By Bruce Rolfsen
The Occupational Safety and Health Administration in a new report declared the Severe Violator Enforcement Program is “off to a strong start,” despite finding problems with follow-up inspections of construction contractors and a contest rate four times the agency average.
In addition, because of SVEP's focus on construction, the program has swept up more small businesses than large employers, the report said. Almost 75 percent of the businesses had no more than 100 workers, and many of those were small construction contractors with 25 or fewer workers.
The Severe Violator Enforcement Program White Paper was issued Feb. 26 by OSHA, and is the agency's first published review of the program other than summary lists of employers cited as severe violators (42 OSHR 669, 7/26/12).
The analysis covers the program's first 1 1/2 years--June 2010 through February 2012 and looks at the 191 employers on the SVEP list as of the end of fiscal 2011.
At the start of 2013 about 390 establishments were designated as severe violators, according to an OSHA summary.
Companies designated as severe violators face sanctions beyond paying fines and correcting violations. Employers with multiple sites may have every location inspected while the SVEP citation is appealed to the Occupational Safety and Health Review Commission. To get off the SVEP list, an employer must either win its appeal or agree to a settlement that is likely to require follow-up inspections and other measures lasting for at least three years from the settlement date.
For OSHA to designate an employer as a severe violator, an inspection must uncover at least two willful, repeat, or failure-to-abate violations that are considered “high-gravity” and related to “high-emphasis hazards.” High-emphasis hazards include falls, amputations, grain entrapment, trenching, process safety management, and exposure to lead, silica, and combustible dust.
Also, a fatality or catastrophic incident can put an employer in SVEP if an inspection finds at least one willful, repeat, or failure-to-abate violation.
Of the 191 employers assigned to SVEP as of the close of fiscal 2011, 65 percent (126) were on the list because of high-emphasis hazard-related violations; fatalities accounted for 19 percent (36); egregious cases, 13 percent (25); egregious/fatality 2 percent (3), and process safety management, 1 percent (1), the report found.
By industry, 60 percent of the employers were construction companies, and the remaining 40 percent were in other unspecified industries. At the start of SVEP, OSHA officials predicted construction companies would dominate the list because most of the high-hazard categories could be found on building sites.
Because most construction work is performed by small contractors, 70 percent (80) of the cited contractors have 25 or fewer workers.
The report acknowledged the predominance of small construction companies made it difficult for SVEP to fulfill a goal of follow-up inspections once a case is settled with a final order. When compliance officers attempted follow-up inspections, they were unable to locate 52 of the construction firms.
“Many small construction companies, for example, have mobile worksites and, therefore, OSHA is often unable to locate them for a follow-up,” the white paper said.
Of the nonconstruction employers, only four could not be found for follow-up checks.
The report noted that as a result of the follow-up difficulties, OSHA has improved how it tracks employers. However, the report did not provide more recent data on follow-up inspections.
Another feature of the SVEP program is OSHA's commitment to inspect multiple sites of the same company. If violations earn an SVEP designation at one company location, then OSHA would inspect the employer's other locations.
As of February 2012, only seven SVEP cases had resulted in inspections of other locations, with six of the inspections involving nonconstruction companies. Three of the inspections resulted in sites added to SVEP.
The report said the number of related inspections could have been higher. In at least 38 cases, government attorneys determined that related inspections would harm OSHA's litigation and settlement strategies, including the pursuit of corporate-wide settlements.
When a business is cited as a severe violator, the report found, almost half the employers challenge the OSHA decision. Of the 191 cases the study looked at, 44 percent (83) were being contested through the Occupational Safety and Health Review Commission. Another 10 employers who successfully challenged their citations in 2011 were removed from the SVEP list and not counted among the 191 cases, the report said.
For all OSHA inspections in 2011, the contest rate was 10.7 percent, according to OSHA data.
The white paper called the contest rate disparity “predictable.” The SVEP rate “is created out of a pool in which every employer in every SVEP case is facing significant sanctions for willful and repeat violations,” the report said.
Eric Conn, an attorney with Epstein Becker & Green P.C. in Washington, D.C., said the high contest rate is a symptom of SVEP's basic problem.
“OSHA is targeting its enforcement resources against employers that it has not proven violated the law at all, let alone in the severe ways that warrant the harsh punitive elements of the SVEP,” Conn told BNA Feb. 26.
Instead of designating an employer as a severe violator when citations are issued, OSHA should wait until the appeal process is over to declare a severe violator, Conn said.
Conn also challenged OSHA's assertion that its policy of inspecting other company locations if one site is designated as a severe violator is fruitful. As of the end of February 2012, OSHA had conducted 18 inspections and three inspections produced new SVEP designations.
“This data completely undermines OSHA's claim in the white paper that the SVEP 'is off to a strong start' and is 'meeting key goals' of identifying recalcitrant or indifferent employers. Indeed, all indications are that it is doing exactly the opposite,” Conn said
Eric Frumin, health and safety director with the union-affiliated Change to Win, disagreed, saying that finding three severe violators in 18 inspections of other locations indicates the program is working. “It's clear that OSHA is serious about tracking and following up on bad actor employers,” Frumin told BNA Feb. 27.
Frumin would like OSHA to make the program tougher by conducting follow-up inspections while cases are appealed, but that would require Congress to amend the Occupational Safety and Health Act.
The overall results of SVEP are far better than the program it replaced, the Enhanced Enforcement Program, which lacked measures to ensure follow-up inspections or institute company-wide inspections, Frumin said (39 OSHR 277, 4/9/09).
The white paper is available at http://www.osha.gov/dep/enforcement/svep_white_paper.pdf.