Current through Register Vol. 46, No. 39, September 25, 2024
(a) In determining the amount of the civil
penalty to be assessed for each day for which a violation remains unabated, the
following factors shall be taken into consideration:
(1) The gravity of the violation, including:
(i) the probability of the injury or illness
occurring, as determined by the use of the factors listed under subdivision (b)
or (c) of this section;
(ii) the
severity of the injury or illness which could result from the violation;
and
(iii) the characterization of
the violation as a willful and/or repeat violation.
(2) The existence of penalty adjustment
factors, if applicable, which shall include:
(i) consideration of the small size of the
employer's workforce, taking into account the number of employees at all
workplaces controlled by the employer during the 12 months preceding the
inspection conducted following the abatement date;
(ii) the existence of genuine and effective
good faith efforts of the employer to correct safety and health violations;
and
(iii) the lack of any
significant history of previous violations.
(b) In connection with a safety violation,
the following factors shall be considered in determining the probability of the
injury or illness occurring:
(1) the number
of workers exposed to the hazard sought to be prevented by the standard,
provision, or regulation which the employer has violated;
(2) the frequency to which employees are
exposed to the hazard;
(3) the
proximity of employees to the hazard;
(4) the working conditions at the workplace
where the violation has occurred, including environmental conditions and
factors such as speed of operations, lighting, temperature, weather conditions,
noise and housekeeping, which may influence the likelihood of an
injury-producing accident;
(5) the
existence of mitigating circumstances or additional contributing factors;
and
(6) the number of instances of
the violation found during the first inspection conducted following the
abatement date.
(c) In
connection with a health violation, the following factors shall be considered
in determining the probability of the injury or illness occurring:
(1) the number of workers exposed to the
hazard sought to be prevented by the standard, provision, or regulation which
the employer has violated;
(2) the
duration of exposure to the hazard to employees;
(3) the extent to which an effective personal
protective equipment program is in effect;
(4) the extent to which an effective medical
surveillance program is in effect (if applicable);
(5) the existence of mitigating circumstances
or additional contributing factors; and
(6) the number of instances of the violation
found during the first inspection conducted following the abatement
date.
(d) The
commissioner retains the right to reduce the amount of the penalty should he or
she determine that, after consideration of the factors in subdivision (a) of
this section, extenuating circumstances justify such action.
