Environmental & Safety Law Update

OSHA Implications Under the NLRB’s New Expansive Definition of Joint Employer

Posted in OSHA Compliance

By Meagan Newman, Ilana R. Morady, and James L. Curtis

Safety at workLast week on our Employer Labor Relations Blog we wrote about a recent ruling of the National Labor Relations Board in the Browning-Ferris Industries (BFI) case that vastly expanded the definition of joint employer.

The case involved two companies, BFI and Leadpoint. Under a contract with BFI, Leadpoint supplied employees to BFI to perform various work functions including cleaning and sorting of recycled products. Using a greatly expanded legal definition, the Board found the two companies to be “joint employers.” Under the Board’s newly expanded test, two or more otherwise unrelated employers may be found to be a “joint employer” of the same employees under the National Labor Relations Act “if they ‘share or codetermine those matters governing the essential terms and conditions of employment’.” The Board’s ruling will have a significant impact on many business relationships. It greatly expands the types and number of entities that can be held responsible for unfair labor practice violations and who may be held to have collective bargaining obligations regarding employees of a totally separate, independent employer.

The Board’s decision may also expand OSHA liability. Under OSHA’s multi-employer policy an employer can already be cited for hazards to other employers’ employees if OSHA finds that the employer controls the hazard or is responsible for creating the hazard or correcting the hazard. Accordingly, “controlling employers” already faced potential OSHA liability. However, the BFI decision may allow OSHA to further expand controlling liability under the OSH Act to employers who really have little or no actual “control” over workplace safety. For example, OSHA appears intent on using the BFI decision to expand OSHA liability to franchisors when franchisees have been found to have violated the Act. OSHA is already pushing this agenda in a number of ongoing inspections.

Any employer that utilizes franchise agreements should carefully consider the potential impact of the BFI decision on their potential OSHA liability.

IFA Seeks OSHA Explanation of Applying a New Joint Employer Standard

Posted in Investigations/Inspections, OSHA Compliance

By James L. Curtis, Craig B. Simonsen, and Ronald J. Kramer

iStock_000018878893_HiResThe International Franchise Association (IFA) has filed a Freedom of Information Act (FOIA) request with the Occupational Safety & Health Administration (OSHA) asking for the rationale behind questions that its inspectors are asking franchise owners, which appear designed to establish joint employer relationship between franchisors and local franchisee small business owners.

The FOIA request is extensive, spanning four pages of detailed document requests. For instance, the IFA FOIA request asks for correspondence between the U.S. Department of Labor (DOL) and OSHA officials, the National Labor Relations Board (NLRB), and the Service Employees International Union (SEIU), which the IFA alleges has been engaged in a three year, $50 million corporate campaign (“Fight for 15”) to destroy the legal separation between franchise businesses and to grow union membership.

OSHA’S questions appear to go hand-in-hand with the NLRB’s recent Browning-Ferris decision. In a blog about it in our Employer Labor Relations Blog we note that the NLRB with its decision has “refined its standard for determining joint-employer status. The revised standard is designed ‘to better effectuate the purposes of the Act in the current economic landscape.’  With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.”

In light of the NLRB’s stunning new interpretation, IFA Vice President of Government Relations, Public Policy & Counsel, Elizabeth Taylor, says that “the Labor Department is conducting a witch hunt that, at a minimum, exceeds the statutory authority afforded to the OSHA by Congress. At worst it is engaged in a conspiracy to destroy the franchise model in cooperation with the Service Employees International Union and the supposedly-independent unelected bureaucrats at the National Labor Relations Board and its General Counsel.”

The FOIA request indicates that IFA members have reported that OSHA investigators have been requesting extensive documentation during investigations that far exceed normal OSHA procedure, and exceed the statutory authority of OSHA. OSHA, IFA believes, has done so at the direction of the DOL. Some of the requests are for documents detailing the business relationship between the franchisor and the franchisee and have nothing to do with the franchisors direct involvement in the safety issues at local restaurants.

These questions appear to suggest OSHA may already be pursuing the expanded definition of joint employer, as it applies to the franchisor/franchisee relationship, put forth in the Browning-Ferris decision.

Proposed Rule for Methane and VOC Controls in Oil and Gas Industry

Posted in Alternative Energy, Environmental Compliance

By Patrick D. Joyce and Craig B. Simonsen

pumpjack, West Texas, cottonwood treeThe U.S. EPA announced earlier this week a proposed rule to reduce emissions of greenhouse gases (GHG) and volatile organic compounds (VOC) from the oil and natural gas industry. The proposal is nearly 600 pages long. Proposed rule (August 18, 2015).

The proposed rule will add methane to the list of gasses regulated at new, modified, and reconstructed equipment at completed hydraulically fractured oil and gas well sites, compressor stations, and processing plants. The proposed rule also expands the regulation of VOCs to cover certain existing sources such as storage tanks, pneumatic controllers, compressors, and fugitive emissions in ozone nonattainment areas.

The oil and gas industry has expressed concern that the proposed regulations will hurt productivity and points out that the industry has already taken great strides to reduce methane emissions at well sites.

We had previously blogged about the Administration’s goal, under the President’s Climate Action Plan, to cut methane emissions from the oil and gas sector to 40 to 45 percent below 2012 levels by 2025. EPA indicated that methane is the second most prevalent greenhouse gas emitted in the United States “from human activities,” and that nearly “30 percent of those emissions come from oil production and the production, transmission and distribution of natural gas.” Pound for pound, methane’s impact on the environment is 25 times greater than carbon dioxide.

The proposed standards will affect certain new, modified, and reconstructed equipment, processes and activities, and are “based on practices and technology currently used by industry.” To cut methane and VOC emissions, the proposed rule requires:

  • Finding and repairing leaks;
  • Capturing natural gas from the completion of hydraulically fractured oil wells;
  • Limiting emissions from new and modified pneumatic pumps; and
  • Limiting emissions from several types of equipment used at natural gas transmission compressor stations, including compressors and pneumatic controllers.

The Agency’s fact sheet on the proposed rule indicates that the rule is “a step estimated to yield a 95 percent reduction in VOCs, and a similar methane reduction as a co-benefit.”

In addition to the proposed rule, the Agency also issued a 310 page Control Techniques Guidelines for the Oil and Natural Gas Industry (Draft). EPA-453/P-15-001 (August 2015). The fact sheet provides guidance to states for the regulation of VOCs in ozone nonattainment areas and the mid-Atlantic and northeastern states in the Ozone Transport Region.

The Agency will accept public comment on the proposed rule for 60 days after the publication in the Federal Register.

OSHA Updates Emphasis Program on Amputations – Cites Employer and Places It on Severe Violators List

Posted in Investigations/Inspections, OSHA Compliance, OSHA Enforcement

By Brent I. Clark and Craig B. Simonsen

White Square Button with Arm AmputeeLast week OSHA issued its updated National Emphasis Program on Amputations (NEP). Instruction CPL 03-00-019 (June 30, 2015). Take that juxtaposed against OSHA’s citation in a recent case where on his first day on the job a 21-year-old employee suffered severe burns and the loss of four fingers.

National Emphasis Program on Amputations

The NEP, which was first issued in 2006, was targeted toward industries with high numbers and rates of amputations. In the updated NEP, OSHA has used updated enforcement data and Bureau of Labor Statistics (BLS) injury data to better direct its inspection site selection targeting. According to OSHA, manufacturing employers report that 2,000 workers suffered amputations in 2013. The BLS rate of amputations in the manufacturing sector was “more than twice as much (1.7 per 10,000 full-time employees) as that of all private industry (0.7).”

In the NEP announcement the OSHA Administrator Dr. David Michaels said “this directive will help ensure that employers identify and eliminate serious workplace hazards and provide safe workplaces for all workers.” The NEP applies to general industry workplaces in which any machinery or equipment likely to cause amputations are present. Inspections “will include an evaluation of employee exposures during operations such as: clearing jams; cleaning, oiling or greasing machines or machine pans; and locking out machinery to prevent accidental start-up.”

The NEP lists out the more than ninety 2012 NAICS code industries that will fall under the enhanced inspection regime. The industries fall within a large scope, including those such as dairy, meat processing, bakeries, food manufacturing, wood industries, paperboard, printing, plastics, concrete, metals, arms and munitions, farm implements and equipment, power generation and transmission equipment, laboratory equipment, vehicle manufacturing, and household equipment and furniture.

Recent Case Example

Just last week OSHA issued a citation against a plastics manufacturer where on his first day on the job a 21-year-old employee suffered severe burns and the loss of four fingers. According to OSHA, its “inspectors found the company failed to train the employee about safety requirements that protect workers from machine hazards. [The company] also failed to report the injury to the agency, as required.” In response to the incident, the company was given a proposed penalty of $171,270, and it was placed in the Severe Violator Enforcement Program (SVEP).

While we only have OSHA’s version of the facts, the scenario is illustrative of how OSHA views training for new employees. For instance, the citation claims that the employer failed to train the employee about safety requirements that protect workers from machine hazards. The employee was out on the shop floor, on his first day, attempting to dislodge a jam in a machine. OSHA expects employers to carefully train new employees and take extra caution to ensure they are safe. Employers should consider whether their new employee training and orientation is appropriate given the hazards and complexity of the job.

In addition to the penalty, being placed on OSHA’s SVEP will put the employer in a position where it will be subject to increased inspections over many years. Making the case to have the company removed from the SVEP will be a time consuming and expensive process, and may not be successful under OSHA’s one-sided procedures.

In another teaching moment, once the amputation had occurred, especially now since the adoption and implementation of OSHA’s revised reporting rules, the company allegedly “failed to report the injury to the agency.” Employers need to have reviewed the new OSHA reporting rules and determined the applicability as to their business. Don’t wait for an incident to think about whether or not you need to report. Figure it out now while you are not under a potentially expensive time clock.

EPA Proposes Significant Change to Controlling Landfill Gas Emissions

Posted in Alternative Energy, Brownfields, Climate Change, Environmental Compliance, RCRA

By Philip L. Comella

Today, the U.S. Environmental Protection Agency issued two proposed rules lowering the threshold at which landfills must control methane gas emissions.

For active landfills, EPA proposes to reduce the threshold from 50 metric tons of non-methane organic compounds annually to 34 metric tons. As a practical matter, this means that roughly 100 active landfills – with emissions over 34 metric tons but under 50 metric tons — would have to install a gas collection and control system in accordance with 40 CFR Part 60, subpart WWW. The proposal would also require closed landfills that exceed 50 metric tons of emissions per year to install a control device.

At the same time, the Agency also issued a supplemental proposed rule lowering the emission threshold for new landfills from 40 metric tons per year (as it proposed in 2014) to 34 metric tons.  This reduction is based on the Agency’s position that the lower threshold is achievable at a reasonable cost.

These reductions will affect not only the compliance obligations of smaller landfills but may also have an impact on eligibility for greenhouse gas credits or other environmental attributes.

We will provide a more complete evaluation of the proposals soon.

Avoiding Disputes Down the Road: The Top Ten Problems With Landfill Gas Contracts

Posted in CAA, Landfill Gas, RCRA

Ecology Earth concept word collagePhilip Comella, in a recently published article, writes about how everyone in the landfill gas industry knows how contracts are a necessary evil.

The parties understandably focus on the engineering aspects of the design; how many wells and engines to install; how to increase or extend gas production; how the gas production translates into revenue; the status of carbon credits or RECs; or any number of benefits that will result from a successful project. Contracts, however, serve not only to define the rights and obligations of the parties in performing the project, but they also serve to clarify the responsibilities of the parties if something goes wrong.

For more information on ten of the key problems that arise in performing under a landfill gas contract, and to see some sample contract provisions to help avoid them, see Phil’s full article, “Avoiding Disputes Down the Road: The Top Ten Problems With Landfill Gas Contracts.”

Workplace Violence – Putting Employers on the Horns of a Dilemma

Posted in Investigations/Inspections, OSHA Litigation, Workplace Violence

By Mark A. Lies, II and Craig B. Simonsen

shutterstock_171692768Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplaces. Two recent cases illustrate the competing liabilities that employers face in their decision-making as to how to respond to workplace violence.

In one case, decided by the United States Court of Appeals for the Ninth Circuit, the employer, a superalloys casting company, chose to fire an openly hostile employee making death threats to avoid potential injury to its employees, and face the prospect of costly litigation including an Americans with Disabilities Act (ADA) lawsuit.

In the other case, decided by an Occupational Safety and Health Review Commission (OSHRC) Administrative Law Judge, a healthcare company did not perceive or protect a social service coordinator, who was tragically fatally stabbed outside the client’s home, from the hazard of workplace violence.

Employer Response to Violence Upheld

In the first case the plaintiff appealed from the Federal District Court’s grant of summary judgment in favor of his former employer on his claim of discrimination in violation of Oregon disability law. Mayo v, PCC Structurals, Inc., No. 13-35643 (9th Cir. July 28, 2015) (Mayo).

The District Court concluded that because the plaintiff, Timothy Mayo, had threatened to kill his co-workers, including his supervisor, he was not a “qualified individual” under section 659A.112 of the Oregon Revised Statutes, which is Oregon’s counterpart to the Americans with Disabilities Act (ADA). The District Court indicated that in following the decisions of numerous other Circuit Courts, Mayo was no longer a “qualified individual” once he made his “violent threats.” Because Mayo was not a qualified individual in the eyes of the court, he was not “entitled to protection under the ADA and Oregon’s disability discrimination statute.”

In its discussion affirming the lower court decision, the Circuit Court of Appeals found that even if the plaintiff were disabled (which it assumed was true for the appeal), “he cannot show that he was qualified at the time of his discharge. An essential function of almost every job is the ability to appropriately handle stress and interact with others.” For instance, in a frightening recitation of the court record, the plaintiff told a co-worker that he “‘fe[lt] like coming down [to work] with a shotgun an[d] blowing off’ the heads of the supervisor and another manager. The co-worker need not worry, Mayo explained, because she would not be working the shift when the killing would occur.”

After these statements were reported to company management a timely investigation was conducted. Written statements were obtained from co-employees regarding the threats. When the plaintiff was asked by management if he planned to carry out these threats, the plaintiff responded that “he couldn’t guarantee he wouldn’t do that.” The company management immediately suspended the plaintiff’s employment, barred him from company property, and notified the police.

After the plaintiff’s suspension and being interviewed by the police, he was voluntarily admitted to the hospital because he was deemed to pose a danger to himself and to others. He remained in custody for six days, and then took a leave under the Oregon Family Leave Act (OFLA) and the Family and Medical Leave Act (FMLA) for two months. Near the end of his leave period, a treating psychologist cleared him to return to work, writing that he was not a “violent person,” but recommended a new supervisor assignment. While the parties dispute the timing, the employer decided to terminate the plaintiff during his medical leave. The company determined that his threats were of such severity that he was unqualified to work with any supervisors or co-employees and that it could not expose its employees to potential workplace injury.

In response the plaintiff brought this case, seeking damages. The District Court granted the employer’s motion for summary judgment, and the Circuit Court of Appeals affirmed.

Employer Response to Threatening Conduct Found Inadequate

In the second case, an Occupational Safety and Health Review Commission (OSHRC) Administrative Law Judge, Dennis L. Phillips, issued an opinion that a healthcare company did not protect a social service coordinator, who was fatally stabbed outside her client’s home in December 2012. Secretary of Labor v. Integra Health Management, Inc., OSHRC No. 13-1124 (June 22, 2015) (Integra).

The employer in this case, Integra Health Management, Inc. (Integra), provided mental and physical health assessments and coordinated healthcare/case management services for insureds of insurance companies. One of its employees was a 25 year old newly- hired Service Coordinator (SC) with about three months on the job. The employee had no prior experience in the community health or social worker industries. The employee did not have an office at the company but instead worked out of her home. She also used her computer, a phone, and car to travel to client’s homes.

In October 2012, the employee planned to drive out into the field to a client’s apartment, to make an unscheduled visit. The client was a diagnosed schizophrenic, who was on the employee’s list of clients, known as “members,” for which she was responsible. The client had a history of violent behavior, and had been convicted of violent crimes and incarcerated for many years. The employee was not advised about the client’s history of mental illness or violent behavior when he was assigned to her. The employee had made several attempts to contact the client by telephone, which were unsuccessful.

As planned, the employee visited the client in October 2012 by going to his house unannounced. She introduced herself and the company and arranged a return visit to conduct an initial assessment. The employee reported in her progress note report for that day that during their conversation, the client “said a few things that made [her] uncomfortable, [she] asked [the client] to be respectful or she would not be able to work with him.” She also documented in her progress note report that “[b]ecause of this situation, [she] is not comfortable being inside alone with [the client] and will either sit outside to complete assessment or ask another SC to accompany her.”

A number of subsequent meetings and conversations occurred between the employee and the client including further notes in the employee’s progress note report regarding her concerns. In December 2012, the employee was fatally stabbed by the client during her visit to his home.

Following the incident the Occupational Safety and Health Administration (OSHA) issued two citations to Integra Health Management, Inc., claiming a violation of the General Duty Clause, section 5(a)(1), of the OSH Act, and a violation of OSHA’s injury reporting standard. Specifically, the General Duty Clause citation alleged that the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were exposed to the hazard of being physically assaulted by clients with a history of violent behavior.

The Judge determined that the employer’s workplace violence policy was inadequate, that the employee training was insufficient, that the employer failed to provide the employee with information about the medical background of the client, as well as the criminal history. More importantly, the Judge determined that the employer did not monitor the employee’s progress notes which identified her concerns about the client and did not take affirmative action to assist her when she indicated her continuing anxiety about their interactions.

What are the Legal Ramifications that Employers Should Consider?

In Mayo the employer took steps to protect its employees from threatened harm by conducting a timely investigation, suspending and eventually terminating the aggressive and threatening employee. The company’s actions forced it to respond to discrimination claims under the ADA that initially were filed in state court, and removed to federal court. While the employer prevailed in the District Court and Circuit Court, the company undoubtedly spent considerable sums defending the suits. While this litigation was very time consuming and expensive, the employer avoided a tragic outcome.

Unfortunately in Integra the employer did not respond to or take any actions to address any sense of fear or anxiety mentioned in the employee’s client visit notes. A serious OSHA violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. The Judge found that the healthcare company’s approach to safety was inadequate, and that the company should have taken precautions to prevent injury by developing a meaningful written policy, hiring and training its employees appropriately and responding to complaints in a timely manner. While the company only faced an OSHA fine of $7,000 in proposed penalties for the General Duty Clause violation, it sustained the tragic loss of an employee, as well as a worker’s compensation death suit.

Recent OSHA Guidance

The Mayo decision may give some sense of security to those employers that make hard choices for what it believes are the right reasons, that is, for employee safety. But choices are not always easy, and the resulting actions can be costly.

The Integra decision is timely in view of another recent OSHA action relating to the healthcare industry. Recently OSHA released an “Inspection Guidance for Inpatient Healthcare Settings,” that will focus its inspectors attention to workplace violence, musculoskeletal disorders, bloodborne pathogens, tuberculosis, and slips, trips, and falls. The Guidance focuses on hazards that were included in OSHA’s recently-concluded National Emphasis Program on Nursing and Residential Care Facilities, CPL 03-00-016.

Particularly, the Guidance indicates that workplace violence is defined as violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty. OSHA notes that workplace violence is a recognized hazard in hospitals, and in nursing and residential care facilities. According to OSHA, in the healthcare and social assistance sector, 13 percent of the injuries and illnesses were the result of violence. “Fifteen percent of the days-away-from-work cases for nursing assistants were the result of violence.” Accordingly, workplace violence will be evaluated in every inpatient healthcare OSHA inspection.

While the inspection Guidance is for “inpatient” healthcare settings, employers in other industries can be certain that they will also be inspected by the same OSHA inspectors as healthcare workplace violence incidents occur, regardless of the setting, including non-healthcare workplaces as well. The Guidance was effective immediately. The Guidance noted that “because these hazards are nationwide, State Plans are expected to follow the guidance.”

Healthcare employers should take heed of this healthcare industry OSHA decision and the related Guidance. Special attention should be taken to update your policies, procedures, and training systems to include these topics in order to be inspection ready.


Against this potential liability scenario, an employer must develop an effective written workplace violence policy which must be communicated to all employees if it hopes to have any defense against these potential claims and to prevent a tragic incident. At a minimum, the written workplace violence prevention policy should include the following elements:

  • Stated management commitment to protecting employees against the hazards of workplace violence, including both physical acts and verbal threats;
  • Statement that the employer has a “zero tolerance” policy toward threats or acts of violence and will take appropriate disciplinary action against employees who engage in such conduct;
  • Identify means and methods for employees to notify the employer of perceived threats of violent acts in a confidential manner;
  • Establish a means to promptly investigate all such threats or violent acts;
  • Develop consistent, firm discipline for violations of the policy;
  • Provide training for managers and employees to identify signs and symptoms of employee behavior which may predict potential violence (erratic behavior; employee comments regarding homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; physical evidence of employee abuse of alcohol or drug use) which should be reported immediately to the employer;
  • Establish a team of qualified individuals (e.g., human resources; risk managers; legal; medical; security) either within the company or readily available third parties, to respond to a potential or actual incident; and
  • Consider establishing an Employee Assistance Plan (EAP) to provide assistance to employees who may be experiencing mental or emotional stress before an act of violence occurs.

If you have any questions regarding this article, please contact any of the authors, or your Seyfarth attorney.

Multinationals in China Should be Aware of Increased Enforcement of Environmental Law, Monitoring Requirements – and Fraud

Posted in China, Environmental Compliance

By Wan Li, Andrew H. Perellis, and Craig B. Simonsen

China map icon with a recycle iconIn the last twelve months the Ministry of Environmental Protection (MEP) in the People’s Republic of China (PRC) has been remarkably vocal about environmental law, monitoring, and fraud, especially under the new environmental law and supplemental measures.

For instance, the MEP announced on June 16, 2015, that it had organized local branches that were responsible for the monitoring of pollution sources to “intensify the supervision and inspection on the operation and management status of automatic monitoring facilities” and to bring to justice any identified “environmental offences including fraudulent monitoring data….” The announcement was made to trumpet the MEP’s efforts to enforce the new revised environment protection law, and its crack down on monitoring data fraud.

In the MEP announcement, Zou Shoumin, the Director General of Environmental Supervision and Inspection Bureau, provided details for numerous examples of fraud cases. To illustrate the severity of these cases, in one example, the company received a penalty of 1.45 million yuan (about $233,000) and had confiscated one million yuan (about $160,000) of its incompliance deposit. In the same incident, a manager who was in charge of the company’s environmental protection and the manager who was heading the company’s instrument department were both subjected to a “7-day administrative detention,” because of the company’s “willful modification of online monitoring data.”

In another announcement from the MEP, it was proclaimed that in a legal explanation issued by the PRC Supreme People’s Court, “polluters will be held accountable for any discharge, even if it is within national or local standards, that causes damage.” According to the announcement, as an incentive for companies to expedite costly modifications to reduce pollutants, a daily penalty system was introduced with no limit set on fines. More than that, polluting enterprises will be “named and shamed.” Reiterating the country’s seriousness as to environmental violations, the Chinese Premier, Li Keqiang, said in March, that “polluters will pay a price ‘too high to bear’ for their illegal acts.”

In another announcement to demonstrate the seriousness of these issues, it was noted that there was an “urgent requirement for taking strong measures to crack down on environmental violations.” Under the revised environmental law and supplemental measures the MEP will be adopting stronger measures to “substantially aggravate the punishment.” Continuous daily fines, seizure and distrainment of property, restricted production, suspension for rectification, and administrative detention or individual managers are among the tools that the MEP will now use to enforce the environmental laws.

Multinational businesses and industries that have interests and facilities in China may wish to examine the extent of any potential liability for their holdings, especially since the “polluters will be held accountable for any discharge, even if it is within national or local standards.”

EPA Adopts Significant Revisions to Underground Storage Tank Regulations

Posted in Environmental Compliance, RCRA

By Philip L. Comella and Craig B. Simonsen

iStock_000049177646MediumThe U.S. Environmental Protection Agency has promulgated significant new provisions both to its 1988 underground storage tank (UST) regulations and to its 1988 state program approval (SPA) regulations. 80 Fed. Reg. 41566 (July 15, 2015). This is the first major revision to the federal UST regulations since 1988.

The revisions to the UST technical regulations found in 40 CFR part 280 increase the EPA’s emphasis on “properly operating and maintaining UST equipment.” EPA has added new operation and maintenance requirements and addressed UST systems deferred in the 1988 UST regulation. The changes include:

  • Adding secondary containment requirements for new and replaced tanks and piping.
  • Adding operator training requirements.
  • Adding periodic operation and maintenance requirements for UST systems.
  • Adding requirements to ensure UST system compatibility before storing certain biofuel blends.
  • Removing past deferrals for emergency generator tanks, airport hydrant systems, and field-constructed tanks.
  • Updating codes of professional practice.

The 2015 state program approval amendments update the SPA requirements found in 40 CFR part 281, and incorporate the changes to the UST technical regulation found in 40 CFR part 280. Thirty-eight SPA states and the District of Columbia and Puerto Rico currently have SPA status and have three years to reapply in order to retain their SPA programs.

Useful and related tools provided by the Agency are a “Comparison of 2015 Revised UST Regulations and 1988 UST Regulations,” a “Red Line Strikeout of 40 CFR part 280 and 40 CFR part 281,” and its revised and updated “Musts For USTs” guidance document.

Facilities with regulated USTs should review carefully the new regulations to ensure their systems, processes, procedures, and training materials and systems are compliant with newly applicable requirements.

The final rule is effective October 13, 2015.

OSHA Seeks Work-a-Round to Issuing Citations for Recordkeeping Violations More Than Six Months Old

Posted in Investigations/Inspections, OSHA Enforcement, OSHA Litigation

By Ilana R. Morady and Craig B. Simonsen

Construction Inspector 4OSHA, through a rulemaking, is seeking to build a work-a-round to a D.C. Circuit Court of Appeals opinion on issuing citations for recordkeeping violations that are more than six months old. 80 Fed. Reg. 45116 (July 29, 2015).

We had blogged previously about the D.C. Circuit Court of Appeals opinion in AKM LLC v. Secretary of Labor, 675 F.3d 752, 2012 WL 1142273 (DC Cir., 2012). In that case the Occupational Safety and Health Administration (OSHA) had issued certain recordkeeping citations and penalties for alleged errors on an OSHA 300 log more than six months after the alleged erroneous entries were made on the log. The Court found that that the citations were untimely, and were vacated.

The question before the Court in AKM LLC was whether the Occupational Safety and Health Act’s (OSH Act) recordkeeping requirement, in conjunction with the five-year regulatory retention period, permits OSHA to subvert the OSHA Act’s six-month statute of limitations. Because the Act says that “[n]o citation may be issued . . . after the expiration of six months following the occurrence of any violation,” 29 U.S.C. § 658(c), the Court agreed with the employer, Volks Constructors (Volks), that the citations were untimely, and vacated them.

OSHA had cited and fined Volks for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006, which was at least six months after the last unrecorded injury occurred.

The Court in AKM LLC summed it up this way: “The Act clearly renders the citations untimely, and the Secretary’s argument to the contrary relies on an interpretation that is neither natural nor consistent with our precedents. The petition for review is granted and the citations are vacated.” This AKM LLC decision had raised serious questions about OSHA’s ability to issue citations for past violations, not only under the recordkeeping standard, but under other OSHA standards as well.

In response, now OSHA is proposing to amend the recordkeeping regulations to “clarify” that the duty to make and maintain accurate records of work-related injuries and illnesses would be an ongoing obligation for five years after a record should have been made on the log. “The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so.”

Under the AKM LLC decision, employers who have been cited for recordkeeping violations that occurred more than six months before OSHA issued the citation have had a viable statute of limitations defense. OSHA’s proposed rule threatens that defense and is inconsistent with the AKM LLC finding that “nothing in the [OSH Act] suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years.”

Written comments on the proposed rule are due to OSHA Docket No. OSHA–2015–0006 on September 28, 2015.