February 7, 2006, Introduced by Reps. Robertson, Shaffer, Gosselin, Vander Veen, Drolet, Marleau, Sheen, Ball, Pastor, Garfield, Baxter and Farhat and referred to the Committee on Commerce.
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 proposed to be assessed under
section
35 for the failure, and the employer's right to apply that
penalty 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 of not more than $7,000.00 for each
violation. The employer may apply the civil penalty amount 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 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. Additionally, the employer may
apply the civil penalty amount 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 of not more
than $7,000.00 for each violation. The employer may apply the civil
penalty amount 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 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 penalty amount 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 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
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 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 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 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 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,
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. In assessing civil penalties or establishing a schedule
of civil penalties, 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 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 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 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 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 that is not 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 remains unpaid following the period
specified in subsection (4), the appropriate department shall
transmit information on the amount of the penalty and the name and
address of the employer owing the penalty to the department of
treasury.
(6) The department of treasury shall institute proceedings to
collect the amount assessed as a civil penalty as described in
subsection (4) after receiving the information described in
subsection (5). The department of treasury shall offset the amount
of the penalty 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 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 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.