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OSHA TARGETS GRAIN-HANDLING INDUSTRY FOR ENHANCED “SEVERE VIOLATOR” ENFORCEMENT NATIONWIDE

NGFA NEWS SOURCE

We have learned that the Occupational Safety and Health Administration (OSHA) has added the grain-handling industry to its so-called “Severe Violator Enforcement Program” (SVEP), which subjects facilities to enhanced inspection, enforcement, and greater financial and criminal penalties under certain conditions.  In a notice dated April 12 and posted on OSHA’s website on 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.”

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 on 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 Pennsylvania facility 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.

 

 

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Nebraska Grain and Feed Association
4600 Valley Road, Suite 416
Lincoln, NE 68510-4844
Phone: 402-476-6174
Fax: 402-476-3401