By Brent I. Clark and Craig B. Simonsen

shutterstock_206483089Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, through a very short Memorandum (Memo), announced that OSHA has just added employers in the Oil and Gas Production Services and Drilling and Well Servicing industries to its High-Emphasis Hazards in the Severe Violator Enforcement Program.

We have written previously about steady growth in its OSHA’s SVEP program. Also, as we have noted, SVEP policy for the removal of employers once they are placed on the SVEP list makes removal from the list quite difficult.

The OSHA Administrator David Michaels, following the release of the Memo, noted at an OSHA Employees All-Hands Meeting that “upstream oil and gas production has one of the highest fatal injury rates of any industry. We’ve been working closely with employers in virtually every part of the country where drilling is underway, and most recently signed an alliance with the National Service, Transmission, Exploration & Production Safety Network and NIOSH to prevent injuries, illnesses and fatalities in that industry.”

Galassi noted in the Memo that over the last twenty years upstream operations have experienced a fatality rate that has ranged from “five to eight times greater than the national average for all U.S. industries.” Responding to that fatality rate, OSHA believed that application of its SVEP policy to upstream oil and gas drilling and well-servicing operations was warranted. Under the Memo, now when OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations or notices), based on “high gravity serious violations,” related to upstream oil and gas activities, the employer will be considered a severe violator enforcement case.

Any employer that is designated as a “severe violator” by OSHA faces enhanced enforcement, inspections, and more limited settlement options. Employers should remember that there is no up-front due process to OSHA’s designation as it is solely based on OSHA’s decision to issue citations — not on whether those citations are ultimately upheld or valid. OSHA remains committed to this “guilty until proven innocent” scheme.

This policy is effective for any citations in the upstream oil and gas industry that are issued on or after February 11, 2015.