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Chapter 3.3. Occupational Safety and Health Appeals Board
Article 6. Employers' Cost Recovery
§397. Petition for Costs Procedures.
(a) Any employer who appeals a citation resulting from an inspection or investigation
conducted on or after January 1, 1980, issued by the Division for violation of
an occupational safety and health standard, rule, order, or regulation established
pursuant to Chapter 6 (commencing with Section 140) of Division 1 of the Labor
Code may file a petition for costs together with a memorandum of items of cost
with the Appeals Board to claim reasonable costs, not to exceed five thousand
dollars ($5,000) in the aggregate per citation if either the employer prevails
in the appeal or the citation is withdrawn, and the employer alleges that the
issuance of the citation was the result of arbitrary or capricious action or conduct
by the Division. The burden of proof shall be on the employer to establish by
a preponderance of the evidence that the issuance of the citation was the result
of arbitrary or capricious action or conduct by the Division.
(b) The procedures are:
(1) If an employer who appeals a citation prevails in the appeal of the citation
or the citation is withdrawn and the employer wishes to claim reimbursement for
reasonable costs alleging that the issuance of the citation was the result of
arbitrary or capricious action or conduct by the Division, the employer shall
file a petition for costs together with a memorandum of items of cost with the
Appeals Board. The petition must be filed not more than 60 days after the filing
of a final decision granting the Division's motion or petition to withdraw the
citation, or a final decision granting the appeal. A petition for costs shall
be deemed filed on the date it is delivered or mailed to the Appeals Board in
Sacramento, California. A petition for costs shall set forth specifically and
in full detail the grounds upon which the employer's claim is made and identify
the particular item or items of the citation for which the petition for costs
is being filed. A petition for costs shall be verified upon oath in the manner
required for verified pleadings in courts of record.
(2) Upon receipt of a petition for costs, the Appeals Board shall enter a petition
number on the petition and serve a copy on the Division. The Division shall have
30 days from the service of a petition for costs to file a response with the Appeals
(3) The Appeals Board shall review the petition for costs, and the response, if
any, and shall by order or notice exercise one of the following three options:
(A) The petition for costs may be summarily dismissed if no grounds are set forth
or there are insufficient facts alleged to establish that the citation was issued
as a result of arbitrary or capricious action or conduct by the Division. The
employer may file a petition for reconsideration of the cost order denying the
petition for costs within 30 days after issuance of a cost order. Petitions for
reconsideration and answers, if any, shall be in conformity with Article 5 of
these rules, or
(B) The petition for costs may be granted by a cost order and costs may be awarded
if from a review of the petition for costs and the response submitted, if any,
it is established that the Division issued a citation as the result of arbitrary
or capricious action or conduct. The Division and the employer shall have the
right to file a petition for reconsideration of the cost order granting the petition
for costs within 30 days after service of such an order. Petitions for reconsideration
and answers, if any, shall be in conformity with Article 5 of these rules, or
(C) If a review of the petition for costs and response, if any, establishes that
a factual dispute exists, the matter shall be set for hearing. Parties shall receive
not less than 15 days notice of hearing.
(4) If a hearing is ordered, the Division and employer shall have their cases
prepared, discovery completed and be ready to proceed at the time of hearing.
Ten calendar days before the time of hearing, an employer may file with the Appeals
Board and the Division a supplemental memorandum of costs setting forth necessary
disbursements claimed. When a party desires to present any point which requires
a consideration of a prior hearing record, the party shall, prior to the hearing,
request and pay the cost of preparing the prior hearing record.
(5) A hearing shall be conducted in accord with these rules.
(6) A cost decision shall be filed as provided in Section 385. A copy of the cost
decision with a summary of the evidence received and relied upon and the reasons
or grounds upon which the decision was made shall be mailed or served on each
party or his representative together with a statement informing the parties of
the right to petition the Appeals Board for reconsideration of the cost decision
within 30 days after the service of the cost decision. Petitions for reconsideration
and answers, if any, shall be in conformity with Article 5 of these rules.
NOTE: Authority cited: Section 148.7, Labor Code. Reference: Section 149.5,
1. Amendment of subsection (b) filed 6-5-80; effective thirtieth day thereafter
(Register 80, No. 23).
2. Amendment of subsection (b) filed 2-1-84; effective thirtieth day thereafter
(Register 84, No. 5).
3. Amendment of subsection (b)(3) and Note filed 10-30-92; operative 11-30-92
(Register 92, No. 44).
Appendix A and Appendix B
NOTE Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections
148.7 and 149.5, Labor Code.
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