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May 2010 Update: Climate Change

OSHA Implements Severe Violators Enforcement Program

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By Gabrielle Sigel

 

On June 18, 2010, OSHA implemented its Severe Violators Enforcement Program ("SVEP") against employers who have "demonstrated indifference" to OSH Act compliance. (Click here to read OSHA's SVEP Instruction in its entirety.) The OSHA Instruction describing the program, CPL 02-00-149, replaces OSHA's Enhanced Enforcement Program, which was first announced in 2003.

An employer is deemed to qualify as one who has demonstrated indifference if any of the following criteria are met:

  • Fatality or catastrophe (3+ employees hospitalized) after one or more willful or repeat violations or a failure to abate a serious violation.
  • Two or more willful, repeat or failure-to-abate violations based on high gravity serious violations of a "High-Emphasis Hazard." A High-Emphasis Hazard includes fall hazards in all industries and amputation, combustible dust, crystalline silica, lead, excavation/trenching, and shipbreaking hazards as covered by OSHA National or Special Emphasis Programs.
  • Three or more willful, repeat, or failure-to-abate violations based on high gravity serious violations related to hazards from the release of a highly hazardous chemical, as defined in the Process Safety Management Program, 29 CFR ยง 1910.119.

If an employer meets any of the qualifying criteria, OSHA has a variety of enforcement actions it intends to take, including: (1) required OHSA follow-up inspections; (2) nationwide inspections of related worksites, including but not limited to those sharing the same first three NAICS code numbers; (4) sending OSHA citations to the company's and its union's national headquarters; (5) meeting with corporate officials; and (6) issuing news releases. In addition, settlement of SVEP inspections are to consider more stringent enforcement options, such as: requiring the employer to hire a safety and health consultant; applying the settlement agreement corporate-wide; and requiring the employer to notify OSHA of each serious injury or illness requiring medical attention and consenting to an inspection thereafter.