Environmental & Safety Law Update

Winter Storms: Helping Employers Anticipate Wage & Hour and Workplace Safety Concerns

Posted in OSHA Compliance

By Alexander J. Passantino, Richard L. Alfred, Loren Gesinsky, Meagan Noel Newman, and James L. Curtis

In anticipation of a long, stormy winer, Seyfarth Shaw has prepared a Client Alert to help employers navigate wage & hour issues arising from potential closures, as well as workplace safety issues related to severe winter weather.

In the wake of winter storms thousands of businesses, schools and government offices face the challenge of cleaning up significant ice and snowfall and trying to return to operation. For many of these employers, the unusual days ahead may require special attention to workplace safety issues. Storm cleanup poses significant hazards that must be addressed. Employees may be asked to perform tasks or volunteer to undertake certain responsibilities that are not within their regular job duties. In the hurry to get our communities up and moving again, many unfamiliar hazards can be easily overlooked by employers and employees. Even in these extraordinary circumstances, employers are responsible for the safety and health of their employees in the workplace and must take measures to prevent injury and illness.

Additionally, winter weather creates a variety of hazards that can significantly impact everyday tasks and work activities. These hazards include slippery roads/surfaces, strong winds and environmental cold.

Read the full Client Alert for all of our guidance and recommendations.

OSHA Interpretation On New Reporting Rule For Amputations And Sight Loss

Posted in OSHA Compliance

By James L. Curtis, Ilana R. Morady, and Craig B. Simonsen

As most employers are aware, OSHA implemented new injury reporting requirements under 29 CFR Section 1904.39 effective at the beginning on this year.

One requirement is that employers must now report to OSHA within 24 hours all work-related amputations and losses of an eye. However the question of what exactly constitutes an “amputation” or “loss of an eye” has been raised. OSHA recently issued an Interpretative Guidance, titled “Clarification of the New Reporting Requirements,” which addresses this question.

The interpretation answers the question “how do you distinguish between an amputation and an avulsion?” For discussion purposes, The American Heritage® Medical Dictionary defines an  avulsion as “the forcible tearing away of a body part by trauma or surgery.” OSHA’s Interpretation indicated that “examples of avulsion that do not need to be reported include deglovings, scalpings, fingernail and toenail removal, eyelid removal, loss of a tooth, and severed ears.” It reminds employers that they are required to report amputations to OSHA when they learn that the reportable event occurred. If the tip of the finger is amputated, the work-related event must be reported. “An amputation does not require loss of bone.”

Concerning the loss of sight, OSHA indicates that the loss of an eye is the physical removal of the eye, including enucleation and evisceration. “Loss of sight without the removal of the eye is not reportable under the requirements of section 1904.39.” However, a case involving loss of sight that results in the in-patient hospitalization of the worker within 24 hours of the work-related incident is reportable.

As the language of this rule, and the Interpretation reveals, this may be a difficult issue to deal with. Certainly a case-by-case analysis is necessary — which is especially problematic given the short reporting deadline. Employers are encouraged to be very careful with and be sure to document any analysis prepared in determining whether to report, or not.

Image from OSHA.gov.

Court Finds that Sale of Hazardous Chemicals Isn’t Disposal Absent Intent to Dispose

Posted in Environmental Litigation, Superfund

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

The Fifth Circuit recently held that a seller of dry cleaning chemicals did not assume Superfund “arranger” liability by merely selling a useful but hazardous chemical with the intent that it be used by a dry cleaning business that then subsequently discharged the contaminant into ground water. Vine Street, LLC v. Borg Warner Corp., No. 07-40440 (5th Cir., January 14, 2015).

Vine Street is one of the first Court of Appeals to consider “arranger” liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9607(a)(3), in light of the Supreme Court’s decision in Burlington N. & Santa Fe Ry. Co. v. U.S., 556 U.S. 599 (2009), holding that arranger liability attaches only if there is an intent to dispose of a hazardous substance..

A Borg Warner Corp. subsidiary, Norge, designed and sold dry cleaning equipment to Vine Street LLC in the early 1960s.  Despite efforts to prevent discharge through an engineered reclamation system, some of the perchloroethylene (PERC) used in the dry cleaning process was discharged into the sewer.  In 2006, the District Court held a bench trial and ruled that Norge was liable to Vine Street for 75% of the costs associated with cleaning up PERC plume because Norge knew its reclamation system was not 100% effective and some of the PERC might end up in the sewer.

Borg Warner appealed the judgment to the 5th Circuit, but it was stayed due to ongoing bankruptcy proceedings.  By the time the stay was lifted, the Supreme Court had published its ruling in Burlington Northern that “knowledge alone is insufficient to prove an entity planned for the disposal, particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful product.”

In Vine Street, Borg Warner argued that Norge (and therefore Borg Warner) was not liable to Vine Street under CERCLA because it did not intend to dispose of the PERC when it sold the dry cleaning equipment and an initial supply of PERC to the cleaners in the 1960s.  The Fifth Circuit Court reversed the District Court judgment against the seller, finding that the “purported arranger [must take] intentional steps to dispose of a hazardous substance.”  The District Court had applied an outdated Fifth Circuit standard that only required a “nexus” between a purported arranger and the disposal of waste (Geraghty & Miller, Inc. v. Conoco, Inc., 234 F.3d 917 (5th Cir. 2000).

Vine Street presents us with another reminder that CERCLA’s arranger liability depends upon a fact-specific inquiry as to whether the entity had the necessary intent to dispose of a hazardous substance.

California Proposes New Rules For Proposition 65 Clear And Reasonable Warnings

Posted in California, Chemical Safety

By Meagan Newman and Ilana R. Morady

On January 15, 2015, California’s Office of Environmental Health Hazard Assessment (OEHHA) published a Notice of Proposed Rulemaking to modify the clear and reasonable warning regulations under Proposition 65.

As most businesses residing in or doing business in California know, Proposition 65 is the law that requires businesses to notify Californians about the presence of certain chemicals in buildings, workplaces, consumer products, and foods. The notification must be “clear and reasonable,” however a business’s obligations under the “clear and reasonable” regulations can be difficult to discern – especially for businesses who are not engaged in retail sales. The proposed modifications seek to elucidate the “clear and reasonable” warning requirement, in large part by setting forth the specific responsibilities of manufacturers and others in the chain of distribution for products that are eventually sold at retail.

The proposed regulation also contains significant changes to the warning language required for “safe harbor.” Under the current regulations, warning language stating that the “product contains a chemical known to the State of California to cause” cancer, birth defects, and/or other reproductive harm is sufficient. However under the proposed regulations, warnings would have to include, among other things, the wording “WARNING” in all capitals and bold print, the language “this product can expose you to a chemical,” and reference to OEHHA’s Proposition 65 website. Additionally, twelve chemicals would have to be specifically identified on a Proposition 65 warning: acrylamide, arsenic, benzene, cadmium, carbon monoxide, chlorinated tris, formaldehyde, hexavalent chromium, lead, mercury, methylene chloride and phthalate(s).

The proposed regulation represents a significant change, and, if finalized, will undoubtedly add to the burden of Proposition 65 compliance. On March 25, 2015, a public hearing will be held on the proposed changes. The comment period for the proposed changes closes on April 8, 2015. If the amendments are finalized, they would not take effect for two years to provide manufacturers, distributors, and retailers a “sell through” period.

Remanufacturing Exclusion for Solvents Under New Definition of Solid Waste Rules

Posted in Environmental Compliance, RCRA

By Jeryl L. Olson

In follow-up to our blog earlier this week on the EPA’s January 13, 2015 new Final Rule on the Definition of Solid Waste (DSW rule), this is to discuss the new “remanufacturing exclusion” as it relates to certain solvents under 40 CFR § 261.4(a)(27).

The  § 261.4(a)(27) exclusion is specifically addressed at certain “higher value solvents” transferred from one company to another for the purpose of “extending the useful life of the solvent,” and provides that when “remanufactured” the solvents are excluded from the definition of “Solid Waste.”  According to the EPA, the purpose of the remanufacturing exemption is to encourage the intercompany transfer of spent solvents, because once remanufactured to commercial grade, the solvents can be used as replacements for virgin commercial grade solvents.

EPA discusses in the preamble to the DSW rule that instead of a generator company paying disposal costs for a solvent, the company which will remanufacture the solvent will not be paid a fee, but will realize its profit from the sale or reuse of the remanufactured solvent it received from the generator.  (It should be noted that there are no provisions in the regulations discussing which party (generator or remanufacturer) would pay or be paid for the remanufacturing; the issue is raised only in the preamble).

Under now new Resource Conservation and Recovery Act (RCRA) definitions of 40 CFR § 260.10, the term “remanufacturing” is defined as “processing a higher-value hazardous secondary material to manufacture a product that serves a similar function as the original commercial-grade material.”  As applied to certain solvents under 261.4(a)(27), when solvents are “remanufactured” under specific conditions and in compliance with explicit regulatory requirements, they are not “solid wastes,” and, thus, are not hazardous wastes.  The exclusion does not apply to solvents which are “discarded”; it applies only to solvents “remanufactured,” and, therefore, solvents which are discarded are regulated as solid wastes.

There are, of course, considerable limits on and conditions to the 261.4(a)(27) exemption: (i) the exclusion only applies to certain solvents; (ii) the exclusion only applies to certain industries; (iii) there are limits on how solvents can be used, post-remanufacture; (iv) there are notification, and recordkeeping and reporting requirements; (v) the generator and remanufacture must develop and maintain a “Remanufacturing Plan”; (vi) there are limits on and standards for the types of containers that can be used in the remanufacturing; (vii) there are standards applicable to processing equipment used in remanufacturing; and finally, (viii) there are limits on speculative accumulation.

Solvents and Industries Entitled to the Exclusion.  The solvents entitled to the exemption are toluene, xylene, ethylbenzene, 1,2,4 trimethylbenzene, chlorobenzene, n-hexane, cyclohexane, methyl tert-butyl ether, acetonitrile, chloroform, chloromethane, dichloromethane, methyl isobutyl ketone, nn-dimethylformamide, tetrahydrofuran, n-butyl alcohol, ethanol, and/or methanol.  Only certain manufacturing sectors are entitled to the exclusion; those are: pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and paints and coatings manufacturing (NAICS 325510).

Use Limits.  The designated hazardous spent solvents are only eligible for the exclusion if they are remanufactured to serve certain types of post-remanufacture chemical functions, including the use of the solvents for: (i) reacting; (ii) extracting; (iii) purifying; (iv) blending chemicals, rinsing out process lines associated with the previously described functions; or (v) using them as an ingredient in a product in the pharmaceutical, organic chemical, plastics and resins manufacturing sectors, or the paint and coating sector.  EPA has specified that the continuing use of the solvents after remanufacturing cannot involve cleaning or degreasing oil, grease or similar materials from textiles, glassware, metal surfaces or other articles.  If remanufactured for those uses, the solvents will not be considered excluded from the definition of solid waste under the remanufacturing exemption.

Notification, Recordkeeping and Reporting Requirements.  In order to be entitled to exclusion, both the generator and the remanufacturer must submit notification to EPA prior to operating.  Further, there are, of course, recordkeeping reporting requirementsShipping records must be maintained for three years and must include the name of the generator, dates of shipment, the transporter, and the type and quantity of solvents involved in the shipment.  Manifests are not required; the records requirement associated with shipping can be satisfied by ordinary business records such as bills of lading.  Similar to manifesting requirements, however, generators must maintain records of confirmation of receipt for all offsite shipments to a remanufacturer to verify that the spent solvent was actually remanufactured and not discarded.  As with the shipping records, there is no specific template for the confirmation of the remanufacturing records; normal business records such as financial records, bills of lading and electronic confirmation of receipt are sufficient to satisfy the exclusion.

Remanufacturing Plan.  Both the generator and the remanufacturer must prepare a “Remanufacturing Plan” identifying the types and quantities of the excluded spent solvents confirming the process and industry sectors involved, and confirming the specific future uses for the remanufactured solvents.  The generator is required to work with the remanufacturer in developing a plan to verify the appropriateness of the spent solvent remanufacturing before claiming the exclusion, to ensure the spent solvents aren’t discarded.  The plan must include a lengthy certification by the remanufacturer certifying the remanufacturer is within one of the manufacturing sectors entitled to the exclusion, and is accepting the solvents for the sole purpose of remanufacturing them into commercial grade solvents that would be used for reacting, extracting, purifying, blending chemicals, rinsing out process lines or by-producting ingredients.

Required Containers.  Because of the history of spent solvent mismanagement, EPA has an explicit condition in the rule that solvents being managed under the remanufacturing exclusion must be stored prior to remanufacturing in tanks or containers meeting the RCRA technical standards set forth in 40 CFR Part 261, Subparts I and J, and must be properly labeled.  Thus, going forward, the 264 Subparts I and J are applicable to containers and tanks involved in remanufacturing of solvents as non-solid waste, in the same manner as those standards apply to use of containers managing “Hazardous Wastes.”

Process Equipment Standards.  Not only are there container requirements applicable to the generator and the remanufacturer as part of remanufacturing, the Remanufacturing Plan must include a discussion of good management practices, specifying that the remanufacturing equipment vents and tanks are equipped with applicable air emission controls in compliance with the New Source Performance Standards and the NESHAPs, in particular, 40 CFR Parts 261, Subparts AA (Vents), BB (Equipment), and CC (Tank Storage).

Speculative Accumulation.  Finally, in addition to all the other conditions applicable to the remanufacturing exemption, the exclusion is subject to the speculative accumulation requirements of 40 CFR 261.1(c)(8) to ensure that hazardous spent solvents are remanufactured and not ultimately discarded.

While these specifically covered solvents are explicitly excluded under 261.4(a)(27), there are other provisions in the new rule that open the door to obtaining an exclusion from the Definition of Solid Waste for additional solvents or other waste streams.  The new rules provide for “non-waste determinations” and variances from classification as a solid waste (§ 260.30), and there are specific exclusions for “generator-controlled recycling” (§ 261.4(a)(23)), and there is a “verified recycler exemption” (§ 261.4(a)(24)).  Each of these options are potentially applicable to other solvents and industries, or other “hazardous secondary materials.”

EPA Plan for Methane Controls In Oil and Gas Industry

Posted in Alternative Energy, CAA, Climate Change, Environmental Compliance

By Philip L. Comella and Craig B. Simonsen

In another move to implement the President’s Climate Action Plan, the Obama Administration today announced a new goal to cut methane emissions from the oil and gas sector by 40 to 45 percent from 2012 levels by 2025.

According to EPA, methane emissions accounted for nearly ten percent of U.S. greenhouse gas emissions in 2012, with nearly thirty percent of that coming from the production, transmission, and distribution of oil and natural gas. To achieve this goal, and building on five technical white papers issued last spring, EPA will initiate a rulemaking to set standards for methane and VOC emissions from new and modified oil and gas production sources, and natural gas processing and transmission sources. EPA plans to issue the proposed rule in the summer of 2015, with a final rule 2016.

Law360 reported that Dan Utech, the Special Assistant to President Barack Obama for Energy and Climate Change, said that to implement the Administration’s goal, this new set of new rules will first target new sources such as hydraulic fracturing operations, under section 111(b) of the Clean Air Act. Utech estimated that the rules will save up to 180 billion cubic feet of gas that would otherwise be “wasted.” “The overall plan will also include efforts to reduce volatile organic compounds, and a voluntary component for industry.”

EPA expects that other actions under this new goal may also include:

  • New Guidelines to Reduce Volatile Organic Compounds.
  • Enhancing Leak Detection and Emissions Reporting.
  • Lead by Example on Public Lands.
  • Reduce Methane Emissions while Improving Pipeline Safety.
  • Drive Technology to Reduce Natural Gas Losses and Improve Emissions Quantification.
  • Modernize Natural Gas Transmission and Distribution Infrastructure.
  • Release a Quadrennial Energy Review (QER).
  • Expand the Natural Gas STAR Program.

We will continue to monitor and blog on this important topic.

EPA Publishes Massive Final Definition of Solid Waste Rule

Posted in Environmental Compliance, RCRA

By Philip L. Comella, Patrick D. Joyce, and Craig B. Simonsen

The U.S. Environmental Protection Agency’s struggle to distinguish between a waste and a recyclable material, dating back to its original May 19, 1980 rulemaking under the Resource Conservation and Recovery Act, takes its latest turn in the now-final Definition of Solid Waste rule (DSW rule), signed by Administrator Gina McCarthy on December 10, 2014. 80 Fed.  Reg. 1694 (January 13, 2015).

The new DSW rule will take effect six months after publication in the Federal Register. The 507 page final rule came as the result of a settlement between EPA and the Sierra Club over the EPA’s October 2008 rule on the same topic, in which the EPA liberalized the regulation of a form of recycling known as “reclamation.” Prior to the 2008 rulemaking, the EPA generally considered reclamation (the processing or regeneration of a material to recover a usable product) as akin to treatment, and therefore considered most materials destined for reclamation to be solid wastes.

However, EPA’s October 7, 2008 rule exempted certain forms of reclamation from hazardous waste regulation.  In doing so, EPA increased the complexity of an already intricate regulatory scheme known as the “definition of solid of waste.”  This definition is used to determine the threshold question of whether a given material is regulated as a solid or hazardous waste under RCRA or is instead a recyclable material exempt from regulation.  The October 2008 rule, among other things, established streamlined requirements for (a) materials generated and legitimately reclaimed under the control of the generator; (b) materials that are transferred to another entity for legitimate recycling; and (c) determining, on a case-by-case basis, whether a given material should be exempt from waste classification because of the manner in which it would be recycled. The rule also defined legitimate recycling by comparing the composition and handling of the reclaimed material against the raw material it was intended to replace.

The Sierra Club thought the 2008 rule lacked adequate safeguards to prevent hazardous waste from being released into the environment, and filed an administrative petition with EPA.  The petition resulted in the settlement that forced EPA’s hand to issue a proposed revised rule by June 30, 2011.  In sharp contrast to the 2008 rule, the June 2011 proposal tilted the balance of “recycling” in the other direction, and cut back on much of the flexibility in the October 2008 rule.

The now final rule, according to the EPA’s press release, “addresses significant regulatory gaps in the 2008 rule by requiring off-site recycling at a facility with a RCRA permit or with a “verified recycler” variance.  The rule “affirms pre-2008 DSW exclusions,” such as the scrap metal exclusion, and does not change the regulatory status of material “legitimately recycled” under those exclusions.  The rule includes a revised definition of recycling that “re-affirms the legitimacy of in-process recycling” and of commodity-grade recycled products, such as metal commodities. The rule retains the exclusion for recycling under the control of the generator, including “recycling onsite, within the same company and through certain types of toll manufacturing agreements.” Notably, the final rule includes a targeted “remanufacturing exclusion” for certain hazardous spent solvents being remanufactured into commercial-grade products.

Commenting on the rule, Assistant Administrator Mathy Stanislaus indicated that “it’s a major environmental justice milestone that directly addresses mismanagement of hazardous materials at some of these recycling facilities.” “The new DSW rule reduces risks for communities, at the same time that it helps to encourage certain types of recycling. Some higher-value hazardous spent solvents, for example, can be remanufactured and reused safely under the rule, which means that less new solvents are created. And some hazardous byproducts can be reused in the same process that generated them, through in-process recycling.” See Protecting Our Communities through Safe and Legitimate Recycling (December 12, 2014).

In its analysis, the EPA estimates that if thirty-one states and territories adopt the new DSW rule, it “will have an annual regulatory cost savings of $24 million as compared to baseline cost savings in the [eight] states and territories that have adopted the 2008 DSW final rule.”

For generators and waste industries alike, the new DSW rule means considerable work to ensure compliance.  Interpretation, understanding, and implementation of the new DSW rule will be a complex and time-consuming process.  To assist the regulated community, Seyfarth Shaw LLP will provide a DSW rule webinar in early 2015.

Not Surprisingly, 2014 Sees Another Increase in Whistleblower Cases

Posted in OSHA Enforcement, Whistleblower

By James L. Curtis and Craig B. Simonsen

The Occupational Safety and Health Administration has just released its whistleblower statistics, showing another jump in the number of whistleblower cases filed with OSHA in FY 2014, to over three thousand.

This is the first time that the total number of claims filed has topped 3,000, and is the result of a steady climb in each of the last 10 years.


It is likely that there are numerous factors pushing these numbers higher each year. The increased media coverage of high profile whistleblower cases and the significant monetary awards to whistleblowers in the financial and government contracting industries has no doubt had a significant impact. Additionally, OSHA has added on-line reporting capabilities to make it easier for individuals to file claims. Further, there is increased cooperation between government agencies in investigating whistleblower cases.

Whatever the reason, employers should understand that this upward trend appears to be here to stay and should take proactive steps to protect themselves from disgruntled workers’ increasing awareness of the potential financial benefits of filing whistleblower claims.

OSHA-Related Documents: Creation And Retention

Posted in Investigations/Inspections, OSHA Compliance

By Mark A. Lies II and Ilana R. Morady

As most employers are aware, OSHA inspections typically involve a request for the employer to produce certain documents. In many cases, employers are unsure of what documents the compliance officer is entitled to see and copy. Employers can also be unsure of how long to retain certain documents required under OSHA. Some OSHA regulations require a specific retention period for documents. Other OSHA regulations, however, do not (although it is often advisable to retain certain documents even if retention is not technically required).

This is to point you to our primer on this topic, “OSHA-Related Documents: Creation And Retention.” The extensive article is intended to give general guidance for numerous OSHA areas.

Remember that it is critical that an employer control the flow of information during the inspection, including the information contained in documents.  By avoiding production of documentary evidence that is not required by law, the employer reduces the potential for regulatory citations. It is also critical that employers understand what documents they are required to create and retain.

Even when an OSHA standard does not specify how long certain records must be retained, it is advisable to consider retaining such records for a significant length of time. For example, many OSHA standards require employee training, but do not necessarily require documentation of training or retention of training documents. Nonetheless, it is advisable to prepare and retain training documents for the duration of employment because training documents are often indispensable in asserting certain defenses to citations.

DOT “Harmonization” with International Hazardous Materials Standards

Posted in Hazardous Materials, International, Transportation

By Andrew H. Perellis, Ilana R. Morady, and Craig B. Simonsen

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has adopted, retroactively, amendments to the Hazardous Materials Regulations (HMRs) to maintain alignment with international standards by incorporating changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. 80 Fed. Reg. 1076 (January 8, 2015).

PHMSA proposed the rule last summer (79 Fed. Reg. 50742) (August 25, 2014), indicating that the revisions were necessary to harmonize the HMRs with changes to the International Maritime Dangerous Goods Code (IMDG Code), the International Civil Aviation Organization’s (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air, and the United Nations Recommendations on the Transport of Dangerous Goods—Model Regulations (UN Model Regulations).

The Agency indicates that “these changes ensure the domestic hazard classification, hazard communication and packaging requirements are consistent with those employed throughout the world.” To stress the importance of these amendments, PHMSA notes that “foreign trade of chemicals is a large segment of the United States economy. In 2000, U.S. foreign trade in chemicals totaled $154 billion and generated a $6 billion positive trade balance.”

The new rules were adopted effective January 1, 2015, with a “voluntary compliance date” beginning January 1, 2015, and a “delayed compliance date” of January 1, 2016. The “voluntary compliance date” provides the regulated community with the opportunity to use up old stock, such as shipping labels that refer to the wrong shipping names, prior to implementation of the required compliance in 2016.