More Sites Added to OSHA’s Severe Violator Enforcement Program

The number of sites added to OSHA’s Severe Violator Enforcement program (SVEP) has increased by 23% from last year.

A total of 423 sites were SVEP-listed as of July 1, when the program entered its fifth year, compared to 343 last year, an increase of 80. The agency actually had added 85 sites, but five were dropped after the companies successfully contested violations that made them eligible for the program.  SVEP was launched in June 2010.

Employers want no part of SVEP, because OSHA can increase its oversight of their operations by scheduling return inspections to monitor compliance or open new inspections of companies’ other workplaces and seek settlements with additional requirements. OSHA told Bloomberg BNA it had finished reviews of 39 employers who completed the three-year probationary period. These employers have undergone follow-up inspections, but OSHA has yet to make a final decision in any of the cases.

The SVEP list is dominated by construction and manufacturing firms.  There are 257 construction firms, up from last year’s 204, and 117 manufacturing sites, an increase from 97 in 2013.  In addition, small employers make up more than half of the list.  A total of 235 SVEP sites employ no more than 10 workers. Only 61 SVEP- listed employers have at least 100 workers.  Neither the industry or size profiles of companies in the program changed from last year.

Also unchanged is the likelihood that employers will appeal the designation to the Occupational Safety and Health Review Commission. Companies in the program are eight times as likely to contest citations as employers generally. For both 2013 and 2014, contest rates were about 48%, compared to 6% for all OSHA-inspected companies in FY 2013.  Employers seek to have the citations that put them on the list dismissed, removing them from the program.

If triggering citations are not withdrawn or dismissed in a contested case, the company must settle with OSHA and spend at least three years in the program. Thereafter, if there are no other negative inspections, OSHA may delist the site.

At least two willful or repeat citations or failure -to-abate notifications considered to be of a “high gravity” and related to “high-emphasis hazards” will earn an employer a place in the program (CPL 02-00-149).

High-emphasis hazards include falls, amputations, grain entrapment, trenching and exposure to lead, silica or combustible dust.

But other circumstances can land an employer in the program, too.  One is a workplace fatality or a catastrophic accident that hospitalizes at least three workers, provided the resulting inspection finds at least one alleged willful, repeat or failure-to-abate violation.

A second instance is when an inspector cites an employer as an “egregious” violator and every violation is treated as a separate citation.

The final possibility is when at least three willful or repeat violations or failure-to-abate notices, or any combination, are written during an inspection that is based on high- gravity serious violations related to potential releases of a highly hazardous chemical.

Once a site gets into the SVEP, it is not easy to leave. One critic described OSHA’s exit criteria as “fairly mythical” and noted that while it takes alleged willful, repeat or failure-to-abate violations to get into the SVEP, only a serious violation is needed to keep the site there. Since about 75% of all OSHA inspections result in a serious violation, it is unlikely a site will get off the list after three years.

OSHA is studying issues related to its removal criteria and the probationary period, but the agency has not set a timetable for making changes.

Source: The National Law Review