The Occupational Safety and Health Administration (OSHA) establishes national standards that employers must meet in order to protect workers. Employers who fail to meet OSHA audit and compliance requirements are subject to enforcement actions by OSHA or delegated state agencies. Employers who perform the worst can be subject to OSHA’s Severe Violator Enforcement Program (SVEP), established in 2010 as the latest in a series of enhanced enforcement programs for those employers that OSHA considers the most dangerous and/or recalcitrant. SVEP has always offered the possibility that an employer can demonstrate its rehabilitation and exit the program, and just last month OSHA finally published clear guidelines for doing so.
Who’s a Severe Violator?
OSHA defines a Severe Violator Enforcement Case as one that meets any of the following criteria:
Fatality/Catastrophe criterion—inspection after a reported fatality or “catastrophe” (at least 3 employees hospitalized) finds either:
one or more willful or repeated (any gravity) violations related to the death, or
one or more serious violations related to the death, and the employer has either a history of similar violations (consisting of at least one serious, willful, or repeat violation within the last three years), or has had any other fatality in the last three years.
Non-fatality/catastrophe criterion related to high-emphasis hazards—an OSHA inspector finds two or more willful and/or repeated violations and/or high gravity serious violations that the employer has failed to abate despite receiving an OSHA citation, related to any OSHA-defined High-Emphasis Program hazards (OSHA redefines these hazards from time to time; current examples applicable to General Industry Standards include amputation hazards, combustible dust hazards, crystalline silica hazards, lead hazards, and grain handling hazards) or a Local Emphasis Program.
Non-fatality/catastrophe criterion – for hazards due to the potential release of a highly hazardous chemical (under the Process Safety Management Standard), or where any inspection finds three or more willful and/or repeated violations and/or failures-to-abate high gravity serious violations related to potential release of a highly hazardous chemical.
Egregious case—any “egregious case” involving a particularly dangerous willful violation and/or a pattern of non-compliance.
Furthermore, if an employer operates more than one facility, OSHA directs that an SVEC citation at one is to lead to enhanced company-wide inspection and enforcement actions.
OSHA reports that it conducted 288 SVEP inspections between June 2010 and July 2012.
How can an employer earn release from SVEP?
On August 16, 2012, OSHA’s Director of Enforcement Programs sent a memo to the agency’s enforcement staff, presenting guidelines for determining when an employer can qualify for removal from the program. This memo presents the following criteria:
At least 3 years must have passed since final disposition of all SVEP inspection citation items. Final disposition may occur through failure to contest, settlement agreement, OSH Review Commission final order, or court of appeals decision.
Employer has abated all SVEP–related hazards affirmed as violations, paid all final penalties, abided by and completed all settlement provisions.
Employer must not have received any additional serious citations related to hazards identified in the SVEP inspection, at the initial establishment or any related establishments.
In most cases, the appropriate OSHA Regional Administrator is authorized to determine whether an employer meets these criteria and to release the employer from SVEP. However, if the employer is subject to a corporate-wide settlement, the decision is made by OSHA headquarters in Washington, D.C.
Note that SVEP has only existed since June 18, 2010, which is less than three years. However, any organization subject to SVEP should be completing abatement and ensuring that no more serious violations occur, in order to be eligible to apply for release from the program at the earliest possible date.
Even if your organization is not subject to SVEP, it can be useful to apply a similar self-audit, since OSHA and other regulators will expect compliance with abatement requirements under whichever safety or environmental requirements they administer, and are likely to apply (formal or informal) heightened scrutiny for the period after a serious violation.
Has OSHA issued any citations or notices of violation against my organization (remembering to consider all establishments, if your organization has more than one)?
If so, are any violations “serious” or “willful”?
Has the enforcement process been completed (final order, after appeal if any)?
If so, what was the date of completion?
Are any establishments in my organization subject to OSHA’s Severe Violator Enforcement Program?
If so, has OSHA applied SVEP provisions organization-wide?
If so, has it been at least three years since the enforcement process was completed?
Has the organization completed abatement of any violation?
If so, has OSHA formally acknowledged that abatement is complete?
If so, what was the date of completion?
Has OSHA issued any additional serious citations against my organization, related to the activities or violations for which the organization was initially placed in SVEP?
If so, what was the date of the last such citation?
If the organization has abated the violation(s) for which it was initially assigned to SVEP, when will three years have passed, so that the organization will be eligible to seek release from SVEP?
Where can I go for more information?
OSHA provides information on its website at www.osha.gov/dep/index.html. These materials include:
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, including Securities Law: A Guide to the 1933 and 1934 Acts and Directors' and Officers' Liability.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: firstname.lastname@example.org.