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Chapter 3.2. California Occupational Safety and Health Regulations (CAL/OSHA)
Subchapter 2. Regulations of the Division of Occupational Safety and Health
ARTICLE 1.5 Employer’s Declaration of Abatement and Other Documentation of Abatement—Employee Notification—Posting Requirements.

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§340.4. Declaration of Abatement, Other Documentation, Employee Notification and Posting Requirements

(a) Scope and application. This section applies to employers who receive a citation for a violation of Title 8 of the California Code of Regulations.

(b) Definitions.

(1) Abatement means action by an employer to comply with a cited standard or regulation or to eliminate a recognized hazard identified by the Division during an inspection.

(2) Abatement date means:

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

(A) The date in the citation for abatement of the violation;

(B) The date otherwise approved by the Division as the result of an informal conference; or

(C) The date established in a citation by an informal settlement agreement.

(ii) For a contested citation item for which the Occupational Safety and Health Appeals Board (OSHAB) has issued a final order affirming the violation, the later of:

(A) The date identified in the final order for abatement; or

(B) The date computed by adding the period allowed in the citation for abatement to the final order date; or

(C) The date established by a formal settlement agreement.

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

(4) Final order date means:

(i) For an uncontested citation item, the fifteenth working day after the employer’s receipt of the citation;

  1. (ii) For a contested citation item:

(A) The thirty-fifth day after the date on which a decision or order of an administrative law judge has been issued, unless a Petition for Reconsideration or Order of Reconsideration has been filed with or by OSHAB; or

(B) Where a Petition for Reconsideration or Order of Reconsideration has been filed, the thirty-fifth day after the date on which OSHAB issues its decision or order disposing of the matter; or

(C) The date on which the superior court issues a decision affirming the violation in a case in which a final order of OSHAB has been stayed.

(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 worksites.

(c) Abatement certification. (1) Within 10 calendar days after the abatement date, the employer must certify to the Division that each cited violation has been abated, except as provided in paragraph (c)(2) of this section.

(2) The employer is not required to certify abatement if the OSHA Compliance Officer, during the on-site portion of the inspection:

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

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

(3) The employer’s certification that abatement is complete must include, for each cited violation, in addition to the information required by paragraph (h) of this section, the date and method of abatement and a statement that affected employees and their representatives have been informed of the abatement.

(4) For serious violations the certification of abatement must be submitted under penalty of perjury as required pursuant to Labor Code section 6320(b).

NOTE: See Appendix A for sample content and form of Abatement Certification Letter.

(d) Abatement documentation. (1) The employer must submit to the Division, along with the information on abatement certification required by paragraph (c)(3) of this section, documents demonstrating that abatement is complete for each willful or repeat violation and for any serious violation for which the Division indicates in the citation that such abatement documentation is required.

(2) Documents demonstrating that abatement is complete may include, but are not limited to, evidence of the purchase or repair of equipment, photographic or video evidence of abatement, or other written records.

(e) Abatement plans. (1) The Division may require an employer to submit an abatement plan for each cited violation (except non-serious violations) when the time permitted for abatement is more than 90 calendar days. If an abatement plan is required, the citation must so dictate.

(2) The employer must submit an abatement plan for each cited violation within 25 calendar days from the final order date when the citation indicates that such a plan is required. The abatement plan must 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 violative condition in the interim until abatement is complete.

NOTE: See Appendix B for sample content and form of Abatement Plan.

(f) Progress reports. (1) An employer who is required to submit an abatement plan may also be required to submit periodic progress reports for each cited violation. The citation must indicate:

(i) That periodic progress reports are required and the citation items for which they are required;

(ii) The date on which an initial progress report must be submitted, which may be no sooner than 30 calendar days after submission of an abatement plan;

(iii) Whether additional progress reports are required; and

(iv) The date(s) on which additional progress reports must be submitted.

(2) For each violation, the progress report must identify, as briefly as possible, the action taken to achieve abatement and the date the action was taken.

NOTE: See Appendix B for sample content and form of Progress Report.

(g) Employee notification. (1) The employer must inform affected employees and their representative(s) about abatement activities covered by this section by posting a copy of each document submitted to the Division, or a summary of the document(s), near the place where the violation occurred.

(2) Where such posting does not effectively inform employees and their representatives about abatement activities (for example, for employers who have mobile work operations), the employer must:

(i) Post each document or a summary of the document(s) in a location where it will be readily observable by affected employees and their representatives; or

(ii) Take other steps to communicate fully to affected employees and their representatives about abatement activities.

(3) The employer must inform employees and their representatives of their right to examine and copy all abatement documents submitted to the Division.

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

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

(4) The employer must ensure that notice to employees and employee representatives is provided at the same time or before the information is provided to the Division and that abatement documents are:

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

(ii) Remain posted for three working days after submission to the Division.

(h) Transmitting abatement documents. (1) The employer must include, in each submission required by this section, the following information:

(i) The employer’s name and address;

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

(iii) The citation and item numbers to which the submission relates;

(iv) A statement that the information submitted is accurate; and

(v) The signature of the employer or the employer’s authorized representative.

(vi) For serious violations the documentation must be submitted under penalty of perjury as required pursuant to Labor Code section 6320(b).

(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, 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.

NOTE: Attaching a copy of the citation to the equipment will satisfy the tagging requirement of paragraph (i)(1) of this section as well as the posting requirements of section 332.4 of Title 8 of the California Code of Regulations.

(2) If the employer attaches a warning tag, in lieu of the citation, it must warn employees about the nature of the violation involving the equipment and identify the location of the citation issued.

NOTE: See Appendix C for sample form and content of a Warning Tag.

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

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

(ii) For non-hand-held equipment, prior to moving the equipment within or between worksites.

(4) The employer must assure that the tag or copy of the citation attached to movable equipment is not altered, defaced, or covered by other material.

(5) The employer must assure that the tag or copy of the citation attached to movable equipment remains attached until:

(i) The violation has been abated and all abatement verification documents required by this regulation have been submitted to the Division;

(ii) The cited equipment has been permanently removed from service or is no longer within the employer’s control; or

(iii) OSHAB issues a final order vacating the citation; or

(vi) As otherwise directed by the Division.

NOTE: Appendices A through C provide information and non-mandatory guidelines to assist employers and employees in complying with the appropriate requirements of this section.

NOTE: Authority cited: Labor Code sections 60.5, 6308. Reference: Labor Code section 6320; Title 29, Code of Federal Regulations, section 1903.19.

HISTORY

1.New article 1.5 (section 340.4), section and appendices A-C filed 9-14-99; operative 10-14-99 (Register 99, No. 38).

Appendix A
Appendix B
Appendix C

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