By Andrew H. PerellisJeryl L. Olson, Brent I. ClarkPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  The regulated community had a pleasant surprise from President Trump this week.  The President issued two executive orders that have the stated intent to make closeted or last minute agency guidance and interpretations of federal rules a thing of the past.  The orders require notice and publication of the guidance and interpretations along with the creation of comprehensive online databases where they may be easily searched out and found.

President Trump, in another business friendly action, issued two executive orders this week.  They were the Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents (Executive Order on Guidance Documents), 84 Fed. Reg. 55235, and the Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication (Executive Order on Transparency), 84 Fed. Reg. 55239.  In the President’s Remarks, he noted that “today, we take bold, new action to protect Americans from out-of-control bureaucracy and stop regulators from imposing secret rules and hidden penalties on the American people.”

Many agencies, including the U.S. Environmental Protection Agency, the Occupational Safety and Health Administration, and the Department of Labor utilize guidance documents to provide the public, as well as agency enforcement and litigation personnel, with the agency’s interpretation of a policy, procedure or regulation.

The President indicated that the Orders were intended to improve public access to internal  agency guidance documents and to protect the public from previously-undisclosed interpretations of regulations. While Courts have been clear that agency guidance documents do not carry the force of law, the U.S. Supreme Court recently upheld judicial use of so-called Auer and Seminole Rock deference – a topic which we have blogged about extensively. While a guidance document itself cannot be legally binding, it could potentially provide an agency an avenue to argue that its interpretation should be accorded judicial deference. This potential argument is addressed in the Executive Order on Transparency, which prevents an agency for arguing that an unpublished guidance document should be accorded deference.

Major changes that the regulated community may look forward to include, from the Executive Order on Guidance Documents, Section 3, Ensuring Transparent Use of Guidance Documents:

(a) Within 120 days of the date on which the Office of Management and Budget (OMB) issues an implementing memorandum under section 6 of this order, each agency or agency component, as appropriate, shall establish or maintain on its website a single, searchable, indexed database that contains or links to all guidance documents in effect from such agency or component.  The website shall note that guidance documents lack the force and effect of law, except as authorized by law or as incorporated into a contract.

In Section 5 of the Executive Order on Transparency:

Any decision in an agency adjudication, administrative order, or agency document on which an agency relies to assert a new or expanded claim of jurisdiction — such as a claim to regulate a new subject matter or an explanation of a new basis for liability — must be published, either in full or by citation if publicly available, in the Federal Register (or on the portion of the agency’s website that contains a single, searchable, indexed database of all guidance documents in effect) before the conduct over which jurisdiction is sought occurs.  If an agency intends to rely on a document arising out of litigation (other than a published opinion of an adjudicator), such as a brief, a consent decree, or a settlement agreement, to establish jurisdiction in future administrative enforcement actions or adjudications involving persons who were not parties to the litigation, it must publish that document, either in full or by citation if publicly available, in the Federal Register (or on the portion of the agency’s website that contains a single, searchable, indexed database of all guidance documents in effect) and provide an explanation of its jurisdictional implications.  An agency may not seek judicial deference to its interpretation of a document arising out of litigation (other than a published opinion of an adjudicator) in order to establish a new or expanded claim or jurisdiction unless it has published the document or a notice of availability in the Federal Register (or on the portion of the agency’s website that contains a single, searchable, indexed database of all guidance documents in effect).

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

By Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  Federal OSHA has put grain handling safety right up-front on its main homepage.  OSHA wants you to “learn how to stay safe during grain handling operations.”

Concerning the Agency’s Grain Handling Facilities Standard, 29 C.F.R. § 1910.272, the Agency explained that “grain handling facilities are facilities that may receive, handle, store, process and ship bulk raw agricultural commodities such as … corn, wheat, oats, barley, sunflower seeds, and soybeans.”  The facilities include grain elevators, feed mills, flour mills, rice mills, dust pelletizing plants, dry corn mills, soybean flaking operations, and dry grinding operations of soycake.

The Agency continues to place an enforcement emphasis on grain handling facilities because the “grain handling industry is a high hazard industry where workers can be exposed to numerous serious and life threatening hazards.”  The hazards include: fires and explosions from grain dust accumulation, suffocation from engulfment and entrapment in grain bins, falls from heights and crushing injuries, and amputations from grain handling equipment.

Research has found that suffocation is a leading cause of death in grain storage bins. A report issued by Purdue University found that in 2010, 51 workers were engulfed by grain stored in bins, and 26 died.  “Suffocation can occur when a worker becomes buried (engulfed) by grain as they walk on moving grain or attempt to clear grain built up on the inside of a bin.  Moving grain acts like ‘quicksand’ and can bury a worker in seconds.”  It is estimated that about 400 pounds of pulling force is required to extract a body out of waist deep grain.

In addition, grain dust explosions can be severe.  OSHA has required enforcement of nationwide dust hazards from grain handling facilities.  According to OSHA, over the last 35 years, there have been over 500 explosions in grain handling facilities across the United States, which have killed more than 180 people and injured more than 675.  We had previously blogged on Updated Combustible Dust NFPA Industry Consensus Standard Gives OSHA New Tool to Cite Employers: Does Your Facility Comply?  In the blog we noted that compliance with the industry standard for combustible dust is set for September 2020.  But we suggested that industry not delay its compliance efforts, as OSHA is already citing employers using the not yet effective NFPA 652, Standard on the Fundamentals of Combustible Dust.

Accordingly employers who operate grain handling facilities should note federal OSHA’s ongoing enforcement emphasis, and ensure they are in full compliance.

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.

Image from www.osha.gov/SLTC/grainhandling.

By James L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Michigan Occupational Safety and Health Administration has amended its construction safety and health standards for fixed and portable ladders. The updated standard adds specified requirements for the use of self-supporting portable ladders.

Under the Federal Occupational Safety and Health Act, state plan states (like Michigan) must have standards that are at least as protective as the Federal OSHA regulations.  MIOSHA is amending the standard to correspond to the “recently revised federal regulations 1910 Subpart D, in order to be as effective as the federal Occupational Safety and Health Administration (OSHA) standards.  MIOSHA is adding R 408.41124(15), in order to be as effective as the federal OSHA standard in 1926.1053(a)(1)(i).

Specifically, the rule added the following language:

(15) An employer shall ensure that each self-supporting portable ladder complies with all of the following:

(a) A ladder must sustain at least 4 times the maximum intended load, except that each extra-heavy-duty type 1A metal or plastic ladder must sustain at least 3.3 times the maximum intended load.

(b) The ability of a ladder to sustain the loads indicated in this rule is determined by applying or transmitting the requisite load to the ladder in a downward vertical direction.

(c) Ladders built and tested in conformance with the applicable provisions of R 408.41111 , are deemed to meet this requirement.

The final rule was filed on July 18, 2019, and took effect on July 25.

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 Leon Rodriguez, Adam R. Young, Thomas E. Ahlering, Sara Fowler, Jake R. Downing, Jessica M. Stricklin, Jay A. Gitles, Michael Rechtin, Suzanne L. Saxman, Aaron M. Gillett, Jason Priebe, and Scott A. Carlson

Seyfarth Synopsis:  Stay ahead of the curve! The future is rapidly changing for health care providers. To keep up with emerging trends, changes and needs, it is important to get the latest information and ideas that can be leveraged to make strategic, compliant business decisions in the future while delivering patients a culture of excellence.

Please join Seyfarth Shaw, at our Chicago office (Willis Tower, 233 S. Wacker Drive, Suite 8000, Chicago, IL 60606), on Thursday, September 12, for an engaging presentation with speakers from each of Seyfarth Chicago’s departments, along with other health care leaders.

Additionally, our Key Note Speaker and Seyfarth Shaw partner, Leon Rodriguez, will analyze the current political landscape in Washington on major health care issues. With his previous service as the Director of the Office for Civil Rights in the U.S. Department of Health and Human Services under the Obama Administration, Leon offers a unique perspective on health care issues and the politics surrounding them in D.C.

Additional topics will include:

  • Leading presidential candidates’ plans for health care
  • Legislation we might expect from Congress in the near term
  • Recent developments on biometric privacy, medical marijuana and the Chicago Fair Workweek Ordinance
  • Trends in executive compensation in the health care sector
  • Critical issues of concern when leasing health care related property
  • Consolidation of hospitals and physician practice groups
  • Cybersecurity, record retention and management

There is no cost to attend, but registration is required, and seating is limited.  8:00 a.m. – 8:30 a.m. for breakfast and registration, and 8:30 a.m. – 11:00 a.m., for the panel presentation.

If you have any questions, please contact Kelsey Rustigian at krustigian@seyfarth.com and reference this event.

Seyfarth Shaw LLP is an approved provider of Illinois Continuing Legal Education (CLE) credit. This program is pending approval for 2.5 hours of CLE credit in CA, IL, NY, NJ, TX, GA and VA.

By Benjamin D. Briggs, Joshua M. HendersonPatrick D. JoyceAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  The Nanotechnology Research Center (NTRC), part of the National Institute for Occupational Safety and Health (NIOSH), has identified new safety hazards from the expanding nanotechnology industry.

We have previously blogged on future issues related to the safety of automation and technology in the workplace, including, National Safety Council Congress: Executive Forum Industry 4.0 – EHS in the Future of the Workplace, Future Enterprise – Workplace Safety Compliance Comes to the Forefront for Expanding Healthcare IndustryA Global Perspective on the Future of Wearable Technology, and Robotics, Automation, and Employee Safety for the Future Employer.

One of the potential safety issues facing employers relates to the use of nanomaterials and processes involving nanotechnology in the workplace. In a recent publication  (NIOSH Publication Number 2019-147, August 2019), the NTRC summarized its research aimed at understanding the potential effects on human health of exposure to engineered nanomaterials and seeking to develop methods to control or eliminate exposures.

According to NIOSH, nanoparticles are extremely small particles (between 1 and 100 nanometers, 10-9 m) that are designed to have certain new or unique characteristics, like strength, elasticity, or reactivity.  The concept is that these new and unique characteristics or properties make advanced materials and products possible.

The U.S. Occupational Safety and Health Administration (OSHA) has published a Fact Sheet, Nanotechnology: Working Safely with Nanomaterials (OSHA FS-3634 – 2013) to educate the public on safety hazards related to nanomaterials.  The Fact Sheet indicates that “workers who use nanotechnology in research or production processes may be exposed to nanomaterials through inhalation, skin contact, or ingestion.  The “fact sheet” provides basic information to workers and employers on the most current understanding of potential hazards associated with this rapidly-developing technology and highlights measures to control exposure to nanomaterials in the workplace.”

The OSHA Fact Sheet notes that “some examples of workplaces that may use nanomaterials include chemical or pharmaceutical laboratories or plants, manufacturing facilities, medical offices or hospitals, and construction sites.”

The NTRC Publication focuses on these areas from an occupational safety and health perspective to assist industry in preparing for the future by:

  • Increasing understanding of potential health risks to workers making and using nanomaterials.
  • Preventing occupational exposures to nanomaterials.
  • Evaluating potential worker health risks from advanced material and manufacturing processes.

For instance, the NTRC prioritizes the growing number of engineered nanomaterials for laboratory and field research, focusing on the ones that have the greatest potential for exposure and harm to workers.  NTRC conducts field investigations and epidemiological studies for a realistic understanding of exposure and risks to nanomaterial workers.  It also issues recommendations on how to use engineering controls and personal protective equipment to mitigate exposure to engineered nanomaterials, along with providing nanomaterial businesses with “guidance” on how to keep workers safe.

In that continuing effort, the NTRC recently published its “Continuing to Protect the Nanomaterial Workforce: NIOSH Nanotechnology Research Plan for 2018-2025.” (NIOSH Publication Number 2019-116, January 2019).  This Plan seeks to be “a roadmap to advance (1) understanding of nanotechnology-related toxicology and workplace exposures and (2) implementation of appropriate risk management practices during the discovery, development, and commercialization of engineered nanomaterials along their product lifecycle.”

Employer Takeaway

As we continue to move boldly into the future of nanotechnology, industries must make sure employees are knowledgeable and trained to work safely with these materials and the related processes and machines.  Company policies and training materials must be updated to adjust to these new hazards.

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 Jeryl L. Olson and Craig B. Simonsen

Seyfarth Synopsis: The EPA has posted an interesting flyer on “Our Nation’s Air,” the Status and Trends Through 2018.

According to the EPA Administrator Andrew Wheeler, “one of America’s great but untold environmental success stories is that we have made – and continue to make – great improvements in our air quality, thanks largely to state and federal implementation of the Clean Air Act and innovation in the private sector.”

The Agency has posted a “flyer” on the Status and Trends Through 2018, which we provide here.

Taken from https://gispub.epa.gov/air/trendsreport/2019/documentation/AirTrends_Flyer.pdf.

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 Benjamin D. Briggs, Brent I. ClarkIlana R. Morady and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) published this week a notice of proposed rulemaking (NPRM) on changes to “hours of service” (HOS) rules to “increase safety on America’s roadways.”  The proposal, if adopted, would update existing regulations for commercial motor vehicle (CMV) drivers.  

FMCSA’s proposed rule– which is designed to alleviate “unnecessary burdens” placed on drivers while maintaining safety — suggests five “key revisions” to the existing HOS rules:

  • The Agency proposes to change when drivers need to take their 30-minute break. Instead of requiring the break in the first eight hours of on-duty time, the agency has proposed requiring the break within the first eight hours of drive time, offering drivers more flexibility in its use.
  • The Agency proposes to modify the sleeper-berth exception to allow drivers to split their required 10 hours off duty into two periods: one period of at least seven consecutive hours in the sleeper berth and the other period of not less than two consecutive hours, either off duty or in the sleeper berth. Neither period would count against the driver’s 14‑hour driving window.  The proposal provides this illustration: a driver could decide after taking a 3-hour break (or any off-duty or sleeper berth break of at least 2 consecutive hours) [and] pair it with a sleeper berth break of 7 hours, (thus totaling 10 hours off duty).
  • The Agency proposes to allow one off-duty break of at least 30 minutes, but not more than three hours, that would pause a truck driver’s 14-hour driving window, provided the driver takes 10 consecutive hours off-duty at the end of the work shift.
  • The Agency proposes allowing drivers to extend their 14-hour on-duty period by up to two hours in the event of adverse conditions, such as weather or congestion.
  • The Agency proposes a change to the short-haul exception available to certain commercial drivers by lengthening the drivers’ maximum on‑duty period from 12 to 14 hours and extending the distance limit within which the driver may operate from 100 air miles to 150 air miles.

Once published in the Federal Register, the public comment period will be open for 45 days.

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) TeamWorkplace Counseling & Solutions Team, or the Workplace Policies and Handbooks Team.

By Andrew H. PerellisJeryl L. OlsonPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  Consistent with guidance issued by the Environmental Protection Agency (EPA) in March 2018, the Agency has now proposed to codify changes to the New Source Review (NSR) applicability regulations to clarify the requirements that apply to sources proposing to undertake a physical or operational change under the NSR PSD preconstruction permitting program.  The proposal would “make it clear that both emissions increases and decreases from a major modification at an existing source are to be considered during Step 1 of the two-step NSR applicability test.”  The process is known as “project emissions accounting” (previously known as project netting).

EPA Administrator Andrew Wheeler, in his related announcement, said that the Agency’s new rule “is an important step towards President Trump’s goal of reforming the elements of NSR that regularly discouraged facilities from upgrading and deploying the latest energy efficient technologies.”  “By simplifying the permitting process and implementing a common-sense interpretation of our NSR rules, we will remove a major obstacle to the construction of cleaner and more efficient facilities.”

In the March 2018 guidance memorandum, then Administrator Scott Pruitt explained that “EPA’s current NSR rules were reasonably interpreted to provide that, at the outset of the process to determine NSR applicability, emissions decreases projected to result from a proposed project could be taken into account along with any projected emissions increases.”  The proposed rule would codify and implement Pruitt’s 2018 guidance memorandum by making minor revisions to the text of the NSR permitting rules, to provide clarity, and to deliver more certainty to the regulated community.

This rulemaking is an important step in ensuring the guidance becomes law, providing industry important opportunities to accelerate the air permitting process.

EPA will accept public comment on the proposal for 60 days after it is published in the Federal 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 Joshua M. Henderson, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA’s new emergency regulation for workers exposed to wildfire smoke creates new obligations for many employers.

An emergency regulation on Protection from Wildfire Smoke applies to outdoor workers and to workers in semi-indoor places. Examples include day laborers, agricultural workers, landscapers, construction workers, and sanitation workers. Requirements (described below) 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 covered by the emergency regulation 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 by, for example, 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.

The regulation will be effective through January 28, 2020, with two possible 90-day extensions. Cal/OSHA plans to convene an advisory committee in Oakland on August 27 to establish a permanent regulation using the regular rulemaking process. 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 favorite Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.

By Bernie Olshansky and Ilana R. Morady

Seyfarth Synopsis: As the mercury rises, California employers must comply with regulatory requirements to keep their employees cool.  Employers should be aware of Cal/OSHA’s existing requirements for outdoor workplaces and proposed rules which could turn up the heat on indoor employers.

California Keeps It Cool

For many years, Cal/OSHA has distinguished itself from Federal OSHA by, among other things, requiring all California employers with outdoor work areas to take steps to prevent heat illness.  For example, employers with outdoor work areas must train all employees about heat illness protection and keep their employees well hydrated.  Employers must also provide shady areas for five minute cool-down breaks when employees feel the heat.  (These breaks are on the clock and separate from rest breaks employers need to provide under the Labor Code).  Finally, employers must develop and implement written procedures for complying with the heat illness regulatory requirements. The regulation is contained in 8 CCR 3395.

Proposed Rules May Put Indoor Employers in the Hot Seat

Now, Cal/OSHA has a proposed an indoor heat illness standard that’s making its way through the rule-making process. The final draft of these proposed rules would impose a number of requirements when it’s a good day to head to the beach—and indoor temperatures equal or exceed 82 degrees Fahrenheit.

For indoor work areas that can’t beat the heat, employers would need to provide:

  • Cool-down areas that are blocked from direct sunlight and radiant heat sources (e.g. the sun, a fire pit, or an overzealous espresso machine) and that are either open-air or ventilated. Employees would need to have access to cool-down areas at all times and employers would be required to encourage employees to take breaks to chill out.
  • Drinking water.
  • Emergency response procedures.
  • Close observation of employees under certain circumstances.
  • Training on heat illness related topics.
  • A written heat illness prevention plan.

Additional requirements would apply to employers that have employees working under hotter conditions, namely: if employees wear clothes that restrict heat removal (like waterproof or biohazard gear), employees work in or near radiant heat, or the thermostat hits 87 degrees.  In these cases, employers would need to:

  • Keep records of temperatures and evaluate environmental risk factors for heat.
  • Use engineering control measures (e.g. air conditioning) to minimize the risk of heat illness. If the temperature cannot be reduced to 87 degrees F (or 82 degrees F in some cases), employers would need to implement administrative controls and provide personal heat protective equipment.

Workplace Solutions: As summer heats up, employers must comply with existing California heat regulations.  Seyfarth’s Workplace Safety and Health Group can help you check the forecast for future regulations.

Edited by: Elizabeth Levy