|
DIVISION OF OCCUPATIONAL SAFETY AND HEALTH POLICY AND PROCEDURES MANUAL |
COMPLETION OF PROPOSED PENALTY WORKSHEET |
P&P C-10 Issue Date: 6/2/92 Revised: 8/1/94, 2/1/95,1/1/00,7/6/04 |
AUTHORITY: California Labor Code Sec. 6317, 6319, 6427 et seq. and Title 8 California Code of Regulations Sec. 333 et seq.
POLICY: It is the policy of the Division of Occupational Safety and Health to assess a civil penalty for each serious, repeat, willful, failure-to-abate violation and for the following regulatory violations: failure to report carcinogen use; failure of a physician to report a pesticide-related illness; failure to conform to asbestos-related registration requirements, and failure to obtain a construction activity permit. Penalties for general and regulatory violations, which are not listed above, will also be proposed unless a Notice in lieu of a citation is issued by the Division in accordance with Labor Code §6317 and P&P C-4. PROCEDURES:
A. RESPONSIBILITIES
NOTE: The date the employer's appeal is docketed can be determined by telephoning the Appeals Board's Docketing Clerk.
B. SPECIFIC VIOLATIONS
There are seven types of regulatory violations for which the following gravity-based penalties are required and shall be entered in Item 12 on the Cal/OSHA Form 10:
NOTE: All of the above types of regulatory violations shall be adjusted for Good Faith, Size and History, except for the failure of a physician to report a pesticide-related illness and failure of the employer to report a serious injury or illness, or death.
NOTE: Examples of acceptable evidence of good faith effort include a timely attempt to abate the violation, copies of purchase orders for equipment to correct violative conditions and written instructions to modify, revise or direct procedures or processes to correct violative conditions.
NOTE: In determining the gravity-based penalty for a serious (non-carcinogen) violation that the Division determines caused a death or a serious injury, illness or exposure, the adjustments to the severity-based penalty for extent and likelihood shall only be rated as moderate or high, and in no case shall the gravity-based penalty be less than $18,000. Further reductions to the gravity-based penalty shall not be made for any reason other than the size of the employer being cited.
NOTE: The total civil penalty for serious carcinogen violations
is $2000 and shall not be modified or adjusted for any reason.
NOTE: Any employer who is cited for a repeat violation of any occupational safety or health standard, order or special order, or Section 25910 of the Health and Safety Code, shall not receive any adjustment of the penalty for History or Good Faith.
| Repeat | Factor |
| 1st | 2 |
| 2nd | 4 |
| 3rd or more | 10 |
| Repeat | Amount |
| 1st | $5,000 |
| 2nd | $10,000 |
| 3rd or more | $20,000 |
NOTE: Penalties for initial failure to report carcinogen violations are subject to adjustment for Good Faith, Size and History. Penalties for repeat failure to report carcinogen violations are not subject to adjustment for Good Faith, Size and History. When calculating the penalty for repeat regulatory violations concerning a carcinogen reporting requirement, transfer the penalty amount in Item 13 to Item 18 on the Cal/OSHA Form 10.
| Repeat | Amount |
| 1st | $10,000 |
| 2nd | $20,000 |
| 3rd or more | $40,000 |
NOTE: Penalties for repeat serious violations for use of a carcinogen are not subject to adjustment Good Faith, Size and History.
An abatement credit shall not be granted for any regulatory violation.
The gravity-based penalty for general and serious violations is reduced by 50% on the presumption that the employer will correct the violations by the abatement date. The resultant penalty is termed a "proposed penalty."
An abatement credit shall not be granted for the following types of violations:
NOTE: The failure to abate information on the Cal/OSHA Form 10 shall be used to complete the IMIS Form 2B.
EXCEPTION: If the severity of the violation is high and exposure to employees is continuous, or the employer has exhibited a high degree of negligence in failing to correct the violation, the penalty shall not be further reduced.
Penalties for a failure-to-abate violation shall not exceed $15,000 per day [8 CCR Sec. 336(f)].
To calculate the failure-to-abate penalty for regulatory violations, start with the gravity-based penalty in Item 12 of the Cal/OSHA Form 10 and then complete Items 19 through 26. See Section F. Forms Completion.
To calculate a failure-to-abate general violation, see Section F. (Forms Completion), Items 19 through 26.
C. SPECIAL PENALTY PROVISIONS
For any employer who violates any tower crane standard, order or special order, and such violation is determined to be a serious violation, the Division shall propose a civil penalty of $2,000. This penalty is not subject to adjustment for Good Faith, Size and History. If Items 13 through 18 are applicable, follow the instructions for regulatory violations (Non- carcinogen/pesticide-related illness). If Items 19 through 26A are applicable, follow the instructions for serious (Carcinogen) violations.
If a violation of 8 CCR Sec. 3457(c)(1)(A), (c)(1)(B), (c)(1)(C), (c)(2)(A),
(c)(2)(B), (c)(3)(B), (c)(3)(C), (c)(3)(G)(1), (c)(3)(G)(2) and (c)(3)(G)(3)
is classified as general, the penalty shall be $750. This penalty is
not subject to adjustment. If Items 13 through 26A are applicable, follow
the procedures for repeat, willful or failure to abate general violations.
If the foregoing violations are classified as serious, follow the procedure
for Serious (Noncarcinogen). However, the minimum civil penalty for any
serious violation shall be no less than $750.
NOTE: A reduction can be applied to repeat or failure-to-abate penalties which are not disqualified by Items (1) through (5), but only under extraordinary circumstances and only with the written approval of the Deputy Chief for Field Operations.
*Discretionary penalty reduction, as permitted in Sec. 336(k) "multiple violations pertaining to a single hazard."
No civil penalty shall be proposed for any new employer in the State for a period of one year after the date the new employer establishes a business in the State for a regulatory or general violation of 8 CCR Sec. 3203 if the employer has made a good faith effort to comply with the requirements found in Sec. 3203.
No civil penalty shall be proposed for an employer who adopts, posts and implements in good faith, the Model Injury and Illness Prevention Program for Non-High Hazard Employment prepared by the Division pursuant to Labor Code 6401.7(j)(1) for a first violation of 8 CCR Sec. 3203. See P&P C-45A.
Governmental entities are not exempt from the imposition of civil penalties.
E. FORMS DISTRIBUTION
Office Support Staff shall file the original Cal/OSHA Form 10 in the employer's case file.
F. FORMS COMPLETION
Item Instruction
1
Enter the employer's name and mailing address.
2A
Initial InspectionEnter the compliance personnel ID number, Report Number, Fiscal Year of the initial inspection from the Cal/OSHA Form 1, the Region and District.
2B
Follow-up InspectionIf the penalty results from a follow-up inspection, enter the identifying information. Transfer the subsequent Good Faith, Size and History factors from the Cal/OSHA Form 1A to Figure 3 in Item 22.
3,4
Enter the citation numbers and item numbers sequentially from the Cal/OSHA Form 1B or 1B (IH)
5,6,7
For each citation number and item number, enter the respective information from Items 9, 11 and 6 of the Cal/OSHA Form 1B or 1B (IH).
8
If the citation item involves a carcinogen standard, enter a C.
9
Enter the penalty based upon the severity of the violation. See Item 12 of Cal/OSHA Form 1B.
10
Multiply the base penalty by the appropriate extent modification factor and enter the resulting value. See Item 13 of the Cal/OSHA Form 1B.
11
Multiply the base penalty by the appropriate likelihood modification factor and enter the resulting value. See Item 14 of the Cal/OSHA Form 1B.
12
Enter the sum of Items 9 through 11.
13
If the violation is repeat, multiply the gravity-based penalty in Item 12 by the appropriate factor and enter the resulting amount.
14
If a regulatory, general or serious violation is determined to be willful, multiply the value in item 12 by 5 and enter the resulting amount.
15
Enter the total percentage penalty adjustment factor from Figure 2 in Item 15.NOTE: If the employer does not have an operative Injury and Illness Prevention Program, as set forth in 8 CCR Section 3203, the penalty for any serious violation shall not be reduced for any reason other than the Size of the employer being charged. If the employer is being cited for a repeat violation, the penalty for any repeat violation shall not be reduced for any reason other than the Size of the employer being charged.Multiply the highest dollar amount in either Item 12, 13, or 14 by the adjustment factor, round down to the next whole dollar, and enter the resulting amount.
16
Subtract the dollar amount in Item 15 from the amount in Item 12, 13 or 14, round down to the next whole dollar, and enter the resulting amount.
17
Multiply the dollar amount in Item 16 by 50% (or divide by 1/2) for all violations subject to abatement credit, round down to the next whole dollar, and enter the resulting amount.
18
Subtract the abatement credit in Item 17 from the amount in Item 16, round down to the next lowest $5 and enter the resulting amount. Continue entering all violations in the rows provided until all cited violations have been entered and calculated. When all violations have been entered and calculated, total the civil penalties for each violation found in Item 18 and enter the total in Item 18A. Compliance personnel completing the Cal/OSHA Form 10 shall sign his or her name and date of signature in space 27.
Items 19 through 26 shall be completed when the violations previously cited are found during a follow-up inspection not to have been abated by the abatement dates indicated on the Cal/OSHA Form 2 (Citation and Notification of Penalty). A photocopy of the original Cal/OSHA 10 shall be used to calculate the failure- to-abate penalty.
19
Enter the abatement dates of all non-abated items from the Cal/OSHA Form 2. Dates are only entered in instances of failure-to-abate penalties.
20
Enter the date of the follow-up inspection.
21
When the violation has not been abated, enter the number of calendar days between the abatement day and the follow-up inspection day. Do not include in the count the abatement date and the follow-up inspection date.
22
Enter the total percentage penalty adjustment factor from Figure 3 in Item 22. Multiply the amount in Item 12 by the adjustment factor and enter the resulting amount. See P&P C-10, Section B.7.b.(4)(a) and (b).
23
Subtract the penalty adjustment in Item 22 from the amount in Item 12 and enter the resulting amount, which is called the daily penalty. The penalty shall not exceed $15,000 per day [8 CCR Sec. 336(f)].
24
If the employer corrected some instances, the penalty will be reduced accordingly. Multiply the amount in Item 23 by the ratio of number of instances not abated to total instances, round down to the next whole dollar, and enter the resulting amount.EXAMPLE: If out of 12 total instances, 8 have not been abated, the ratio is 8/12. If the amount in Item 23 is $2,000, then multiply $2,000 x 8/12, which equals $1333.
25
Transfer the abatement credit dollar amount from Item 17 into Item 25.
26
Multiply the dollar amount in either Item 23 or Item 24 (multiply Item 24 only if one or more instances have been abated) by the number of days in Item 21, to this dollar amount add Item 25, round down to the next lower $5 value, and enter the resulting amount in Item 26.
26A
Enter the sum of the dollar amounts in Item 26. Continue entering all failure-to-abate violations in the rows provided until all cited failure-to-abate violations have been entered and calculated. When all failure-to-abate violations have been entered and calculated, total the failure-to-abate civil penalties for each violation found in Item 26 and enter the total in Item 26A.
27
The compliance personnel completing the Cal/OSHA Form 10 shall sign his or her name and date of signature in space 27 for inspections.
28
The compliance personnel completing the Cal/OSHA Form 10 shall sign his or her name and date of signature in space 28 for follow-up inspections.
Figure 1
Use the abbreviation listed when entering violation classification.
Figure 2
Transfer the percentage of Good Faith, Size and History factors from the Cal/OSHA Form 1A to Figure 2.
Figure 3
Transfer the percentage of Good Faith, Size and History factors from the Cal/OSHA Form 1A to Figure 3.
Attachments:
A -- General and Regulatory Violations Matrix
B -- Serious Violations Matrix [EXAMPLE NOT AVAILABLE]
C -- Cal/OSHA 10
ATTACHEMENT A
GENERAL/REGULATORY VIOLATIONS
|
Col.12/ Col. 15 |
80% |
75% |
70% |
65% |
60% |
55% |
50% |
45% |
40% |
35% |
30% |
25% |
20% |
15% |
10% |
5% |
|
$500 |
$100 |
$125 |
$150 |
$175 |
$200 |
$225 |
$250 |
$275 |
$300 |
$325 |
$350 |
$375 |
$400 |
$425 |
$450 |
$475 |
|
$750 |
$150 |
$188 |
$225 |
$263 |
$300 |
$338 |
$375 |
$413 |
$450 |
$488 |
$525 |
$563 |
$600 |
$638 |
$675 |
$713 |
|
$1,000 |
$200 |
$250 |
$300 |
$350 |
$400 |
$450 |
$500 |
$550 |
$600 |
$650 |
$700 |
$750 |
$800 |
$850 |
$900 |
$950 |
|
$1,125 |
$225 |
$281 |
$338 |
$394 |
$450 |
$506 |
$563 |
$619 |
$675 |
$731 |
$788 |
$844 |
$900 |
$956 |
$1,013 |
$1,069 |
|
$1,250 |
$250 |
$313 |
$375 |
$438 |
$500 |
$563 |
$625 |
$688 |
$750 |
$813 |
$875 |
$938 |
$1,000 |
$1,063 |
$1,125 |
$1,188 |
|
$1,500 |
$300 |
$375 |
$450 |
$525 |
$600 |
$675 |
$750 |
$825 |
$900 |
$975 |
$1,050 |
$1,125 |
$1,200 |
$1,275 |
$1,350 |
$1,425 |
|
$1,875 |
$375 |
$469 |
$563 |
$656 |
$750 |
$844 |
$938 |
$1,031 |
$1,125 |
$1,219 |
$1,313 |
$1,406 |
$1,500 |
$1,594 |
$1,688 |
$1,781 |
|
$2,000 |
$400 |
$500 |
$600 |
$700 |
$800 |
$900 |
$1,000 |
$1,100 |
$1,200 |
$1,300 |
$1,400 |
$1,500 |
$1,600 |
$1,700 |
$1,800 |
$1,900 |
|
$2,250 |
$450 |
$563 |
$675 |
$788 |
$900 |
$1,013 |
$1,125 |
$1,238 |
$1,350 |
$1,463 |
$1,575 |
$1,688 |
$1,800 |
$1,913 |
$2,025 |
$2,138 |
|
$2,500 |
$500 |
$625 |
$750 |
$875 |
$1,000 |
$1,125 |
$1,250 |
$1,375 |
$1,500 |
$1,625 |
$1,750 |
$1,875 |
$2,000 |
$2,125 |
$2,250 |
$2,375 |
|
$3,000 |
$600 |
$750 |
$900 |
$1,050 |
$1,200 |
$1,350 |
$1,500 |
$1,650 |
$1,800 |
$1,950 |
$2,100 |
$2,250 |
$2,400 |
$2,550 |
$2,700 |
$2,850 |
This matrix includes every possible value of Gravity-Based Penalty (Column 12) and Penalty Adjustment Factor (Column 15). After determining your Gravity-Based Penalty and your appropriate Penalty Adjustment Factor simply find the corresponding Penalty and enter into Column 16 (Adjusted Penalty). Apply the 50% Abatement Credit, if appropriate. See P&P C-15.
Rev. 01/01/00
ATTACHMENT B
SERIOUS VIOLATIONS
|
Col.12/ Col. 15 |
80% |
75% |
70% |
65% |
60% |
55% |
50% |
45% |
40% |
35% |
30% |
25% |
20% |
15% |
10% |
5% |
|
$9,000 |
$1,800 |
$2,250 |
$2,700 |
$3,150 |
$3,600 |
$4,050 |
$4,500 |
$4,950 |
$5,400 |
$5,850 |
$6,300 |
$6,750 |
$7,200 |
$7,650 |
$8,100 |
$8,550 |
|
$13,500 |
$2,700 |
$3,375 |
$4,050 |
$4,725 |
$5,400 |
$6,075 |
$6,750 |
$7,425 |
$8,100 |
$8,775 |
$9,450 |
$10,125 |
$10,800 |
$11,475 |
$12,150 |
$12,825 |
|
$18,000 |
$3,600 |
$4,500 |
$5,400 |
$6,300 |
$7,200 |
$8,100 |
$9,000 |
$9,900 |
$10,800 |
$11,700 |
$12,600 |
$13,500 |
$14,400 |
$15,300 |
$16,200 |
$17,100 |
|
$22,500 |
$4,500 |
$5,625 |
$6,750 |
$7,875 |
$9,000 |
$10,125 |
$11,250 |
$12,375 |
$13,500 |
$14,625 |
$15,750 |
$16,875 |
$18,000 |
$19,125 |
$20,250 |
$21,375 |
|
$27,000 |
$5,400 |
$6,750 |
$8,100 |
$9,450 |
$10,800 |
$12,150 |
$13,500 |
$14,850 |
$16,200 |
$17,550 |
$18,900 |
$20,250 |
$21,600 |
$22,950 |
$24,300 |
* $25,650 |
This matrix includes every possible value of Gravity-Based Penalty (Column 12) and Penalty Adjustment Factor (Column 15). After determining your Gravity-Based Penalty and your appropriate Penalty Adjustment Factor simply find the corresponding Penalty and enter into Column 16 (Adjusted Penalty). Apply the 50% Abatement Credit, if appropriate. See P&P C-15.
* Maximum proposed penalty (Column 18) may not exceed $25,000.
Rev. 01/01/00