§ 321.4. Determination of penalty amount.
(a) Power of assessment. The Department has the authority to assess civil penalties from $500 to $10,000 for each violation of the act, unless a greater amount is specified elsewhere in the act, giving consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the respondent and the history of previous violations. The amount of the civil penalty shall be based upon the point-system formula set forth in this section.
(b) Calculation of penalties. Four criteria will be used to determine the penalty amount. The criterion will be assigned points under the schedule in paragraph (1):
(1) Size of business. This criterion will take into consideration the number of employes on the date of the violations who are regularly assigned to the workplace where the violation occurred. A maximum of 25 points may be assigned to this criterion under the following:
Number of employes Points 1 to 9 5 10 to 19 10 20 to 29 15 30 to 49 20 more than 50 25
(2) Gravity of violation. The criteria will be based upon two factorsthe type of information which appropriate persons are not able to obtain under the act, and the extent to which the information is not provided. A factor may be assigned points under the schedule in this paragraph. Total points may not exceed 25 for both factors combined.
(i) The type of information involved in the violation:
Type of Information Points Material Safety Data Sheets 1-5 Labels 1-5 Notice of Employes Rights 5-10 Training 5-10 Any List of Hazardous Substances 5-10
(ii) Extent to which information is not provided:
Information Points Not prepared 5-15 Incomplete 1-5 Inaccurate 1-10 Out-of-Date 1-5 Prepared but Not Accessible 5-15
(3) History of previous violations. This criterion shall be based on the number of assessed violations in the subject workplace in a preceding 12 month period. Only violations for which penalties are paid and which are not subject to further appeal may be included. These criteria may account for up to 25 penalty points:
Number of violations in the subject workplace over preceding 12-month period Points 0-5 0 6-10 5 11-15 10 Over 15 25
(4) Good faith of respondent. This criteria may be used to reduce the point calculation, based upon credits given for the respondents good faith in abating the violation and will result in a reduction of total penalty points as follows:
Points Abate the violation within 1 working day of receipt of an order to comply. 25 Abate the violation within the time given in the order to comply, without extensions. 20 Abate the violation within the time period given in the order to comply, with extensions. 15
(c) Determination of penalty.
(1) The net total penalty points will be applied to the following penalty schedule to determine the penalty:
Points Penalty 0-25 $0 26 $500
(2) For each penalty point from 27 to 75, $194 may be added to the penalty. A penalty calculated under this section may not exceed $10,000.
(d) Special assessments.
(1) If the violation has not been abated within the time period provided for in an order to comply, the Department may levy a further civil penalty of not more than $5,000 per day for a violation.
(2) If the employer fails to abate a violation for which no penalty has been assessed, the Department may assess a civil penalty of $500.
(3) If the employer fails to abate a violation for which a penalty has been assessed, the Department may assess a daily civil penalty equal to the amount calculated under the penalty system, but not to exceed $5,000 per day.
(e) Director responsibilities. Penalty assessments will be determined initially by the Director or a designee.
(1) The penalty assessment may not be determined by the inspector who issued the order containing the violation being assessed; however, the inspector may provide information regarding the criteria upon which the penalty is assessed.
(2) The Director may conduct informal conferences with the parties prior to a formal review under this chapter.
(f) Waiver of point system. The Director has the authority to waive application of the point system for good cause shown.
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