Ariz. Admin. Code § 20-5-627

Current through Register Vol. 30, No. 23, June 7, 2024

Section R20-5-627 - Abatement Verification

A. Scope and application. This Section applies to employers, as defined in A.R.S. § 23-401, who receive a citation for a violation of the Arizona Occupational Safety and Health Act.

B. Definitions:

1. Abatement means action by an employer to comply with a cited standard or rule or to eliminate a recognized hazard, as defined in A.R.S. § 23-401, identified by the Division during an inspection.

2. Abatement date means:

a. For an uncontested citation item, the later of:

i. The date in the citation for abatement of the violation;

ii. The date approved by the Division as a result of a petition for modification of the abatement date (PMA); or

iii. The date for abatement completion as established in a citation by an informal conference agreement.

b. For a contested citation item for which an administrative law judge has issued a final decision affirming the violation, the later of:

i. The date identified in the final decision for completion of abatement;

ii. The date computed by adding the original period allowed for abatement in the citation to begin 15 days from the final decision date of an administrative law judge; or

iii. The date established by a formal settlement agreement.

3. Affected employee means an employee who is exposed to the hazard identified as a violation in a citation.

4. Final order date means:

a. The date on which an uncontested citation is deemed final under A.R.S. § 23-417(A); or

b. For a contested citation item: The date on which a decision or order of an administrative law judge becomes final under A.R.S. § 23-421 or § 23-423.

5. Movable equipment means a hand-held or non-hand-held machine or device, powered or unpowered, that is used to do work and is moved within or between workplaces.

C. Abatement certification.

1. Within 10 calendar days after the abatement date, an employer shall certify to the Division that the employer has abated each cited violation except as provided in subsection (C)(2). An employer may use Appendix A to certify abatement.

2. An employer is not required to certify abatement if a Compliance Safety and Health Officer, during an onsite inspection:

a. Observes, within 24 hours after a violation is identified, that abatement has occurred; and

b. Notes the abatement action on the citation.

3. An employer's certification that abatement is complete shall include, for each cited violation, in addition to the information required by subsection (H), the completion date and method of abatement and a statement that affected employees and their representatives have been informed of the completed abatement.

D. Abatement documentation.

1. Within 10 days after the abatement date, an employer shall submit to the Division, documents which evidence that abatement is complete for each willful or repeat violation and for any serious violation for which abatement documentation is required.

2. Documents which evidence that abatement is complete may include documents for purchase or repair of equipment, photographs or videos of the abatement, or other written records.

E. Abatement plans.

1. The Division may require an employer to submit an abatement plan, except for a nonserious violation, when the time permitted for abatement is more than 90 days. The citation shall state that an abatement plan is required. An employer may use Appendix B for an abatement plan.

2. An employer shall submit an abatement plan for each cited violation within 25 days from the date of a final order when the citation states that a plan is required. In the abatement plan, the employer shall identify:

a. The violation,

b. The steps necessary to achieve abatement,

c. A schedule for completing abatement, and

d. How the employer will protect employees from the violative condition until abatement is complete.

F. Progress reports.

1. The Division may require an employer who submits an abatement plan under subsection (E), to submit periodic progress reports for each cited violation. If the Division requires a periodic progress report, the citation shall include the following information:

a. Periodic progress reports are required and the cited violations for which periodic progress reports are required;

b. The date on which an initial progress report must be submitted. The date of the initial progress report shall be no sooner than 30 days after the submission date required for abatement;

c. Whether additional progress reports are required; and

d. The date on which additional progress reports shall be submitted.

2. For each violation, the employer shall summarize in the progress report, the action taken to achieve abatement and the date the action was taken.

G. Employee notification.

1. An employer shall inform affected employees and the employees' representative of abatement activities covered by this Section by posting a copy of each document submitted to the Division or a summary of the document at the location of the cited violation.

2. For employers who have mobile work operations, the employer shall:

a. Post each document or a summary of the document submitted to the Division in a conspicuous place where it can be readily seen by employees and the employee representative; or

b. Take other steps to communicate fully to affected employees and the employees' representative about abatement actions.

3. The employer shall inform employees and the employees' representative of the right to examine and copy all abatement documents submitted by the employer to the Division.

a. An employee or an employee representative shall submit a written request to examine and copy abatement documents within three working days of receiving notice that the documents have been submitted to the Division.

b. An employer shall comply with an employee's or employee representative's written request to examine and copy abatement documents within five working days of receiving the request.

4. An employer shall ensure that notice in subsection (G)(1) to employees and a employee representative is provided at the same time or before the information is provided to the Division and that abatement documents are:

a. Not altered, defaced, or physically covered by other material; and

b. Remain posted for at least three working days after submission to the Division.

H. Transmitting abatement documents.

1. An employer shall include, in each submission required by this Section, the following information:

a. The employer's name and address;

b. The inspection number to which the submission relates;

c. The citation, item number, and location to which the submission relates;

d. A statement that the information submitted is accurate; and

e. The signature of the employer or the employer's authorized representative.

2. The date of postmark is the date of submission for mailed documents. For documents transmitted by other means, the date the Division receives the document is the date of submission.

I. Movable equipment.

1. For serious, repeat, and willful violations involving movable equipment, an employer shall attach a warning tag or a copy of the citation to the operating controls or to the cited component of equipment that is moved within or between workplaces. The Division shall deem attaching a copy of the citation to the equipment to meet the tagging requirement of subsection (I)(3) and the posting requirement of R20-5-623.

2. The employer shall use a warning tag to warn employees about the nature of the violation involving the movable equipment and identifies the location of the violation. An employer may use the tag in Appendix C to meet this requirement.

3. If a violation has not been abated, an employer shall attach a warning tag or a copy of the citation to the equipment as follows:

a. For hand-held equipment, the employer shall attach a warning tag or copy of the citation within eight hours after the employer receives the citation; and

b. For non-hand-held equipment, the employer shall attach a warning tag or copy of the citation before moving the equipment within or between workplaces.

4. For the construction industry, a tag that is designed and used in accordance with 29 CFR 1926.20(b)(3) and 29 CFR 1926.200(h) is deemed by the Division to meet the requirements of this Section when the information required by subsection (I)(2) is included on the tag.

5. An employer shall ensure that the tag or copy of the citation attached to movable equipment is not altered, defaced, or physically covered by other material.

6. An employer shall ensure that the tag or copy of the citation attached to movable equipment remains attached until:

a. The employer has abated the violation and all abatement verification documents required by this Section have been submitted to the Division;

b. The employer has permanently removed the cited equipment from service or the cited equipment is no longer within the employer's control; or

c. The Division, administrative law judge, or Review Board vacates the citation.

Ariz. Admin. Code § R20-5-627

Adopted effective June 26, 1998 (Supp. 98-2).