Chapter 7 - case file preparation and documentation

The CSHO shall obtain available information to complete the OIS Inspection Report and other appropriate forms.

The Inspection Case File shall list the following:

1. Establishment Name;
2. Inspection Number;
3. Additional Citation Mailing Addresses;
4. Names and Addresses of all Organized Employee Groups;
5. Names, Addresses, and Phone Numbers of Authorized Representatives of Employees;
6. Employer Representatives contacted and the extent of their participation in the inspection;
7. CSHO's evaluation of the Employer's Safety and Health System, and if applicable, a discussion of any penalty reduction for good faith;
8. A written narrative containing accurate and concise information about the employer and the worksite;
9. Date the closing conference(s) were held and description of any unusual circumstances encountered;
10. Any other relevant comments/information CSHOs believe may be helpful, based on his/her professional judgment;
11. Names, Addresses, and Phone Numbers of other people contacted during the inspection, such as the police, coroner, attorney, etc.;
12. Names and Job Titles of any individuals who accompanied the CSHO on the inspection;
13. Calculation of the DART rate (at least three full calendar years and the current year);
14. Discussion clearly addressing all items on any applicable Complaint or Referral;
15. Type of Legal Entity, Indicate whether the employer is a corporation, partnership, sole proprietorship, etc. If the employer named is a subsidiary of another firm, indicate that.
16. Coverage Information.

1. A separate OIS Violation Worksheet should normally be completed for each alleged violation. Describe the observed hazardous conditions or practices, including all relevant facts, and all information pertaining to how and/or why a standard is violated. Specifically identify the hazard to which employees have been or could be exposed. Describe the type of injury or illness that the violated standard was designed to prevent in this situation, or note the name and exposure level of any contaminant or harmful physical agent to which employees are, have been, or could be potentially exposed. If employee exposure was not actually observed during the inspection, state the facts on which the determination was made (i.e., tools left inside an unprotected trench) that an employee has been or could have been exposed to safety or health hazard(s).
2. The following information shall be documented:
   1. Explanation of the hazard(s) or hazardous condition(s);
   2. Identification of the machinery or equipment (such as equipment type, manufacturer, model number, serial number);
   3. Specific location of the hazard and employee exposure to the hazard;
   4. Injury or illness is likely to result from exposure to the hazard;
   5. Employee proximity to the hazard and specific measurements taken (describe how measurements were taken, identify the measuring techniques and equipment used, identify those who were present and observed the measurements being made, include calibration dates of equipment used);
   6. For contaminants and physical agents, any additional facts that clarify the nature of employee exposure. A representative number of Material Safety Data Sheets should be collected for hazardous chemicals that employees may potentially be exposed to;
   7. Names, addresses, phone numbers, and job titles for exposed employees;
   8. Approximate duration of time the hazard has existed and frequency of exposure to the hazard;
   9. Employer knowledge;
   10. Any and all facts which establish that the employer actually knew of the hazardous condition, or what reasonable steps the employer failed to take (including regular inspections of the worksite) that could have revealed the presence of the hazardous condition. The mere presence of the employer in the workplace is not sufficient evidence of knowledge. There must be evidence that demonstrates why the employer reasonably could have recognized the presence of the hazardous condition. Avoid relying on conclusory statements such as "reasonable diligence" to establish employer knowledge. See Chapter 8, Knowledge of Hazardous Condition, for additional information.
       • In order to establish that a violation may be potentially classified as willful, facts shall be documented to show either that the employer knew of the applicable legal requirements and intentionally violated them or that the employer showed plain indifference to employee safety or health (See Chapter 8, Willful Violations). For example, document facts that the employer knew that the condition existed and that the employer was required to take additional steps to abate the hazard. Such evidence could include prior AKOSH or OSHA citations, previous warnings by a CSHO, insurance company or city/state inspector regarding the requirements of the standard(s), the employer's familiarity with the standard(s), contract specifications requiring compliance with applicable standards, or warnings by employees or employee safety representatives of the presence of a hazardous condition and what protections are required by AKOSH standards.
       • Additionally, include facts showing that, even if the employer was not consciously or intentionally violating Alaska's occupational safety and health laws, the employer acted with such plain indifference to employee safety that, had the employer been aware of the standard, they would probably not have complied anyway. This type of evidence would include instances where an employer was aware of an employee's exposure to an obviously hazardous condition(s) and made no reasonable effort to eliminate it.
       • Any relevant comments made by the employer or employee during the walkaround or closing conference, including any employer comments regarding why it violated the standard, which may be characterized as admissions of the specific violations described; and
       • Include any other facts that may assist in evaluating the situation or in reconstructing the total inspection picture in preparation for testimony in possible legal actions.
       • Appropriate and consistent abatement dates should be assigned and documented for abatement periods longer than 30 days. The abatement period shall be the shortest interval within which the employer can reasonably be expected to correct the violation. An abatement period should be indicated in the citation as a specific date, not a number of days. When abatement is witnessed by the CSHO during an inspection, the abatement period shall be listed on the citation as "Corrected During Inspection."
       • Establishing the shortest practicable abatement date requires the CSHO to exercise professional judgment. Abatement periods exceeding 30 days are not typically offered, particularly for simple safety violations. Situations may arise, however, especially regarding complex health or program violations, where abatement cannot be completed within 30 days (e.g., ventilation equipment needs to be installed, new parts or equipment needs to be ordered, delivered, and installed, or a process hazard analysis needs to be performed as part of a PSM program). When an initial abatement date is granted that exceeds 30 calendar days, the reason should be documented in the case file.
3. Records obtained during the course of the inspection that the CSHO determines are necessary to support the violations.
4. Violations will be arranged in each case file in descending order of severity, starting with Willful and ending with Other Than Serious. Within each severity category, violations will be numbered sequentially based on the order in which the cited standards appear in the Code of Federal Regulations (CFR).

Category	First Number	Second Number
Willful	1	Based on the CFR Order
Repeat	2
Serious	3
Other Than Serious	4

EXAMPLE: If an inspection contains one Willful violation for fall protection, a Repeat violation for Fall Protection Training, two Serious Citations (one regarding ladder use and one for no written Hazard Communication program), and an Other Than Serious citation for a 300 Log violation, the violations would be numbered and structured as follows:

• 1-1 Willful Fall Protection 1926.501(b)(1)
• 2-1 Repeat Fall Protection Training 1925.501(a)(1)
• 3-1 Serious Ladder use 1926.1053(b)(1)
• 3-2 Serious No HazCom Program 1910.1200(e)(1)
• 4-1 Other Than Serious 1904.32(b)(3)

In addition to the documentation indicated above, CSHOs shall document all relevant information concerning potential exposure(s) to chemical substances or physical agents (including, as appropriate, collection and evaluation of applicable Safety Data Sheets), such as symptoms experienced by employees, duration and frequency of exposures to the hazard, employee interviews, sources of potential health hazards, types of engineering or administrative controls implemented by the employer, and personal protective equipment being provided by the employer and used by employees.

CSHOs shall request and evaluate information on the following aspects of the employer's occupational safety and health system as it relates to the scope of the inspection:

Monitoring.

Medical.

Records Program.

Engineering Controls.

Work Practice and Administrative Controls.

Personal Protective Equipment.

Regulated Areas.

Emergency Action Plan.

Although employers have the burden of proving any affirmative defenses at the time of a hearing, CSHOs must anticipate when an employer is likely to raise an argument supporting such a defense. CSHOs shall consider all potential affirmative defenses and attempt to gather evidence, particularly when an employer makes an assertion that may indicate the need to raise a defense/excuse against the violation(s). CSHOs shall bring all documentation of hazards and facts related to possible affirmative defenses to the attention of the Chief of Enforcement.

The following are explanations of common affirmative defenses.

1. Unpreventable Employee or Supervisory Misconduct or "Isolated Event."
2. To establish this defense in most jurisdictions, employers must show all the following elements:
   • A work rule adequate to prevent the violation;
   • Effective communication of the rule to employees;
   • Methods for discovering violations of work rules;
   • Effective enforcement of rules when violations are discovered;
   • The employee was aware that the infraction was contrary to the employer's rules.
3. CSHOs shall document whether these elements are present, including whether the work rule at issue is consistent with the requirements of the standard addressing the hazardous condition.

   EXAMPLE 7-1: An unguarded table saw is observed. The saw, however, has a guard that is reattached while the CSHO watches. Facts to be documented include:

   • Who removed the guard and why?
   • Did the employer know that the guard had been removed?
   • How long or how often had the saw been used without the guard?
   • Were there any supervisors in the area while the saw was operated without a guard?
   • Did the employer have a work rule that the saw only be operated with the guard on?
   • How was the work rule communicated to employees?
   • Did the employer monitor compliance with the rule?
   • How was the work rule enforced by the employer when it found noncompliance?
4. Impossibility/Infeasibility of Compliance.

   Compliance with the requirements of a standard is impossible or would prevent performance of required work, and the employer took reasonable alternative steps to protect employees, or there are no alternative means of employee protection available.

   EXAMPLE 7-2: An unguarded table saw is observed. The employer states that a guard would interfere with the nature of the work. Facts to be documented include:

   • Would a guard make performance of the work impossible or merely more difficult?
   • Could a guard be used some of the time or for some of the operations?
   • Has the employer attempted to use a guard?
   • Has the employer considered any alternative means of avoiding or reducing the hazard?
5. Greater Hazard.

   Compliance with a standard would result in a greater hazard(s) to employees than would noncompliance, and the employer has taken reasonable alternative protective measures, or there are no alternative means of employee protection. Additionally, an application for a variance would be inappropriate.

   EXAMPLE 7-3: The employer indicates that a saw guard had been removed because it caused the operator to be struck in the face by particles thrown from the saw. Facts to be documented include:

   • Was the guard initially properly installed and used?
   • Would a different type of guard eliminate the problem?
   • How often was the operator struck by particles, and what kind of injuries resulted?
   • Would personal protective equipment, such as safety glasses or a face shield, worn by the employee solve the problem?
   • Was the operator's work practice causing the problem, and did the employer attempt to correct the problem?
   • Was a variance requested?

Interview statements of employees or other individuals shall be obtained to adequately document a potential violation. While video and/or audio recording is strongly recommended to ensure the accuracy of statements, witness statements shall normally be in writing, and the individual shall be encouraged to sign and date the statement.

During management interviews, CSHOs are encouraged to take verbatim, contemporaneous notes whenever possible as these tend to be more credible than later general recollections.

1. There is an actual or potential controversy as to any material facts concerning a violation;
2. A conflict or difference among employee statements as to the facts arises;
3. There is a potential willful or repeated violation; and,
4. When attempting to determine if potential violations existed at the time of the accident (for accident investigations).

Interview statements shall normally be written in the first person and, when feasible, in the language of the individual. Translation services are available to AKOSH through a third-party service. The wording of the statement shall be clear and understandable to the individual and shall reflect only the information discussed during the interview. The individual shall initial any changes or corrections to the statement; otherwise, the statement shall not be modified, added to, or altered in any way. The statement shall end with the wording: "I have read the above, or the statement has been read to me, and it is true to the best of my knowledge." Where appropriate, the statement shall also include the following: "I request that my statement be held confidential to the extent allowed by law." Only the individual interviewed may later waive the confidentiality of the statement. The individual shall sign and date the interview statement, and the CSHO shall sign it as a witness.

If the individual refuses to sign the statement, the CSHO shall note such refusal on the statement. Statements shall be read to the individual, and an attempt shall be made to obtain an agreement. A note to this effect shall be documented in the case file. Recorded statements shall be transcribed whenever possible.

Interview statements may be recorded in video or audio format, with the subject's consent. The statement shall be reduced to writing in egregious, fatality/catastrophe, willful, repeated, failure to abate, and other significant cases so that it may be signed. CSHOs are encouraged to produce the written statement for correction and signature as soon as possible and identify the transcriber.

When necessary to document or develop investigative facts, a management official or other individual may be subject to an administrative deposition.

NOTE: See Chapter 6, Interviews of Non-Managerial Employees, for additional guidance regarding interviews of non-managerial employees.

AS 18.60.091(c) provides. "...A citation may not be issued for a particular violation under this section after the expiration of 180 days following the discovery of the violation by the department or correction of a violation." Accordingly, a citation shall not be issued where any alleged violation last occurred six months or more prior to the date on which the citation is discovered by AKOSH or abated by the employer as provided by AS 18.60.093(a). Where the actions or omissions of the employer concealed the existence of the violation, the six-month issuance limitation is tolled until such time that AKOSH learns or could have learned of the violation. The Assistant Attorney General shall be consulted in such cases. In some cases, particularly those involving fatalities or other incidents, the six-month period begins to run from the date of the incident, not from the opening conference date.

1. Citations must be sent by certified mail or hand-delivered to the employer or an appropriate agent of the employer. A signed receipt shall be obtained whenever possible, and the delivery circumstances shall be documented in the contact log.
2. Citations shall be mailed to employee representatives after the certified mail receipt card is received by AKOSH. Citations shall also be mailed to any employee upon request, without the need for a written request under the Alaska Public Records Act. In the event of a fatality, the family of the victim shall be provided with a copy of the citations at no charge, without the need for a written request.

1. Amendments/Withdrawal Justification.

   Amendments to, or withdrawal of, a citation shall be made when information is presented to the Chief of Enforcement, which indicates a need for such action, and may include administrative or technical errors such as:

   1. Citation of an incorrect standard;
   2. Incorrect or incomplete description of the alleged violation;
   3. Additional facts not available to the CSHO at the time of the inspection establish a valid affirmative defense;
   4. Additional facts not available to the CSHO at the time of the inspection establish there was no employee exposure to the hazard; or
   5. Additional facts establish a need for modification of the abatement date or the penalty, or reclassification of citation items.
2. When Amendment/Withdrawal is not Appropriate.

   Amendments to, or withdrawal of, a citation shall not be made by the Chief of Enforcement for any of the following:

   1. Timely Notice of Contest received;
   2. The 15 working days for filing a Notice of Contest has expired and the citation has become a Final Order; or
   3. Employee representatives were not given the opportunity to present their views (unless the revision involves only an administrative or technical error).

The following procedures apply whenever citations are amended or withdrawn:

NOTE: The instructions contained in this section, with appropriate modifications, are also applicable to the amendment of the Notification of Failure to Abate Alleged Violation.

1. Withdrawal of, or modifications to, the citation and notification of penalty shall normally be accomplished by means of Informal or Formal Settlement Agreements.
2. In exceptional circumstances, the Assistant Chief of Enforcement, the Chief of Enforcement, or the Director of Labor Standards and Safety may initiate a change to a citation and notification of penalty without holding an informal conference. If proposed amendments to citation items (individual violations) change the original classification of the items, such as from willful to repeated, the original items shall be withdrawn, and the new, appropriate items will be issued. The amended Citation and Notification of Penalty Form shall clearly indicate that the employer is obligated under Alaska's occupational safety and health laws to post the amendment to the citation along with the original citation, until the amended violation has been corrected, or for three working days, whichever is longer.
3. The 15 working day contest period for the amended portions of the citation will begin on the day following the day of receipt of the amended Citation and Notification of Penalty.
4. The contest period is not extended for the unamended portions of the original citation. A copy of the original citation shall be attached to the amended Citation and Notification of Penalty Form when the amended form is forwarded to the employer.
5. When circumstances warrant, the Chief of Enforcement may withdraw a citation and notification of penalty in its entirety. Justification for the withdrawal must be noted in the case file. A letter withdrawing the Citation and Notification of Penalty shall be sent to the employer. The letter, signed by the Chief of Enforcement, shall refer to the original citation and notification of penalty, state that they are withdrawn, and direct that the employer posts the letter for three working days in the same location(s) where the original citation was posted. When applicable, a copy of the letter shall also be sent to the employee representative(s) and/or complainant.

1. Inspection records are any record made by a CSHO that concerns, relates to, or is part of any inspection, or is a part of the performance of any official duty.
2. All official forms and notes constituting the basic documentation of a case must be part of the case file. All original field notes are part of the inspection record and shall be maintained in the file. Inspection records also include photographs, videos, and audio recordings. Inspection records are the property of the State of Alaska and not the property of the CSHO and are not to be retained or used for any private purpose.

The information obtained during inspections is confidential but may be disclosable or non-disclosable under criteria established by the Alaska Public Records Act.

Requests for the release of inspection information shall be directed to the Chief of Enforcement.

All requests shall be handled in accordance with the Alaska Public Records Act (APRA), as contained in AS 40.25.100- AS 40.25.350.

1. Any classified or trade secret information and/or personal knowledge of such information by agency personnel shall be handled in accordance with AKOSH regulations. Trade Secrets are matters that are not generally known to the public. A trade secret, as referenced in AS 18.60.099, includes information concerning or related to processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount, or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association.
2. It is essential to the effective enforcement of AKOSH laws that CSHOs and all AKOSH personnel preserve the confidentiality of all information and investigations that might reveal a trade secret. When the employer identifies an operation or condition as a trade secret, it shall be treated as such (unless, after following proper procedures, including consulting with the Attorney General's Office, AKOSH determines that the matter is not a trade secret). Information obtained in such areas, including all photographs, videos, and documentation forms, shall be labeled:

   "CONFIDENTIAL TRADE SECRET INFORMATION"

3. Under AS 18.60.099, all information reported to or obtained by CSHOs in connection with any inspection or other activity that contains or may reveal a trade secret shall be kept confidential. Such information shall not be disclosed except to other AKOSH officials concerned with the enforcement of Alaska's safety and health laws or, when relevant, in any proceeding under those laws.
4. If the employer objects to the taking of photographs and/or videos because trade secrets would or may be disclosed, CSHOs should advise employers of the protection against such disclosure afforded by AS 18.60.099. If the employer still objects, CSHOs shall contact the Assistant Chief of Enforcement for guidance.