In a notice dated April 12 but not posted on OSHA's website until April 22, the agency said it was adding the grain-handling industry to its severe violator classification "to address the troubling and inexcusable increase in fatalities, entrapments and injuries within this high-hazard industry." [Emphasis added.]
Importantly, the SVEP designation means that during an inspection of a designated facility, if OSHA finds two or more "willful" or "repeated" violations; "failure-to-abate" previously cited violations; or any combination of these breaches of the grain-handling safety standard (29 CFR.1910.272), OSHA will consider the violations to constitute a severe violator enforcement case. OSHA's grain handling standard includes requirements related to housekeeping, including a 1/8th-inch grain dust action level; bin-entry procedures; employee training; preventive maintenance; emergency action plans; hot work and contractor notification of safety hazards; and numerous equipment requirements.
Enforcement actions for "severe-violator" cases include mandatory follow-up inspections; OSHA issuance of press releases citing the company as a SVEP offender; notification of a facility's corporate headquarters; corporate-wide agreements to enhance safety, where appropriate; higher fines and settlement provisions; and federal court enforcement under Section 11(b) of the law. The program also provides for nationwide referral procedures, which includes OSHA's State Plan states. OSHA's SVEP directive, which took effect June 18, 2010, concentrates inspection resources on employers that allegedly have demonstrated "indifference" to their Occupational Safety and Health Act obligations by committing willful, repeated or failure-to-abate violations.
The implications are significant, including these inspection-related measures:
- Follow-up inspections of the cited workplace will be conducted after the citation becomes a final order, even if OSHA has received verification that the hazard has been abated. This means that such follow-up inspections will not be limited in scope to whether the identified hazard has been abated, but also will include an assessment of whether the employer is engaging in similar violations.
- If the agency has reason to believe that a citation is part of a broader pattern of noncompliance, OSHA will conduct inspections at other related worksites (facilities) of the offending employer. For example, a citation issued for a grain-handling standard violation at a company's facility in one state could trigger inspections of similar facilities operated by the same company in other states.
- The scope of the related inspection "will depend upon the evidence gathered in the original SVEP inspection." Specifically, OSHA inspectors will be looking for evidence of broader noncompliance patterns in its initial investigations, and may issue document requests or subpoenas to gather evidence to determine whether related investigations are warranted.
The SVEP designation also has "enhanced-settlement" consequences that will result in the offending facility or company being pressed by OSHA to accept the following during settlement negotiations:
- hiring an independent safety consultant to work through compliance issues;
- applying settlement agreements companywide in accordance with OSHA's 1991 Guidelines for Administration of Corporate-Wide Settlement Agreements;
- imposing interim abatement controls in cases where full abatement of hazards may require additional time;
- imposing weekly or other enhanced reporting measures to report current or future jobsites for a certain time period;
- requiring quarterly reporting of work-related injuries and illnesses to the agency, and requiring that employers consent to additional inspections based upon the results of such reporting; and
- requiring employers to report for a specified time period any serious injury or illness requiring medical attention, and to consent to inspections based upon such reporting.
OSHA's Designation of Grain-Handling Facilities
for 'Severe Violator Program'
…Consequences for the Industry…
for 'Severe Violator Program'
…Consequences for the Industry…
The following questions-and-answers explore the practical implications for grain-handling facility managers and operators of OSHA designating the industry for its Severe Violator Enforcement Program (SVEP).
Q: The grain-handling industry has been under a special emphasis inspection program in several regions for the last year or so. Will this SVEP designation increase inspection frequency by OSHA nationwide?
A: Yes. This designation means that all 10 OSHA regional offices will designate grain-handling facilities as a high priority for inspection.
Q: What if my facility operates in a state that has a state plan approved by OSHA, where the state does the inspections? Will states also be increasing their inspections and imposing higher fines and penalties for violations as a result of this SVEP designation?
A: Yes. As a condition of their state plan approvals from OSHA, state occupational safety and health agencies are required to have programs that are at least as stringent as federal OSHA. Through SVEP, states will be required to either make or respond to referrals from federal OSHA.
As an aside, current state-plan states are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Washington and Wyoming.
Q: If OSHA issues a citation at a facility, does this SVEP designation mean it’s more likely other facilities owned or operated by the same company will be inspected?
A: Yes. If the agency has reason to believe a citation is part of a broader pattern of noncompliance, OSHA will conduct inspections at related worksites of that employer. For example, if a Pennsylvania facility operated by a company is cited for a particular violation, that can trigger an investigation and inspection of a Texas-based worksite operated by the same employer. OSHA will be looking for evidence of broader noncompliance patterns in its initial inspections of a facility, and may issue document requests or subpoenas to gather evidence to determine whether related investigations are warranted. OSHA also will identify potential locations to state plan states, and will accept referrals from state plan states.
Q: Does this SVEP designation mean that OSHA will impose higher penalties and fines the first time they find a violation at a facility?
A: No. But during an inspection of a designated facility, if OSHA finds two or more "willful" or "repeated" violations; "failure-to-abate" previously cited violations; or any combination of these breaches of the grain-handling safety standard (29 CFR.1910.272), OSHA will consider the violations to constitute a severe violator enforcement case.
Q: Are the kind of violations that could subject a facility for severe-violator enforcement broader than those covered under the OSHA grain-handling standard (29 CFR.1910.272)? For instance, we know that some OSHA and state plan offices are citing grain handling facilities for operating sweep augers while one or more employees are present inside the bin. Would a "repeat" violation for operating sweep augers at a facility be enough to cause that facility and the company to be subject to the severe-violator program?
A: The directive is limited to grain handling hazards covered under the grain-handling standard. In particular, so-called "high-emphasis hazards" are targeted during such inspections, including those identified from national emphasis programs. For the grain-handling industry, this in particular includes bin-entry and engulfment-related issues, including the requirement to provide training to employees.
It is difficult to say at this time what the SVEP's impact will be on alleged sweep auger violations. Currently, there is a legal case pending in OSHA Region VII, in which an NGFA-member company challenged the validity of a citation based upon the Dec. 24, 2009 OSHA letter of interpretation. Further, a U.S. senator who in October 2010 sent a letter to OSHA asking for clarification of the 2009 OSHA letter of interpretation is expecting to receive a response within the next few weeks.
Q: What kind of additional enforcement actions does OSHA take if a facility/company has the type of violations that cause it to be designated as a severe violator?
A: OSHA enforcement actions for severe violator cases include mandatory follow-up inspections; alerts to corporate offices and press releases on the violator; corporate-wide settlement agreements with OSHA to abate the hazard(s), as appropriate; enhanced settlement provisions, which includes hiring a safety and health consultant to assist with abatement; federal court enforcement under Section 11(b) of the Occupational Safety and Health Act (which grants the secretary of labor authority to: 1) petition a U.S. Court of Appeals for review of a final order from the Occupational Safety and Health Review Commission (commission); and 2) petition a U.S. Court of Appeals for enforcement of a final order issued by the commission. )