By James L. CurtisKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  A railcar cleaning company and its executive officers were recently charged in a 22-count indictment with conspiracy, violating worker safety standards resulting in worker deaths, violating the Resource Conservation and Recovery Act (RCRA), and for submitting false documents to a federal agency.

Nebraska Railcar Cleaning Services LLC (NRCS) employees sent workers in to railcars to scrape and remove various commodities from tanker cars, including gasoline, ethanol, petroleum by-products, pesticides, herbicides, and food grade products.  Two of the company’s workers were killed and a third was injured when the contents of a railcar ignited while being cleaned.  According to the indictment, the company, NRCS and its owners and executives, allegedly failed to implement worker safety standards and then tried to cover that up during an Occupational Safety and Health Administration (OSHA) inspection.  The defendants also allegedly mishandled hazardous wastes removed from rail tanker cars during the cleaning process.

OSHA requires employers to test air in confined spaces such as rail tanker cars for hazardous gases prior to allowing employees to enter the confined workspace, and to provide employees exposed to certain chemicals with respirators for which they must be assessed and fit tested.  EPA requires facilities like NRCS to ensure that hazardous wastes generated are properly treated and disposed of.

The indictment alleges that after a 2013 inspection of NRCS, the company represented that NRCS had been testing for hazardous wastes, including benzene, since July 2014.  After OSHA returned to NRCS in March 2015 to conduct a follow-up inspection and was turned away, documents were “created” and submitted to OSHA to “falsely show” that NRCS had been purchasing equipment to test the contents of railcars for benzene and had taken other required safety precautions.  In addition, “during inspections by the Nebraska Department of Environmental Quality and the U.S. Environmental Protection Agency in 2013 and 2014 respectively, NRCS was informed that it was required to test its wastes to determine if they were hazardous in order to properly dispose of them, rather than send all untested waste to a landfill not permitted to receive hazardous waste.”  The indictment alleges that was not done before April 2015.

In April 2015, the contents of a railcar ignited while being cleaned by NRCS employees. Two employees were killed and a third was injured. Two days after the explosion, NRCS had three railcars tested to assess whether their contents were hazardous, and two were determined to be hazardous.

Employer Takeaways

This indictment presents a good example of what not to do when dealing with OSHA and environmental agency inspectors.  First, if the employer represents that it is implementing certain safety measures — do it!  Secondly, the case serves as a reminder of the importance of providing complete and accurate submittals to government entities.  A deliberate falsification can have serious ramifications, both by way of civil penalties and criminal prosecution.  As everyone has learned through countless infamous cases, it’s not the crime but the cover-up that will really come back to bite the employer.

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, James L. Curtis, and Craig B. Simonsen

Safety at workThe U.S. Department of Justice (DOJ) and the Department of Labor (DOL) announced last week an expansion of its worker endangerment initiative to address worker safety violations through the use of enhanced criminal fines and penalties.

According to Deputy Attorney General Sally Quillian Yates, “on an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” “Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”  Department of Labor Deputy Secretary Chris Lu stated that “today’s announcement demonstrates a renewed commitment by both the Department of Labor and the Department of Justice to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers.” DOJ News Release (December 17, 2015).

According to the DOJ, last year it held meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations. This culminated in a “decision to consolidate the authorities to pursue worker safety statutes within the Department of Justice’s Environment and Natural Resource Division’s Environmental Crimes Section.”  In a December 17, 2015 Memo, sent to all U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the Environmental Crimes Section in pursuing criminal prosecutions for worker endangerment violations.

The worker safety statutes had generally provided for only misdemeanor penalties.  However, prosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, “which often occur in conjunction with worker safety crimes,” to enhance penalties and increase deterrence.  Specifically, the Memo indicates that prosecutors can “make enforcement meaningful” by charging other serious offenses that often occur in association with OSH Act violations. Examples offered include false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. To facilitate interagency cooperation in implementing this initiative, the DOJ and the DOL have also executed a Memorandum of Understanding on Criminal Prosecutions of Worker Safety Laws (December 17, 2015).

Employers should be leery of these now “added” enforcement authorities. With penalties ranging from five to twenty years of incarceration and significant money fines, criminal enforcement of workplace safety accidents are now significantly more serious.

By Philip L. Comella and Craig B. Simonsen

iStock_000049177646MediumThe U.S. Environmental Protection Agency has promulgated significant new provisions both to its 1988 underground storage tank (UST) regulations and to its 1988 state program approval (SPA) regulations. 80 Fed. Reg. 41566 (July 15, 2015). This is the first major revision to the federal UST regulations since 1988.

The revisions to the UST technical regulations found in 40 CFR part 280 increase the EPA’s emphasis on “properly operating and maintaining UST equipment.” EPA has added new operation and maintenance requirements and addressed UST systems deferred in the 1988 UST regulation. The changes include:

  • Adding secondary containment requirements for new and replaced tanks and piping.
  • Adding operator training requirements.
  • Adding periodic operation and maintenance requirements for UST systems.
  • Adding requirements to ensure UST system compatibility before storing certain biofuel blends.
  • Removing past deferrals for emergency generator tanks, airport hydrant systems, and field-constructed tanks.
  • Updating codes of professional practice.

The 2015 state program approval amendments update the SPA requirements found in 40 CFR part 281, and incorporate the changes to the UST technical regulation found in 40 CFR part 280. Thirty-eight SPA states and the District of Columbia and Puerto Rico currently have SPA status and have three years to reapply in order to retain their SPA programs.

Useful and related tools provided by the Agency are a “Comparison of 2015 Revised UST Regulations and 1988 UST Regulations,” a “Red Line Strikeout of 40 CFR part 280 and 40 CFR part 281,” and its revised and updated “Musts For USTs” guidance document.

Facilities with regulated USTs should review carefully the new regulations to ensure their systems, processes, procedures, and training materials and systems are compliant with newly applicable requirements.

The final rule is effective October 13, 2015.

By Philip L. Comella and Craig B. Simonsen

The U.S. Environmental Protection Agency recently published its final rule for the national electronic manifest (e-Manifest) system, which upgrades the current paper-based system of tracking hazardous waste shipments and disposal.  79 Fed. Reg. 7518 (February 7, 2014).

The rule indicates that it affects approximately 160,000 entities in at least forty-five industries that are involved in shipping off-site, transporting, and receiving approximately 5.9 million tons of RCRA hazardous wastes annually. “These entities currently use between 4.6 and 5.6 million EPA Uniform Hazardous Waste Manifests to track hazardous waste shipments from the site of generation to sites of treatment, storage, or disposal.”

According to Mathy Stanislaus, EPA Assistant Administrator for the Office of Solid Waste and Emergency Response, this “action is a key step in bringing the oversight of these potentially dangerous materials into the 21st century.” “Once fully implemented, the national e-Manifest system will provide greater access for emergency responders to information about the types and sources of hazardous waste that are in transit between generator sites and waste management facilities.” EPA News Release.

We had previously blogged about the U.S. Environmental Protection Agency’s announced public meetings to “obtain public input from stakeholders” on the national electronic e-Manifest database system intended to capture information on shipments of hazardous wastes. The rulemaking had been described in and authorized by the Hazardous Waste Electronic Manifest Establishment Act. In announcing the public hearings EPA indicated “EPA envisions that e-Manifest will facilitate the electronic transmittal of manifests throughout the hazardous waste shipping process, including enabling better transparency by sharing data with the public at appropriate stages.”

The final rule is effective on August 6, 2014. However, “the implementation and compliance date for these regulations will be delayed until such time as the e-Manifest system is shown to be ready for operation and the schedule of fees for manifest related services has been announced.” Watch here for a full report.

Philip L. Comella, and Catherine McCord, of Heritage-Crystal Clean LLC, will co-present a Bloomberg BNA environmental webinar, on “The EPA’s New E-Manifest: Understanding the Changes to RCRA’s Cradle-to-Grave System”.

We had previously blogged about the U.S. Environmental Protection Agency’s public hearings on this topic, and about its subsequent request for information about e-manifest systems. For the past 33 years, the hazardous waste manifest has served as the mechanism for implementing the Resource Conservation and Recovery Act’s cradle-to-grave management of hazardous waste. However, the paper manifest system will soon give way to the digital age.

After the EPA’s unsuccessful attempt at promulgating an e-manifest rule in the early 2000’s, Congress enacted the Hazardous Waste Electronic Manifest Establishment Act last fall. This law directs the EPA to issue final regulations authorizing the use of electronic manifests and establish an e-manifest information technology system.

The e-manifest webinar will be on November 19, 2013, from 1:00 PM to 2:30 PM ET. Registration through BNA is required for attendance. Please let Phil know if you have and questions on this important topic.

By Philip L. Comella and Craig B. Simonsen

We had previously blogged about the U.S. Environmental Protection Agency’s announced public meetings to “obtain public input from stakeholders” on a national electronic manifest (e-manifest) database system intended to capture information on shipments of hazardous wastes.

The Agency has now published a Request for Information (RFI) on the concept of an e‑manifest system and its implementation. The RFI is seeking comments on the initial planning for a future e-manifest system, as described and authorized by the Hazardous Waste Electronic Manifest Establishment Act.

Specifically, EPA is seeking industry comments on whether there is an existing commercial e-manifest system available that can be adapted for use by the EPA as the national standard for tracking and transporting hazardous materials as defined by the Resource Conservation and Recovery Act. Alternatively, EPA asks if a commercial system is not available, what creative solutions from industry are there to address the need for an EPA e-manifest system. Additionally, EPA is seeking industry comments concerning the Agency’s proposed solutions to the funding challenges associated with an e-manifest initiative, and industry’s proposed solutions to that issue.

Interested parties may submit responses to the RFI by email to Bradley R. Austin, Contracting Officer, at, by 4:00 PM EST, on Monday, June 3, 2013.

By Andrew H. Perellis

It’s an all too familiar scenario. You learn that your drinking water supply has been contaminated by a defunct manufacturing operation on adjacent property.

In response, you file a lawsuit involving RCRA’s citizen suit provisions to allege that the former owner or operator violated RCRA’s substantive requirements by disposing of hazardous waste without a permit. 42 U.S.C. §6972(a)(1)(A). You also assert a claim that the defendant contributed to the past disposal of a hazardous waste that is presenting an imminent and substantial endangerment. 42 U.S.C. §6972(a)(1)(B).

There is ample but divided authority holding that past violations of RCRA’s substantive requirements can nonetheless support a citizen suit claim under 42 U.S.C. §6972(a)(1)(A) where there are ongoing effects (continued pollution) of the past violation. The recent opinion by Judge Jon E. Deguilio in Browing v. Flexsteel Industries, Inc., No. 11-CV-480 (N.D. Ind., 3/25/2013) provides a disciplined analysis of this issue but concludes that only continuing violations, not the ongoing effects of past violations, are the proper subject of 42 U.S.C. §6972(a)(1)(A).

The ruling came at the pleading stage; here, the plaintiffs did not allege that the former owners or operators continued to violate RCRA so the “in violation of RCRA” count was dismissed. Significantly, the court allowed the claim under 42 U.S.C. §6972(a)(1)(B) to continue, noting that the “imminent and substantial endangerment” provision is specifically designed to reach claims of continued pollution arising from past RCRA violation. The court also distinguished claims based on RCRA’s  substantive Underground Storage Tank provisions because those regulations deem  a person to be the “owner or operator” of the tank even after the property itself had been sold – thus imposing present requirements and duties upon that person.

You might ask, why does it matter if the claim is brought under 42 U.S.C. §6972(a)(1)(A) or 42 U.S.C. §6972(a)(1)(B). It is important because the limitations on when such actions may be brought differ. For a substantive RCRA violation, a citizen cannot bring suit if EPA or the State has commenced and is diligently prosecuting a civil or criminal action to require compliance with the substantive RCRA provision. For an “imminent and substantial endangerment” suit, a citizen suit cannot proceed where EPA or the State  is engaged in action to remediate the site conditions, either under RCRA or CERCLA.

The moral of this story is that citizen suits require careful consideration both by a plaintiff in shaping its complaint and by a defendant in determining the viability of any asserted claims.

By Meagan Newman and Craig B. Simonsen

The U.S. Environmental Protection Agency has announced public meetings to “obtain public input from stakeholders” on a national electronic manifest (E-Manifest) database system intended to capture information on shipments of hazardous wastes.

Specifically, the purpose of the meetings is to solicit comments from the states, industry, communities, nongovernmental organizations, and other stakeholders on what expectations and technical requirements EPA should consider as the Agency begins the planning stages for the E-Manifest system. “EPA envisions that E-Manifest will facilitate the electronic transmittal of manifests throughout the hazardous waste shipping process, including enabling better transparency by sharing data with the public at appropriate stages.”

Each meeting is expected to be one and one-half days long. The dates and locations for each meeting are:

  • February 25–26, 2013: Arlington, Virginia, EPA Headquarters, One Potomac Yard, 2777 S. Crystal Drive, Arlington, VA 22202.
  • March 14–15, 2013: Chicago, Illinois, EPA Region 5, Ralph Metcalfe Federal Building, 77 West Jackson Blvd., Chicago, IL 60604–3590.
  • March 21–22, 2013: Denver, Colorado, EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202–1129.

Potentially interested parties may include information technology staff and personnel supporting hazardous waste generators, hazardous waste treatment, storage and disposal facilities, hazardous waste transporters, nongovernmental organizations and trade associations dealing with hazardous waste transportation issues.

EPA is requiring that all persons wishing to attend the meetings must register in advance of each meeting. Register online at: .

By Andrew H. Perellis and Philip L. Comella

In an important decision concerning the application of the Resource Conservation and Recovery Act of 1976 (RCRA) criminal penalties, the U.S. Supreme Court recently held, in Southern Union Co. v. US, __ U.S. ___, 132 S.Ct. 2344, 2012 WL 2344465 (June 21, 2012), that the duration of misconduct underlying the imposition of a criminal fine must be decided by a jury, not the court.  In reaching its conclusion, the Court for the first time applied the rule set forth in Apprendi v. New Jersey, 530 U. S. 466 (2000) to criminal fines.  In Apprendi, the court held that the Sixth Amendment’s jury-trial guarantee requires that any fact (other than the fact of a prior conviction) that increases the maximium punishment authorized for a particular crime to be proved to a jury beyond a reasonable doubt.  But Apprendi and subsequent cases concerning matters where the punishment at stake was imprisonment or the death sentence, not a fine.

In Southern Union, a jury convicted the petitioner, Southern Union Company, on one count of violating RCRA for knowingly stored liquid mercury without a permit at a subsidiary’s facility “on or about September 19,2002 to October 19, 2004.” Under RCRA knowing violations are punishable by a fine of not more than $50,000 for each day of the violation. 42 U. S. C. §6928(d). At sentencing the probation office calculated a maximum fine of $38.1 million, based on the RCRA violation spanning 762 days, from September 19, 2002, through October 19, 2004.  Using this fine as the maximum allowable, the district court then imposed a penalty of $6 million plus a “community service obligation” of $12 million.

The petitioner argued that imposing a fine greater than the 1-day penalty of $50,000 would be “unconstitutional under which holds that the Sixth Amendment’s jury-trial guarantee requires that any fact (other than the fact of a prior conviction) that increases the maximum punishment authorized for a particular crime be proved to a jury beyond a reasonable doubt.” The petitioner contended that based on the jury verdict and the district court’s instructions, the only violation the jury necessarily found was for one day. The district court held that Apprendi applies to criminal fines, but concluded from the “content and context of the verdict all together” that the jury properly found a 762-day violation.

On appeal, the First Circuit disagreed with the district court that the jury found a violation of 762 days. But the First Circuit affirmed the sentence because it held that Apprendi does not apply to criminal fines. The Supreme Court reversed and remanded the judgment, finding that Apprendi applies to the imposition of criminal fines.  It found that because the jury was not asked to determine the duration of the misconduct (improper storage), the penalty imposed by the district court went beyond the maximum penalty supported by facts determined by the jury.

Although Southern Union did well in having the district court’s penalty assessment overturned and may have increased its negotiating leverage, there is no doubt that on remand, the jury will asked to determine the duration of the storage violation.  Southern Union, then, provides a roadmap for the government to make sure that jury instructions in criminal matters cover not only the fact of the violation, but also its duration.