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DLLR's Division of Labor and Industry

 

MOSH Instruction 11-3 - Enforcement Policies and Procedures for MOSH's Severe Violator Enforcement Program (SVEP)

 
Subject: Enforcement Policies and Procedures for MOSH's Severe Violator Enforcement Program (SVEP)
   
Effective Date: April 1, 2011
   
Issuance Date: April 1, 2011 
 
Cancellation: MOSH Instruction 08-04 Enhanced Enforcement Program (EEP), August, 4, 2008
   
Expiration Date:  
   
Purpose: This instruction establishes enforcement policies and procedures for MOSH's Severe Violator Enforcement Program (SVEP), which concentrates resources on inspection employers who have demonstrated indifference to their MOSH Act obligations by committing willful, repeated, or failure-to-abate violations.
 
Scope: This Instruction applies MOSH-wide.
   
References: OSHA Directive 02-00-149, Severe Violator Enforcement Program (SVEP)
   
Contact: Chief of MOSH Compliance Services
See MOSH Website for Current Information
   
By and Under the Authority of: Eric Uttenreither, Assistant Commissioner
 

Summary

This Instruction establishes enforcement policies and procedures for MOSH's Severe Violator Enforcement Program (SVEP), which concentrates resources on inspection employers who have demonstrated indifference to their MOSH Act obligations by committing willful, repeated, or failure-to-abate violations. Enforcement actions for severe violator cases include mandatory follow-up inspections, increased company/corporate awareness of MOSH enforcement, corporate-wide agreements, where appropriate, enhanced settlement provisions, and court enforcement under Section 5-215(a) of the MOSH Act.

I. Criteria for Handling SVEP Cases.

 A. The CSHOs must be familiar with Appendix B of this directive to effectively evaluate employers during any inspection likely to result in a severe violator enforcement case.
 B. The regional supervisor, in accordance with the criteria set forth in this directive, will identify severe violator enforcement cases no later than at the time the citations are issued.
 C. When an inspection meets the severe violator enforcement case criteria:

  1. The inspection will be classified as such.
  2. The regional supervisor will notify the Chief and Assistant Chief of MOSH Compliance Services, who will in turn notify the Assistant Commissioner.
   3. Appropriate SVEP actions will be determined by the Chief and Assistant Chief of MOSH Compliance Services, and the Assistant Commissioner of MOSH.

II. Enforcement Policies.

  A. Criteria for a Severe Violator Enforcement Case
 Any inspection that meets one or more of the following, at the time that the citations are issued, will be considered a severe violator enforcement case. The regional supervisor will identify severe violator enforcement case no later than at the time the citations are issued, in accordance with criteria set forth in this instruction (also see Appendix B).
Over time, a severe violator case may extend beyond a single employer location, depending on what further research and follow-up inspections reveal.

    1. Fatality/Catastrophe Criterion.

    An inspection of a fatality, or the hospitalization of three or more employees in which MOSH finds one or more of the following related to a death or hospitalization of three or more employees:

     (a) Willful or repeated serious violations or
     (b) Failure-to-abate notices based on a serious violation.

    2. Non-Fatality/Catastrophe Criterion Related to a High-Emphasis Hazard

    An inspection in which MOSH finds two or more willful or repeated serious violations or failure-to-abate notices (or any combination of these violations/notices), based on serious violations with a gravity of eight or higher related to a High-Emphasis Hazard.

    3. Non-Fatality/Catastrophe Criterion for Hazards Due to the Potential Release of a Highly Hazardous Chemical (Process Safety Management (PSM)).

    An inspection in which MOSH finds three or more willful or repeated serious violations or failure-to-abate notices (or any combination of these violations/notices), based on serious violations with a gravity of eight or higher related to hazards due to the potential release of a highly hazardous chemical, as defined in MOSH Instruction 11-3, PSM Covered Chemical Facilities NEP.

    4. Egregious Criterion.

    All egregious (e.g., per-instance citations) enforcement actions will be considered SVEP cases.

    Note: Willful or repeated citations or failure-to-abate notices must be based on a serious violation, except for recordkeeping, which must be based on an egregious violation.

  B. High-Emphasis Hazards.

  "High-Emphasis Hazards" as used in this Instruction means only serious violations with a gravity of eight or higher related to the following specific hazards in general industry, construction, agriculture, high voltage, logging, shipyard, marine terminal, and long shoring sectors, regardless of the type of inspection being conducted.

  • Falls Hazards
  • Amputation Hazards
  • Combustible Dust Hazards
  • Lead Hazards
  • Asbestos Hazards
  • Crystalline Silica Hazards
  • Excavation Hazards

  C. Two or More Inspections of the Same Employer.

  For classification under SVEP, each individual inspection must be evaluated separately to determine if it meets one of the criteria in subsection A., above.

  If any of the inspections meet one of the severe violator criteria, it will be considered a SVEP case.

  D. Enhanced Follow-Up Inspections.

SVEP cases will be managed as described below:

    1. General:

    For any SVEP inspection opened on or after the effective date of this Instruction, a follow-up must be conducted after the citations become final orders, even if abatement verification of the cited violations has been received. The purpose of the follow-up is to ensure that the cited violation(s) were abated, and that the employer is not committing similar violations.

    SVEP activity shall be reported, by the Regional Supervisors, to the Chief and Assistant Chief of MOSH Compliance Services at least monthly.

    2. Compelling Reason Not to Conduct:

    If there is a compelling reason not to conduct a follow-up inspection, the reason must be documented in the case file. The Regional Supervisor shall also report these cases at least monthly to the Chief and Assistant Chief of MOSH Compliance Services who will in turn inform the Assistant Commissioner.

    If a follow-up cannot be initiated, a notation of this will be made in the case file, listing the reason. Examples of compelling reasons not to conduct a follow-up inspection may include; (1) worksite/workplace closed, (2) employer out of business, or (3) operation cited has been discontinued at the worksite/workplace or (4) case no longer meets any of the SVEP criteria because citation has been withdrawn/vacated.

    Note: A 'corrected during inspection' situation does not take the place of a required follow-up inspection.

    If the Regional Supervisor learns that a cited operation has been moved from the cited location to a different location, the new location must be inspected. If the new location is outside of the State of Maryland, a referral must be made to either a State Plan Program or to Federal OSHA Region III, which ever is appropriate.

  E. Construction Worksites.

  Whenever an employer in the construction industry has a SVEP case, the Regional Supervisor must further investigate the employer's compliance history. If the initially inspected worksite is closed before a follow-up inspection can be conducted, at least one other worksite of the cited employer must be inspected to determine whether the employer is committing violations similar to those found in the initial severe violator enforcement inspection. The efforts to locate an additional worksite shall be conducted under the guidance of the Chief of MOSH Compliance Services. When a construction follow-up inspection is attempted but the employer is no longer at the site, the inspection will not be added to the SVEP log and a "No Inspection" must be generated.

  F. Silica Overexposure Follow-ups.

  MOSH Instruction 08-07, National Emphasis Program (NEP) Crystalline Silica w/ Addendum, in paragraph D requires a mandatory follow-up inspection when citations are issued for overexposure to crystalline silica to determine whether the employer is eliminating silica exposures or reducing exposures below the PEL. If a follow-up inspection finds the same or similar violations as previously cited, the follow-up inspection will more likely qualify as a severe violator enforcement case under the criteria in Section II.

  G. Inspections of Related Workplaces/Worksites.

  When there are reasonable grounds to believe that compliance problems identified in the initial inspection may indicate a broader pattern of non-compliance, MOSH will inspect related worksites of the same employer. Appendix B of this directive provides guidance in evaluating whether compliance problems found during the initial inspection are localized or likely to exist at related facilities. This information should be gathered, to the extent possible, during the initial SVEP inspections. Such information may also be sought by letter, by telephone, or, if necessary, by subpoena.

  The Regional Supervisors are responsible for assuring that relevant information is gathered to determine whether the information provides reasonable grounds to believe that a broader pattern of non-compliance exists. The Regional Supervisors will consult with the Chief and Assistant Chief of MOSH Compliance Services as appropriate.

  When sufficient evidence is found that all related establishments of the employer are in the same 3-digit NAICS code (or 2-digit SIC code) as the initial SVEP case, those identified establishments will be selected for inspection in accordance with subsection H below. Establishments that are not in the same NAICS code (or SIC code) also may be inspected when it is believed hazards and violations may be present at the related sites.

  OSHA will accept referrals, which include all relevant facts, from MOSH regarding any inspections conducted pursuant to MOSH's SVEP. MOSH referrals to OSHA are to be sent to the OSHA Regional Administrator. The Chief of MOSH Compliance Services will consult with the Assistant Commissioner of MOSH regarding referrals made to OSHA.

  H. General Industry and Other Non-Construction Workplaces

    1. Employer Has Three (3) or Fewer Similar Related Workplaces

    If the Chief of MOSH Compliance Services determines that additional workplaces are to be inspected, and the employer has three or fewer similar related workplaces, all such workplaces will be inspected to determine whether those sites have hazardous conditions or violations similar to those in the severe violator enforcement case.

    When any of the three or fewer workplaces are in two or more Regions, the information will be forwarded to the appropriate Regional Supervisor for inspection. If any of the workplaces are in another state an appropriate referral will be generated.

    The Chief and Assistant Chief of MOSH Compliance Services have overall responsibility for planning and coordinating inspections that cross regions.

    2. Employer Has More Than Three (>3) Similar Related Workplaces

     a. If it is determined that similar related establishments are to be inspected, the Assistant Chief will recommend a SVEP Statewide inspection list, including all relevant facts. The Chief will decide the number of additional locations to be assigned. If any of the workplaces are in another state an appropriate referral will be generated.

     All the establishments on the inspection list will be inspected to determine whether hazardous conditions or violations similar to those found in the initial SVEP inspection are present. Based on the results of these inspections, the Chief may determine whether inspections of additional establishments are to be conducted.

     b. When the Chief has reason to believe that hazards may exist at particular other related establishments, he/she may select those establishments for inspection.

     c. The Chief will be responsible for coordinating statewide inspections of related establishments under this paragraph. Where complex or systemic issues are present, the Chief will appoint a team to advise on investigative strategies, such as the use of administrative depositions or experts, and will share information among offices participating in the inspections.

  I. Scope of Related Inspections.

  The scope of an inspection of a related establishment will focus on the same or similar hazards to those found in the original SVEP case.

  A SVEP nationwide inspection that is related to Process Safety Management hazards will be limited to investigations of the PSM standard for which the willful or repeated citations or failure-to-abate notices were issued, and will not include units that were inspected in the previous two years.

  Note: If the inspector sees a serious hazard not related to the similar hazards found in the original SVEP case, that hazard(s) will also be addressed.

  J. Priority of SVEP Inspections.

In accordance with inspection priorities listed in the MOSH Field Operations Manual, SVEP inspections will come after imminent danger, fatality, and complaints, but before other scheduled inspections. Refer to the MOSH Field Operations Manual to determine when other inspections may be conducted concurrently.

  K. Increase company Awareness of MOSH Enforcement.

    1. Sending Citations and Notifications of Penalty to Employer Representatives.

    Employee representatives (e.g. unions) will also be mailed a copy of the Citations and Notifications of Penalty that is mailed to the employer's national headquarters as per the direction of the MOSH Field Operations Manual.

    2. Sending Citations and Notifications of Penalty to Headquarters

    For all employers that are the subject of a SVEP case, a copy of the Citations and Notifications of Penalty must be sent to the employer's national headquarters including a message explaining that their company is being inspected as part of the Severe Violator Enforcement Program, with follow-up inspections planned for the future. See Appendix C for sample of cover letter.

  L. Settlement Provisions

  Settlement provisions must follow current MOSH protocol for effective abatement of hazards.

III. SVEP Log

SVEP inspections will be entered in the NCR (or equivalent). Inspectors must select the 'Severe Violator Enforcement' value in the National Emphasis Program drop down menu on the Inspection screen for all inspections covered by this Instruction. If the SVEP status of a case changes, the NCR (or equivalent) will be updated to reflect that change.

IV. Relationship to Other Programs.

 A. Unprogrammed Inspections

 If an unprogrammed inspection arises with respect to an establishment that is to receive a SVEP-related inspection, the two inspections may be conducted either separately or concurrently. This instruction does not affect in any way MOSH's ability to conduct unprogrammed inspections.

 B. Programmed Inspections

 Some establishments selected for inspection under the SVEP may also fall under one or more other MOSH initiatives such as Site-Specific Targeting (SST) or Local Emphasis Programs (LEP). Inspections under these programs may be conducted either separately or concurrently with inspections under this Instruction.

 C. Coordination with MOSH Consultation

In the event a consultation visit had been scheduled, or is in progress at a worksite the Chief and Assistant Chief has determined is a "related workplace/worksite of a SVEP employer", the requirement in the Field Operations Manual, Chapter III, General Inspection Procedures, need to be followed if an inspection is to be conducted.

Action:

  1. The Chief of Compliance, or designee, shall ensure that SVEP inspections are conducted in accordance with the policy and procedures set forth in this instruction.
  2. Compliance and Consultation Supervisors shall ensure that field personnel are familiar with the contents of this Instruction, and OSHA Instruction CPL 02-00-149 issued June 18, 2010.
     

Appendices (Word document, 100KB, download Word viewer for free)

cc: J. Ronald DeJuliis, Commissioner, Division of Labor and Industry
Craig D. Lowry, Deputy Commissioner, Division of Labor and Industry
Jonathan Krasnoff, Assistant Attorney General
Office of Administrative Hearings

 
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