March 15, 2007, Introduced by Reps. Robertson, Shaffer, Pastor, LaJoy, Garfield, Marleau, Moss, Sheen, Ball, Stahl and Wenke and referred to the Committee on Labor.
A bill to amend 1974 PA 154, entitled
"Michigan occupational safety and health act,"
by amending sections 33, 35, and 36 (MCL 408.1033, 408.1035, and
408.1036), section 33 as amended by 1996 PA 87 and sections 35 and
36 as amended by 1991 PA 105; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 33. (1) If, as the result of an inspection or
investigation, the department representative believes that an
employer
has violated this act, an order issued pursuant to under
this
act, or a rule or standard promulgated pursuant to under this
act, he or she shall issue a citation immediately or within 90 days
after the completion of the physical inspection or investigation.
The citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference to
the provision of this act, or an order issued or a rule or standard
promulgated
pursuant to under this act, alleged to have been
violated. The citation shall state a reasonable time by which the
violation is to be abated, which shall be not less than 14
consecutive days. The citation shall state on its face that it is
an allegation of a violation. The date shall be set with due regard
to the seriousness of the hazard and the difficulty of abating it.
The citation and the proposed penalty, if any, may be presented to
and shall, in each case, be sent by registered mail to the
employer, and a copy shall be filed at the time of issuance with
the appropriate department.
(2) The employer shall post a copy of the citation at or near
the place of the violation, and the citation copy shall remain
posted at that site until compliance is achieved or for 3 working
days, whichever is later.
(3) The employer upon whom a citation is served shall notify
the
appropriate department of compliance with this act , or
compliance
with an order issued pursuant to
this act, or a rule or
standard
promulgated pursuant to under
this act.
(4) If an employer fails to correct a violation for which a
citation was issued within the period permitted for its correction,
the department shall notify the employer by registered mail of that
failure, and
of the penalty civil
fine proposed to be assessed
under
section 35 for the failure, and the employer's right to apply
that civil fine to the costs of correcting the violation as
provided in section 35.
(5) If it is determined upon inspection or investigation that
a
violation of this act, an order issued pursuant to under this
act,
or a rule or standard promulgated pursuant to under this
act
exists, but that the conditions that constitute the violation have
no direct or immediate relationship to the safety or health of
workers, the department may issue a notice in place of a citation.
A notice issued under this subsection shall be referred to as a "de
minimis notice of violation". The employer shall post a copy of the
de minimis notice of violation at or near the place of violation
for 3 working days. The department shall promulgate all necessary
rules for administering the de minimis notice of violation.
(6) A citation for an alleged violation of this act, an order
issued
pursuant to under this act, or a rule or standard
promulgated
pursuant to under this act shall be vacated if it is
shown that the employer has provided the equipment or training,
educated employees regarding use of the equipment or implementation
of
the training, and taken reasonable steps including, where if
appropriate, disciplinary action to assure that employees utilize
the equipment and comply with the training as referenced in this
section.
Sec. 35. (1) An employer who receives a citation for a serious
violation
of this act, an order issued pursuant to under this act,
or a rule or standard promulgated under this act shall be assessed
a
civil penalty fine of not more than $7,000.00 for each violation.
The employer may apply the civil fine assessed under this
subsection to the costs of correcting the serious violation.
(2) An employer who fails to correct a violation for which a
citation was issued within the period permitted for its correction
may
be assessed a civil penalty fine
of not more than $7,000.00 for
each
day during which that the failure or violation continues. A
period permitted for corrections does not begin to run until the
date of the final order of the board if a review proceeding before
a board is initiated by the employer in good faith and not solely
for
delay or avoidance of a penalty fine.
Additionally, the
employer may apply the civil fine assessed under this subsection to
the costs of correcting the violation.
(3)
An If an employer who receives a citation for a
violation
of
this act, an order issued pursuant to under this act, or a rule
or
standard promulgated under this act, which and the violation
is
specifically determined not to be of a serious nature, the employer
may
be assessed a civil penalty fine
of not more than $7,000.00 for
each violation. The employer may apply the civil fine assessed
under this subsection to the costs of correcting the violation.
(4) An employer who willfully or repeatedly violates this act,
an
order issued pursuant to under
this act, or a rule or standard
promulgated
under this act may be assessed a civil penalty fine of
not more than $70,000.00 for each violation, but not less than
$5,000.00 for each willful violation. For each violation described
in this subsection that is not willful, the employer may apply the
civil fine assessed under this subsection to the costs of
correcting that violation.
(5) An employer who willfully violates this act, an order
issued
pursuant to under this act, or a rule or standard
promulgated
under this act which that causes the death of an
employee
is guilty of a felony and shall be fined punishable by
imprisonment for not more than 1 year or a fine of not more than
$10,000.00,
or imprisoned for not more than 1 year, or both. If the
conviction
is the second under this act, the person shall be fined
is guilty of a felony punishable by imprisonment for not more than
3
years or a fine of not more than
$20,000.00, or imprisoned for
not
more than 3 years, or both.
(6) An employer who violates a posting requirement prescribed
under
this act shall be assessed a civil penalty fine of
not more
than $7,000.00 for each violation that is not corrected within 1
day after receiving notice of that violation.
(7) A person who knowingly makes a false statement,
representation, or certification in an application, record, report,
plan,
or other document filed or required to be maintained pursuant
to
under this act, or who fails to maintain or transmit a
record or
report
as required under section 61, is guilty of a misdemeanor and
shall
be fined punishable by
imprisonment for not more than 6
months
or a fine of not more than $10,000.00, or
imprisoned for not
more
than 6 months, or both.
(8) A person who gives advance notice of an investigation or
an inspection to be conducted under this act without authority from
the appropriate director or the designee of the director is guilty
of
a misdemeanor and shall be fined punishable by imprisonment for
not
more than 6 months or a fine of not
more than $1,000.00, or
imprisoned
for not more than 6 months, or
both.
(9)
The department of labor or the department of public
health,
if the employer is a public employer, instead Instead of
applying
a civil penalty fine otherwise applicable to an employer
under this section, the department of labor and economic growth or,
if the employer is a public employer, the department of community
health may request that the attorney general seek a writ of
mandamus
in the appropriate circuit court for the county in which
venue is appropriate to compel compliance with a citation,
including the terms of abatement.
(10) A person shall not assault a department representative or
other person charged with enforcement of this act in the
performance of that person's legal duty to enforce this act. A
person who violates this subsection is guilty of a misdemeanor. A
prosecuting
attorney having jurisdiction of over
this matter and or
the attorney general knowing of a violation of this section may
prosecute the violator.
(11)
The increases in the civil penalties of subsections (1),
(2),
(3), (4), and (6) made pursuant to the 1991 amendatory act
that
added this subsection shall take effect April 1, 1992.
Sec.
36. (1) The board shall assess civil penalties fines,
considering the size of the business, the seriousness of the
violation, the good faith efforts of the employer, and the history
of previous citations, and may establish a schedule of civil
penalties
fines. In
assessing civil fines or establishing a
schedule of civil fines, the board shall not consider a prior
violation that was corrected within 14 days after the citation or
de minimis notice of violation was issued.
(2)
Beginning April 1, 1992, the The
department of labor and
economic
growth and the department of public community health shall
administer
and enforce the assessment of civil penalties fines in
a
manner that is consistent with the administration and enforcement
of civil penalties by the federal occupational safety and health
administration.
(3)
A civil penalty fine owed under this act and not applied
to the costs of correcting a violation in accord with this act
shall be paid to the department of labor and economic growth or the
department
of public community health, whichever is appropriate,
within
15 working days after the date the penalty fine becomes
a
final
order of the board , and
is not subject to further agency or
judicial
review. Beginning April 1, 1992, a A civil penalty fine
that is not applied to the costs of correcting a violation in
accord with this act shall be credited to the state general fund.
(4)
If a civil penalty fine that
has not been applied to the
costs of correcting a violation in accord with this act remains
unpaid beyond the period of time specified in subsection (3), the
department
of labor and economic growth or the department of public
community health, whichever is appropriate, shall issue a letter to
the employer demanding payment within 20 days after the date of the
letter.
(5)
If the penalty fine remains unpaid following the period
specified in subsection (4), the appropriate department shall
transmit
information on the amount of the penalty fine and the name
and
address of the employer owing the penalty fine to the
department of treasury.
(6) The department of treasury shall institute proceedings to
collect
the amount assessed as a civil penalty fine as described in
subsection (4) after receiving the information described in
subsection (5). The department of treasury shall offset the amount
of
the penalty fine against money owed by the state to the
employer. The department of treasury shall request that the
attorney
general recover the amount of the penalty fine remaining
unpaid, after offsets, by instituting a civil action in the circuit
court for the county in which the violation occurred or in the
circuit court for the county in which the employer owing the
penalty
fine has its principal place of business.
Enacting section 1. (1) Section 35a of the Michigan
occupational safety and health act, 1974 PA 154, MCL 408.1035a, is
repealed.
(2) Section 4 of 1991 PA 105 is repealed.