SENATE BILL 229

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Gay G. Kernan and Carroll H. Leavell

AN ACT

RELATING TO OCCUPATIONAL HEALTH AND SAFETY; ADJUSTING THE PENALTIES FOR VIOLATIONS OF THE OCCUPATIONAL HEALTH AND SAFETY ACT TO CONFORM WITH FEDERAL LAW; REQUIRING THE DEPARTMENT OF ENVIRONMENT TO ADJUST PENALTIES ON AN ANNUAL BASIS TO ACCOUNT FOR INFLATION; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 50-9-24 NMSA 1978 (being Laws 1975, Chapter 290, Section 14, as amended) is amended to read:

     "50-9-24. PENALTIES.--

          A. Any employer who willfully or repeatedly violates any provision of the Occupational Health and Safety Act or any regulation or order promulgated pursuant to that act may be assessed a civil penalty not to exceed [seventy thousand dollars ($70,000)] one hundred twenty-four thousand seven hundred nine dollars ($124,709) for each violation; provided that a civil penalty shall not be less than [five thousand dollars ($5,000)] eight thousand nine hundred eight dollars ($8,908) for each willful violation.

          B. Any employer who has received a citation for a serious violation of any provision of the Occupational Health and Safety Act or any regulation or order promulgated pursuant to that act shall be assessed a civil penalty not to exceed [seven thousand dollars ($7,000)] twelve thousand four hundred seventy-one dollars ($12,471) for each [such] violation.

          C. Any employer who has received a citation for a violation of any provision of the Occupational Health and Safety Act or any regulation or order promulgated pursuant to that act that is determined not to be of a serious nature may be assessed a civil penalty of up to [seven thousand dollars ($7,000)] twelve thousand four hundred seventy-one dollars ($12,471) for each [such] violation.

          D. Any employer who fails to correct a violation for which a citation has been issued within the period permitted for its correction, which period shall not begin to run until the date of the final order of the commission in the case of any review proceeding [under] provided for in Section 50-9-17 NMSA 1978 initiated by the employer in good faith and not solely for delay or avoidance of penalties, may be assessed a civil penalty not to exceed [seven thousand dollars ($7,000)] twelve thousand four hundred seventy-one dollars ($12,471) for each day during which the failure or violation continues.

          E. Any civil penalty assessed against the state, a political subdivision of the state or any agency of either pursuant to Subsection B, C or G of this section shall not be collected during the time permitted for correction of the violation, and if the violation is corrected within such time, the civil penalty shall be deemed paid without further action of the state, political subdivision or agency.

          F. For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition that exists or from one or more practices, means, methods, operations or processes that have been adopted or are in use in the place of employment unless the employer did not and could not with the exercise of reasonable diligence know of the presence of the violation.

          G. Any employer who violates any of the posting requirements as prescribed by the Occupational Health and Safety Act shall be assessed a civil penalty not to exceed [seven thousand dollars ($7,000)] twelve thousand four hundred seventy-one dollars ($12,471) for each violation.

          H. The commission has authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer and the history of previous violations.

          I. Civil penalties imposed [under] pursuant to the provisions of this section shall be paid into the general fund.

          J. On January 1 of each year, the secretary shall adjust as necessary the minimum and maximum penalty amounts established in Subsections A through D and G of this section to account for inflation. The amounts shall be increased by the percentage of the preceding calendar year's increase of the consumer price index for all urban consumers, United States city average for all items, published by the United States department of labor. The amount of the increase, if any, shall be rounded to the nearest dollar, but shall not exceed one hundred fifty percent of the current penalty amount. The secretary may issue rules to carry out the provisions of this subsection that conform with the federal Occupational Safety and Health Act of 1970.

          [J.] K. Any employer who willfully violates any provision of the Occupational Health and Safety Act or any regulation or order promulgated pursuant to that act causing death to any employee by that violation shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) or by imprisonment for not more than six months or by both; except that if the conviction is for a violation committed after a first conviction of [such] the person, punishment shall be by a fine of not more than twenty thousand dollars ($20,000) or by imprisonment for less than one year or by both.

          [K.] L. Any person who gives advance notice of any inspection to be conducted under the Occupational Health and Safety Act without authority of the secretary shall, upon conviction, be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than six months or by both.

          [L.] M. Whoever knowingly makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to the Occupational Health and Safety Act shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) for each such violation or by imprisonment for not more than six months or by both.

          [M.] N. A person who reveals a trade secret in violation of Section 50-9-21 NMSA 1978 violates this subsection and shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) or by imprisonment for less than one year or both."

     SECTION 2. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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