First Year of OSHA Severe Violator Program Produces Citations of 182 Employers

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One year into its Severe Violator Enforcement Program, the Occupational Safety and Health Administration has cited 182 workplaces, according to agency inspection numbers.

The information shows that construction firms were cited nearly two-thirds of the time and that the most prevalent reason for earning a spot on the list was an inspection uncovering “high-gravity violations” of OSHA regulations in industries covered by OSHA emphasis programs such as grain handling.

BNA obtained the SVEP data through a Freedom of Information Act request made in April. In early July, OSHA posted the same data plus a month's worth of updates on its public website.

The directive for SVEP, CPL 02-00-149, became enforceable on June 18, 2010, as the agency aimed to discipline employers charged with committing serious, and often repeat violations (40 OSHR 355, 4/29/10).

“Higher penalties and more aggressive, targeted enforcement will provide greater deterrent and further encourage these employers to furnish safe and healthy workplaces for their employees,” Assistant Labor Secretary David Michaels wrote when OSHA debuted SVEP (40 OSHR 355, 4/29/10).

OSHA officials declined requests for interviews about SVEP's inaugural year. However, in a July 7 written statement to BNA, the agency said, “OSHA is monitoring the program closely and we believe the program has been effective.” The agency intends to evaluate SVEP after the close of fiscal 2011 to determine whether any modifications should be made, the statement added.

Who Is a Severe Violator?

When SVEP debuted, OSHA officials expected most of the employers placed in the program would be construction companies, and that has been the trend. Of the 182 employers cited, 112 (61 percent) were listed by as construction. Of the construction businesses, 66 were specialty trade contractors and 31 were involved in heavy construction.

Manufacturing accounted for 35 (19 percent) of the violators, and nondurable goods wholesalers were cited 13 times (7 percent).

Most employers in the SVEP program got there because they were cited for “high-gravity violations” related to an OSHA designated “high-emphasis hazard. Of the 182 employers, 109 (60 percent) made the list because of such violations.

The gravity of the violation is determined by the severity of the injury or illness that could occur and the likelihood of injury or illness. A high-emphasis hazard, according to the SVEP directive, is a risk related to violations of OSHA's rules for fall hazards, construction, grain handling, shipyard work, marine terminal operations or longshoring; National Emphasis Programs covering amputation, combustible dust, crystalline silica, or shipbreaking; or special emphasis programs on excavation and trenching hazards.

Fatalities were the next highest reason for SVEP designations, with 32 companies (18 percent) cited. A death triggers SVEP if there is at least one citation for willful or repeated violations or failure-to-abate notice for a severe violation.

OSHA's Region 5, covering the upper Midwest, issued the most SVEP citations. The region's 60 notices represented one third of citations nationwide. Region 2, covering the Northeast, had the second-highest total with 35 citations (19 percent). A spokeswoman for Region 2, Leni Uddyback-Fortson, said the region's high percentage of citations were in line with region's share of all OSHA citations and is not an indication that the region was issuing an unusually high amount of SVEP citations.

On the settlement side, there have been 14 “enhanced settlements,” agreements that require a violator to hire an outside safety consultant to help develop a safety plan, and seven informal settlements. Two companies have been removed from the SVEP list, an indication that the original citation was deleted or overturned by a later review.

Multiple Problems, Multiple Sites

A handful of employers had multiple workplaces cited under the SVEP, part of OSHA's efforts to inspect a business's other locations if severe problems are found at one site. Among those employers were Gavilon Grain, with seven citations; U.S. Minerals, with five citations; Cooperative Plus, a Midwest agricultural cooperative, with four citations; Girardi Sewer and Water, with four citations; Lucas Oil Production Studios, three citations; and Cooper Tire and Rubber Co., with two citations.

Eric Hobbs, an attorney with Michael, Best, and Friedrich LLP, representing Cooperative Plus, told BNA July 13 that the company had negotiated a proposed settlement with OSHA, that he hoped would have a judge's approval by the end of August. Hobbs objected to OSHA's referring to the farmer-led cooperative as a severe violator.

“Labeling them as a severe violator is out of proportion to reality,” Hobbs said.

A spokeswoman for Gavilon Grain, Deb Ahl, said it would not be appropriate for Gavilon to comment about the citations because they are open cases.

Cooper Tire spokeswoman Michelle Zeisloft said Cooper is contesting the citations and would not make additional comments at this time.

By Bruce Rolfsen

OSHA's updated list of severe violators is available at http://op.bna.com/env.nsf/r?Open=sbra-8jqr5g .

The SVEP directive is available at http://op.bna.com/env.nsf/r?Open=sbra-8jqr42 .