New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 5 - OCCUPATIONAL HEALTH AND SAFETY
Part 5 - OCCUPATIONAL HEALTH AND SAFETY REVIEW COMMISSION PROCEDURES
Section 11.5.5.303 - PETITION FOR MODIFICATION OF ABATEMENT PERIOD

Universal Citation: 11 NM Admin Code 11.5.5.303

Current through Register Vol. 35, No. 18, September 24, 2024

A. Who may file: A petition for modification of abatement period may be filed by any responsible employer, any affected employee, or any representative of affected employees.

B. Grounds:

(1) A petition for modification of abatement period filed by a responsible employer shall be based upon allegations that the responsible employer has made a good faith effort to comply with the abatement requirements of a citation, but has been unable to complete such abatement because of factors beyond the responsible employer's reasonable control.

(2) A petition for modification of abatement period filed by an affected employee or a representative of affected employees shall be based upon allegations that the abatement period provided in the citation is unreasonable, and that the responsible employer reasonably can abate the violation within a shorter period.

C. Deadline: A petition for modification of abatement period shall be filed with the department:

(1) on or before the date on which abatement of the violation to which the petition relates was originally required if the petition is filed by a responsible employer;

(2) within fifteen (15) working days after posting of the citation, if the petition is filed by an affected employee or a representative of affected employees.

D. Format: A petition for modification of abatement period shall:

(1) substantially comply with the format requirements illustrated in Section 1012 [now 11.5.5.1012 NMAC];

(2) name the person filing the petition as the petitioner, and the department as a respondent;

(3) if the petition is filed by an affected employee or a representative of affected employees, name the responsible employer as an additional respondent;

(4) for each citation to which the petition applies, list each item within that citation for which modification of the abatement period is requested;

(5) include the following information for each item for which modification of the abatement period is requested:
(a) if filed by a responsible employer:
(i) all steps taken by the responsible employer in an effort to achieve compliance during the prescribed abatement period and the dates of such action;

(ii) the specific additional abatement time necessary in order to achieve compliance;

(iii) 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; and

(iv) all available interim steps being taken to safeguard the employees against the cited hazard during the abatement period; or

(b) if filed by an affected employee or a representative of affected employees:
(i) the basis for the petitioner's belief that the original abatement period is unreasonable; and

(ii) the specific period of time within which the petitioner believes the responsible employer could reasonably abate the violation;

(6) have attached to it:
(a) a copy of each citation to which thepetition applies, with each such citation being marked as a separate exhibit; or

(b) if the petition applies only to certain items within the citation, a copy of each page on which any item to which the petition applies appears, with each such item being marked as a separate exhibit (except that if two or more contested items appear on the same page, that page may be marked as a single exhibit); and

(7) if filed by an affected employee or a representative of affected employees, include a certificate of service, as illustrated in Section 1001 [now 11.5.5.1001 NMAC], showing that the petition has been served on the responsible employer.

E. Employee notification requirements:

(1) Upon filing of a petition for modification of abatement period, except as provided in Paragraph 2 of this Subsection, the petitioner shall post, at one or more locations reasonably accessible to the affected employees, a notice to affected employees (proposed modification of abatement period), as illustrated in Section 1005 [now 11.5.5.1005 NMAC], with an attached copy of the petition (including all exhibits thereto. Such notice shall remain posted until the earliest of the following events:
(a) the filing of a notice of withdrawal of petition by the petitioner;

(b) the posting of a notice to affected employees (informal administrative review);

(c) the posting of a notice to affected employees (pendency of hearing); or

(d) the responsible employer's receipt of any order of the commission dismissing the petition for modification of abatement period.

(2) Posting of the notice specified in Paragraph 1 of this Subsection is not required if:
(a) the petition is filed by a responsible employer who has no affected employees at the time of filing; or

(b) the petition is filed by an affected employee, and the responsible employer has no other affected employees at the time of filing.

(3) The petitioner shall file, with the petition:
(a) an affidavit of posting, in the format illustrated in Section 1009 [now 11.5.5.1009 NMAC], attesting to posting of the notice specified in Paragraph 1 of this Subsection; or

(b) Under the circumstances specified in Paragraph 2 of this Subsection, an affidavit of explanation for non-posting.

F. Forwarding to commission secretary: The department shall forward the petition for modification of abatement period, including all exhibits and accompanying documents, to the commission secretary within five (5) working days after receipt thereof. Any written document clearly expressing a request for modification of the abatement period for any portion of an identifiable citation shall be forwarded as a petition for modification of abatement period without regard to its timeliness or format.

G. Untimeliness; improper format:

(1) Any party alleging that a petition for modification of abatement period is untimely as to any abatement period to which the petition is addressed may file a motion for dismissal of the petition, in whole or in part, on that ground.
(a) If the commission determines that such petition was filed later than any original abatement period addressed in the petition, the commission shall dismiss the petition as to each abatement period for which the petition is found to be untimely, unless the commission also finds that the untimeliness was caused by some action of the department.

(b) Dismissal of a petition for untimeliness as to one or more abatement periods shall not affect the validity of the petition as to any abatement periods for which the petition is timely.

(2) Any party alleging that a petition for modification of abatement period is not substantially in the format required by this Section may file a motion seeking to require amendment of the petition to conform with the requirements of this Section. If the hearing officer finds that the petition does not substantially conform with the requirements of this Section, the hearing officer may order the petitioner to file an amended petition, conforming to the requirements of this Section, within ten (10) days after service of the order on the petitioner. If the petitioner fails to comply with such order, the commission, upon subsequent motion of the same party, may dismiss the petition.

Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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