GENERAL ASSEMBLY OF NORTH CAROLINA
1993 SESSION
CHAPTER 474
AN ACT REQUIRING CERTAIN DETAIL IN THE DECISIONS AND REPORTS OF THE OSHA REVIEW BOARD.
The General Assembly of North Carolina enacts:
Section 1. G.S. 95-135(i) reads as rewritten:
"(i) A hearing
examiner appointed by the chairman of the Board shall hear, and make a
determination upon, any proceeding instituted before the Board and may hear any
motion in connection therewith, assigned to such the hearing
examiner, and shall make a report of any such the determination
which constitutes his the hearing examiner's final disposition of
the proceedings. A copy of the report of the hearing examiner shall be
furnished to the Director and all interested parties involved in any appeal or
any proceeding before the hearing examiner for his the hearing
examiner's determination. The report of the hearing examiner shall
become the final order of the Board 30 days from the date of said the
report as determined by the hearing examiner, unless within such the
30-day period any member of the Board had directed that such the report
shall be reviewed by the entire Board as a whole. Upon application for
review of any report or determination of a hearing examiner, before the 30-day
period expires, the Board shall schedule the matter for hearing, on the record,
except the Board may allow the introduction of newly discovered evidence, or in
its discretion the taking of further evidence upon any question or issue.
All interested parties to the original hearing shall be notified of the date,
time and place of such the hearing and shall be allowed to appear
in person or by attorney at such the hearing. Upon review
of said the report and determination by the hearing examiner the
Board may adopt, modify or vacate the report of the hearing examiner and notify
the interested parties. The report of the hearing examiner, and the
report, decision, or determination of the Board upon review shall be in writing
and shall include findings of fact, conclusions of law, and the reasons or
bases for them, on all the material issues of fact, law, or discretion
presented on the record. The report, decision or determination of the
Board upon review shall be final unless further appeal is made to the courts
under the provisions of Chapter 150B of the General Statutes, as amended,
entitled: 'Judicial Review of Decisions of Certain Administrative Agencies.'"
Sec. 2. G.S. 95-138(a) reads as rewritten:
"(a) Any employer who
willfully or repeatedly violates the requirements of this Article, any
standard, rule or order promulgated pursuant to this Article, or regulations
prescribed pursuant to this Article, may upon the recommendation of the
Director to the Commissioner be assessed by the Commissioner a civil penalty of
not more than seventy thousand dollars ($70,000) and not less than five
thousand dollars ($5,000) for each willful violation. Any employer who
has received a citation for a serious violation of the requirements of this
Article or any standard, rule, or order promulgated under this Article or of
any regulation prescribed pursuant to this Article, shall be assessed by the
Commissioner a civil penalty of up to seven thousand dollars ($7,000) for each such
serious violation. If the violation is adjudged not to be of a
serious nature, then the employer may be assessed a civil penalty of up to
seven thousand dollars ($7,000) for each such nonserious violation.
Any employer who fails to correct a violation for which a citation has been
issued under this Article within the period allowed for its correction (which
period shall not begin to run until the date of the final order of the Board in
the case of any appeal proceedings in this Article initiated by the employer in
good faith and not solely for the delay or avoidance of penalties), may be
assessed a civil penalty of not more than seven thousand dollars
($7,000). Such The assessment shall be made to apply to
each day during which such the failure or violation
continues. Any employer who violates any of the posting requirements, as
prescribed under the provision of this Article, shall be assessed a civil
penalty of not more than seven thousand dollars ($7,000) for such the
violation. The Commissioner upon recommendation of the Director, or
the Board in case of an appeal, shall have authority to assess all civil
penalties provided by this Article, giving due consideration to the
appropriateness of the penalty with respect to the following factors:
(1) Size of the business of the employer being charged,
(2) The gravity of the violation,
(3) The good faith
of the employer employer, and
(4) The record of
previous violations. violations; provided that for purposes of
determining repeat violations, only the record within the previous three years
is applicable.
The Commissioner shall adopt uniform standards which the Commissioner, the Board, and the hearing examiner shall apply when considering the four factors for determining appropriateness of the penalty. The report of the hearing examiner and the report, decision, or determination of the Board on appeal shall specify the standards applied in determining the reduction or affirmation of the penalty assessed by the Commissioner."
Sec. 3. This act is effective upon ratification and applies to citations issued on or after that date.
In the General Assembly read three times and ratified this the 23rd day of July, 1993.
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Dennis A. Wicker
President of the Senate
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Daniel Blue, Jr.
Speaker of the House of Representatives