On June 10, 2014, Epstein Becker Green’s national OSHA Practice Group presented a webinar regarding OSHA’s Severe Violator Enforcement Program (SVEP). The SVEP is an OSHA enforcement program intended by OSHA to direct its enforcement resources at employers whom OSHA believes are “indifferent to their OSH Act obligations.”

The webinar covered:

  • What the SVEP is;
  • How and when employers “qualify” into it;
  • What the consequences are for doing so;
  • Interesting data and trends about the SVEP; and
  • Tips to help employers avoid this fate.

This webinar was the second part in a five-part OSHA webinar series for employers facing the daunting task of complying with OSHA’s numerous federal and state occupational safety and health standards and regulations.  Read more about the webinar series, or click here to register for the remaining briefings.

As was mentioned during the webinar, these briefings will all be recorded, and the recording and slides from the Severe Violator Enforcement Program webinar are now available.  To download either or both, click here, scroll to the bottom of the page, insert the password “OSHA2” in the box, and click “Go.”  Links to a PDF of the slides and to the full recording of the webinar will appear at the bottom of the page.

The national OSHA Practice Group at Epstein Becker Green co-authored an article in BioFuels Journal entitled “Railcar Fall Protection: What OSHA Requires from Ethanol Plant Operators.”  Although the article principally addresses OSHA’s enforcement landscape related to work on top of railcars at ethanol plants, the analysis carries over to work on top of any rolling stock (e.g., tanker trucks, railcars, rigs, etc.) in any industry.

Here is an excerpt from the article:

Addressing fall hazards is always among the OSHA’s top enforcement priorities.  Indeed, OSHA’s fall protection standards continue to rank among the most frequently cited year after year.  The use of fall protection equipment for work on top of rolling stock, however, is one of the most confusing and inconsistently enforced OSHA requirements, particularly for work on top of railcars at grain elevators facilities and ethanol plants.

There are numerous work activities that require employees to stand on and walk between the tops of railcars . . .from stowage inspections and prepping cars, to helping guide a loadout spout into a railcar, or allowing state or federal grain inspectors to access railcars for sampling and grading.  With potentially miles of track where these work activities may need to be performed on top of railcars, there often is no feasible method for employees to tie off a harness and lanyard over the tracks.

The article goes on to explain the current state of the law in this area, including a detailed analysis of OSHA’s 1996 Miles Memo (a formal interpretation about rolling stock fall protection requirements), a recent OSH Review Commission decision interpreting the Miles Memo, and a series of recommended practices for employers.

Here is a link to the article.

 

On Tuesday, December 3, 2013, in conjunction with the Grain Journal, Eric J. Conn, Head of the national OSHA Practice Group at Epstein Becker & Green, delivered a webinar focused on the OSHA enforcement landscape related to work on top of rolling stock (specifically railcars) at grain elevator facilities.  The webinar, including a Q&A session, was recorded, and the Grain Journal has made the recording available online.  The recording includes an audio broadcast with a video of the accompanying PowerPoint presentation.

Here is a link to the recording of the Railcar Fall Protection webinar and a link to the slides from the briefing.

The December 3rd webinar focused on the complex circumstances that require employees to work on top of railcars at grain elevators, and how OSHA has historically and is presently addressing those circumstances through enforcement.  Whether it’s prepping cars down track away from the elevator, helping to guide a load out spout into a railcar, or allowing state or federal grain inspectors access to railcars for stowage inspections and sampling, there are numerous work activities that require employees to stand on and walk between the tops of railcars. With potentially miles of track where work may need to be done on top of the railcars, there often is no feasible way to provide anchor points to which employees can tie off fall protection over the tracks.  To complicate matters more, OSHA’s requirements regarding Railcar Fall Protection are among the most confusing and inconsistently enforced.  The webinar covered:

  • The history of OSHA enforcement as it relates to rolling stock fall protection, from the 1996 “Miles Memo” to the most recent court decisions upholding the Miles Memo;
  • OSHA’s active enforcement agenda that includes a targeting of railcar fall protection issues in the grain industry;
  • OSHA’s ongoing Walking & Working Surfaces rulemaking activity, which may introduce new railcar fall protection requirements; and
  • Recommendations for how best to avoid OSHA citations while performing work on railcars.

This was the second in a series of OSHA law related webinars Mr. Conn will be delivering for the grain industry in conjunction with Grain Journal.  The first webinar in the series, presented in September 2013,  was entitled “New OSHA Sweep Auger Enforcement Policies… How They Will Affect You.”  Here is a link to the OSHA / Sweep Auger webinar recording.

On Tuesday, December 3, 2013 at 3 PM (Eastern) / 2 PM (Central), Eric J. Conn, Head of the national OSHA Practice Group at Epstein Becker & Green will conduct a free webinar focused on OSHA’s enforcement landscape as it relates to work on top of rolling stock (specifically railcars) at grain elevator facilities.  This is the second in a series of OSHA law related webinars for the grain industry in conjunction with Grain Journal.

Whether it’s prepping cars down track away from the elevator, helping to guide a load out spout into a railcar, or allowing state or federal grain inspectors access to railcars for stowage inspections and sampling, there are numerous work activities
that require employees to stand on and walk between the tops of railcars.  With potentially miles of track where work may need to be done on top of the railcars, there often is no feasible way to provide anchor points to which employees can tie off fall protection over the tracks.

To complicate matters more, OSHA’s requirements regarding Railcar Fall Protection are among the most confusing and inconsistently enforced.  So what does the law require and how is OSHA treating this issue from an enforcement standpoint?  Get the answers to these questions and more during this webinar.  The webinar will:

  • Describe the history of OSHA enforcement as it relates to rolling stock fall protection, from the 1996 “Miles Memo” to the most recent court decisions upholding the Miles Memo;
  • Review OSHA’s active enforcement agenda that includes a targeting of railcar fall protection issues in the grain industry;
  • Discuss OSHA’s ongoing Walking & Working Surfaces rulemaking activity, which may introduce new railcar fall protection requirements; and
  • Forecast where we think OSHA is heading next, and what that means for your operations.

This is an audio broadcast with a live powerpoint presentation.  Audio will be available through your computer speakers or your telephone.  High-speed internet is required for this event.

To register for free, click here.

Any questions, call Grain Journal’s Webinar Manager Greg Sullivan at 800-728-7511.

By Eric J. Conn, Head of the OSHA Practice Group at Epstein Becker Green

An industry contact recently asked me what five issues I expected OSHA would be focusing its enforcement efforts on for the balance of this year.  Here was my response:

1.  Emergency Exits & Exit Routes – A couple of months ago, OSHA issued an enforcement memorandum directing inspectors to scrutinize whether employers were providing and maintaining adequate means of emergency exit; i.e., unlocked, unobstructed, and clearly marked exit doors and exit routes in compliance with 29 C.F.R. 1910.36.  We just wrote a blog post about this Exit initiative on the OSHA Law Update blog.   The directive applies to all industries and all workplaces, so I expect that will be one item OSHA looks at carefully in all inspections for at least the rest of the calendar year.

2.  Hazard Communication – Employers will be hearing a lot about OSHA’s Hazard Communication standard over the next few months.  As we reported here, OSHA revised its Hazard Communication Standard to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS), and published the new Final Rule last year.  Two significant changes contained in the revised standard require chemical manufacturers and users to implement new labeling elements and create and maintain Safety Data Sheets (SDSs) that follow a new standardized format.  A portion of the new requirements kicks in this winter.  Specifically, by December 1, 2013, employers must have completed training on the new label elements and the new SDS format.  Accordingly, I expect OSHA to spend some time addressing these issues in enforcement inspections to help spread the word that the new requirements have arrived.  Here is an article we wrote about the new HazCom Standard.

3.  LO/TO & Machine Guarding – OSHA’s regulations addressing amputation hazards; i.e., Lockout/Tagout and Machine Guarding, both rank high on the list of most frequently cited OSHA standards every year.  As a result, OSHA currently has in place a special emphasis program focusing inspection resources on these hazards.  Specifically, OSHA is in the midst of an Amputations National Emphasis Program, which targets compliance with the LO/TO and machine guarding standards.  That NEP has led to some significant enforcement actions, and I anticipate seeing OSHA continue to look out for those types of issues during inspections the balance of the year.

4. Fall Protection – Just like with amputation hazards, fall hazards continue to rank among the leading causes of serious injuries and fatalities in both general industry and construction, and OSHA’s fall protection standards continue to rank among the most frequently cited standards year after year.  Accordingly, OSHA almost always maintains Special Emphasis Programs targeting fall hazards.    Nine of OSHA’s ten Regions have active local or regional emphasis programs focusing inspection resources on fall hazards in either or both general industry and construction.

5.  Compliance with the Grain Standard — For the past few years, OSHA has been actively inspecting grain handling facilities in all major U.S. grain states under local emphasis programs.  While the LEPs continue to set a pretty high target for the number of grain elevator inspections annually, many regions have held back on inspections during the spring in summer, and plan to catch up on the annual target during the fall and winter (i.e., harvest season).  The reason being, there is generally not much activity at most grain elevators that OSHA is interested in during the spring and summer months.  Since employees are more often engaged in those work activities covered by the Grain LEPs during harvest season, such as entering bins, performing preventive maintenance, loading railcars, etc., the frequency of inspections at grain handling facilities will be particularly high for the rest of this year.

On Sept. 4, in conjunction with the Grain Journal MagazineEric J. Conn, Head of the national OSHA Practice Group at Epstein Becker & Green, delivered a webinar briefing entitled “New OSHA Sweep Auger Enforcement Policies… How They Will Affect You.”  The 120-minute webinar, including 45+ minutes of Q&A, was recorded, and the Grain Journal has made the recording available online.  Here is a link to the OSHA / Sweep Auger webinar recording.

The Sweep Auger webinar followed an article recently published in the July/August edition of Grain & Feed Milling Technology Magazine entitled “Sweeping Changes to OSHA’s Sweep Auger Enforcement,” which detailed the roller coaster ride that has been OSHA’s enforcement policy in connection with work inside grain bins with energized sweep augers, and explaining OSHA’s current enforcement policy that provides clarity as to the conditions that OSHA considers to be acceptable for that work.

The September 4th webinar expanded on that article, and provided a review of OSHA’s current enforcement policies around work inside grain bins with energized sweep augers, and how we got there.  The webinar covered:

  • A general review of OSHA enforcement in the grain industry.
  • The issues in the grain industry on which OSHA is focused.
  • Data and trends from OSHA’s grain special emphasis program inspections.
  • A detailed review of OSHA’s enforcement policies related to work with sweep augers.

The Sweep Auger webinar was the first in a series of OSHA-related webinars for the grain industry that Mr. Conn will present in 2013 and 2014 in conjunction with Grain Journal.

Back in January, we posted a breaking news story here on the OSHA Law Update blog about a major settlement of an OSHA enforcement action renewing the grain industry’s right to have employees work inside grain bins with energized sweep augers under certain specified conditions — aka, Ten Sweep Auger Safety Principles.

Since the settlement became a final order of the OSH Review Commission in January, federal OSHA’s national office in Washington, DC issued a May 3, 2013 Enforcement Memorandum to all of the Agency’s Regional Offices that memorialized the terms of the settlement and turned them into a national enforcement policy.  Specifically, the Enforcement Memo clarified what engineering and work practice controls to eliminate or mitigate the danger to employees from the moving parts of a sweep auger that are acceptable to OSHA to allow employees to work inside the bin with the auger while it is operating.

Grain and Feed Milling Technology ran a featured article in the July/August 2013 edition of its online journal, authored by Eric J. Conn, the Head of Epstein Becker & Green’s national OSHA Practice Group, detailing the roller coaster ride that has been OSHA’s enforcement policy in connection with work inside grain bins with energized sweep augers, and explaining the current enforcement policy, which does provide real clarity as to the conditions that OSHA considers to be acceptable for that work.

Here is a link to the full article in Grain and Feed Milling Technology Magazine.

Last week, Washington Legal Foundation published a Legal Backgrounder regarding OSHA’s Severe Violator Enforcement Program (“SVEP”) authored by Eric J. Conn, Head of Epstein Becker & Green’s national OSHA Practice Group.  The Legal Backgrounder expands on a series of posts here on the OSHA Law Update blog regarding OSHA’s controversial Severe Violator Enforcement Program.

The article focuses on a White Paper issued by OSHA this Spring, in which OSHA analyzes the first 18 months of its new, controversial enforcement program.  The White Paper concludes that the SVEP is “off to a strong start” and is “already meeting certain key goals,” including:

  1. Identifying recalcitrant employers whose violations of the OSH Act “demonstrate indifference to the health and safety of their employees.”
  2. Effectively guiding OSHA’s enforcement resources toward those employers by “targeting high-emphasis hazards, facilitating inspections across multiple worksites, and by providing Regional and State Plan offices with a nationwide referral procedure.”
  3. Demonstrating its effectiveness by creating a “significant increase in follow-up inspections and enhanced settlements.”

Despite OSHA’s claims, careful scrutiny of the data available regarding the SVEP casts doubt on the Program’s effectiveness and reveals several glaring problems with how the SVEP is being administered.  Most notably, the Severe Violator Enforcement Program:

  1. Disproportionately targets small employers with enforcement rather than compliance assistance;
  2. Provokes more than four times as many legal challenges to the underlying citations as compared to the average OSHA enforcement action;
  3. Encounters significant obstacles in the execution of follow-up inspections of SVEP-qualified employers; and
  4. Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted (i.e., the Program is not capturing recalcitrant employers)

Check out the full Legal Backgrounder regarding OSHA’s SVEP here.

By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green

Introduction

OSHA recently issued a White Paper analyzing the first 18 months of its controversial enforcement initiative known as the Severe Violator Enforcement Program (“SVEP”).  Despite mounting evidence to the contrary, the White Paper somehow concludes that the SVEP is “off to a strong start,” and that it “is already meeting certain key goals,” including:

  1. Successfully identifying recalcitrant employers who disregard their OSH Act obligations; and
  2. Effectively allocating OSHA’s follow-up enforcement resources “by targeting high-emphasis hazards, facilitating inspections across multiple worksites of employers found to be recalcitrant, and by providing Regional and State Plan offices with a nationwide referral procedure.”

A candid review of the publicly available SVEP data, however, exposes SVEP’s underbelly, and casts doubt on the Program’s effectiveness.  Most notably, SVEP:

  1. Disproportionately targets small employers;
  2. Provokes 8x as many challenges to the underlying citations as compared to the average OSHA enforcement action;
  3. Encounters significant obstacles in executing follow-up inspections of SVEP-designated employers; and
  4. Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted.

 

SVEP Background

We have written quite a bit about the SVEP previously on the OSHA Law Update Blog, but here is some background about what it is, who is being targeted, and what the consequences are.  On June 18, 2010, OSHA instituted SVEP to focus its enforcement resources on recalcitrant employers, whom OSHA believes demonstrate indifference to their employees’ health and safety.  SVEP replaced the much-maligned Enhanced Enforcement Program (“EEP”), a George W. Bush era enforcement program also intended to target wayward employers.  The EEP was criticized as ineffective and inefficient because its broad qualifying criteria created so many cases that OSHA struggled to conduct follow-up inspections.  OSHA, therefore, scrapped the EEP and instituted SVEP with narrower qualifying criteria and a better infrastructure for pursuing follow-up inspections.

Employers qualify for SVEP if they meet one of the following criteria:

  1. Any alleged violation categorized by OSHA as “Egregious”;
  2. 1+ Willful, Repeat or Failure-to-Abate alleged violations associated with a fatality or the overnight hospitalization of three or more employees;
  3. 2+ Willful, Repeat or Failure-to-Abate alleged violations in connection with a high emphasis hazard (e.g., falls, amputations, grain handling, and other hazards that are the subject of an OSHA National Emphasis Program); or
  4. 3+ Willful, Repeat or Failure-to-Abate alleged violations related to Process Safety Management (i.e., avoiding the release of a highly hazardous chemical). Continue Reading OSHA Claims Its Severe Violator Enforcement Program is “Off to a Strong Start”

The January/February 2013 issue of Feed & Grain Magazine featured an article entitled “Severe Violator Enforcement Program Defies Constitution” authored by Eric J. Conn, the Head of EBG’s national OSHA Practice Group.  The article expands on a series of posts here on the OSHA Law Update blog regarding OSHA’s controversial Severe Violator Enforcement Program (“SVEP”).

The article provides a detailed explanation about the SVEP, including:

  1. The origin and intent of OSHA’s Severe Violator Enforcement Program;
  2. the consequences to employers who “qualify” for the SVEP;
  3. How and what types of employers have been qualifying for the Program;
  4. The questionable legality of the way OSHA implements the Program; and
  5. The unfair “exit criteria” from the SVEP.

Here is an excerpt from the article:

“Despite the SVEP’s substantial punitive elements, OSHA deposits employers into the program before the underlying allegations become a Final Order; i.e., before the employers have had an opportunity to prove wrong the qualifying allegations to the OSH Review Commission. Before the employer has a chance to do that, OSHA can, under the SVEP Directive, begin follow-up inspections and inspections at related facilities, add the employer to a public and embarrassing list of severe violators, and condemn the employer in the public arena through harsh enforcement news releases at the time of the issuance of the citations. ‘Guilty before proven innocent’ at its core.

This article explores the Constitutional Due Process implications raised by OSHA’s implementation of the SVEP, and especially the enforcement news releases that accompany employers’ placement into the Program. It will also explain the ways that OSHA’s execution of the SVEP violates the Administrative Procedure Act (APA), which governs agencies’ rulemaking authority. Finally, it discusses the other elements of the SVEP that strike at fundamental fairness and sound policy, such as the nearly impossible ‘exit ramp’ OSHA created for employers to get out of the Program.”

Here is a link to the full article in a standard web version, and a link to the Digital Edition of the January/February 2013 issue of Feed & Grain Magazine, so you can view the article as it appeared in the hard copy magazine.