OSHA Watch

OSHA Explains How Employers Get Out of SVEP Purgatory

Date First Published on SafetySmart Compliance: August 29th, 2012
Topics: Illness Injury Prevention Program |

OSHA Explains How Employers Get Out of SVEP Purgatory


All OSHA offenses are not created equal. When employers commit violations the agency deems egregious, they can end up in the Severe Violator Enforcement Program (SVEP)—OSHA’s version of “double secret probation” (for all you Animal House fans), in which the employer is subject to follow up inspections and higher penalties.

On August 16, 2012, OSHA did something it had never done before: It explained what employers must do to get out of SVEP. Here’s an overview of SVEP and the new OSHA removal criteria.

What Is SVEP?

OSHA initiated the SVEP Program on June 18, 2010 to focus its enforcement resources on “employers that demonstrate indifference” to their OSHA obligations. So far, 288 employers have been placed in SVEP.

HOW EMPLOYERS GET INTO SVEP

The OSHA SVEP Enforcement Directive of June 18, 2010 explains what employers must do to be put into SVEP. There are 4 sets of criteria depending on the type of case:

A. Fatality/Catastrophe, i.e., in cases involving a worker’s death or 3 or more hospitalizations, OSHA must find that the employer:

  • Committed 1 or more willful violations;
  • Committed 1 or more repeat violations; or
  • Failed to abate a previously cited serious violation.

B. Non-Fatality/Catastrophe Involving High Emphasis Hazards (see below for a definition of high emphasis hazards), OSHA must find that the employer:

  • Committed 2 or more willful violations;
  • Committed 2 or more repeat violations;
  • Failed to abate a previously cited high gravity serious violation related to a High Emphasis Hazard; or
  • Any combination of the above.

DEFINITION OF HIGH-EMPHASIS HAZARDS:

Fall hazards covered under the following general industry standards
      1. 29 CFR §1910.23 – Guarding floor and wall openings and holes [Walking-Working Surfaces]
      2. 29 CFR §1910.28 – Safety requirements for scaffolding [Walking-Working Surfaces]
      3. 29 CFR §1910.29 – Manually propelled mobile ladder stands and scaffolds (towers) [Walking-Working Surfaces]
      4. 29 CFR §1910.66 – Powered platforms for building maintenance [Powered Platforms, Manlifts, and Vehicle-Mounted Work Platforms]
      5. 29 CFR §1910.67 – Vehicle-mounted elevating and rotating work platforms [Powered Platforms, Manlifts, and Vehicle-Mounted Work Platforms]
      6. 29 CFR §1910.68 – Manlifts [Powered Platforms, Manlifts, and Vehicle-Mounted Work Platforms]
Fall hazards covered under the following construction industry standards
      1. 29 CFR §1926.451 – General requirements [Scaffolds]
      2. 29 CFR §1926.452 – Additional requirements applicable to specific types of scaffolds
      3. 29 CFR §1926.453 – Aerial lifts [Scaffolds]
      4. 29 CFR §1926.501 – Duty to have fall protection
      5. 29 CFR §1926.502 – Fall protection systems criteria and practices
      6. 29 CFR §1926.760 – Fall protection [Steel Erection]
      7. 29 CFR §1926.1052 – Stairways [Ladders]
Fall hazards covered under the following shipyard standards
      1. 29 CFR §1915.71 – Scaffolds or staging [Scaffolds, ladders and Other Working Surfaces]
      2. 29 CFR §1915.73 – Guarding of deck openings and edges [Scaffolds, ladders and Other Working Surfaces]
      3. 29 CFR §1915.74 – Access to vessels [Scaffolds, ladders and Other Working Surfaces]
      4. 29 CFR §1915.75 – Access to and guarding of dry docks and marine railways [Scaffolds, ladders and Other Working Surfaces]
      5. 29 CFR §1915.159 – Personal fall arrest systems (PFAS) [Personal Protective Equipment (PPE)]
Fall hazards covered under the following marine terminal standards
      1. 29 CFR §1917.45 – Cranes and derricks [Cargo Handling Gear and Equipment]
      2. 29 CFR §1917.49 – Spouts, chutes, hoppers, bins, and associated equipment [Cargo Handling Gear and Equipment]
      3. 29 CFR §1917.112 – Guarding of edges [Terminal Facilities]
Fall hazards covered under the following longshoring standards
      1. 29 CFR §1918.22 – Gangways [Gangways and Other Means of Access]
      2. 29 CFR §1918.85 – Containerized cargo operations [Handling Cargo]
Amputation hazards specified below that are covered under the National Emphasis Program on Amputations. (See CPL03-00-003)
      1. 29 CFR §1910.147 – The control of hazardous energy (lockout/tagout)
      2. 29 CFR §1910.212 – General requirements for all machines
      3. 29 CFR §1910.213 – Woodworking machinery requirements
      4. 29 CFR §1910.217 – Mechanical power presses
      5. 29 CFR §1910.219 – Mechanical power-transmission apparatus
Combustible dust hazards specified below that are covered by the Combustible Dust National Emphasis Program (Reissued), including the General Duty Clause (Sec. 5(a)(1) of the OSH Act). (See CPL 03-00-008)
      1. 29 CFR §1910.22 – General requirements [Walking-Working Surfaces]
      2. 29 CFR §1910.307 – Hazardous (classified) locations [Electrical]
      3. Sec. 5(a)(1) of the OSH ActAny General Duty Clause violation concerning hazards related to dust collectors inside buildings, deflagration isolation systems, and duct-work issues.
Crystalline silica hazards specified below that are covered by the National Emphasis Program — Crystalline Silica (See CPL 03-00-007)
      1. Overexposure.
        1. 29 CFR Part §1910.1000 and 29 CFR Part §1915.1000 – Air Contaminants
        2. 29 CFR §1926.55 – Gases, vapors, fumes, dusts, and mists
      1. Failure to Implement Engineering Controls.
        1. 29 CFR §1910.1000(e) – Air Contaminants
        2. 29 CFR §1926.55(b) – Gases, vapors, fumes, dusts, and mists
      1. When Overexposure Occurs.
        29 CFR §1910.134; 29 CFR §1926.103; and 29 CFR §1915.154 – Respiratory protection

NOTE: The Silica NEP requires a mandatory follow-up inspection when overexposures to crystalline silica are found. If a follow-up inspection finds the same violations as previously cited, the follow-up inspection will most likely qualify as a SVEP case. See paragraph XV.A.4. (p.11).

Lead hazards specified below that are covered by the National Emphasis Program — Lead (only violations based on sampling). See CPL 03-00-009.
      1. 29 CFR §1910.1025 – Lead
      2. 29 CFR §1926.62 – Lead
      3. 29 CFR §1915.1025 – Lead and 29 CFR §1915 Subpart D Welding, Cutting, and Heating
Excavation/trenching hazards specified below that are covered by the Special Emphasis Program – Trenching and Excavation (See CPL 02-00-069)
      1. 29 CFR §1926.651 – Specific excavation requirements
      2. 29 CFR §1926.652 – Requirements for protective systems [Excavations]
Shipbreaking hazards specified below that are covered by the National Emphasis Program — Shipbreaking. See CPL 02-00-136.
      1. 29 CFR §1915.12 – Precautions and the order of testing before entering confined and enclosed spaces and other dangerous atmospheres [Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment]
      2. 29 CFR §1915.112 – Ropes, chains, and slings [Gear and Equipment for Rigging and Materials Handling]
      3. 29 CFR §1915.116 – Use of Gear [Gear and Equipment for Rigging and Materials Handling]
      4. 29 CFR §1915.159 – Personal fall arrest systems (PFAS) [Personal Protective Equipment (PPE)]
      5. 29 CFR §1915.503 – Precautions for hot work [Fire Protection in Shipyard Employment]

C. Non-Fatality/Catastrophe Due to Potential Release of Highly Hazardous Substance (Process Safety Management), OSHA must find that the employer:

  • Committed 3 or more willful violations;
  • Committed 3 or more repeat violations;
  • Failed to abate a previously cited high gravity serious violation related to hazards due to the potential release of a highly hazardous chemical, as defined in the PSM standard; or
  • Any combination of the above.

D. Egregious violations, i.e., all egregious enforcement actions.

 

HOW EMPLOYERS GET OUT OF SVEP

It’s a bit odd that the June 2010 SVEP Directive doesn’t explain what must happen for an employer to get out of SVEP. The August 16, 2012 notice lists the criteria for taking an employer out of SVEP. But now, after more than 2 years, OSHA has filled in the missing details.

According to the Aug. 16, 2012 notice, OSHA will consider removing an employer from SVEP after 3 years from the date it was placed into SVEP, i.e., the employer’s failure to contest the citation that led to SVEP treatment, settlement agreement, OSHRC or final court order—depending on whether the citation was appealed.

After 3 years, OSHA Regional Administrators will perform additional follow-up inspections and analysis of IMIS/OIS data and determine whether violations have been abated, penalties paid and settlement provisions carried out:

  • If so: the Regional Administrator will have discretion to remove the employer from SVEP;
  • If not: the employer will be put back into SVEP for another 3 years, after which it can ask for reevaluation and removal.

If the employer is found not to have carried out its abatement and settlement obligations, it’ll be placed back into SVEP for another 3 years

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