610 IAC 9-4-6 Failure to correct violations

Sec. 6. (a) Failure to correct penalties are proposed when: (1) a previous safety order issued to an employer has become a final order under IC 22-8-1.1-35.6(a); and (2) the condition, hazard, or practice found on reinspection is the same for which the employer was originally issued a safety order and has never been corrected by the employer, meaning the violation has been continuous. (b) A GBP for unabated violations is to be calculated for failure to correct a serious or nonserious violation based on the facts noted on reinspection. This recalculated GBP, however, may not be less than that proposed for the item when originally issued. The division director may reduce or eliminate the daily proposed penalty when the CSHO believes and documents in the case file that the employer has made a good faith effort to correct the violation and had an objectively reasonable belief that it was fully abated. (c) Egregious cases are handled under the OSHA CPL 02-00-080, Handling of Cases to be Proposed for Violation-By-Violation Penalties, dated October 21, 1990. (d) In instances where no penalty was initially proposed, an appropriate penalty shall be determined after consulting with the division director. In no case may the GBP be less than one thousand dollars ($1,000) per day. (e) Only the reduction factor for size, based on the circumstances noted during the reinspection, may be applied to arrive at the daily proposed penalty. (f) The daily proposed penalty is multiplied by the number of calendar days the violation has continued unabated, except as follows: (1) The number of days unabated are counted from the day after the abatement date specified in the safety order or final order. This must include the calendar days between that date and the date of reinspection, excluding the date of reinspection. (2) Normally, the maximum proposed penalty for failure to correct a particular violation may not exceed thirty (30) times the amount of the daily proposed penalty. (3) At the discretion of the division director, a lesser penalty may be proposed. The reasoning for the lesser penalty must be fully explained (e.g., achievement of an appropriate deterrent effect) in the case file. (4) If a penalty exceeding the normal maximum amount of thirty (30) times the amount of the daily proposed penalty is considered necessary by the division director to deter continued nonabatement, the case shall be treated under the violation-by-violation or egregious penalty procedures established in the OSHA CPL 02-00-080, Handling of Cases to be Proposed for Violation-By-Violation Penalties, dated October 21, 1990. (g) When a safety order has been partially abated, the division director may authorize a reduction of twenty-five percent (25%) to seventy-five percent (75%) to the amount of the proposed penalty calculated as outlined in subsection (f). (h) When a violation consists of multiple instances and the follow-up inspection reveals that only some instances of the violation have been corrected, the additional daily proposed penalty must take into consideration the extent of the abatement efforts. (i) When an employer continues to fail to correct a violation and it becomes appropriate to issue a second failure to correct violation for the same hazard, there may be no reduction in penalty, and the penalty is issued at seven thousand dollars ($7,000) per day for not more than thirty (30) days.