R 408.22355 Petition for modification of abatement period.

Rule 2355. (1) An employer may file a petition for modification of an abatement date when the employer has made a good faith effort to comply with the abatement requirements of a citation that has become a final order of the board, but the abatement has not been completed because of factors beyond the employer's reasonable control. (2) A petition for modification of an abatement date must be in writing and include the following information: (a) Steps taken by the employer, and the dates of those steps, in an effort to comply during the prescribed abatement period. (b) The specific additional abatement time needed in order to comply. (c) The reasons the 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. (d) Available interim steps being taken to safeguard the employees against the cited hazard during the abatement period. (e) A certification that the petition for modification of an abatement date has been filed and posted in accordance with subrule (4) of this rule. (3) A petition for modification of an abatement date must be filed with the board no later than the close of the next working day following the date on which abatement was originally required. A petition filed later must be accompanied by the employer's statement of exceptional circumstances explaining the delay. (4) On the same day that the petition is filed with the board, a copy of the petition must be filed with the department that issued the citation and a copy must be posted by the employer in a conspicuous place at or near the place where the citation was required to be posted and remain posted for a period of 10 working days. (5) The department, affected employees, or their representatives may file a written objection to the petition with the board setting forth the reasons for opposing the petition. An objecting party shall also file a copy of the written objection with the other parties. Failure to file an objection within 10 working days after the date the petition was filed constitutes a waiver of any further right to object to the petition. (6) The board may approve without a hearing a petition for modification of an abatement date to which an objection has not been filed. (7) Where a petition is objected to by the department or affected employees, the petition must be processed as follows: (a) The board shall process the petition in the same manner as any other contested case, except that a hearing on the petition must be handled in an expeditious fashion. (b) An employer petitioning for a modification of an abatement date shall have the burden of proving by a preponderance of the evidence that the employer has made a good faith effort to comply with the abatement requirements of the citation and that abatement has not been completed because of factors beyond the employer’s control.