Environmental & Safety Law Update

Pokémon NO: New App Creates Risks For Employers

Posted in OSHA Compliance

By Parnian Vafaeenia and Karla Grossenbacher

KRS IMG_0325-RevSeyfarth Synopsis: Pokémon GO’s popularity is at a fever pitch. However, the game poses several risks for employers including software security, privacy and workplace safety concerns.

Your employees may be on a quest to catch ‘em all. Over 15 million people have downloaded the Pokémon GO game since its release two weeks ago.  In this augmented reality game, players use their mobile devices to catch Pokémon characters in real-life locations captured by the camera in a user’s cellular phone.  Though the game is very popular with Pokémon GO players, employers may not like the game quite so much.

Data And Security Concerns

There are data security concerns that arise from use of the Pokémon GO app.

First, users that want to play Pokémon Go must sign in to the app. There are two ways to do so—through an existing Google account, or through an existing Pokémon Trainer Club Account.  Up until very recently, the Pokémon website did not allow users to sign up for Pokémon Trainer Club Accounts due to overwhelming demand.  Thus, for most people, the only way to play Pokémon GO was by signing in to the app with their Google accounts.  Even though the option to create a Trainer Club Account is now available, doing so requires more time and effort than signing in through an existing Google account.

On Monday July 11, it was discovered that users who signed in through their Google accounts were unwittingly giving Niantic Labs—the developer that created the game—full access to the information in their Google accounts. This included access to email.  The developer insists that it is not actually accessing all of the information in users’ Google accounts and claims that an update that was recently released apparently limited the scope of Niantic’s access.  Nonetheless, for employers who have employees that use Gmail accounts for work purposes, there has been and continues to be risks to information security presented by allowing such employees to play Pokémon GO.

To make matters worse, there is a malicious version of the Pokémon GO program that includes a remote access tool called Droidjack. This tool, which was uploaded to a file sharing service on July 7, can give hackers full control over android users’ phones.  If a Pokémon GO user is playing the game on the phone they use to send work-related communications or on which they store work-related documents, this means that hackers could conceivably access such communications and documents on infected android phones of Pokémon GO users.  This poses risk for employers as well.

Workplace Safety

Employers that have Pokémon GO players in their facilities may also face safety issues. Niantic teamed up with Google Maps to put Pokémon characters in real-life places.  When a Pokémon is nearby, the app informs the player of its location.  Additionally, certain locations such as “gyms” and “poké stops” are hotspots for catching Pokémon.  Certain characters in the game are harder to catch and more highly coveted than others, so finding one of these popular characters nearby often excites players, and they will “hunt” them in a wide variety of physical spaces.

As recent headlines have demonstrated, employees who are focused on the game while walking around work property could be putting themselves in danger of tripping, falling or otherwise injuring themselves while playing. Similarly, employees whose job duties include driving or operating heavy machinery, or whose jobs require them to work in the vicinity of heavy machinery, risk injury to themselves or others if they attempt to play the game during work hours.  Indeed, there may be heightened safety concerns for certain employers in highly regulated environments like healthcare, where patient safety and health could be impacted by a distracted workforce.  Indeed, even employers in the retail industry could suffer if their employees are too distracted to assist customers.

Takeaways

If an employer’s workforce is using company-issued devices, employers can simply disable access to the app on company-owned devices. In fact, some employers have already taken this step.  Though blocking the app on company-owned devices takes care of part of the problem, many employers have BYOD (Bring Your Own Device) programs and will have employees using the same device to perform work and play Pokémon GO. Employers in this situation should consider the following steps:

  • Have employees install encryption software provided by the employer to protect sensitive data and agree to not modify the software;
  • Monitor or prohibit employees from accessing and downloading of external programs, apps and files or specific ones that pose security risks, like Pokémon GO;
  • Review your safety policy to ensure it encompasses activities similar to safety risks associated with Pokémon GO (i.e., limited use of handheld devices in hazardous work areas, etc.);
  • Create guidelines that prohibit employees from playing games such as Pokémon GO during work time (even if it is downtime) and restrict when and where such games can be played on work property during non-work hours.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team or OSHA Compliance, Enforcement & Litigation Team.

Wave of Shootings Puts Workplace Violence Back in the Spotlight

Posted in OSHA Compliance, Workplace Violence

By James L. Curtis and Craig B. Simonsen

iStock_000041284206_MediumSeyfarth Synopsis: DHS’s recommendations for active shooter prevention and preparedness is only one piece of an effective workplace violence prevention program. Employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

With the wave of violence that has gripped the nation this summer, many clients are again asking how best to protect their employees. We had blogged previously about “Workplace Violence Prevention: DHS Promotes “Active Shooter Preparedness” Programs – Is Your Company Ready?” This blog includes an update on this important topic.

The Bureau of Labor Statistics has said in a news release that the number of workplace homicides in 2014 (409) was about the same as the total in 2013. Among the workplace homicides in which women were the victims, the greatest share of assailants were relatives or domestic partners (32 percent of those homicides). In workplace homicides involving men, robbers were the most common type of assailant (33 percent).

The National Institute for Occupational Safety and Health (NIOSH) reports that the magnitude of workplace violence in the U.S. is measured with fatal and nonfatal statistics from several sources. The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries reported 14,770 workplace homicide victims between 1992 and 2012. From 2003 to 2012 over half of the workplace homicides occurred within three occupation classifications: sales and related occupations (28%), protective service occupations (17%), and transportation and material moving occupations (13%).

In response to workplace violence events the DHS had issued its “Active Shooter Preparedness Program.” The Program was intended to enhance preparedness through a “whole community” approach by providing training, products, and resources to a broad range of stakeholders on issues such as “active shooter awareness, incident response, and workplace violence.” The DHS has found that in many cases, “there is no pattern or method to the selection of victims by an active shooter, and these situations are, by their very nature, unpredictable and evolve quickly.”

In key Active Shooter Preparedness research, it was found that in 160 Active Shooter incidents that occurred between 2000 and 2013, the incidents occurred most frequently in areas of commerce (46 %), followed by educational environments (24 %), and government properties (10 %). The materials indicate that an effective active shooter plan will include the following:

  • Proactive steps that can be taken by facility tenants to identify individuals who may be on a trajectory to commit a violent act.
  • A preferred method for reporting active shooter incidents, including informing all those at the facility or who may be entering the facility.
  • How to neutralize the threat and achieve life safety objectives.
  • Evacuation, shelter-in-place, hide, and lockdown policies and procedures for individual offices and buildings.
  • Integration with the facility incident commander and the external incident commander.
  • Information concerning local area emergency response agencies and hospitals (i.e., name, telephone number, and distance from the location), including internal phone numbers and contacts.
  • How operations will be restored.

DHS suggests that after company or facility specific policy and procedures, including an active shooter plan are finalized, training and exercises should occur, with drills and exercises at least annually.

As we noted in our previous blog, employers should review the DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

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

Scrap Processor Sentenced on OSHA Criminal Violation Causing Death of Employee

Posted in Criminal Litigation, OSHA Litigation, White Collar

By Andrew S. Boutros, Benjamin D. Briggs, and Craig B. Simonsen

iStock_000042612884_MediumSeyfarth Synopsis: Companies cannot go to prison, but their executives and managers can when they violate the OSHA laws. And, companies can face stiff fines and other business-disrupting (or ending) collateral consequences for conduct resulting in worker deaths. Make sure that your company’s safety programs and training efforts are “up to snuff” if you wish to avoid OSHA liability.

The U.S. Department of Justice announced this week that a high volume ferrous and nonferrous scrap processor was sentenced to five years’ probation, and ordered to pay restitution of $350,000 to an employee-victim’s estate.  According to the DOJ the employer was also previously ordered to pay a fine of $520,000 in a related administrative OSHA case. See also Sentencing Memorandum, and Stipulation and Settlement Agreement, U.S.A. v. Behr Iron & Steel, Inc., No. 3:16-CR-50015 (June 30, 2016 and July 12, 2016, respectively).

Factually, this employer shredded metals with a shredding machine in the employer’s facility. In the process the shredded pieces fell onto a conveyor belt located underground in a “shredder discharge pit.” The shredded materials were then moved by the conveyor belt out of the discharge pit and through a sorting process. During the process it was not uncommon for some of the shredded metals to fall onto the ground of the discharge pit near the conveyor belt. Employees working on the shredding machine were required to clean the discharge pit on a daily basis. The employees shoveled shredded materials from the floor of the discharge pit onto the running conveyor belt. In March 2014, a company employee was cleaning a discharge pit when the employee’s arm was caught by an unguarded conveyor belt.  The employee was pulled into the machinery and killed.

In the court proceedings, the employer admitted that there was “no lock or operable emergency shut off switch in the discharge pit for the conveyor belt, and the conveyor belt did not have guards designed to protect employees.” The employer also admitted that employees in the discharge pit were “not adequately trained to use the shredder or the conveyor belt, and that the company had not developed and implemented confined space protection for employees entering the discharge pit.”

This case provides a solemn reminder for employers that safety is the responsibility that every employer must embrace with the utmost seriousness. When a knowing failure to fulfill this responsibility leads to a tragic fatality, as it did in this case, employers can find themselves facing not only administrative penalties and civil liability, but potential criminal liability. Companies cannot go to jail, but their executives and managers can. Here, Behr Iron & Steel Inc. received a probationary sentence.  But, under different more egregious circumstances, a company could face even stiffer fines and other business-ending collateral consequences that force it to turn off the lights:  The “corporate death penalty,” as it is known.  The old Benjamin Franklin adage applies equally in OSHA cases:  “An ounce of prevention is worth a pound of cure.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team or the White Collar, Internal Investigations, and False Claims Team.

OSHA Delays Enforcement Date for New Workplace Injury and Illness Reporting Rule

Posted in OSHA Compliance, OSHA Litigation

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

worksafetySeyfarth Synopsis: After a lawsuit was filed against OSHA challenging its May 2016 retaliation and recordkeeping rule, OSHA announced a three month delay in the rule’s effective date.

OSHA announced yesterday that it has delayed the effective date for enforcement of its new rule to Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). “Originally scheduled to begin Aug. 10, 2016, enforcement will now begin Nov. 1, 2016.”

We had blogged about the OSHA’s new rule on drug-testing, retaliation claims, and accident reporting. Then in response to the new rule, and which we blogged yesterday, the National Association of Manufacturers (NAM) and others brought a suit alleging that OSHA’s new rule goes too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016).

In its announcement, OSHA claims that it is delaying enforcement of the anti-retaliation provisions “to conduct additional outreach and provide educational materials and guidance for employers.” No mention is made of the lawsuit, but obviously the timing of OSHA’s announced delay on the heels of the lawsuit is curious.

In the TEXO ABC/AGC lawsuit, the complainant alleges that OSHA is “putting a target on nearly every manufacturer in this country by moving this regulation forward. Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.”

The lawsuit seeks a declaratory judgment finding that the rule is unlawful to the extent that it prohibits or otherwise limits incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs.

We will keep you updated as this issue develops.

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

Business Organizations Sue OSHA Over Workplace Injury and Illness Reporting Rule

Posted in OSHA Compliance, OSHA Litigation

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

iStock_000060649530_MediumSeyfarth Synopsis: A lawsuit has been filed against OSHA challenging its May 2016 retaliation and recordkeeping rule.

We had blogged recently about the OSHA’s new rule on drug-testing, retaliation claims, and accident reporting. Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). In response to the Rule, the National Association of Manufacturers (NAM) and others have brought a suit alleging that OSHA’s new rule goes too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016).

The NAM is joined by national, state, and local business groups and others in challenging the Rule. The NAM Senior Vice President and General Counsel Linda Kelly issued the following statement announcing the challenge to the Rule:

The Department of Labor is putting a target on nearly every manufacturer in this country by moving this regulation forward. Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.

Furthermore, releasing this [injury] information will lead others to make inaccurate conclusions, will open manufacturers up to retaliation and will sacrifice employee and employer privacy. Manufacturers take pride in creating safe workplaces and are supportive of regulations that increase transparency, but this regulation does neither, and we look forward to fighting this in the courts.”

The lawsuit seeks a declaratory judgment finding that the Rule is unlawful to the extent that it prohibits or otherwise limits incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs. The plaintiffs allege that the challenged provisions are unlawful and must be vacated because they exceed OSHA’s statutory authority, and because the “underlying findings and conclusions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.”

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

EPA Updates and Republishes SmartWay Freight Transportation Sustainability Program

Posted in Climate Change, Sustainability, Transportation

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

shutterstock_39448051Seyfarth Synopsis: For companies in the freight industry, if sustainability is important at your company or to its board of directors, then you may wish to investigate the EPA’s updated Smartway program, with its new resources and tools.

The U.S. Environmental Protection Agency’s SmartWay program has recently been updated and republished in a report called Smartway 2020: A New Era of Freight Sustainability, and in a revamping of its Smartway website.

The EPA’s SmartWay program is intended to increase the efficiency of how our nation moves goods, to help address air quality challenges from the transportation supply chain, to improve public health, and to “reduce freight’s contribution to climate change.”

As a partnership between the EPA and the freight industry, participation in SmartWay has grown from fewer than 20 partners in 2004, to more than 3,000 today. According to EPA, since 2004, SmartWay partners have saved over 7 billion gallons of fuel, lowered fuel costs by $24.9 billion, and reduced carbon emissions by 72.8 million metric tons.

EPA’s Smartway Vision 2020 has four elements, including:

  • Coverage of the transportation supply chain through the development of carbon assessment and monitoring tools to cover all modes of freight transport (including truck, train, barge, air, and marine), to leverage national and international efforts to streamline freight data, amplify the program’s reach and reduce freight emissions worldwide.
  • “SmartWay’s carbon accounting tools use peer-reviewed methodologies and EPA standards to generate reliable performance data.”
  • SmartWay serves as a template for other countries and regions that are working to establish partnership-based programs to address freight emissions.
  • “SmartWay will serve as a neutral and credible platform for increased information exchange and thought leadership, including webinars, education, peer review, speaking engagements, partner profiles, case studies and best practices guidance.”

In May 2016 the EPA made available the new “2016 SmartWay Multimodal Tool,” along with supporting documents. As published, carriers are being told that they “must submit a completed and accurate SmartWay Multimodal Tool” to EPA by June 23, 2017, to make sure company data is in the EPA partner database when shippers and logistics companies go looking for providers.

To assist the industry in this campaign, the Agency is providing a Tool Demo Webinar, 2016 SmartWay Logistics Company Tool Demonstration, on July 20, 2016.

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

Maximum Civil Penalties for Violations of Environmental Statutes are now Significantly Higher After Inflation Adjustment

Posted in Environmental Enforcement

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Compliance Concept on İnterface Touch ScreenSeyfarth Synopsis: EPA finalized its new per violation penalty rules that in some cases now increase by substantial amounts.

In a federal rulemaking published last week, the U.S. Environmental Protection Agency (EPA) issued interim final regulations adjusting the maximum civil penalty dollar amounts for violations of various provisions of law. 81 Fed. Reg. 43091 (July 1, 2016).

The recently enacted Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), not only required an adjustment form current penalty maximum levels to account for inflation, but also included a catch-up provision for inflation. That requires each agency to evaluate and provide for an inflation adjustment dating back to the enactment of the relevant statute’s effective date. (Section 5(b)(2)(C) of the 2015 Act provides that the maximum amount of any initial catch-up increase shall not exceed 150 percent of the level that was in effect on November 2, 2015.) See related Implementation of the Federal Civil Penalties Inflation Adjustment Act, OMB Memorandum M-16-06 (February 24, 2016). In addition, beginning January 15, 2017, each agency must make subsequent annual adjustments for inflation.

EPA’s interim final rule revises Table 2 to 40 CFR 19.4, showing the results of the Agency’s calculations and adjustments, that include: (1) the maximum or minimum penalty level established when each statutory section was originally enacted or last adjusted by Congress; and (2) the statutory maximum or minimum civil penalty level, adjusted for inflation under the 2015 Act, that applies to statutory civil penalties assessed on or after August 1, 2016 for violations that occurred after November 2, 2015.

Readers familiar with EPA’s penalty structure know that statutory penalties of $25,000 per day per violation were previously adjusted for inflation to $37,500. With the catch up provision under the interim final rule, the maximum penalty will vary by statute. For example, the $25,000 per violation penalty under the Clean Air Act is now $44,539; under the Clean Water Act is now $44,539; under RCRA is now in a range of $56,467 to $70,117, and under CERCLA (including most EPCRA violations) is now $53,907. Other maximum penalties are also adjusted.

The new civil penalty amounts are applicable only to civil penalties assessed after Aug. 1, 2016, whose associated violations occurred after Nov. 2, 2015.

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

FINAL UPDATE: OSHA Finalizes New Maximum Civil Penalties

Posted in OSHA Enforcement

By Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA finalized a 78% increase to per violation penalties.

In a an interim final rulemaking published last week, the U.S. Department of Labor (DOL) finalized amendments to adjust the maximum civil penalty dollar amounts for OSHA violations. 81 Fed. Reg. 43430 (July 1, 2016).

We previously blogged about potential increases in OSHA penalties on November 3, 2015 and November 18, 2015.

According to OSHA, its maximum penalties, “which have not been raised since 1990, will increase by 78 percent” as follows:

  • Other than Serious violations:             $12,471
  • Serious violations:                              $12,471
  • Repeat violations:                               $124,709
  • Willful violations:                                 $124,709
  • Failure to abate:                                  $12,471 per day beyond the abatement date

Both Repeat and Willful violations will have a statutory minimum of $8,908 per violation. The new OSHA penalty amounts are applicable to OSHA citations issued after Aug. 1, 2016, whose associated violations occurred within the six month statute of limitations.  Hence, employers with ongoing OSHA inspections should expect to wait until August 1, 2016 or after to receive citations using the higher penalties, as long as the inspection commenced on or after February 1, 2016.

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

MSHA Announces Proposed Rule on Mine Examinations

Posted in MSHA Compliance, MSHA Enforcement, MSHA Litigation

iStock_000009254156Large

Seyfarth Synopsis: The proposed MSHA rule would require mine operators to examine their mines and to notify miners of dangerous conditions.

MSHA announced today that it has formally submitted a proposed mine examination rule for publication in the June 8, 2016 Federal Register.  81 Fed. Reg. 36818.

The proposed mine examination rule (RIN:1219-AB87) would require metal and nonmetal mine operators to: (1) examine their facilities before a shift begins; (2) explicitly notify miners of any dangerous conditions found; and (3) record their examinations and establish processes to fix hazards.  The current rule allows operators to examine mines during a shift.

MSHA will gather input on this proposed rule in four meetings to be held in Salt Lake City, UT (July 19), Pittsburgh, PA (July 21), Arlington, VA (July 26) and Birmingham, AL (Aug. 4).

Last year, MSHA chief, Joe Main, stated that tightening mine inspection requirements was one of his highest regulatory priorities.

Supreme Court Sides with Property Owners: Jurisdictional Determination is Reviewable

Posted in Administrative Procedure Act, CWA, Environmental Enforcement, Judicial Review

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

US Supreme Court Capitol Hill Daytime Washington DCSeyfarth Synopsis: The Supreme Court decided that Army Corps’ jurisdictional determinations are judicially reviewable. This decision leaves open the question of whether other types of administrative decisions are immediately judicially reviewable.

In a significant victory for owners of private property, the Supreme Court of the United States (SCOTUS) decided this week that an Army Corps of Engineers (Corps) jurisdictional determination (JD) is a final agency action judicially reviewable under the Administrative Procedure Act (APA).  U.S. Army Corps of Engineers v. Hawkes Co., Inc., et al., No. 15-290, 578 U.S. ____ (May 31, 2016).

The issue presented was whether a so-called “approved” jurisdictional determination — the government’s determination that a wetland is regulated under the Clean Water Act (CWA) thereby requiring a permit to dredge or fill — is immediately reviewable. The Hawkes decision builds on the holding of Sackett v. EPA, 132 S. Ct. 1367 (2012) (see our earlier blog on the Sackett decision) where SCOTUS concluded that an EPA compliance order issued under the CWA requiring that a developer cease its filling activity of an allegedly regulated wetland was judicially reviewable. SCOTUS rejected the Government’s contention that the landowner has to await EPA’s judicial enforcement of that order.

Following Sackett, the Circuit Courts of Appeal have split as to whether a landowner receiving a JD finding the wetland to be CWA-regulated is final and reviewable — with the Eighth Circuit holding yes, and the Fifth Circuit holding no.

In Hawkes, the plaintiffs sought to mine peat from wetland property. The Corps upset that plan when it issued an approved JD that the property constituted “waters of the United States” (WOTUS), requiring the plaintiffs to obtain a permit to discharge dredged or fill materials into these “navigable waters.” Approved JDs present a definitive statement that waters of the United States are, or are not, present. The Corps also issues “preliminary” JDs that only tell a landowner that waters of the United States “may” be present. Preliminary JDs were not at issue in this case. An approved JD is binding upon the Corps and EPA. For example, where the JD concludes that a CWA-regulated wetland is not involved, it provides the landowner with a “safe-harbor” for five years, under which it is free to develop its property without need to obtain a permit. For this reason, SCOTUS concluded that the JD affects the plaintiffs’ rights and obligations and has legal consequences, making it reviewable.

This SCOTUS determination could have heightened importance in the context of the EPA’s and the Corps’ recent release of the Final Clean Water Rule: Definition of “Waters of the United States.” We blogged about this new rule when it was published. The new WOTUS rule will substantially increase the number of potential wetlands, making a challenge to the Corps’ Jurisdictional Determinations more likely now that SCOTUS has decided that they are judicially reviewable.

The Hawkes decision also leaves open questions of whether other types of administrative decisions are immediately judicially reviewable. In a related Law360 Expert Analysis (Water Case Shows Justices Warm To Review Of Fed. Agencies), Andy Perellis notes that “there is potentially a universe of agency actions such as guidance documents or opinion letters that in the past have evaded judicial review that may be reviewable because those agency determinations have immediate consequences.”