May 26, 2020
OSHA has adopted revised policies for enforcing the agency’s requirements with respect to coronavirus as economies reopen in states throughout the country. Throughout the course of the pandemic, understanding about the transmission and prevention of infection has improved. The government and the private sector have taken rapid and evolving measures to slow the virus's spread, protect employees, and adapt to new ways of doing business.
Now, as states begin reopening their economies, OSHA has issued two revised enforcement policies to ensure employers are taking action to protect their employees.
First, OSHA is increasing in-person inspections at all types of workplaces. The new enforcement guidance
reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.
Second, OSHA is revising its previous enforcement policy for recording cases of coronavirus. Under OSHA's recordkeeping requirements, coronavirus is a recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:
Under the new policy
, OSHA will enforce the recordkeeping requirements of 29 CFR 1904
for employee coronavirus illnesses for all employers. Given the nature of the disease and community spread, however, in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. OSHA's guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.
Recording a coronavirus illness does not mean that the employer has violated any OSHA standard. Following existing regulations
, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations; they need only report work-related coronavirus illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye.
For further information and resources about the coronavirus disease, please visit OSHA's coronavirus webpage
Environmental Resource Center Update
Due to the COVID-19 pandemic, we have combined our Safety and Environmental Tips of the week. This issue includes some of the latest recommendations for you to keep safe at work and at home in this evolving event.
The health and wellbeing of our employees, customers and our communities is what matters most to all of us. To continue serve you, our seminars have been converted to live online webcasts. You can find a list of upcoming live webcasts at this link
If you have enrolled in a seminar in May or June in many cases the seminar will be held on approximately the same dates and at the same times via online webcast. We will contact you by phone or email regarding the details on how to attend the class. On-site training and consulting services are proceeding as usual. If you wish to convert these to remote services, please call your Environmental Resource Center representative or customer service at 800-537-2372.
Because many of our live and on-site training sessions have been postponed or canceled, we have staff available to assist you in coping with COVID-19 as well as your routine EHS requirements. If you have EHS staff that have been quarantined, we can provide remote assistance to help you meet your ongoing environmental and safety compliance requirements. For details, call 800-537-2372.
Degraded Respirators Found in Stockpile by NIOSH
NIOSH issued a notice indicating that the Agency is aware that many different NIOSH-approved filtering facepiece respirator (FFR) models were stockpiled for prolonged times and are now distributed for use during the COVID-19 response. These FFRs are made using different materials (e.g., filtering media and strap material), which may age or degrade over time and become damaged. Generally, FFRs are not designed for long-term storage, and many models may have shelf lives designated by the NIOSH approval holder. The shelf life information is generally found on the packaging or the approval holder’s website.
Recently, NIOSH received multiple inquiries concerning the identification and replacement of damaged straps on large caches of NIOSH-approved N95 FFRs that have since passed their designated shelf life. Users should perform a visual inspection of each respirator prior to donning per the user instructions. Additional questions and concerns related to the condition of the respirator should be directed to the approval holder.
Modifications to NIOSH-approved respirators should not be made as part of conventional operations. In accordance with the NIOSH regulation, 42 CFR 84, Approval of Respiratory Protective Devices
, any changes that modify the design (e.g., replacing damaged straps), as approved by NIOSH, voids the NIOSH approval. In this case, adding new straps may affect the fit or filtration performance of the respirator with potential to negatively impact the respiratory protection provided to the user.
Only as a contingency or crisis capacity strategy option when no respirators are left other than those with damaged straps, consideration can be given to replacing the damaged straps and using these modified respirators as facemasks (i.e., not as a NIOSH-approved N95 FFR). The CDC crisis capacity recommendations
for prioritizing the use of respirators vs. facemasks by activity type should be followed.
You can find information about stockpiled FFRs tested in NIOSH’s research study on NIOSH’s website
. Each FFR tested was visually inspected, where damage was observed
for a number of straps for two particular models. All tested units with a designated shelf life were past the shelf life identified.
PFAS Chemicals Added to TRI Reports
EPA has taken the next step to implement an important per- and polyfluoroalkyl substances (PFAS) requirement of the National Defense Authorization Act (NDAA). The NDAA added 172 PFAS to the list of chemicals required to be reported to the Toxics Release Inventory (TRI) and established a 100-pound reporting threshold for these substances. The agency is publishing a final rule that officially incorporates these requirements into the Code of Federal Regulations for TRI.
“EPA continues to prioritize and make progress to protect the health and well-being of communities across the country that are working to address PFAS,” said EPA Administrator Andrew Wheeler. “The inclusion of these 172 PFAS on the TRI list will provide EPA and the public with important information on these emerging chemicals of concern.”
As this action is being taken to conform the regulations to a Congressional legislative mandate, this rule
is effective immediately. Per the NDAA requirements, the PFAS additions became effective as of January 1, 2020. Reporting forms for these PFAS will be due to EPA by July 1, 2021, for calendar year 2020 data. EPA expects to release raw data from information collected by July 31, 2021.
To provide clear information on which chemicals fall under the NDAA requirement, in February 2020, EPA released a list of 172 PFAS chemicals that are subject to TRI reporting. Facilities in TRI-covered industry sectors should track and collect data on these PFAS during 2020. All TRI reporting requirements apply to these PFAS (e.g., supplier notification) and TRI reporting exemptions, if applicable, are available for these PFAS. Note that TRI reporting requirements state that a facility should use readily available data collected pursuant to other provisions of law or, where such data are not readily available, reasonable estimates of the amounts involved.
EPA’s TRI is an important tool that provides the public with information about the use of certain chemicals by tracking their management and associated activities. U.S. facilities in different industry sectors must report annually how much of each chemical is released to the environment and/or managed through recycling, energy recovery, and treatment. TRI helps support informed decision-making by companies, government agencies, non-governmental organizations and the public.
EHS Hour - Keep Up-to-Date and Learn Something New
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and learn something new. Environmental Resource Center is introducing the EHS Hour
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With your subscription, you can attend all of the sessions for just $250 per month, or you can attend any single session for $49 per person. Each session will be held from 11:00 am to noon Eastern Time.
Upcoming sessions include:
NJ Residents and Visitors Encouraged to Wear Face Coverings in State Parks, Beaches and Public Spaces
As part of the state’s efforts to reduce the spread of COVID-19, the New Jersey Department of Environmental Protection has released a communications toolkit to strongly encourage the public to wear face coverings when visiting the state’s open spaces.
“Mask Up!” reminds residents and visitors to bring masks to New Jersey State Parks, beaches, forests and other public areas and wear them, especially where it is difficult to maintain a six-foot distance from others.
“With the warmer weather and Memorial Day coming this weekend, Mask Up! reminds New Jerseyans that we can do both: enjoy outdoors and keep our communities safe during the COVID-19 public health emergency,” said Governor Murphy. “Communities across the state can share in our campaign to encourage their residents and visitors to wear a face covering to prevent the further spread of the virus.”
The campaign includes posters and social media content that can be used by municipalities and counties in communicating with their residents and visitors. The downloadable posters and social media graphics are available via the DEP website at www.nj.gov/dep/maskup
“New Jerseyans are eager to get outside and this signage campaign helps our community leaders to remind their residents to do so safely,” said DEP Commissioner Catherine R. McCabe. “I hope that cities and towns across the state download and print these new posters and display them prominently in their parks, beaches and other outdoor spaces. Wearing a mask while near others outdoors is an important way to keep all New Jerseyans from spreading COVID-19.”
Three “Mask Up!” posters are intended for posting outdoors, in spaces that include park kiosks, beach access points and outdoor shelters. They are downloadable for printing in large format 18-by-24-inch size and can also be scaled down for printing in standard 8½-by-11-inch size. Each poster is available in two versions: with logos for the DEP and State Park Service or without them.
A fourth poster is intended for indoor or outdoor use and encourages New Jerseyans to reduce the risk of transmission by illustrating four different scenarios with a COVID-19 carrier and another person. The poster demonstrates that the highest risk of transmission is when neither individual wears a mask and the lowest risk is when both individuals wear a mask.
The DEP will be posting signage throughout state forests, state parks and wildlife management areas. In addition to posters and signage, the DEP’s digital download kit includes the same graphics for use in social media. The DEP will also share the graphics on its own social media channels, including its Facebook page (https://www.facebook.com/newjerseydep/
) and Twitter (https://twitter.com/newjerseydep
COVID-19 continues to affect thousands throughout New Jersey, though the rate of infection has slowed in recent weeks. The state has more than 148,000 lab-confirmed cases, as of May 19. For more details about New Jersey’s response to COVID-19, visit https://covid19.nj.gov
Managers of Waste Recycling Company Charged with Conspiring to Commit Environmental Crimes
Scott C. Blader, United States Attorney for the Western District of Wisconsin, announced the filing of three Informations and plea agreements yesterday charging Thomas Drake, 80, Jasper, Georgia; James Moss, 61, Ladysmith, Wisconsin; and Bonnie Dennee, 66, Phillips, Wisconsin, with conspiracy to store and transport hazardous waste without the required permits and manifests, in violation of the Resource Conservation and Recovery Act (RCRA). The Information filed against Moss also charged him with conspiracy to evade the payment of employment taxes and income taxes to the Internal Revenue Service.
As part of their plea agreements with the United States, Drake, Moss, and Dennee agreed to waive their right to be charged by indictment by a grand jury. In these circumstances, federal charges are entered by way of an Information filed with the Court.
According to the Informations, 5R Processors Ltd. (5R) based in Ladysmith, Wisconsin was a corporation involved in recycling electronic equipment, appliances, and other assets. 5R operated numerous facilities and warehouses in Ladysmith, Glen Flora, Catawba and West Bend, Wisconsin, and in Morristown, Tennessee. Drake founded 5R in Wisconsin in 1988 and served as the Chief Executive Officer and Chairman of the Board of Directors. Drake was responsible for overseeing all aspects of 5R’s operations, including compliance with OSHA and federal and state environmental laws. Moss joined 5R in 2007, and became its President in 2010. As President of 5R, Moss was responsible for managing all plant operations. Dennee started with 5R in 1997. She worked in various positions at 5R, including director of environmental, health, safety & certifications, and executive vice-president.
According to the Informations, 5R used a de-manufacturing technique whereby electronic equipment was taken apart manually and the parts sorted into commodities which then could be resold. 5R took in computer monitors and televisions that contained cathode ray tubes (CRTs), which were broken down and the glass separated between “clean glass” (which was sold as a commodity) and “funnel glass” that had lead in it. Until 2011, 5R shipped the leaded CRT glass to vendors that were allowed to handle it, and 5R was charged for the disposal.
The Informations allege that from 2011 to 2016, the defendants and others conspired to (1) knowingly store hazardous waste (i.e broken and crushed CRT glass that contained lead) at unpermitted facilities in Catawba and Glen Flora, Wisconsin, and Morristown, Tennessee; (2) knowingly transport the hazardous waste without a required manifest; and (3) conceal the above violations from state regulators in Wisconsin and Tennessee, as well as auditors with a nationwide recycling certification program known as R2.
According to the Informations, the defendants attempted to conceal their illegal storage and transport of the crushed leaded glass by various means, including:
- changing the date labels on the containers;
- hiding the containers by putting them inside semi-trailers and locking the trailer doors;
- moving the containers to the back of the warehouse and stacking other pallets in front of them, making it impossible for regulators to see the boxes or inspect them;
- storing the containers at a warehouse in Glen Flora, and not disclosing the existence of this warehouse, or its contents, to state regulators or R2 auditors;
- storing the containers at 5R’s plant in Morristown, Tennessee in two warehouse spaces that did not have electricity or power, and which were referred to by 5R employees as the “dark side” and the “dark-dark side;” and
- providing the state regulators with inaccurate inventory and shipping records for the leaded glass.
The defendants agreed to plead guilty to this conspiracy charge. If convicted, the maximum penalty for this charge is five years in prison, restitution, and a $250,000 fine. In addition, Moss agreed to plead guilty to a conspiracy to defraud the IRS in the collection of employment taxes and income taxes for 5R and two other related companies, Wisconsin Logistic Solutions (WLS) and Pure Extractions. The Information alleges that Moss and others failed to truthfully account for and pay over to the Internal Revenue Service all of the federal income taxes withheld from employees and FICA taxes due and owing to the United States for 5R, WLS and Pure Extractions, totaling $858,101.29. The maximum penalty for this charge is also five years in prison, restitution, and a $250,000 fine.
The charges against Drake, Moss, and Dennee are the result of an investigation conducted by the Wisconsin Department of Natural Resources, Bureau of Law Enforcement; the U.S. Environmental Protection Agency, Criminal Investigation Division; and IRS Criminal Investigation. James Cha with EPA Regional Criminal Enforcement Counsel and Assistant U.S. Attorney Daniel J. Graber are handling the prosecution.
A charge is merely an accusation and that a defendant is presumed innocent until and unless proven guilty.
OSHA Sued by AFL-CIO for Emergency Temporary Standard to Protect Workers
On May 18, the AFL-CIO filed a petition
for a writ of mandamus in the U.S. Court of Appeals to compel OSHA to issue an emergency temporary standard (ETS) protecting U.S. workers against the coronavirus.
The petition demonstrates that thousands of workers have been infected on the job through exposure to infected patients, co-workers and unscreened members of the public. As the economy reopens and people return to work, person-to-person contact will increase and health experts predict the already shocking number of infections and deaths among workers will rise.
“It’s truly a sad day in America when working people must sue the organization tasked with protecting our health and safety,” said AFL-CIO President Richard Trumka. “But we’ve been left no choice. Millions are infected and nearly 90,000 have died, so it’s beyond urgent that action is taken to protect workers who risk our lives daily to respond to this public health emergency. If the Trump administration refuses to act, we must compel them to.”
According to the AFL-CIO, even with overwhelming evidence that additional protection is needed, Secretary of Labor Eugene Scalia has been unwilling to issue an emergency standard. In response to a letter from Trumka
demanding OSHA action, Scalia stated on April 30 that a mandatory standard specifically addressing the grave risk posed by the virus was not necessary.
“OSHA was intended to be that vehicle to protect workers, yet it is not. The dozens of OSHA complaints across the country we have filed have been met by silence as the Trump administration refuses to do its job to enforce a safe workplace standard,” said American Federation of Teachers President Randi Weingarten. “And this has had a huge effect: Our members are getting sick and dying—we have lost more than 160 members including public employees, health care workers and educators to COVID-19, many of which could have been prevented if they had been provided the proper protections. Health care and other essential workers can’t simply rely on their union buying them PPE, as we have done, or the gratitude of strangers. This action is needed to get the Trump administration to do its job.”
The AFL-CIO and several of its affiliated unions have pursued worker protections for years, petitioning OSHA to adopt a general infectious disease standard as early as 2009 in the wake of SARS and other threatened pandemics, and the agency initiated rule-making procedures but never issued a standard. The Trump administration abandoned the standard-making process once taking office in January 2017. OSHA has a duty to issue an ETS when it finds there is a grave danger to working people and that a standard is necessary to protect them.
The AFL-CIO, together with 23 national unions, petitioned OSHA to issue an ETS on March 6, and National Nurses United did so on March 4, and to date OSHA has taken no action on the petitions.
States Sue EPA over Redefinition of Waters of the United States
“Clean water is a critically valuable resource that we must protect at all costs,” said Attorney General James. “The Trump Administration’s rule is dangerous and should be stopped before it causes irreparable damage to public health, safety, and our environment. I am proud to stand with this coalition of attorneys general to fight for our environment.”
Attorney General James and California Attorney General Xavier Becerra, leading a multistate coalition, filed a lawsuit on May 1, 2020 challenging a Trump Administration final rule narrowing the definition of “waters of the United States” to remove protections for all ephemeral streams, many wetlands, and other waters that were previously covered under the Clean Water Act
. Under the new rule, more than half of all wetlands and at least 18 percent of all streams would be left without federal protections. Further, all of the lower 48 states have waters that are downstream of other states, and New York, for example, is downstream of 13 states. As such, New York and other states are recipients of water pollution generated not only within their borders, but also from upstream sources outside their borders, over which they lack jurisdiction. Additionally, downstream states like New York will be forced to spend more funds to clean up the pollution from upstream states that refuse to properly safeguard their waters. The “Dirty Water Rule” also puts New York at a competitive disadvantage by incentivizing industry polluters to relocate to upstream states with less stringent water quality protections, while disrupting New York’s clean water regulatory programs.
The definition of “waters of the United States” under the Clean Water Act is critical to maintaining a strong federal foundation for water pollution control and water quality protection that preserves the integrity of our waters. While the Clean Water Act has resulted in dramatic improvements to water quality in the United States, its overriding objective has not yet been achieved. Many of the nation’s waters fail to meet water quality standards. The 2015 Clean Water Rule enacted during the Obama Administration provided much-needed clarity and consistency in federal Clean Water Act protections. It specifically includes within the scope of protected waters, the headwaters of rivers and creeks as well as other non-traditionally navigable waters, such as wetlands and ephemeral streams, which have significant impact on downstream water quality.
In the filing, the coalition argues that a preliminary injunction is necessary to prevent significant and irreparable harm to waterways in New York and across the country. The Trump Administration’s “Dirty Water Rule” weakens water quality protections for numerous waterways, allowing pollution into formerly protected streams and wetlands. In doing so, the rule threatens the habitat of many fish, birds, and other wildlife species, and paves the way for the filling of wetlands, hamstringing a critical instrument for flood mitigation. The rule’s sweeping changes to the regulatory landscape also threaten widespread disruption of state and local water and wetlands programs. In order to protect the integrity of the nation’s waters and maintain programs that advance the Clean Water Act’s water quality objectives, it is essential that this damaging final rule does not go into effect.
In filing the preliminary injunction, Attorney General James is joined by the attorneys general of California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and Wisconsin, and the District of Columbia. The California State Water Resources Control Board, the North Carolina Department of Environmental Quality, and the City of New York also joined the coalition in filing the lawsuit.
Since 2017, no other state attorney general’s office has taken more legal actions against federal agencies regarding issues related to the environment than the Office of the New York Attorney General. New York has taken more than 130 legal actions against the Trump Administration in the areas of safety and toxic chemicals, public lands and wildlife, clean energy and energy efficiency, clean air, clean water, and climate change.
This matter is being handled by the Environmental Protection Bureau of the New York Attorney General’s Office and is led by Assistant Attorneys General Philip Bein and Timothy Hoffman, Deputy Bureau Chief Monica Wagner, Environmental Scientists Jennifer Nalbone and Charles Silver, and Policy Analyst Jeremy Magliaro, under the supervision of Bureau Chief Lemuel M. Srolovic. The Environmental Protection Bureau is part of the Division of Social Justice, led by Chief Deputy Attorney General Meghan Faux, all under the oversight of First Deputy Attorney General Jennifer Levy.
Nine Penalties Issued by Oregon DEQ
The Oregon Department of Environmental Quality issued nine penalties totaling $323,420 in April for various environmental violations. A detailed list of violations and resulting penalties is at https://go.usa.gov/xEQJn.
Fines ranged from $1,800 to $108,210 in April. Alleged violations included discharges to waters of the state, exceedance of air quality opacity limit, and a diesel fuel spill.
DEQ issued civil penalties to the following organizations and individuals:
- Ash Grove Cement, $13,800, Portland, water quality
- Cascadia Ridge, LLC, $85,410, Estacada, water quality
- Crowley Marine Services, $14,400, Portland, water quality
- I & E Construction, Inc., $108,210, Estacada, water quality
- Repplinger, Donald, $1,800, Coos Bay, air quality
- Roseburg Forest Products Co., $22,800, Coquille, air quality
- Singh, Daljit dba Keizer Food Market, $3,000, Keizer, underground storage tank
- Space Age Fuel, Inc., $66,000, Cascade Locks, emergency response
- Wilcox and Flegel Fuel Oil Co., $8,000, St. Helens, stormwater
Organizations or individuals must either pay the fines or file an appeal within 20 days of receiving notice of the penalty. They may be able to offset a portion of a penalty by funding a supplemental environmental project that improves Oregon’s environment.
Penalties may also include orders requiring specific tasks to prevent ongoing violations or additional environmental harm.
Tannery Owner Ordered to Pay Restitution for Clean-up of Hazardous Waste
Robert Carville, age 57, formerly of Johnstown, New York, was ordered to pay $369,693.58 in restitution to the EPA to reimburse it for its expenses incurred in removing hazardous waste that Carville stored without a permit at the former Carville National Leather Corporation building in Johnstown.
The announcement was made by United States Attorney Grant C. Jaquith and Tyler Amon, Special Agent in Charge of the EPA’s Criminal Investigation Division (EPA-CID) in New York.
Carville National Leather Corporation was a family owned tannery business that operated in Johnstown, New York, from 1976 until it closed in September 2013. Robert Carville owned and operated the business for approximately 10 years prior to its closure.
Carville pled guilty in December 2018 to one felony count of illegally storing hazardous waste without a permit. As part of his guilty plea, Carville admitted that as the owner and manager of the tannery, he was responsible for the materials stored there when it ceased operations. Following the closure of the business, Carville moved out of state, leaving hundreds of containers of hazardous chemicals inside the abandoned tannery building. Some of these were labeled as “corrosive,” “acidic,” and “hazardous.” Carville did not have a permit to store hazardous materials. Chemicals began leaking from the tannery building approximately two years after Carville abandoned it. In light of the tannery’s proximity to multiple residences and to a local creek, EPA deemed it a Superfund site and incurred substantial expenses in cleaning up and removing the chemicals over a several-month period.
On July 22, 2019, Senior United States District Judge Frederick J. Scullin, Jr. sentenced Carville to serve a 2-year term of probation. However, the Court deferred a determination on any restitution Carville owed EPA as part of the sentence. The parties presented evidence and testimony regarding restitution at an evidentiary hearing in December 2019. After reviewing that evidence and considering legal briefs filed by the parties, Senior District Judge Scullin issued an order directing Carville, as part of his sentence, to pay $369,693.58 in restitution to EPA.
This case was investigated by the EPA’s Criminal Investigation Division (EPA-CID), and it was prosecuted by Assistant U.S. Attorney Michael F. Perry.
Florida Construction Contractors After Employee Suffers Fatal Fall from Aerial Lift
OSHA has cited two contractors for failing to protect employees from fall hazards at a construction worksite in North Miami, Florida. Prestige Estates Property Management LLC of North Miami and Jesus Balbuena of Miami, Florida, face $44,146 in penalties.
The investigation followed an employee’s 20-foot fall from an aerial lift that led to fatal injuries. OSHA cited the employers for failing to ensure the use of a fall protection system to protect workers on an aerial lift, train employees to recognize and avoid fall hazards, and develop and implement an accident prevention program. OSHA also cited Prestige Estates for failing to report a hospitalization within 24 hours and a fatality within 8 hours, as required.
“Allowing employees to work at heights without using proper fall protection methods increases the risk of serious or fatal injuries,” said OSHA Acting Fort Lauderdale Area Director Juan Torres. “Employers have an obligation to ensure the working conditions they ask employees to operate under are free of recognized hazards.”
OSHA’s Fall Protection webpage
provides information on fall protection standards in construction, and resources on protecting workers from falls.
Safely Get Your EHS Training at Home or in Your Office
To help you get the training you need, Environmental Resource Center has added a number of dates to our already popular live webcast training. Stay in compliance and learn the latest regulations from the comfort of your office or home. Webcast attendees receive the same benefits as our seminar attendees including expert instruction, comprehensive course materials, one year of access to our AnswerlineTM
service, course certificate, and a personalized user portal on Environmental Resource Center’s website.
Upcoming hazardous waste and DOT hazardous materials webcasts:
Glass Fabrication and Distribution Company Cited for Unguarded Machinery and Other Safety Hazards
OSHA has cited Flat Glass Distributors Inc. for exposing employees to unguarded machinery and electrical hazards at the Jacksonville, Florida, fabrication and distribution facility. The custom glass shaping and cutting distributor faces $121,446 in penalties.
“Employers are required to assess potential hazards, and make necessary corrections to ensure a safe workplace,” said OSHA Jacksonville Area Office Director Michelle Gonzalez. “The violations identified put workers at risk for serious or fatal injuries.”
U.S. Department of Labor Releases Quotes from Written Testimony from Postponed OSHA Hearing
OSHA Principal Deputy Assistant Secretary Loren Sweatt was scheduled and prepared to testify at the House of Representatives Education and Labor Committee hearing this morning. But only yesterday, the committee postponed the hearing. Sweatt remains available and willing to inform the committee of the important work the men and women of OSHA have been doing to keep workers safe and healthy in this critical time. For months, OSHA has been preparing workplaces for the effects of the coronavirus. Had the hearing been held as planned, Sweatt would have informed the committee of the following facts, which are included in her submitted written testimony:
"OSHA operates every hour of every day, as it has for nearly half-a-century following the enactment of the Occupational Safety and Health Act. I am proud of the work this agency has done during the Trump Administration, but I am particularly proud of the work it is performing right now as it responds to the worldwide health crisis. I welcome this opportunity to update you on all of the agency’s efforts."
"OSHA’s efforts to address COVID-19 have been its top priority since February. Our world changed with the arrival and spread of the coronavirus. Although the pandemic has changed the way OSHA completes its mission, it has never faltered in its commitment to ensure employers provide a workplace free of hazards. OSHA quickly pivoted to focus intensely on giving employers and workers the guidance they need to work safely in this rapidly changing situation; where appropriate, OSHA has also enforced safety and health requirements."
"While extensive guidance is important as the rapidly changing dynamic of this pandemic continues, it is important to recognize OSHA also has existing standards that serve as the basis for its COVID-19 enforcement. Those standards include rules regarding respiratory protection, personal protective equipment (PPE), eye and face protection, sanitation, and hazard communication."
"OSHA is also an active participant in ten federal task forces focused on the COVID-19 response and as always, continues its collaborations with its federal partners to share information and develop tools to meet the challenges of fighting this disease and protecting workers."
"The work of the agency continues uninterrupted even as we respond to this pandemic. Since February 1, 2020, and through May 14, 2020, OSHA has received 5,500 non-COVID-19 complaints and conducted 4,575 investigations based on these complaints. During this time, OSHA has received 2,290 non-COVID-19 whistleblower complaints, which are being evaluated along with the COVID-19 whistleblower complaints."
"During Fiscal Year (FY) 2019, OSHA conducted 33,401 inspections—more inspections than in each of the previous three fiscal years."
"OSHA also provided a record 1,392,611 workers with training on safety and health requirements in FY 2019."
"The Department’s goal each day is to ensure OSHA protects the safety and health of America’s workforce. Before, during, and after the pandemic, my goal is for OSHA’s efforts to prevent workers from ever becoming ill or injured because they are doing their job."
"Where there are safety issues, OSHA remains, as always, shoulder to shoulder with America’s workers."
South Dakota Bull Stud Facility Cited After Employee Asphyxiated While Handling Liquid Nitrogen
OSHA has cited Custom Genetic Solutions LLC – a bull stud facility in Mitchell, South Dakota – for exposing workers to hazardous chemicals and toxic substances after an employee fatality. The company faces penalties of $122,602 for two willful and three serious violations.
OSHA received an employer-reported referral from Custom Genetic Solutions LLC that an employee asphyxiated from lack of oxygen due to the use of liquid nitrogen in the facility. Inspectors found that employees filled containers daily and cryogenic freezers weekly with liquid nitrogen. OSHA determined the company failed to implement safety measures, such as oxygen monitoring or ventilation to ensure that the rapidly expanding liquid nitrogen did not displace the oxygen in the room. Additionally, the company failed to train employees on potential health and physical hazards from working with nitrogen gas, and on how to detect the accumulation and release of the gas.
“This employer failed to take necessary steps to protect employees from a potentially oxygen-deficient atmosphere,” said OSHA Sioux Falls Area Director Sheila Stanley. “Employers must assess their workplaces for potential hazards and implement control measures to prevent injuries, illnesses, and fatalities.”
Emission Reduction Plans Submitted by DEQ to Governor Brown
The Oregon Department of Environmental Quality has submitted detailed information to Gov. Kate Brown on how it plans to carry out her March 10 executive order to reduce greenhouse gas emissions in the state. In all, DEQ submitted a preliminary report on Cap and Reduce programs, and four other work plans regarding clean fuels, other strategies to reduce greenhouse gas emissions from transportation, regulations to reduce methane emissions from landfills, and strategies to reduce food waste. The reports outline the processes DEQ will use beginning later this year for developing rules, policies and strategies to accomplish the governor’s emission reduction goals, which are designed to ensure that Oregon is doing its part to fight climate change. DEQ will be holding virtual workshops and listening sessions on program options over the next six months. Formal rulemaking will begin next year, with final decisions coming to the state Environmental Quality Commission late in 2021.
The reports to the Governor focus on areas where significant reductions in greenhouse gas emissions can be achieved. Combined with actions by other state agencies, these steps represent Oregon’s most comprehensive effort to date to stem the harmful effects of greenhouse gas pollution. The steps include:
- Establishing a Cap and Reduce program, which will establish a regulatory program to require reductions in greenhouse gas emissions in three broad areas: large stationary sources, transportation fuels and other fuels, including natural gas. This preliminary report lays out the legal foundation for the program, initial policy and program considerations, and how DEQ is planning to begin engaging with the public and stakeholders beginning later this year. A final report is due June 30.
- Expanding DEQ’s already successful Clean Fuels Program , which requires the state’s transportation fuel suppliers to provide the people of Oregon with fuels that are less carbon intensive.
- Working with ODOT and other Oregon agencies to implement other strategies to reduce greenhouse gas emissions from cars and trucks, including emissions standards for trucks and programs for large employers to help reduce driving.
Developing ways to capture more methane from Oregon landfills, which are a significant contributor to climate change.
- Reducing avoidable food waste to prevent the environmental burdens of food production, distribution, refrigeration, preparation and final disposal, while also strengthening efforts to recover unavoidable food waste through anaerobic digestion and composting.
Statement from DEQ Director Richard Whitman: “Oregon DEQ is committed to listening to all Oregonians, including community and business leaders, as we develop the specifics of how these programs are going to work. We recognize that Oregon is in the midst of another crisis – the COVID-19 crisis – and DEQ is building those challenges into how we are approaching this effort. At the same time, we also recognize that Oregon and the rest of the world are running out of time to begin bringing greenhouse gas emissions under control. The governor has given us 18 months to get this work done, and we are going to do our very best to deliver a fair, thorough and well-founded set of programs that will put Oregon on the path to doing its part in combatting climate change.”
Pandemic Used as Excuse to Slash Safeguards
President Trump signed an executive order
directing federal agencies to roll back a host of regulations, and is encouraging agencies to ‘waive, suspend and eliminate’ regulations they deem unnecessary—as well as make permanent some pandemic-related suspensions of regulations.
Reacting to the executive order, former EPA Administrator and president and CEO of the NRDC Gina McCarthy said, “when you hear the Trump administration say it wants to eliminate ‘red tape,’ think: protections Congress ordered agencies to put in place to protect you and me from coronavirus, air pollution, and a whole host of other harms that can make us sick and even kill us. And as far as EPA is concerned, finding more 'red tape' will be like getting blood from a stone. During the pandemic alone, EPA has moved to increase our exposure to mercury, soot, toxic chemicals and perchlorate. What’s left to cut?
“Hasn’t anyone in the White House noticed that our economy depends on keeping people healthy? Why can’t they just start focusing on rebuilding our nation to make it stronger, healthier and more prosperous and stop telling agencies to cut protections that keep us from getting sick?”
The administration’s own Office of Management and Budget, in an analysis
of major safeguards in 2017, found that the benefits of regulations far exceed the costs of adopting them. For every dollar spent complying with safeguards put in place between 2006 and 2016, the public reaped between $2 and $12 in annual benefits—that is, saved lives and improved health or safety. EPA safeguards yield staggering benefits, the OMB found, on the order of $149 to $706 billion per year. The EPA’s clean air protections alone yielded benefits between $138 and $684 billion, mostly in saved lives.
Steel Manufacturer Required to Improve Oil Spill Prevention Program
EPA announced a settlement with USS POSCO Industries under the Clean Water Act for violations of federal oil pollution prevention regulations. The metal products manufacturer has corrected the violations and agreed to pay a $31,770 penalty.
“Facilities that store large quantities of oil must take every step to anticipate spills and preempt preventable releases to our waterways,” said EPA Pacific Southwest Regional Administrator John Busterud. “California’s Bay Delta is an important water resource and EPA will continue to ensure spill prevention measures are implemented properly.”
USS POSCO Industries, which manufactures steel in Pittsburg, Calif., violated EPA’s oil pollution prevention regulations by failing to update and recertify its Spill Prevention, Control and Countermeasure (SPCC) plan for its Pittsburg facility; failing to perform routine oil tank inspections; failing to have adequate sensors on tanks; and failing to remove accumulations of oil outside tanks and collection trenches.
The goals of the Clean Water Act’s SPCC regulation are to prevent oil from reaching waterways and adjacent shorelines, and to contain and respond to oil spills that do occur. The regulation requires onshore oil storage facilities to develop and implement SPCC plans to ensure procedures and equipment are in place to reduce risk and minimize or prevent water quality impacts.
Norlite, LLC in Cited for Hazardous Waste Combustor MACT Violations
EPA has settled a case against Norlite, LLC to resolve past violations of the Clean Air Act related to the testing of their hazardous waste combustor (HWC) emissions and setting of operating parameter limits at its Cohoes, NY facility. The facility was found to be violating EPA’s HWC Maximum Achievable Control Technology
(MACT) requirements. EPA has been monitoring the facility’s actions as it came into compliance with these requirements and the settlement announced requires the payment of $150,000 for the past violations.
This action is separate from the investigation of recent concerns voiced regarding the incineration of firefighting foam at Norlite.
“EPA is working to enforce the Clean Air Act to protect public health,” said EPA Regional Administrator Pete Lopez. “We are working to ensure that the facility has done what it needs to do to comply with the important air quality regulatory requirements. EPA’s work at this facility continues as the agency address the unrelated issue involving incineration of Aqueous Film Forming Foam (firefighting foam) at the facility. Here, EPA is partnering with New York State Department of Conservation to determine if EPA can lend technical expertise to assess AFFF incineration activities at the site.”
The violations resolved by the settlement were identified during an EPA inspection in 2015 and a review of data going back to 2012. The inspection and data review revealed exceedances of operating limits, called Operating Parameter Limits or OPLs.
In March 2015, EPA conducted a compliance evaluation inspection at Norlite’s facility to assess the company’s compliance with the HWC MACT. As part of the inspection, EPA requested production and operational data from Norlite for its kilns. EPA’s review of Norlite’s data revealed that the company had exceeded multiple OPLs on numerous occasions over the course of three years (2012- 2014).
Specifically, Norlite exceeded the OPL for maximum gas exit temperature, which is necessary to control emissions of dioxins and furans, and it exceeded the OPL for minimum pressure drop in the scrubber, which impacts the ability to control emissions of hydrogen chloride, chlorine gas and particulate matter.
Norlite subsequently submitted information to the EPA showing that it exceeded the applicable emissions limits for chromium, arsenic, and beryllium during a performance test the company conducted on December 7, 2017.
As background, EPA issued an Administrative Compliance Order on May 18, 2016, directing Norlite to, among other things, come into compliance with the then-applicable OPLs and conduct additional performance testing to update the applicable OPLs for one of its kilns. Norlite conducted a Comprehensive Performance Test on Kiln 1 of its Cohoes facility in December 2017. The Clean Air Act requires that these performance tests be conducted every five years. Norlite had been alternating the kilns for which they conducted the performance tests during each five-year cycle.
Norlite demonstrated compliance with the Clean Air Act requirements for Kiln 1 during the December 2017 performance test, which also re-established the operating parameter limits for the kiln. The EPA further pursued a penalty for the past violations, which is the subject of this settlement.
Swix Sport USA Cited for TSCA Violations Involving PFAS
On May 13, 2020, the EPA and Swix Sport USA (Swix) finalized an agreement resolving Toxic Substances Control Act (TSCA) violations associated with the importation of noncompliant ski wax products containing per- and polyfluoroalkyl substances (PFAS). Swix agrees to pay a fine and develop a $1M educational program to raise awareness in ski communities about PFAS chemicals in ski waxes.
Swix violated the TSCA Premanufacturing Notice requirements and Import Certification requirements when it imported ski wax products containing six different PFAS chemicals on at least 83 occasions that were not included on the TSCA Inventory or otherwise exempt for commercial purposes. Once the chemicals were identified, Swix immediately ceased importation of the products containing the PFAS substances and quarantined products in its control in the United States.
PFAS are a group of man-made chemicals that includes PFOA, PFOS, and many other chemicals. PFAS have been manufactured and used in a variety of industries around the globe, including in the United States since the 1940s. PFOA and PFOS have been the most extensively produced and studied of these chemicals. Both chemicals are very persistent in the environment and in the human body – meaning they don’t break down and they can accumulate over time. There is evidence that exposure to PFAS can lead to adverse human health effects.
EPA identified certain ski wax products containing PFAS substances that at the time of import had not been reviewed by EPA for health and safety risks. Ski wax technicians and other users who apply waxes to skis may be exposed from handling the wax and possibly through the vapors while applying the wax and melting it. Also, as part of the ski wax application process and through the use of waxed skis in snow, ski wax shavings can enter the environment.
Under the terms of the settlement, Swix has agreed to spend approximately $1,000,000 to develop and implement an outreach and training program referred to as a Responsible Waxing Project (RWP) and pay a $375,625 civil penalty. The RWP is aimed at educating the ski racing community about PFAS chemicals in racing waxes and their impact on the environment; and promoting the use of wax alternatives with lower environmental impact, including but not limited to racing waxes that are PFAS-free. Another objective of the RWP is to educate and motivate the ski racing community to phase out (and ultimately eliminate) the use of PFAS-containing waxes in ski racing beginning with the 2020 ski season.
The RWP has several elements including an education and training component for ski wax technicians on the proper disposal of racing wax shavings and the use of appropriate personal protective equipment during the waxing process. Other RWP elements include:
- PFAS ski wax education program including two on-site presentations at a major ski event that attracts more than 10,000 participants.
- Training for wax technicians on the proper use of protective personnel equipment, proper ventilation and proper disposal of wax shavings.
- Program for ski wax coaches available online and used at on-site presentations at a minimum of 10 events designed for coach certifications.
- Additional outreach to college racing teams and clubs that educates high school and college level skiers about the RWP content.
- Dedicated Swix project manager who oversees the project to completion.
- Website development for all videos created as part of the settlement for technicians, coaches and teams.
- Distribution of PFAS alternative wax information materials at a minimum of 50 ski sites.
The Consent Agreement and Final Order was approved by EPA’s Environmental Appeals Board on May 13, 2020. To read the Consent Agreement click
here. For more information about EPA’s PFAS Action Plan click here
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