By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Photo from CSB YouTube page video capture: https://www.youtube.com/watch?v=MCEErm18T2k
Photo from CSB YouTube page video capture: https://www.youtube.com/watch?v=MCEErm18T2k

Seyfarth Synopsis: The CSB found deficiencies in the facility’s design and labeling of the chemical loading stations, and failure to follow the company’s written chemical unloading procedures.

The U.S. Chemical Safety Board recently released preliminary findings from its ongoing investigation of the toxic chemical release that occurred at a processing plant in Atchison, Kansas.  The investigation has identified several deficiencies in the design and labeling of the loading stations, and failure to follow the company’s written chemical unloading procedures.

In the Atchison case, a chemical tanker truck arrived at the facility to deliver sulfuric acid.  A facility operator escorted the driver to a locked loading area.  The operator unlocked the gate to the fill lines and also unlocked the sulfuric acid fill line.  The Board findings indicate that the facility operator likely did not notice that the sodium hypochlorite fill line was also already unlocked before returning to his work station.  The driver accordingly connected the sulfuric acid discharge hose from the truck into the sodium hypochlorite fill line.  The line used to transfer sulfuric acid looked similar to the sodium hypochlorite line, and the two lines were located in close proximity.

As a result of the incorrect connection, allegedly thousands of gallons of sulfuric acid from the tanker truck entered the facility’s sodium hypochlorite tank.  The resulting mixture created a dense cloud of poisonous gas, which traveled northeast of the facility until the wind shifted the cloud northwest towards a more densely populated area of town.  The Board’s investigation preliminary findings have concluded that “emergency shutdown mechanisms were not in place or were not actuated from either a remote location at the facility or in the truck.”

The Board indicated that a number of design deficiencies increased the likelihood of an incorrect connection.  These included “the close proximity of the fill lines, and unclear and poorly placed chemical labels.”  In addition, neither the facility operator of the tanker truck driver followed internal procedures for unloading operations.

This incident illustrates the necessity of maintaining both safety procedures, and regular training on those safety procedures.  Process safety management reviews and periodic reviews of operating procedures can also assist employers to find process areas that have potential weaknesses or issues that can be corrected, before incidents occur.

Human factors such as the chance of operator confusion appears to have played a role in this incident. Employer’s should continue to evaluate human factors as part of their hazard assessments.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark and Craig B. Simonsen

iStock_000062437178MediumSeyfarth Synopsis: OSHA has just announced a three month delay of enforcement of the Crystalline Silica Standard for Construction under 29 CFR 1926.1153.

Crystalline silica is a staple of our modern society.  OSHA notes that it’s a common mineral that is found in many naturally occurring materials, and used in many industrial products and at construction sites.  Materials such as sand, concrete, stone and mortar contain crystalline silica. Crystalline silica is also used to make products like glass, pottery, ceramics, bricks, concrete and artificial stone.  Industrial sand is also used in certain foundry work and hydraulic fracturing (fracking) operations.  OSHA estimates that 2.3 million workers are exposed to crystalline silica on the job.

Because crystalline silica is so important to modern society, the OSHA silica standards rulemaking has been contentious.  We have blogged previously how OSHA Proposes Silica Worker Exposure Hazards Rule, OSHA Extends the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule, New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries, and Senators Ask OSHA to Consider the Fracking Industry Economy and to More Fully Extend the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule.

OSHA estimates that nearly 676,000 workplaces will be affected, including in construction and in general industry and maritime.  In addition, the rule is expected to result in annual costs of about $1,524 for the average workplace covered by the rule.  The total cost is estimated by OSHA at “just over $1 billion” (per year).

In an effort to remedy some of the issues and problems in compliance with the new rule, to provide OSHA with the opportunity to conduct additional outreach to the regulated community, and to provide additional time to train compliance officers, the Agency has decided to delay enforcement of the standard from June 23, 2017, until September 23, 2017.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Jeryl L. Olson, Ilana R. Morady, Patrick D. Joyce, Philip L. Comella, and Craig B. Simonsen

shutterstock_30524071The Pipeline and Hazardous Materials Safety Administration (PHMSA) just announced that it has amended the Hazardous Materials Regulations (HMR). 81 Fed. Reg. 18527 (March 31, 2016).

It has done so by adopting its proposed regulatory amendments applicable to the reverse logistics shipments of unsellable products containing hazardous materials (for example, expired over-the-counter drugs, health care products, damaged and open retail containers of soaps, cleaners, household products, spilled materials, etc.) from a retail facility back to a distribution or reclamation facility by highway transportation.

We have previously blogged about state and federal hazardous waste regulations and their impacts on unsellable products in the retail industry, and have also blogged specifically about the proposed HMR rule affecting transportation of retail wastes and recyclables. The new HMR final rule revises the HMR to include a definition of “reverse logistics,” and provides provisions for the shipment of unsellable products containing hazardous materials within the scope of the new definition.

Specifically, PHMSA has adopted a definition of “reverse logistics” for unsellable products containing hazardous materials as “the process of offering for transport or transporting by motor vehicle goods from a retail store for return to its manufacturer, supplier, or distribution facility for the purpose of capturing value (e.g., to receive manufacturer’s credit), recall, replacement, recycling, or similar reason.”

Importantly, under the final rule, reverse logistics shipments may only be shipped via highway carrier — rail and air transport of reverse logistics shipments are prohibited.  The final rule also requires that all materials sent in reverse logistics by private carrier contain the marking “REVERSE LOGISTICS – HIGHWAY TRANSPORT ONLY – UNDER 49 CFR 173.157” to notify the carrier that the shipment could contain products with limited amounts of hazardous materials.  Reverse logistics shipments sent by non-private carriers must still comply with all limited quantity conditions contained in 49 CFR 172.315.

This final rule also expands a previously existing exception for return shipments of used automobile batteries from multiple shippers using a single transport vehicle between a retail facility and a recycling center.

Retailers should keep in mind that this final rule is independent of, and in addition to, state and federal waste (RCRA) rules applicable to returns of products containing hazardous materials, including, but not limited to, waste determination requirements for such products, hazardous waste generation thresholds, manifesting requirements, etc. Retailers engaged in reverse logistics must ensure they are in compliance with state and federal RCRA rules in addition to this new final PHMSA rule.

The Final rule was effective on March 31, 2016.

By Brent I. Clark and Craig B. Simonsen

iStock_000062437178MediumOSHA and its sister agency the National Institute for Occupational Safety and Health (NIOSH) have just released a “Hazard Alert” on Worker Exposure to Silica During Countertop Manufacturing, Finishing and Installation.

We had previously blogged about NIOSH’s “Hazard Alert” for Worker Exposure to Silica During Hydraulic Fracturing. In addition, solidifying OSHA’s interest in regulating the silica across all industries, we had blogged about OSHA’s proposed Silica Worker Exposure Hazards Rule. 78 Fed. Reg. 56274 (September 12, 2013).

The Countertop Manufacturing Hazard Alert indicates that the Agency’s “have identified exposure to silica as a health hazard to workers involved in manufacturing, finishing and installing natural and manufactured stone countertop products, both in fabrication shops and during in-home finishing/installation. This hazard can be mitigated with simple and effective dust controls in most countertop operations.” In its research NIOSH found that, in the study groups, more than seventy percent of countertop shops in three metropolitan areas reported using “predominantly dry methods in at least one step of their work.”

Employers in these effected industries may wish to study the Hazard Alert carefully to determine any likely impacts on their businesses. Employers should take steps to ensure that they are in compliance with OSHA and local laws and regulations. Proactive steps in the face of this regulatory scrutiny now may allow the company to avoid costly enforcement and litigation in the future.

By Ilana R. Morady and Craig B. Simonsen

shutterstock_30524071On August 6, 2014, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule modifying the requirements governing the transportation of lithium cells and batteries. 79 Fed. Reg. 46012.

The final rule revised hazard communication and packaging provisions for lithium batteries to harmonize the Hazardous Materials Regulations with applicable provisions of the United Nations Model Regulations, the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code. The August 6, 2014 final rule had set a mandatory compliance date of February 6, 2015 for shippers to incorporate the new requirements into standard operating procedures and to complete training of affected personnel.

However, several retail and industry-related associations submitted a joint request for an extension of six months to the current mandatory compliance date. The request contended that the six month period adopted in the final rule did not provide sufficient time to comply with the new requirements and has proven extremely challenging for the retail industry to implement — in particular for surface transportation. The requestors noted that “generally, the new regulations require that domestic ground shipments of products with lithium batteries adhere to shipping standards previously only required for international air and sea transportation.” It was also noted that tens of thousands of consumer products may be impacted by the rule.

In this PHMSA notice, the Agency has partially extended the compliance date to August 7, 2015. 80 Fed. Reg. 9218 (February 20, 2015). In an important compliance distinction, PHMSA is maintaining the February 6, 2015 effective date for offering, acceptance, and transportation by aircraft. This extension, therefore, does not apply to transportation by aircraft. Otherwise, in response to commenters’ requests PHMSA is extending the mandatory compliance date for the lithium cells and batteries final rule published on August 6, 2014, until August 7, 2015 for all modes other than transportation by aircraft, to allow additional time to implement the requirements of the rule.

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.

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By Jeryl L. Olson and Craig B. Simonsen

The Pipeline and Hazardous Material Safety Administration (PHMSA) has proposed to modify its hazardous materials regulations as it affects the retail industry by adding a definition for “reverse logistics.” 79 Fed. Reg. 46748 (August 11, 2014).

PHMSA has been working on the proposal since July 2012, when it had requested public comment to assist it in forming a “reverse logistics policy” tailored to the unique requirements of hazardous materials transportation associated with the retail industry product returns which may involve product recalls, expired products, seasonality, broken consumer packaging, and customer returns of products containing hazardous materials. In the Advanced Notice of Proposed Rulemaking, 77 Fed. Reg. 39662 (July 5, 2012), PHMSA defines reverse logistics as “the process initiated when a consumer product goes backwards in the supply chain, such as an item being returned to a store by a customer, or when a local retailer sends unused merchandise back to a regional distributor.”

The PHMSA Administrator, Cynthia Quarterman, noted that “reverse logistics is already a complex process, and when hazmat items are involved, the potential for error greatly increases.” “We are working with industry trade groups and stakeholders to devise a safety solution that provides a clear definition for reverse logistics in a hazmat context without being unnecessarily burdensome.” The proposal would create a new section in the Hazardous Materials Regulations (49 CFR Parts 171–180) to add provisions for a reverse logistics scheme. The PHMSA notes that “by creating an exception from existing regulations for certain reverse logistics shipments, this [proposed rule] offers opportunities for reduced compliance costs among hazmat shippers and carriers, without any decrease in safety.”

In addition, the rulemaking intends to solve a reverse logistics issue related to the transportation of used automobile batteries to recycling centers. This change to the regulations, it is suggested, “will reduce the burden on the regulated community when consolidating shipments of lead acid batteries for recycling.”

Specifically, the proposed rule intends to do the following:

  • Define the term “reverse logistics”;
  • Establish regulations for the shipment of products containing hazardous materials in the retail industry reverse logistics supply chain;
  • Establish clear applicability to the training requirements associated with “reverse logistics” shipments;
  • Provide authorized packaging for reverse logistics shipments;
  • Establish segregation requirements for reverse logistics shipments; and
  • Allow more flexibility for the transportation of lead acid batteries.

Retailers, distributors, shippers, carriers, and reverse logistic companies may wish to review the proposal closely — especially if you had participated in or commented on the Advanced Notice of Proposed Rulemaking — for provisions that may belie the PHMSA’s stated conclusion that there will be little new costs associated with the implementation of these new rules, or other provisions.

The comment deadline, in this Docket No. PHMSA-2011-0143, is November 10, 2014.

By Ilana R. Morady and Craig B. Simonsen

Oil Tanker Train CarsThe U.S. Department of Transportation (DOT) yesterday released details of a “comprehensive rulemaking proposal to improve the safe transportation of large quantities of flammable materials by rail – particularly crude oil and ethanol.”

According to DOT Secretary Anthony Foxx “safety is our top priority, which is why I’ve worked aggressively to improve the safe transport of crude oil and other hazardous materials…. While we have made unprecedented progress through voluntary agreements and emergency orders, [this] proposal represents our most significant progress yet in developing and enforcing new rules to ensure that all flammable liquids … are transported safely.”

The statistics are stunning. Secretary Foxx related in a blog that “in 2008, producers shipped 9,500 rail-carloads of oil in the U.S.; by just last year, that number skyrocketed to 415,000 rail-carloads — a jump of more than 4,300 percent. Emphasis added.

The DOT rulemaking includes a Notice of Proposed Rulemaking (NPRM) and an Advanced Notice of Proposed Rulemaking (ANPRM). According to the Department, the NPRM is based on an ANPRM published by the Pipeline and Hazardous Materials Safety Administration (PHMSA) last September, and it reflects feedback from more than 152,000 commenters. 78 Fed. Reg. 54849 (September 6, 2013).

The NPRM proposes enhanced tank car standards, a classification and testing program for mined gases and liquids, and new operational requirements for high-hazard flammable trains (HHFT) that include braking controls and speed restrictions. HHFT is defined as a train carrying 20 or more tank carloads of flammable liquids. Specifically, within two years, the rule proposes to phase out the use of older “DOT 111 tank cars” for the shipment of packing group I flammable liquids, unless the tank cars are retrofitted to comply with new tank car design standards.

PHMSA is requesting comments on three options for the enhanced tank car standard requirements:

  1. Tank car option 1 would have 9/16 inch steel, would be outfitted with electronically controlled pneumatic (ECP) brakes and would be equipped with rollover protection.
  2. Tank car option 2 would also have 9/16 inch steel but would not require ECP brakes or rollover protection.
  3. Tank car option 3 is based on a 2011 industry standard and has 7/16 inch steel, and does not require ECP brakes or rollover protection.

In addition, the rule proposes new requirements for “rail routing risk assessments.” Under the proposal carriers would be required to perform a routing analysis for HHFT that would consider 27 safety and security factors, and select a route based on findings of the route analysis. The proposal also requests comments on three speed restriction options for HHFTs that contain any tank cars not meeting the enhanced tank car standards proposed under the rule. Also proposed are requirements that all HHFTs be equipped with alternative brake signal propagation systems.

The ANPRM seeks further information on expanding comprehensive oil spill response planning requirements for shipments of flammable materials. Once the NPRM and ANPRM are available in the Federal Register the Department will allow 60 days of public comment. “Given the urgency of the safety issues addressed in these proposals, PHMSA does not intend to extend the comment period.”

By James L. Curtis and Craig B. Simonsen

Members of the U.S. Senate Committee on Health Education Labor and Pensions, including sixteen Senators, have asked the Occupational Safety and Health Administration to extend its extended public comment period on its Notice of Proposed Rulemaking on Occupational Exposure to Crystalline Silica for a full ninety days.

We had previously blogged on the significant OSHA proposal that is intended to lower worker exposure to crystalline silica, which it claims “kills hundreds of workers and sickens thousands more each year.” The proposal is aimed at curbing lung cancer, silicosis, chronic obstructive pulmonary disease, and kidney disease in America’s workers.

In addition to requesting the further extension of the comment period, the Senators asked OSHA to “convene a Small Business Advocacy Review (SBAR) Panel under the Small Business Regulatory Enforcement Fairness Act.  This is an important step to ensure that the concerns of small businesses are properly accounted for.”

In its announcement the Senators noted that a “small business review panel was convened and a report completed on the silica rulemaking—a full decade ago.” In their letter to Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, the Senators explained that “the economy has changed significantly in ten years. With the U.S. economy still recovering from a major economic downturn, stakeholders have been forced to reexamine their operations and deal with increased regulatory burdens.” In addition, the old SBAR report did not address the impact on hydraulic fracturing operations in the domestic oil and gas industry, while the proposed rule contains new standards specifically for that industry. “The impacts and costs on employers in the growing domestic oil and gas industry should be analyzed and included in a new report. Excluding these stakeholders would conflict with the intent and the spirit of the law.” Emphasis added.

As we noted in our earlier blogs, industries potentially impacted by this proposal include operations involving cutting, sawing, drilling and crushing of concrete, brick, block and other stone products, and in operations using sand products, such as in glass manufacturing, foundries, and sand blasting. The proposal includes two separate standards; one for general industry and maritime employment, and one for construction industries.

Employers in these effected industries may wish to study the proposed rules carefully to determine likely  impacts on its businesses. Now is the time to submit comments and/or testimony on the proposal, and to participate at the OSHA hearings on these rules, to preserve any rights and make a difference in the final rules.

In addition, employers may wish to take steps to ensure that they are in compliance with OSHA and local laws and regulations. For instance, many states and local municipalities have enacted fracking rules that are now or will soon be in effect. Proactive steps now may allow the company to avoid costly enforcement and litigation in the future.

As of now, the deadline for written comments and hearing testimony is January 27, 2014.  The public hearings are scheduled to begin on March 18, 2014, and are expected to continue for several weeks.

By James L. Curtis and Craig B. Simonsen

The Occupational Safety and Health Administration has just proposed a rule that is intended to lower worker exposure to crystalline silica, which it claims “kills hundreds of workers and sickens thousands more each year.” 78 Fed. Reg. 56274 (September 12, 2013). The proposal is aimed at curbing lung cancer, silicosis, chronic obstructive pulmonary disease, and kidney disease in America’s workers.

According to Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, “exposure to silica can be deadly, and limiting that exposure is essential.”  “Every year, exposed workers not only lose their ability to work, but also to breathe. This proposal is expected to prevent thousands of deaths from silicosis – an incurable and progressive disease – as well as lung cancer, other respiratory diseases and kidney disease.” OSHA news release.

OSHA estimates that once the full effects of the rule have been realized, it will result in saving nearly 700 lives per year, and prevent 1,600 new cases of silicosis annually.

We had previously blogged about whether respirable silica was the “new” asbestos-like hazard for workplace exposure? OSHA, along with its sister agency, NIOSH (National Institute for Occupational Safety and Health), had recently posted a “hazard alert” for Worker Exposure to Silica during Hydraulic Fracturing. In British Columbia, a recent proposed construction safety rule for silica had been published to amend the Provincial Occupational Health and Safety Regulations. Check the blog for more details about these silica worker health-related materials.

Industries potentially impacted by this proposal include operations involving cutting, sawing, drilling and crushing of concrete, brick, block and other stone products, and in operations using sand products, such as in glass manufacturing, foundries, and sand blasting. The proposal includes two separate standards; one for general industry and maritime employment, and one for construction industries.

Employers in these effected industries may wish to study the proposed rules carefully to determine likely impacts on its businesses. Now is the time to submit comments on the proposal, and participate at the OSHA hearings on these rules, to preserve any rights and make a difference in the final rules.

In addition, employers may wish to take steps to ensure that they are in compliance with OSHA and local laws and regulations. Proactive steps now may allow the company to avoid costly enforcement and litigation in the future.

Written public comments are due on December 11, 2013.  An informal public hearing is planned for March 4, 2014.