OSHA Enforcement Procedures for Failure to Submit Electronic Illness and Injury Records

May 17, 2021
OSHA recently issued enforcement guidance regarding potential violations of the Agency’s rule (29 CFR 1904.41(a)(1) and (a)(2)) requiring electronic submittal of injury and illness records.  OSHA Form 300A data is required to be submitted electronically to OSHA each year by March 2 of the following year. The policy indicates that OSHA has established a six-month date to issue a citation for non-compliance with the requirements of 29 CFR 1904.41, which will therefore be September 2. As an example, data for calendar year 2020 must be submitted to OSHA by March 2, 2021. OSHA may issue a citation for failure to submit up until September 2, 2021.
 
However, the guidance indicated that employers would not be cited for failure to submit records by March 2, provided the employer attempted to submit its records but was unable to do so due to problems with OSHA’s Injury Tracking Application
 
According to the guidance, illness and injury records play a crucial role in OSHA’s ability to effectively target workplaces where employees are exposed to serious hazards.
 
During site inspections, OSHA compliance safety and health officers (CSHOs) have been instructed to refer to OSHA’s Injury Tracking Application database to determine if the employer submitted their Form 300A electronically.  CSHOs were also instructed to perform a full recordkeeping audit where there is evidence of potential systemic recordkeeping issues.
 
Upcoming Training
 
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. You’ll 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.
 
Environmental Resource Center’s live webcast training is the best way to learn how to comply with the latest regulations that apply to your site. Learn from the experts and get your site-specific questions answered at these upcoming sessions:
 
Rule on Guidance Documents Rescinded by EPA
 
EPA announced that the agency will soon issue a final rule rescinding an October 18, 2020, rulemaking that established procedures for issuing, modifying, withdrawing, and using guidance documents. This new rule restores EPA’s ability to provide timely guidance on which the public can confidently rely.
 
“By rescinding the internal rule on guidance, EPA will restore the flexibilities needed to effectively address urgent public health, safety, and environmental challenges, so we can effectively deliver on our mission,” said EPA Administrator Michael S. Regan.
 
EPA has historically employed procedures for public transparency and involvement in the development of all agency actions, including guidance, and will continue these practices. Specifically:
 
EPA will continue its practice of soliciting stakeholder input on guidance of significant stakeholder and public interest, as appropriate. Stakeholders may submit a request to the EPA at any time to issue, amend, or repeal EPA guidance.
 
Guidance continues to be non-binding and does not have the force and effect of law.  EPA will continue to make agency guidance available to the public. More information is available at https://epa.gov/guidance
 
The final rule will be effective when it is published in the Federal Register.
 
Scranton Manufacturing Company Inc. Fined for Hazardous Waste Violations
 
Scranton Manufacturing Company Inc. has agreed to pay a civil penalty of $50,208 to resolve violations of the federal Resource Conservation and Recovery Act. The Scranton, Iowa, company manufactures truck equipment and, as alleged by the EPA, violated multiple federal regulations intended to protect workers and the public from exposure to the toxic and/or ignitable waste it generated.
 
According to EPA, Scranton Manufacturing qualified as a large quantity generator of hazardous waste but was failing to meet requirements of a facility producing that much waste. The company failed to prepare a contingency plan to respond to emergencies; failed to make arrangements with all local emergency responders in the event of a release or threat of a release of a hazardous waste; and failed to complete all staff training requirements. Because the company failed to meet these requirements, it was operating as an unpermitted hazardous waste treatment, storage, and disposal facility.
 
In response to the inspection findings, Scranton Manufacturing agreed to take the necessary steps to return its facility to compliance.
 
Exposure to the kinds of waste produced by Scranton Manufacturing may lead to injury or death if ingested or absorbed. Federal law requires facilities that generate hazardous wastes to identify the waste and implement safe generation, handling, transportation, and disposal practices.
 
Prepare for Hazardous Weather Events
 
With June marking the start of hurricane season in the Atlantic Ocean and Gulf of Mexico, the EPA reminded facility operators of requirements for preventing, minimizing and reporting chemical releases. Facility operators are obligated to maintain safety, minimize releases that do occur, and report chemical releases or oil spills in a timely manner, as required under the Comprehensive Environmental Response, Compensation and Liability Act and/or the emergency planning provisions of the Emergency Planning and Community Right-to-Know Act and/or the National Oil and Hazardous Substances Pollution Contingency Plan.
 
“As with every hurricane season, engaging with facility operators is a critical step to ensuring appropriate preparation and planning for potential releases,” said EPA Acting Region 4 Administrator John Blevins. “We want facility operators to implement the safety measures needed to prevent and minimize releases of chemicals and hazardous substances in order to protect communities and minimize and recover from storm damage.”
 
Unlike some natural disasters, hurricanes and tropical storms are predictable and usually allow facilities to prepare for potential impacts. EPA reminds operators of some basic steps to prepare for hazardous weather:
  • Review procedures for shutting down processes and securing facilities appropriately—especially hazardous chemical storage—or otherwise implement appropriate safe operating procedures.
  • Review updated state-federal guidelines for flooding preparedness, available here.
  • Assure all employees are familiar with requirements and procedures to contact the National Response Center in case a spill or release occurs.
  • Review local response contacts, including Local Emergency Planning Committees (LEPCs) and State Emergency Response Commissions (SERCs). A list of these contacts by state is available here.
 
Prevention and reporting requirements for facilities are available at https://www.epa.gov/natural-disasters/hazardous-weather-release-prevention-and-reporting.  In the event of a hazardous weather incident, please visit https://www.epa.gov/natural-disasters for updated emergency information.
 
Public Listening Sessions and Training on Upcoming Oil and Natural Gas Methane Rule
 
EPA has taken its first step to develop a proposed rule to reduce methane and other harmful pollutants from new and existing sources in the oil and natural gas industry, beginning with a broad public outreach effort to gather community and stakeholder input. These activities include holding training sessions on the rulemaking process and how to participate in it, convening listening sessions for stakeholders, and opening a public docket for pre-proposal comments.
 
The oil and natural gas industry is the largest industrial source of U.S. emissions of methane, a potent greenhouse gas, and its facilities and operations also emit smog-forming volatile organic compounds and toxic air pollutants such as benzene. These actions are in response to President Biden’s Executive Order 13990, and are key steps toward EPA’s commitment to deliver public health protections from methane pollution for communities across America.
 
"As we move forward to reduce pollution from oil and gas operations, it is vitally important to hear from all stakeholders, including those from impacted communities and industry," said EPA Administrator Michael S. Regan. "This process enables EPA to engage with communities that have historically borne a disproportionate burden from pollution so that we can ensure those voices are reflected in our policymaking."
 
President Biden's Executive Order “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” called on EPA to consider issuing a proposed rule by September 2021 to strengthen standards for methane emissions from new, reconstructed, and modified oil and natural gas sources and to address methane emissions from existing sources.
 
How to share input:
  • Training webinars: On May 25, 26, and 27, 2021, EPA will hold training webinars for communities, Tribes and small businesses to provide an overview of the oil and natural gas industry and share information to help members of those groups effectively engage in the regulatory process. Each training will be held at 2 p.m. eastern time.
  • Public Listening Sessions: EPA will hold virtual public listening sessions from noon to 9 p.m. eastern time June 15, 16, and 17, 2021. During the listening sessions, registered members of the public will have the chance to provide their views on the oil and natural gas industry as it relates to climate change, health and EPA’s upcoming proposed rule. The agency also has opened a non-rulemaking docket for people who wish to provide their input and perspectives in writing.
  • Docket for public input: You may submit perspectives and input to the docket in advance of the September proposed rulemaking. Instructions for submitting input are available on EPA’s website.
 
For information on submitting input to the docket, or to register to attend a training or listening session, visit EPA’s methane rule website. EPA will post additional outreach opportunities to this website as they are scheduled.
 
3M Failed to Manage Hazardous Waste at Cottage Grove Facility
 
The Minnesota Pollution Control Agency (MPCA) announced an enforcement agreement with 3M regarding the company’s failure to properly record, store, inspect, and dispose of hazardous waste at its manufacturing and waste incineration facility in Cottage Grove, Minnesota. The findings are part of a two-year investigation that started in September 2018.
 
According to the agreement, 3M failed to properly store hazardous waste containers in permitted hazardous waste storage areas. The investigation found one container of hydrofluoric acid, an extremely toxic chemical compound, releasing gases into the air. An additional 901 hazardous waste containers containing hydrofluoric acid, some with bulging barrel lids, were stored throughout the Cottage Grove facility. 3M failed to immediately notify the MPCA of an excessive and abnormal unpermitted emission that may cause air pollution that endangers human health.
 
In addition, the MPCA determined that 3M stored restricted wastes beyond the one-year limit and failed to prove that the storage was solely for the purpose to facilitate proper recovery, treatment, or disposal. Some hazardous waste containers were stored 724 days beyond the 365-day restriction.
 
As part of the enforcement agreement, 3M completed 15 corrective measures, including improved hazardous waste wastewater prevention methods, updated annual training for employees, and enhanced recordkeeping of hazardous waste at the facility. In addition to corrective actions, 3M paid $80,000 in civil penalties for its violations.
 
6 Contractors Cited for exposing Workers to Falls, Other Safety Hazards
 
Six contractors constructing luxury single-family homes at the future site of Hawthorne Estates in Medford put workers at risk of serious or fatal injuries by failing to comply with federal requirements to prevent falls, the leading cause of death in the construction industry.
 
After multiple on-site investigations, the U.S. Department of Labor’s Occupational Safety and Health Administration cited the companies for exposing workers to falls and other dangerous safety hazards while erecting walls and sheathing roofs.
 
OSHA initiated three of the inspections as part of its Regional Emphasis Program on Falls in Construction. During the first on Oct. 20, 2020, the compliance officer observed workers exposed to falls and other hazards. Inspectors observed the same hazards during a second inspection two days later, prompting the third inspection on Oct. 31.
After the three inspections, OSHA proposed total penalties of $244,397 and cited the companies collectively for four willful and 35 serious violations, including exposing workers to falls greater than 6 feet and not providing personal protective equipment. The companies, citations and proposed penalties are:
Company Name
Address
City
State
Citations
Proposed Penalty
Claudio DeSousa, dba Lifetime Contractor Corp.
7132 South St.
Philadelphia
PA
$107,279
Lezinho Sousa, dba Lifetime Contractor Corp.
3304 Cooper Ave.
Pennsauken
NJ
$87,381
WSJ Construction
1302 Monroe Ave.
Asbury Park
NJ
$16,383
Gustavo Quintomillno, dba Lifetime Contractor Corp.
120 Elm Street,
Beverly
NJ
$12,874
LWJ Construction LLC
85 Lippincott Ave.
Long Branch
NJ
$12,288
RMM Contractor LLC
274 Morris Ave.
Long Branch
NJ
$8,192
 
"A fall can permanently alter or end a worker’s life in a matter of seconds," said OSHA Area Director Paula Dixon-Roderick in Marlton, New Jersey. "Contractors and subcontractors in the construction industry have a legal obligation to comply with the law and ensure their workers end their shifts safely. When employers fail to follow requirements, OSHA will hold them responsible to the fullest extent of the law."
 
OSHA encourages employers to use its Stop Falls online resources, including detailed information on fall protection standards in English and Spanish. The site offers fact sheets, posters and videos that illustrate various fall hazards and appropriate preventive measures.
 
Winners Announced in PFAS Destruction Challenge
 
Per- and polyfluoroalkyl substances (PFAS) are a group of synthetic chemicals that have been in use since the 1940s and are (or have been) found in many consumer products like cookware, food packaging, and stain repellants. PFAS manufacturing and processing facilities, airports, and military installations that use firefighting foams, such as AFFF, are some of the main sources of PFAS. PFAS may be released into the air, soil, and water, including sources of drinking water. PFOA and PFOS are the most studied PFAS chemicals and have been voluntarily phased out by industry, though they are still persistent in the environment. There are many other PFAS in use throughout our economy. These chemicals are very bio-persistent in the environment and in the human body. There is evidence that exposure to PFAS can lead to adverse human health effects.
 
EPA announced the winners of the Innovative Ways to Destroy PFAS (per- and polyfluoroalkyl substances) Challenge, a partnership between federal and state agencies focused on identifying ways to destroy PFAS in concentrated aqueous film forming foam (AFFF), a type of firefighting foam. This Challenge is part of the Agency’s efforts, including Administrator Regan’s new “EPA Council on PFAS,” to better understand and ultimately reduce the potential risks caused by these chemicals.
 
“The innovative technologies developed by the challenge winners will help reduce exposure to PFAS and reduce the impacts of these chemicals on the environment,” said Jennifer Orme-Zavaleta, Acting Assistant Administrator for EPA’s Office of Research and Development. “This challenge is the latest step EPA has taken to help address the effects of PFAS on human health and the environment.”
 
"DOD’s PFAS priorities are mitigating and eliminating the use of the current AFFF, and fulfilling our cleanup responsibility related to PFAS," said Mr. Paul Cramer, Acting Assistant Secretary of Defense for Sustainment. "Evaluating options for destroying AFFF is key to these efforts, and the results of this challenge are promising."
 
“The collective creativity and ingenuity of participants from diverse backgrounds is what makes challenges like this so successful. We hope rewarding the creators of these innovative concepts helps to make these technologies a reality so that federal, state, tribal, and local partners can safely destroy PFAS in firefighting foams," said Patrick McDonnell, President of the Environmental Council of States (ECOS) and Secretary of the Pennsylvania Department of Environmental Protection.
 
PFAS can be found at different concentrations in various waste streams; this challenge focused on unused AFFF because of its high concentration of PFAS and widespread use to fight fires.  EPA and its partners sought technologies that showed the potential to destroy at least 99 percent of PFAS in unused AFFF – without creating harmful byproducts and using temperatures significantly lower than temperatures required for incineration. The challenge was intended to encourage the development of new approaches, technologies, or combinations of technology that had the potential to destroy PFAS.
 
Challenge winners include:
 
First Place ($40,000 prize):
  • Brian Pinkard of Aquagga Inc., for a hydrothermal processing concept using high-temperature and high-pressure water to dispose of PFAS-contaminated waste onsite that may be potentially applicable for AFFF.
 
Second Place ($10,000 prize each):
  • Denise Kay and Meng Wang of the Ramboll Group in Denmark and Dr. Cheng Gu of Nanjing University in China for their concept to use ultraviolet light and non-toxic additives to destroy PFAS.
  • Sarah (Xiao) Wu of the University of Idaho, for her concept using a continuous flow liquid-phase plasma discharge process to destroy PFAS in AFFF.
 
EPA collaborated on this challenge with the U.S. Department of Defense’s Strategic Environmental Research and Development Program (SERDP) and Environmental Security Technology Certification Program (ESTCP); the Environmental Council of the States (ECOS) and the Environmental Research Institute of the States (ERIS); Michigan Department of Environment, Great Lakes & Energy (EGLE); and the Colorado Department of Public Health & Environment (CDPHE).
 
All submissions were evaluated by EPA scientists and key representatives from the Department of Defense. ECOS/ERIS, Michigan EGLE and CDPHE also had the opportunity to provide state-level insight for finalists.
 
Challenge winners will have the opportunity to submit their winning design concepts to DoD’s SERDP/ESTCP programs for further testing.
 
Owners and Manager of Automotive Shop Indicted For Conspiracy to Violate the Clean Air Act
 
A federal grand jury charged three southwest Washington residents and two corporations with a conspiracy that involved removing federally-required pollution control hardware from diesel pick-up trucks and tampering with the trucks’ emissions monitoring systems, announced Acting U.S. Attorney Tessa M. Gorman.  The owners and general manager of Racing Performance Maintenance Northwest and a related Woodland, Washington, company, RPM Motors and Sales NW, will appear in U.S. District Court in Tacoma on May 25, 2020.
 
The indictment charges company owners Sean Coiteux, 47, and his wife, Tracy Coiteux, 43, the service manager, Nick Akerill, 41, and the corporate entities they controlled with conspiracy to violate the Clean Air Act and eleven specific violations of the Clean Air Act for tampering with the emissions-monitoring system on vehicles when removing pollution control equipment between January 2018 and November 2020.
 
“By removing required pollution control devices, the defendants caused their customers’ diesel trucks to spew pollutants into the air at a rate of up to 300 times the pollution caused by compliant trucks,” said Acting U.S. Attorney Gorman.  “These defendants increased toxins in our environment that are linked to cancer, as well as pulmonary, neurological, cardiovascular, and immune system damage.  And they collected hundreds of thousands of dollars in fees for doing so.”
 
According to the indictment, between January 2018 and January 2021, the defendants charged their customers fees of about $2,000 per truck to remove emissions control systems required by federal law.  They then modified legally-required software that works to ensure the vehicle’s pollution remains within legal limits.  RPM Motors and Sales sometimes offered, as part of the sale of a truck, to remove the emissions control system after the customer purchased a truck.  Email and other electronic records document the conspirators’ purchase of equipment and software kits to remove the pollution control and reprogram the monitoring systems.  These modifications, which are known as “tunes” and “deletes,” are marketed to truck owners as improving vehicle power and performance.
 
Over the three years described in the indictment, the defendants took in more than $500,000 for the modifications that violate the Clean Air Act.
 
“The defendants intentionally violated the Clean Air Act by installing emissions defeat equipment in passenger vehicles, resulting in increased air pollution,” said Special Agent in Charge Scot Adair of EPA’s Criminal Investigation Division in the Pacific Northwest.  “EPA and our law enforcement partners will continue to focus efforts on stopping the sale of these illegal devices.”
 
Conspiracy is punishable by up to five years in prison.  Each violation of the Clean Air Act is punishable by up to two years in prison and a $250,000 fine.
 
The charges contained in the indictment are only allegations.  A person is presumed innocent unless and until he or she is proven guilty beyond a reasonable doubt in a court of law.
 
The case is being investigated by EPA’s Criminal Investigation Division.
 
The case is being prosecuted by Assistant United States Attorney Seth Wilkinson and EPA Special Assistant United States Attorney Karla Gebel Perrin.
 
New Health Emergency Labor Standards Act (HELSA) Effective Immediately in Washington
 
The Washington State Legislature recently passed Engrossed Substitute Senate Bill 5115, known as the Health Emergency Labor Standards Act (HELSA). Governor Inslee signed the bill last week and the new law became effective immediately. HELSA establishes the following requirements for an infectious or contagious disease like COVID-19 during a declared public health emergency:
  • Frontline workers, as defined in the law, who contract an infectious or contagious disease are entitled to workers’ compensation wage replacement and medical benefits under a rebuttable presumption that exposure to disease occurred on the job.
  • Employers with more than 50 employees at a workplace must notify L&I within 24 hours if they have ten or more employees who have tested positive for an infectious or contagious disease.
  • Employers are prohibited from discharge, replacement, or discrimination of high-risk employees for seeking accommodations or utilizing leave to protect against an infectious or contagious disease.
  • Employers must notify employees, union representatives, and employers of subcontracted employees of potential exposure to an infectious or contagious disease.
 
See the HELSA bill for more details, including the list of “frontline workers.” The Washington Department of Labor and Industry is drafting guidance on how these requirements will be implemented and enforced. More information and resources are coming soon. If you have questions about the new law, email EyeOnSafety@lni.wa.gov
 
Live Training Resumes in July
 
If you prefer live face to face training, we have good news for you. Environmental Resource Center is resuming its schedule of live nationwide training. We’ll be following the current CDC recommendations for a safe environment and work hard to ensure that you remain safe throughout the sessions. Here’s a list of classes that you can choose from:
Hazardous Waste Management: The Complete Course (RCRA) Macon July 13-14
  Cary/Raleigh July 20-21
  Birmingham August 3-4
  Indianapolis August 10-11
  Richmond August 17-18
  Nashville August 31-September 1
  Pittsburgh September 14-15
  Spartanburg September 28-29
Texas Hazardous Waste Management Dallas July 27-28
  Houston August 24-25
  San Antonio September 21-22
California Hazardous Waste Management: The Complete Course Ontario August 3-4
  Los Angeles September 21-22
DOT Hazardous Materials Training: The Complete Course Macon July 15
  Cary/Raleigh July 22
  Dallas July 29
  Ontario August 5
  Birmingham August 5
  Indianapolis August 12
  Richmond August 19
  Houston August 26
  Nashville September 2
  Pittsburgh September 16
  San Antonio September 23
  Los Angeles September 23
  Spartanburg September 30
RCRA and DOT Annual Update and Refresher Charlotte September 8
  Cary/Raleigh September 29
IATA: How to Ship Dangerous Goods by Air Charlotte September 9
HAZWOPER 8-Hour Refresher Cary/Raleigh September 28
 
Free Amazon HD 10 Tablet with RCRA and DOT Training
 
Annual training is required by 40 CFR 262.17(a)(7). Learn how to complete EPA’s new electronic hazardous waste manifest, and the more than 60 changes in EPA’s new Hazardous Waste Generator Improvements Rule. Environmental Resource Center’s Hazardous Waste Management: The Complete Course is available via live webcasts. If you plan to also attend DOT Hazardous Materials Training: The Complete Course, call 800-537-2372 to find out how you can get your course materials on an Amazon Fire HD 10 tablet at no extra charge.
 
Job Openings at Environmental Resource Center
 
Environmental Resource Center has openings for EHS consultants and trainers. If you are looking for a new challenge, send your resume and salary requirements to Brian Karnofsky at brian@ercweb.com.
 
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