The Severe Violator Enforcement Program (SVEP), which became effective on June 18, 2010, is intended to focus enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees through willful, repeated, or failure-to-abate violations relating to significant hazards. The SVEP replaced the Enhanced Enforcement Program (EEP), a program also intended to target problematic employers. The EEP’s criteria, broader than the SVEP criteria, also relied on the employer’s compliance history. In 2009, the Office of Inspector General (OIG) audited the EEP and issued a report criticizing the program’s efficiency and effectiveness. The OIG found that OSHA missed a number of EEP-qualifying cases, did not conduct proper follow-up on a majority of EEP-qualifying cases, made little effort to determine if non-compliance existed company-wide where there were multiple locations, and generally did not utilize the enhanced enforcement tools the EEP provided to ensure future compliance.
Rather than amend the EEP, OSHA replaced the program with the more narrowly focused SVEP. At the root of the OIG’s criticism was OSHA’s failure to conduct follow-up inspections because of EEP’s expansive criteria. These criteria created so many EEP cases that OSHA could not maintain the program’s increased enforcement efforts. As such, OSHA tightened the criteria in the SVEP to better focus its enforcement resources on those employers who have demonstrated particular recalcitrance or indifference to their OSH Act obligations. Section XX of the SVEP Directive, CPL 02-00-149, requires OSHA's Directorate of Enforcement Programs (DEP) to submit to the Assistant Secretary an End of Fiscal Year Report of each Region’s SVEP activity. In addition to the activity report, DEP worked with OSHA's Regional Offices to evaluate SVEP’s implementation, current status, and obstacles in order to measure its effectiveness and efficiency. This report reviews the data collected on those inspections designated as SVEP cases as of September 30, 2011, the end of FY 2011.As of the end of FY 2011, there were a total of 191 inspections designated as SVEP cases. This report reviews this set of developing cases at two points in time – their individual status as of September 30, 2011 and as of February 29, 2012 – in order to apply statistical analysis to the SVEP’s implementation. SVEP cases were broken down by their SVEP-triggering criteria, by industry type (construction and non-construction), company size, and case status. OSHA surveyed the field regarding follow-up and related inspections, 11(b) actions, and various aspects of settlement activity.
From information collected in the SVEP Log and the OSHA surveys, OSHA found that:
- The mandatory follow-up inspections are regularly conducted.
- Enhanced Settlement Provisions are being established with employers requiring measures above and beyond basic hazard abatement to ensure compliance at the cited facility and at other related facilities. Of the 180 inspections that were still SVEP cases as of February 2012, 67 settlements included enhanced settlement provisions. The most commonly-used provisions require employers to provide safety training, inform OSHA of current and future worksites, use OSHA’s consultation services, and regularly conduct safety and health audits.
- Follow-up and related inspections of construction companies have been difficult. Because of the short-term nature of the jobs and the small size of the companies, they often cannot be located for follow-ups.
- To date, few SVEP cases have triggered related inspections of the same employers across multiple sites.
- To date, few SVEP cases have required court orders to force compliance under section 11(b) of the OSH Act.
- Clarification and standardization of policies between OSHA and the Department of Labor's Solicitors Office (SOL) are needed to facilitate joint work (such as 11(b) orders, citation deletion and reclassification, and the inclusion of enhanced settlement provisions).
Between when the program became effective on June 18, 2010 and the end of FY 2011, there were a total of 191 inspections designated as SVEP cases. In the first, partial fiscal year (June 18, 2010 – September 30, 2010), there were 41 cases. In FY 2011, the first full year of the SVEP, there were 150 SVEP cases.
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