By Brent I. Clark and Craig B. Simonsen

Seyfarth Synopsis: New OSHA guidance documents may provide employers in these industries with another tool for carefully measuring compliance with the PSM standards.

OSHA recently released guidance documents on Process Safety Management for Explosives and Pyrotechnics Manufacturing (PSM Explosive Pyrotechnics Guidance) (OSHA 3912-03 2017), and the Process Safety Management for Storage Facilities (PSM Storage Guidance) (OSHA 3909-03 2017).

The PSM Explosive Pyrotechnics Guidance focuses on aspects of the standard particularly relevant to explosives and pyrotechnic manufacturers, found in OSHA’s standard on Explosives and Blasting Agents, 29 CFR 1910.109.  The PSM Storage Guidance focuses on aspects of the PSM standard particularly relevant to storage facilities generally.

OSHA notes that while all elements of the PSM standard apply to all PSM-covered pyrotechnics manufacturing or storage facilities, the following elements are most relevant to hazards associated with these facilities:

  • Employee Participation
  • Process Safety Information (PSI)
  • Process Hazard Analysis (PHA)
  • Operating Procedures
  • Training
  • Mechanical Integrity (MI)
  • Emergency Planning and Response

OSHA emphasizes that as to explosives, these PSM elements complement the “cardinal principle for explosive safety: expose the minimum number of people to the smallest quantity of explosives for the shortest period consistent with the operation being conducted.”

These Guidance documents provide employers with an outline to compliance with the applicable PSM standards that provide another review tool to achieve compliance.  Employers in these industries are encouraged to review these Guidance documents carefully to measure compliance with the standard, as you may be sure that OSHA’s inspector’s, if or when they visit, will do so.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Andrew H. Perellis, Kay R. Bonza, and Craig B. Simonsen

EPA SignSeyfarth Synopsis: The EPA and Army Corps of Engineers have proposed to rescind the 2015 Clean Water Rule defining “Waters of the U.S.,” and recodify the pre-existing rule, then engage in a subsequent rulemaking to re-evaluate and revise the definition of WOTUS presumably intended to decrease in the number of water bodies subject to EPA permitting obligations.

The U.S. Environmental Protection Agency and the Army Corps of Engineers have published a proposed rule on the “Definition of “Waters of the United States” – Recodification of Pre-Existing Rules.”

We had previously blogged about the EPA’s monumental final rule, in June 2015, expanding the definition of “Waters of the United States” (WOTUS) under the Clean Water Act, thereby increasing the number of water bodies subject to protection by the EPA through permitting obligations. The final rule was based on EPA’s Science Advisory Board’s draft scientific report, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.” EPA/600/R-11/098B (September 2013).

In commenting on the proposed rule to rescind the WOTUS rule, EPA Administrator Scott Pruitt said, “we are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses …. This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

The proposed rescission follows President Trump’s February 28, 2017, Executive Order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”  The effect of the rescission would be to recodify the regulatory text that was in place prior to the 2015 Clean Water Rule and that is currently in place as a result of a U.S. Court of Appeals for the Sixth Circuit’s stay of the 2015 rule. Therefore, according to the EPA press release, this action, when final, “will not change current practice with respect to how the definition applies.”

EPA also notes that the agencies have begun deliberations and outreach on the second step of the rulemaking involving a reevaluation and revision of the definition of WOTUS in accordance with the Executive Order.

The regulated community — industry, municipalities, developers, builders, and a host of others — should watch and monitor this rulemaking effort closely.  While this initial step will recodify the pre-existing rule, the subsequent rulemaking to re-evaluate and revise the definition of WOTUS presumably is intended to reduce the number of regulated water bodies constituting “waters of the United States,” thereby decreasing permitting obligations, or subjecting fewer entities to permitting requirements as a result of a narrower definition of WOTUS.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: OSHA has proposed to delay the reporting compliance deadline, until December 1, 2017,  for certain employers to electronically file injury and illness data.

Under OSHA’s revised recordkeeping rules certain employers are required to electronically file injury and illness data with OSHA.  As we noted previously in our blog, the rule became effective in January 1, 2017, and required employers to electronically file that information by July 1, 2017.  However, for months the regulated community had been asking how it would be expected to accomplish this electronic filing when OSHA had failed to set up a website capable of accepting the submissions.

In May 2017 OSHA acknowledged that “OSHA is not accepting electronic submission of injury and illness logs at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 form 300A electronically.”

OSHA has now formally proposed to extend the filing deadline until December 1, 2017.  82 Fed. Reg. 29261 (June 28, 2017).  Importantly, OSHA states that the proposed delay will also allow OSHA an opportunity to “further review and consider the rule.”  Accordingly, it appears that OSHA is reconsidering the entire rule and may even modify or revoke the rule prior to the December 1, 2017 filing date.  OSHA stated that it intends to issue a separate proposal to reconsider, revise, or remove other provisions of the final rule on electronically filing injury and illness data.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs, Brent I. ClarkJames L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

iStock_000042612884_MediumSeyfarth Synopsis: In an interesting outcome, an OSHRC Administrative Law Judge recently vacated a citation to an alleged “controlling employer” based on 5th Circuit precedent – despite being contrary with OSHA policy and other OSHRC precedent.

A recent Occupational Safety and Health Review Commission (Commission) Administrative Law Judge, Brian A. Duncan’s decision, in Hensel Phelps Construction Co., Docket No. 15-1638 (April 28, 2017), considered whether Respondent, as the general contractor for the project, can be held liable for the violation as a “controlling employer.”  Additionally, the parties argued and stipulated that under 5th Circuit case law, that OSHA’s “controlling employer” policy has been invalidated and is unenforceable.

The Commission has held that “an employer who either creates or controls the cited hazard has a duty under § 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own employees, but those of other employers ‘engaged in the common undertaking’.” McDevitt Street Bovis, Docket No. 97-1918 (Sept. 28, 2000).  “An employer may be held responsible for the violations of other employers ‘where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”’ Summit Contractors, Inc., Docket No. 05-0839 (Aug. 19, 2010).

In the facts in this case, according to the ALJ, the Respondent had overall construction management authority on the project.  Pursuant to its contract with the City of Austin, and as the jobsite general contractor, Respondent also had authority through its officials and agents to stop construction work performed by subcontractors when hazardous conditions were found, and to prevent them from continuing work due to safety concerns.  Respondent’s onsite safety managers had previously exercised control over jobsite safety by stopping subcontractor work, and by removing subcontractor employees from the jobsite.  In fact, “Respondent’s Area Superintendent … and … Project Superintendent … were actually present when CVI employees were performing work in the unprotected area of the excavation.”

However, this violation occurred at a jobsite in Austin, Texas, which was under the jurisdiction of the U.S. Court of Appeals for the 5th Circuit.  In 1981, the Fifth Circuit, according to the ALJ, ruled that the OSH Act, its legislative history, and implemented regulations, serve to protect “an employer’s own employees from workplace hazards.”  ALJ’s emphasis.  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981).  In this case, the ALJ clarified that that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719 (Mar. 16, 2000).

Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition.”  The citation was vacated.

For employers this outcome raises a clear example of where, if issued an OSHA citation, such as under OSHA’s multi-employer citation policy, it is important to review the citation from the big picture, including the law, regulations, and all case law precedent that might impact the citation on the particular employer.  The jurisdiction in which the case arises matters.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Andrew H. Perellis, Kay R. Bonza, and Craig B. Simonsen

iStock_000009254156LargeSeyfarth Synopsis: The U.S. Attorney General has directed the Department of Justice to no longer allow payments to third parties as part of resolving federal cases.  For environmental cases, this prohibition could significantly limit, if not ban, the use of SEPs.

Attorney General Jeff Sessions issued a memo last week to all Department of Justice staff and 94 U.S. Attorney’s Offices, prohibiting payments to nongovernmental entities that are not a party to the litigation as part of a negotiated settlement.  Several environmental groups have interpreted this memo to altogether ban supplemental environmental projects (SEPs) in matters where DOJ is involved.

We previously blogged about EPA’s updated policy documents involving SEPs.  In the environmental context, SEPs are used to allow an alleged violator to voluntarily undertake an environmentally beneficial project related to the violation, in exchange for mitigation of the penalty to be paid.  EPA has traditionally viewed SEPs as furthering “EPA’s goal of protecting and enhancing public health and the environment.”  For example, one company paid for soil restoration on federal land as part of its compensation for air pollution violations at some of its power plants in North Carolina.  Corporate defendants have been agreeable to SEPs as they promote positive public relations.

Not every environmental settlement requires the involvement of DOJ, so for these matters, at least for the moment, SEPs remain available in resolving an alleged violation.  But for matters that require referral to DOJ for resolution, it is a different outcome.  The Attorney General’s memo prohibits DOJ attorneys from entering into “any agreement on behalf of the United States in settlement of federal claims or charges…that directs or provides for a payment or loan to any non-governmental person or entity that is not a party to the dispute.”  By doing this, Sessions is seeking to curb settlement funds from being used to benefit third-party special interest groups or political friends of those in power.

The Sessions’ memo includes two exceptions that may allow SEPs to be utilized in narrow circumstances – when structured so that a governmental entity, instead of a non-governmental organization, receives the SEP benefit, and when the benefit “directly remedies the harm.”  It remains to be seen how DOJ will apply these exceptions as the Sessions’ memo does not elaborate as what constitutes a “governmental entity” or the nexus needed to “directly remedy the harm.”  What is clear is that corporate defendants will see a reduction in the use of SEPs as part of environmental settlement agreements that are negotiated by the DOJ.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Jeryl L. Olson, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Last week Administrator Scott Pruitt signed a final rule to further delay the effective date of EPA’s Risk Management Program (RMP) Amendments an additional 20 months to allow the agency to conduct a reconsideration proceeding.

The U.S. Environmental Protection Agency’s new rules to strengthen the Clean Air Act’s Risk Management Program (RMP), 40 C.F.R. Part 68, were first adopted on January 13, 2017 (82 Fed. Reg. 4594), after the proposed regulations were published for notice and comment on March 14, 2016 (81 Fed. Reg. 13638).

However, Administrator Pruitt has now signed a rule changing the effective date of the amendments to February 19, 2019 (82 FR 27133).

For an analysis on the proposed rules see our previous blog on U.S. EPA To Require Stronger Chemical Safety Regulation.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By James L. Curtis, Brent I. Clark, and Craig B. Simonsen

iStock_000009254156LargeSeyfarth Synopsis: OSHA is sponsoring a “Safe + Sound Week,” another example of a more cooperative approach to worker safety and health issues.

We had blogged previously on OSHA’s launch of the “Safe and Sound Campaign” webpage, calling on employers to review their safety and health programs to protect workers, and reduce workplace injuries and deaths, and its “Recommended Practices for Safety and Health Programs” webpage.

Now OSHA, along with the National Safety Council, American Industrial Hygiene Association, American Society of Safety Engineers, and the National Institute for Occupational Safety and Health, is sponsoring the first “inaugural” Safe + Sound Week.  It has designated June 12-18, 2017, for the event.

In announcing the event, the U.S. Secretary of Labor Alexander Acosta said that “our nation has made great strides in raising awareness about the importance of workplace safety, yet more than four million workers suffer serious job-related injuries or illnesses annually. We can do better.”

According to the announcement, participating in this event will “help organizations get their safety and health program started” or energize an existing one.

OSHA notes that “effective programs have three core elements”:

  • Management leadership that commits to establishing, maintaining and continually improving the program.
  • Workers who help identify solutions for improvements.
  • A systematic “find and fix” approach that calls upon employers and workers alike to examine their workplaces – proactively and routinely – to identify and address hazards before an injury or illness occurs.

More information on how to participate is provided on OSHA’s webpage.

This event is another example of a more cooperative approach to worker safety and health issues. As we noted previously, this is not the tone that we have seen from OSHA in the last several years.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis

iStock_000004162096LargeSeyfarth Synopsis: OSHA has announced that it will be proposing a delay to the July 1, 2017 deadline for certain employers to electronically file injury and illness data.

Under OSHA’s revised recordkeeping rules certain employers are required to electronically file injury and illness data with OSHA.  As we noted previously in our blog, the rule became effective in January, 2017 and required employers to electronically file the information by July 1, 2017.  However, for months the regulated community has been asking how it is expected to accomplish this electronic filing when OSHA has failed to set up a website capable of accepting the submissions.

OSHA has now posted a notice on its website acknowledging that “OSHA is not accepting electronic submission of injury and illness logs at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 form 300A electronically.”

It is unclear how long of a delay OSHA will seek and whether other modifications will be made that would impact the new anti-retaliation provisions.  We will keep readers posted.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Mark A. Lies, IIAdam R. Young, and Craig B. Simonsen

Woman holding hemp flowersSeyfarth Synopsis:  NIOSH has released a study on the safety and health hazards posed by marijuana growing farms.  Of concern for employers are the risks for musculoskeletal disorders, as well as dermal contact exposure to both THC and Botrytis cinerea, a plant pathogen. 

The National Institute for Occupational Safety and Health (NIOSH) has recently published the results of a potential hazards evaluation associated with the harvesting and processing of cannabis at a Washington state outdoor organic farm.  Health Hazard Evaluation Report, No. 2015-0111-3271 (April 2017).

The Report concludes that “if hand trimming tasks are performed for longer periods than we observed, the repetitive hand motions create a risk for hand and wrist musculoskeletal disorders.  Tetrahydrocannabinol (THC), the psychoactive component in cannabis, was detected on all surface wipe samples.  Botrytis cinerea, a plant pathogen that can cause allergic reactions in exposed individuals, was the predominant fungal species identified.”

NIOSH has provided the following methods for mitigating and managing the hazards:

  • Change hook line hanging heights to correspond with typical stem length and employee working technique.
  • Provide frequent breaks for employees when they are trimming cannabis by hand.
  • Develop a plan to rotate employees among jobs that use different muscle groups.
  • Train employees on tool cleaning, lubrication, sharpening, and maintenance.
  • Develop a cleaning schedule to remove tetrahydrocannabinol from work and tool surfaces.
  • Train employees to wear non-latex gloves when handling cannabis, cannabis products, or equipment that contacts cannabis.
  • Train employees to wash their skin with soap and water after removing gloves.

Employers in this industry can use these NIOSH recommendations to develop their own employee safety and training programs or to update their existing programs, as appropriate.  At a minimum, employers who have a written program in place may wish to make sure that they have covered all of the topics highlighted in these NIOSH this Report. Coordinating employer written materials with the NIOSH recommendations may improve employee safety and reduce the likelihood of workplace incidents.  Moreover, compliance with the NIOSH recommendations also may reduce the employer’s liability for an OSHA citation, should OSHA conduct an onsite inspection and find safety hazards unaddressed.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or Workplace Policies and Handbooks Team.

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

iStock_000009254156LargeSeyfarth Synopsis: OSHA has rescinded its midnight rule, adopted by the outgoing Administration in December 2016 which attempted to end run the federal court’s decision in Volks that limits the statute of limitations on injury recordkeeping violations to six months.

Prior to 2012, OSHA’s longstanding position was that an employer’s duty to record an injury or illness continues for the full five-year record-retention period.  However, in 2012, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, 675 F.3d 752 (DC Cir. 2012), rejecting OSHA’s position.

The AKM or “Volks” decision found that the standard six month statute limitations applies to an employer’s duty to record work related injuries and illnesses on the OSHA 300 log. The Volks decision effectively ended OSHA practice of issuing citations for alleged recordkeeping errors going back five years.  This decision did not sit well with OSHA.  In December, 2016 OSHA announced a new final rule that OSHA claimed “clarifies” an employer’s “continuing” obligation to make and maintain an accurate record of each recordable injury and illness for a full five years.

As we previously blogged, OSHA’s rule was a clear attempt to avoid the D.C. Circuit‘s ruling.  In response, Congress passed a Resolution to block OSHA’s rule, stating that “such rule shall have no force or effect.”  Agreeing with Congress, the White House issued a Statement of Administration Policy announcing that it “strongly supports” passage of the bill.

The December midnight rule has now been rescinded by OSHA, effectively acknowledging that the six month statute of limitations applies, not the five year statute of limitations.  82 Fed. Reg. 20548 (May 3, 2017).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.