On June 18, 2010, OSHA published the new Severe Violator Enforcement Program (Program). The Program states that any inspection that meets one of the following criteria will be considered a severe violator enforcement case:

  1. A fatality/catastrophe inspection in which OSHA finds one or more willful, repeat, or failure-to-abate violations;
  2. An non-fatality/catastrophe inspection in which OSHA finds two or more willful, repeat, or failure-to-abate violations related to a “High Emphasis Hazard;”
  3. A non-fatality/catastrophe inspection in which OSHA finds three or more willful, repeat, or failure-to-abate violations related to process safety hazards addressed in the Petroleum Refinery Process Safety Management National Emphasis Program, CPL 03-00-010 (August 18, 2009) and the PSM Covered Chemical Facilities National Emphasis Program, CPL 09-06 (CPL 02)(July 27, 2009); and
  4. All “egregious” enforcement actions.

The Program defines a “High Emphasis Hazard” as:

  1. Fall hazards addressed in certain general industry, construction industry, shipyard, marine terminal, and longshoring standards;
  2. Amputation hazards addressed in the National Emphasis Program on Amputations CPL 03-00-003 (October 27, 2006);
  3. Combustible dust hazards addressed in the Combustible Dust National Emphasis Program CPL 03-00-008 (March 11, 2008);
  4. Crystalline silica hazards addressed in the National Emphasis Program – Crystalline Silica CPL 03-00-007 (January 24, 2008);
  5. Lead hazards addressed in the National Emphasis Program – Lead CPL 03-00-009 (August 24, 2008);
  6. Excavation/trenching hazards addressed in the Special Emphasis Program – Trenching and Excavation CPL 02-00-069 (August 19, 1985); and
  7. Shipbreaking hazards addressed by the National Emphasis Program – Shipbreaking CPL 02-00-136 (March 16, 2005).

The Program states that if an inspection qualifies as a severe violator enforcement case, OSHA must:

  1. Conduct a follow-up inspection to assess not only whether the violations were abated but also whether the employer is committing similar violations;
  2. Inspect related worksites of the employer when there are reasonable grounds to believe that compliance problems may be indicative of a broader pattern of non-compliance;
  3. Increase company awareness of OSHA enforcement by sending citations to the national headquarters of a company, issuing regional and national press releases;
  4. Consider settlement provisions to ensure future compliance both at the cited facility and at related worksites, and
  5. Consider seeking an 11(b) order from the appropriate Circuit Court of Appeals enforcing the citations or settlement agreement.

The Program states that state plans are required to adopt the Program or establish their own equivalent program. The Program also states that federal OSHA will accept referrals from state plans for appropriate inspections and that federal OSHA will make referrals to State Plans for appropriate inspections.

The Program states that the National Office will maintain a log of all severe violator enforcement cases, and that the Directorate of Enforcement Programs will compile an End of the Fiscal Year Report of the severe violator enforcement cases that will be sent to the Assistant Secretary of Labor.

As noted above, the consequences of being in the Program can be very problematic for companies. Companies should therefore be well-aware of the types of violations that can place them into the Program. This is particularly true when determining whether to file a notice of contest or settle certain citation items. In this regard, if a judge vacates a qualifying citation item or OSHA withdraws qualifying citation item as part of a settlement agreement, this would enable a company to be removed from the Program.