.20 Petition for Modification of Abatement Date.

A. An employer may file a petition for modification of abatement date (PMA) when the employer has:

(1) Made a good faith effort to comply with the abatement requirements of a citation; and

(2) Not completed abatement because of factors beyond the employer's reasonable control.

B. Content. A PMA shall be in writing and shall state:

(1) The actions the employer has taken in an effort to achieve compliance during the prescribed abatement period and the date of each action;

(2) The specific additional abatement time necessary in order to achieve compliance;

(3) The reason the additional time is necessary, including the:

(a) Unavailability of:

(i) Professional or technical personnel, or

(ii) Materials and equipment; or

(b) Inability to complete, by the original abatement date, necessary construction or alteration of facilities;

(4) The available interim steps being taken to safeguard the employees against the cited hazard during the abatement period;

(5) A certification that a copy of the PMA has been:

(a) Posted; and

(b) If appropriate, served on the authorized representative of affected employees; and

(6) A certification of the date upon which the petition was posted and service was made.

C. Filing.

(1) A PMA shall be filed with the Assistant Commissioner not later than the close of the next work day following the date on which abatement was originally required.

(2) An employer filing a PMA after the date set forth in §C(1) of this regulation shall include with it a statement setting forth the circumstances for the delay.

(3) The Assistant Commissioner may accept a late-filed PMA only if exceptional circumstances lead to the delay.

D. Posting and Service.

(1) The employer shall post a copy of the PMA in a conspicuous place:

(a) Where affected employees will have notice; or

(b) Near the location where the violation occurred.

(2) The PMA shall remain posted for at least 10 work days.

(3) When affected employees have an authorized representative, the employer shall serve the representative with a copy of the petition.

E. Filing of Objections.

(1) Affected employees or their representatives may file an objection to the PMA in writing with the Assistant Commissioner.

(2) The objection shall be filed within 10 work days of the date that the PMA was:

(a) Posted; or

(b) Served upon an authorized representative.

(3) Failure to file a timely objection constitutes a waiver of any further right to object to the petition.

F. Assistant Commissioner.

(1) The Assistant Commissioner has the authority to approve any PMA filed under this regulation.

(2) The Assistant Commissioner may not grant a PMA until the expiration of 15 work days from the date the employer complies with §D of this regulation.

G. Objections and Denials.

(1) When either an affected employee objects to, or the Assistant Commissioner denies approval of, a PMA, the PMA, citation, and any objection shall be forwarded to the Commissioner within 3 work days after the expiration of the 15-day period set forth in §F(2) of this regulation.

(2) The Commissioner shall treat a PMA so forwarded in the same manner as a contested case involving a citation.

H. Burden of Proof. To obtain modification of an abatement period, the employer filing a PMA has the burden of proving that it:

(1) Made a good faith effort to comply with the abatement requirements of the citation; and

(2) Has not completed abatement because of factors beyond its control.