2019 New Mexico Statutes
Chapter 50 - Employment Law
Article 9 - Occupational Health and Safety
Section 50-9-17 - Enforcement; appeals.
A. If as a result of investigation the department has good cause to believe that any employer is violating any provision of the Occupational Health and Safety Act or any rule of the board, the department shall send prompt notice of the violation by certified mail to the employer believed to be in violation. The citation shall describe with particularity the provision of the Occupational Health and Safety Act or rule alleged to have been violated. The notice shall also state the time for abatement of the violation. Each citation issued pursuant to this section, or a copy thereof, shall be promptly and prominently posted by the cited employer, as prescribed in rules issued by the board, at or near the place where the violation occurred. No citation may be issued under this section after the expiration of six months following the occurrence of any violation. The board may issue a regulation prescribing procedures for the use of a notice in lieu of a citation with respect to de minimis violations that have no direct or immediate relationship to safety or health.
B. If the department issues a citation as provided in Subsection A of this section, it shall, within a reasonable time after issuance of the citation, notify the employer by certified mail of the penalty, if any, proposed to be assessed and that the employer has fifteen working days within which to notify the department in writing that he wishes to contest the citation or proposed penalty. If within fifteen working days from the receipt of the notice issued by the department the employer fails to notify the department that he intends to contest the citation or proposed penalty and no notice is filed by an employee or employee representative as provided by Subsection D of this section within that time, the citation and the assessment of penalty, if any, as proposed shall be deemed the final order of the commission and not subject to review by any court or agency.
C. If the department has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the abatement period permitted, which period shall not begin to run until the entry of a final order by the commission in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties, the department shall notify the employer by certified mail of the failure to correct and of the penalty proposed to be assessed by reason of the failure and that the employer has fifteen working days within which to notify the department in writing that he wishes to contest the department's notification or the proposed assessment of penalty. If within fifteen working days from the receipt of notification issued by the department the employer fails to notify the department that he intends to contest the notification or proposed assessment of penalty, the notification and assessment as proposed shall be deemed a final order of the commission and not subject to review by any court or department.
D. If any employer notifies the department in writing that he intends to contest the citation issued to him pursuant to provisions of Subsection A of this section or notification issued pursuant to provisions of Subsection B or C of this section or if within fifteen working days of the receipt of notice pursuant to the provisions of this section any employee of an employer cited or any employee's representative files a notice with the department alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the department shall provide prompt opportunity for informal administrative review. If the matter is not successfully resolved at the informal administrative review, the petitioner may request a hearing before the commission within fifteen days after the administrative review. The commission shall afford an opportunity for a hearing within thirty days after receipt of the petition. The commission shall thereafter issue an order, based on findings of fact, affirming, modifying or vacating the department's citation or the proposed penalty fixed by the department or directing other appropriate relief.
E. At any time prior to the expiration of an abatement period, an employer may notify the department in writing that he is unable to take the corrective action required within the period of abatement. The department shall provide prompt opportunity for informal administrative review. If the matter is not successfully resolved at the informal administrative review, the petitioner may request a hearing before the commission after the administrative review. The commission shall afford prompt opportunity for a hearing after receipt of the petition. The only grounds for modifying an abatement period provided by this subsection are a showing by the employer of a good-faith effort to comply with the abatement requirement of a citation and that abatement has not been completed because of factors beyond the employer's control.
F. Affected employees or their representatives shall be provided an opportunity to participate as parties at both informal administrative review and commission hearings provided for in this section.
G. Any person, including the department, adversely affected by an order of the commission issued pursuant to provisions of this section may obtain a review of the order in the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
History: 1953 Comp., § 59-14-16, enacted by Laws 1972, ch. 63, § 16; 1975, ch. 290, § 12; 1993, ch. 322, § 15; 1998, ch. 55, § 47; 1999, ch. 265, § 50.
ANNOTATIONSThe 1999 amendment, effective July 1, 1999, substituted "Section 39-3-1.1" for "Section 12-8A-1" in Subsection G.
The 1998 amendment, effective September 1, 1998, in the section heading, inserted "; appeals"; in Subsection A, substituted "rule" for "regulation" in two places and "rules" for "regulations"; in Subsection B, substituted "as provided in" for "under"; in Subsection D, substituted "pursuant to provisions of" for "under" three times, inserted "of this section"; in Subsection E, substituted "provided by" for "under"; in Subsection F, substituted "provided for in" for "under"; rewrote Subsection G; and made minor stylistic changes throughout the section.
The 1993 amendment, effective April 8, 1993, substituted "department" for "agency" and "department's" for "agency's" throughout the section; made minor stylistic changes in Subsections A and B; deleted "occupational health and safety review" preceding "commission" in the second sentence of Subsection D and in the third sentence of Subsection E; deleted "and such order shall become final fifteen days after its issuance" at the end of Subsection D; rewrote Subsection G to the extent that a detailed comparison is impracticable; and deleted former Subsection H, pertaining to the procedure for appeals from decisions of the district court.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 61 Am. Jur. 2d Plant and Job Safety - OSHA and State Laws § 132.
Judicial relief against, or review of, action or orders of Occupational Safety and Health Review Commission under Occupational Safety and Health Act of 1970 (29 U.S.C.S. §§ 651 et seq.), 22 A.L.R. Fed. 508.
Validity, under Federal Constitution, of provisions of Occupational Safety and Health Act of 1970 (29 U.S.C.S. §§ 651 et seq.) relating to inspections, enforcement of civil penalties and administrative or judicial review, 34 A.L.R. Fed. 82.
Economic feasibility as factor affecting validity of, or obligation of compliance with, standards established under Occupational Safety and Health Act (29 USCS § 651 et seq.), 68 A.L.R. Fed. 732.
Who is "employer" for purposes of Occupational Safety and Health Act (29 USCA §§ 651 et seq.), 153 A.L.R. Fed. 303.
