Environmental & Safety Law Update

Zika Virus Spreading to United States: OSHA Provides Recommendations

Posted in OSHA Compliance

By Benjamin D. Briggs and Adam R. Young

Mosquito sucking blood from people.Seyfarth Synopsis: OSHA Interim Guidance recommends that all employers develop and implement policies to deal with Zika virus.

What is Zika?

The Zika virus disease (Zika) primarily is spread through the bites of infected mosquitoes.  The most common symptoms of Zika are fever, rash, joint pain, and conjunctivitis (red eyes).  While some cases of Zika have occasionally been severe, infected people rarely go to the hospital or die from Zika.  For this reason, many people might not realize they have been infected.  An individual’s symptoms may appear anywhere from 2 to 7 days after exposure to the virus.

Where is Zika Being Transmitted?

According to the CDC, Zika has been reported throughout South America, Central America, and the Caribbean. Mosquito-born Zika cases have been reported in United States territories, while hundreds of reports cases in the continental United States mostly have been limited to travel-borne sources. Zika may be sexually transmitted or passed to a baby around the time of its birth.  The Zika virus has been documented to result in injuries to fetuses, resulting in severe birth defects such as microcephaly. Federal agencies warn that mosquitoes in the Continental United States will become infected with and spread Zika, and travel-associated Zika infections in U.S. states may result in the local spread of the virus.

OSHA Interim Guidance and Recommendations

We had recently issued a Management Alert on Zika – Employer Liability Issues. On April 22, 2016, the federal Occupational Safety and Health Administration, along with the National Institute for Occupational Safety and Healthy, released an Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus (OSHA – DTSEM FS-3855). The Interim Guidance provides recommendations for employers on issues related to Zika, including hazard communication, employee clothing, and the proper use of insect repellants.  Compliance with these recommendations is voluntary, as they are not formal OSHA standards.  However, employers should review these recommendations and adjust polices accordingly.

Outdoor Workers

For outdoor workers, OSHA recommends:

  • Inform workers about their risks of exposure to Zika through mosquito bites and train them how to protect themselves. Check the CDC Zika website to find Zika-affected areas.
  • Provide insect repellents and encourage their use.
  • Provide workers with, and encourage them to wear, clothing that covers their hands, arms, legs, and other exposed skin. Consider providing workers with hats with mosquito netting to protect the face and neck.
  • In warm weather, encourage workers to wear lightweight, loose-fitting clothing. This type of clothing protects workers against the sun’s harmful rays and provides a barrier to mosquitoes. Always provide workers with adequate water, rest and shade, and monitor workers for signs and symptoms of heat illness.
  • Eliminate sources of standing water (e.g., tires, buckets, cans, bottles, barrels) whenever possible to reduce or eliminate mosquito breeding areas. Train workers about the importance of eliminating areas where mosquitos can breed at the worksite.
  • If requested by a worker, consider reassigning anyone who indicates she is or may become pregnant, or who is male and has a sexual partner who is or may become pregnant, to indoor tasks to reduce their risk of mosquito bites.

The Interim Guidance provides specific recommendations for health care workers, laboratory workers, and workers who specialize in mosquito control.

Dealing with Infected Employees

When any employees are suspected or confirmed to be infected with Zika , OSHA recommends that employers:

  • Ensure that supervisors and all potentially exposed workers are aware of the symptoms of Zika.
  • Train workers to seek medical evaluation if they develop symptoms of Zika.
  • Assure that workers receive prompt and appropriate medical evaluation and follow-up after a suspected exposure to Zika.
  • If the exposure falls under OSHA’s BBP standard (29 CFR 1910.1030), employers must comply with medical evaluation and follow-up requirements in the standard. See 29 CFR 1910.1030(f).
  • Consider options for granting sick leave during the infectious period. The CDC describes steps employers and employees can take to protect others during the first week of Zika illness.

Employee Travel to Zika-infected Areas

OSHA’s Interim Guidance provides recommendations for dealing with employee travel to areas experiencing Zika outbreaks:

  • Review the CDC guidance prior to assigning travel.
  • Consider allowing flexibility in required travel for workers who are concerned about Zika virus exposure. Flexible travel and leave policies may help control the spread of Zika virus, including to workers who are concerned about reproductive effects potentially associated with Zika virus infection.
  • Consider delaying travel to Zika-affected areas, especially for workers who are or may become pregnant or whose sexual partners may become pregnant.

Even if they do not feel sick, travelers returning to the United States from an area with Zika should take steps to prevent mosquito bites for three weeks so they do not pass Zika to mosquitoes that could spread the virus to other people.

However, employers should closely consider any travel prohibitions — restrictions on employee travel on the basis of pregnancy or gender should be closely scrutinized, as they may form the basis of a gender discrimination claim. Zika is advancing into the Continental United States and employers need to be prepared.  Employers should review these recommendations and plan accordingly.

OSHA – Injury to Intoxicated Employee is Recordable

Posted in OSHA Compliance

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

iStock_000004162096LargeSeyfarth Synopsis: An alcohol induced accident involving an intoxicated employee can be an OSHA recordable incident.

OSHA recently opined in an Interpretation Letter that, where an employee sustained an injury at work but the employee was found to be intoxicated from alcohol through a post-injury drug screen, if the incident met at least one of the general recording criteria in Section 1904.7, it is still an OSHA recordable incident.

The issue raised by the employer in this scenario related to Section 1904.5(b)(2)(vi), which provides an exemption to recording an injury “if the injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.”  The employer asked whether, because the employee was intoxicated while at work and the intoxication arguably caused the injury, an employer is exempted from recording the injury.

OSHA said “no,” the employer was not exempted from recording this injury under Section 1904.5(b)(2)(vi) because, “in analyzing this question, [OSHA]…concluded that the intake of alcohol does not treat the disorder of alcoholism.  Instead, drinking alcohol is a manifestation of the disorder.  Accordingly, the injury described in the scenario above does not meet the exemption in Section 1904.5(b)(2)(vi) for self-medication.”

OSHA also noted that during the 2001 rulemaking to revise the recordkeeping regulation, several commenters suggested an exemption to “work-relatedness” for employees engaged in illegal activities, horseplay, or failure to follow established work rules or procedures such as being intoxicated while at work. In the preamble to the final rule (66 Fed. Reg. 5958, January 19, 2001), OSHA explained that “it would not adopt this exception because excluding these injuries and illnesses would be inconsistent with OSHA’s longstanding reliance on the geographic presumption to establish work-relatedness.”  Also, OSHA believed that many of the working conditions alluded to in the public comment involved occupational factors, such as the effectiveness of disciplinary policies and supervision.  Requiring employers to record these incidents, OSHA believed, “may serve to alert both the employer and employees to workplace safety and health issues.” Id.

This interpretation signals to employers that OSHA is still unwilling to deviate from its established exemptions to recording work-related injuries.

FTC Asks – Are Your “All Natural” Claims All Accurate?

Posted in Environmental Compliance, Green Marketing, Sustainability

By Andrew H. Perellis and Craig B. Simonsen

Federal Trade Commission Doorway SignSeyfarth Synopsis: Companies that make “all natural” claims for their products may come under FTC scrutiny and enforcement.

The Federal Trade Commission announced five cases this week with companies that market their products as “all natural” or “100% natural,” alleging deceptive use of those phrases in ads for skincare products, shampoos, styling products, and sunscreens.

We had blogged previously about FTC’s “green claims” enforcement. See Be Careful About What you Claim – Or Fail to Claim, and FTC Sends Green Guides Warning Letters and FTC Aggressively Enforcing Improper “Green” Claims.

According to the FTC, in these five cases the companies pitched their products as all natural or 100% natural, “but included synthetic ingredients.”

The FTC proposed orders will prohibit “misrepresentations” that a product is all-natural or 100% natural. In addition, the companies may not misstate the extent to which any product contains natural or synthetic components, or make misleading claims about ingredients or composition, or make deceptive representations about environmental or health benefits. The FTC will require that for “some claims the companies will need scientific evidence.”

The FTC warns that “if you advertise your product as ‘all-natural’ or ‘100% natural’ and it contains artificial ingredients or chemicals, now is the natural time for a compliance check.”

The Agency is allowing public comment on the four proposed settlements by May 12, 2016.

16 Legal Tips: Handling OSHA Citations the Right Way

Posted in OSHA Compliance, OSHA Enforcement

One wordSeyfarth Partner James L. Curtis was one of sixteen “top legal experts” interviewed to provide a “list of critical information you should be aware of in the event you receive an OSHA citation.” See16 Legal Tips: Handling OSHA Citations the Right Way”  (Intelivert, 2016).

The article notes that the experts weighed in with “simple, actionable tips that can help you craft your legal strategy and directly affect the outcome of your OSHA interaction.” Mr. Curtis has twenty-five years of experience in OSHA law, with a broad range of expertise in many industry verticals.

DON’T ACCEPT CITATIONS AS A COST OF DOING BUSINESS

In the article Curtis explains that employers need to understand that there are significant changes to OSHA’s penalty policy that will occur in 2016. “Penalties are going up significantly, likely by almost 80 percent.” Since OSHA has become more focused on enforcement and seeking higher penalties, “employers who receive citations need to carefully analyze the citation to ensure that it is both factually and legally accurate.”

Check out the full article, and let Jim Curtis know if you have any questions.

Is Increased Seismic Activity from the Disposal of Fracking Fluid Actionable Under RCRA?

Posted in Environmental Litigation, RCRA

shutterstock_206483089Seyfarth Partner Andrew H. Perellis is quoted in this Forbes Legal News article today, Sierra Club’s Legal Theory In Frackquake Case Draws ‘Star Trek’ Comparison (March 31, 2016).

The article concerns a complaint filed on Feb. 16 in the U.S. District Court for the Western District of Oklahoma, Sierra Club v. Chesapeake Operating LLC, Devon Energy Production Co. LP, and New Dominion, LLC. The complaint was filed under the citizen suit provision of the Solid Waste Disposal Act, amended as the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (RCRA).

In particular, the complaint seeks to allege an imminent and substantial endangerment for which injunctive relief is available under RCRA, Section 7002(a)(1)(B). However, the alleged harm is not associated with threaten exposure to the waste water but instead because the disposal of the water under pressure is alleged to increase the frequency and severity of earthquakes in the area.

Perellis, as quoted in the Forbes article, says the lawsuit is the equivalent of using RCRA to sue “a company that warehouses hazardous chemicals over a danger arising from an increase in truck traffic to and from the facility.” Calling the case “the ‘Star Trek’ of lawsuits,” Perellis said, “they are boldly taking RCRA where it has never gone before.”

Is the Corps’ Determination on Jurisdiction Over a Wetland Judicially Reviewable?

Posted in CWA

Supreme CourtSeyfarth Partner Andrew H. Perellis is quoted in this Law360 expert analysis, High Court Water Case Could Put Target On Agencies’ Backs (March 29, 2016).

The pending Supreme Court case, U.S. Army Corps of Engineers v. Hawkes Co. Inc. et al., no. 15-290, involves what constitutes a final agency action reviewable under the Administrative Procedure Act. We had previously blogged about this appeal, and its relation to Sackett v. EPA, 132 S. Ct. 1367 (2012). See our earlier blog on the Sackett decision. The case pertains to whether a “jurisdictional determination” regarding a wetland regulated by section 404 of the Clean Water Act is immediately reviewable in court. It is a follow-up case to the Supreme Court’s 2012 Sackett decision holding at a compliance order issued under Section 404 is immediately reviewable.

The Law360 article notes that “landowners and the U.S. Army Corps of Engineers will square off Wednesday at the U.S. Supreme Court in a test of when exactly a party may challenge the Corps’ determination that it has jurisdiction over a wetland — a case that could open government agency decisions up to more challenges across the board.”

In the analysis, Perellis concludes that “one of the key considerations for the high court will be to what extent there are real, tangible consequences in terms of what the property owner can or cannot do with a property following the issuance of a jurisdictional determination.”

DOT Publishes Final Rule on “Safe Reverse Logistics” for Retail “Returns” of Hazardous Materials to Distribution Centers

Posted in Hazardous Materials, RCRA, Transportation

By Jeryl L. Olson, Ilana R. Morady, Patrick D. Joyce, Philip L. Comella, and Craig B. Simonsen

shutterstock_30524071The Pipeline and Hazardous Materials Safety Administration (PHMSA) just announced that it has amended the Hazardous Materials Regulations (HMR). 81 Fed. Reg. 18527 (March 31, 2016).

It has done so by adopting its proposed regulatory amendments applicable to the reverse logistics shipments of unsellable products containing hazardous materials (for example, expired over-the-counter drugs, health care products, damaged and open retail containers of soaps, cleaners, household products, spilled materials, etc.) from a retail facility back to a distribution or reclamation facility by highway transportation.

We have previously blogged about state and federal hazardous waste regulations and their impacts on unsellable products in the retail industry, and have also blogged specifically about the proposed HMR rule affecting transportation of retail wastes and recyclables. The new HMR final rule revises the HMR to include a definition of “reverse logistics,” and provides provisions for the shipment of unsellable products containing hazardous materials within the scope of the new definition.

Specifically, PHMSA has adopted a definition of “reverse logistics” for unsellable products containing hazardous materials as “the process of offering for transport or transporting by motor vehicle goods from a retail store for return to its manufacturer, supplier, or distribution facility for the purpose of capturing value (e.g., to receive manufacturer’s credit), recall, replacement, recycling, or similar reason.”

Importantly, under the final rule, reverse logistics shipments may only be shipped via highway carrier — rail and air transport of reverse logistics shipments are prohibited.  The final rule also requires that all materials sent in reverse logistics by private carrier contain the marking “REVERSE LOGISTICS – HIGHWAY TRANSPORT ONLY – UNDER 49 CFR 173.157” to notify the carrier that the shipment could contain products with limited amounts of hazardous materials.  Reverse logistics shipments sent by non-private carriers must still comply with all limited quantity conditions contained in 49 CFR 172.315.

This final rule also expands a previously existing exception for return shipments of used automobile batteries from multiple shippers using a single transport vehicle between a retail facility and a recycling center.

Retailers should keep in mind that this final rule is independent of, and in addition to, state and federal waste (RCRA) rules applicable to returns of products containing hazardous materials, including, but not limited to, waste determination requirements for such products, hazardous waste generation thresholds, manifesting requirements, etc. Retailers engaged in reverse logistics must ensure they are in compliance with state and federal RCRA rules in addition to this new final PHMSA rule.

The Final rule was effective on March 31, 2016.

U.S. EPA To Require Stronger Chemical Safety Regulation

Posted in CAA, Environmental Compliance

By Jeryl L. Olson, Andrew H. Perellis, and Patrick D. Joyce

Power Lines and Pulp Mill PollutionLong awaited proposed regulations were published for notice and comment on March 14, 2016 (81 Fed. Reg. 13638) by the U.S. Environmental Protection Agency to strengthen its Risk Management Program (RMP), 40 C.F.R. Part 68.

Though EPA has been considering changes to the RMP rules for many years, the 2013 explosion at a fertilizer facility in West, Texas that killed fifteen people, at least ten of them first responders, spurred EPA to speed up its revisions to the rules. As a result, the proposed rules contained strengthened emergency response obligations in addition to additional accident prevention requirements and enhanced availability of information to the public.

Comments on the proposed rule will be accepted until May 13, 2016. The proposal, among other changes, would impose (a) additional accident prevention requirements, (b) strengthen emergency response obligations, and (c) provide enhanced availability of public information.

Additional Accident Prevention Requirements:

  • Current rules regarding incident investigation require an analysis of factors that contributed to the incident. EPA seeks to expand this analysis for Program 2 or 3 processes to conduct root cause analysis for catastrophic releases or incidents that could have reasonably resulted in a catastrophic release.
  • For facilities that experience a reportable release, EPA proposes to require a post-incident compliance audit performed by an independent third-party. Current rules allow for the audit to be conducted by an internal representative of the facility’s owner or operator.
  • For Program 3 regulated processes in certain SIC codes, EPA proposes a new element to the process hazard analysis (PHA) obligating affected facilities to conduct safer technology and alternatives analysis (STAA) as part of their PHA, and to evaluate the feasibility of inherently safer technology (IST).

Strengthened Emergency Response Obligations:

  • EPA proposes that facilities with Program 2 or 3 processes must coordinate with local emergency response agencies at least once a year, with the intent that such coordination will ensure that resources and capabilities are in place to respond to an accidental release.
  • Facilities with Program 2 or 3 processes would be required to conduct notification exercises annually. This is intended to ensure that emergency contact information is accurate and complete.
  • Facilities subject to subpart E of the RMP rules (emergency response program for “responding facilities”) would be required to conduct a field exercise at least once every five years, and a tabletop exercise annually in other years. Also, any responding facility with a reportable accident would need to conduct a full field exercise within a year of the accident.

Enhanced Availability Of Public Information:

  • The proposed rule would require all regulated facilities to make certain basic information available to the public. Internet access would be required if the company maintains a web site, and if otherwise, to be available at the public library or governmental office.
  • A subset of facilities would be obligated to provide additional information, upon request, to the Local Emergency Planning Committee (LEPC), Tribal Emergency Planning Committee (TEPC) or other local emergency response agencies. The additional information to be shared would include summaries relate to: (a) compliance audits (facilities with Program 2 and Program 3 processes); (b) emergency response exercises (facilities with Program 2 and Program 3 processes); (c) accident history and investigation reports (all facilities that have had RMP reportable accidents); and (d) any ISTs implemented at the facility (a subset of Program 3 processes).
  • A timely public meeting with the local community would be mandated for any facility suffering a reportable accident.

The Occupational Safety and Health Administration (OSHA) is also considering updates to its Process Safety Management (PSM) standards. Though targeting differing communities (employee safety versus public and environmental health), EPA’s RMP and OSHA’s PSM regulations complement each other.  For example, an employer complying with OSHA’s PSM standards can satisfy RMP’s “prevention program” and process hazard analysis (PHA) element because PSM’s process safety techniques employ systematic methods for evaluating a process and identifying hazards.  EPA’s proposed rule creates additional RMP requirements that are not mirrored in OSHA’s current PSM regulations.  However, that may change when OSHA releases updates to the PSM regulations.

EPA’s proposed rule does not add any additional listed hazardous substances under Section 112(r) of the Clean Air Act. In addition, the proposed rule does not include any changes to EPA’s regulations that govern siting of chemical facilities and requirements for buffers or setbacks.

Our take on EPA’s proposal is that a regulated facility’s compliance burden could significantly increase. Given that enforcement of the Risk Management Program is already a current EPA enforcement priority, regulated facilities should become familiar with the proposed rule changes, and, if appropriate, submit comments to EPA in advance of May 13.

For further information on EPA’s national enforcement initiative, see National Enforcement Initiative: Reducing Risks of Accidental Releases at Industrial and Chemical Facilities Fiscal Years 2017-19.

OSHA Publishes Evaluation of Severe Injury Reporting Program

Posted in OSHA Compliance

By James L. Curtis, Benjamin D. Briggs, and Craig B. Simonsen

Safety at workBeginning January 1, 2015, OSHA changed its injury reporting rules to require employees to report to OSHA certain severe injuries and employee hospitalization within 24 hours.  We have previously blogged about that change in “OSHA Recordkeeping: Civil and Criminal Liabilities in 2015” and “OSHA Interpretation On New Reporting Rule For Amputations And Sight Loss.”

OSHA’s new reporting rules just completed their first year and OSHA has issued a report analyzing the data from this first year titled “Year One of OSHA’s Severe Injury Reporting Program: An Impact Evaluation” (Report) (March 17, 2016).

According to the Report, in the first full year of the program (2015), “employers reported 10,388 severe injuries, including 7,636 hospitalizations and 2,644 amputations. In a majority of those cases, OSHA responded by working with the employer to identify and eliminate hazards, rather than conducting a worksite inspection.”

In OSHA’s news release, Dr. David Michaels said that “in case after case, the prompt reporting of worker injuries has created opportunities for us to work with employers we wouldn’t have had contact with otherwise.” OSHA noted too that some employers “responded with callous disregard. One manufacturer tried to hide an entire room full of machinery from OSHA inspectors.”

The Report breaks out the top twenty-five industries reporting injuries and hospitalizations. Not surprisingly, manufacturing lead all other industries with 26% of all hospitalization reports and 57% of all amputation reports. According to the Report, about 1/3 of the injury and hospitalization reports resulted in on-site inspections and 2/3 of the reports resulted in a “Rapid Response Investigation” whereby OSHA requests that the employer conduct an internal investigation and notify OSHA of its findings.  OSHA found that the new Rapid Response requirements were “extremely effective” in abating hazards while utilizing far fewer resources than required for on-site inspections.

Employers should expect extra attention from OSHA as it is using these statistics and information to guide its enforcement activities.

DOT Proposes Rulemaking on “Safety Sensitive Positions” in Highway and Rail Transportation

Posted in OSHA Compliance

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

iStock_000021314720_MediumThe U.S. Department of Transportation has published an Advance Notice of Proposed Rulemaking (ANPR) on the Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea, 47 Fed. Reg. 12642 (March 10, 2016).

The ANPR is directed at individuals occupying “safety sensitive positions” in highway and rail transportation, and on its potential consequences for the safety of rail and highway transportation. The DOT’s agencies, the Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA), through this rulemaking, are requesting data and information from employers and the public concerning the prevalence of moderate-to-severe obstructive sleep apnea (OSA) among those employees in those positions.

The DOT is defining obstructive sleep apnea as a “respiratory disorder characterized by a reduction or cessation of breathing during sleep. OSA is characterized by repeated episodes of upper airway collapse in the region of the upper throat (pharynx) that results in intermittent periods of partial airflow obstruction (hypopneas), complete airflow obstruction (apneas), and respiratory effort-related arousals from sleep (RERAs) in which affected individuals awaken partially and may experience gasping and choking as they struggle to breathe.”

The ANPR states that risk factors for developing OSA include: obesity, male gender, advancing age, family history of OSA, large neck size, and an anatomically small oropharynx (throat). Additionally, OSA is associated with increased risk for other adverse health conditions such as: “hypertension (high blood pressure), diabetes, obesity, cardiac dysrhythmias (irregular heartbeat), myocardial infarction (heart attack), stroke, and sudden cardiac death.

Specifically, the agencies are requesting comment on the costs and benefits of requiring motor carrier and rail transportation workers in safety sensitive positions “who exhibit multiple risk factors for OSA to undergo evaluation and treatment by a healthcare professional with expertise in sleep disorders. For instance, the DOT points out that the Federal Aviation Administration:

Has always considered OSA a disqualifying condition, but has used its special issuance process to certificate airman if the hazard of OSA was satisfactorily treated or mitigated. In November 2013, FAA proposed guidance that would have required pilots with a body mass index (BMI) of 40 or more to be evaluated for OSA.

As this rulemaking presents perhaps considerable efforts and costs on impacted employers, review and comments on the ANPR may be worthwhile. Comments on the ANPR, under Docket numbers FMCSA–2015–0419 and FRA–2015–0111, are due by June 8, 2016.