Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
338.141
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
338.051(3) requires the
Kentucky Occupational Safety and Health Standards Board to promulgate
occupational safety and health administrative regulations and authorizes the
chairman to reference federal standards without board approval if necessary to
meet federal time requirements.
KRS
338.061 authorizes the board to establish,
modify, or repeal standards and reference federal standards. This
administrative regulation establishes the form of the application for extension
of abatement, steps necessary to make application, content of the application,
form and timing for the ruling of the Commissioner of the Department of
Workplace Standards on the application, and, appeal available to the parties
adversely affected by the decision on the application.
Section 1.
(1) "Abatement" means action by an employer
to comply with a cited regulation, standard, statute, or order to eliminate a
hazard identified by the Division of Occupational Safety and Health
Compliance.
(2) "Abatement date"
means as established in paragraphs (a) and (b) of this subsection.
(a) For an uncontested citation item,
"abatement date" means the later of the date:
1. In the citation for abatement of the
violation;
2. Approved by Division
of Occupational Safety and Health Compliance or established in litigation as a
result of a petition for modification of the abatement date (PMA); or
3. Established in a citation by an informal
settlement agreement.
(b) For a contested citation item for which
the Kentucky Occupational Safety and Health Review Commission (KOSHRC) has
issued a final order affirming the violation, "abatement date" means the later
of the date:
1. Identified in the final order
for abatement;
2. Computed by
adding the period allowed in the citation for abatement to the final order
date; or
3. Established by a formal
settlement agreement.
(3) "Affected employees" means employees who
exposed to a hazard identified as violation in a citation.
(4) "C.F.R." means Code of Federal
Regulations.
(5) "Commissioner" is
defined by 803
KRS
338.015(7).
(6) "Compliance officer" means a person
authorized by the commissioner to conduct occupational safety and health
inspections and investigations.
(7)
"Employee" is defined by
KRS
338.015(2).
(8) "Employer" is defined by
KRS
338.015(1).
(9) "Final order date" means as established
in paragraphs (a) and (b) of this subsection.
(a) For an uncontested citation item, "final
order date" means the 15th working day after the employer's receipt of the
citation.
(b) For a contested
citation item, "final order date" means:
1.
The 30th day after the date a decision or order of a commission hearing officer
has been docketed with the commission, unless a member of the commission has
directed review;
2. If review has
been directed, the date the commission issues its decision or order disposing
of all or pertinent part of a case; or
3. The date an appeals court issues a
decision affirming the violation in a case if a final order of the review
commission has been stayed.
(10) "Movable equipment" means a hand held or
non-hand held machine or device, powered or unpowered, used to do work and
moved within a worksite or between worksites.
(11) "Review commission" is defined by
KRS
338.015(8).
(12) "Working days" means Monday through
Friday and does not include Saturday, Sunday, federal, or state holidays, and
the day of receipt of notice.
Section
2. Extension or Modification of Abatement.
(1) An employer may apply for an extension or
modification of abatement with the commissioner or designee after the employer
made a good faith effort to comply with the abatement requirements but
abatement is not completed due to factors reasonably beyond the employer's
control.
(2) The application for
extension or modification of abatement, as established in subsection (7) of
this section, shall be made no later than 4:30 p.m. Eastern Time on the day
abatement is required.
(3) A later
filed petition shall be accompanied by the employer's written statement of
exceptional circumstances explaining the delay.
(4) The application for extension or
modification of abatement shall be posted for ten (10) working days in a
conspicuous location where all affected employees have notice or near the
location where the violation occurred.
(5) An application for extension or
modification of abatement shall be in writing or may be made orally if time
does not permit a written application.
(6) If an application for extension or
modification of abatement is made orally, a written application shall follow
the oral request within three (3) working days.
(7) Every application for extension or
modification of abatement shall include:
(a)
All steps taken by the employer, and the dates of action, in an effort to
achieve compliance during the established abatement period;
(b) The specific additional time or
modification necessary to achieve compliance;
(c) The reason additional time or
modification is necessary;
(d) All
interim steps implemented to safeguard employees against the hazard;
and
(e) Certification the
application for extension or modification of abatement was posted for ten (10)
working days and, if appropriate, provided to the authorized representative of
affected employees including the date the posting and service were
made.
(8)
(a) Affected employees or their
representatives may file a written objection to the application with the
commissioner within ten (10) working days of the date of posting of the
petition or service upon an authorized representative.
(b) Failure to file an objection within ten
(10) working days of the date of posting of the petition or service upon an
authorized representative, shall constitute a waiver of any further right to
object to the application.
(9) The commissioner or designee shall rule
on the application for extension or modification of abatement within three (3)
working days of receipt of the application.
(10).
(11) If an application for extension or
modification of abatement is denied, the employer may appeal pursuant to
KRS
338.141.
Section 3. Abatement Certification.
(1) Within ten (10) calendar days after the
abatement date, the employer shall certify to the commissioner that each cited
violation is abated, except as established in subsection (2) of this
section.
(2) The employer shall not
be required to certify abatement if the compliance officer, during the on-site
portion of the inspection:
(a) Observes,
within twenty-four (24) hours after a violation is identified, that abatement
occurred; and
(b) The citation
states that abatement occurred.
(3) The employer's certification that
abatement is complete shall include, for each cited violation, in addition to
the information required by this administrative regulation, the date and method
of abatement and a statement that affected employees and their representatives
have been informed of the abatement.
Section 4. Abatement Documentation.
(1) The employer shall submit documents
demonstrating that abatement is complete for each cited violation.
(2) Documents demonstrating that abatement is
complete may include evidence of the purchase or repair of equipment,
photographic or video evidence of abatement, or other written
records.
Section 5.
Abatement Plan.
(1) The commissioner may
require an employer to submit an abatement plan if the time permitted for
abatement is more than ninety (90) calendar days.
(2) The citation shall state than an
abatement plan shall be required.
(3)
(a) The
employer shall submit an abatement plan for each cited violation within
twenty-five (25) calendar days from the final order date if the citation
indicates that a plan shall be required.
(b) The abatement plan shall identify the
violation and the steps to be taken to achieve abatement including a schedule
for completing abatement and, where necessary, how employees will be protected
from exposure to the hazard or violative condition until abatement is
complete.
(4) Progress
reports.
(a) An employer required to submit an
abatement plan may be required to submit periodic progress reports for each
cited violation.
(b) If an employer
is required to submit periodic progress reports, the citation shall indicate:
1. That periodic progress reports shall be
required and the citation items for which they shall be required;
2. The date the initial progress report shall
be submitted, which shall be no sooner than thirty (30) calendar days after
submission of an abatement plan;
3.
Additional progress reports that shall be required; and
4. The dates additional progress reports
shall be submitted.
(c)
For each violation, the progress report shall identify the action taken to
achieve abatement and the date the action was taken.
Section 6. Employee Notification.
(1) The employer shall inform affected
employees and their representative about abatement activities by posting a copy
of each document submitted to the commissioner or a summary of the document
near the place where the violation occurred.
(2) If posting does not effectively inform
employees and their representatives about abatement activities, the employer
shall:
(a) Post each document or a summary of
the document in a location where it is readily observable by affected employees
and their representatives; or
(b)
Take other steps to communicate fully to affected employees and their
representatives about abatement activities.
(3)
(a) The
employer shall inform employees and their representatives of their right to
examine and copy all abatement documents submitted to the
commissioner.
(b) An employee or an
employee representative shall submit a request to the employer to examine and
copy abatement documents within three (3) working days of receiving notice that
documents were submitted to the commissioner.
(c) The employer shall comply with an
employee or employee representative request to examine and copy abatement
documents within five (5) working days of receiving the request.
(4)
(a) The employer shall ensure that notice to
employees and employee representatives shall be provided at the same time or
before the information is provided to the commissioner.
(b) The employer shall ensure that abatement
documents:
1. Shall not be altered, defaced,
or covered by other material; and
2. Remain posted for at least three (3)
working days after submission to the commissioner.
Section 7. Transmitting
Abatement Documents.
(1) The employer shall
include in each submission:
(a) The employer's
name and address;
(b) The
inspection number;
(c) The citation
and item number;
(d) A statement
that information submitted is accurate; and
(e) The signature of the employer or the
employer's authorized representative.
(2) The postmark date shall be the date of
submission for mailed documents.
(3) For documents transmitted by other means,
the date the commissioner receives the document shall be the date of
submission.
Section 8.
Moveable Equipment.
(1) The employer shall
attach a warning tag or a copy of the citation to the operating controls or to
the cited component of equipment moved within the worksite or between
worksites.
(2) Attaching a copy of
the citation meets the tagging requirement of this administrative regulation as
well as the posting requirement established in
803 KAR
2:125.
(3)
The employer shall attach a warning tag that:
(a) Properly warns employees about the nature
of the violation involving the equipment; and
(b) Identifies the location of the citation
issued.
(4)
(a) If the violation is not abated, a warning
tag or copy of the citation shall be attached to hand held equipment
immediately after the employer receives the citation.
(b) If the violation is not abated, a warning
tag or copy of the citation shall be attached to non-hand held equipment prior
to moving the equipment within or between worksites.
(5) For the construction industry, a tag
designed and used in accordance with
29 C.F.R.
1926.20(b)(3) and
29 C.F.R.
1926.200(h) meets the
requirements of this section if the information required by this section is
included on the tag.
(6) The
employer shall ensure the tag or copy of the citation attached to movable
equipment shall not be altered, defaced, or covered, or obscured by other
material.
(7) The employer shall
ensure the tag or copy of the citation attached to movable equipment shall
remain attached until:
(a) The violation is
abated and all abatement verification documents required by this administrative
regulation are submitted to the commissioner;
(b) The cited equipment is permanently
removed from service or is no longer in the employer's control; or
(c) The review commission issues a final
order vacating the citation.
Section 9. The commissioner shall assume
authority to modify abatement pursuant to
KRS
338.141(2) if review
commission jurisdiction expires.
Section
10. Nonmandatory examples of abatement-related forms that apply to
29 C.F.R.
1903.19 appendices shall include:
(a) Appendix A, Sample Abatement
Certification Letter;
(b) Appendix
B, Sample Abatement Plan or Progress Report; and
(c) Appendix C, Sample Warning Tag.
Section 11. Incorporation by
Reference. The following nonmandatory appendices to
29 C.F.R.
1903.19 are incorporated by reference:
(1) Appendix A, Sample Abatement
Certification Letter;
(2) Appendix
B, Sample Abatement Plan or Progress Report; and
(3) Appendix C, Sample Warning Tag.
STATUTORY AUTHORITY:
KRS
338.051,
338.061