Hazardous Materials

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

Seyfarth Synopsis:  The Occupational Safety and Health Administration announced that it is pushing back the effective date of parts of the rule limiting workers’ exposure to beryllium until May, while it negotiates with manufacturers and groups that have sued over the rule.

In January 2017, OSHA issued new health standards addressing exposure to beryllium in all industries (the “Beryllium Rule”).  The general industry standard, 29 CFR 1910.1024, had an effective date of March 10, 2017.

Then in June 2017, OSHA published a Notice of Proposed Rulemaking proposing to revoke the ancillary provisions of the construction and shipyard standards, such as housekeeping and personal protective equipment requirements, but retain the new Beryllium Permissible Exposure Limit (PEL) of 0.2 µg/m3 over an 8-hour TWA and short-term exposure limit (STEL) of 2.0 µg/m3 in a 15-minute period.

In response to feedback from stakeholders, the Agency is considering additional technical updates to the January 2017 general industry standard, which would clarify and simplify compliance with requirements.

In a recently-released interpretation memo, Delay of Enforcement of the Beryllium Standards under 29 CFR 1910.1024, 29 CFR 1915.1024, and 29 CFR 1926.1124, OSHA notes that it has been in settlement discussions with parties that filed legal actions challenging the general industry standard.  “In order to provide additional time to conclude those negotiations, we have decided to delay enforcement of the general industry standard by 60 days until May 11, 2018.”

“Furthermore, to ensure employers have adequate notice before OSHA begins enforcing them, as well as in the interest of uniform enforcement and clarity for employers, we have decided to also delay enforcement of the PEL and STEL in the construction and shipyard standards until May 11, 2018.  No other parts of the construction and shipyard beryllium standards will be enforced without additional notice.”

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

By Brent I. Clark, James L. Curtis, Patrick D. Joyce, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just released several fact sheets applicable to industries regulated under the Crystalline Silica Standards in Construction Rule.

OSHA has recently released several silica dust fact sheets, including Controlling Silica Dust in Construction – Crushing Machines Fact Sheet (OSHA FS-3935 – 2017), Controlling Silica Dust in Construction – Heavy Equipment and Utility Vehicles Used During Demolition Activities Fact Sheet (OSHA FS-3936 – 2017), Controlling Silica Dust in Construction – Heavy Equipment and Utility Vehicles Used for Grading and Excavating Tasks Fact Sheet (OSHA FS-3937 – 2017), and Controlling Silica Dust in Construction – Large Drivable Milling Machines (Half Lane and Larger) Fact Sheet (OSHA FS-3934 – 2017).

The fact sheets reiterate OSHA’s position that when inhaled small particles of silica can irreversibly damage the lungs. The fact sheets describe dust controls that can be used to minimize the amount of airborne dust when using crushing machines and heavy equipment, as listed in Table 1 of the Respirable Crystalline Silica Standard for Construction.  Specific engineering controls listed are “wet methods,” and “dust suppressants,” and “exhaust ventilation,” and “operator isolation” such as “enclosed cab.”

We will continue to keep readers updated as this issue progresses.

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: In a win for labor, the DC Circuit Court of Appeals orders the remand of the Crystalline Silica Standard for Construction and General Industry (Silica Rule) for OSHA to explain its decision to omit medical removal protections.

In a decision this morning, the U.S. Court of Appeals for the District of Columbia has remanded the Silica Rule to OSHA, holding that “OSHA was arbitrary and capricious in declining to require [medical removal protection] for some period when a medical professional recommends permanent removal, when a medical professional recommends temporary removal to alleviate COPD symptoms, and when a medical professional recommends temporary removal pending a specialist’s determination.”  The Court remanded the Rule to OSHA to reconsider or further explain those aspects of the Rule.  North America’s Building Trades Unions v. OSHA, No. 16-1105 (December 22, 2017).

This is a win for labor that had fought to have the measures included in the new Rule.  The Court rejected other challenges to the Rule raised by business and industry groups.

We have previously blogged about crystalline silica and this rulemaking, including OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards, OSHA Adopts 30-Day “Phase-In” of Enforcement of Crystalline Silica Standard for Construction, OSHA Proposes Silica Worker Exposure Hazards Rule, and New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries.

We will continue to keep readers updated as this issue progresses.

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, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has recently published “Small Entity Compliance” Guides for the new Crystalline Silica Standard for Construction and General Industry.

OSHA recently released small entity compliance guides for both construction and general industry.  See Small Entity Compliance Guide for the Respirable Crystalline Silica Standard in Construction (OSHA 3902 – 2017), and Small Entity Compliance Guide for the Respirable Crystalline Silica Standard for General Industry and Maritime (OSHA 3911 – 2017).

OSHA does not define what it means by “small entity” in the Guides, other than referring to helping “small businesses.”  Generally, under the Small Business Act, Public Law 85-536, as amended, a small business concern is one that is “independently owned and operated and which is not dominant in its field of operation.”

We have previously blogged about crystalline silica, such as: OSHA Adopts 30-Day “Phase-In” of Enforcement of Crystalline Silica Standard for Construction, OSHA Proposes Silica Worker Exposure Hazards Rule, and New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries.

Crystalline silica ubiquitous in modern society. Crystalline silica is found in many naturally-occurring building 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 containing crystalline silica is used in foundry work and hydraulic fracturing (fracking) operations.

While these Guides may assist employers in understanding compliance with the new rules, note that OSHA specifically states that:

This document provides guidance only, and does not alter or determine compliance responsibilities, which are laid out in OSHA standards and the Occupational Safety and Health Act. This guide does not replace the official Respirable Crystalline Silica standard [s].  The employer must refer to the standard to ensure that it is in compliance. Moreover, because interpretations and enforcement policy may change over time, for additional guidance on OSHA compliance requirements the reader should consult current administrative interpretations and [OSHRC] decisions….

Employers who work with silica must now comply with the Crystalline Silica Standard.  Due to the complexity of the regulations and requirements, we recommend you contact your occupational safety and health attorney as soon as possible to discuss a path to compliance.

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 and Craig B. Simonsen

Seyfarth Synopsis: OSHA announced a thirty day phase-in for enforcement of the Crystalline Silica Standard for Construction under 29 CFR 1926.1153.  The new rule will be fully effective by Monday, October 23, 2017.

OSHA’s new crystalline silica rule is wide-reaching and, for that reason, the rulemaking has been contentious. We have blogged about crystalline silica many times: 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.

Crystalline silica is a staple of modern society. Crystalline silica is a common mineral 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 containing crystalline silica is also used in certain foundry work and hydraulic fracturing (fracking) operations.

OSHA estimates that 2.3 million workers are potentially exposed to crystalline silica on the job, and that nearly 676,000 workplaces will be affected by the crystalline silica rule, including in construction and in general industry and maritime. The rule was expected to result in annual costs of $1,524 for the average workplace covered by the rule. The total cost of compliance with the rule was estimated at “just over $1 billion” (per year).

In an effort to remedy some of the difficulties that have arisen to come into compliance with the construction portion of the new rule, the Agency had previously decided to delay enforcement of the standard from June 23, 2017, until September 23, 2017.

Now that September 23 has passed, the Agency issued a standard interpretation letter for the Launch of Enforcement of the Respirable Crystalline Silica in Construction Standard, 29 CFR § 1926.1153.  The new rule will be fully effective on Monday, October 23, 2017.  Specifically the interpretation states that:

During the first 30 days of enforcement, OSHA will carefully evaluate good faith efforts taken by employers in their attempts to meet the new construction silica standard. OSHA will render compliance assistance and outreach to assure that covered employers are fully and properly complying with its requirements. Given the novelty of the Table 1 approach, OSHA will pay particular attention to assisting employers in fully and properly implementing the controls in the table. OSHA will assist employers who are making good faith efforts to meet the new requirements to assure understanding and compliance.

If, upon inspection, it appears an employer is not making any efforts to comply, OSHA’s inspection will not only include collection of exposure air monitoring performed in accordance with Agency procedures, but those employers may also be considered for citation. Any proposed citations related to inspections conducted in this time period will require National Office review.

For employers in these industries, it is important to note that this phase in period provides little additional time to come into compliance with the new rule. Due to the complexity of the rule, we recommend you contact your occupational safety and health attorney as soon as possible to discuss a path to compliance.

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, 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.