OAR 437-001-0160: Penalty Criteria — Repeat Violation

(1) Civil penalty amounts as defined in OAR 437-001-0145(2) are adjusted and published annually in Oregon OSHA’s Annual Adjustments to Penalties Bulletin. All penalties shall not be reduced below the minimum or exceed the maximum amounts, except for a civil penalty for a repeat serious violation that caused or contributed to a work-related fatality, which may be reduced based on employer size at the discretion of the administrator if the employer agrees to comply with additional abatement measures during the appeal process. (2) Repeat violation criteria: (a) An employer’s second or subsequent violation involving a substantially similar violation, cited within the previous three years, will be cited as a repeat violation as described below. (b) When citing an identical standard for a violation of a previously cited statute, regulation, rule, standard, or order it will be presumed to be a repeat violation. That presumption can be disproven only if the circumstances clearly demonstrate that the violation is not substantially similar to a previously cited violation. Example: Previously a citation was issued for a violation of 1910.212(a)(1) for not guarding ingoing nip points. A recent inspection of the same establishment revealed a citation of 1910.212(a)(1) for not guarding against flying chips and sparks. Although the same standard was cited, the hazardous conditions are clearly not substantially similar and a repeat violation would not be appropriate. (3) When citing a different standard, in some circumstances, substantially similar conditions can be demonstrated. In such cases, if the violations found are substantially similar, a repeat violation would be appropriate even though the standards are different. Example #1: Previously a citation was issued for a failure to install appropriate scaffold guardrails under the Division 3 Construction standards. A recent inspection of the same employer found a violation for a failure to install appropriate scaffold guardrails, but this time the operation involved activities covered by the Division 2 General Industry standard. Although two different standards are cited, the violations are substantially similar and would therefore be treated as a repeat. Example #2: Previously a citation was issued for failure to have a respirator program in a Division 2 General Industry situation where exposure to asbestos would require one. A recent inspection of the same employer found a violation for not requiring employees to wear respirators while performing lead-related tasks in the Lead, Division 3 Construction standard that requires respiratory protection. Although two different standards are cited, the violations are substantially similar and would therefore be treated as a repeat. (4) Where a previously cited violation is under appeal and not yet final: (a) The second violation will be cited as a repeat violation; and (b) Such citation will state that the earlier violation is under appeal and the repeat classification of the current violation will be rescinded if the earlier violation does not become final. (5) At fixed places of employment, “high probability serious” and “death” rated violations will be issued as repeat violations at all of an employer’s places of employment in the state. Repeat violations for all other violation types will be limited to the cited place of employment. (6) At nonfixed places of employment, repeat violations will be based on earlier violations occurring anywhere within the state. Where the Administrator, or designee, determines in his or her discretion that the span of control and nature of activity for a portion of the state is more readily comparable to fixed location activity, repeat violations will be handled in a manner consistent with fixed places of employment. (7) At the discretion of the Administrator, a civil penalty may be issued for any repeat violation and for any repeat violation that caused or contributed to a work-related fatality up to the maximum penalty amount in accordance with OAR 437-001-0145(2), as adjusted annually in accordance with OAR 437-001-0142.