OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

Subject: OSHA Response to Significant Events of Potentially Catastrophic Consequence

A. Purpose. It is OSHA policy to respond as quickly as possible to significant events which may affect the health or safety of employees.

1. This response requires the on-site presence of top agency officials as well as compliance personnel. Additionally, the agency is committed to establishing effective and on-going lines of communication with all affected parties.

2. It is OSHA's policy to ensure that each significant event is thoroughly and promptly investigated and that all necessary resources be devoted to such investigations.

3. The objective of an investigation conducted pursuant to this instruction is to determine the likely cause of the event.

4. For purposes of this instruction, a "significant event" is defined as an occupationally related incident involving multiple fatalities, extensive injuries, massive toxic exposures, extensive property damage, or one which presents potential worker injury and generates widespread media interest. Area Office response in the event of a natural disaster is not addressed in this instruction.

B. Scope. This instruction applies OSHA-wide.

C. References.

1. OSHA Instruction CPL 2.45B, June 15, 1989, Revised Field Operations Manual (FOM).

2. OSHA Instruction CPL 2.80, October 1, 1990, Handling of Cases to be Proposed for Violation-By-Violation Penalties.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

3. OSHA Instruction CPL 2.89, Incorporating the Family of Accident or Illness Victims into the Fatality Investigation.

4. OSHA Instruction STP 2.22A, May 14, 1986, State Plan Policies and Procedures Manual.

D. Action. Regional Administrators and Area Directors shall ensure that the policies and procedures explained in this instruction are implemented by all compliance personnel.

E. Federal Program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:

1. Ensure that a copy of this change is promptly forwarded to each State designee, using a format consistent with the Plan Change Two-way Memorandum in Appendix P, OSHA Instruction STP 2.22A, CH-2.

2. Explain the technical content of this change to the State designees as requested.

3. Ensure that State designees are asked to acknowledge receipt of this Federal program change in writing to the Regional Administrator as soon as the State's intention is known, but not later than 70 calendar days after the date of issuance (10 days for mailing and 60 days for response). This acknowledgment must include a description either of the State's plan to implement the change or of the reasons why this change should not apply to that State.

4. Ensure that the State designees submit a plan supplement, in accordance with OSHA Instruction STP 2.22A, CH-3, as appropriate, following the established schedule that is agreed upon by the State and Regional Administrator to submit non-Field Operations Manual/Technical Manual Federal program changes.

a. If a State intends to follow OSHA's policy described in this instruction, the State must submit either a revised version of this instruction, adapted as appropriate to reference State law, regulations and administrative structure, or a cover sheet

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

describing how references in this instruction correspond to the State's structure. The State's acknowledgment of the Plan Change Two- way Memorandum may fulfill the plan supplement requirement if the appropriate documentation is provided.

b. If the State adopts an alternative to Federal guidelines, the State's submission must identify and provide a rationale for all substantial differences from Federal guidelines to allow OSHA to judge whether a different State procedure is as effective as comparable Federal guidelines.

5. Advise the State designees that, in implementing the State policy, they are encouraged to follow the investigation procedures in section G. of this instruction.

6. Advise the State designees that they may consult with the OSHA Regional Office for technical assistance and questions relating to procedures for response to significant events as defined in paragraph A.4.

7. Review policies, instructions and guidelines issued by the State to determine that this change has been communicated to State personnel.

8. Take the following actions when a significant event (as defined in paragraph A.4.) occurs in a State:

a. Offer technical assistance to the State designee, including the services of OSHA's Directorate of Technical Support, Office of Construction and Engineering, and other Federal agencies. Outside consultants may also be offered if funding is available.

b. Send a Federal monitor to the site to obtain information about the significant event, to provide appropriate technical assistance, to serve as liaison with the Region and the Assistant Secretary, and to monitor the State's response.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

c. Notify the Director, Office of Field Programs, and the Director, Directorate of Federal-State Operations, of the event and provide periodic updates.

d. Advise the Assistant Secretary whether, based on monitoring information, the State has sufficient resources and expertise to adequately respond to the significant event.

F. Background.

1. OSHA's investigation of workplace conditions which cause, or could cause, catastrophes resulting in multiple loss of life and significant property damage is the agency's highest enforcement priority. Accordingly, OSHA must ensure that its efforts are well focused during these complex investigations.

2. OSHA has learned from its recent investigations of such catastrophic events as the L'Ambiance Plaza building collapse and the Phillips 66 Company explosion that there are common elements present in all such successful investigations that ensure their efficiency and effectiveness. This instruction has been developed to assist OSHA's field personnel in the orderly investigation of these unpredictable events.

3. Significant events of potentially catastrophic consequences may also be addressed by elements of the National Contingency Plan (NCP) (40 CFR 30), the basic rules for Federal emergency planning, preparation and coordination. The NCP (Section 300.120) provides for an On-Scene Coordinator (OSC) who is responsible for directing response efforts and coordinating all other Federal efforts at the emergency scene. The EPA usually provides the OSC for emergencies on land while the Coast Guard provides the OSC for emergencies on water. The NCP also establishes the National Response Team (NRT), the Regional Response Teams (RRT) and charges these groups with responsibility for emergency planning, preparation, and response. The NCP names OSHA as a member of the NRT and states that OSHA "on request" will provide advice and technical assistance to NRT/RRT agencies during emergencies. (See Section

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

300.175.) Technical assistance may include review of site safety plans and work practices: assistance with exposure monitoring, providing MSDS's, giving advice on personal protective equipment, and help with compliance questions. The NCP gives OSHA a limited role during catastrophic events and it has been OSHA's policy not to engage in activities that would have the effect of impeding the emergency response.

4. The OSH Act requires that OSHA respond to catastrophic events, whether or not subject to the NCP. OSHA must be an active and forceful protector of employee safety and health during the clean-up, removal, storage and investigation phases of these incidents, while maintaining a visible, but limited role during the initial response phase. Catastrophic events are usually handled at the State and local level where the mayor, the local fire and police departments and perhaps the governor are in charge. When a Federal presence is warranted, the preemption of local authorities may generate dissension or hostility which are counter-productive to the investigation. Communication and coordination among Federal and local agencies during their response to catastrophic events becomes crucial for operational as well as political considerations.

G. Procedures. In the investigation of significant events, the policies and procedures given in the FOM, Chapter VIII, should be followed, except as identified in this instruction.

1. Preparation for Investigations of Significant Events.

a. Training.

(1) All OSHA compliance officers shall be trained in the basic elements of this instruction within 90 days of its publication. Refresher training on the procedures contained herein will be provided at least annually.

(a) It is anticipated that Regional training provided pursuant to this

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instruction will include a mock catastrophic accident investigation response and investigation plan development.

(b) Training shall also provide an overview of OSHA's activities pursuant to the NCP and an overview of RRT activities and interagency coordination.

(2) The Regional Administrator shall also ensure that compliance safety and health officers (CSHO's) designated as specialists pursuant to 29 CFR 1910.120 receive training or demonstrate competence in the area of the specialization at least annually.

(3) Individuals with specialized skills or experience may expedite the investigative process. Therefore, Regional Administrators shall ensure that a regional skills/expertise profile of regional personnel be maintained as a reference for selecting staff for investigation of significant events. The list should include CSHO's with advanced training; such as, hazardous waste operations and emergency response, chemical industry emphasis program and construction courses involving training on catastrophic potential.

b. Resources.

(1) Regional Administrators shall ensure that Area Offices maintain the full complement of equipment necessary to investigate the hazards commonly found in the workplace. In addition, a contingency plan shall be developed to ensure that specialized technical equipment within the Region can be provided on-site at a significant event within 24 hours.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(2) Because equipment and supplies which may be necessary for an accident investigation are stored at the Area Office, Area Directors shall ensure that supervisors have ready access to the Area Office during off-duty hours.

(3) Regional Administrators shall ensure that adequate personal protective equipment for CSHO's is available.

(a) Each CSHO shall be trained in the proper care, use and limitations of the personal protective equipment (PPE).

(b) If additional PPE is necessary, it must be obtained prior to exposure. Under no circumstances shall a CSHO be unprotected from any hazard encountered during the course of the investigation.

(4) The Regional Administrator shall determine the availability of qualified consultants for the various types of anticipated events. A listing of consultants and their specialties shall be maintained and updated annually. Preliminary contact with these consultants shall include discussion of items such as expertise, cost, availability, confidentiality, etc.

(5) Availability and expertise of testing laboratories shall also be identified.

(6) Regional utilization of the expertise of OSHA's Office of Construction and Engineering or Directorate of Technical Support should be coordinated through the Office of Field Programs as should requests for support from other off-site Federal agencies such as National Institute of Standards and Technology,

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National Institute for Occupational Safety and Health (NIOSH), Environmental Protection Agency (EPA), and Mine Safety and Health Administration (MSHA).

2. Initial Response/Verification.

a. OSHA's policy is to respond to significant events as quickly as possible; therefore, off duty telephone numbers for the following Regional Office personnel shall be maintained and available for use by the Area Director 24 hours a day:

(1) Regional Administrator (RA). (2) Deputy Regional Administrator (DRA).

(3) Assistant Regional Administrator (ARA) for FSO.

(5) ARA for Training, Education, Consultation and Federal Agency Programs.

(6) Management Officer.

(7) Labor Liaison.

(8) Regional Information and Public Affairs Officer (OIPA).

b. Notices of significant events can be received from many sources. Regardless of the source of the notices, certain actions must be taken to ensure that an inspection team will be adequately prepared.

(1) If the initial report of an incident is received from the employer, the person receiving the report shall obtain all the information required to complete the OSHA-36, Fatality/Catastrophe Report, if

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

appropriate. In addition to the information contained in the OSHA-36, the person receiving the report shall attempt to obtain the following information:

(a) Current status of the situation (i.e., is a continuing hazard present);

(b) What the company is doing to protect employees still on the site;

(c) Area or location of incident in relation to neighboring plants, storage areas, or residential areas; and

(d) Other governmental agencies on the site including the identification of the "lead" agency (i.e., EPA, fire department, etc.).

(2) If the initial report is received from a source other than the employer, the person receiving the report shall attempt to obtain as much of the above information as possible:

(a) If the Area Director feels that additional information is necessary to ascertain the occurrence of a significant event, the employer shall be contacted. Contacting the employer in this situation constitutes advance notice, and the FOM, Chapter III, C., applies.

(b) If the Area Director is unable to obtain all the information needed, other sources shall be contacted. This includes police and fire departments, hospitals, television or radio stations, newspapers, or other governmental agencies.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(c) Immediately upon receipt of information from any reliable source that a significant event has occurred, the Area Director shall dispatch a CSHO and/or supervisor to the site to obtain information and establish an agency presence.

1 The person(s) dispatched shall have all appropriate PPE and, depending upon circumstances, may or may not begin an investigation at this time and may not necessarily be assigned to any subsequent inspection.

2 This individual's primary function is to gather preliminary information regarding the incident which will be used to assess the need for further OSHA involvement.

(d) The Area Director shall notify the Regional Administrator as soon as possible of any indication of the occurrence of any catastrophic event.

(e) Immediately upon receipt of clear information, either from dispatched OSHA personnel or from press reports, the Area Director shall notify the Regional Administrator of the event and report as much of the following information as possible:

1 Location of accident including county and Zip Code;

2 Company or companies involved and type of business;

3 Type of incident (structural collapse, chemical release, etc.);

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

5 Number of persons killed, injured, or unaccounted for;

7 Whether an agency representative is on-site, or enroute;

8 Person(s)/agency(ies) in control of site;

9 Other organizations/agencies on site;

10 Telephone numbers of all parties on site;

11 Other significant information and sources of such information.

(e) Notification of the Regional Administrator or alternate will be attempted regardless of the time the Area Director receives clear information concerning the incident. Regional Administrator notification should not be delayed for details from the site if there is significant national news media coverage of the incident.

(f) The Regional Administrator at the time of this initial report will advise the Area Director of the need to implement the procedures contained in this instruction.

(g) The Regional Administrator or alternate is responsible for notifying the National Office of any significant event. The Regional Administrator and his staff shall have available at all times, the home telephone numbers of the following personnel:

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

1 Assistant Secretary for OSHA and Deputy Assistant Secretaries.

2 Director, Office of Field Programs.

3 Director, Directorate of Compliance Programs.

4 Deputy Regional Administrator, Assistant Regional Administrators, and the Administrative Officer.

6 Regional Solicitor and Assistant Solicitor.

7 Regional Officer of Information and Public Affairs.

(h) Immediately after being briefed by the Area Director the Regional Administrator will attempt to notify the Director, Office of Field Programs (OFP). If unable to reach the Director, OFP, the Regional Administrator will attempt to notify a Deputy Assistant Secretary.

(i) The Area Director, upon verification of the magnitude of the event, shall assess the need for a team investigation of the incident. Procedures outlined in paragraph G.8. of this instruction shall be followed if a team approach is warranted.

3. Initial On-Site Investigation Activities.

a. Upon arrival at the incident scene, the OSHA representative (CSHO or Supervisor) dispatched by the Area Director shall establish contact with the employer and the on scene Incident

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

Commander as soon as possible. For incidents subject to the NCP, the OSHA representative shall also contact the Federal on scene coordinator and provide technical assistance as appropriate. The opening conference may be delayed only if management is engaged in rescue or emergency response activity.

(NOTE: Reference is made in paragraphs G.3. and G.7 to an on-site OSHA representative should not be confused with the Inspection Team Leader whose duties are described in paragraph G.8. The OSHA representative initially dispatched to the scene by the Area Director will not necessarily become a member or the leader of the inspection team once the comprehensive investigation begins.)

b. The OSHA representative first on the scene shall use a video camera to document all characteristics of the event. Continued extensive use of the video camera is recommended throughout the initial stages of the investigation since conditions can change rapidly in such emergency situations. This documentation may later prove invaluable in determining the cause of the accident. A team member shall provide a voice-over narrative to describe what is being taped as the videotape is recorded. Use of audio tape recorders early in the investigation is also encouraged. Audio tapes may be transcribed once the site is stabilized.

c. During emergency response activities the team leader shall be available to provide assistance to responders through consultation with the on scene Incident Commander or designee. There may be safety and/or health concerns about entry into the accident area, and therefore, changes in the accident scene may be necessary in order to make the area safe. Any changes shall be carefully documented.

d. If terrorist or criminal activity is suspected, the Area Director shall make every effort to ensure the security of OSHA personnel. The

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

Area Director shall contact the Federal Bureau of Investigation and/or the Bureau of Alcohol, Tobacco and Firearms with pertinent information as soon as possible.

4. OSHA'S Role in Ensuring Protection of Emergency Responders.

-Reserved-

5. Coordination of OSHA Activities with Other On-Site Authorities.

a. Response of OSHA personnel to emergency situations requires careful consideration due to the following factors:

(1) State and/or local authorities have legislated roles in providing emergency response to ensure protection of lives and property.

(a) The importance of OSHA's coordination and cooperation with and technical assistance to these authorities during the initial phases of OSHA's on-site activity cannot be overemphasized.

(b) OSHA can often utilize reciprocal support from local and/or State authorities to eliminate the necessity for OSHA legal section in ensuring site and evidence control.

(2) The presence of on-site OSHA personnel, if not properly managed, could complicate rescue operations, clean-up, or other emergency response activities.

(3) OSHA personnel are not, in general, specifically trained or experienced in directing emergency response or serving as the Incident Commander, therefore;

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(a) Only those CSHO's who have received special training in emergency response including advanced respiator use may engage in on-site consultation activities regarding respiratory protection. Consultation shall be through the Incident Commander, normally through the safety official.

(b) All inspection duties during this phase of the investigation must be performed by compliance officers who have successfully completed all OSHA required training courses or their equivalent as outlined in 29 CFR 1910.120(q).

(c) If no trained compliance officers are available, the Area Director shall consult with the Regional Office to obtain personnel with appropriate training.

b. For significant events covered by the NCP, other governmental agencies; namely, Environmental Protection Agency (EPA), Nuclear Regulatory Commission (NRC), U.S. Army Corps of Engineers, or the Coast Guard may exercise management and control in emergency response and hazardous waste site activities.

(1) Where necessary, the Area Director shall consult with the Regional Office to determine if the spill, accident, or emergency situation in question falls within the specific authority of another Federal Government agency.

(2) If the Interagency Regional Response Team is activated by the EPA or the Coast Guard, all OSHA communication and coordination will go through OSHA's representative, to give technical assistance to the Incident Commander, to avoid further loss of life or property damage.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

6. CSHO Protection During Initial Phases of the Investigation.

a. The paramount concern addressed by this section is the protection of compliance officers. No enforcement action, or accident investigation activity is so important as to place the life or health of the compliance officer in danger.

b. During the initial phases of OSHA's response to a significant event, OSHA personnel may encounter hazardous conditions which present a significant risk to their safety and health. Among the potential hazards that may be encountered are: highly toxic atmospheric and surface contamination, including carcinogens, the identity and concentration of which may not be known; explosive or corrosive atmospheres; confined spaces; and the potential for spontaneous generation of atmospheres immediately dangerous to life and health.

c. The team leader shall ensure that the following precautions are taken:

(1) Prior to entering a potentially hazardous area at the incident site, determine if any of the following prohibited entry categories may be encountered: (a) Explosive substances are present or flammable substances are present in concentrations exceeding 10% of the lower explosive level (LEL).

(c) Potentially hazardous unidentified substances are present, preventing an adequate determination of precautions for the safety or health of the CSHO.

(d) Hazardous equipment and/or mechanical devices are operating and cannot be shut off and locked out, or pipelines cannot be isolated and/or shut off.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(e) Adequate PPE is not available for protection against the contaminant or biohazard present or CSHO's are not fully trained in use of the PPE.

(f) Ionizing or non-ionizing radiation is present at levels which would result in exposures of OSHA personnel exceeding permissible exposure levels.

(g) Entry of pressurized chambers where decompression facilities are not available on-site.

(h) Presence of, or high probability of rapid generation of, atmospheres immediately dangerous to life and health.

(i) Structure or excavation is in danger of collapse or cave-in.

(j) Decontamination equipment is not available.

(2) If any of the above conditions exist or is likely to occur during the course of an inspection, the Team Leader shall refer the particulars of the situation to the Area Director. Entry into the hazardous area is prohibited unless entry is essential to the investigation and approval is granted by the Area Director.

(3) Where necessary, the Area Director shall discuss the hazardous conditions reported by the Team Leader with the Assistant Regional Administrator for Technical Support, prior to determining an appropriate course of action.

(4) No compliance officers shall enter any area where Level A protection is required without specific approval by the Regional Administrator.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(5) Inspection activity must be carefully planned to minimize the on-site time required, thus reducing potential exposure time.

7. Site Control/Coordination

a. OSHA must get to the scene of the catastrophe as soon as possible after it has occurred.

(1) The OSHA representative on-site (see G.8.) shall ensure that the following pre- inspection actions are accomplished:

(a) Assess the extent of damage and personal injury;

(b) Establish appropriate security and isolation of the area involved.

(c) Obtain the confidence and cooperation of company and other response officials involved, especially the on scene Incident Commander, in order to proceed in an orderly and efficient manner.

(e) Begin documenting (videotaping or sketching and photographing when a video camera is not available) the accident scene.

(f) Develop protocol for conducting the investigation.

(g) Identify all potential witnesses to the accident.

(h) Evaluate operating conditions just prior to the accident.

(i) Make a preliminary estimate of the accident cause.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(2) OSHA's initial actions shall be carefully considered. Rather than rushing out and examining evidence immediately, they shall allow time for briefings by the senior officials of the operating organization. The investigators' main interest at this time is to establish a cooperative working relationship with the employer's representative(s).

b. It is most important to coordinate OSHA's activities with other responders to establish jurisdiction and ensure control of the site.

(1) OSHA shall make every effort to obtain information from these responders (and exchange information with them to the extent permitted by procedures).

(2) Other Federal and local agencies may also be involved in investigation, rescue or recovery, or clean-up activities. The OSHA representative shall contact the principal representative and establish a cooperative arrangement. While OSHA cannot abrogate its responsibility in favor of another agency, every effort shall be made to cooperate in obtaining and exchanging information.

(3) The OSHA representative shall determine whether the State or the local government authorities are on site to investigate the accident. Contact with such authorities shall be made as quickly as possible by the team leader to arrange for control of the site.

c. On a large inspection site, one primary employer contact shall be identified to accompany the inspection team on walkaround activities. This person need not be the most knowledgeable person in plant operations but must be familiar with the area and able to contact appropriate company and union personnel as necessary. The primary employer contact

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

must be available for investigation activities at all appropriate times, so as not to hinder the investigation.

d. If an employer refuses OSHA access to the accident site, the on-site OSHA representative shall inquire as to the reason. The CSHO shall immediately contact the Area Director and give him all available information.

(1) The on-site OSHA representative shall continue offsite inspection activity including gathering information from other agencies, taking photographs and video- taping the scene from a public area, and interviewing witnesses offsite while the warrant is being prepared.

(2) If entry is refused, the procedures for dealing with the refusal shall be followed, but every effort shall be made to speed the process; e.g., telephone communications shall replace written requests. (Any consultant projected to be used during the inspection shall be included in the warrant application.)

(3) If the employer or other parties refuse to give access to records, the CSHO shall carefully document what records are at issue, why they are needed, who has custody of the records, who refused access, and when the refusal occurred. This information shall be immediately transmitted to the Area Director who shall determine if a warrant or an administrative subpoena is appropriate.

(4) It may be necessary to issue administrative subpoenas for records, documents, or other physical evidence. Due to the complexity of an emergency condition and the potential need for a fast response, the Regional Administrator shall consider an expedited procedure for issuing subpoenas.

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(5) If a witness refuses to be interviewed or to give a statement, the CSHO shall document the person's name, address, title, and information pertinent to the inspection which that person may have. This refusal, and the information obtained, shall be transmitted immediately to the Area Director for an administrative subpoena compelling the individual to appear and be deposed.

e. OSHA presently has no regulation to require an employer or any other authority to limit access or prohibit removal or disturbance of materials which may constitute physical evidence at a worksite. The team leader shall decide, even in the presence of police security, whether it is necessary to place the site under 24-hour-a- day observation. Assistance of the on scene Incident Commander shall be obtained if possible. Such observation must continue until all necessary physical evidence is obtained.

(1) The need for this observation is twofold. It reduces the likelihood of further injuries to personnel and it prevents the removal of equipment and debris from the accident area, thereby ensuring that evidence is not tampered with or inadvertently destroyed.

(2) If it appears that either lack of site control, material alterations, or removal of material will interfere with the OSHA investigation, the on-site OSHA Representative shall notify the Area Director who shall contact the Regional Solicitor (through the Regional Administrator) to get an appropriate court order. In no case shall an OSHA representative attempt to exert authority without such an order.

(3) The representatives of other agencies may have a need to remove material and/or to search for missing physical evidence. In addition, during rescue/recovery

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

operations, much of the physical evidence may be removed, displaced, or destroyed. Therefore, it is imperative that every effort be made, as soon as possible, to establish site control and preserve the physical evidence by coordination with the agencies on the site, especially the on scene Incident Commander, as well as those which will be involved later.

f. OSHA's jurisdiction may be preempted by another Federal agency under Section 4(b)(1) of the Act. In such cases, the guidelines given in the FOM, Chapter III, D.6.a., shall be observed with the following special considerations:

(1) If it is reasonably possible that OSHA has coverage, the Area Director shall start the investigation at once and not let potential 4(b)(1) problems interfere with either notification to the Regional Office or with the investigation. The Area Director, in consultation with the OSHA Regional Office and the Solicitor's Office, shall determine whether OSHA has jurisdiction over the worksite in question as quickly as possible.

(2) Where it is likely that OSHA authority is preempted, such as coal mine accidents, no investigation shall be conducted. The Regional Administrator shall be notified of these incidents and technical assistance shall be offered to the responding agency if so directed by the Regional Administrator.

g. Inevitably circumstances will arise that are not covered by the preceding sections of this instruction. The Area Director shall be alert to these unusual circumstances so that proper action can be taken and their occurrence will not hinder the investigation.

(1) 29 CFR 1903.4 authorizes the agency to seek a warrant in advance of any attempted inspection if circumstances are such that

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

"Preinspection process is desirable or necessary." Issuance of anticipatory warrants is addressed in the FOM, Chapter III, B.3.

(2) In the event of a denial of entry occurring on a weekend, the Area Director shall determine if a warrant is needed prior to the following Monday. If so, the Regional Administrator shall be informed of this need and shall in turn contact the Regional Solicitor.

(3) After approval from the Solicitor's Office, arrangements must be made to have a magistrate sign the warrant. To facilitate this process, the Area Director shall attempt to obtain the home telephone numbers of the magistrates with jurisdiction in their areas for use by the Regional Solicitor.

h. Use of Temporary Restraining Order.

- Reserved -

8. Team Inspection Procedures/Area Office Contingencies

a. As determined by the scope and magnitude of the event, it may be necessary for the Area Director to assemble an inspection team to provide a comprehensive approach to the investigation. Members of an inspection team shall be selected based upon their experience and abilities. Recommendations to the Regional Administrator for team members from outside the Area Office or the Region may be necessary.

(1) It may be necessary to divide the inspection team into subgroups which address certain aspects of the investigation.

(a) For example, one group may investigate emergency response activity, a second group may address

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

system safety while a third group addresses circumstances around the initial accident.

(b) Each group shall have a designated leader to coordinate activity and interface with other groups.

(c) Each member of the inspection team must keep notes on a daily basis of his or her activity. The notes shall be placed in the case file.

(2) The function of an investigation team is to conduct the OSHA investigation once the emergency response phase of the significant event has ceased. The team shall follow existing procedures as outlined in Chapter VIII of the FOM. In addition, the team shall:

(a) Evaluate potential hazards at the site.

(b) Contact family members of deceased or seriously injured according to OSHA Instruction CPL 2.89.

(c) Provide suitable progress reports to the Regional Administrator.

(d) Be present during physical evidence sampling or removal.

(e) Gather witness testimony and obtain written interview statements.

(f) Obtain and assemble copies of all needed reference documents.

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b. A supervisor or senior CSHO from the responsible Area Office shall normally be designated as the Investigation Team Leader (ITL).

(1) The ITL is responsible for coordinating and directing the investigation and reporting findings to the Area Director on a daily basis or more often if critical information is obtained.

(2) The responsibility of this role cannot be overemphasized for it is the ITL who acts as spokesperson for the agency in meetings with company, union, insurance, consultant, and state and local agency officials.

(3) The ITL must be aware of the direction and findings of other investigators as well as those of the team. Thus, the ILT's direct investigative work must necessarily be limited since much time and effort must be spent in effectively managing these coordinating functions.

(4) The ITL must assimilate information from all sources and make prompt and accurate decisions regarding the utilization of resources which are at the leader's disposal and must promptly communicate needs and findings to superiors.

(5) A concise chronology is an invaluable asset to this process and is therefore required. It must include not only events related directly to the incident but also brief notes on meetings, telephone conversations, video and audio recordings, and decision processes, including dates and times.

(6) The ITL must also conduct daily planning sessions with the inspection team in order to be apprised of findings as well as to plan strategy and clearly communicate future investigative activities.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

c. The responsibilities of CSHOs and other team members are not dissimilar to those of any other team inspections. Specialized assignments, however, may be appropriate in some cases.

(1) A CSHO shall be designated as the OSHA Site Safety Officer. This individual will be delegated the primary responsibility of advising the ITL on the safety and security of OSHA personnel. This specialist CSHO may also function as the primary technical advisor to those engaged in dealing with controlling the significant event. This CSHO must be assured direct access to the Incident Commander's safety official at the scene. This CSHO shall report directly to the ITL.

(a) The ITL shall specify the required personal protective equipment after consultation with the OSHA Site Safety Officer.

(b) After the existence of an emergency situation has been confirmed and the need for an investigation team established, no Area Office personnel shall leave for the scene without minimum protection and investigative equipment, as required by the FOM and specified by the OSHA Site Safety Officer.

(2) An on-site Communications Officer shall be appointed to ensure rapid and accurate confirmation of information to the Area Director. The Communication Officer shall coordinate all site communications and prepare ongoing and executive summaries of all communications and occurrences during the incident. This person shall be located at the OSHA command post.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(3) Personnel from outside the Area Office shall be assimilated into the team so as to conduct an effective investigation and to utilize their skills efficiently.

(4) Team members shall be reminded to refer media inquiries and questions on inspection policies and procedures to the Area Director. This is especially important for team members who are not agency or government employees and therefore may be unfamiliar with OSHA operation and authority.

d. A "command post" must be established at or near the site to coordinate OSHA activities.

(1) The command post must be established as soon as it is determined that significant event investigation procedures will be followed.

(2) A government office or a hotel room may serve as a command post and is ideal for meetings, briefings, storing extra personal protective equipment, telephoning, etc.

(3) In those cases where there is no available space, it may be necessary to use a vehicle as the on-site command post. In such circumstances, the vehicle shall always be at a specified location and shall have an identifying flag or pennant either mounted on the roof or flown from the radio antenna.

e. After discussion with the Regional Administrator concerning the scope of the investigation, the Area Director may decide to appoint an Acting Area Director to handle normal Area Office functions during the course of the inspection. The Area Office staff shall be notified in writing concerning the status of office supervision.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

f. On extensive investigations it may be necessary to provide adequate space on the site for compliance staff to review employer documents and diagrams and to conduct interviews.

(1) If the situation arises where a company will not or cannot provide space for compliance officers to work, the rental of a mobile office, motel room or other working quarters may be necessary.

(2) Area Directors shall investigate sources of temporary offices as part of their pre- disaster planning.

(3) Office equipment needs may include the following:

(a) Telephone Service (wired and cellular).

(c) Work Tables.

(e) Automated Telephone Answering Machine.

(f) Fax Machine.

(h) Durable tags for identifying evidence.

9. Evidence. The inspection team shall ensure, to the fullest extent possible, that all evidence at the event site remains undisturbed until OSHA has had an opportunity to document, examine, and inspect it.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

a. OSHA, as a Federal agency, will claim precedence over other non-Federal investigators and will assert the right to remove evidence or obtain samples first.

b. In the past, the employers and other public sector investigators have been cooperative in controlling the site by limiting access of personnel and prohibiting unauthorized removal of material from the site.

c. The inspection team leader shall attempt to negotiate an agreement with the employer or other controlling authority not to disturb any evidence involved in the significant event without OSHA's consent and negotiate a written agreement regarding preservation of all evidence in the accident area. The following basic elements shall be addressed in the initial agreement:

(1) Designation of the specific area subject to the agreement;

(2) How the area will be secured; i.e., fenced with one gate to be secured with locks from all parties, 24-hour surveillance, etc.;

(3) Mutual agreement to not tamper, alter or change any object within the designated area;

(4) Scope to be given to search and rescue operations;

(5) Provision under which actions may be taken in the interest of safety and health and for notifying OSHA of action taken;

(6) Preservation of any object already moved at time of agreement so that it is preserved in accordance with the agreement;

(7) Circumstances under which evidence may be disconnected, videotaped, photographed,

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

marked, moved, repositioned, or removed from the site; and

(8) Timeframes by which all parties will submit proposals for testing, removal preserving equipment and other times.

d. Agreements shall also be sought with other investigators about the sampling order or removal/alteration order for physical evidence. There shall be agreement as to which agency or organization will remove evidence or take samples first and which agencies or organizations will accept the analysis of another or can use the same information as another.

e. A separate supplementary agreement shall be sought specifically dealing with the protocol for examining and/or testing equipment. The following items shall be addressed:

(1) Prohibition against alteration of equipment in any manner until all significant items in the plant have been documented to each party's satisfaction;

(2) Specific dates by which identifying and diagramming the location and condition of all pertinent equipment will start, and how equipment is to be identified;

(3) Provisions for other parties to be present and observe the documentation process;

(4) Specific dates and times within which OSHA will identify equipment and other items to be removed, preserved and/or tested;

(5) Circumstances under which the employer and other parties may conduct appropriate tests;

(6) Circumstances under which results, data, and information obtained as a result of testing will be shared with the employer, the union and other interested parties;

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(7) Circumstances under which items identified by OSHA shall be removed, and once removed, how they will be stored and secured; e.g., within enclosed, covered area with one means of access; and

f. Upon completion of the immediate firefighting or other damage suppression activity, the scene shall be left undisturbed to the maximum extent possible until the investigation team arrives.

(1) Team members shall identify material and possible witnesses to the event during the earliest phases of the investigation. Plans must also be formulated at that time to identify further physical evidence needs.

(2) Evidence must have a "chain of custody" to be admissible in court; also the site of the incident must remain as undisturbed as possible for causative factors to be established.

(a) Once the required evidence has been identified, the chain of custody must be established.

(b) The evidence must be physically identified by either describing identifying markings or characteristics, or by marking the item directly. Videotaping or photographing of physical evidence, prior to and after marking, is recommended.

(c) Whatever identifying method is used, it must be durable and must not alter the specimen.

(3) Where equipment has to be removed to eliminate remaining hazards, a record shall be made of such action taken.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

NOTE: Photographs or video recordings will be useful both as a record and a basis for analysis. By including a good photographer with the first entry of the teams, the investigators ensure that a record is made of much valuable evidence. The investigation of the circumstances surrounding the accident is a methodical accumulation of small bits of information which eventually form a pattern of evidence which is necessary for the determination of the cause. It is recommended that another team member accompany the photographer to log, identify and document the photographs as they are taken.

(4) Evidence shall be systematically collected. The following guidance in the collection of needed information/data is provided:

(a) What was the building or structure like before--materials of construction, floor plan, etc.? Does the employer have an "as built" drawing?

(b) What was the overall layout before the accident and after it? Aerial photographs of the site, before and after the incident, often provide very helpful information concerning the cause of an accident, especially explosions. After an explosion, pertinent information would include size and composition of material, distance traveled, where an object stopped and what stopped it. This generally will require immediate records of the accident site; photographs and measurements must be made before the site is disturbed. Particular attention should be given to the location of stray parts of equipment dislodged during the

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

accident. Each item when correlated with other findings may lead to an explanation of the origin of the accident.

(c) What are the names and addresses of survivors, eyewitnesses, and persons familiar with the material or equipment involved? Of what assistance can they be in reconstructing the sequence of accidents/events? What was the position of fatally injured employee(s) and survivor(s), both before and after the accident. What operations were they performing.

(d) What operations were being conducted at the time of the accident? Were they routine? Are there written procedures, drawings, checklists, and quality assurance monitors? Are there any drawings or photographs? Are chemicals involved and will any sampling or analysis be required?

(e) What had gone on before the accident? Were there any deviations or changes in procedures? Had anyone said there would be or had been a problem? Did anything unusual or strange occur? Had any piece of equipment in the area of the accident experienced frequent or abnormal mechanical problem as prior to the accident. Was an error made and then corrected or covered up? Had anyone complained about some event or condition related to or similar to the accident?

(f) Were materials in use at the time of the accident the same as those that had been used previously? Had there been a new shipment received? Were materials taken from an old container? Were new (or old) tools being used? Were the parts/materials used those specified in the

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

procedure/ drawings? Does the supplier need to be contacted? Will copies of contracts or specifications be necessary? Will material analysis or testing be required?

(g) Was there any advance training? Were there any unusual conditions that might warrant special training? Was there a written standard operating procedure available? Was there a check or audit to ensure it was followed?

(5) The accumulation of useful evidence follows a random pattern, but the inter- relationships of various findings is often significant. A meeting at the end of a day, to review the results obtained by each team, is an effective means of exchanging information.

(6) Each investigation has only limited resources that can be devoted to it. The expenditure of continued effort at each step of the investigation must be weighed against the anticipated results. If it appears that the key to an accident is dependent on the location of a particularly elusive component, extended efforts are warranted.

(7) The orderly documentation of evidence is a prime factor for a successful investigation. Although possible causes of the accident may be advanced during the on-site fact finding portion of the investigation, final analysis and evaluation is best performed at the investigating team's office after all facts have been collected and analyzed.

(a) In the analysis of an accident, it may be helpful to outline a step-by- step sequence of each possible accident mechanism based on evidence found.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(b) If an "evidence gap" is found in one promising mechanism, then additional information is needed.

(8) Some time should also be devoted to evaluating the facility's emergency procedures for their effectiveness during the accident. It is possible several useful revisions may be recommended.

g. Photographs taken during the inspection shall be mounted and identified by the team member taking them as soon as they are received. If mounting is not possible, each photograph shall be identified on the back to indicate what it shows, and when, where, and by whom it was taken.

h. Photos of areas of interest taken prior to the incident shall be obtained if possible.

(1) EPA may take aerial photos to identify potential chemical spills; if so, EPA's aerial photos shall be obtained.

(2) Videotape news clips taken during the event showing actual footage of the fire or subsequent explosions shall also be obtained.

(3) The need for OSHA contracted aerial photography shall be evaluated.

10. Communications. Effective communication is especially important during these investigations.

a. The following communications equipment should be considered depending upon the circumstances which arise during the investigation.

(1) Walkie-talkies are available from the Regional Office. Compliance officers conducting the catastrophe inspection may be able to coordinate walkie-talkie use with the police or other government agencies.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(2) Pagers for key personnel are available from the Regional Office or can be rented from commercial sources.

(3) Mobile (cellular) phones are particularly useful to maintain communication with the Area, Regional, and National Offices.

(4) Portable Telefax equipment can greatly assist off-site information dissemination.

(5) Portable copy units shall be available whenever necessary on site.

(6) A portable microcomputer with E-Mail capability shall be available on site for use by the team in writing the accident investigation report as well as direct transmission of information.

(7) Access by telephone is imperative in order to communicate with the Area Office, Regional Office and National Office. If the team is stationed in an office space on the site, access to the employer's telephone may be sufficient.

(a) In the event that the OSHA control site/room is a leased space, such as a trailer, it may be necessary to obtain telephone service through requisition.

(b) In addition to the items above, a cellular phone will prove most useful to maintain contact with on-site team members, the Area Office, and others as necessary.

b. A status report of the inspection shall be sent to the National Office daily, until the situation has stabilized. The reports may be sent, at the discretion of the Regional Administrator, directly from the team control room by fax machine or E-Mail.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

c. A representative of the Area Office shall initiate contact with family members of any accident victims. (See OSHA Instruction CPL 2.89.) Circumstances may warrant a collective "group" meeting with family members in large catastrophe investigations as the investigation gets underway and when the OSHA investigation is concluded.

d. Periodic team progress meetings are important for the team leader and provide a way of keeping each person up to date on the progress of the investigation. Teams shall meet frequently to review findings, discuss possible theories of causation, and exchange information.

(1) All of the teams or as many representatives as possible shall meet once a week to provide an overview of each one's activities completed thus far as well as planned. (Specific times for meetings should be designated to facilitate planning of other inspection activities.)

(2) If inspection teams are divided into specialized areas (e.g., system safety, emergency response activity), a mechanism must be established so information can be exchanged. Each group shall review all requested documents and information which could be of importance to another and place a copy of the document in a folder kept for that purpose in the on-site OSHA command post. All other teams shall be made aware of the material in the folders.

e. There are two aspects of media coverage that may be pertinent: providing information to the media, and obtaining information from the media. Regional OIPA shall be notified of the nature and extent of media contacts.

(1) It is reasonable to expect that reporters from radio, TV, and newspapers will make every effort to obtain all available information relative to an emergency situation.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(2) To coordinate OSHA's response, only the Area Director or the Area Director's designee shall discuss the situation with reporters. Names of members of the investigation team shall not be given to the media.

(3) If reporters call or contact either the Area Office or individual team members, the reporters shall be referred to the Area Director or to the Area Director's designee; no attempt shall be made to answer any questions related to either the emergency, the investigation, or the individual team members.

(4) The Area Director shall periodically review media involvement with the office. Although the Area Director will normally be the media contact, any Area Office staff member may make the following statements:

(a) OSHA is investigating or is on the way to the scene;

(b) OSHA's purpose in investigating to determine the cause of the incident and to determine whether any standards have been violated;

(c) After citations, if any, have been delivered to the employer, OSHA will announce and provide copies of its findings; and

(d) Additional inquiries should be addressed to the Area Director.

(5) Newspapers and television may have photographs, video tapes or other visual representations of a site prior to or following an event that may be helpful to the investigation.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

made to secure visual representations from the media. It is possible, however, that photographs or newsreel tapes will not be released without subpoenas. The OIPA can recommend approaches to obtaining information from the media and/or other sources.

11. Plan of Investigation. The investigation team leaders shall develop and submit to the Area Director a written plan for investigating the accident and to determine its cause.

a. The plan shall be submitted to the Regional Administrator within one week. A written summary or synopsis of events to date and a description of the accident shall be included. Periodic updates shall be made to the plan as new information becomes available.

b. The following issues shall be considered when developing this plan, and in conducting the investigation:

(1) Site safety.

(3) Use of consultants.

(7) Document control.

(8) Media exchange.

12. Extra-Regional Technical Assistance. It may be assumed that OSHA will need experts to serve both in determining the cause of the accident and testifying at any subsequent legal proceedings.

a. Expert assistance available from the National Office includes:

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(1) Office of Construction and Engineering. This office was formed, in part, to support investigations of large scale disasters by providing a capability to complete technical analysis and observations. Personnel of the office will be involved in any major construction accident and in accidents in other industries contingent upon discussion between the Regional Administrator, and the Director of the office or at the direction of the Assistant Secretary.

(a) The personnel assigned to the investigation join the investigation team and serve under the general direction of the team leader while maintaining the capability to complete the objectives of the technical analysis of cause.

(b) The Office of Construction and Engineering and its personnel do not become involved with any news media and make no periodic reports to the National Office in lieu of, or in addition to those provided by the Regional Administrator. In most cases the Office of Construction and Engineering will provide a formal report of the technical findings of the investigation. This report will be provided to the Regional Administrator for inclusion in the completed case file. Copies of the report will be released only after citations are issued and a determination is made that no trade secrets are revealed by its contents.

(c) Since the observation of physical evidence is important and since this evidence should be examined before it is moved or disturbed, it is important that the Office of Construction and Engineering be involved in the

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

investigation as soon as possible. The Director or Deputy Director can be reached on nights and weekends by dialing home phone numbers provided to the Assistant Secretary and the Regional Administrators.

(2) Directorate of Technical Support (DTS). The Directorate of Technical Support serves as the principal source of agency expertise with respect to scientific, engineering and medical issues. A wide range of support activities can be requested from DTS.

(a) On-site services provided by the Health Response Team (HRT) as well as specialists from other offices within the Directorate are available.

(b) On-site laboratory services, occupational medicine, specialized equipment needs, chemical and professional engineering services and priority technical information retrieval are available to assist regional efforts.

(c) DTS has assisted in developing inspection protocols for investigating catastrophic releases, National Emphasis Programs for Safety and Health in the Chemical Industry, developing OSHA training programs and directives for system safety reviews, performing plant inspections, review of process and instrumentation (P&I) diagrams, and researching literature for documentation to support proposed citations.

b. Where the circumstances of the significant event warrants prompt action, the Area Director shall, with the concurrence of the Regional Administrator, contact a private sector consultant and request that a representative be sent to the accident site.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(1) The consultant and Area Director, with concurrence of the Regional Administrator, shall agree on the scope of the contract which can be executed only after that agreement.

(2) If the preliminary identification of consultants and preliminary contacts (as outlined in G.1.b.(3) of this instruction) have been satisfactory, the companies will probably be willing to commit some time and resources based on verbal agreements.

(3) Written contracts can be completed at a later time when the scope of work has been defined and costs can be better estimated.

(4) The Area Director and consultants may only negotiate items such as cost, place, time, name, contact points, results expected, confidentiality, limitations on the availability of money, etc. The Area Director must be careful not to commit the Government without an approved purchase order from OASAM.

13. Witness Interview Procedures. Written witness statements shall be taken to obtain first hand knowledge of conditions at the time of the accident.

a. Witnesses will be identified as indicated in paragraph G.9.f.(1).

(1) All potential witnesses shall be identified as early as possible in the investigation, and interviews shall be conducted promptly as witnesses' ability to recall will diminish with time.

(2) If a union is actively involved in the inspection, it can serve as a valuable resource by assisting in determining employees who might have knowledge of facts relative to the accident, for example, operations and/or maintenance records or histories of the process of equipment.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(3) The inspection will likely involve interviewing and reinterviewing all available witnesses, so their names, addresses, telephone numbers and how they can be contacted shall be carefully noted. The results of the interviews shall be shared among all team members.

b. The primary employer contact, as outlined in paragraph G.7.c. of this instruction, will be utilized to schedule employee interviews.

(1) The union can assist in determining employees' schedules so that interviews can be scheduled.

(2) Subdividing the inspection team will allow team members to conduct more initial interviews in a short time.

(3) If reinterviews of witnesses are to be conducted, they shall be coordinated with other team members so that everyone interested in key witnesses can participate at the same time.

c. The value of an interview often depends on the expertise of the interviewer and areas covered. Therefore, the following guidance is provided:

(1) All witness interviews shall be conducted by experienced CSHO'S.

(2) CSHO shall exercise utmost discretion in conducting interviews of injured witnesses and family members.

(3) Witness interviews shall always be conducted in private unless the witness requests otherwise. If management is reluctant to permit private interviews of employees on the site, the procedures in the FOM shall be followed.

(4) The CSHO shall carefully question witnesses to solicit as much information as possible related to the accident,

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

including processes, procedures, practices, training, maintenance, materials, previous accidents, and any near accidents.

(5) Key witnesses may have to be reinterviewed as information is developed by the inspection team. During the initial phase of the investigation, it is more important to ask questions to determine general facts and to help identify key witnesses-- particularly those who may have information related to the cause of the accident.

(6) Prior to the interviews, the team leaders and members shall develop key, critical and screening questions to ask all witnesses. Such questions may be written down and provided to all interviewers. (a) While a specific list of questions is highly desirable, it may be more practical in some cases to have only a list of the topics to be covered.

(b) This list shall be developed before any interviews are conducted and shall include:

1 What is your name, address, telephone number, job, and employer?

2 How long have you done your present job? Have you ever seen any problem like this before?

3 Where were you at the time of the accident? What were you doing? Is that your normal job? Did you notice anything unusual?

4 How did you discover the accident? Were you close enough to physically sense (see, hear, feel, smell) anything?

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

5 See also paragraph G.9.f(4) of this instruction.

(7) If the inspection team is charged with evaluating emergency response, the CSHO shall interview employees about what they were instructed to do during an emergency in their building or on plant property to evaluate the employer's training and emergency procedures, and to determine whether employees were knowledgeable of those emergency procedures. Interviewers shall investigate how previous emergencies, if any, were handled and if there were any significant problems?

d. Information developed in employee interviews must be documented for use in case file development.

(1) Interviews shall not be tape recorded as the only record of the interview. If a tape recorder is used, the compliance officer taking the statement shall also prepare a written statement and have the employee read and verify by signature the accuracy of the information.

(2) A summary of pertinent information from each witness shall be prepared and stored with each team.

14. Background Review. A review of establishment history and process information can be of great value to the compliance officer conducting the investigation. The team members should review appropriate materials as time permits.

a. An understanding of workplace terminology can be developed through a review of the safety and health policies and documents, operating manuals, Standard Operating Procedures (SOPs), start-up/shut-down procedures, training manuals for operators and job safety analyses.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

(1) Such a review will help in understanding what job each employee performs and how he/she is supposed to perform these tasks and will eliminate unnecessary reinterviewing of witnesses.

(2) This review will also be particularly helpful if the actual work practices do not conform with established company policies or procedures.

b. Early in the investigation other workplaces with similar or identical operation shall be identified.

(1) If any of these establishments are participants in OSHA Voluntary Protection Programs (VPP), an on-site visit and discussion shall be considered to further understand the process and operation as well as help identify common safety and health concerns to the industry.

(2) If the practice of the industry is of importance to document a possible general duty clause violation, other companies can be contacted by phone and asked to provide pertinent information.

(3) If these companies are reluctant to provide needed information, an administrative subpoena can again be utilized to assist in obtaining the needed information.

15. Document Control. During the inspection effort extensive documentation will be collected from the companies inspected. Control must be exercised from the onset to minimize confusion.

a. All document requests shall be confirmed in writing and shall be provided to the person representing the employer. A dated copy of the request shall be kept in the case file and notations made when the request was complied with.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

b. An inventory or log of the documents received shall be maintained. Each document shall be given a case file log number.

c. Once a document is reviewed, a short summary shall be prepared and placed in the file. The summary may be a single line or several paragraphs.

d. Periodically the documents request log shall be reviewed to ensure that the information is being provided in a timely manner. If critical documents have not been received and are needed, an administrative subpoena shall be issued if necessary.

e. If any written or visual information is identified as "Business Confidential - Trade Secret", a secure place shall be established for the material. A locked file cabinet shall be used with a sign-in/sign-out log to ensure all documents are accounted for.

16. Closing Conference. A closing conference shall not be conducted until the Area Director, in conjunction with the Regional Administrator, gives permission to do so.

a. The closing conference shall be conducted by the team leaders and offered to both the employer and employee representatives. Outside agencies, insurance companies, media, etc., shall not be allowed to attend the closing conference without the permission of the Area Director and the employer.

b. Each team leader shall explain the finding of the investigation with emphasis placed on apparent violations which may have precipitated the significant event and recommendations on how to prevent a similar incident.

17. Final Report Preparation. With a team effort, it becomes important to organize the group's effort so that once a majority of the inspection activities have been concluded, a single composite case file can be developed.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

a. Each team member shall maintain a journal of each day's activities covering things accomplished and notations of things to do.

(1) These journals, in a standard format designated by the ITL, shall be provided to the team leader each week.

(2) These journals, with a little modification, can later be compiled into a chronological inspection narrative.

(3) The daily journal will also aid in citation write-up when the inspection is completed.

b. As soon as the inspection team determines (based on interviews or observations) that a violative condition or potential violative condition exists, appropriate notations shall be entered on the journal and developed as the inspection progresses.

c. The team leader shall designate the CSHO(s) responsible for writing and assembling the final case file.

(1) Although each team and/or team member develops a partial case file, they must be assembled by designated individuals into a complete product.

(2) If an egregious case is to be developed, it is particularly important to assign responsibility so that the CSHO(s) can coordinate with the Regional Solicitors to ensure that all evidence and documentation necessary are collected. They shall also review OSHA Instruction CPL 2.80, to assist in asking appropriate questions on interviews or in seeking documentation. Similar precautions shall be taken for cases involving potential criminal violations.

OSHA Instruction CPL 2.94 July 22, 1991 Office of Health Compliance Assitance

18. Disclosure. OSHA's policy regarding disclosure of case file contents is set forth in Chapter XIV of the FOM.

a. Any release of official case file information shall be conducted in accordance with those guidelines.

b. If there is to be an official press release concerning the disaster investigation, the Regional Administrator, in consultation with the Area Director and Regional OIPA, shall draft one for National Office approval prior to issuance of the citation(s).

H. Program Evaluation. It is OSHA's policy to evaluate the effectiveness of this instruction each time its procedures are implemented. Therefore, Regional Administrators shall submit a critique of the procedures outlined in this instruction within 90 days of the completion of an investigation of a significant event. In addition, Regional Administrators conducting such investigations shall submit a proposed investigation scenario for industry specific conditions which are not fully covered by this instruction. These scenarios will be reviewed for incorporation into this instruction, as appropriate.

Gerard F. Scannell Assistant Secretary

DISTRIBUTION: National, Regional and Area Offices Compliance Officers State Designees NIOSH Regional Program Directors 7(c)(1) Project Managers

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