to $1,000 per violation per day. In 

addition, any public employer who 

willfully violates any standard, rule, or 

order can be charged by the Attorney 

General with a Class 4 felony if that 

violation causes death to any employee. 

(Illinois State Plan, p. 11–12) 

The State has given an assurance that 

it will revise its regulations regarding 

inspections, citations, and proposed 

penalties to be equivalent to 29 CFR 

1903 within two years of plan approval. 

(Illinois State Plan, p. 19) 

(h) Contested Cases. A State Plan 

must have authority and procedures for 

employer contest of violations alleged 

by the State, penalties/sanctions and 

abatement requirements at full 

administrative or judicial hearings. 

Employees must also have the right to 

contest abatement periods and the 

opportunity to participate as parties in 

all proceedings resulting from an 

employer’s contest (29 CFR 

1956.11(c)(2)(xi)). 

Public employers or their 

representatives who receive a citation or 

a proposed penalty may within 15 

working days contest the citation, 

proposed penalty and/or abatement 

period and request a hearing before an 

Administrative Law Judge (ALJ) on 

behalf of the Director. Any public 

employee or representative may within 

15 working days request a hearing 

before an ALJ regarding the 

reasonableness of the abatement period. 

Informal review prior to contest may 

also be requested at the division level. 

The ALJ’s decision is subject to appeal 

to the courts. (Illinois State Plan, pp. 

12–13) 

Although the Illinois Plan does not 

include an independent authority for 

review of contested cases, and the 

Director technically has statutory 

responsibility for both the enforcement 

and the appeals process (820 ILCS 220/ 

2.4), in practice, Administrative Law 

Judges hear contested cases without any 

oversight or review by the Director. 

ALJ’s decisions are subject to judicial 

review under the Illinois Administrative 

Review Law. (56 ILCS 350.120). Within 

one year of plan approval, the State will 

make appropriate changes to its 

regulations and procedures to ensure 

the separation of these functions and the 

independence of the adjudicatory 

process. The Director of Labor will 

remain responsible for the enforcement 

process, including the issuance of 

citations and penalties, and their 

defense, if contested. 

The State’s developmental schedule 

also includes an assurance that it will 

revise its regulations regarding the 

review system for contested cases to be 

equivalent to 29 CFR 2200 within two 

years of plan approval. (Illinois State 

Plan, p. 19) 

(i) Enforcement Conclusion. 

Accordingly, OSHA finds that the 

enforcement provisions of the Illinois 

State Plan as described above meet or 

will meet the statutory and regulatory 

requirements for initial State Plan 

approval. 

(6) Staffing and Resources 

Section 18(c)(4) of the OSH Act 

requires State Plans to provide the 

qualified personnel necessary for the 

enforcement of standards. In accordance 

with 29 CFR 1956.10(g), one factor 

which OSHA must consider in 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations 45113 

considering a plan for initial approval is 

whether the State has or will have a 

sufficient number of adequately trained 

and competent personnel to discharge 

its responsibilities under the plan. 

The Illinois State Plan (p. 17; pp. 19– 

20) provides assurances of a fully 

trained, adequate staff, including 11 

safety and 3 health compliance officers 

for enforcement inspections, and 3 

safety and 2 health consultants to 

provide consultation, training and 

education services in the public sector. 

The State has a currently authorized 

staff of 8 safety and 3 health compliance 

officers who, in addition to inspections, 

also perform duties equivalent to 

OSHA’s on-site consultation program. 

The Plan provides assurances that 

within three years of plan approval no 

staff will have dual roles, and the State 

will have a fully trained, adequate, and 

separate staff of compliance officers for 

enforcement inspections, and 

consultants to perform consultation 

services in the public sector. As new 

staff members are hired they will 

perform either enforcement or 

consultation functions. The compliance 

staffing requirements (or benchmarks) 

for State Plans covering both the private 

and public sectors are established based 

on the ‘‘fully effective’’ test established 

in AFL–CIO v. Marshall, 570 F.2d 1030 

(DC Cir. 1978). This staffing test, and the 

complicated formula used to derive 

benchmarks for complete private/public 

sector Plans, are not intended, nor are 

they appropriate, for application to the 

staffing needs of public employee only 

Plans. However, the State has given 

satisfactory assurance in its Plan that it 

will meet the requirements of 29 CFR 

1956.10 for an adequately trained and 

qualified staff sufficient for the 

enforcement of standards. (Illinois State 

Plan, p. 17; pp. 19–20) 

Section 18(c)(5) of the OSH Act 

requires that the State Plan devote 

adequate funds for the administration 

and enforcement of its standards (29 

CFR 1956.10(h)). Illinois has funded its 

public employee safety and health 

program since 1985 solely utilizing 

State funds. The State Plan will be 

funded at $3 million ($1.5 million 

Federal 50% share and $1.5 million 

State 50% matching share) during 

Federal Fiscal Year 2009. 

Accordingly, OSHA finds that the 

Illinois State Plan has provided for 

sufficient, qualified personnel and 

adequate funding for the various 

activities to be carried out under the 

Plan. 

(7) Records and Reports 

State Plans must assure that 

employers in the State submit reports to 

the Assistant Secretary in the same 

manner as if the Plan were not in effect 

(section 18(c)(7)) of the OSH Act). 

Under a public employee State Plan, 

public employers must maintain records 

and make reports on occupational 

injuries and illnesses in a manner 

similar to that required of private sector 

employers under the OSH Act and 29 

CFR 1956.10(i). The Plan must also 

provide assurances that the designated 

agency will make such reports to the 

Assistant Secretary in such form and 

containing such information as he or 

she may from time to time require 

(section 18(c)(8) of the OSH Act and 29 

CFR 1956.10(j)). 

Illinois has provided assurances in its 

State Plan (p. 19) that all jurisdictions 

covered by the State Plan will maintain 

valid records and make timely reports 

on occupational injuries and illnesses, 

as required for private sector employers 

under the OSH Act. Specific regulations 

on this aspect of the State Plan will be 

submitted by Illinois in accord with its 

developmental schedule, in which the 

State has agreed to adopt amendments 

to regulations regarding recordkeeping 

equivalent to 29 CFR 1904 within two 

years of plan approval. 

Illinois has also provided assurance in 

its State Plan (p. 20) that it will 

coordinate with the Illinois Department 

of Public Health and the Bureau of 

Labor Statistics (BLS) to expand the 

current BLS Annual Survey of Injuries 

and Illnesses in the State to provide 

more detailed injury, illness, and 

fatality rates for the public sector within 

two years of plan approval. Illinois will 

also provide reports to OSHA in the 

desired form and participate in OSHA’s 

Integrated Management Information 

System as well as OSHA’s Information 

System, once deployed. (Illinois State 

Plan p. 16; p. 20) 

OSHA finds that the Illinois State 

Plan has met the requirements of section 

18(c)(7) and (8) of the OSH Act on the 

employer and State reports to the 

Assistant Secretary. 

(8) Voluntary Compliance Program 

A State Plan must undertake programs 

to encourage voluntary compliance by 

employers by such means as conducting 

training and consultation with 

employers and employees (29 CFR 

1956.11(c)(2)(xii)). 

The Illinois State Plan (pp. 13–14) 

provides that the State Department of 

Labor will continue and expand 

educational programs for public 

employees specifically designed to meet 

the regulatory requirements and needs 

of the public employer. The Plan also 

provides that consultation visits and 

training classes will be conducted at 

work sites by request of the employer 

and will be tailored to the public 

employer’s concerns. In addition, public 

agencies are encouraged to develop and 

maintain their own safety and health 

programs as an adjunct to but not a 

substitute for the IDOL enforcement 

program. 

Illinois will establish an on-site 

consultation program for the public 

sector parallel to Illinois’ existing 

private sector on-site consultation 

program (under section 21(d) of the 

OSH Act) within three years of plan 

approval, which includes establishing a 

public sector consultation staff separate 

from enforcement. (Illinois State Plan, p. 

19) 

OSHA finds that the Illinois State 

Plan provides for the establishment and 

administration of an effective voluntary 

compliance program. 

E. Decision 

OSHA, after carefully reviewing the 

Illinois State Plan for the development 

and enforcement of State standards 

applicable to State and local 

government employees and the record 

developed during the above described 

proceedings, has determined that the 

requirements and criteria for initial 

approval of a developmental State Plan 

have been met. The Plan is hereby 

approved as a developmental plan for 

public employees only under section 18 

of the Act and 29 CFR 1956. This 

decision incorporates the requirements 

of the Act and of regulations applicable 

to State Plans generally. 

The initial approval of a State Plan for 

public employees in Illinois is not a 

significant regulatory action as defined 

in Executive Order 12866. 

F. Regulatory Flexibility Act 

OSHA certifies pursuant to the 

Regulatory Flexibility Act of 1980 (5 

U.S.C. 601 et seq.) that the initial 

approval of the Illinois State Plan will 

not have a significant economic impact 

on a substantial number of small 

entities. By its own terms, the Plan will 

have no effect on private sector 

employment, but is limited to the State 

and its political subdivisions. Moreover, 

the Illinois Safety Inspection and 

Education Act has been in effect since 

1961 and the Illinois Health and Safety 

Act has been in effect since 1936, when 

the State first established a safety and 

health program. Since 1985, the Illinois 

program for public employees has been 

in operation under the Illinois 

Department of Labor with State funding 

and most public sector employers in the 

State, including small units of local 

government, have been subject to its 

terms. Compliance with State OSHA 

mstockstill on DSKH9S0YB1PROD with RULES

45114 Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations 

standards is required by State law; 

Federal approval of a State Plan imposes 

regulatory requirements only on the 

agency responsible for administering the 

State Plan. Accordingly, no new 

obligations would be placed on public 

sector employers as a result of Federal 

approval of the Plan. 

G. Federalism 

Executive Order 13132, ‘‘Federalism,’’ 

emphasizes consultation between 

Federal agencies and the States and 

establishes specific review procedures 

the Federal government must follow as 

it carries out policies which affect State 

or local governments. OSHA has 

consulted extensively with Illinois 

throughout the development, 

submission and consideration of its 

proposed State Plan. Although OSHA 

has determined that the requirements 

and consultation procedures provided 

in Executive Order 13132 are not 

applicable to initial approval decisions 

under the Act, which have no effect 

outside the particular State receiving the 

approval, OSHA has reviewed today’s 

Illinois initial approval decision, and 

believes it is consistent with the 

principles and criteria set forth in the 

Executive Order. 

H. Effective Date 

OSHA’s decision granting initial 

Federal approval to the Illinois State 

Plan for public employees only is 

effective September 1, 2009. Although 

the State has had a program in effect for 

many years, modification of the program 

will be required over the next three 

years by today’s decision. Federal 50% 

matching funds have been explicitly 

provided in the U.S. Department of 

Labor’s FY 2009 appropriation. Notice 

of proposed initial approval of the plan 

was published in both the Federal 

Register and in the Daily Herald 

newspaper in Illinois with requests for 

comment. No comments opposing 

initial approval of the Plan were 

received, and OSHA believes that no 

party is adversely affected by initial 

approval of the Plan. OSHA therefore 

finds, pursuant to section 553(d) of the 

Administrative Procedures Act, that 

good cause exists for making Federal 

approval of the Illinois Public Employee 

Only State Plan effective upon 

publication in today’s Federal Register. 

I. Authority and Signature 

This document was prepared under 

the direction of Jordan Barab, Acting 

Assistant Secretary of Labor for 

Occupational Safety and Health. It is 

issued under Section 18 of the 

Occupational Safety and Health Act of 

1970, (29 U.S.C. 667), 29 CFR parts 1956 

and 1902, and Secretary of Labor’s 

Order No. 5–2007 (72 FR 31160). 

Signed at Washington, DC, this 26th day of 

August 2009. 

Jordan Barab, 

Acting Assistant Secretary of Labor for 

Occupational Safety and Health. 

List of Subjects in 29 CFR 1956 

Administrative practice and 

procedure, Government employees, 

Intergovernmental relations, Law 

enforcement, Occupational safety and 

health. 

For the reasons set out in the 

preamble, 29 CFR part 1956 is amended 

as follows: 

PART 1956—[AMENDED] 

■ 1. The authority citation for part 1956 

is revised to read as follows: 

Authority: Section 18 of the Occupational 

Safety and Health Act of 1970, (29 U.S.C. 

667), 29 CFR 1902, 1952, and 1955, and 

Secretary of Labor’s Order No. 5–2007 (72 FR 

31160). 

■ 2. Subpart I is added to read as 

follows: 

Subpart I—Illinois 

Sec. 

1956.80 Description of the plan as initially 

approved. 

1956.81 Developmental schedule. 

1956.82 [Reserved] 

1956.83 [Reserved] 

1956.84 Location of plan for inspection 

and copying. 

Subpart I—Illinois 

§ 1956.80 Description of the plan as 

initially approved. 

(a) Authority and scope. The Illinois 

State Plan for Public Employee 

Occupational Safety and Health 

received initial OSHA approval on 

September 1, 2009. The Plan designates 

the Illinois Department of Labor as the 

State agency responsible for 

administering the Plan throughout the 

State. The Plan includes as enabling 

legislation the Illinois Safety Inspection 

and Education Act (SIEA) [820 ILCS 

220] and the Illinois Health and Safety 

Act (HSA) [820 ILCS 225]. Under the 

legislation, the State Director of Labor 

has full authority to adopt, enforce and 

administer all laws and rules protecting 

the safety and health of all employees of 

the State and its political subdivisions 

under the Illinois Public Employee Only 

State Plan. 

(b) Standards. Illinois has adopted 

State standards identical to OSHA 

occupational safety and health 

standards promulgated through 

September 30, 2005. The State Plan 

provides that these standards will be 

updated within one year of plan 

approval and future OSHA standards 

and revisions will be adopted by the 

State within six months of Federal 

promulgation, in accordance with 29 

CFR 1953.5. Any emergency temporary 

standards will be adopted within 30 

days of Federal adoption. The State will 

adopt Federal OSHA standards in 

accordance with the provisions of the 

Illinois Health and Safety Act [820 ILCS 

225/4.1]. The Plan also provides for the 

adoption of alternative or different 

occupational safety and health 

standards by the Director of Labor, 

where no Federal standards are 

applicable to the conditions or 

circumstances or where standards more 

stringent than Federal are deemed 

appropriate. 

(c) Variances. The Plan includes 

provisions for the granting of permanent 

and temporary variances from State 

standards in terms substantially similar 

to the variance provisions contained in 

the OSH Act. The State provisions 

require employee notification of 

variance applications as well as 

employee rights to participate in 

hearings held on variance applications. 

Variances may not be granted unless it 

is established that adequate protection 

is afforded employees under the terms 

of the variance. The State has 

committed to amend its current variance 

procedures at 56 ILAC 350.40 to bring 

them into conformance with Federal 

procedures at 29 CFR 1905 within two 

years of plan approval. 

(d) Employee notice and 

discrimination protection. The Plan 

provides for notification to employees of 

their protections and obligations under 

the Plan by such means as the State 

poster and required posting of notices of 

violations. The Plan also provides for 

protection of employees against 

discharge or discrimination resulting 

from exercise of their rights under the 

State’s Acts in terms similar to section 

11(c) of the OSH Act. The SIEA 

provides that an employee who believes 

that he or she has been discharged or 

otherwise discriminated against by any 

person in violation of this section may, 

within 30 calendar days after the 

violation occurs, file a complaint with 

the Director of Labor alleging the 

discrimination. The Plan provides that 

the Director shall investigate such 

complaints as appropriate and make a 

determination within 90 days. If the 

Director determines that the provisions 

of this section have been violated, the 

Director shall bring an action in the 

circuit court for appropriate relief. 

(e) Inspections and enforcement. The 

Plan provides for inspection of covered 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations 45115 

workplaces, including inspections in 

response to employee complaints by the 

Department of Labor. If a determination 

is made that an employee complaint 

does not warrant an inspection, the 

complainant shall be notified, in 

writing, of such determination and 

afforded an opportunity to seek informal 

review of the determination. The Plan 

provides the opportunity for employer 

and employee representatives to 

accompany the inspector during an 

inspection for the purpose of aiding in 

the inspection and in the absence of 

such a representative, the right to 

interview a reasonable number of 

employees during the inspection. The 

Plan also provides for the right of entry 

for inspection and prohibition of 

advance notice of inspection. The 

Director of Labor is responsible for all 

enforcement actions, including the 

issuance of all citations which must 

specify the abatement period, posting 

requirements, and the employer’s and 

employees’ right to contest any or all 

citations. Although the Plan contains 

authority for a system of first-instance 

monetary penalties, in practice it is the 

State’s intent to issue monetary 

penalties only for failure to correct and 

egregious violations. The State has 

discretionary authority for civil 

penalties of not more than $10,000 for 

repeat and willful violations. Serious 

and other-than-serious violations may 

be assessed a penalty of up to $1,000 per 

violation and failure-to-correct 

violations may be assessed a penalty of 

up to $1,000 per violation per day. In 

addition, any public employer who 

willfully violates any standard, rule, or 

order can be charged by the Attorney 

General with a Class 4 felony if that 

violation causes death to any employee. 

(f) Review procedures. Although the 

Director has statutory responsibility for 

both the enforcement and the appeals 

process (820 ILCS 220/2.4), in practice, 

Administrative Law Judges (ALJ) hear 

contested cases without any oversight or 

review by the Director. The State will 

make appropriate changes to its 

regulations and procedures to ensure 

the separation of these functions and the 

independence of the adjudicatory 

process within one year of plan 

approval. The Director of Labor will 

remain responsible for the enforcement 

process, including the issuance of 

citations and penalties, and their 

defense, if contested. Public employers 

or their representatives who receive a 

citation or a proposed penalty may 

within 15 working days contest the 

citation, proposed penalty and/or 

abatement period and request a hearing 

before an Administrative Law Judge. 

Any public employee or representative 

may within 15 working days request a 

hearing before an ALJ regarding the 

reasonableness of the abatement period. 

Informal review prior to contest may 

also be requested at the division level. 

The ALJ’s decision is subject to appeal 

to the courts. 

(g) Staffing and resources. The Plan 

further provides assurances of a fully 

trained, adequate staff within three 

years of plan approval, including 11 

safety and 3 health compliance officers 

for enforcement inspections, and 3 

safety and 2 health consultants to 

perform consultation services in the 

public sector. The State has assured that 

it will continue to provide a sufficient 

number of adequately trained and 

qualified personnel necessary for the 

enforcement of standards as required by 

29 CFR 1956.10. The State has also 

given satisfactory assurance of adequate 

funding to support the Plan. 

(h) Records and reports. The Plan 

provides that public employers in 

Illinois will maintain appropriate 

records and make timely reports on 

occupational injuries and illnesses in a 

manner substantially identical to that 

required for private sector employers 

under Federal OSHA. Illinois has 

assured that it will coordinate with the 

Illinois Department of Health to expand 

its participation in the Bureau of Labor 

Statistics Annual Survey of Injuries and 

Illnesses to include public sector 

employers. The State will comply with 

the provisions of 29 CFR 1904.7, which 

allow full employee and employee 

representative access, including 

employee’s names, to the log of 

workplace injuries and illnesses; and 

will amend its recordkeeping 

regulations within two years of plan 

approval. The Plan also contains 

assurances that the Director of Labor 

will provide reports to OSHA in such 

form as the Assistant Secretary may 

require, and that Illinois will participate 

in OSHA’s Integrated Management 

Information System as well as it 

successor, OSHA Information System, 

once deployed. 

(i) Voluntary compliance programs. 

The Plan provides that training will be 

provided to public employers and 

employees; a separate on-site 

consultation program in the public 

sector will be established to provide 

services to public employers who 

request assistance; and all State agencies 

and political subdivisions will be 

encouraged to develop and maintain 

internal safety and health programs as 

an adjunct to, but not a substitute for, 

the Director of Labor’s enforcement. 

§ 1956.81 Developmental schedule. 

The Illinois State Plan is 

developmental. The following is a 

schedule of major developmental steps 

as provided in the Plan that will be 

accomplished within three years of plan 

approval: 

(a) Illinois will adopt standards 

identical to or at least as effective as the 

applicable existing OSHA standards and 

revise the Rules of Procedures in 

Administrative Hearings (56 ILAC 120), 

clarifying the separation of the 

enforcement role of the Director of 

Labor from the adjudicatory role in 

contested cases, within one year after 

plan approval. 

(b) Illinois will update and adopt 

amendments to the Illinois 

Administrative Rules (56 ILAC 350) 

regarding identical standards, variances, 

inspections, review system for contested 

cases and employee access to 

information equivalent to 29 CFR parts 

1903, 1905, 1911 and 2200 within two 

years after plan approval. 

(c) Illinois will adopt amendments to 

rules regarding recordkeeping 

substantially identical to 29 CFR part 

1904 within two years after plan 

approval. 

(d) An annual performance plan will 

be developed and submitted with the 

FY 2010 Grant Application. The 

performance plan will focus on 

achievement of developmental steps 

and activity reporting until such time as 

the program is fully operational, at 

which point objective, results-oriented 

performance goals will be established. 

(e) Illinois will develop an inspection 

scheduling system that targets high 

hazard establishments within two years 

of plan approval. 

(f) Illinois will develop a 

comprehensive field operations manual 

that is at least as effective as the Federal 

Field Operations Manual within two 

years after plan approval. 

(g) Illinois will begin hiring critical 

program management staff and filling 

current vacancy positions within 30 

days of plan approval. 

(h) Illinois will hire the additional 

Enforcement program field and support 

staff within two years of plan approval. 

(i) Illinois will fully implement and 

staff a public employer/employee 

Consultation program equivalent to 29 

CFR part 1908, and training and 

education programs separate from 

Enforcement, within three years after 

plan approval. 

(j) Illinois will have an authorized 

compliance staff of 11 Safety Inspectors 

and 3 Industrial Hygienists (nonsupervisory) and a public sector 

consultation staff of 3 Safety 

Consultants and 2 Industrial Hygiene 

mstockstill on DSKH9S0YB1PROD with RULES

45116 Federal Register / Vol. 74, No. 168 / Tuesday, September 1, 2009 / Rules and Regulations 

Consultants within three years of plan 

approval. 

(k) Illinois and OSHA will develop a 

plan for joining the OSHA Integrated 

Management Information System to 

report State plan activity, including 

specific information on inspections, 

consultation visits, etc., in conjunction 

with OSHA, within six months of plan 

approval. Illinois will convert to the 

new OSHA Information System upon its 

deployment. In the interim, Illinois will 

provide monthly reports on its activity 

in an agreed upon format. 

(l) Illinois will coordinate with the 

Illinois Department of Public Health and 

the Bureau of Labor Statistics to expand 

the current Illinois survey to provide 

more detailed injury/illness/fatality 

rates on State and local government, 

within two years of plan approval. 

(m) Illinois will revise and submit a 

State poster for posting at all public 

sector workplaces in the State within 

one year of plan approval. 

§ 1956.82 [Reserved] 

§ 1956.83 [Reserved] 

§ 1956.84 Location of plan for inspection 

and copying. 

A copy of the plan may be inspected 

and copied during normal business 

hours at the following locations: Office 

of State Programs, U.S. Department of 

Labor, Occupational Safety and Health 

Administration, 200 Constitution 

Avenue, NW., Room N–3700, 

Washington, DC 20210; OSHA’s 

Regional Office in Chicago, Illinois, at 

230 South Dearborn Street, 32nd Floor, 

Room 3244, Chicago, IL 60604; and at: 

the Offices of the Illinois Department of 

Labor, Safety Inspection and Education 

Division at 1 West Old State Capitol 

Plaza, 3rd floor, Springfield, IL 62701; 

160 North LaSalle Street, Suite C–1300, 

Chicago, IL 60601; or 2309 West Main 

Street, Suite 115, Marion, IL 62959. 

[FR Doc. E9–21044 Filed 8–31–09; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 944 

[SATS No. UT–045–FOR; Docket ID No. 

OSM–2008–0011] 

Utah Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approval of 

amendment. 

SUMMARY: We are approving an 

amendment to the Utah regulatory 

program (the ‘‘Utah program’’) under the 

Surface Mining Control and 

Reclamation Act of 1977 (‘‘SMCRA’’ or 

‘‘the Act’’). Utah proposed revisions to 

and additions of rules about the sealing 

of wells and boreholes, Division of Oil, 

Gas and Mining (‘‘Division’’ or 

‘‘DOGM’’) responsibilities when 

requesting additional information 

during permit reviews, and the 

definition of intermittent stream. Utah is 

revising its program to be consistent 

with the corresponding Federal 

regulations, to achieve greater scientific 

accuracy, and to improve operational 

efficiency. 

DATES: Effective Date: September 1, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

James F. Fulton, Chief, Denver Field 

Division, (303) 293–5015, 

jfulton@OSMRE.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Utah Program 

II. Submission of the Proposed Amendment 

III. Office of Surface Mining Reclamation and 

Enforcement’s (OSM’s) Findings 

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

VI. Procedural Determinations 

I. Background on the Utah Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its State program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of this Act * * * and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the Utah 

program on January 21, 1981. You can 

find background information on the 

Utah program, including the Secretary’s 

findings, the disposition of comments, 

and conditions of approval of the Utah 

program in the January 21, 1981, 

Federal Register (46 FR 5899). You can 

also find later actions concerning Utah’s 

program and program amendments at 30 

CFR 944.15 and 944.30. 

II. Submission of the Proposed 

Amendment 

By letter dated May 28, 2008 Utah 

sent us an amendment to its program 

(Document ID No. OSM–2008–0011– 

0001) under SMCRA (30 U.S.C. 1201 et 

seq.). Utah sent the amendment at its 

own initiative. 

We announced receipt of the 

proposed amendment in the June 24, 

2008, Federal Register (73 FR 35607). In 

the same document, we opened the 

public comment period and provided an 

opportunity for a public hearing or 

meeting on the amendment’s adequacy 

(Document ID No. OSM–2008–0011– 

0001). We did not hold a public hearing 

or meeting because no one requested 

one. We received comments from two 

industry groups and one Federal agency. 

III. OSM’s Findings 

The following are our findings 

concerning the amendment under 

SMCRA and the Federal regulations at 

30 CFR 732.15 and 732.17. We are 

approving the amendment. 

A. The Casing and Sealing of 

Underground Openings 

Utah is amending R645–301–551 to 

read: 

Casing and Sealing of Underground 

Openings. When no longer needed for 

monitoring or other use approved by the 

Division upon a finding of no adverse 

environmental or health and safety effects, 

each shaft, drift, adit, tunnel, drill hole, or 

other opening to the surface from 

underground will be capped, sealed and 

backfilled, or otherwise properly managed, as 

required by the Division and consistent with 

MSHA, 30 CFR 75.1711 and all other 

applicable state and federal regulations as 

soon as practical. Permanent closure 

measures will be designed to prevent access 

to the mine workings by people, livestock, 

fish and wildlife, machinery and to keep acid 

or other toxic drainage from entering ground 

or surface waters. With respect to drill holes, 

unless otherwise approved by the Division, 

compliance with the requirements of 43 CFR 

3484.1(a)(3) or R649–3–24 will satisfy these 

requirements. 

This amendment adds ‘‘drill holes’’ to 

the list of underground openings 

specified in R645–301–551. The 

amendment also adds a requirement 

that the casing and sealing of 

underground openings be consistent 

with ‘‘all other applicable State and 

Federal regulations as soon as 

practical.’’ Finally, the amendment adds 

the following sentence to the end of the 

regulatory provision: ‘‘With respect to 

drill holes, unless otherwise approved 

by the Division, compliance with the 

requirements of 43 CFR 3484.1(a)(3) or 

R649–3–24 will satisfy these 

requirements.’’ 

‘‘Drill hole’’ is defined by the 

Dictionary of Mining, Minerals, and 

Related Terms (2nd ed. 1997.) as ‘‘a hole 

in rock or coal made with an auger or 

a drill’’. Drill holes, unlike other types 

of openings to underground mines, such 

mstockstill on DSKH9S0YB1PROD with RULES