Legal Issues - Chapter 5

An Administrative Subpoena may be issued whenever records, documents, testimony, or other supporting evidence are needed to complete an inspection or investigation of any matter within AKOSHs authority.

AKOSH has the authority to subpoena documents and witnesses under AS 18.60.083(b) . CSHOs are to consult with the Assistant Chief of Enforcement if a subpoena is needed.

The Division Director has the authority to issue subpoenas and may delegate the authority to the Chief of Enforcement to issue routine administrative subpoenas.

Issuing an administrative subpoena requires the Chief of Enforcement or the Division Director's signature.

• Subpoena Duces Tecum for the production of documents, records, or other physical items for the department to inspect; and
• Subpoena Ad Testificandum to legally require an individual to appear and give a statement regarding an inspection.
• Subpoenas must be clear regarding the items requested and provide the party receiving the subpoena with a reasonable amount of time to comply, to prevent creating an unreasonable burden on the party.

EXAMPLE 5-1: If an employer is refusing to provide employee training records required under 1926.503(b)(1), a subpoena for all employee training records would be inappropriate if fall protection training records are the only item being sought and not all employees are exposed to fall hazards.

EXAMPLE 5-2: If a subpoena is issued to an employee to provide a statement, the subpoena should allow a reasonable amount of time to arrange to provide the testimony.

The Division Director, in consultation with the AAG, may develop subpoenas.

Upon refusal of entry or if there is reason to believe an employer will refuse entry, the CSHO shall follow the procedures in 8 AAC 61.020 . The CSHO shall gather the necessary information and report his or her findings to the Chief of Enforcement, who will notify the Director.

Warrant applications for establishments where consent has been denied for a limited scope inspection (i.e., complaint, referral, accident investigation) shall generally be limited to the specific working conditions or practices forming the basis of the inspection. However, a broad scope warrant may be sought if there is evidence of potentially pervasive violative conditions or if the establishment is on a current list of establishments targeted for a comprehensive inspection.

If the warrant is necessary, the application for the warrant shall contain the following information:

1. Legal name(s) of establishment and address, including City, State, and County.
   (Include site location if different from mailing address.)
2. Identify relevant OSHA standards.
3. Investigative procedures may be required during the proposed inspection, e.g., interviewing employees/witnesses, personal sampling, photographs, audio/videotapes, examination of records, and access to medical records.
4. Documentation supporting the reason for the inspection, including:
5. Affidavit of the Chief of Enforcement stating facts relevant to the inspection;
6. Affidavit of the CSHO attempting to conduct the inspection and inspection number, if assigned, as well as:
   1. A narrative of all actions taken by the CSHO leading up to, during, and after refusal, including:
      1. Relevant Officer Qualifications and case history (assignment of inspection by supervisor)
      2. Full name and title of the person(s) to whom CSHO presented credentials;
      3. Date and time of entry/attempted entry;
      4. Date and time of denial;
      5. Full name and title of person(s) who refused entry;
      6. Stage of denial (entry, opening conference, walkaround, etc.);
      7. Reasons stated for the denial by person(s) refusing entry;
      8. Response, if any, by CSHO to the denial, name, and address (if known) of any witnesses to the denial of entry.
   2. The application for the warrant should also include other relevant documentation, including, but not limited to:
      • A redacted copy of the employee complaint (if applicable)
      • Other pertinent information, such as a description of the workplace, the work processes, the machinery, tools, and materials used, and known hazards and injuries associated with the specific manufacturing process or industry, should also be included.
      • Any information related to past inspections, including copies of previous citations.
      • Any previous requests for inspection warrants. Attach details, if applicable.
      • All completed information related to the current inspection report, including documentation of any observations of violations in plain view discovered prior to denial.
      • If the site to be inspected is a construction site involving work under contract with any state or federal government agency, the agency's nameand the type of work involved shall be included.
7. Specific Warrant Information Based on Inspection Type.

   Document all specific reasons for the selection of the establishment to be inspected, including the proposed scope of the inspection:

   1. Imminent Danger
      1. Description of the alleged imminent danger situation;
      2. Date the information was received and source of information;
      3. Original allegation and copy of typed report, including basis for reasonable expectation of death or serious physical harm and immediacy of danger; and
      4. Whether all current imminent danger investigative procedures have been followed.
   2. Fatality/Catastrophe.

      The OIS FAT/CAT Information should be completed with as much detail as possible.

   3. Complaint or Referral.
      1. Original complaint or referral and copy of typed complaint or referral;
      2. Reasons AKOSH believes that a violation threatening physical harm or imminent danger exists, including possible standards that could be violated if the complaint or referral is credible and representative of workplace conditions;
      3. Whether all current complaint or referral processing procedures have been followed; and
      4. Any additional information pertaining to the evaluation of the complaint or referral.
   4. Programmed.
      1. Targeted safety general industry, construction;
      2. Targeted health; and/or
      3. Special emphasis program--Special Programs, Local Emphasis Program, etc.
   5. Follow-up.
      1. Date of initial inspection;
      2. Details and reasons for the follow-up conducted;
      3. Copies of previous citations which served as the basis for initiating the follow-up;
      4. Copies of settlement agreements and final orders, if applicable; and/or
      5. Previous history of failure to correct, if any.
   6. Monitoring.
      1. Date of original inspection;
      2. Details and reasons for the monitoring inspection;
      3. Copies of previous citations and/or settlement agreements that serve as the basis for the monitoring inspection; and/or
      4. Petition for Modification of Abatement Date (PMA) request, if applicable.
8. Warrant Procedures.

   Where a warrant has been obtained, CSHOs are authorized to conduct the inspection in accordance with its terms. All questions from employers concerning the reasonableness of a compulsory process inspection shall be referred to the Chief of Enforcement.

9. Action Taken Upon Receipt of Warrant (Compulsory Process).
   1. The inspection will normally begin as soon as practical upon receipt of a warrant or from the date authorized by the warrant for initiating the inspection.
   2. Upon completion of the inspection, if the warrant includes a return of service space for entering inspection dates, CSHOs shall complete the return of service on the original warrant, sign and forward it to the Director for appropriate action.
10. Second Warrant.

    Under certain circumstances, a second warrant may be sought to expand an inspection based on a records review or "plain view" observations of other potential violations discovered during a limited scope walkaround.

11. Refused Entry or Interference.
    1. When an apparent refusal to permit entry or inspection is encountered upon presenting the warrant, CSHOs shall specifically inquire whether the employer is refusing to comply with the warrant.
    2. If the employer refuses to comply or consent is not given, CSHOs shall not attempt to inspect at that time and shall leave the premises and contact the Assistant Chief or Chief of Enforcement regarding further action. The Assistant Chief or Chief will contact the appropriate law enforcement entity for assistance in executing the warrant.
    3. CSHOs shall fully document all facts relevant to the refusal (including noting all witnesses to the denial of entry or interference).
    4. The Chief of Enforcement shall then contact the Division Director and the Department of Law, who shall jointly decide the action to be taken.