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 Andrew H. Perellis and Craig B. Simonsen

EPA published today a Significant New Use Rule (SNUR) for Pentane, 1,1,1,2,3,3-hexafluoro-4-(1,1,2,3,3,3-hexafluoropropoxy) (Pentane SNUR) under the Toxic Substances Control Act (TSCA), 15 U.S. Code Chapter 53.

The rule was adopted in response to the pre-manufacture notice PMN P–07–204, for the chemical identified as CAS No. 870778–34–0. Potentially affected entities under the SNUR may include chemical manufacturing and petroleum refinery industries (NAICS codes 325 and 324110), and chemical importers.

The SNUR designates that where there is a potential for dermal exposure during any manufacturing, use, or processing of the chemical the use of impervious gloves is required. Recordkeeping requirements as specified in 40 CFR 721.125 (a) through (e), and (i) are applicable to manufacturers and processors of this substance.

Note importantly that “any person who began commercial manufacture or processing of the chemical substance identified as [Pentane SNUR] for any of the significant new uses designated in the proposed SNUR after the date of publication of the proposed SNUR [78 Fed. Reg. 4806 (January 23, 2013)], must stop that activity before the effective date of the final rule.” Under the SNUR persons who ceased those activities will have to first comply with all applicable SNUR notification requirements and wait until the notice review period, including any extensions, expires, before engaging in any activities designated as significant new uses. Once a person meets the conditions of advance compliance under 40 CFR 721.45(h), the person “would be considered to have met the requirements of the final SNUR for those activities.”

The final rule, codified as 40 CFR section 721.10509, is effective April 6, 2015.

By James L. Curtis, Jeryl L. Olson, and Craig B. Simonsen

EPA has denied a January 28, 2014, petition by various housing industry groups, requesting EPA to develop a new Toxic Substances Control Act (TSCA) section 8(d) recordkeeping rule aimed at building managers, building owners, and contractors that have or may need to disturb lead based paint in public and commercial buildings. 79 Fed. Reg. 13968 (March 12, 2014).

On March 12, 2014, EPA published its reasons for denying the petition. It is important to note that in its justification, EPA announced, as an alternative to the TSCA rulemaking, it will seek the information not under TSCA section 8(d) but in the form of information request letters. The letters will be sent to public and commercial buildings and their owners, management companies, and contractors and will seek records and data related to the Occupational Safety and Health Administration’s (OSHA’s) construction standard for lead.

EPA indicated that it will “issue information request letters to a smaller, targeted group of entities.” EPA believes that this approach will allow it to collect and assess the utility of available OSHA records and potentially relevant information for regulating lead in buildings, without being limited in scope to “health and safety studies” that are allowed to be collected under a TSCA section 8(d) rule.

In addition, EPA noted it is preparing an industry survey to collect various types of information from the public and commercial building industry. This survey, “Survey of the Public and Commercial Building Industry,” is to be designed to target additional information EPA expects may be useful to its  public and commercial buildings analysis. 78 Fed. Reg. 73520 (December 6, 2013).

In light of EPA’s announcement, building managers, building owners, and contractors that have or may need to disturb lead based paint in public and commercial buildings may wish to review their safety policies, procedures, and training programs to ensure OSHA compliance. Also check your records that they are up-to-date — in the event you receive one of EPA’s information request letters.

By Jeryl L. Olson

On December 4, 2013, the U.S. Environmental Protection Agency published a final rule, effective March 4, 2014, mandating that most information required to be reported to the Agency under the Toxic Substances Control Act (TSCA) be made electronically, rather than by paper-based filings. 78 Fed. Reg. 72818.

The reporting requirements under TSCA Section 4 (Toxic Substance Monitoring Studies), TSCA Section 5 (Manufacturing of New Chemical), TSCA Section 8(a) (Production Volume Information), and TSCA Section 8(d) (Health and Safety Studies) are all required to be submitted electronically.  Reporting is to be performed using EPA’s Central Data Exchange (CDX) portal.  Once registered in CDX, users will select the Chemical Safety and Pesticide Programs (CSPP) portion of the site and will access the web-based TSCA reporting tool, called the Chemical Information Submission System (CISS) tool. Premanufacture Notice (PMN) reporting under TSCA Section 5 will continue to be done using e-PMN software.  Users already using e-PMN for TSCA Section 5, or TRI-ME for Section 313 reporting can add CSPP to their CDX registration. 

There is a cost associated with the electronic submittals: EPA is requiring a one-time fee to register with the very first TSCA submission, although, of course, EPA is justifying the fee by indicating that the electronic reporting will save companies money in the long run because of perceived efficiencies in electronic, versus paper, reporting. 

To assist companies in implementation of the electronic reporting rule, EPA has prepared system user guides.  Furthermore, EPA is going to hold webinars on December 10 and December 12, 2013. The webinar training session on December 10 from 1:00 to 4:00 p.m. EST will discuss TSCA Section 4 – Test Rule Data Submissions, and the webinar training session on December 12 from 1:00 to 4:00 p.m. EST will discuss reporting under Sections 8(a), 8(d), and 8(e). 

Information on the final rule, the webinars, “how to” guides, and other resources are available on EPA’s website at

By Craig B. Simonsen

The U.S. Environmental Protection Agency has announced the public release of its Chemical Data Reporting (CDR) database which was previously used almost exclusively by EPA. The database contains comprehensive use and exposure  information on more than 7,600 of the most widely used chemicals in the United States, gathered from Toxic Substances Control Act (TSCA) regulated manufacturers and importers of TSCA chemicals.

While many industries and companies believe that the TSCA does not apply to them, under the CDR rule, many companies are required to provide information on chemicals used in children’s and other consumer products, along with reports on commercial applications and industrial uses of chemicals. In order to make the database more useful to the public EPA is requiring companies to substantiate confidentiality claims to ensure that as much information as possible is made available publically.

As summarized by EPA, the CDR rule requires companies that manufacture or import certain chemicals to report manufacturing and import data every four years when site-specific production volume exceeds 25,000 pounds. For 2011 EPA received reports on 7,674 chemicals, including 354 that were reported as used in children’s products. 1,704 chemicals were reported as used in consumer products, and 3,073 were used in commercial applications or products. The remaining chemicals reported were for industrial use only.

In an interesting note, although reporting on these chemicals is required, currently there are no requirements that the existing chemicals be evaluated for safety. The CDR database is available at

By Jeryl L. Olson, Eric E. Boyd and Craig B. Simonsen

The U.S. Environmental Protection Agency (EPA or Agency) is hosting a meeting on May 31, 2012, by invitation only, with industry and nongovernmental organizational representatives, to discuss the public release of information submitted by industry under the Chemical Data Reporting (CDR) rule. The meeting is by invitation only because the Agency hopes that the meeting will be better focused and more fruitful than if it were open to the public.

An Agency representative confirmed to us this morning that the meeting is scheduled for 10 a.m. to noon in Room 4225, EPA East Building, 1201 Pennsylvania Ave., NW, Washington, D.C. According to EPA, the questions it is posing for the discussion include what types of electronic search capabilities it should provide to help interested parties review the information, and which types of data analyses should be submitted in the near term and what types in the long term.

In August 2011, EPA issued the Toxic Substances Control Act (TSCA) Chemical Data Reporting Rule, previously referred to as the Inventory Update Reporting (IUR) Modifications Rule. According to the Agency, “the purpose of this program is to collect quality screening-level, exposure-related information on chemical substances and to make that information available for use….”

CDR submissions on chemical production data, chemical use, and other data are due June 30, 2012.