Md. Code Regs. 09.12.20.21

Current through Register Vol. 51, No. 25, December 13, 2024

Section 09.12.20.21 - Abatement Verification

A. In this regulation, the following terms have the meanings indicated:

(1) "Abatement" means action by an employer to:

(a) Comply with a cited standard or regulation; or

(b) Eliminate a recognized hazard identified by MOSH during an inspection.

(2) "Abatement date" means:

(a) For an uncontested citation item, the later of the date:

(i) In the citation for abatement of the violation,

(ii) Approved by MOSH or established in litigation as a result of a petition for modification of the abatement date (PMA), or

(iii) Established in a citation by an informal settlement agreement; and

(b) For a contested citation item for which the Commissioner has issued a final order affirming the violation, the later of the date:

(i) Identified in the final order for abatement,

(ii) Computed by adding the period allowed in the citation for abatement to the final order date, or

(iii) Established by a formal settlement agreement.

(3) "Affected employees" means those employees who are exposed to a hazard identified as a violation in a citation.

(4) "Final order date" means:

(a) For an uncontested citation item, the 15th working day after the employer's receipt of the citation; and

(b) For a contested citation item:

(i) The 15th day after the date on which a proposed order of a hearing examiner has been docketed with the Commissioner, unless the Commissioner has directed review or an employee, or representative of an employee or employer whom the proposed order affects has requested review,

(ii) When review has been directed or requested, the 15th day after the date on which the Commissioner issues the final order disposing of all or a pertinent part of a case, or

(iii) The date on which a circuit court issues a decision affirming the violation in a case in which a final order of the Commissioner has been stayed.

(5) "Moveable 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 worksites.

B. Abatement Certification.

(1) Except as provided in §B(2) of this regulation, within 10 calendar days after the abatement date, the employer shall certify to the Commissioner or the Commissioner's authorized representative that each cited violation has been abated.

(2) The employer is not required to certify abatement if, during the on-site portion of the inspection, the Commissioner or the Commissioner's authorized representative:

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

(b) Notes in the citation that abatement has occurred.

(3) In addition to the information required by §G of this regulation, the employer's certification that abatement is complete for each cited violation shall include:

(a) The date and method of abatement; and

(b) A statement that affected employees and their representatives have been informed of the abatement.

C. Abatement Documentation.

(1) The employer shall submit to the Commissioner or the Commissioner's authorized representative the following:

(a) The information on abatement certification required by §B(3) of this regulation; and

(b) The requisite documentation:

(i) Demonstrating that abatement is complete for each willful or repeat violation, and

(ii) For a serious violation for which the Commissioner or the Commissioner's authorized representative indicates in the citation that this abatement documentation is required.

(2) Documents demonstrating that abatement is complete may include, but are not limited to:

(a) Evidence of the purchase or repair of equipment;

(b) Photographic or video evidence of abatement; or

(c) Other written records.

D. Abatement Plans.

(1) Except for an other-than serious violation, the Commissioner or the Commissioner's authorized representative may require an employer to submit an abatement plan for the cited violation when the time permitted for abatement is more than 90 calendar days.

(2) When an abatement plan is required:

(a) It shall be indicated on the citation;

(b) The employer shall submit an abatement plan for the cited violation within 25 calendar days from the final order date; and

(c) The abatement plan shall identify the violation and the steps to be taken to achieve abatement, including:

(i) A schedule for completing abatement, and

(ii) When necessary, how employees will be protected from exposure to the violative condition in the interim until abatement is complete.

E. Progress Reports.

(1) An employer who is required to submit an abatement plan may also be required to submit periodic progress reports for the cited violation.

(2) The citation shall indicate:

(a) If a periodic progress report is required and the citation item for which it is required;

(b) The date on which an initial progress report shall be submitted, which shall be at least 30 calendar days after submission of an abatement plan;

(c) Whether additional periodic progress reports are required; and

(d) The dates on which additional progress reports shall be submitted.

(3) For a violation, the periodic progress report shall identify, in a single sentence if possible, the:

(a) Action taken to achieve abatement; and

(b) Date action was taken.

F. Employee Notification.

(1) The employer shall inform affected employees and their representatives about abatement activities covered by this regulation by posting, near the place where the violation occurred, a copy or summary of the document submitted to the Commissioner or the Commissioner's authorized representative.

(2) If this posting does not effectively inform employees and their representatives about abatement activities, the employer shall:

(a) Post the document or a summary of the document in a location where it will be 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) The employer shall inform employees and their representatives of their right to examine and copy all abatement documents submitted to the Commissioner or the Commissioner's authorized representative.

(4) An employee or an employee representative shall submit a request to examine and copy abatement documents within 3 working days of receiving notice that the documents have been submitted.

(5) The employer shall comply with an employee's or employee representative's request to examine and copy abatement documents within 5 working days of receiving the request.

(6) The employer shall ensure that notice to employees and employee representatives is provided at the same time or before the information is provided to the Commissioner or the Commissioner's authorized representative and that abatement documents are:

(a) Not altered, defaced, or covered by other material; and

(b) Remain posted for 3 working days after submission to the Commissioner or the Commissioner's authorized representative.

G. Transmitting Abatement Documents.

(1) The employer shall include, in the submission of required abatement documents, the following:

(a) The employer's name and address;

(b) The inspection number to which the submission relates;

(c) The citation and item numbers 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) Date of Submission. The date of submission for:

(a) Mailed documents is the date of postmark; and

(b) Documents transmitted by means other than by mail is the date the Commissioner receives the document.

H. Moveable Equipment.

(1) For serious, repeat, and willful violations involving movable equipment, the 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 the worksite or between worksites.

(2) The employer shall use a warning tag that properly warns employees about the nature of the violation involving the equipment and identifies the location of the citation issued.

(3) If the violation has not already been abated, the warning tag or copy of the citation shall be attached to the equipment:

(a) For hand-held equipment, immediately after the employer receives the citation; or

(b) For non-hand-held equipment, before moving the equipment within or between worksites.

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

(5) The employer shall ensure that the tag or copy of the citation attached to movable equipment:

(a) Is not altered, defaced, rendered illegible, or covered by other opaque material;

(b) Is made of materials which will withstand the environmental conditions encountered in the workplace; and

(c) Remains attached until the:

(i) Violation has been abated and all abatement certification documents required by this regulation have been submitted to the Commissioner or the Commissioner's authorized representative,

(ii) Cited equipment has been permanently removed from service or is no longer within the employer's control, or

(iii) Commissioner issues a final order vacating the citation.

Md. Code Regs. 09.12.20.21

Regulation .21 adopted effective October 20, 1997 (24:21 Md. R. 1448)