Environmental & Safety Law Update

Safety Advisory on Handling and Transporting Materials Suspected of Being Contaminated with Ebola

Posted in Emergency Planning, International, OSHA Compliance

By Kerry M. Mohan and Craig B. Simonsen

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued a Safety Advisory, 79 Fed. Reg. 64646 (October 30, 2014), to provide guidance on the U.S. Department of Transportation’s Hazardous Materials Regulations (HMR), 49 CFR, parts 171–180, for persons who prepare, offer, and transport materials contaminated or suspected of being contaminated with the Ebola virus.

The Advisory indicates that to “transport materials contaminated or suspected of being contaminated with the Ebola virus, a special permit may be necessary to allow for a variance of the HMR packaging requirements to handle the larger volume of contaminated waste generated during the treatment of Ebola patients.” PHMSA had recently issued a non-site specific special permit (Special Permit DOT–SP 16279) to certain waste haulers, which authorizes the transportation in commerce of waste contaminated with or suspected of being contaminated with the Ebola virus for disposal.

The Advisory highlights these guidance documents and resources for Ebola handlers, transporters, and disposers:

Note that waste generated from the treatment of a patient contaminated or suspected of being contaminated with the Ebola virus transported by a Federal, state, or local government employee to a disposal facility is not subject to the HMR. “DOT, however, recommends that Federal, state, or local governments comply with appropriate safety requirements provided in the HMR to ensure the safe transportation of waste contaminated or suspected of being contaminated with the Ebola virus.”

For a primer on the Ebola with a discussion of the Federal employment laws that may be impacted, see our previous blog on this topic, Ebola and Employer Liability Issues.

Extra-Ordinary Equipment Use Leads to Fall and OSHA Citation

Posted in OSHA Compliance

By Kerry M. Mohan and Craig B. Simonsen

A circus “Hair Hang Act” performance took a dreadful turn when the apparatus the performers were hanging from suddenly fell to the ground.

The “human chandelier” act accident, the Agency alleges, occurred because the carabiner, a metal ring used as a connector, supporting the performers was improperly loaded. OSHA indicated that in violation of “industry practice” and the carabiner “manufacturer’s instructions,” the company improperly loaded the carabiner by “attaching two pear-shaped steel rings to the bottom of the carabiner, with each steel ring having three wire cables running from it to the corners of the rigging apparatus. This created a tri-axial loading situation as opposed to the proper loading situation where the carabiner is loaded only at two points along its major axis.” It’s alleged that this manner of loading resulted in the carabiner being overloaded, causing the carabiner to fail and all eight employees attached to the rigging to fall to the ground.

Concerning this incident, the OSHA Administrator, Dr. David Michaels, said “this catastrophic failure … clearly demonstrates that the circus industry needs a systematic design approach for the structures used in performances – approaches that are developed, evaluated and inspected by professional engineers.” “Employers must take steps to ensure this does not happen again.”

OSHA cited the employer for one serious safety violation with a proposed penalty of $7,000. In response to the citation, according to CNN, a spokesman for the circus said “we do not agree with the conclusion that … the way the carabiner was loaded was the sole case of the accident.” “The safety of our performers, our crew — as well as our audience — is our top priority.”

This case illustrates how, whether a local garage, a retailer, a shipping company, or an entertainment business, it is important to use and install equipment and machinery according to “industry practice” and “manufacturer’s instructions.” Otherwise, if accidents do occur because you have been “innovative” or have sought to “stretch” a part’s stated use, you may find yourself subject to an OSHA citation.

Further, this is another example of OSHA closely examining the business of the entertainment industry to issue citations. Thus, all employers in the entertainment industry must be aware that OSHA is paying attention to their practices and should take measures to ensure that their practices are OSHA compliant.

OSHA Local Emphasis Program for Funeral Homes, Chemical and Product Manufacturing Plants, Printing Facilities, and Outpatient Care Centers

Posted in Chemical Safety, OSHA Compliance

By James L. Curtis and Craig B. Simonsen

In an illustration of how widely OSHA will be looking at industries that use highly hazardous chemicals, OSHA’s Omaha Area Director recently announced that a Local Emphasis Program will include health inspections at funeral homes, chemical and product manufacturing plants, printing facilities, and outpatient care centers. See, for instance, Appendix A.

Appendix A, Directive CPL 02-14-009.

Bonita Winingham, the Area Director for OSHA in Omaha, Nebraska said that “this local emphasis program will allow OSHA to use its resources efficiently by focusing on industries that are known to use these types of highly hazardous chemicals.” “Through this program, OSHA will improve education for company management and strengthen worker protections.”

The Expanded Health Standard Inspection Local Emphasis Program (LEP), Directive CPL 02-14-009, was set to expire in September, but the Region’s announcement has indicated the Program’s renewal.

According to the Directive, the increased health risk of some chemicals, e.g. benzene, formaldehyde, and methylene chloride, led OSHA to created and enforce chemical-specific regulations for general industry known as “expanded health” standards (29 CFR sections 1910.1001 to 1910.1052). These regulations include exposure limits and monitoring requirements, and in some cases medical surveillance components.

The LEP, according to OSHA, was meant to increase the probability of inspecting establishments in industries that use highly-hazardous chemicals, within the jurisdiction of the Omaha Area Office, that have not received a comprehensive OSHA health inspection, and are not covered by other specific targeting programs.

These industries, both in the targeted area, and nationally, may wish to check their company safety policies, procedures, and training to ensure compliance with OSHA standards and to minimize any potential liability that may come with an OSHA inspection under this LEP and OSHA general industry standards.

Webinar on OSHA Recordkeeping: Civil and Criminal Liabilities in 2015

Posted in Investigations/Inspections, OSHA Compliance

Starting January 1, 2015, OSHA’s recordkeeping rules will undergo a change to two key provisions.

One, a number of industries that were previously not required to keep OSHA injury and illness records will now have to maintain a log to comply with OSHA standards, and two, the list of severe work-related injuries and hospitalizations that must be reported to OSHA in less than 24 hours has been expanded.

We invite you to join our webinar on November 19th, at 1:00 pm ET, for an in-depth look at these new rules. Topics will include:

  • Updates to OSHA’s Recordkeeping Rule; 
  • Log Assistance and Training; 
  • Key Aspects of Recordkeeping;
  • Civil and Criminal Penalties for Log Maintenance Failure; and
  • Recommendations on Responding to OSHA Inspections.

Seyfarth Shaw’s Mark Lies and Kerry Mohan will speak on the legal aspects and interpretations of the rule’s revisions, while David Malter, the President of Malter Associates, Inc., will provide an overview of the OSHA log for the new entities now required to record keep logs, as well as discuss the key recordkeeping aspects for entities already maintaining a logs.

There is no cost to attend this program, however, registration is required.

Illinois Rules on “High Volume Horizontal Hydraulic Fracturing” Become Law

Posted in Alternative Energy, Environmental Compliance

By Philip L. Comella, Patrick D. Joyce, and Craig B. Simonsen

The Illinois Department of Natural Resources’ proposed rules on “High Volume Horizontal Hydraulic Fracturing” were recently approved, and will soon be published in the Illinois Register.

Bloomberg BNA reported that the Illinois’ Joint Commission for Administrative Rules (JCAR), approved the DNR rules implementing the Part 245: Hydraulic Fracturing Regulatory Act – Revised Rules on November 6, 2014.

Although the final rules are substantially similar to draft rules released by DNR on August 29, 2014, there are some key differences:

  • Public Participation and Transparency: The final rules clarify how the public can comment on pending fracking drilling permits.  The final rules also require oil and gas companies to disclose water use volumes, chemicals used in their fracking fluids, and anticipated flowback rates of fracking fluid to the surface.
  • Enforcement: The final rules enhance penalties for administrative violations, to a maximum penalty of $5,000 per day.  In addition, the final rules include new well site safety requirements, new flaring reporting requirements, and strengthen DNR’s ability to oversee and remedy potential water pollution violations.
  • Environmental Protection: The final rules require oil and gas companies to test wastes and fracking fluids for radioactivity, require monitoring of air emissions during flowback and production, and require companies to restore land to its original condition once drilling has ceased.  The final rules also prohibit flowback fracking fluids from being stored in open pits for more than seven days.

We previously blogged about the draft fracking regulations when they were first proposed. In addition, Phil Comella recently gave a presentation to a group of professional engineers titled: “All About Fracking”.

Feel free to reach out to the authors, one of Seyfarth Shaw’s Environmental Compliance, Enforcement & Permitting team members, or your Seyfarth attorney with any questions on this important topic.

OSHA Prepares “Request for Information” to Prevent Communication Tower “Tragedies”

Posted in OSHA Compliance

By James L. Curtis and Craig B. Simonsen

In recent remarks by OSHA Administrator David Michaels at the “DOL-FCC Workshop on Tower Climber Safety and Injury Prevention,” Michaels indicated 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 noted that in 2013 OSHA recorded 13 communication tower-related worker deaths, which was nearly double the number of the previous two years combined. “So far in 2014, there have already been 11 worker deaths at communication tower worksites.”

http://social.dol.gov/blog/wp-content/uploads/2014/02/Tower-chart1.jpg

Employees in this industry need to climb towers throughout the year, including during inclement weather conditions. Some of the potential hazards may include:

  • Falls from heights;
  • Electrical hazards;
  • Hazards associated with hoisting personnel and equipment with base-mounted drum hoists;
  • Inclement weather;
  • Falling object hazards;
  • Equipment failure; and
  • Structural collapse of towers.

In response to the 2014 falling fatalities OSHA has 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 is also preparing a Request for Information to engage all stakeholders “in a collaborative effort to prevent more of these senseless tragedies.” Additionally, OSHA has set up a dedicated email address, at OSHACommTower@dol.gov, where individuals may “share your stories, concerns, and best practices.”

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 are up-to-date and current. While accidents may happen no matter how well we work to avoid them, having corporate materials in order, and properly training and overseeing your employees will go a long way in minimizing potential liabilities if and when an accident occurs.

Railroad Ordered to Pay $225,000 in Whistleblower Action where Employee Allegedly Lied About Prior Injuries

Posted in OSHA Compliance, Transportation, Whistleblower

By Ada W. Dolph and Craig B. Simonsen

A railroad’s decision to terminate an apprentice electrician whose OSHA injury report revealed he had not been truthful in his employment record about other prior workplace injuries was unlawful retaliation under the whistleblower provision of the Federal Railroad Safety Act, 49 U.S.C. § 20109 (FRSA), OSHA has ordered.  The railroad was ordered to pay $50,000 in compensatory damages, $150,000 in punitive damages, more than $22,000 in back wages and interest, and reasonable attorney’s fees.

After the employee was seriously injured at work, the injury was reported to OSHA and included information regarding prior unrelated workplace injuries.  The company investigated the injury, reviewed the information reported to OSHA, and concluded that the employee had been dishonest with the company about his prior workplace injury record.  As a result, the company terminated the employee’s employment.  The employee filed a whistleblower complaint under FRSA asserting that his employment had been terminated in retaliation for reporting workplace injuries.  OSHA agreed, leveling this significant damages award against the company.

This decision demonstrates how broadly OSHA will interpret employee whistleblower protections.  Employers should tread lightly when taking disciplinary action that is the fruit of any aspect of employee activity that is permitted under the whistleblower provisions of FRSA or any of the 21 other statutes that OSHA is charged with enforcing. 

Ada Dolph is a Partner and Craig Simonsen is a Senior Litigation Paralegal, in Seyfarth Shaw LLP’s Chicago office.  If you would like further information on this topic, please contact a member of the Workplace Whistleblower Team, your Seyfarth attorney, Ada Dolph at adolph@seyfarth.com, or Craig Simonsen at csimonsen@seyfarth.com.

Retail Grocers and Related Industries To Feel Impact of Phase Out of HCFCs

Posted in CAA, Environmental Compliance

By Jeryl L. Olson

Following pressure from Environmental Groups and Congress, the U.S. Environmental Protection Agency has announced two rule changes affecting users of refrigerants containing ozone depleting substances (ODS) (chlorofluorocarbons or “CFCs” and hydrochlorofluoro-carbons or “HCFCs”). 

On October 20, 2014, EPA announced the phase out of the production, import, and export of certain HCFCs between 2015 and 2019, and to phase out the use of the most common HCFCs (HCFC 22, HCFC 142b, and HCFC-225ca/cb) by 2020.  This final rule is effective January 2015.  As in previous rulemakings phasing out the production of, and eventually banning the use of ODS associated with refrigerants, these changes will have a significant impact on industries with high use of refrigerants, including retail grocers. 

While many grocery chains have moved away from HCFCs in order to avoid the recordkeeping and reporting associated with leak detection and repair rules, others have continued to commonly use HCFC 22, and other users of  HCFC 142b and HCFC-225ca/cb will likewise be affected. 

In a separate rulemaking, on October 21, 2014, EPA suggested several alternatives to the ODS scheduled on October 20, 2014 for a phase out and ban.  79 Fed. Reg. 62863.  Approved alternative substances include trans-1-chroyl-3,3,3,-trifluoroprop-1-ene (Solstis 1233zd(E), and Solstis N12 Refrigerant).  Carbon dioxide (R-744), is identified as an alternative for use in a refrigerated transport, and R450A as a substitute in refrigeration and air conditioning systems.  For foam blowing, EPA has suggested methylal and hydrofluoroolefin (HFO), as alternatives to the soon-to-be HCFC ODS. 

The full list of acceptable substitutes for ozone depleting substances in all industrial sectors are available on the Agency’s Ozone Layer Protection Web site.

Feel free to reach out to the author, one of Seyfarth Shaw’s Environmental Compliance, Enforcement & Permitting team members, or your Seyfarth attorney with any questions on this important topic.

120,000 Dental Offices to be Regulated Under EPA Dental Amalgam Rules

Posted in CWA, Environmental Compliance

By Andrew H. Perellis and Craig B. Simonsen

In another proposal aimed at small business, the U.S. Environmental Protection Agency has just proposed a rule for Effluent Limitations Guidelines and Standards for the Dental Category. 79 Fed. Reg. 63258 (October 22, 2014). The rule will add more federal compliance costs and potential local treatment facility user fees to already tight dental office budgets.

The EPA proposed technology-based pretreatment standards under the Clean Water Act will be for discharges of pollutants into publicly owned treatment works (POTWs) from existing and new dental practices that discharge dental amalgam. Dental amalgam is a mixture of metals, consisting of liquid mercury and a powdered alloy composed of silver, tin, and copper. Approximately fifty percent of dental amalgam is elemental mercury by weight. Dental amalgam is a dental filling material used to fill cavities caused by tooth decay. It has been used for more than 150 years in hundreds of millions of patients.

EPA estimates there are approximately 160,000 dentists working in over 120,000 dental offices who use or remove amalgam in the United States – “almost all of whom discharge their wastewater exclusively to POTWs.” According to the EPA news release, “this is a common sense rule that calls for capturing mercury at a relatively low cost before it is dispersed into the POTW.”

Specifically the rule would require dentists to cut their dental amalgam discharges to a level achievable through the use of the “best available technology,” known as amalgam separators, and the use of other Best Management Practices. Amalgam separators are devices designed to remove amalgam waste particles from dental office wastewater.

As proposed the rule would allow dentists to demonstrate compliance by installing, operating and maintaining amalgam separators. The rule also provides that dental practices whose existing separators do not remove the percentage of amalgam in the proposed requirements as meeting the proposed requirements for the life of the existing separator. The rule also proposes to limit dental dischargers’ reporting requirements to annual certification and recordkeeping in lieu of wastewater monitoring. EPA estimates the annual cost of the proposed rule would be $44 to $49 million.

In response to the proposed rule the American Dental Association said that the “the Association has consulted with the EPA as it developed the rule and supports a reasonable national pretreatment standard for amalgam waste so long as it is not unduly burdensome on dental professionals.” ADA News Release, September 26, 2014.

A public hearing on the proposed rule is scheduled for November 10, 2014, at 1 p.m. ET, in the William J. Clinton East Building, Room 1153, 1201 Constitution Avenue NW., Washington, DC. Comments may be submitted to Docket No. EPA–HQ–OW–2014–0693.

Webinar on Ebola: Workplace Liability Challenges

Posted in Emergency Planning, International, OSHA Compliance

On Friday, October 24th at 12:00 PM CT, Brent Clark, James Curtis, Mark Lies, Meagan Newman, and William Schurgin will present the webinar: Ebola: Workplace Liability Challenges.

There is no doubt that U.S. employers are affected by the recent news of Ebola infections within our borders.  There is also no doubt that anxiety among employers and employees has risen along with that of the general public.  In this webinar our safety and health lawyers will offer insight and guidance regarding the impact of Ebola—covering the real workplace safety and health impacts as well as employment law issues and associated liability concerns including:

  • OSHA and CDC Guidance
  • EEOC and ADA Issues
  • Workers Compensation
  • FMLA
  • Civil Liability

While there is no cost to attend this program, registration is required.