Environmental & Safety Law Update

New Guidance for “Recommended Practices” to Protect Temporary Workers

Posted in Investigations/Inspections, OSHA Compliance

By Meagan Newman, Brent I. Clark, and Craig B. Simonsen

The Occupational Safety and Health Administration and the National Institute for Occupational Safety and Health released yesterday their “new” guidance for “Recommended Practices” to protect temporary workers’ safety and health, for staffing agencies and host employers. DHHS No. 2014-139 (August 25, 2014).

This new guidance comes on the heels of OSHA’s Memorandum to Regional Administrators on OSHA’s “Policy Background on the Temporary Worker Initiative.” OSHA Administrator Dr. David Michaels said about the Recommended Practices guidance that “an employer’s commitment to the safety of temporary workers should not mirror these workers’ temporary status.” “Whether temporary or permanent, all workers always have a right to a safe and healthy workplace. Staffing agencies and the host employers are joint employers of temporary workers and both are responsible for providing and maintaining safe working conditions.” Emphasis added.

In a virtual shopping list, these are the Recommended Practices as provided in the new guidance:

  • Evaluate the Host Employer’s Worksite.
  • Train Agency Staff to Recognize Safety and Health Hazards.
  • Ensure the Employer Meets or Exceeds the Other Employer’s Standards.
  • Assign Occupational Safety and Health Responsibilities and Define the Scope of Work in the Contract.
  • Injury and Illness Tracking.
  • Conduct Safety and Health Training and New Project Orientation.
  • Injury and Illness Prevention Program.
  • Maintain Contact with Workers.

In instructions on these listed practices the Agencies specify that staffing agencies need not become “experts on specific workplace hazards.” However at the same time staffing agencies rather should determine “what conditions exist at the worksite, what hazards may be encountered, and how to best ensure protection for the temporary workers.”

When feasible, the guidance declares, the agency-host contract should clearly state which employer is responsible for specific safety and health duties. “The contract should clearly document the responsibilities to encourage proper implementation of all pertinent safety and health protections for workers.”

Note that on injury and illness tracking the guidance states that “both the host employer and staffing agency should track and where possible, investigate the cause of workplace injuries.” This guidance is given even though OSHA only requires that injury and illness records be kept by the employer who is providing “day-to-day supervision, i.e., controlling the means and manner of the temporary employees’ work.”

In addition, the guidance indicates that “host employers should provide temporary workers with safety training that is identical or equivalent to that provided to the host employers’ own employees performing the same or similar work.”

While the Agencies indicate that “unless otherwise legally required, these recommendations are for the purpose of guidance and in some cases represent best practices,” host employers and staffing agencies may be certain that this new guidance will be the yard stick that OSHA inspectors use to evaluate their policies, training programs, and work sites.

OSHA Annual Review of State OSHA Programs

Posted in OSHA Enforcement

By James L. Curtis and Craig B. Simonsen

The Occupational Safety and Health Administration has recently released its FY 2013 Comprehensive Federal Annual Monitoring Evaluation (FAME) Reports.

The FAME Reports include OSHA’s evaluation of the twenty seven approved State Plans each fiscal year. According to federal OSHA’s Reports, penalties proposed by state workplace safety and health regulators continue to lag behind penalties proposed by the federal OSHA. A Bloomberg BNA analysis indicates that “when inspections were conducted, just six states cited serious, willful or repeat violations at the same rate or higher than federal OSHA’s average – 2.04 violations per inspection.” States Aren’t Meeting Inspection Goals, Issue Too Few Citations, OSHA Reviews Find, 162 DLR A-8 (August 21, 2014). In other words, federal OSHA’s “goal” for the state plan states is to have them issue more citations with higher penalties.

The state OSHA programs include: Alaska, Arizona, California, Connecticut (partial), Hawaii, Illinois (partial), Indiana,  Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Jersey (partial), New Mexico, New York (partial), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands (partial), Washington, and Wyoming.

Employers in these twenty seven state OSHA programs take note. Federal OSHA continues to pressure the state plans to increase enforcement activities.

DHS Proposing to “Mature” Chemical Facility Anti-Terrorism Standards Program

Posted in Chemical Safety, Emergency Planning, OSHA Compliance

By James L. Curtis and Craig B. Simonsen

The Department of Homeland Security (DHS) has published an Advance Notice of Proposed Rulemaking (ANPR) intended to “mature” the Chemical Facility Anti-Terrorism Standards (CFATS) program, and to identify ways to make the program more effective in achieving its regulatory objectives. 79 Fed. Reg. 48693 (August 18, 2014).

The CFATS program was intended to identify and regulate high-risk chemical facilities to ensure that they have security measures in place to reduce the risks associated with those chemicals. Many of the regulated facilities are part of the chemical sector – which employs nearly “one million people and earns revenues between $600 billion and $700 billion per year.” Other facilities with high-risk chemicals include “universities, oil and natural gas operators, and hospitals.”

This ANPR is part of an effort highlighted by a U.S. Environmental Protection Agency, U.S. Department of Labor, and the Department of Homeland Security recent publication of their first joint Report for the President, entitled “Actions to Improve Chemical Facility Safety and Security – A Shared Commitment,” published under the August 2013, Executive Order 13650. The EO was intended to enhance the safety and security at chemical facilities and reduce risks associated with hazardous chemicals to owners and operators, workers, and their neighboring communities. We previously blogged about the U.S. EPA’s Request for Information on its Clean Air Act Accidental Release Prevention Program, and about the U.S. DOL’s Request for Information on “Modernization” of OSHA’s PSM Standard. This CFATS program ANPR is the third prong action under the President’s EO.

In a recent blog, Caitlin Durkovich, the DHS Assistant Secretary for Infrastructure Protection, commented that “the CFATS program is an important part of our nation’s counterterrorism efforts as we work with our industry stakeholders to keep dangerous chemicals out of the hands of those who wish to do us harm. Since the CFATS program was created, DHS has actively engaged with industry to identify and work with high-risk chemical facilities to ensure they have security measures in place to reduce the risks associated with the possession of chemicals of interest. While there is still work to be done, DHS to date has approved nearly 1,000 facility site security plans and the pace to approve and inspect facilities continues to improve.”

Initially DHS had issued CFATS as an interim final rule. 72 Fed. Reg. 17688 (April 9, 2007). In November 2007, the Department adopted as Appendix A to CFATS (72 Fed. Reg. 65396) a final list of over 300 “Chemicals of Interest” (COI) that were listed as posing “significant risks to human life or health if released, stolen or diverted, or sabotaged.” Publication of the Appendix A list of COI brought the CFATS interim final rule into “full effect.”

Under the rules facilities that were initially determined by DHS to be “high-risk” needed to complete and submit a Security Vulnerability Assessment (SVA). If DHS made a final determination that a facility was high-risk, then that facility would be required to submit a Site Security Plan (SSP) for DHS approval. DHS points out in a fact sheet that “more than 48,000 preliminary assessments [(Top-Screens)] were reviewed by DHS from facilities with Chemicals of Interest. 3,986 facilities are currently covered by CFATS….  1,838 Security Plans [are] authorized.” DHS has now notified more than 8,895 facilities that they have been initially designated as “high-risk” and are now required to submit SVAs.

Generally, through this ANPR, the DHS is inviting interested persons to submit written comments, data, or views on how the current CFATS regulations might be improved. Specifically, DHS is asking for comments on the following topics:

  1. The information submission processes (i.e., the Top-Screen, SVA, and SSP submissions) and associated schedules;
  2. The means and methods by which facilities claim a statutorily exempt status and whether or not commenters think that deletions, additions or modification to the list of exempt facilities should be considered;
  3. The use of Alternate Security Programs in lieu of SVAs and, in particular, the current limitation on the use of Alternate Security Programs in lieu of SVAs to Tier 4 facilities;
  4. The, scope, tier applicability and processes for submitting and reviewing SSPs and Alternate Security Programs;
  5. The processes for submitting and evaluating requests for redetermination by chemical facilities previously determined by DHS to be high-risk; and
  6. The issuance of orders and the regulatory enforcement process.

Written comments on the ANPR are due on October 17, 2014.

Unsubstantiated Product Claims Bring Substantial Civil Penalties

Posted in Environmental Compliance, Environmental Enforcement, Green Marketing, Product Liability

By Philip L. Comella and Craig B. Simonsen

The U.S. Environmental Protection Agency recently ordered an orthotic shoe insert manufacturer to pay over $210,000 in civil penalties for making “unsubstantiated antimicrobial claims” about their orthotic shoe inserts – resulting in the sale and distribution of an unregistered pesticide, a violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 

This case follows an earlier proceeding, with similar facts, where another shoe product manufacturer agreed to pay a $230,000 civil penalty. The Agency noted at that time that “we’re seeing more and more consumer products making a wide variety of antimicrobial claims.” “Whether they involve shoes or other common household products, EPA takes these unsubstantiated public health claims seriously.” (Emphasis added).

Under FIFRA, products that “claim to kill or repel bacteria or germs” are considered pesticides. As such, those products must be registered with the EPA prior to distribution or sale. Generally, the EPA will not register a pesticide until it has been tested to show that it will not pose an unreasonable risk when used according to the label directions.

The possible presence of microorganisms, such as bacteria, fungi, and viruses, in or on consumer products is a common concern for manufacturers and consumers alike. In response to this concern, many products today are being treated with antimicrobial pesticides. Antimicrobial pesticides are “substances or mixtures of substances used to destroy or limit the growth of microorganisms, whether bacteria, viruses, or fungi – many of which are harmful-on inanimate objects and surfaces.” (See Fact Sheet).

At issue in these cases is the “treated articles exemption” under FIFRA. 40 CFR 152.25(a). The provision exempts a treated article from regulation under FIFRA if the treatment protects the article or substance itself.  At times a manufacturer claim may suggest that the product contains a chemical that kills human pathogens as opposed to protecting the product against such things as deterioration or odors.  In those instances – where a public health claim is made about the product – the treated articles exemption does not apply, and the substance is subject to regulation under FIFRA. 

For example, the claim that a shoe component “contains an antimicrobial agent to control odors” is acceptable because it is a statement about the product itself, while a claim that the product “kills pathogenic bacteria” is not acceptable because it can be read as a public health claim. Therefore, in sum, manufacturers that add antimicrobial pesticides to their products need to be careful about whether any product claims are directed only to the product or to the public health as well.

In Stunning Finding OSHA Concludes that Record Keeping Proposal Could Motivate Employers to Under-Record Injuries and Illnesses

Posted in Investigations/Inspections, OSHA Compliance

By James L. Curtis and Craig B. Simonsen

In a stunning finding, after public hearings, OSHA has concluded, based on “many stakeholders expressed concern,” that its illness reporting requirements proposal “could motivate employers to under-record injuries and illnesses.” 79 Fed. Reg. 47605 (August 14, 2014).

As we noted in an earlier blog (OSHA Shame Game Continues: Its Plan to Publish Injury Rates For Employers With Over 250 Employees), the underlying proposed rule would amend OSHA recordkeeping regulations to add requirements for the electronic submission of injury and illness information that employers are required to keep under OSHA recording and reporting regulations. Under current regulations, employers with eleven or more employees are required to keep and maintain OSHA 300, 300A, and 301 injury and illness logs that document work-related injuries. Though an employer is required to post its 300A summary form at the workplace from February 1st through April 30th every year, it is not required to make the 300A form public or provide any employee injury and illness information to the public. In fact, doing so may run afoul of various state and federal laws, including HIPAA, the ADA, and the FMLA.

The OSHA proposed rule provides that employers with more than 250 employees would be required to file electronic injury and illness reports to OSHA on a quarterly basis, in addition to whenever OSHA requests such information. Through this rulemaking OSHA intends to also make an employer’s electronic injury and illness reports, including the current 300, 300A, and 301 forms, minus the injured employee’s name and identifying information, available over the Internet to the general public.

As a result, third parties of all kinds, including employees, community activists, and plaintiff’s attorneys would be able to access injury and illness information and could use that information to demand concessions, protest an employer’s activities, or bring lawsuits against the employer.

Now, since public hearings on the proposal have been held, OSHA is suggesting that the “proposal could promote an increase in workplace policies and procedures that deter or discourage employees from reporting work related injuries and illnesses. These include adopting unreasonable requirements for reporting injuries and illnesses and retaliating against employees who report injuries and illnesses.” To “protect the integrity of the injury and illness data,” OSHA is now considering adding provisions that will make it a violation for an employer to discourage employee reporting in these ways.

Much like an Advance Notice of Proposed Rulemaking, but actually late in the rulemaking proceeding, OSHA is now asking whether to amend the proposed rule to: 1) require that employers inform their employees of their right to report injuries and illnesses; 2) more clearly communicate the requirement that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome; and 3) provide OSHA an additional remedy to prohibit employers from taking adverse action against employees for reporting injuries and illnesses.

To facilitate discussion on this “late innings” added proposal modification, OSHA is extending the comment period again. Public comments, including comments on the OSHA’s new provisions to “protect the integrity of the injury and illness data,” are due on October 14, 2014.

NLRB Memo on OSHA and Wage and Hour Referral Policy and Procedures

Posted in Investigations/Inspections, OSHA Enforcement, OSHA Litigation

By Kerry M. Mohan, James L. Curtis, and Craig B. Simonsen

Anne Purcell, Associate General Counsel of the National Labor Relations Board (NLRB), recently issued an “Operations-Management” Memorandum on “Procedure in Cases Involving Potential OSHA and Wage and Hour Issues.” Memorandum OM 14-77 (August 8, 2014).

We had blogged earlier this year when the Occupational Safety and Health Administration (OSHA) Administrator, Dr. David Michaels, issued a Decision on Referring Untimely 11(c) Complainants to the National Labor Relations Board (Decision), OM-14-60 (May 21, 2014). That Decision directed that “OSHA will notify all complainants who file an untimely OSHA retaliation charge of their right to file an unfair labor practice charge over the same conduct with the NLRB.” Purcell noted that “conversely, there may be occasions during the processing of an NLRB charge where it would also be appropriate to apprise the charging party or a witness of his or her right to contact OSHA and/or the Wage and Hour Division (WHD) of the Department of Labor to discuss the filing of a complaint with those agencies.” Memorandum OM 14-77 therefore is intended to supplement OSHA’s OM 14-60, by outlining the circumstances of referrals and procedures that Board personnel should utilize in sending potential claimants to OSHA or the WHD.

The NLRB Memorandum directs that if the Region believes that an employer may have violated a substantive or anti-retaliation provision of the Occupational Safety and Health Act or the Fair Labor Standards Act (FLSA), the “Board agent should notify the charging party that he or she (or their representative) has the right to file a complaint with OSHA or WHD, respectively.” Emphasis added. The Memorandum is very helpful in this regard, spelling out for its staff:

WHD’s contact information can be found on the web at http://www.dol.gov/whd/america2.htm. Contact information for OSHA’s Regional Offices may be found online at https://www.osha.gov/html/RAmap.html. OSHA retaliation complaints may also be filed electronically at https://www.osha.gov/whistleblower/WBComplaint.html.

Board agents should invoke the procedures under this memorandum only where they believe that a possible violation of the OSH Act or the FLSA presents itself. To aid this analysis, quick reference guides for both statutes can be found on the OSHA website (entitled “OSHA At A Glance”) and on the WHD website (entitled “Basic Information”).

This top-down enhancement of NLRB’s enforcement programs and activities, pushing otherwise failed cases over to OSHA and the WHD for litigating, is something that employers should note. Again, when it’s over, it may not be over.

Ninth Circuit Puts the Brakes on CERCLA Settlement Process

Posted in CERCLA, Environmental Litigation

By Andrew H. Perellis and Patrick D. Joyce

The Ninth Circuit Court of Appeals recently held that a district court must provide deeper scrutiny to Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §9601 et seq. (1980), consent decrees.

The August 1, 2014 decision in State of Arizona v. Ashton Company Inc. Contractors and Engineers, et al., No. 12-15691 (9th Cir. August 1, 2014) changes what had previously been a virtual rubber stamp of approval into a significant hurdle to speedy CERCLA settlements.  The case addressed liability of several potentially responsible parties (PRPs) under CERCLA and the Arizona Water Quality Assurance Revolving Funds (WQARF). The State of Arizona was seeking recovery of cleanup costs resulting from the contamination of the Broadway-Patano Landfill Site, a hazardous waste site in Tucson, Arizona.

After an investigation that ended in 2009, the State sent settlement offers to those PRPs who had requested early settlement and were also de minimis parties.  The proposed settlement agreements required each settling party to pay a specified amount in exchange for a release of liability under CERCLA and WQARF.

The State initiated the lawsuit to receive judicial approval of the proposed settlement agreements.  However, several non-settling PRPs moved to intervene in the case, objecting to the proposed settlement agreements.  The intervenors argued the State had not provided enough information to the district court to allow the court to make an decision on whether the proposed settlement agreements were fair and reasonable and consistent with CERCLA’s objectives.

The district court approved the proposed settlement agreements, deferring to the Arizona Department of Environmental Quality’s (ADEQ) judgment that “the public interest is best served through entry of th[e] agreement[s].” State of Arizona v. Ashton Company Inc. Contractors and Engineers, et al., No. 10-634 (D. Az. February 21, 2012). The Ninth Circuit Court of Appeals partially reversed the district court’s decision, saying the court had failed to independently scrutinize the terms of the settlements, as required under CERCLA.

Traditionally, early consent decrees have been used as a way to remove de minimis parties from litigation so the court can focus on determining liability for those PRPs who were more involved at a site.  Making a liability determination is not typically a speedy process, as liability is not based solely on the mass or volume of waste provided.  Rather, more complex factors are often taken into consideration including: concentration of hazardous substances contributed, type of hazardous materials contributed, knowledge of effects on the environment, and whether disposal was done in good faith.

In reversing the district court, the Ninth Circuit found the district judge had given too much deference to ADEQ’s assurances that the settlements were fair and reasonable.  Further, the Ninth Circuit criticized the district court for not even discussing the amount each settling PRP would pay.  Rather, the district court merely found the settling PRPs were de minimis because ADEQ calculated their liability to be between 0.1% and 0.2% of the total $75 million cost.  The Ninth Circuit found that a state agency such as ADEQ (unlike U.S. EPA) was not entitled to deference concerning its interpretation of CERCLA, a federal statute, and the district court “may not abdicate its responsibility to independently determine that the agreements are fair, reasonable, and consistent with CERCLA’s objectives.”

After Arizona v. Ashton, to satisfy the Ninth Circuit’s mandate for deeper scrutiny of settlement agreements, the settling parties will now have to provide a suitable record showing that the allocation underlying the settlement is appropriate.  Requiring increased judicial scrutiny of CERCLA settlements is particularly appropriate in light of CERCLA’s provision giving contribution protection to settling parties.  A non-settlor who ultimately pays more than its fair-share of liability has no recourse against parties that have settled and enjoy contribution protection.  As such, judicial scrutiny of whether a settlement is appropriate mitigates against early settlors getting a ‘sweetheart deal.”

Got an OSHA Citation? Watch Out! – Obama Legislates “Fair Pay and Safe Workplaces” With Executive Order

Posted in OSHA Compliance

By Kerry M. Mohan and Craig B. Simonsen

As part President Barack Obama’s “Year of Action,” on July 31st he signed an Executive Order (EO) on “Fair Pay and Safe Workplaces” that requires prospective federal contractors to disclose labor law violations, and will provide “federal agencies guidance on how to consider labor violations when awarding federal contracts.” 79 Fed. Reg. 45309 (August 5, 2014).

The EO was issued with much fanfare, which may be seen in the video of the President’s signing ceremony. The Whitehouse indicates that “by cracking down on federal contractors who break the law, the President is helping ensure that all hardworking Americans get the fair pay and safe workplaces they deserve.” Fact sheet, July 31, 2014.  According to Secretary of Labor Tom Perez, “the new process aims to bring more companies into compliance, not to keep them from winning federal contracts. It imposes minimal burdens on the vast majority of companies who play by the rules.” Work in Progress Blog: Cheaters Shouldn’t Win.

Paul Kehoe and Lawrence Lorber have prepared a separate Client Alert on this EO that provides insight as to the ramifications of this action. “Coming in 2016 — More Burden For Federal Contractors Courtesy of The President’s July 31, 2014 Executive Order.” The Client Alert concludes that “while this Executive Order will not impact contractors immediately given the realities of the rulemaking process, this is one more burdensome reporting and compliance requirement from the White House impacting the procurement process which is already criticized as hidebound and non-responsive and of which stakeholders need to be cognizant.”

The Whitehouse, in its announcement, alleges that “while the vast majority of federal contractors play by the rules, every year tens of thousands of American workers are denied overtime wages, not hired or paid fairly because of their gender or age, or have their health and safety put at risk by corporations contracting with the federal government that cut corners. Taxpayer dollars should not reward corporations that break the law, so today President Obama is cracking down on federal contractors who put workers’ safety and hard-earned pay at risk.” The EO seeks to eliminate such corner cutting.

Key Provisions of the Executive Order

The Executive Order will govern new federal procurement contracts valued at more than $500,000. It will require information to be submitted on companies’ compliance with federal labor laws. The Executive Order is to be implemented on “new contracts in stages, on a prioritized basis, during 2016.” Whatever that means? To consider the extent of the potential impact this EO may have, the Department of Labor estimates that there are roughly “24,000 businesses with federal contracts, employing about 28 million workers.”

Key provisions of the EO, in summary include:

  • Agencies will require prospective contractors to disclose labor law violations from the past three years before they can get a contract.  The fourteen covered federal statutes and equivalent state laws include those addressing wage and hour, safety and health, collective bargaining, family and medical leave, and civil rights protections.  Agencies will also require contractors to collect similar information from many of their subcontractors.
  • Contracting officers will take into account only the “most egregious violations.” Each agency will designate a senior official as a “Labor Compliance Advisor” to provide consistent guidance on whether contractors’ actions rise to the level of a lack of integrity or business ethics.
  • Federal agencies risk poor performance by awarding contracts to companies with a history of labor law violations.
  • The federal contracting community and other interested parties will be invited to participate in “listening sessions” to share views on how to ensure implementing policies and practices are both “fair and effective.”
  • “Companies with labor law violations will be offered the opportunity to receive early guidance on whether those violations are potentially problematic and remedy any problems.  Contracting officers will take these steps into account before awarding a contract and ensure the contractor is living up to the terms of its agreement.”
  • Directs companies with federal contracts of $1 million or more not to require their employees to enter into predispute arbitration agreements for disputes arising out of Title VII of the Civil Rights Act, or from torts related to sexual assault or harassment (except when valid contracts already exist).
  • Requires contractors to give their employees information concerning their hours worked, overtime hours, pay, and any additions to or deductions made from their pay.
  • Directs the General Services Administration to develop a single website for contractors to meet their reporting requirements.

In response to the EO, the Associated Builders and Contractors (ABC) issued a statement that concludes that “President Obama’s executive order is yet another example of politically motivated executive overreach that will end up harming taxpayers and the economy in the long run.”

This EO provides an example of how important it is to contest a proposed OSHA citation when issued by the Agency. Merely accepting the citation, for instance, if it is seen as “not very important” or because it is a low dollar penalty proposed, can leave the company open to repeat violations – when they could have been resolved by contesting. Don’t let the company fall into a position where its “labor law violations” cause it to loose contracts — especially if the violations could have been contested and “deleted.”

OSHA and the Federal Motor Carrier Safety Administration Agree to Coordinate Responses to Whistleblower Complaints By Private Commercial Motor Vehicle Drivers

Posted in OSHA Compliance, Transportation, Whistleblower

By Ada W. Dolph and Craig B. Simonsen

Since 2010, OSHA has made a concerted effort to coordinate enforcement of whistleblower complaints with affiliated agencies. (See our past blog about OSHA’s coordination with the FDA here).  OSHA continues in this effort, recently announcing that it has entered into a Memorandum of Understanding (MOU) with the Federal Motor Carrier Safety Administration (FMCSA) to coordinate enforcement of the Surface Transportation Assistance Act (STAA)’s whistleblower anti-retaliation and anti-coercion provisions, found at 49 U.S.C. §§ 31105, 31136(a)(5).

The STAA protects private-sector drivers of commercial motor vehicles (CMVs) and individuals who directly affect CMV safety or security from discharge, discipline, or discrimination for engaging in “protected activities,” which include:

  • Filing a complaint or beginning a proceeding related to a violation of a CMV safety or security regulation, standard, or order, or testifying in such a proceeding;
  • Refusing to operate a vehicle because the operation violates a regulation, standard, or order of the United States related to CMV safety, health, or security, or the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition;
  • Accurately reporting hours on duty;
  • Cooperating with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; or
  • Furnishing information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any federal, state, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with CMV transportation.

The STAA’s anti-coercion provisions preclude a motor carrier, shipper, receiver, or transportation intermediary from coercing a driver to operate a CMV in violation of CMV safety regulations, CMV driver regulations, or hazardous materials transportation regulations.

New coordination efforts include that upon receiving a whistleblower complaint, the FMCSA will inform the complainant that “a personal remedy for retaliation is available through OSHA, rather than FMCSA, and that the individual should personally contact OSHA,” within 180 days of the alleged retaliation.  In turn, OSHA will notify FMCSA of any complaint alleging STAA retaliation, including in instances where the complaint has been withdrawn because of a settlement.  OSHA will also provide complainants who raise FMCSA-specific safety allegations (such as willful disobedience of “the hours of service rules”) with the FMCSA hotline number and email address.  The agencies also agree to share information in their respective databases upon request and within just two (2) business days.

CMV employers should be on alert because increased coordination between OSHA And the FMCSA will likely result in an increase in whistleblower and coercion complaints.

For more information, please contact a member of the Whistleblower team or your Seyfarth attorney.

EPA Request for Information on Clean Air Act Accidental Release Prevention Program

Posted in CAA, Chemical Safety, Emergency Planning, Environmental Compliance

By Jeryl L. Olson and Craig B. Simonsen

The U.S. Environmental Protection Agency, in response to Executive Order 13650, Improving Chemical Facility Safety and Security (EO), is publically, through a Federal Register notice, requesting public comments on “potential revisions” to its Risk Management Program. 79 Fed. Reg. 44604 (July 31, 2014).

This request is part of an effort highlighted in a recent publication of the EPA, the U.S. Department of Labor, and the Department of Homeland Security’s first joint Report for the President, entitled “Actions to Improve Chemical Facility Safety and Security – A Shared Commitment,” published under the August 2013, Executive Order 13650. The EO was intended to enhance the safety and security at chemical facilities and reduce risks associated with hazardous chemicals to owners and operators, workers, and their neighboring communities.

The new information request by EPA follows an earlier December 2013 OSHA Request for Information on “Modernization” (which Request for Information was also a public request through a Federal Register Notice) of OSHA’s PSM Standard, also in response to Executive Order 13650. In its Request for Information, OSHA requested comments (78 Fed. Reg. 73756) both from regulated facilities specifically, but also generally from the public (including first responders, potentially impacted employees and their representatives, and neighboring communities). Information was requested on potential revisions to OSHA’s Process Safety Management (PSM) standard, its Explosives and Blasting Agents standard, its Flammable Liquids standard, its Spray Finishing standard, and potential changes to its PSM enforcement policies.

Now, nearly a year after the publication of the President’s EO, and half a year after OSHA’s Request for Information, comes EPA with its thirty page Request for Information directed both facilities that produce, handle, process, distribute, or store greater than a threshold quantity of any listed toxic or flammable extremely hazardous substance regulated under EPA’s Risk Management Program (section 112(r) of the Clean Air Act), but also generally from the public (including again, first responders and neighboring communities). EPA is asking for “information and data on specific regulatory elements and process safety management approaches, the public and environmental health and safety risks they address, and the costs and burdens they may entail.”

As with the OSHA RFI, although the EPA Request for Information is directed in part at specific entities, it is not being sent directly to specific companies; rather EPA is soliciting information though a Federal Register notice. The Agency indicates that it will consider the information it receives, and then decide what, if any, further action is necessary at that time.

Public comments and information submittals, in this Docket, EPA–HQ–OEM–2014–0328, are due on October 29, 2014.