Environmental & Safety Law Update

International Employers Watch Out: China Will Assign Hefty Fines for Worker Safety Violations

Posted in China, International, OSHA Compliance

By Wan Li, Brent I. Clark, and Craig B. Simonsen
According to Cai Renjun, an official from the People’s Republic of China, Legislative Affairs Commission, of the National People’s Congress Standing Committee, “about 70,000 people died in work safety cases last year, [with] about 60,000 of them in road accidents.” Policy Watch, China Daily (August 26, 2014).

Under new amendments, adopted August 31, 2014, by the Standing Committee of the National People’s Congress, to the Law on Work Safety, employers that are responsible for employment related accidents could be fined as much as 20 million yuan ($3,231,000). The law, which was adopted in August, and became effective on December 1, 2014, also provides that businesses that produce and transport dangerous products and operate mines must employ full-time “qualified safety engineers” to take charge of work safety issues, and the safety engineers are to be reported to the local government. In addition employers may be fined up to one million yuan if they use uncertified safety equipment, and refuse to rectify the situation, in high-risk industries such as mining and the storage of dangerous materials. The fine was previously 50,000 yuan.

Cai Renjun, in the Policy Watch article, cited to a couple of other examples of industries that will be regulated under the amended safety law. For instance, a fire killed 121 people at a poultry plant in Jilin province in June 2013. In August this year a blast at a wheel hub polishing workshop in Kunshan, Jiangsu province, killed 75 people and injured more than 180. “A preliminary investigation found that the explosion was caused by excessive metal dust in the workshop igniting.”

To enforce the new law, government agencies are authorized to take compulsory measures, including “cutting the electricity supply,” if companies refuse to improve their safety procedures. In summary overview, the amendments focus on toughening laws against companies and “persons in charge” of worker health and safety responsibilities.

International employers would be wise to look into their operations in the People’s Republic of China, to ensure compliance with these new amendments. Besides the now large fines and penalties for worker safety incidents, businesses may now also anticipate the facility power being unilaterally shut down — so proceed with any negotiations and discussions with government officials very carefully.

New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries

Posted in Alternative Energy, Chemical Safety, OSHA Compliance

By Brent I. Clark and Craig B. Simonsen

OSHA has just released a new Safety Bulletin on “Hydraulic Fracturing and Flowback Hazards Other than Respirable Silica” (OSHA 3763-12 2014).

Hydraulic fracturing involves pumping large volumes of fluid blended with proppant and chemicals at pressures necessary to fracture a “hydrocarboncontaining formation.” According to OSHA, each year, an estimated 35,000 wells are hydraulically-fractured in the U.S. Since the oil and gas extraction industry as a whole has a relatively “higher fatality rate compared to most of the U.S. general industry” OSHA has prepared and published this Safety Bulletin for hydraulic fracturing and flowback operations to “educate and protect workers.”

The Safety Bulletin provides this “Simplified Flow Sheet for Hydraulic Fracturing and Flowback Processes”:

 

Appendix A, Safety Bulletin at page 35.

The Safety Bulletin sets out and divides the primary tasks and issues associated with hydraulic fracturing and flowback, listing hazard information, and provides suggestions for “prevention strategies.” Analysis is provided for:

  • Hazards during transport, rig-up, and rig-down
  • Hazards during mixing and injection
  • Hazards during pressure pumping
  • Hazards during flowback operations
  • Hydrogen sulfide (H2S) and volatile organic compounds (VOCs)
  • Employer responsibility to protect workers

The Appendix D is especially interesting, providing a chart analysis of “Potential Hazards Related to the Job Steps of Hydraulic Fracturing.” Safety Bulletin at page 38-41.

Employers in these industries are encouraged to review this new OSHA publication. You may be sure that OSHA inspectors that visit your projects sites will have an active knowledge of this information, and will be looking to see if “prevention strategies” have been implemented. Employer policies and training materials may need to be updated to ensure that liabilities may be minimized.

EPA Wants Your Chemicals to be Designated as Safer Chemical Ingredients

Posted in Chemical Safety, Green Marketing

By Meagan Newman and Craig B. Simonsen

The EPA, in an effort to expand the number of chemicals and functional-use categories on its  Safer Chemical Ingredients List (SCIL), is inviting chemical manufacturers to submit their chemicals for review and listing.

The SCIL includes chemicals that have met EPA safety criteria developed by the Design for the Environment Program (DfE). Currently there are about 650 chemicals on the Safer Chemical Ingredients List, but the Agency is seeking to grow that number through this expansion effort.

The EPA developed these “Steps to Listing on SCIL”:

 

http://www.epa.gov/dfe/howtoscil.

The safer chemical ingredients for use in DfE-labeled products presently fall into these categories:

  • Chelating Agents
  • Colorants
  • Defoamers
  • Enzymes and Enzyme Stabilizers
  • Fragrances
  • Oxidants and Oxidant Stabilizers
  • Polymers
  • Preservatives and Antioxidants
  • Processing Aids and Additives
  • Solvents
  • Specialized Industrial Chemicals
  • Surfactants
  • Uncategorized

These SCIL categories reflect the DfEs “substantial work on cleaning, maintenance, and related products.” Now the DfE would like to encourage innovation in other ingredient classes and product sectors. “Of particular interest are personal care products, as well as institutional/industrial formulations, like those for lubricants and adhesives.”

Chemicals that qualify for listing on Safer Chemical Ingredients List must meet the Criteria for Safer Chemical Ingredients, and would then be eligible for use in products that carry the Safer Product Label, with some exceptions. To see the full Safer Chemical Ingredients List, this Excel spreadsheet is available from EPA.

Applicants for SCIL must fully disclose the chemical(s) in the chemical product under consideration to EPA’s DfE and to a qualified third-party profiler. The third-party profiler will compile hazard information on each chemical and include structure, physical-chemical properties, human health and environmental toxicology, and regulatory status.

For a chemical that would be the first ingredient in a component class or category, EPA suggests the manufacturer request a DfE consultation to “discuss the broader product/ingredient context” (e.g., the chemical and functional parameters of the class, the relationship to other component classes, product types, any hazard or use issues surrounding the class, and the opportunities for further innovation).

This notice may represent an opportunity for manufactures to present their products in new and valuable — Green — ways. Applicants, though, are cautioned to first investigate the likelihood for DfE listing, and any potential downside or liabilities that might be raised in making the “Green” claims.

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.