By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2017 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2016 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2017 inflation adjustments which will nudge the penalties even higher.  92 Fed. Reg. 5373 (Jan. 19, 2017).

Under the 2017 rule, the maximum OSHA civil penalties will be:

                                                                2016 Penalties            2017 Penalties

  • Other than Serious violations:             $12,471                       $12,675
  • Serious violations:                               $12, 471                      $12,675
  • Repeat violations:                               $124,709                     $126,749
  • Willful violations:                               $124,709                     $126,749
  • Failure to abate (per day):                   $12, 471                      $12,675

The new OSHA penalty amounts are applicable to OSHA citations issued after January 13, 2017, whose associated violations occurred within the six month statute of limitations

Going forward, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.

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 Adam R. Young and Craig B. Simonsen

shutterstock_144257470Seyfarth Synopsis: The Affordable Care Act faces an uncertain future under the Trump administration, which will affect whistleblower provisions enforced by OSHA.

In October 2016, the Occupational Safety and Health Administration published a final rule that established procedures and time frames for handling whistleblower complaints under the Patient Protection and Affordable Care Act (ACA), also known as ObamaCare. 81 Fed. Reg. 70607 (October 13, 2016).

In its news alert, OSHA explains that Section 1558 of the ACA gives employees a cause of action based on any adverse employment action in retaliation for receiving marketplace financial assistance when purchasing health insurance through an Exchange. It also protects employees’ right to raise concerns about employers’ conduct that they believe violates the consumer protections and health insurance reforms in Title I of the ACA.

Concerning the rules, Dr. David Michaels, the then OSHA Administrator, said “this rule reinforces OSHA’s commitment to protect workers who raise concerns about potential violations of the consumer protections established by the Affordable Care Act or who purchase health insurance through an Exchange.”

The new rule established procedures and time frames for (1) hearings before Department of Labor administrative law judges in ACA retaliation cases; (2) review of those decisions by the Department of Labor Administrative Review Board; and (3) judicial review of final decisions.

In 2013, OSHA had sought public comments on an interim final rule. The Preamble to the final rule responds to those public comments and updates the rule to “clarify the protections for workers who receive financial assistance when they purchase health insurance through an Exchange.”

OSHA’s Affordable Care Act fact sheet is intended to provide more information regarding who is covered under the ACA’s whistleblower protections, define what is protected activity, list types of retaliation, and explains the process for filing a complaint.

It remains to be seen what will happen with the ACA under the Trump administration. If Congress repeals the ACA, this will necessarily include all related whistleblower provisions enforced by OSHA.  Employers should stay attuned to developments in new health care legislation.

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

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

Seyfarth Synopsis: Employers that are regulated under any of the 22 federal whistleblower protection laws are encouraged to review company policies, procedures, and training systems to examine conformity with this guidance.

The Occupational Safety and Health Administration has just issued its Recommended Practices for Anti-Retaliation Programs to help guide employers in creating “workplaces in which workers feel comfortable voicing their concerns without fear of retaliation.” The recommendations will apply to all public and private sector employers covered under the 22 whistleblower protection laws that OSHA enforces.

The Recommended Practices outline five elements that OSHA believes make up an effective anti-retaliation program, including:

  1. Management leadership, commitment, and accountability.
  2. System for listening to and resolving employees’ safety and compliance concerns.
  3. System for receiving and responding to reports of retaliation.
  4. Anti-retaliation training for employees and managers.
  5. Program oversight.

OSHA’s twelve page Recommended Practices provide some discussion on each of these “key elements.” Jordan Barab, OSHA acting Director, said that “these recommended practices will provide companies with the tools to create a robust anti-retaliation program.”

OSHA had published an initial draft of the Recommended Practices for review and comment in the November 2015. Differences from the proposal may be reviewed in OSHA’s Response to Public Comments.

Employers that are regulated under any of the 22 federal whistleblower protection laws are encouraged to review closely company policies, procedures, and training systems to examine conformity with this guidance. We note that their Recommended Practices tie into OSHA’s Amended Injury and Illness Standards form 2016. We expect OSHA inspectors to begin including these issues in their inspections.

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

By Benjamin D. Briggs, Brent I. Clark, Mark A. Lies, II, Adam R. Young, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: Business organizations have once again brought suit against OSHA’s new electronic reporting and retaliation rule, arguing that the proposed online database violates employers’ First and Fifth Amendment rights and oversteps OSHA’s authority.

The National Association of Home Builders of the United States, the U.S. Chamber of Commerce, and other industry groups have sued Occupational Safety and Health Administration to prevent the implementation of its OSHA’s new injury and illness electronic reporting rule, arguing that OSHA’s proposed online database violates employers’ First and Fifth Amendment rights, is arbitrary, capricious, and otherwise contrary to law, and oversteps OSHA’s authority.  National Association of Home Builders of the United States et al. v. Perez et al., No. 5:17-cv-00009 (W.D. Okla. Jan. 4, 2017).

With regard to the new injury and illness reporting requirements, the industry groups’ Complaint alleges that OSHA “lacks statutory authority to create an online database meant for the public dissemination of employers’ injury and illness records.” In the Preamble to the Final Rule, OSHA premised its authority to issue the Rule on Sections 8 and 24 of the OSH Act. But neither of those sections authorizes OSHA to publicly disseminate reports collected under the Rule. The Plaintiffs contend that the Rule is arbitrary and capricious because OSHA has “changed its position on the confidentiality of the information it is demanding companies produce, without providing a reasoned explanation for that change.”  Moreover, Plaintiffs contend that the new Rule violates the employers’ First and Fifth Amendments rights by compelling them to submit confidential and proprietary information for publication on a publicly available online database.

The Complaint also takes aim at the new rule’s anti-discrimination and anti-retaliation provision. To that end, the Complaint alleges that because the Final Rule created a new scheme to prohibit discrimination and retaliation against employees, OSHA exceeded its statutory authority.  Specifically, the Agency “contravene[d] the express and sole statutory scheme established by Congress in Section 11(c) of the OSH Act to provide redress for retaliatory actions by employers against employees.”

We had previously blogged about the substance of OSHA’s new rule as it applies to drug-testing, retaliation claims, and accident reporting. In immediate response to the new rule, the National Association of Manufacturers (NAM) and others brought a suit to enjoin the rule, arguing that OSHA’s new rule went too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. Tex. July 8, 2016). Despite the pending lawsuit, OSHA has issued an interpretative guidance on the new rule, and the rule went into effect as planned on December 1, 2016.

The TEXO ABC Court’s decision denied the Plaintiffs’ Motion for Preliminary Injunction. The Court concluded that the Plaintiffs had not met their burden of establishing that they were likely to suffer irreparable harm. Slip Op. 7.  The TEXO ABC preliminary injunction denial, though, was not on the merits of the case. However, it is unclear whether the TEXO ABC Plaintiffs will continue to pursue that litigation given the Court’s denial of the preliminary injunction.

While it remains to be seen how these challenges will fare, the business community has shown a willingness to strongly oppose the new rule — a rule that has been widely criticized as emblematic of regulatory overreach.

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

By Patrick D. Joyce, Jeryl L. Olson, and Craig B. Simonsen

iStock_000011623330_MediumSeyfarth Synopsis: In a significant proposal, EPA moves to ban the use of TCE in aerosol degreasing and spot cleaning at dry cleaning facilities, as part of a larger effort to ban TCE in other industrial uses.

The U.S. Environmental Protection Agency is proposing to ban certain uses of Trichloroethylene (TCE) – one of the most commonly used solvents – because of alleged health risks from its use as an aerosol degreaser and for spot cleaning in dry cleaning facilities. 91 Fed. Reg. 91592 (Dec. 16, 2016). The proposed rule was issued under the recently-amended Section 6(a) of the Toxic Substances Control Act.

This is a significant and controversial step. Not only is this EPA’s first use of Section 6(a) in 25 years, it is EPA’s first use of the “new” Section 6(a), which was revised in June 2016. In addition to the current proposed ban, EPA has indicated it intends to issue a proposal to ban TCE in vapor degreasing, and will publish one final rule banning TCE use in aerosol degreasing, spot cleaning at dry cleaning facilities, and vapor degreasing.

TCE is a volatile organic compound (VOC) that is both produced and imported into the United States, with use estimated to be around 250 million pounds per year. TCE is a clear, colorless liquid with a sweet odor and it evaporates quickly. TCE is used industrially as a solvent, a refrigerant, and in dry cleaning fluid. The majority of TCE is used (about 84 percent) in a closed system as an intermediate chemical for manufacturing refrigerant chemicals. Much of the remainder (about 15 percent) is used as a solvent for metals degreasing. Only a small percentage accounts for other uses, including use as a spotting agent in dry cleaning and in consumer products.

While the use of TCE in aerosol degreasing and spot dry cleaning constitute the least common use of the solvent in the United States, under this current proposal, EPA will prohibit the manufacture (including import), processing, and distribution in commerce of TCE for use these limited uses. However, EPA has indicated it is also developing a proposal to ban the use of TCE in other industries and in other operations with higher volume uses of the chemical (i.e., vapor degreasing). EPA’s final rule will includes the current proposed ban on aerosol use and spot cleaning in dry cleaning facilities, as well as the upcoming proposed ban on vapor degreasing.

The proposed ban on aerosol and dry cleaning uses includes requirements that manufacturers, processors, and distributors of TCE notify retailers and others in their supply chains of the prohibitions on use in aerosol degreasing and spot dry cleaning, and it is presumed the ban on vapor degreasing will have similar notification requirements.

Comments will be received on the proposed rule, Docket No. EPA–HQ–OPPT–2016–0163, until February 14, 2017.

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

By Andrew H. Perellis and Craig B. Simonsen

Dentist or dental officeSeyfarth Synopsis: In another rule aimed at small business, the EPA has just issued a rule for Effluent Limitations Guidelines and Standards for the Dental Category. The rule will add more federal compliance costs to already tight dental office budgets.

The U.S. Environmental Protection Agency issued last week its pretreatment standards to reduce discharges of mercury from dental offices into publicly owned treatment works (POTWs).  We had blogged previously when the rules were proposed in October 2014.

Dental offices discharge mercury present in amalgam used for fillings. According to the Agency, “amalgam separators are a practical, affordable and readily available technology for capturing mercury and other metals before they are discharged into sewers that drain to POTWs.” EPA anticipates that once captured by a separator, mercury may be recycled.

Approximately fifty percent of dental amalgam is elemental mercury by weight. Dental amalgam is a dental filling material used to fill cavities caused by tooth decay. It has been used for more than 150 years in hundreds of millions of patients. EPA expects compliance with this final rule will annually reduce the discharge of mercury by 5.1 tons as well as 5.3 tons of other metals found in waste dental amalgam to POTWs.

EPA indicated that the rule will apply to offices, including large institutions such as dental schools and clinics, where dentistry is practiced that discharge to a POTW. “It does not apply to mobile units or offices where the practice of dentistry consists only of the following dental specialties: oral pathology, oral and maxillofacial radiology, oral and maxillofacial surgery, orthodontics, periodontics, or prosthodontics.”

The final rule purports to ease administrative burdens from those initially proposed. “Administrative burden was a concern of many of the commenters on the 2014 proposed rule and EPA has greatly reduced that burden through streamlining the administrative requirements in this final rule.” The Agency claims that to simplify implementation and compliance for the dental offices and the regulating authorities, the final rule establishes that dental dischargers are not Significant Industrial Users (SIUs) as defined in 40 CFR part 403, and are not Categorical Industrial Users (CIUs) or “industrial users subject to categorical pretreatment standards” as those terms and variations are used in the General Pretreatment Regulations, unless designated such by the Control Authority.

“While this rule establishes pretreatment standards that require dental offices to reduce dental amalgam discharges, the rule does not require Control Authorities to implement the traditional suite of oversight requirements in the General Pretreatment Regulations that become applicable upon the promulgation of categorical pretreatment standards for an industrial category.” This, the EPA asserts, will significantly reduce the reporting requirements for dental dischargers that would otherwise apply by instead requiring them to demonstrate compliance with the performance standard and BMPs through a one-time compliance report to their Control Authority.

The approach will also eliminate additional oversight requirements for Control Authorities that are typically associated with SIUs, such as permitting and annual inspections of individual dental offices. “It also eliminates additional reporting requirements for the Control Authorities typically associated with CIUs, such as identification of CIUs in their annual pretreatment reports.”

In its proposal EPA estimated that there approximately 160,000 dentists working in over 120,000 dental offices who use or remove amalgam in the United States – “almost all of whom discharge their wastewater exclusively to POTWs.” According to the EPA news release at that time, “this is a common sense rule that calls for capturing mercury at a relatively low cost before it is dispersed into the POTW.”

Specifically the rule requires dentists to cut their dental amalgam discharges to a level achievable through the use of the “best available technology,” known as amalgam separators, and the use of other Best Management Practices. Amalgam separators are devices designed to remove amalgam waste particles from dental office wastewater.

In response to the proposed rule the American Dental Association said that it believes the “new federal regulation represents a fair and reasonable approach to the management of dental amalgam waste…. The rule includes reasonable exemptions, a phase-in period and considerations for dental practices that have already installed the devices.”

The compliance date for existing facilities is three years from the rule publication in the Feedral Register.

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

By Mark A. Lies, II, Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: OSHA finalizes rule that “more clearly states employers’ obligations” to record an injury or illness which continues for the full five-year record-retention period.

The Occupational Safety and Health Administration announced last week a new final rule that “clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness.” The rule had been proposed in July 2015.

OSHA’s longstanding position had been that an employer’s duty to record an injury or illness continues for the full five-year record-retention period. It cited to Occupational Safety and Health Review Commission cases dating back to 1993. In 2012, however, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, __ F.3d ___, 2012 WL 1142273 (DC Cir., April 06, 2012), reversing the Commission and rejecting OSHA’s position on the continuing nature of its prior recordkeeping regulations.

The AKM or “Volks” decision applied the six month statute limitations to an employers duty to put work related injuries and illnesses on the OSHA 300 log. The D.C. Circuit decision affectively ended OSHA practices of issuing citations for alleged recordkeeping errors back five years.

According to OSHA , this new final rule merely seeks to more clearly define employers’ obligations. “This rule simply returns us to the standard practice of the last 40 years,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. According to OSHA the amendments in the final rule add “no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not already required.”

In reality, the new rule’s an obvious attempt to avoid the D.C. Circuit decision in Volks. It is important to note that OSHA waived its right to appeal the Volks decision to the Supreme Court at the time and thus cannot legally evade the legal precedent created by that decision.

It is important for employers to ensure that employees who are responsible for recording the company’s injuries and illnesses are well trained to correctly identify those items that need to be logged.

The effective date for the rule is January 18, 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 Patrick D. Joyce, Jeryl L. Olson, and Craig B. Simonsen

Blog - Fracking WaterSeyfarth Synopsis: With significant objection from Industry, EPA has issued its Final Report on whether hydraulic fracturing activities can impact drinking water resources under certain circumstances.

The U.S. Environmental Protection Agency published its controversial final report on “Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States.” In the report, which has already been subject to great objection from Industry, EPA issued its finding that hydraulic fracturing (fracking) activities in the U.S. may have impacts on the water lifecycle, affecting drinking water resources. The Agency had put out a draft of the report for public comment in June 2015, which we blogged on at that time. 80 Fed. Reg. 32111.

The report was prepared at the request of Congress. Its purpose was to follow water resources used for fracking through the entire water cycle from water acquisition, to chemical mixing at the well pad site, to well injection of fracking fluids, to the collection of fracking wastewater (including flowback and produced water), and finally, to wastewater treatment and disposal. EPA claimed that the study “identified conditions under which impacts from hydraulic fracturing activities can be more frequent or severe.” The report also identified “data gaps [that] limited EPA’s ability to fully assess impacts to drinking water resources both locally and nationally.” The final conclusions were based on review of over 1,200 cited sources.

In response to EPA’s report, the American Petroleum Institute (API) blasted the EPA’s “abandonment of science in revising the conclusions to the Assessment Report….” API and the fracking industry requested changes to EPA’s Draft Report that EPA did not incorporate in the Final Report. As a result, API Upstream Director Erik Milito said, “the agency has walked away from nearly a thousand sources of information from published papers, technical reports and peer reviewed scientific reports demonstrating that industry practices, industry trends, and regulatory programs protect water resources at every step of the hydraulic fracturing process.”

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

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

iStock_000025685589_HiResSeyfarth Synopsis: OSHA Publishes RFI on Proposed Rule Concerning Workplace Violence in Healthcare and Social Assistance Industries.

Federal OSHA currently enforces workplace violence under the General Duty Clause, under which OSHA requires employers to take affirmative steps to protect their employees.  In a not-so-surprising action, OSHA is considering whether to commence rulemaking proceedings on a new standard for preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients and clients. Prevention of Workplace Violence in Healthcare and Social Assistance, 81 Fed. Reg. 88147 (December 7, 2016).

Workplace violence affects numerous healthcare and social assistance workplaces, including psychiatric facilities, hospital emergency departments, community mental health clinics, treatment clinics for substance abuse disorders, pharmacies, community-care facilities, residential facilities and long-term care facilities. Professions affected by the proposed rulemaking include physicians, registered nurses, pharmacists, nurse practitioners, physicians’ assistants, nurses’ aides, therapists, technicians, public health nurses, home healthcare workers, social and welfare workers, security personnel, maintenance personnel, and emergency medical care personnel.

According to OSHA, workers in the Health Care and Social Assistance sector (NAICS 62) face a substantially increased risk of injury due to workplace violence. In 2014 data from the Bureau of Labor Statistics’ (BLS) Survey of Occupational Injuries and Illnesses (SOII), workers in this sector experienced workplace-violence-related injuries at an estimated incidence rate of 8.2 per 10,000 full time workers, over 4 times higher than the rate of 1.7 per 10,000 workers in the private sector overall. Individual portions of the healthcare sector have much higher rates. Psychiatric hospitals have incidence rates over 64 times higher than private industry as a whole, and nursing and residential care facilities have rates 11 times higher than those for private industry as a whole. In 2014, 79 percent of serious violent incidents reported by employers in healthcare and social assistance settings were caused by interactions with patients.

As we noted above, this action is consistent with OSHA’s past initiatives in this sector. For instance, in August 2016 we blogged about how “NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers,” in December 2015 we noted that “OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting,” in July 2015 we blogged that “Healthcare Employers to Get Even More Attention from OSHA,” and in April 2015 we blogged that “OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers.” Also, this action follows on “CA Nears Adoption of New Workplace Violence Regulations for Health Care Employers, Home Health Providers, and Emergency Responders.”

Comments on the RFI for OSHA Docket No. OSHA–2016–0014 are due on April 6, 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 or the Workplace Counseling & Solutions Team.

By Andrew H. Perellis, Kay R. Bonza, and Craig B. Simonsen

shutterstock_132968252

Seyfarth Synopsis: With the EPA adding the consideration of vapor intrusion in its Superfund site investigations, hundreds of sites that previously would not rank high enough to qualify for listing on the National Priorities List of contaminated sites would now likely qualify.

The U.S. Environmental Protection Agency (EPA) has just released a pre-publication version of its final rule to add a subsurface intrusion (SsI) component to the Superfund Hazard Ranking System (HRS).  EPA defines subsurface intrusion as the migration of hazardous substances, pollutants, and contaminants from the unsaturated zone or the surficial (shallow) ground water into overlying structures. The most common form of subsurface intrusion is vapor intrusion.  Vapor intrusion occurs when vapor-forming chemicals from sources including dry cleaning solvents and industrial de-greasers in ground water or soil migrate into buildings and other enclosed spaces, posing a threat to indoor air quality.

We had blogged previously when the Agency proposed this new rule. See EPA Plans to Ease Path to Superfund Listing: Vapor Intrusion Component to be Added to the Hazardous Ranking System. Before this rulemaking, the EPA addressed SsI at sites only when those sites were listed on the National Priorities List (NPL) for another contamination issue.  By adding the consideration of vapor intrusion to the HRS, hundreds of sites that previously would not rank high enough to qualify for listing on the NPL could now qualify based soley on the threat of vapor intrusion. NPL listing is a prerequisite to EPA spending sums over $2 million to investigate and conduct remedial actions under Superfund.  NPL-listed sites are generally more expensive to remediate and more difficult to sell than are other environmentally distressed properties.

In his blog on the topic Mathy Stanislaus, Assistant Administrator for the Office of Land and Emergency Management, indicates that the new rule will allow the “EPA site assessment program to address two additional types of sites: those that either have only subsurface intrusion issues, and those with subsurface intrusion issues that are coincident with a groundwater or soil contamination problem.”

In its support materials for the proposal, EPA noted that the Government Accountability Office (GAO) had concluded that “if vapor intrusion sites are not assessed and, if needed, listed on the NPL, there is the potential that contaminated sites with unacceptable human exposure will not be acted upon.”  The HRS is Appendix A to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), and is used by EPA to identify hazardous waste sites eligible to be added to the NPL.

The Agency has also provided an FAQ and an Interim SsI Superfund Chemical Data Matrix Table.

According to EPA’s news release on the rule, “this regulatory change does not affect the status of sites currently on or proposed to be added to the NPL. This modification only augments criteria for applying the HRS to sites being evaluated in the future.”

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