Iowa Administrative Code › Agency 875 - Labor Services Division › Iowa Occupational Safety and Health › Chapter 8 - Consultative Services › Rule 875-8.7 - Relationship to Enforcement

Current through Register Vol. 47, No. 3, July 24, 2024
(1)
Separation of functions.
Consultation shall be conducted
				independently of Iowa OSHA Enforcement and shall have separate management
				staff. Except as noted in subrule 8.7(3), neither the identity of an employer
				requesting on-site consultation nor the file or report from the consultation
				activity shall be provided to Iowa OSHA Enforcement unless the employer fails
				to take the necessary action to protect employees from a serious hazard or
				imminent danger
(2)
Effect
				upon scheduling.
a. An on-site
				consultation already in progress shall have priority over compliance
				inspections by Iowa OSHA Enforcement except as provided in 8.7(2) "Z). " The
				consultant and the employer shall notify the compliance officer that an on-site
				consultation is in progress and shall request delay of the inspection until
				after the on-site consultation is completed. An on-site consultation shall be
				considered in progress in relation to the working conditions, hazards, or
				situations covered by the request from the beginning of the opening conference
				through the end of the correction due dates and any extensions thereof. In
				exercising its authority to schedule compliance inspection, Iowa OSHA
				Enforcement may assign a lower priority to work sites where consultation visits
				are scheduled.
b. The consultant
				shall terminate an on-site consultation if one of the following compliance
				inspections by Iowa OSHA Enforcement is about to take place:
(1) Imminent danger investigation.
(2) Fatality/catastrophe
				investigation.
(3) Complaint
				investigation.
(4) Other critical
				inspection as determined by the commissioner.
c. An on-site consultation shall not take
				place while an enforcement inspection is in progress at the establishment. An
				enforcement inspection shall be deemed "in progress" from the time a compliance
				officer initially seeks entry to the workplace to the end of the closing
				conference. If the employer denied the compliance officer entry to the work
				site, an enforcement inspection is "in progress" until the inspection is
				concluded, the commissioner determines that a warrant to enter will not be
				sought, or the commissioner determines that allowing a consultative visit to
				proceed is in the best interest of employee safety and health. An on-site
				consultation shall not take place subsequent to an enforcement inspection until
				the employer has been notified that no citations will be issued, or if a
				citation is issued, on-site consultation shall take place only with regard to
				those citation items that have become final orders.
d. The recognition and exemption program
				operated by the bureau of consultation and education provides incentives and
				support to high-hazard employers to work with employees to develop, implement,
				and continuously improve the effectiveness of safety and health programs.
(1) Programmed enforcement inspections at a
				work site may be deferred while the employer is working to achieve recognition
				status if the following conditions are met:
1.
				An employer requested participation in a recognition and exemption
				program;
2. A consultant has
				conducted an on-site consultation covering all conditions and operations
				related to occupational safety and health;
3. An employer corrected all hazards
				identified during the consultation visit within established time
				frames;
4. An employer has begun to
				implement all of the elements of an effective safety and health program;
				and
5. An employer agrees to
				request an on-site consultation if major changes in working conditions or work
				processes occur that may introduce new hazards.
(2) Employers that meet all the requirements
				for recognition and exemption will be removed from the Iowa OSHA Enforcement
				programmed inspection schedules for at least one year from the date of the
				certificate of recognition.
(3)
				Iowa OSHA Enforcement will continue to make the inspections listed below at
				sites that achieved recognition and exemption status and at sites that have
				received deferrals under 8.7(2)
"d"(1):
1. Imminent danger;
2. Fatality/catastrophe; and
3. Formal complaint.
(3)
Effect upon enforcement.
a. The advice of the consultant and the
				consultant's written report shall not be binding upon a compliance officer in a
				subsequent enforcement inspection. In a subsequent enforcement inspection, a
				compliance officer is not precluded from issuing citations and proposing
				penalties for hazardous conditions or violations.
b. The hazard identification and correction
				assistance given by the consultant, the failure of the consultant to point out
				a specific hazard, and errors or omissions by the consultant shall not:
(1) Be binding upon a compliance
				officer;
(2) Affect the regular
				conduct of a compliance inspection;
(3) Preclude the finding of alleged
				violations and the issuance of citations; or
(4) Act as a defense to any enforcement
				action.
c. In the event
				of a subsequent enforcement inspection, the employer is not required to inform
				the compliance officer of the prior consultation visit. The employer is not
				required to provide a copy of the consultant's written report to the compliance
				officer, except to the extent that disclosure of information contained in the
				report is required by
				29 CFR
				1910.1020. During a subsequent enforcement
				action, if Iowa OSHA Enforcement independently determines there is reason to
				believe that the employer failed to correct serious hazards identified during
				the consultation visit, created the same hazards again, or made false
				statements to the bureau of consultation and education in connection with the
				consultation program, Iowa OSHA Enforcement may exercise its authority to
				obtain the consultation report.
d.
				If the employer chooses to provide a copy of the consultant's report to the
				compliance officer, the report may be used to determine the extent to which an
				inspection is required and as a factor in determining proposed penalties. Iowa
				OSHA Enforcement may impose minimal penalties if a consultant previously
				identified a hazard and the employer is complying with the consultant's
				recommendations in good faith.
These rules are intended to implement Iowa Code chapter
				  88.