SECTION 380:50-7-1. Violations

(a)   The DOL may issue violations to persons performing work under these rules. Serious violations may be assessed against a Contractor/Supervisor, Worker, Inspector, Management Planner or Project Designer if they perform an act in violation of these Rules and the standards adopted herein, or if they fail to perform an act required by the Rules, when such an act has the potential to cause serious bodily harm, property damage, or environmental damage. Non-serious violations may be assessed for violations of procedural rules.

(b)   If the specified number of violations are found to exist, the Commissioner of Labor shall have the authority to suspend, revoke or deny the renewal of any license held by that specific licensee.

(c)   A record of violations will be kept by the DOL to review performance on abatement jobs.

(1)   This record will be used by the Commissioner to review Contractors' and Workers' performances before renewal of asbestos abatement licenses.

(2)   Violations will be removed from the record after a period of five years unless settlement is reached by a civil action.

(d)   In order to be consistent in the application of the above stated provisions of the Act and the Rules, the following policies will be applied to the issuance of violations and the review of violations relative to any disciplinary act taken against any Contractor/Supervisor, Worker, Inspector, Management Planner or Project Designer by the Oklahoma State Department of Labor (DOL).

(1)   Violations may be issued by DOL/Asbestos Inspectors during the performance of on-site inspections when those violations are directly observed by the Inspectors, or by the Director of the Asbestos Division when Rules violations are discovered during project review. If, during the course of an inspection, an inspector observes a violation that creates an imminent threat to the health or safety of abatement workers, or to public health or safety, the inspector may immediately issue a cease and desist order on the project or facility. Such order will take the form of a "red tag." Following the issuance of a "red tag," no person shall be allowed into the tagged area unless accompanied by a Department of Labor asbestos inspector.

(2)   Upon issuance of a serious violation(s), the entity in violation shall have an opportunity for an administrative hearing, at which time the entity may protest the validity of the violation(s), or appeal to have the serious violation(s) reduced in accordance with Rule380:50-7-1(c).

(A)   Such hearing shall be held within 3 working days if an asbestos abatement project is shut down because of the violation(s) or within 10 working days if the project is allowed to continue.

(B)   Such hearing shall be before a DOL appointed hearing officer in accordance with the Oklahoma Administrative Procedures Act, 75 O.S. § 309 et seq.

(C)   Violations of record will be those violations which have been upheld by a hearing officer after a hearing held by the Department of Labor for such purposes, in accordance with DOL rules and the Oklahoma Administrative Procedures Act, or those which are assessed by agreement of the parties.

(3)   For purposes of disciplinary action, each five non-serious violations of record shall be considered by the DOL to be equivalent to one serious violation of record.

(4)   At any time an Asbestos Abatement Contractor, Management Planner, Inspector, or Project Designer has accumulated five or more serious violations of record, (three for Workers or Supervisors) or serious violations of record equal in number to twenty percent of the number of separate areas of all asbestos abatement projects undertaken within the previous two years, whichever is greater, then the licensee in question will be subject to disciplinary action in accordance with 40 O.S. § 454. For the purpose of determining the number of separate containment areas undertaken by a Contractor, any Operation and Maintenance (O&M) program undertaken by a Contractor for a single owner at a single site, shall be considered to be equivalent to one containment area.

(5)   At any time an Asbestos Contractor has accumulated two or more NESHAP Notices of Violation, the Contractor will be subject to disciplinary action in accordance with 40 O.S. § 454.

(6)   At such time that a Contractor has accumulated the specified number of violations to be subject to disciplinary action in accordance with these Rules, the Contractor will be notified by certified mail, and afforded the opportunity for a hearing in accordance with the Administrative Procedures Act.

(7)   Factors to be taken into account by the DOL when determining what, if any disciplinary action will be taken against a Contractor will be:

(A)   The severity of the violations in terms of threat or potential threat to Worker or public health and/or safety, and to the environment.

(B)   The steps which have been taken by the Contractor to avoid a repetition of the violations.

(8)   In cases where a Contractor's serious violation was caused by a Worker or Supervisor, DOL may issue violations against all persons involved, in addition to the Contractor. Issuance of a violation to a Worker does not relieve the Contractor of liability for any violations, and the consequences thereof.

[Source: Amended at 9 Ok Reg 3309, eff 7-27-92; Amended at 14 Ok Reg 2974, eff 7-13-97; Amended at 15 Ok Reg 3247, eff 7-13-98; Amended at 17 Ok Reg 3157, eff 7-27-00]