SENATE BILL NO. 203 February 2, 1999, Introduced by Senator GOUGEON and referred to the Committee on Human Resources, Labor, Senior Citizens and Veterans Affairs. A bill to amend 1974 PA 154, entitled "Michigan occupational safety and health act," by amending sections 33, 35, 35a, and 36 (MCL 408.1033, 408.1035, 408.1035a, and 408.1036), section 33 as amended by 1996 PA 87 and sections 35 and 36 as amended and section 35a as added by 1991 PA 105. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 33. (1) If, as the result of an inspection or investi- 2 gation, the department representative believes that an employer 3 has violated this act, an order issuedpursuant toUNDER this 4 act, or a rule or standard promulgatedpursuant toUNDER this 5 act, he or she shall issue a citation immediately or within 90 6 days after the completion of the physical inspection or 7 investigation. The citation shall be in writing and shall 8 describe with particularity the nature of the violation, 00128'99 DMS 2 1 including a reference to the provision of this act, or an order 2 issued or a rule or standard promulgatedpursuant toUNDER this 3 act, alleged to have been violated. The citation shall state a 4 reasonable time by which the violation is to be abated, WHICH 5 SHALL BE NOT LESS THAN 14 CONSECUTIVE DAYS. The citation shall 6 state on its face that it is an allegation of a violation. The 7 date shall be set with due regard to the seriousness of the 8 hazard and the difficulty of abating it. The citation and the 9 proposed penalty, if any, may be presented to and shall, in each 10 case, be sent by registered mail to the employer, and a copy 11 shall be filed at the time of issuance with the appropriate 12 department. 13 (2) The employer shall post a copy of the citation at or 14 near the place of the violation, and the citation copy shall 15 remain posted at that site until compliance is achieved or for 3 16 working days, whichever is later. 17 (3) The employer upon whom a citation is served shall notify 18 the appropriate department of compliance with this act, OR COM- 19 PLIANCE WITH an order issuedpursuant to this act,or a rule or 20 standard promulgatedpursuant toUNDER this act. 21 (4) If an employer fails to correct a violation for which a 22 citation was issued within the period permitted for its correc- 23 tion, the department shall notify the employer by registered mail 24 of that failure,and ofthe penalty proposed to be assessed 25 under section 35 for the failure, AND THE EMPLOYER'S RIGHT TO 26 APPLY THAT PENALTY TO THE COSTS OF CORRECTING THE VIOLATION UNDER 27 SECTION 35. 00128'99 3 1 (5) If it is determined upon inspection or investigation 2 that a violation of this act, an order issuedpursuant toUNDER 3 this act, or a rule or standard promulgatedpursuant toUNDER 4 this act exists, but that the conditions that constitute the vio- 5 lation have no direct or immediate relationship to the safety or 6 health of workers, the department may issue a notice in place of 7 a citation. A notice issued under this subsection shall be 8 referred to as a "de minimis notice of violation". The employer 9 shall post a copy of the de minimis notice of violation at or 10 near the place of violation for 3 working days. The department 11 shall promulgate all necessary rules for administering the de 12 minimis notice of violation. 13 (6) A citation for an alleged violation of this act, an 14 order issuedpursuant toUNDER this act, or a rule or standard 15 promulgatedpursuant toUNDER this act shall be vacated if it 16 is shown that the employer has provided the equipment or train- 17 ing, educated employees regarding use of the equipment or imple- 18 mentation of the training, and taken reasonable steps including, 19 where appropriate, disciplinary action to assure that employees 20 utilize the equipment and comply with the training as referenced 21 in this section. 22 Sec. 35. (1) An employer who receives a citation for a 23 serious violation of this act, an order issuedpursuant to24 UNDER this act, or a rule or standard promulgated under this act 25 shall be assessed a civil penalty of not more than $7,000.00 for 26 each violation. THE EMPLOYER MAY APPLY THE CIVIL PENALTY AMOUNT 00128'99 4 1 ASSESSED UNDER THIS SUBSECTION TO THE COST OF CORRECTING THE 2 SERIOUS VIOLATION. 3 (2) An employer who fails to correct a violation for which a 4 citation was issued within the period permitted for its correc- 5 tion may be assessed a civil penalty of not more than $7,000.00 6 for each dayduring whichTHAT the failure or violation 7 continues. A period permitted for corrections does not begin to 8 run until the date of the final order of the board if a review 9 proceeding before a board is initiated by the employer in good 10 faith and not solely for delay or avoidance of a penalty. 11 ADDITIONALLY, THE EMPLOYER MAY APPLY THE CIVIL PENALTY AMOUNT 12 ASSESSED UNDER THIS SUBSECTION TO THE COST OF CORRECTING THE 13 VIOLATION. 14 (3)AnIF AN employerwhoreceives a citation for a vio- 15 lation of this act, an order issuedpursuant toUNDER this act, 16 or a rule or standard promulgated under this act,whichAND THE 17 violation is specifically determined not to be of a serious 18 nature, THE EMPLOYER may be assessed a civil penalty of not more 19 than $7,000.00 for each violation. THE EMPLOYER MAY APPLY THE 20 CIVIL PENALTY AMOUNT ASSESSED UNDER THIS SUBSECTION TO THE COST 21 OF CORRECTING THE VIOLATION. 22 (4) An employer who willfully or repeatedly violates this 23 act, an order issuedpursuant toUNDER this act, or a rule or 24 standard promulgated under this act may be assessed a civil pen- 25 alty of not more than $70,000.00 for each violation, but not less 26 than $5,000.00 for each willful violation. FOR EACH VIOLATION 27 DESCRIBED IN THIS SUBSECTION THAT IS NOT WILLFUL, THE EMPLOYER 00128'99 5 1 MAY APPLY THE CIVIL PENALTY AMOUNT ASSESSED UNDER THIS SUBSECTION 2 TO THE COST OF CORRECTING THAT VIOLATION. 3 (5) An employer who willfully violates this act, an order 4 issuedpursuant toUNDER this act, or a rule or standard 5 promulgated under this actwhichTHAT causes the death of an 6 employee is guilty of a felony and shall be fined not more than 7 $10,000.00, or imprisoned for not more than 1 year, or both. If 8 the conviction is the second under this act, the person shall be 9 fined not more than $20,000.00, or imprisoned for not more than 3 10 years, or both. 11 (6) An employer who violates a posting requirement pre- 12 scribed under this act shall be assessed a civil penalty of not 13 more than $7,000.00 for each violation THAT IS NOT CORRECTED 14 WITHIN 1 DAY AFTER RECEIVING NOTICE OF THAT VIOLATION. 15 (7) A person who knowingly makes a false statement, repre- 16 sentation, or certification in an application, record, report, 17 plan, or other document filed or required to be maintained 18pursuant toUNDER this act, or who fails to maintain or trans- 19 mit a record or report as required under section 61, is guilty of 20 a misdemeanor and shall be fined not more than $10,000.00, or 21 imprisoned for not more than 6 months, or both. 22 (8) A person who gives advance notice of an investigation or 23 an inspection to be conducted under this act without authority 24 from the appropriate director or the designee of the director is 25 guilty of a misdemeanor and shall be fined not more than 26 $1,000.00, or imprisoned for not more than 6 months, or both. 00128'99 6 1 (9)The department of labor or the department of public2health, if the employer is a public employer, insteadINSTEAD of 3 applying a civil penalty otherwise applicable to an employer 4 under this section, THE DEPARTMENT OF CONSUMER AND INDUSTRY SERV- 5 ICES, OR IF THE EMPLOYER IS A PUBLIC EMPLOYER, THE DEPARTMENT OF 6 COMMUNITY HEALTH, may request that the attorney general seek a 7 writ of mandamus in theappropriatecircuit court HAVING APPRO- 8 PRIATE VENUE to compel compliance with a citation, including the 9 terms of abatement. 10 (10) A person shall not assault a department representative 11 or other person charged with enforcement of this act in the per- 12 formance of that person's legal duty to enforce this act. A 13 person who violates this subsection is guilty of a misdemeanor. 14 A prosecuting attorney having jurisdictionofOVER this matter 15andOR the attorney general knowing of a violation of this sec- 16 tion may prosecute the violator. 17(11) The increases in the civil penalties of subsections18(1), (2), (3), (4), and (6) made pursuant to the 1991 amendatory19act that added this subsection shall take effect April 1, 1992.20 Sec 35a. (1) An employer who receives a citation for a 21 serious violation of this act, an order issuedpursuant to22 UNDER this act, or a rule or standard promulgated under this act 23 shall be assessed a civil penalty of not more than $1,000.00 for 24 each violation. THE EMPLOYER MAY APPLY THE CIVIL PENALTY AMOUNT 25 ASSESSED UNDER THIS SUBSECTION TO THE COST OF CORRECTING THE 26 SERIOUS VIOLATION. 00128'99 7 1 (2) An employer who fails to correct a violation for which a 2 citation was issued within the period permitted for its 3 correction may be assessed a civil penalty of not more than 4 $1,000.00 for each day during which the failure or violation 5 continues. A period permitted for corrections does not begin to 6 run until the date of the final order of the board if a review 7 proceeding before a board is initiated by the employer in good 8 faith and not solely for delay or avoidance of a penalty. 9 ADDITIONALLY, THE EMPLOYER MAY APPLY THE CIVIL PENALTY AMOUNT 10 ASSESSED UNDER THIS SUBSECTION TO THE COST OF CORRECTING THE 11 VIOLATION. 12 (3)AnIF AN employerwhoreceives a citation for a vio- 13 lation of this act, an order issuedpursuant toUNDER this act, 14 or a rule or standard promulgated under this act,whichAND THE 15 violation is specifically determined not to be of a serious 16 nature, THE EMPLOYER may be assessed a civil penalty of not more 17 than $1,000.00 for each violation. THE EMPLOYER MAY APPLY THE 18 CIVIL PENALTY AMOUNT ASSESSED UNDER THIS SUBSECTION TO THE COST 19 OF CORRECTING THE VIOLATION. 20 (4) An employer who willfully or repeatedly violates this 21 act, an order issuedpursuant toUNDER this act, or a rule or 22 standard promulgated under this act may be assessed a civil pen- 23 alty of not more than $10,000.00 for each violation. FOR EACH 24 VIOLATION DESCRIBED IN THIS SUBSECTION THAT IS NOT WILLFUL, THE 25 EMPLOYER MAY APPLY THE CIVIL PENALTY AMOUNT ASSESSED UNDER THIS 26 SUBSECTION TO THE COST OF CORRECTING THAT VIOLATION. 00128'99 8 1 (5) An employer who willfully violates this act, an order 2 issuedpursuant toUNDER this act, or a rule or standard 3 promulgated under this actwhichTHAT causes the death of an 4 employee is guilty of a felony and shall be fined not more than 5 $10,000.00, or imprisoned for not more than 1 year, or both. If 6 the conviction is the second under this act, the person shall be 7 fined not more than $20,000.00, or imprisoned for not more than 3 8 years, or both. 9 (6) An employer who violates a posting requirement pre- 10 scribed under this act shall be assessed a civil penalty of not 11 more than $1,000.00 for each violation THAT IS NOT CORRECTED 12 WITHIN 1 DAY AFTER RECEIVING NOTICE OF THAT VIOLATION. 13 (7) A person who knowingly makes a false statement, repre- 14 sentation, or certification in an application, record, report, 15 plan, or other document filed or required to be maintained 16pursuant toUNDER this act, or who fails to maintain or trans- 17 mit a record or report as required under section 61, is guilty of 18 a misdemeanor and shall be fined not more than $10,000.00, or 19 imprisoned for not more than 6 months, or both. 20 (8) A person who gives advance notice of an investigation or 21 an inspection to be conducted under this act without authority 22 from the appropriate director or the designee of the director is 23 guilty of a misdemeanor and shall be fined not more than 24 $1,000.00, or imprisoned for not more than 6 months, or both. 25 (9)The department of labor or the department of public26health, if the employer is a public employer, insteadINSTEAD of 27 applying a civil penalty otherwise applicable to an employer 00128'99 9 1 under this section, THE DEPARTMENT OF CONSUMER AND INDUSTRY 2 SERVICES, OR IF THE EMPLOYER IS A PUBLIC EMPLOYER, THE DEPARTMENT 3 OF COMMUNITY HEALTH, may request that the attorney general seek a 4 writ of mandamus in theappropriatecircuit court HAVING APPRO- 5 PRIATE VENUE to compel compliance with a citation, including the 6 terms of abatement. 7 (10) A person shall not assault a department representative 8 or other person charged with enforcement of this act in the per- 9 formance of that person's legal duty to enforce this act. A 10 person who violates this subsection is guilty of a misdemeanor. 11 A prosecuting attorney having jurisdictionofOVER this matter 12andOR the attorney general knowing of a violation of this sec- 13 tion may prosecute the violator. 14 Sec. 36. (1) The board shall assess civil penalties, con- 15 sidering the size of the business, the seriousness of the viola- 16 tion, the good faith efforts of the employer, and the history of 17 previous citations, and may establish a schedule of civil 18 penalties. IN ASSESSING CIVIL PENALTIES OR ESTABLISHING A SCHED- 19 ULE OF CIVIL PENALTIES, THE BOARD SHALL NOT CONSIDER A PRIOR VIO- 20 LATION THAT WAS CORRECTED WITHIN 14 DAYS AFTER ISSUANCE OF A 21 CITATION OR DE MINIMIS NOTICE OF VIOLATION. 22 (2)BeginningSUBJECT TO THIS ACT, AFTER April 1, 1992, 23 the department oflaborCONSUMER AND INDUSTRY SERVICES and the 24 department ofpublicCOMMUNITY health shall administer and 25 enforce the assessment of civil penalties in a manner that is 26 consistent with the administration and enforcement of civil 00128'99 10 1 penalties by the federal occupational safety and health 2 administration. 3 (3) A civil penalty owed under this act AND NOT APPLIED TO 4 THE COST OF CORRECTING A VIOLATION IN ACCORDANCE WITH THIS ACT 5 shall be paid to the department oflaborCONSUMER AND INDUSTRY 6 SERVICES or the department ofpublicCOMMUNITY health, which- 7 ever is appropriate, within 15 working days after the date the 8 penalty becomes a final order of the board,AND IS not subject 9 to further agency or judicial review.BeginningAFTER April 1, 10 1992, a civil penalty THAT IS NOT APPLIED TO THE COST OF CORRECT- 11 ING A VIOLATION IN ACCORDANCE WITH THIS ACT shall be credited to 12 the state general fund. 13 (4) If a civil penalty THAT IS NOT APPLIED TO THE COST OF 14 CORRECTING A VIOLATION IN ACCORDANCE WITH THIS ACT remains unpaid 15 beyond the period of time specified in subsection (3), the 16 department oflaborCONSUMER AND INDUSTRY SERVICES or the 17 department ofpublicCOMMUNITY health, whichever is appropri- 18 ate, shall issue a letter to the employer demanding payment 19 within 20 days after the date of the letter. 20 (5) If the penalty remains unpaid following the period spec- 21 ified in subsection (4), the appropriate department shall trans- 22 mit information on the amount of the penalty and the name and 23 address of the employer owing the penalty to the department of 24 treasury. 25 (6) The department of treasury shall institute proceedings 26 to collect the amount assessed as a civil penalty AND DESCRIBED 27 IN SUBSECTION (4) AFTER RECEIVING THE INFORMATION DESCRIBED IN 00128'99 11 1 SUBSECTION (5). The department of treasury shall offset the 2 amount of the penalty against money owed by the state to the 3 employer. The department of treasury shall request that the 4 attorney general recover the amount of the penalty remaining 5 unpaid, after offsets, by instituting a civil action in the cir- 6 cuit courtforIN the county in which the violation occurred or 7 in the circuit courtforIN the county in which the employer 8 owing the penalty has its principal place of business. 00128'99 Final page. DMS