Environmental & Safety Law Update

OSHA Head Says OSHA Will Lower Whistleblower’s Burden of Proof in Investigations

Posted in OSHA Enforcement, Whistleblower

By Brent I. Clark, Ada W. Dolph, and Craig B. Simonsen

In remarks before its Whistleblower Protection Advisory Committee, OSHA Administrator Dr. David Michaels said that he will lessen the whistleblower’s burden of proof in investigations.

Dr. Michaels spoke at the September 3, 2014 Whistleblower Protection Advisory Committee meeting. In his introduction, he noted that from 2009 through June 30, 2014, OSHA has issued 3,726 merit determinations, “recovering over $119,000,000 in damages for whistleblower complainants, and reinstated 389 whistleblowers to their positions.” In fact, “in the first three quarters of this year, we’ve already issued 602 merit determinations and awarded approximately $21.5 million in damages to whistleblower complainants.” Dr. Michaels asserted that from 2009 through June 30, 2014, OSHA more than doubled the number of complaints OSHA found to have merit (from 450 in FY2009 to 934 in FY2013). A real question, of course, is whether this extraordinary increase in merit findings by OSHA was actually warranted by the facts of those cases.

Apparently, though, there were not enough complaints that were found to have merit by OSHA’s investigators, as the Administrator believes that the burden of proof in whistleblower investigations was just too high. “We are working on a new policy memo clarifying the Agency’s position regarding burden of proof in whistleblower investigations. The memo will change the burden of proof to be based on a ‘reasonable cause’ that a violation occurred, which is a lesser burden to prove than a ‘preponderance of the evidence.’ OSHA and the office of the Solicitor of Labor are working on this policy memo and it should be completed shortly.”

While the burden of proof in whistleblower cases is a legal standard prescribed in the 21 statutory provisions for whistleblower protections that OSHA administers, including OSHA 11(c), STAA, AIR21, and SOX, Dr. Michaels believes that OSHA should lower the burden needed before OSHA can find a case has merit. The natural consequence of such policy change will be even more cases being found to have merit by OSHA.

Of course, what Dr. Michaels and OSHA cannot change is the actual burden of proof that the courts are required to apply under each statute. If OSHA is constantly using a lower burden of proof to screen and evaluate cases, regardless of the statute, it seems they may be headed for trouble if and when they get to court.

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

EPA Inspector General Finds Issues with EPA’s “Design for the Environment” Program

Posted in Chemical Safety, Environmental Compliance, Sustainability

By Ilana R. Morady and Craig B. Simonsen

The U.S. Environmental Protection Agency’s Office of Inspector General has just released a report on an evaluation of the EPA’s “Design for the Environment” (DfE) Program. At A Glance, No. 14-P-0349 (September 9, 2014). The Inspector General found flaws in the current DfE logo, including that it improperly implied an EPA endorsement.

Since its establishment over fifteen years ago the EPA’s Design for the Environment Program has evaluated and approved more than 2,500 products to carry the DfE logo. In 2014 the EPA updated the “Safer Chemical Ingredients List” adding over 50 chemical ingredients and bringing the number of safer chemical ingredients to about 650. The DfE Program has also developed a new database system that the Agency suggests will enable it to better manage chemical, partner, and product information in a cloud-based system.

Issues the Inspector General found are that the current DfE logo does not adequately communicate to the consumer that the product is a safer product. The Inspector General also found a risk that an EPA endorsement of DfE products may be implied by the current logo, but any such EPA endorsement is not allowed. The EPA also “lacks sufficient controls over the use of its DfE logo” by former program participants.

The Inspector General also found that the EPA asserts that DfE products are cost effective, “but this has not been determined or reviewed.” In addition, “there are weaknesses in both former and proposed performance measures used by the DfE program” and EPA cannot accurately determine the program’s impact on pollution prevention.

To solve the issues with the DfE Program, the Inspector General recommended that EPA improve the DfE logo, periodically review program participants’ compliance with partnership agreements, address noncompliance with those agreements, remove statements on the EPA’s website that imply that DfE products are cost effective, and develop a performance measurement system.

The EPA has already published a notice seeking comments on four new possible re-designs for the DfE logo.

In the announcement, Jim Jones, the Assistant Administrator for Office of Chemical Safety and Pollution Prevention, says that the Agency “wants to hear from the American people on which designs will help people identify household cleaning and other products that are safer for families and the environment.” Jones specifically asks the public: “What is most appealing to you? What best conveys the concept of safer products for your family’s health? What are your thoughts on the words, graphic, colors and shapes?”

No doubt that industry — and public — input will be important in the re-design of the DfE logo.

Comments on the proposed DfE labels will be accepted until October 31, 2014.

OSHA’s on Your Flight Too: OSHA and FAA Adopt Memorandum of Understanding on Joint Policy for OSHA Standards for Aircraft Cabin Crewmembers

Posted in FAA, OSHA Compliance

By Kerry M. Mohan and Craig B. Simonsen

The Occupational Safety and Health Administration and the Federal Aviation Administration have just adopted a Memorandum of Understanding (MOU) to implement their joint policy that will allow OSHA to enforce its bloodborne pathogen, hazard communication, and hearing conservation standards in aircraft cabins during flight operations (not including the flight deck crew).

The Memorandum is the culmination of a process previously announced by OSHA and the FAA in November 2012. “FAA Proposes Policy To Improve Flight Attendant Workplace Safety.” In its announcement of the proposed change at that time the FAA said that “under this proposal, flight attendants would, for the first time, be able to report workplace injury and illness complaints to OSHA for response and investigation.” OSHA suggested that the policy would “improve the flying experience of millions of airline passengers.”

With this policy, along with hazard communication (29 CFR § 1910.1200), exposure to blood-borne pathogens (29 CFR § 1910.1030), and hearing conservation (29 CFR § 1910.95), OSHA asserts its authority over aircraft cabin safety issues related to record-keeping (29 CFR Part 1904) and access to employee exposure and medical records (29 CFR § 1910.1020). OSHA continues to have responsibility to investigate employee complaints of discrimination for engaging in protected activity related to safety or health in the workplace under section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c). Investigations of employee complaints of discrimination for providing information about alleged violations of FAA requirements or of any federal law relating to air carrier safety are also OSHA’s responsibility under section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. § 42121.

Under the Memorandum the FAA will continue to exercise its statutory authority over all other working conditions of aircraft cabin crewmembers while they are on an aircraft in operation, as well as the occupational safety and health of flight deck crew while they are on an aircraft in operation.

Specifically under the Memorandum the FAA and OSHA have agreed that:

  • OSHA will respond to and investigate complaints or referrals through its phone and fax procedure in the first instance.
  • OSHA anticipates that it will respond to and investigate complaints or referrals without needing to inspect any aircraft in operation.
  • OSHA and FAA intend to meet and review the implementation of the policy statement on a semi-annual basis over the next two years.

Additionally, the Agencies have agreed that if either receives a Freedom of Information Act request which the other believes there are responsive records maintained by the other, they will, to the extent practicable, refer that request to the other agency for it to respond to directly. In those cases, the agency making the referral will notify the requestor that a referral has been made and that a response will issue directly from the other agency.

This is yet another example of OSHA expanding the scope of its reach to areas previously beyond its jurisdiction.

Please contact the authors or your Seyfarth attorney with any questions you may have regarding this topic.

Scientific Workshop on PCBs and Their Impacts

Posted in Chemical Safety, Environmental Compliance

The Illinois Sustainable Technology Center will present a scientific workshop on “PCBs and Their Impact on Illinois,” at the University of Illinois, Chicago, Student Center East, in Chicago, Illinois, on September 17, 2014.

The Center notes that PCBs (polychlorinated biphenyls) “are a class of synthetic chemicals widely used in industry as a coolant and electrical insulator. Their use and production was banned during the 1970s as their properties as persistent organic pollutants became clear. They persist in soil, can enter the food chain and have been implicated in cancer, endocrine disruption, and neurotoxicity.”

Philip L. Comella will participate as a speaker, discussing the background of PCBs and regulations affecting how they must be managed.

To attend the workshop, visit the registration page.

OSHA Orders Asphalt Paving Company to Pay Nearly $1 Million and Reinstate Foreman and Two Drivers In Whistleblower Complaints

Posted in Transportation, Whistleblower

By Ada W. Dolph and Craig B. Simonsen

The Occupational Safety and Health Administration (OSHA) recently flexed its muscle, announcing a nearly $1 million damages award and reinstatement for a foreman and two truck drivers against an asphalt paving company accused of terminating them in retaliation for filing separate OSHA complaints asserting that they had been directed to violate the U.S. Department of Transportation’s mandated hours of service for commercial truck drivers.

Notably, one of the drivers was terminated after he refused to sign an affidavit that the asphalt paving company attempted to obtain to defend against the OSHA complaint filed by the foreman, who was the first of the three employees to be terminated.  Along with being ordered to reinstate the three employees to their former positions with all pay and benefits, the company was ordered to pay $953,916 in damages, including $243,916 in back wages to the drivers, $110,000 in compensatory damages, and $600,000 in punitive damages.

This award follows a recent OSHA announcement (see our prior blog here) that it was increasing its efforts to coordinate enforcement with the Federal Motor Carrier Safety Administration (FMCSA) of the Surface Transportation Assistance Act (STAA)’s whistleblower anti-retaliation and anti-coercion provisions, although it is not clear whether this award is a product of that increased coordination.  What remains clear is that increased coordination between OSHA and affiliated agencies will likely result in an increase in whistleblower complaints.

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

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.