Environmental & Safety Law Update

Traceability: What Does it Mean for Your Business?

Posted in Green Marketing, Sustainability

By Meagan Newman

woman hold scanner and scans barcode with laserTraceability, according to the June 2014 guide published by the U.N. Global Compact and sustainability advisory firm BSR, means: “The ability to identify and trace the history, distribution, location and application of products, parts and materials, to ensure the reliability of sustainability claims, in the areas of human rights, labor (including health and safety), the environment, and anti-corruption.”

Traceability is undoubtedly important for sustainability purposes.  As we move past the nascent stage of corporate sustainability programs—wherein much of the focus was on the low-hanging fruit of localized environmental initiatives—attention is turning outward and toward supply chains.  As such, traceability has become an important tool for assuring and verifying sustainable supply chains.  Effective traceability tools or “schemes” can ensure that minerals are not sourced from conflict regions, that products are grown in sustainable cultivations, and that human rights are protected.

According to the U.N., by focusing on traceability, businesses achieve sustainability goals and substantiate the claims they make regarding their products.  But there are other benefits as well–risk reduction, improving operational efficiencies, meeting stakeholder demand for more product information, securing supply, and meeting legal requirements.

Currently there are traceability regulations in force for US businesses under Section 1502 of Dodd-Frank and the Lacey Act, and companies are facing an increasing number of lawsuits related to sustainability claims.  The Organisation for Economic Co-operation and Development (OECD) also has guidance regarding due diligence for responsible supply chains, and in the EU there are food traceability requirements and timber regulations.

Whether a company is operating solely in the US or has an international presence, its supply chain more than likely extends beyond the borders of the US.  When considering improvements to sustainability programs or simply contemplating a statement about the environmental or social benefits of its products or services, every company should be thinking about their supply chain—and thinking twice about whether they know what they should know.

Enforcement Guidance for the Hazard Communication Standard Compliance Date

Posted in OSHA Compliance

By Brent I. Clark, Ilana R. Morady, and Craig B. Simonsen

iStock_000004667648MediumWe had previously blogged that June 1, 2015 is the deadline for compliance with the all new hazardous communication (HazCom) standard (29 CFR section 1910.1200) (HCS 2012) requirements, with exceptions for chemical distributors, and for employers to update workplace labeling and hazard communication programs. 77 Fed. Reg. 17574 (March 26, 2012).

Industry and trade associations have filed petitions and submitted comments with OSHA related to the final rule to “resolve critical compliance concerns with the implementation of the revised Hazard Communication Standard”. In response, OSHA agreed to use its enforcement discretion to provide relief from the June 1, 2015 implementation date for product formulators.

To do so, OSHA has just issued an Enforcement Guidance on the June 1, 2015 effective date. The Enforcement Guidance applies only to HCS 2012 compliance inspections of chemical manufacturers, importers, and distributors in their classification of hazardous chemicals and development of safety data sheets (SDSs) and labels for chemical mixtures.

Under the Enforcement Guidance, in classifying mixtures, manufacturers and importers are permitted to rely on “information provided on each SDS of the individual ingredients or components from the upstream supplier, except where the chemical manufacturer or importer knows, or in the exercise of reasonable diligence should know, that the SDS misstates or omits required information.” For OSHA inspections occurring after the June 1, 2015 compliance date that involve a mixture that does not have an HCS 2012-compliant label or SDS, compliance officers shall follow the instructions provided in the Enforcement Guidance.

Specifically, where a manufacturer or importer has asserted that it was unable to comply with the June 1, 2015 compliance date, the compliance officer “must determine if the manufacturer or importer has exercised reasonable diligence and good faith to comply with the terms of the standard.” Compliance officers should not cite a manufacturer or importer for failing to meet the June 1, 2015 deadline to have updated labels or updated SDSs under HCS 2012, if:

The chemical manufacturer or importer exercised reasonable diligence and good faith in attempting to obtain HCS 2012-compliant SDSs and classification information from its upstream raw material supplier(s).

Importantly, the guidance only applies where the mixture’s material safety data sheet (MSDS) and label comply with the earlier HCS 1994 standard.

New Deadlines Under the Enforcement Guidance

Now, under the Enforcement Guidance, a manufacturer or importer must create HCS 2012-compliant SDSs within six months from the date it receives all of the hazard information for the ingredients in a mixture. The manufacturer or importer will then be required to provide the HCS 2012-compliant SDS downstream “with the next shipment of the mixture” and when requested by a distributor or employer. Where a chemical manufacturer or importer has not developed an HCS 2012-compliant SDS within six months of receiving the necessary hazard information, a citation for a violation may be issued.

In addition, a manufacturer or importer must create container labels to comply with HCS 2012 within six months from the date that they developed the HCS 2012-compliant SDSs. Containers shipped after the six months period must be labeled with an HCS 2012-compliant label. Where a manufacturer or importer has not developed an HCS 2012-compliant label within six months of the date it developed its HCS 2012-compliant SDS, a citation for violation may be issued.

As to distributors, the HCS 2012 permits distributors to continue to ship chemicals with HCS 1994 labels until December 1, 2015. However, under the Enforcement Guidance, where a manufacturer or importer cannot comply with the June 1, 2015 effective date, there may be distributors that are consequently unable to comply with the December 1, 2015 compliance date. In that situation, the Enforcement Guidance advises, a compliance officer will determine, on a case-by-case basis, “whether a distributor exercised reasonable diligence and good faith to comply with the December 1, 2015 effective date.”

The Enforcement Guidance spells out in some detail what the Agency means by “reasonable diligence” and “good faith efforts,” so the regulated community should seek diligently to conform its policies, procedures, and training systems to ensure compliance.

DOT Partially Extends Compliance Date for HazCom and Labeling of Lithium Cells and Batteries

Posted in Hazardous Materials, Transportation

By Ilana R. Morady and Craig B. Simonsen

shutterstock_30524071On August 6, 2014, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule modifying the requirements governing the transportation of lithium cells and batteries. 79 Fed. Reg. 46012.

The final rule revised hazard communication and packaging provisions for lithium batteries to harmonize the Hazardous Materials Regulations with applicable provisions of the United Nations Model Regulations, the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code. The August 6, 2014 final rule had set a mandatory compliance date of February 6, 2015 for shippers to incorporate the new requirements into standard operating procedures and to complete training of affected personnel.

However, several retail and industry-related associations submitted a joint request for an extension of six months to the current mandatory compliance date. The request contended that the six month period adopted in the final rule did not provide sufficient time to comply with the new requirements and has proven extremely challenging for the retail industry to implement — in particular for surface transportation. The requestors noted that “generally, the new regulations require that domestic ground shipments of products with lithium batteries adhere to shipping standards previously only required for international air and sea transportation.” It was also noted that tens of thousands of consumer products may be impacted by the rule.

In this PHMSA notice, the Agency has partially extended the compliance date to August 7, 2015. 80 Fed. Reg. 9218 (February 20, 2015). In an important compliance distinction, PHMSA is maintaining the February 6, 2015 effective date for offering, acceptance, and transportation by aircraft. This extension, therefore, does not apply to transportation by aircraft. Otherwise, in response to commenters’ requests PHMSA is extending the mandatory compliance date for the lithium cells and batteries final rule published on August 6, 2014, until August 7, 2015 for all modes other than transportation by aircraft, to allow additional time to implement the requirements of the rule.

CA Proposes New Workplace Violence Regulations for Health Care Employers, Home Health Providers and Emergency Responders

Posted in Workplace Violence

By Meagan Newman, Brent I. Clark, and Mark A. Lies, II

shutterstock_171692768A draft proposed regulation from the California Division of Occupational Safety and Health (Cal/OSHA) would require health-care employers, home health and hospice providers and emergency responders to develop workplace violence-prevention plans, train their employees and keep records related to workplace violence incidents.

The draft also calls on hospitals to report violent incidents that result in an injury, involve the use of a firearm or other dangerous weapon, or present an urgent or emergent threat to the welfare, health or safety within 24 hours and all incidents would need to be reported within 72 hours.  Based upon the proposal’s definition “reportable workplace violence incident” employers would be required to report incidents that do not result in an injury if there was a high likelihood of resulting in injury, psychological trauma, or stress, or involved the use of a firearm or other dangerous weapon.

The proposal would further require employers to take immediate corrective action where a hazard is imminent and take measures to protect employees from identified serious workplace violence hazards within seven days of the discovery of the hazard. Additionally, employers would be required to maintain a “Violent Incident Log.”

This proposal follows the enactment of SB 1299, requiring Cal/OSHA to have a workplace violence prevention regulation for healthcare workers promulgated by July 1, 2016. Yet, California is not alone. The proposed regulation comes as emphasis on workplace violence increases in both federal and state plan OSHA jurisdictions.  Even in the absence of a federal OSHA regulation, inspection and enforcement activity concerning alleged workplace violence hazards is on the rise.

Employers in California and elsewhere should take care to evaluate their workplaces for potential workplace violence hazards and institute–and enforce–policies concerning training and reporting.  The absence of a current regulation will not prevent administrative enforcement action in the event of a workplace violence incident or related civil liability.

EPA Enforcement Alert that Refrigeration Facilities are Under Scrutiny

Posted in CAA, Emergency Planning

By Meagan Newman and Craig B. Simonsen

112rEnforcementThe U.S. Environmental Protection Agency has just released an Enforcement Alert on accidental releases of chemicals, including anhydrous ammonia at refrigeration facilities, under the Clean Air Act’s (CAA) Chemical Accident Prevention Program.

This Enforcement Alert comes in seeming coordination with the EPA’s recent news release about several anhydrous ammonia Emergency Planning and Community Right-to-Know Act (EPCRA) settlements where the alleged violators have “agreed to follow federal requirements when it comes to reporting the storage, handling, and accidental release of hazardous chemicals.”

The Agency noted in the Enforcement Alert that “recent” chemical releases stemming from CAA 112(r) violations at nine different refrigeration facilities have resulted in “property damage, numerous injuries and hospitalizations and several deaths.” As a result, EPA has imposed over $8.4 million in civil penalties and companies will spend approximately $10 million on supplemental environmental projects, including “purchasing equipment and providing training for emergency responders as well as converting refrigeration equipment to safer technologies.”

To assist regulated facilities in compliance, the Enforcement Alert highlights these relevant aspects of the Chemical Accident Prevention Program:

  • The Risk Management Program (RMP) Regulations, 40 CFR Part 68;
  • The General Duty Clause;
  • Industry Standards; and
  • Enforcement Focus on Accident Prevention.

The Enforcement Alert provides discussion and analyses on each on these highlighted aspects. Also provided is a “Lessons Learned” section.

Regulated facilities would do well to review company policies, systems, procedures, and training programs to assess their levels of compliance with the law in this area. You may be sure that if an EPA inspector arrives at your facility, she may be doing so as well.

Impact of Driver Compensation on Commercial Motor Vehicle Safety

Posted in Transportation

By Ilana R. Morady and Craig B. Simonsen

The Federal Motor Carrier Safety Administration (FMCSA) has just issued a notice and request for comment on “The Impact of Driver Compensation on Commercial Motor Vehicle Safety.” 80 Fed. Reg. 6159 (February 4, 2015).

The FMCSA has been studying the relationship between commercial motor vehicle (CMV) driver compensation and safety. The most widely-used system for paying CMV drivers is “pay per mile” (i.e., drivers receive a set amount of money for each mile driven). It is suggested in the question that a safety consequence of the pay-per-mile system is that it may reward drivers for speeding and for driving excessive miles.

In 2012, FMCSA awarded an $800,000 contract for the study. In August 2014, FMCSA published a notice and request for comments (79 Fed. Reg. 51638) on this issue, seeking information, data, and comments on topics such as the average length of hauls, and the average driving experience of drivers working for companies included in the sample.

In response to the August 2014 request for comments the Agency received forty-seven unique public comments which have been reviewed and grouped by common themes. The FMCSA responses to the 2014 public comments are published in this new notice. The study report is due in September 2015.

Comments may be submitted on the notice to Docket No. FMCSA–2014–0325, by March 6, 2015.

EPA is Improving Public Access to (YOUR) Environmental Inspection and Compliance Data

Posted in Environmental Compliance, Investigations/Inspections

By Andrew H. Perellis and Craig B. Simonsen

Marion Herz, the Chief of Staff for EPA’s Office of Compliance, just blogged that EPA has launched a new compliance website to “make it easier to stay informed about our work and to share tools that can help companies and others follow the law.”

Herz notes that the Enforcement and Compliance History Online (ECHO) database “lets you analyze compliance and enforcement data through dashboards, maps and charts. It also gives you access to other EPA tools designed to identify pollution sources, including greenhouse gases, wastewater discharges and toxic chemicals.”

Another related recent EPA blog discusses the Agency’s recent updates to the ECHO database, which provides information about environmental inspections, violations, and enforcement actions for EPA-regulated facilities. “As one of our most important and popular resources, ECHO houses information about more than 800,000 facilities nationwide, and last year, it was visited more than 2 million times.” Emphasis added.

Significant updates to ECHO include the ability for anyone with access to the Internet to download data to analyze violations at any of the 800,000 ECHO facilities, which data is now updated within the week.

With this now ever expanding and broadening release and publication of individual facility environmental inspection and compliance data, it is important that responsible company representatives are accessing and monitoring what the Agency is posting on your facilities. The data, hopefully, will not be a surprise (though in some cases it may likely be), but errors in data transmission and uploading are inevitable, and corrections should possibly be submitted and documented in company files. Consider whether it is important that your company data be reflected accurately online by the Agency, and take steps to monitor and correct erroneous data if is the case.

Winter Storms: Helping Employers Anticipate Wage & Hour and Workplace Safety Concerns

Posted in OSHA Compliance

By Alexander J. Passantino, Richard L. Alfred, Loren Gesinsky, Meagan Noel Newman, and James L. Curtis

In anticipation of a long, stormy winer, Seyfarth Shaw has prepared a Client Alert to help employers navigate wage & hour issues arising from potential closures, as well as workplace safety issues related to severe winter weather.

In the wake of winter storms thousands of businesses, schools and government offices face the challenge of cleaning up significant ice and snowfall and trying to return to operation. For many of these employers, the unusual days ahead may require special attention to workplace safety issues. Storm cleanup poses significant hazards that must be addressed. Employees may be asked to perform tasks or volunteer to undertake certain responsibilities that are not within their regular job duties. In the hurry to get our communities up and moving again, many unfamiliar hazards can be easily overlooked by employers and employees. Even in these extraordinary circumstances, employers are responsible for the safety and health of their employees in the workplace and must take measures to prevent injury and illness.

Additionally, winter weather creates a variety of hazards that can significantly impact everyday tasks and work activities. These hazards include slippery roads/surfaces, strong winds and environmental cold.

Read the full Client Alert for all of our guidance and recommendations.

OSHA Interpretation On New Reporting Rule For Amputations And Sight Loss

Posted in OSHA Compliance

By James L. Curtis, Ilana R. Morady, and Craig B. Simonsen

As most employers are aware, OSHA implemented new injury reporting requirements under 29 CFR Section 1904.39 effective at the beginning on this year.

One requirement is that employers must now report to OSHA within 24 hours all work-related amputations and losses of an eye. However the question of what exactly constitutes an “amputation” or “loss of an eye” has been raised. OSHA recently issued an Interpretative Guidance, titled “Clarification of the New Reporting Requirements,” which addresses this question.

The interpretation answers the question “how do you distinguish between an amputation and an avulsion?” For discussion purposes, The American Heritage® Medical Dictionary defines an  avulsion as “the forcible tearing away of a body part by trauma or surgery.” OSHA’s Interpretation indicated that “examples of avulsion that do not need to be reported include deglovings, scalpings, fingernail and toenail removal, eyelid removal, loss of a tooth, and severed ears.” It reminds employers that they are required to report amputations to OSHA when they learn that the reportable event occurred. If the tip of the finger is amputated, the work-related event must be reported. “An amputation does not require loss of bone.”

Concerning the loss of sight, OSHA indicates that the loss of an eye is the physical removal of the eye, including enucleation and evisceration. “Loss of sight without the removal of the eye is not reportable under the requirements of section 1904.39.” However, a case involving loss of sight that results in the in-patient hospitalization of the worker within 24 hours of the work-related incident is reportable.

As the language of this rule, and the Interpretation reveals, this may be a difficult issue to deal with. Certainly a case-by-case analysis is necessary — which is especially problematic given the short reporting deadline. Employers are encouraged to be very careful with and be sure to document any analysis prepared in determining whether to report, or not.

Image from OSHA.gov.

Court Finds that Sale of Hazardous Chemicals Isn’t Disposal Absent Intent to Dispose

Posted in Environmental Litigation, Superfund

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

The Fifth Circuit recently held that a seller of dry cleaning chemicals did not assume Superfund “arranger” liability by merely selling a useful but hazardous chemical with the intent that it be used by a dry cleaning business that then subsequently discharged the contaminant into ground water. Vine Street, LLC v. Borg Warner Corp., No. 07-40440 (5th Cir., January 14, 2015).

Vine Street is one of the first Court of Appeals to consider “arranger” liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9607(a)(3), in light of the Supreme Court’s decision in Burlington N. & Santa Fe Ry. Co. v. U.S., 556 U.S. 599 (2009), holding that arranger liability attaches only if there is an intent to dispose of a hazardous substance..

A Borg Warner Corp. subsidiary, Norge, designed and sold dry cleaning equipment to Vine Street LLC in the early 1960s.  Despite efforts to prevent discharge through an engineered reclamation system, some of the perchloroethylene (PERC) used in the dry cleaning process was discharged into the sewer.  In 2006, the District Court held a bench trial and ruled that Norge was liable to Vine Street for 75% of the costs associated with cleaning up PERC plume because Norge knew its reclamation system was not 100% effective and some of the PERC might end up in the sewer.

Borg Warner appealed the judgment to the 5th Circuit, but it was stayed due to ongoing bankruptcy proceedings.  By the time the stay was lifted, the Supreme Court had published its ruling in Burlington Northern that “knowledge alone is insufficient to prove an entity planned for the disposal, particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful product.”

In Vine Street, Borg Warner argued that Norge (and therefore Borg Warner) was not liable to Vine Street under CERCLA because it did not intend to dispose of the PERC when it sold the dry cleaning equipment and an initial supply of PERC to the cleaners in the 1960s.  The Fifth Circuit Court reversed the District Court judgment against the seller, finding that the “purported arranger [must take] intentional steps to dispose of a hazardous substance.”  The District Court had applied an outdated Fifth Circuit standard that only required a “nexus” between a purported arranger and the disposal of waste (Geraghty & Miller, Inc. v. Conoco, Inc., 234 F.3d 917 (5th Cir. 2000).

Vine Street presents us with another reminder that CERCLA’s arranger liability depends upon a fact-specific inquiry as to whether the entity had the necessary intent to dispose of a hazardous substance.