(a) After completion of an enforcement inspection, the Compliance Manager shall review the casefile and may consult with the Department representative. If, on the basis of the review, the Compliance Manager believes that the employer has violated the Act; rule, regulation or standard promulgated under the Act; or any rule published in these rules or practice and procedure, he may consult with the office of the Attorney General, and shall issue a Citation and Notification of Penalty to the employer. A citation shall be issued, even though after being informed of a violation by the Department representative the employer immediately abates, or initiates steps to abate, such violation. A citation shall be issued in all cases, whether the violation is determined to be imminent danger, serious, or nonserious. Any citation shall be issued with reasonable promptness after termination of the inspection. No citation may be issued after the expiration of one hundred eighty (180) days following the occurrence of any violation.
(b) Any citation shall describe with particularity the nature of the alleged violation, including a reference to the provision(s) of the Act, rules, regulations, standards or order violated. Any citation shall also fix a time or times for the abatement of the alleged violation, except that in case of imminent danger it shall be abated immediately.
(c) When a citation is issued for a violation alleged in an employee complaint, a copy of the citation pertaining to the specific violation alleged to exist shall be sent to the employee or representative of employees who made such complaint or notification.
(d) After an inspection, if the Compliance Manager determines that a citation is not warranted with respect to a danger or violation alleged to exist in a request for inspection or a notification of alleged violation he shall respond to the complainant.
(e) Every citation shall state that the issuance of a citation does not constitute a judgment that a violation of the Act; rule, regulation or standard promulgated under the Act; or any rule published in these rules or practice and procedure has occurred; and that the employer shall have the right to contest any violation, penalty or abatement period and the employee shall have the right to contest the abatement period.
(f) Citations shall be prominently posted at or near the site of violation and shall remain posted until all violations cited therein are corrected, or for a period of three (3) working days, whichever is longer. - (i) If due to the nature of the operation it is not possible to post the citation at or near the site of violation, the citation shall be posted in a conspicuous place where notices to employees are normally posted.
(g) The citation shall contain the proposed penalty for each serious, willful, repeated, failure-to abate, and regulatory violation. The proposed penalties need not be posted with the citation at or near the site of violation.
(h) Abatement documentation procedures. - (i) Upon timely abatement of the violation, as stated in the citation, the employer shall notify the Compliance Manager in writing of the abatement of the violation. Information to be included for all violations will be the date and method of abatement and assurance that the employees and their representatives have been informed of the abatement. Documentation such as purchase or repair receipts, photographic or video evidence of abatement, or other written documents will be provided for willful, repeat, serious, and failure to abate violations. Excluded are those conditions that make it impossible to positively document abatement, such as backfilled trenches, equipment removed from service, etc. The employer may not be required to certify abatement when the Department representative observes corrective actions within 24 hours after a violation is identified and documents the abatement action.
- (ii) Abatement documents shall be prominently posted at or near the site of violation and shall remain posted for three working days. If due to the nature of the operation it is not possible to post the Citation and Notification of Penalty at or near the site of violation, the abatement documents shall be posted in a conspicuous place where notices to employees are normally posted.
- (iii) For willful, repeat, serious, and failure to abate violations involving movable equipment, the employer must 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 the worksite or between worksites. The tag must describe the nature of the violation. The tag must remain attached until the violation is corrected, the equipment is permanently removed from service, or the violation is vacated.
(i) Petition for Modification of Abatement Date. - (i) An employer may file a petition for modification of abatement date when he has made a good faith effort to comply with the abatement requirements of a violation, but abatement has not been completed because of factors beyond his control. A petition shall be filed with the Compliance Manager no later than the close of the next working day following the date on which abatement was originally required. A late filed petition shall be accompanied by the employer's statement of exceptional circumstances explaining the delay.
- (ii) A petition for modification of abatement date shall be in writing and shall include the following information:
- (A) All steps taken by the employer, and the dates of such action, in an effort to achieve compliance during the prescribed abatement period.
- (B) The specific additional abatement time necessary in order to achieve compliance.
- (C) The reasons such additional time is necessary, including the unavailability of professional or technical personnel or of materials and equipment, or because necessary construction or alteration of facilities cannot be completed by the original abatement date.
- (D) All available interim steps being taken to safeguard the employees against the cited hazard during the abatement period.
- (E) A certification that a copy of the petition has been posted and, if appropriate, given to the authorized employee representative of affected employees and a certification of the date upon which such posting and service were made.
- (I) A copy of such petition shall be posted in a conspicuous place where all affected employees will have notice thereof or near the location where the violation occurred. The petition shall remain posted for a period of ten (10) working days. Where affected employees are represented by an authorized representative, the representative shall be given a copy of the petition.
- (iii) Affected employees or their representatives may file an objection in writing to a petition with the OSHA Deputy Administrator. Failure to file an objection within ten (10) working days of the date of posting of the petition or receipt by an authorized representative shall constitute a waiver of any further right to object to a petition.
- (iv) The Compliance Manager shall have the authority to approve any petition for modification of abatement date filed when no objection has been filed.
- (v) The Compliance Manager shall not approve petitions until the expiration of fifteen (15) working days from the date it was posted or served by the employer.
- (vi) Where any petition is objected to by affected employees or the Compliance Manager, the petition, Citation and Notification of Penalty, and any objections shall be forwarded to the OSHA Deputy Administrator.
Amended, Eff. 12/12/2017.