California Code of Regulations › Title 8 - Industrial Relations › Division 1 - Department of Industrial Relations › Chapter 3.3 - Occupational Safety and Health Appeals Board › Article 6 - Employers' Cost Recovery › Section 397 - Petition for Costs Procedures

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(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				  in the appeal or the citation is withdrawn, and the employer alleges that the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				  prevails in the appeal of the citation or the citation is withdrawn and the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 Board.
(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.