Authority: IC 22-1-1; IC 22-8-1.1-27.1

Affected: IC 22-8-1.1

Sec. 2. (a) The gravity of a violation is the primary consideration in determining penalty amounts. Gravity is the basis for calculating the basic penalty for serious and nonserious violations, and is determined by severity and probability.

(b) The first step in classifying an alleged violation as serious or nonserious is based on the severity of the potential injury or illness that could result from the alleged violation. The following categories must be considered in assessing the severity of potential injuries or illnesses:

(1) For a serious violation, the following is considered:

(A) High severity includes:

(i) death from injury or illness;

(ii) injuries involving permanent disability; or

(iii) chronic, irreversible illnesses.

(B) Medium severity includes injuries or temporary, reversible illnesses resulting in hospitalization for a variable but limited period of disability.

(C) Low severity includes injuries or temporary, reversible illnesses not resulting in hospitalization and requiring only minor supportive treatment.

(2) A nonserious violation is considered minimal severity. Although these violations reflect conditions that have a direct and immediate relationship to the safety and health of employees, the most serious injury or illness that could reasonably be expected to result from an employee's exposure will not be low, medium, or high severity, as described in subdivision (1)(A) through (1)(C), nor require medical treatment or cause death or serious physical harm.

(c) The probability that an injury or illness could occur as a result of the alleged violation has no role in determining the classification of a violation, but does affect the amount of the proposed penalty. Probability is assessed as follows:

(1) Probability is categorized either as greater or lesser as follows:

(A) Greater probability results when the likelihood that an injury or illness will occur is judged to be relatively high.

(B) Lesser probability results when the likelihood that an injury or illness will occur is judged to be relatively low.

(2) The following probability factors must be considered, as appropriate, when violations are likely to result in injury or illness:

(A) Number of employees exposed.

(B) Frequency and duration of employee exposure to hazardous conditions, including overexposures to contaminants.

(C) Employee proximity to the hazardous conditions.

(D) Use of appropriate personal protective equipment.

(E) Medical surveillance program.

(F) Age of employees.

(G) Training on recognizing and avoiding the hazardous condition.

(H) Other pertinent working conditions.

(3) The factors outlined in subdivisions (1) and (2) must be considered in determining a final probability assessment. When adherence to the probability assessment procedures results in an unreasonably high or low gravity, the assessment may be adjusted at the discretion of the division director, as appropriate. These decisions must be fully explained in the case file.

(d) The gravity-based penalty (GBP) for each violation is determined by combining the severity assessment and final probability assessment. The GBP is an unreduced penalty and calculated in accordance with the procedures described in this rule. For purposes of this rule, the term "unreduced penalty" has the same meaning as GBP.

(e) The GBP for serious violations is determined as follows:

(1) The gravity of a violation is defined by the GBP as follows:

(A) A high gravity violation is one with a GBP of seven thousand dollars ($7,000) or greater.

(B) A moderate gravity violation is one with a GBP of:

(i) six thousand dollars ($6,000);

(ii) five thousand dollars ($5,000);

(iii) four thousand dollars ($4,000); or

(iv) three thousand dollars ($3,000).

(C) A low gravity violation is one with a GBP of two thousand dollars ($2,000).

(2) The highest gravity classification, high severity and greater probability, is normally reserved for the most serious violative conditions, such as those situations involving danger of death or extremely serious injury or illness.

(3) For serious violations, the GBP is assigned based on the following scale in Table 4-1:

Severity + Probability = GBP

Table 4-1: Serious Violations

(f) The GBP for nonserious violations is determined as follows:

(1) For nonserious safety and health violations, there is only minimal severity.

(2) If the division director determines that it is appropriate to achieve the necessary deterrent effect, a GBP of seven thousand dollars ($7,000) may be proposed. This discretion shall be exercised based on the facts of the specific case. The reasons for this determination must be fully explained in the case file.

(3) For nonserious violations, the GBP is assigned based on the following scale in Table 4-2:

Table 4-2: Nonserious Violations

(g) For some cases, a GBP may be assigned without using the severity and probability assessment procedures outlined in this section when these procedures cannot appropriately be used. In these cases, the assessment assigned and the reasons for doing so must be fully explained in the case file.

(h) In egregious cases, violation-by-violation penalties are applied. This occurs when each instance of noncompliance is considered a separate violation, with individual proposed penalties for each violation. These cases must be handled in accordance with the federal Occupational Health and Safety Administration (OSHA) CPL 02-00-080, Handling of Cases to be Proposed for Violation-By-Violation Penalties, dated October 21, 1990. Penalties calculated under this policy may not be proposed without the concurrence of the deputy commissioner.

(i) Combined or grouped violations are considered as one (1) violation with one (1) GBP. Multiple violations of a single standard may be combined into one (1) safety order item. When a hazard is identified that involves interrelated violations of different standards, the violations may be grouped into a single item. The following procedures apply to the calculation of penalties for combined and grouped violations:

(1) The severity and probability assessments for combined violations are based on the instance with the highest gravity. It is not necessary to complete the penalty calculations for each instance or subitem of a combined or grouped violation once the instance with the highest gravity is identified.

(2) The following is used for grouped violations:

(A) When assessing the severity:

(i) the severity assigned to the grouped violation may be not less than the severity of the most serious reasonably predictable injury or illness that could result from the violation of any single item; and

(ii) if the injury or illness that is reasonably predictable from the grouped items is more serious than that from any single violation item, the more serious injury or illness serves as the basis for the calculation of the severity factor.

(B) When assessing the probability:

(i) the probability assigned to the grouped violation may be not less than the probability of the item that is most likely to result in an injury or illness; and

(ii) if the overall probability of injury or illness is greater with the grouped violation than with any single violation item, the greater probability of injury or illness serves as the basis for the calculation of the probability assessment.

(3) Directors may use discretion to depart from grouping practices suggested in compliance directives and instead issue violations separately, if the violations require differing specific abatement actions. Discretionary ungrouping must be considered where at least one (1) of the following factors is met:

(A) The employer is currently on the SVEP list.

(B) The employer has a history of knowing, repeat, or failure to correct violations.

(C) The violative conditions are related to an incident that resulted in a fatality, catastrophe, or reportable injury or illness.

(D) The inspection resulted in at least one (1) knowing, repeat, or failure to correct violation, or a significant number of serious violations.

(E) The inspection was initiated due to a release of a highly hazardous chemical.

(F) The inspection identified employee exposures to hazardous chemicals over the applicable OSHA permissible exposure limit.

(G) The inspection uncovered violations related to National Emphasis Program hazards.

Directors may also use discretionary ungrouping in the absence of any of the factors listed in subdivision (3)(A) through (3)(G) where necessary to achieve an appropriate deterrent effect. In all cases, the reasoning must be fully explained in the inspection case file.

(Department of Labor; 610 IAC 9-4-2; filed May 19, 2025, 10:19 a.m.: 20250618-IR-610250159FRA)