Environmental & Safety Law Update

Impact of California Appellate Decision on Proposition 65 Actions Unclear

Posted in California, Chemical Safety, Environmental Compliance

By Jay W. Connolly, Aaron Belzer, and Jared L. Palmer

On April 28, 2015, the Environmental Law Foundation (“ELF”) filed a petition in the California Supreme Court for review of the Court of Appeal’s recent decision in Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al., No. A139821, 2015 WL 1212155 (Cal. Ct. App. Mar. 17, 2015) (“ELF v. Beech-Nut, et al.”).

The Court of Appeal’s decision is widely viewed as providing a measure of relief for companies defending against the flood of bounty hunter enforcement actions brought under California’s Proposition 65 (“Prop. 65”).  Moreover, it is unclear whether the Supreme Court will find review warranted given the straightforward analysis of the trial court and Court of Appeal.

Prop. 65 (officially the Safe Drinking Water and Toxic Enforcement Act of 1986) requires businesses to warn California consumers of potential exposure to carcinogens or reproductive toxins in a company’s products.  By law, a company must provide such warnings unless it can demonstrate that exposure to a Prop. 65 chemical in its product poses “no significant risk” of cancer if daily exposure to it over 70 years would result in no more than one excess case of cancer per 100,000 individuals exposed, and/or that exposure to a reproductive toxin causes “no observable effect” to humans or laboratory animals at 1,000 times the level present.  To guide businesses in determining whether a warning is necessary, the Office of Environmental Health Hazard Assessment (“OEHHA”) has developed “safe harbor” levels for certain chemicals.  A business is not required to warn if exposures to those chemicals are at or below these “safe harbor” levels.

In its decision, the Court of Appeal affirmed the trial court’s ruling that the level of exposure to a Prop. 65 chemical could properly be calculated by averaging exposures over time and over multiple products, rather than by using a maximum exposure from a single product on a single day.  The ruling thus clarified the applicable standard for determining whether potential exposures require Prop. 65 warnings, and increased the burden on plaintiffs to claim credibly that potential exposures require warnings.

While the Court of Appeal’s decision in ELF v. Beech-Nut, et al. is significant, it now must survive ELF’s Petition and potential review by the Supreme Court.  Moreover, the decision faces other threats that may reduce its impact even if the Petition is denied or the case is affirmed by the Supreme Court.

The ELF v. Beech-Nut, et al. Decision

In 2011, ELF sued the manufacturers and retailers of various foods intended for babies and toddlers to enforce Prop. 65.  It alleged that defendants failed to warn California consumers of harmful levels of lead in certain of defendants’ products.  After a bench trial, the trial court found in defendants’ favor, concluding that they had no duty to warn because they sufficiently demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead fell within the regulatory “safe harbor” levels.  ELF appealed the judgment, arguing that the trial court erred in interpreting Prop. 65 so as to allow defendants to average lead test results over multiple lots, and to average the level of exposure over multiple days.  The California Attorney General filed an amicus curiae brief in support of ELF’s position.

The Court of Appeal affirmed the trial court’s ruling.  Specifically, the Court of Appeal found that nothing in the Prop. 65 regulations prohibited defendants from calculating exposure by averaging lead test results over multiple lots, instead of evaluating each lot individually, nor prohibited defendants from averaging the single-day lead exposure from their products over a number of days before comparing the exposure to the “safe harbor” levels.  It found that sufficient evidence existed to support defendants’ methodology of averaging test results across lots for a single product—noting that ELF’s expert relied on the same sample results as defendants’ expert—and that substantial evidence also supported defendants’ averaging of exposures based on the amount of lead to which a consumer was exposed over a 14-day period, despite the fact that lead is capable of acute toxicity.  In reaching its decision, the Court of Appeal rejected ELF’s contention that Prop. 65 prohibits defendants from calculating an average exposure over an extended period of time and then comparing it to the OEHHA “safe harbor” levels, but rather requires defendants to accept a single day exposure period (i.e., that a defendant cannot convert a single-day maximum exposure over the “safe harbor” level into an average exposure over an extended period of time).

Threats to the Decision

The ELF v. Beech-Nut, et al. decision may shield Prop. 65 defendants from claims based solely on a single test of a single sample by allowing defendants to calculate exposure based on average exposure over time (and based on test results averaged over multiple lots).  The decision, however, must survive several challenges before defendants may feel its impact.  Not only must it survive ELF’s Petition and potential review by the Supreme Court, but also proposed changes to Prop. 65 itself, as well as legal challenges to the relevant “safe harbor” levels.

On January 16, 2015, OEHHA formally proposed extensive modifications to the Prop. 65 warning regulations.  Because the proposed changes have yet to be adopted or implemented, it is yet to be seen whether OEHAA may attempt to expand the scope of the proposed modifications to address the ELF v. Beech-Nut, et al. decision.

Similarly, the impact of the ELF v. Beech-Nut, et al. decision may be limited with respect to alleged lead exposures by a recent challenge to the existing “safe harbor” levels for lead.  In Mateel Environmental Justice Foundation v. California Office of Environmental Health Hazard Assessment, No. RG15754547 (Alameda Sup. Ct. Cal. Jan. 13, 2015), plaintiff seeks a writ of mandate to compel OEHHA to invalidate the safe harbor for lead, arguing that there is no safe harbor for lead.  If plaintiff is successful, defendants in lead cases will no longer be able to rely on the ELF v. Beech-Nut, et al. decision to support their defense.


The Court of Appeal’s decision in ELF v. Beech-Nut, et al. provides defendants in Prop. 65 enforcement actions with a clear standard for determining whether potential exposures require warnings.  Nonetheless, in light of the various challenges it faces, its impact on Prop. 65 enforcement suits remains unclear.

OSHA Final Rule for Confined Spaces in the Construction Industry

Posted in OSHA Compliance

By Mark A. Lies, II, James L. Curtis, and Craig B. Simonsen

Three engineersLast week the Occupational Safety and Health Administration announced and issued a 161 page final rule to increase protections for construction workers in confined spaces. 80 Fed. Reg. 25366 (May 4, 2015), which is effective on August 3, 2015.

Confined spaces can be loosely defined as manholes, crawl spaces, tanks, and other places that are not intended for continuous occupancy. Confined spaces are also, because of their calculated design for other purposes, difficult to exit in an emergency. People working in confined spaces, without taking proper precautions, can face life-threatening hazards such as toxic substances, electrocutions, explosions, and asphyxiation.

The Secretary of Labor Thomas E. Perez said of the rule that “in the construction industry, entering confined spaces is often necessary, but fatalities like these don’t have to happen.” “This new rule will significantly improve the safety of construction workers who enter confined spaces. In fact, we estimate that it will prevent about 780 serious injuries every year.” OSHA Administrator, Dr. David Michaels, said “this rule emphasizes training, continuous worksite evaluation and communication requirements to further protect workers’ safety and health.”

The OSHA final rule adds a new subpart to 29 CFR Part 1926 to provide protections to employees working in confined spaces in construction. The new subpart replaces OSHA’s one training requirement for confined space work with a “comprehensive standard that includes a permit program designed to protect employees from exposure to many hazards associated with work in confined spaces, including atmospheric and physical hazards.” According to the Agency, the final rule is similar in content and organization to the general industry confined spaces standard, but it also incorporates several provisions from the proposed rule to address construction-specific hazards, to account for advancements in technology, and to improve the “enforceability of the requirements.”

Members of the regulated community, that is property owners, construction contractors, and sub-contractors, need to timely review this expansive rule, in order to meet the compliance date of August 3, 2015 and avoid OSHA citations. There are now new obligations on the various employers who may have their employees involved with construction site confined spaces.

One important requirement added to the rules relates to the responsibilities of the host employer (the owner of the site containing the confined space), the controlling contractor (who has primary control over the construction project), and the entry employer (whose employees will enter the confined space). The regulation makes the controlling contractor, rather than the host employer, the primary point of contact for information about the permit confined spaces at the worksite. The host employer must provide information it has to the controlling contractor who in turn passes the information to the entry employer.

In addition, the controlling contractor is responsible for making sure that employers outside of the confined space do not create hazards in the confined space, and that multiple entry employers working in a confined space at the same time do not create hazards for each other’s employees.

With such a complex and immense rule, employers are encouraged now to review their construction confined space policies, procedures, and training programs to ensure compliance with the new standard.

OSHRC Rules Process Safety Violations NOT Barred By OSHA’s Six Month Statute of Limitations

Posted in Chemical Safety, OSHA Compliance, OSHA Enforcement

By Mark A. Lies, II, James L. Curtis, and Craig B. Simonsen

iStock_000009254156LargeIn a decision last week, the Occupational Safety and Health Review Commission (OSHRC) found that the six month statute of limitations for OSHA to cite an employer does not apply to Process Safety Management (PSM) violations that present a continuing hazard. Secretary of Labor v. Delek Refining, Ltd., OSHRC Docket No. 08-1386 (April 23, 2015).

In Delek, the Secretary alleged that the employer violated 29 CFR § 1910.119(o)(4), by failing to properly close out recommendations from a PHA conducted years before by a prior owner. The employer claimed that citation was time-barred by OSHA’s six month statute of limitations. The Review Commission disagreed, holding that the statute of limitations did not apply because the violations presented a “continuing hazard”.

In Delek, the employer argued that the citations were barred by the statute of limitations based on the D.C. Circuit’s decision in AKM, LLC v. OSHRC, 675 F.3d 752 (D.C. Cir. 2012). In AKM, the D.C. Circuit found that OSHA could not issue a citation for a recordkeeping violation that was older than six months. The basis for the Court’s ruling was that employers are required by the Act to record workplace injuries within seven days of the date the injury occurred. Accordingly, the failure to record becomes a violation after the seventh day and that starts the statute of limitations to run.

The OSHRC disagreed that AKM, LLC applied to the facts before it. Delek involved PSM citations for failure to close out recommendations resulting from a prior PHA that had been conducted years before by a prior owner. Unlike the recordkeeping violation in AKM, the Commission found that the alleged violations were not one time failures to perform a specific task, but presented an ongoing hazard to the employees because the employer failed to act on the recommendation in the PHA with corrective action. According to the Commission, the failure to act on the recommendations means that the dangers identified in the PHA still persisted. Thus, each day that passed without the recommendations being addressed was a continuing violation that could be cited by OSHA, even years after the initial recommendation appeared in the PHA.

There was a vigorous dissenting opinion by Commissioner MacDougall. According to Commissioner MacDougall, the reasoning behind the application of the six month statute of limitations that was applied in AKM applies equally to the PSM citation in Delek. MacDougall argued that the “continuing violation” theory cannot be applied to contravene the plain language of the operative statute of limitations in the Act and unreasonably extend the six month time period. According to Commissioner MacDougall, this would have the absurd consequence of extending the statute of limitations ad infinitum.

Absurd or not, Delek significantly limits the holding in AKM, LLC. As lessons to be learned, employers should review safety audits and ensure that any recommendations have been closed out. This is especially true of PSM facility operators who should review their prior PHA’s and ensure that all of the recommendations have been properly closed out, no matter how old the recommendation may be.

In addition, in a situation where there has been or will be an acquisition of a PSM facility, the employer who is acquiring the facility will want to consider a more comprehensive due diligence inquiry prior to the acquisition to ensure that the PSM program is compliant — since the acquiring employer will be assuming liability for PSM violations that preexisted the acquisition. Employers are encouraged to watch for further developments in this matter.

Senator Al Franken Introduces Protecting America’s Workers Act

Posted in OSHA Compliance

By James L. Curtis and Craig B. Simonsen

iStock_000060649768MediumOn International Workers’ Memorial Day, U.S. Senator Al Franken, the top Democratic Senator on the Employment and Workplace Safety Subcommittee, introduced legislation to amend the Occupational Safety and Health Act.

The legislation would expand OSHA’s coverage to include public employees. The bill would also significantly increase penalties for OSHA citations, raising the maximum penalty for willful to $120,000 per citation from the $70,000 maximum currently in place.

The bill as proposed will also cover millions of additional workers, including flight attendants, state correctional officers, and workers in government agencies. The bill will provide felony charges for an employer’s repeated and willful violations of OSHA that result in a worker’s death or serious injury. The bill will also set a minimum penalty of $50,000 for a worker’s death caused by a willful violation. The bill would mandate that the DOL investigate all cases of death or serious incidents of injury in the workplace. The bill proposed to amend the General Duty Clause to include “all workers on the work site.”

We will continue to watch this legislative effort closely. However the bill faces stiff resistance from Republicans.

EPA’s Draft Environmental Justice 2020 Action Agenda

Posted in Environmental Compliance

By Meagan Newman and Craig B. Simonsen

iStock_000006465423MediumThe U.S. Environmental Protection Agency is seeking “input” on its Draft Environmental Justice (EJ) 2020 Action Agenda framework (EJ 2020).

EPA expects that the EJ 2020 will advance environmental justice through EPA programs, policies, and activities, and it is intended to support cross-agency strategy for environmental justice in environmentally overburdened, underserved, and economically distressed communities.

Under the draft EJ 2020 strategy, over next five years EPA will focus on:

  • Deepening environmental justice progress in EPA programs to improve the health and environment of overburdened communities.
  • Collaborating with partners to expand EPA impact in overburdened communities.
  • Demonstrating progress on outcomes that matter to overburdened communities.

In a recent blog by Mustafa Santiago Ali, the Acting Senior Advisor on Environmental Justice to EPA Administrator Gina McCarthy, stated that the last five-year strategic plan (EJ 2014) laid a “foundation for integrating environmental justice in EPA’s programs by developing basic guidance in rulemaking, permitting and enforcement…. Now it is time to build on this foundation and expand collaborations with our partners toward making a bigger difference in the overburdened communities we serve.”

EPA is hosting two national webinars on the draft EJ 2020, on May 7 and May 14, 2015. Interested parties should RSVP to attend  the EJ 2020 webinars.

While the EPA is seeking “input,” it also states directly that “EJ 2020 is a strategy for advancing environmental justice … It is not a rule.” Emphasis in the original. So while EPA may be accepting comments on the “strategy,” the EPA is not handling this as a rulemaking, so don’t expect responses to comments that are submitted.

For employers and businesses, especially those in impacted communities, the EJ 2020 strategy may impact business projects, such as process changes, new permits, or permit modifications.

Written comments are due by June 15, 2015, and should be sent to ejstrategy@epa.gov.

Hazard Alert on Worker Exposure to Silica in Countertop Manufacturing Industry

Posted in Chemical Safety, Hazardous Materials, OSHA Compliance

By Brent I. Clark and Craig B. Simonsen

iStock_000062437178MediumOSHA and its sister agency the National Institute for Occupational Safety and Health (NIOSH) have just released a “Hazard Alert” on Worker Exposure to Silica During Countertop Manufacturing, Finishing and Installation.

We had previously blogged about NIOSH’s “Hazard Alert” for Worker Exposure to Silica During Hydraulic Fracturing. In addition, solidifying OSHA’s interest in regulating the silica across all industries, we had blogged about OSHA’s proposed Silica Worker Exposure Hazards Rule. 78 Fed. Reg. 56274 (September 12, 2013).

The Countertop Manufacturing Hazard Alert indicates that the Agency’s “have identified exposure to silica as a health hazard to workers involved in manufacturing, finishing and installing natural and manufactured stone countertop products, both in fabrication shops and during in-home finishing/installation. This hazard can be mitigated with simple and effective dust controls in most countertop operations.” In its research NIOSH found that, in the study groups, more than seventy percent of countertop shops in three metropolitan areas reported using “predominantly dry methods in at least one step of their work.”

Employers in these effected industries may wish to study the Hazard Alert carefully to determine any likely impacts on their businesses. Employers should take steps to ensure that they are in compliance with OSHA and local laws and regulations. Proactive steps in the face of this regulatory scrutiny now may allow the company to avoid costly enforcement and litigation in the future.

Beware Strangers Bearing Gifts! DOL Promotes “Free” National Safety Council “Cell Phone Policy Kit”

Posted in OSHA Compliance

By Erin Dougherty Foley and Craig B. Simonsen

shutterstock_39448051In a DOL blog posted last week we learn that driving-related crashes are the number one workplace killer.

Remember … we’ve warned against driving and phone usage before. “Employees Using Cellphones And Other Portable Devices While Driving: Should Employers Ban This Completely?”, and “Employees Driving In Illinois? What Employers Need to Know”.

The DOL blog, prepared by Deborah Hersman, the CEO and President of the National Safety Council, estimates that cell phones are involved in approximately 26 percent of all driving crashes. While reminding everyone that April is “Distracted Driving Awareness Month,” the NSC stressed that “more than 30 studies show hands-free devices are no safer because the brain remains distracted by the conversation. When talking on a cell phone, drivers can miss seeing up to half of what’s around them, such as traffic lights, stop signs and pedestrians.” (Put the phones down, people‼)

In light of the statistics and the real-life dangers, and as we have previously noted, a number of Fortune 500 companies have already voluntarily adopted complete cellphone-bans for their employees while driving. While employers may be concerned that these bans may impact productivity, the Vice President for Safety at Owens Corning has previously stated that “our position is, quite simply, that we don’t make safety decisions based on productivity.”

To the extent that your organization involves employees that are required to drive vehicles in their job duties, a cellphone company-wide policy may both help to limit corporate liability for accidents that occur, and save the lives of your employees and others on the road.

If you have any questions about this new “free cell phone policy kit” or policies related to banning distracted driving, please contact the authors, a member of Seyfarth’s Workplace Policies and Handbooks Team, or your Seyfarth attorney.

OSHA Rulemaking on Communication Tower Worker Safety

Posted in OSHA Compliance

By James L. Curtis, Kerry M. Mohan, and Craig B. Simonsen



Last October OSHA Administrator David Michaels had, stated that “we at OSHA are very concerned about the rising number of tower worker deaths. The fatality rate in this industry is extraordinarily high – tower workers are killed on the job at a rate more than ten times higher than construction workers.” Emphasis added.

Michaels had previously written a letter to the communication tower industry about the rise in falls from communication towers, stating that “every single one of these tragedies was preventable.” In response to the increasing number of falling fatalities, OSHA had implemented a national outreach campaign using traditional, digital and social media, including a tower safety webpage. OSHA framed the campaign with the slogan, “No More Falling Workers.” OSHA also prepared a Request for Information to engage all stakeholders “in a collaborative effort to prevent more of these senseless tragedies,” which published last week. 80 Fed. Reg. 20185 (April 15, 2015).

In OSHA’s announcement of the RFI, Michaels notes that “in 2014, 12 workers were killed which was double the number of deaths in 2011 and six times the total number in 2012.” In response to the fatality rate, he states that “we understand the importance of this [communication tower] industry, but workers’ lives should not be sacrificed for a better cell phone signal.”

Given this trend employers in the communications tower industry need to be especially cognizant of OSHA’s rampant attention to their business and projects. Special care should be taken to make sure that all of your company safety policies, procedures, and training systems are up-to-date and current. While accidents may happen no matter how well we work to avoid them, having up-to-date written safety programs, and properly training and overseeing your employees, including your contractors and subcontractors, will go a long way in minimizing potential liabilities if and when an accident occurs.

Comments on the RFI, submitted to Docket No. OSHA–2014–0018, are due by June 15, 2015.

President Obama Takes Steps to Implement Climate Change Rules

Posted in Carbon Sequestration, Climate Change, Environmental Compliance, Green Marketing, Greenhouse Gas

By Andrew H. Perellis and Craig B. Simonsen

shutterstock_71039011President Obama this week has announced various steps and actions in order to build on his “Climate Action Plan” intended to reduce the “dangerous levels” of carbon pollution that are allegedly contributing to climate change. His intention is to prepare communities for the impacts “that cannot be avoided,” and to lead internationally on climate change.

Citing the Health Impacts of Climate Change on Americans report from June 2014, the White House announced that “in the past three decades, the percentage of Americans with asthma has more than doubled, and climate change is putting these individuals and many other vulnerable populations at greater risk of landing in the hospital.” In addition, this week a draft report, The Impacts of Climate Change on Human Health in the United States: A Scientific Assessment, was released. The draft was developed by the Interagency Group on Climate Change and Human Health as part of the National Climate Assessment under the President’s Climate Action Plan.

Based in-part on these reports and assessments, the President has worked to bring about significant new rules that will impact a wide range of commercial and industrial interests — not to mention the resulting additional costs that will seemingly flow on to consumers. Specific regulatory areas that are targeted under this scheme, as iterated in the White House Fact Sheet, include:

  • Clean Power Plan:The U.S. Environmental Protection Agency intends to finalize its rules to reduce carbon pollution from existing power plants by this summer.  The proposed standards, issued in June 2014, would reduce carbon pollution from existing power plants 30% below 2005 levels by 2030, while promising to deliver $55-93 billion in annual net benefits from reducing carbon pollution and other harmful pollutants, and “preventing 150,000 asthma attacks and up to 6,600 premature deaths and 180,000 missed school days.”
  • Standards for Heavy-Duty Engines and Vehicles:In February 2014, President Obama directed EPA and the U.S. Department of Transportation to issue the next phase of fuel efficiency and greenhouse gas standards for medium- and heavy-duty vehicles by March 2016.
  • Energy Efficiency Standards:The Department of Energy has set a goal of reducing carbon pollution by 3 billion metric tons cumulatively by 2030 through energy conservation standards issued during the Obama Administration. The DOE has already finalized energy conservation standards for twenty-nine categories of appliances and equipment, and has developed a “building code determination for commercial buildings.” The Administration estimates that these measures will cut consumers’ annual electricity bills by billions of dollars.
  • Economy-Wide Measures to Reduce other Greenhouse Gases:“EPA and other agencies are taking actions to cut methane emissions from oil and gas systems, landfills, coal mining, and agriculture, through cost-effective voluntary actions and common-sense standards.  At the same time, the State Department is working to slash global emissions of potent industrial greenhouse gases, called HFCs, through an amendment to the Montreal Protocol; EPA is cutting domestic HFC emissions through its Significant New Alternatives Policy (SNAP) program; and, the private sector has stepped up with commitments to cut global HFC emissions equivalent to 700 million metric tons through 2025.”

The Fact Sheet, as noted above, promises great saving for consumers. This though, seems disingenuous, once these regulatory programs are put into place.

Public comments on the draft assessment report are due by June 8, 2015.

OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers

Posted in OSHA Compliance, Workplace Violence

By Brent I. Clark, James L. Curtis, Mark A. Lies, Meagan Newman, and Craig B. Simonsen

shutterstock_65596348In its announcement last week, OSHA noted that the Bureau of Labor Statistics reported for 2013 that over 23,000 significant injuries were due to violent assault at work, with more than seventy percent (70%) of these assaults being in the healthcare and social service settings.

OSHA concluded that healthcare and social service workers are almost “four times as likely to be injured as a result of violence than the average private sector worker.” To bring a reduction to this risk, OSHA has just released an update to its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. The Guidelines include what OSHA believes to be “industry best practices,” and provides direction on ways to reduce the risk of violence in various healthcare and social service settings.

These revised Guidelines, that update and broaden the reach of OSHA’s previous 1996 and 2004 Guidelines, incorporate “research in the last decade into the causes of workplace violence on healthcare and social service settings, risk factors that accompany working with patients or clients who display violent behavior, and the appropriate preventive measures that can be taken, amid the variety of settings in which health care and social service employees work.”

Importantly for employers in these industries is that the Guidelines also stress the importance of developing a written workplace violence prevention program. The Guidelines state that a workplace program should include management commitment and employee participation, worksite analysis, hazard prevention and control, safety and health training, and recordkeeping and program evaluation. OSHA provides a checklist for employers to use when developing their written programs.

Employers in healthcare and social service settings should view OSHA’s recent update as an opportunity to review their own workplace violence programs and to update those programs as appropriate. At a minimum, employers should ensure that they have a written program in place that hits all of the areas highlighted by OSHA. That step will help ensure a safe workplace and greatly reduce the likelihood of receiving a citation should OSHA conduct an onsite inspection.