By Jeryl L. Olson and Craig B. Simonsen

Seyfarth Synopsis:  Last week the U.S. Environmental Protection Agency (EPA) finalized a “streamlined system” for managing hazardous waste aerosol cans as Universal Waste.  The Agency believes that the new system will be “clear, practical, and protective” and will promote recycling, and estimates the change will save at least $5.3 million annually in regulatory costs.

EPA has released a pre-publication version of the new Universal Waste Rule for Aerosol Cans under 40 CFR Part 273, in anticipation of the official publication of this new final rule.

The Agency indicates that the new rule affecting the management of used aerosol cans under the Universal Waste (“UW”) Program of 40 CFR Part 273, will benefit approximately 25,000 facilities across numerous industries, including retail, construction, and manufacturing sectors.  EPA announced that the “simplified structure of the universal waste program will help improve regulatory compliance, make aerosol can collection more economical, and facilitate the environmentally sound recycling of this common waste stream.”

While the final rule will affect all facilities who generate, transport, treat, recycle, or dispose of hazardous waste aerosol cans, it primarily affects generators (excepting Very Small Quantity Generators (VSQGs)), and handlers of waste aerosol cans.  Furthermore, the two top economic sectors estimated by EPA as having the largest percentage of potentially affected entities are the retail trade industry (69% of the affected universe), and manufacturing (17% of the affected universe).  The next largest concerns are transportation and warehousing, and health care and social assistance.

In addition to the UW standards that apply to all UW generators and handlers (that is, rules specifying labeling and marking of UW, accumulation time limits, employee training, release response, and for LQGs, notification and tracking of UW), rules for the puncturing of aerosol cans by generators who intend to recycle the empty cans as scrap or by handlers of UW aerosol cans, including facilities that puncture cans, requirements for utilizing commercial devices to safely puncture cans, drain contents, contain residual contents and control emissions from puncturing and draining activities.  (Note, EPA is not specifying any particular device be used by handlers for puncturing cans, nor is it prohibiting the use of self-designed equipment; rather, it is requiring that generators or handlers that do puncture cans use some type of commercial device for puncturing and controlling emissions.  Note further that generators or handlers who puncture and drain cans must manage the drained material in full compliance with RCRA).

Finally, the new UW Rules require generators/handlers to accumulate aerosol cans in a structurally sound container, and to establish a UW training program for employees that manage UW,  including aerosol cans.

Leaking and Damaged Cans.

Although the proposed rule excluded leaking or damaged aerosol cans from being managed as UW, the final rule allows damaged/leaking cans to be managed as UW if separately packaged in a closed container, over-packed, and drained in accordance with the aerosol can UW requirements.

States with Existing Aerosol Can Rules

For the five states with their own aerosol can rules (California, Colorado, New Mexico, Ohio, Utah, and soon, Minnesota), those state rules have been deemed by USEPA to be similar to the new Part 273 rules for SQGs and LQGs, with consistent rules for puncturing and draining aerosol cans.

Aerosol Cans that are Recycled

Where aerosol cans are being recycled rather than disposed, cans which have been punctured and drained prior to recycling are considered exempt scrap metal under 40 CFR 261.6(a)(3)(ii) and are exempt from the UW rules, and there is no requirement that a waste determination be made on the RCRA-empty cans to be recycled.  The materials removed from the cans however must be properly managed under RCRA.

Waste from Aerosol Cans

Before managing cans as UW, generators do not need to remove the contents from the cans, that is, the cans do not need to be drained at the generator facility.  Rather, a generator can put an aerosol can into the UW aerosol can container with residual material inside.  However, when a handler subsequently punctures/drains a can, the waste generated must be properly managed as a hazardous waste.

The administrative record for the rulemaking is found at EPA-HQ-OLEM-2017-0463.  The new rule will become final sixty (60) days after its publication in the Federal Register.

We had blogged previously on EPA’s New Strategy for Addressing the Retail Sector under RCRA, that was EPA’s attempt to address the unique challenges the retail sector faces in complying with RCRA’s hazardous waste regulations, including challenges relating to aerosol cans.

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 James L. Curtis, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: Employers should prepare for the holiday shopping season and protect their employees from harm and injuries.

As the holiday shopping season approaches, we are again reminding retail and hospitality employers of the importance of taking safety precautions during the holiday season’s major sales events, such as Black Friday.

Holiday shopping has increasingly become associated with violence and hazards.  There has been numerous instances of riots, shootings, and pepper-spray attacks in crowds looking for holiday deals.  In one case, a worker was trampled to death while a mob of shoppers rushed through the doors of a store to take advantage of a Black Friday sales event.  Events of violence and shooting at malls and retail establishments have become all too common in our society.  Additionally, retail distribution centers that fill customer orders are exceedingly busy at this time of year and often staffed with new and/or temporary workers.  Such increased staffing levels can lead to increased workplace accidents.

Under OSHA’s general duty clause, “employers are responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death.”  To minimize injuries in the workplace during the holiday season, OSHA’s website on Holiday Workplace Safety provides employers with recommendations for crowd management plans and safe practices for retail distribution centers.

Retailers are advised to review and implement the OSHA suggestions for crowd management. Adopting, implementing, and training store employees on the crowd management plan will both lessen the risk of employee and shopper incidents, and will assist the employer in fending off potential OSHA enforcement proceedings, should an accident occur.

Employers should also review workplace violence programs and remind supervisors to keep their eyes open for signs of potential workplace violence issues.

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 James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just updated its “Protecting Temporary Workers” website, for staffing agencies and their clients (i.e., host employers). The page reminds these employers that they are jointly responsible for a  temporary employee’s safety and health .

We have blogged previously about OSHA’s enforcement activities and guidance documents relating to temporary workers: OSHA Releases Two More Temporary Worker Guidance Documents, New Guidance for ‘Recommended Practices’ to Protect Temporary Workers, OSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers, and OSHRC Reviews Employment Relationships.

OSHA has released a Temporary Workers’ Rights Pamphlet (TWI Pamphlet) and a Temporary Worker Initiative pamphlet on “Safety and Health in Shipyard Employment.” The TWI Pamphlet is a small handout card that reminds staffing agency employees that they “have the same rights as permanent workers.” The second TWI pamphlet, on Safety and Health in Shipyard Employment, is a ten page summary of staffing employee safety law, rules, and policy for shipyard employers and workers.

Employer Takeaway

It is OSHA’s view that staffing agencies and host employers are “jointly responsible” for temporary workers’ safety and health. As these two newly published bulletin’s make clear, fulfilling the shared responsibility for temporary worker safety requires thoughtful coordination between staffing agencies and host employers. OSHA has previously acknowledged that a host employer may have more knowledge of the specific hazards associated with the host worksite, while the staffing agency has a more generalized safety responsibility to the employees. As a result, OSHA allows host employers and staffing agencies to divide training responsibilities based upon their respective knowledge of the hazards associated with the specific worksite. While host employers will typically have primary responsibility for training and communication regarding site specific hazards, staffing agencies must make reasonable inquiries to verify that the host employer is meeting these requirements.

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 Joshua M. Henderson, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis:  CalOSHA emergency regulation for workers exposed to wildfire smoke..

With wildfires now active in many parts of California, it’s important that employers in California remember Cal/OSHA’s emergency regulation, Protection from Wildfire Smoke, Section 5141.1, that applies to outdoor workers and workers in semi-indoor places. Think day laborers, like agricultural workers, landscapers, construction workers, sanitation workers, etc.  Requirements kick in when the current Air Quality Index (AQI) for airborne particulate matter (PM 2.5) is 151 or greater, and where employers should reasonably anticipate that employees could be exposed to wildfire smoke.

Employers must take the following steps to protect workers who may be exposed to wildfire smoke:

  • Identify harmful exposure to airborne particulate matter from wildfire smoke at the start of each shift and periodically thereafter by checking the AQI for PM 2.5 in regions where workers are located.
  • Reduce harmful exposure to wildfire smoke if feasible, for example, by relocating work to an enclosed building with filtered air, or to an outdoor location where the AQI for PM 2.5 is 150 or lower.
  • If employers cannot reduce workers’ harmful exposure to wildfire smoke so that the AQI for PM 2.5 is 150 or lower, they must provide:
  1. Respirators such as N95 masks to all employees for voluntary use, and
  2. Training on the new regulation, the health effects of wildfire smoke, and the safe use and maintenance of respirators.

Also, employers need to establish and implement a system for communicating wildfire smoke hazards with employees, and ensure that employees may report such hazards without fear of reprisal.

The regulation will be effective through January 28, 2020, with two possible 90-day extensions. Cal/OSHA held an advisory meeting earlier this year seeking input on the development of a permanent regulation. Meeting details and documents are posted on Cal/OSHA’s website.

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

By: James L. Curtis and Adam R. Young

Seyfarth Synopsis: The National Safety Council released a policy statement endorsing employer zero-tolerance policies for cannabis use for employees who work in safety-sensitive positions, explaining that no level of cannabis is safe.

Unlike a test for Blood Alcohol Content, testing results for Tetrahydrocannabinol (THC) metabolites (the psychoactive components of cannabis) do not directly demonstrate employee impairment. Positive tests for cannabis can reflect past usage by an employee who is not impaired. Because the science has not yet created a test which can definitely show cannabis impairment, several legal frameworks presume impairment from positive drug test results. Employers have raised the question of what “levels” of marijuana metabolites are “safe” for employees at work and on duty, and how best to address positive drug test results. The National Safety Council (NSC), a respected national body of safety professionals, released a policy statement on October 21, 2019 addressing cannabis issues.

After acknowledging that the amount of THC detectable in the body does not directly correlate to a degree of impairment, the NSC advises employers that it is unsafe to be under the influence of cannabis while working in a safety sensitive position. “Safety-sensitive” refers to positions where drug impairment can significantly jeopardize the safety of the employee, co-workers, or third parties. The NSC explains that any level of cannabis in the system should be unacceptable, as it leads to an increased risk of injury or death to the employee and others.

In support of its contention that employers should have a zero-tolerance policy for employees in safety-sensitive positions, the NSC cites a National Institute of Drug Abuse study that found that employees who tested positive for cannabis had:

  • 85% more injuries;
  • 55% more industrial incidents; and
  • 75% higher absenteeism rate.

The NSC further cites an Insurance Institute for Highway Safety study that found a 5.2% increase in the rate of crashes post-cannabis legalization in three states as compared to before legalization.

In its policy statement, the NSC further recommends assigning employees to non-safety sensitive positions when they use marijuana for medical reasons, as a mandatory accommodation.

As a group of safety professionals, the NSC’s primary concern is employee safety. The organization’s recommendations may conflict with applicable laws or may require additional nuance and refinement. Employers should consult with legal counsel before implementing the NSC’s recommendations to ensure compliance with the Americans with Disabilities Act, state cannabis laws, and other federal and state rules.

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) or Workplace Policies and Handbooks Teams.

By Andrew H. PerellisRebecca A. Davis, and Craig B. Simonsen

Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) published its final rule this week to repeal the 2015 rule that “impermissibly expanded the definition of ‘waters of the United States’ (WOTUS)” under the Clean Water Act.  84 Fed. Reg. 56626 (Oct. 22, 2019).

The WOTUS rulemaking has been fraught with controversy and has generated well over 1-million public comments in the Agency record.

We have previously blogged on the WOTUS rulemaking. See EPA and Corps of Engineers Propose New “Waters of the United States” Definition, EPA and Corps Add Years to “Effective” Applicability Date of WOTUS Rule, Executive Order on Restoring the Rule of Law … by Reviewing the “Waters of the United States” Rule, EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water ActProposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?

The intention is that this final rule will repeal the 2015 Rule and restore the previous regulatory regime exactly how it existed prior to finalization of the 2015 Rule.

The final rule completes the objectives stated by  EPA Administrator Andrew Wheeler and Department of the Army Assistant Secretary of the Army for Civil Works, R.D. James, who previously announced that “EPA and the Department of the Army finalized a rule to repeal the previous administration’s overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed.”  “[This] Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2 – a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”

As we had blogged about in December 2018, EPA and the Army proposed a new definition—Step 2—that would “clearly define where federal jurisdiction begins and ends in accordance with the Clean Water Act and Supreme Court precedent.”  The proposal provides a “clear definition of the difference between federally regulated waterways and those waters that rightfully remain solely under state authority.”

This final rule takes effect on December 23, 2019.

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. ClarkJames L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  The Federal Motor Carrier Safety Administration (FMCSA) recently rolled out Our Roads, Our Safety, a national safety campaign to raise awareness about sharing the road safely with large trucks and buses. 

The Agency noted that “trucks and buses are much more difficult to maneuver, have massive blind spots, and take far longer to stop.  Awareness of these differences, and some simple adjustments, can help everyone using the roads and keep us all as safe as possible.”  The Agency’s new materials include Voices of Safety public safety awareness video and audio messages, a variety of infographics with messages about the specific operating challenges that buses and trucks face, an Our Roads, Our Safety brochure that shares facts and tips for driving safely around large trucks and buses, a Large Trucks & Buses by the Numbers fact sheet provides high-level crash data and statistics, and Tip Sheets, that are designed for bicyclists and pedestrians, bus and truck drivers, and passenger vehicle drivers.  An issue covered in the materials is distracted driving.  The Agency is providing these materials free-to-use as a way to raise awareness.

Employers regulated by the FMCSA must prioritize policies and training on the safe operation of those vehicles, including a clear prohibition against texting on a hand held cell phone while driving. Failure to address this hazard can result in significant employer liability under the FMCSA, and in tort litigation.

While the FMCSA has updated its distracted driving website, distracted driving is not a new issue. We have blogged previously and frequently on the hazard of distracted driving.  See OSHA Updates on Distracted Driving in Employment and in the Workplace, Cell Phones at the Workplace: Protecting Employee Safety, Employees Using Cellphones And Other Portable Devices While Driving: Should Employers Ban This Completely?, National Safety Council Congress Session on Driving Safety – The Missing Link in Your Company Safety and Health Management Systems, Employees Driving In Illinois? What Employers Need to Know, Have Yourself a Safe, Undistracted, and Accident Free Holiday, President Declares “National Impaired Driving Prevention Month”.

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) or Workplace Policies and Handbooks Teams.

By Brent I. ClarkJames L. Curtis, Mark A. Lies, IIAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA reminds employers of the hazards of distracted driving. 

OSHA has recently released a “Guidelines for Employers to Reduce Motor Vehicle Crashes.”  OSHA states that “every 12 minutes someone dies in a motor vehicle crash, every 10 seconds an injury occurs and every 5 seconds a crash occurs.  Many of these incidents occur during the workday or during the commute to and from work.  Employers bear the cost for injuries that occur both on and off the job. Whether you manage a fleet of vehicles, oversee a mobile sales force or simply employ commuters, by implementing a driver safety program in the workplace you can greatly reduce the risks faced by your employees and their families while protecting your company’s bottom line.”

OSHA also publishes a Distracted Driving Initiative poster, in which it targets texting as a major cause of workplace injuries.  Previously, in an open letter to employers, then OSHA Administrator Dr. Michaels said, “it is your responsibility and legal obligation to have a clear, unequivocal and enforced policy against texting while driving….Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their jobs. OSHA will investigate worker complaints, and employers who violate the law will be subject to citations and penalties.”  According to OSHA, it has used its General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, to issue citations and proposed penalties in these circumstances.  OSHA considers “distracted driving” to be a “recognized hazard” in the industry under the General Duty Clause to employee safety.

While OSHA has updated its distracted driving website, distracted driving is not a new issue. We have blogged previously and frequently on the hazard of distracted driving.  See Cell Phones at the Workplace: Protecting Employee Safety, Employees Using Cellphones And Other Portable Devices While Driving: Should Employers Ban This Completely?, National Safety Council Congress Session on Driving Safety – The Missing Link in Your Company Safety and Health Management Systems, Employees Driving In Illinois? What Employers Need to Know, Have Yourself a Safe, Undistracted, and Accident Free Holiday, President Declares “National Impaired Driving Prevention Month”.

Employers whose businesses require the use of cars, vans or trucks should consider developing written policies and documented training of employees on the safe operation of those vehicles, including a clear prohibition against texting on a hand held cell phone while driving. Failure to address this potential hazard can result in significant employer liability under OSHA and in tort litigation.

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) or Workplace Policies and Handbooks Teams.

By Jennifer L. Mora, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Western District of New York, in Horn v. Medical Marijuana, Inc., et al., issued an initial procedural order last week in a case where the plaintiff’s purchase and use of the defendant products resulted in a failed drug test that resulted in his employer terminating his employment.  Horn v. Medical Marijuana, Inc., et al. No. 15-cv-701-FPG (W.D.N.Y.)

We have noted previously that the federal Drug Enforcement Agency (DEA) recently announced that drugs that include CBD (cannabidiol) with less than 0.1% of THC (tetrahydrocannabinols) are now considered Schedule V drugs provided they are approved by the federal Food and Drug Administration (FDA).  The move marked the first time the DEA removed any form of cannabis from Schedule I and was due to the FDA’s approval of Epidiolex, a non-synthetic cannabis-derived medicine used to treat severe epilepsy.  Setting aside this very limited exception, marijuana and CBD remain illegal under federal law.  And while CBD is projected to be a $22 billion industry by 2022, many employers remain hazy about this extremely popular product and the implications it has for their employees and businesses.

We had previously blogged on The Stoned Age: What the CBD Craze Means for Employers and Their Substance Abuse Policies, CBD is Everywhere – But Where Does the FDA Stand?, CBD: Uncertainty for Restaurants and Retailers, and FDA: .1% CBD OK.  As the legalization and normalization of these products becomes more prevalent, their encroachment into the workplace becomes more and more likely, and more of an ongoing issue for employers. Now, we are seeing CBD companies being sued for allegedly promoting “pure CBD” products that might actually contain THC and, thus, creating work-related issues for applicants and employees using these products.

In Horn v. Medical Marijuana, Inc., et al., the plaintiff was a professional over-the-road hazmat commercial truck driver who worked for the same company for 10 years and drove professionally for 29 years.  Plaintiff’s employment as a professional commercial driver required that he be and remain free of all illegal and impairing substances, including marijuana.  The plaintiff allegedly used a CBD product called Dixie X.   Subsequently, the plaintiff submitted to a random urinalysis screening as required by his employer, and as required by the U.S. Department of Transportation (DOT)’s drug and alcohol testing regulations set out in Part 40..  Plaintiff ultimately was terminated for testing positive for a “high level of THC.”

Before his termination, plaintiff asked an independent laboratory to test Dixie X CBD to determine if it did indeed contain THC.  That laboratory informed plaintiff that it could not run the tests on the Dixie X as the substance was illegal and contained THC levels well over the federal limit as per DEA regulations.

In his complaint, the plaintiff alleges that, among other claims, he had used products marked “THC free” and “non-THC,” and the defendants were “misleading the public at large through their misrepresentation of the true chemical compound make-up of products like DIXIE X.”  We will monitor this case as it progresses through the courts.

We continue to recommend that employers exercise caution when dealing with applicants and employees using medical marijuana or CBD.  As noted in our previous blogs, CBD is a recent and largely unregulated industry.  Thus, before taking any action against medical marijuana or CBD users, employers should review the laws of the states in which they operate and work with employment counsel to help navigate this complex and rapidly evolving area of the law.

Employers also may need to consider:

  • Revising their policies to define marijuana and address CBD use;
  • Training managers and supervisors on how to address situations where an employee defends a positive drug test by claiming use of CBD; and
  • Educating employees about CBD and zero tolerance policies.

Seyfarth Shaw will continue to monitor legal developments at the federal and state level.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Cannabis Law Practice or Workplace Policies and Handbooks Team.