OSHA's Proposed Severe Violator Enforcement Program

Date: May 03, 2010

The new leadership at the U.S. Department of Labor ("DOL") is developing a new and aggressive enforcement program – to be known as the "Severe Violator Enforcement Program" (SVEP) – that will dramatically increase the sanctions imposed on employers that OSHA identifies as having demonstrated a callous disregard for workplace safety and health. Unlike any other administration in recent history, the Secretary of Labor has been actively engaged in this effort. More importantly, the recent Montcoal Mine Disaster has resulted in direct White House involvement, with President Obama, in effect, telling the Mine Safety and Health Administration to adopt an enforcement approach similar to OSHA's proposed SVEP.

The SVEP will replace OSHA's Enhanced Enforcement Program ("EEP"), which was supposed to address the same issue of the recalcitrant employer and, to no one's surprise, was determined by the Democratic Congress and the Obama Administration to be ineffective in achieving its objectives. Unfortunately, it appears that as long as a single employer demonstrates what OSHA views as recalcitrance, the Democrats and the Administration will view the penalty scheme of the OSH Act as inadequate.

The text of the draft SVEP became publicly available when it was distributed to the state plan states for review and comment. As currently written, an employer becomes subject to the SVEP in any one of the following situations:

(1) A fatality or catastrophe occurs at the employer's worksite and OSHA cites one or more alleged willful, repeat or failure-to-abate serious violations related to either (a) the death of an employee or (b) three or more hospitalizations;

(2) OSHA cites the employer for two or more alleged willful, repeat, or failure-to-abate high-gravity serious violations in the broadly defined class of High-Emphasis Hazards (described below);

(3) OSHA cites the employer for three or more alleged willful, repeat, or failure-to abate, high-gravity serious violations based on hazards posed by the potential release of highly hazardous chemicals, as defined in the OSHA Process Safety Management (PSM) standard; or

(4) OSHA issues a set of egregious (e.g. per instance citations) willful citations to the employer .

The term High-Emphasis Hazards is fairly broad. It refers to the following:

(1) High-gravity serious violations for fall hazards covered under OSHA's general industry, construction industry, shipyard, marine terminal, and longshoring standards;

(2) Hazards covered under the following OSHA's National Emphasis Programs and Special Emphasis Programs:

(a) Amputation (CPL 03-00-003); all lockout/tagout and machine guarding violations,

(b) Combustible Dust (CPL 03-00-008); many General Duty Clause, housekeeping, electrical safety, emergency evacuation, etc. violations,

(c) Crystalline Silica (CPL 03-00-007); violations of requirements for engineering controls, administrative controls, respirators and hazard communication,

(d) Lead (CPL 03-00-009),

(e) Shipbreaking (CPL 02-00-136),

(f) OSHA's Excavation/Trenching Special Emphasis Program.

In General Industry, once an Area Director ("AD") determines that a case meets one of the SVEP criteria, the following steps are taken:

(1) At the Cited Site: a follow-up inspection will be conducted at the cited location to assess whether the cited violation(s) were abated and whether the employer is committing similar violations.

(2) General Industry Employer with 10 or Less Similar Related Workplaces: All such workplaces will be inspected to determine whether those sites have hazardous conditions or violations similar to those in the severe violator enforcement case.

(3) General Industry Employer with More than 10 Similar "Related" Workplaces: The Office of Statistical Analysis will assign random numbers to the complete list of similar related establishments, sort these establishments in random number order, and select the first 10 for inspection. In lieu of a random selection, OSHA may however select facilities for inspection if it has reasonable grounds to believe that a hazard exists at a particular related establishment. If the number of facilities suspected of having hazards is less than 10, then the remainder of the facilities inspected must be selected using random selection.[1]

Establishments are considered "related" for purposes of this proposed instruction if there is common ownership. Related establishments include establishments of corporations that are in the same corporate family, including subsidiary, affiliate, or parent corporations with substantial common ownership. Similar related establishments are related establishments in the same 3-digit NAICS code (or 2-digit SIC code).

In the Construction Industry, once an Area Director ("AD") determines that a case meets one of the SVEP criteria, the following steps are taken:

(1) If the Cited Site Remains a Construction Site: A follow-up inspection will be conducted at the Cited Site to assess whether the cited violation(s) were abated and whether the employer is committing similar violations.

(2) If the Cited Site is no Longer a construction site: If the construction worksite closes before the follow-up inspection is performed, OSHA will inspect at least one other worksite of the cited employer. In the event that OSHA is unable to identify any of the employer's other worksites, it may issue an administrative subpoena for information to identify other workplaces.

The proposed SVEP indicates that where OSHA believes it has a legitimate SVEP case, any resolution through settlement will come at a significant cost to the employer because OSHA will be seeking terms requiring the employer to do one or more of the following at the cited facility and at other related facilities of the employer:

(1) Hire a qualified safety and health consultant to develop and implement an effective and comprehensive safety and health program or, where appropriate, a program to ensure full compliance with the subpart under which the employer was cited under the SVEP;

(2) Apply the agreement company-wide;

(3) Use interim abatement controls if OSHA is convinced that final abatement cannot be accomplished in a short period of time;

(4) Submit its Log of Work-Related Injuries and Illnesses to OSHA on a quarterly basis and then consent to an inspection based on those Logs;

(5) Notify the Area Office of any serious injury or illness requiring medical attention and consent to an inspection; and

(6) Consent to entry of a court enforcement order under Section 11(b) of the Act that would subject the employer to a contempt proceeding in the US Court of Appeals in the event of a future violation of the court order.

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Employers should be wary of any inspection involving any of the above subjects. The Obama Administration believes, incorrectly in our view, that large penalties and significant adverse publicity (which OSHA administrator David Michaels refers to as "public shaming") will increase compliance. There is a significant risk that the SVEP will be inappropriately applied to employers that are making an honest effort to protect their employees, particularly large employers with numerous sites that will increase the potential for repeat violations.

These inspection and penalty changes make it all the more important to have a thorough understanding of the employer's rights during an inspection and to have qualified, trained individuals representing them during the inspection. For assistance in training your staff, please contact us or visit our website and look for OSHA Inspection Training. We also would like to hear from employers who are being inspected under any of the National Emphasis Programs, especially the Injury and Illness Recordkeeping and Chemical Process Safety Management NEPs. Any additional questions regarding the impact of OSHA's proposed SVEP should be addressed to David Sarvadi sarvadi@khlaw.com or Larry Halprin halprin@khlaw.com.

[1] The instruction does not define "reasonable grounds."