803 KAR 2:070. Inspection; procedure.
RELATES TO: KRS 338.101
STATUTORY AUTHORITY: KRS Chapter 13A
NECESSITY, FUNCTION, AND CONFORMITY:
Pursuant to the authority granted the Commissioner of the Department of
Workplace Standards by KRS 338.121, the following rules and administrative
regulations are adopted, governing the authority to conduct inspections. The
function of the administrative regulation is to identify this authority for
conducting occupational safety and health inspections and the procedure to be
followed by the compliance officers during the conduct of the inspections.
Section 1. Authority for Inspections. (1)
Compliance Safety and Health Officers of the Division of Occupational Safety
and Health Compliance are authorized to enter without delay and at reasonable
times any factory, plant, establishment, construction site, or other area,
workplace or environment where work is performed by an employee of an employer;
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; to question privately any employer,
owner, operator, agent or employee; and to review records required by KRS
Chapter 338 and administrative regulations issued pursuant thereto, and other
records which are directly related to the purpose of the inspection.
(2) Prior to inspecting areas containing
information which is classified by an agency of the United States Government,
in the interest of national security, compliance safety and health officers
shall have obtained the appropriate security clearance.
Section 2. Objection to Inspection. Upon
a refusal to permit a compliance safety and health officer, in the exercise of
his official duties, to enter without delay and at reasonable times any place
of employment or any place therein, to inspect, to review records, or to
question any employer, owner, operator, agent, or employee, in accordance with
this administrative regulation, or to permit a representative of employees to
accompany the compliance safety and health officer during the physical
inspection of any workplace in accordance with 803 KAR 2:110, the compliance
safety and health officer shall terminate the inspection or confine the
inspection to other areas, conditions, structures, machines, apparatus,
devices, equipment, materials, records, or interviews concerning which no
objection is raised. The compliance safety and health officer shall endeavor to
ascertain the reason for such refusal, and he shall immediately report the
refusal and the reason therefore to the Commissioner of the Department of
Workplace Standards. The commissioner shall promptly take appropriate action
including compulsory process, if necessary.
Section 3. Entry not a Waiver. Any
permission to enter, inspect, review records, or question any person, shall not
imply or be conditioned upon a waiver of any cause of action, citation, or
penalty under KRS Chapter 338. Compliance safety and health officers are not authorized
to grant any such waiver.
Section 4. Conduct of Inspections. (1)
Subject to the provisions herein, inspections shall take place at such times
and in such places of employment as the Commissioner of the Department of
Workplace Standards or the compliance safety and health officer may direct. At
the beginning of an inspection, compliance safety and health officers shall
present their credentials to the owner, operator, or agent in charge at the establishment;
explain the nature and purpose of the inspection; and indicate generally the
scope of the inspection and the records specified herein which they wish to review.
However, such designation of records shall not preclude access to additional
records specified herein.
(2) Compliance safety and health officers
shall have authority to take environmental samples and to take or obtain
photographs related to the purpose of the inspection, employ other reasonable
investigative techniques, and question privately any employer, owner, operator,
agent or employee of an establishment. As used herein, the term "employ
other reasonable investigative techniques" includes, but is not limited
to, the use of devices to measure employee exposures and the attachment of
personal sampling equipment such as dosimeters, pumps, badges, and other
similar devices to employees in order to monitor their exposures.
(3) In taking photographs and samples,
compliance safety and health officers shall take reasonable precautions to
ensure that such actions with flash, spark-producing, or other equipment would
not be hazardous. Compliance safety and health officers shall comply with all
employer safety and health rules and practices at the establishment being
inspected, and they shall wear and use appropriate protective clothing and
equipment.
(4) The conduct of inspection shall be
such as to preclude unreasonable disruption of the operations of the employer's
establishment.
(5) At the conclusion of an inspection,
the compliance safety and health officer shall confer with the employer or his
representative and informally advise him of any apparent safety and health
violations disclosed by the inspection. During such conference, the employer
shall be afforded an opportunity to bring to the attention of the compliance
safety and health officer any pertinent information regarding conditions in the
workplace.
(6) Inspection shall be conducted in
accordance with the requirements of this section. (6 Ky.R. 210; eff. 11-7-79;
Am. 8 Ky.R. 1449; eff. 7-7-82; 10 Ky.R. 308; eff. 9-7-83; 652; eff. 12-2-83;
TAm eff. 8-9-2007; TAm eff. 9-8-2011.)