Care, Protect, Grow: The U.S. Compliance Blog

OSHA Inspections – The General Duty Clause

While you may be familiar with OSHA inspections that result in violations of 29 CFR 1910, 1926, 1904, etc., have you experienced a citation that references the General Duty Clause? Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970 is commonly known as the General Duty Clause. It states, in part: “(a) Each employer — (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

The General Duty Clause has an important role despite being infrequently cited in laws governing the occupational health and safety of workers in the United States. Estimates run that less than 2% of citations issued by OSHA each year are General Duty Clause related. One review found that the highest number of General Duty citations occurred in 1979 and comprised 2.7% of total citations for that year.

It is not difficult to understand why General Duty Clause violations make up a relatively small percentage of citations. Essentially, it comes down to four criteria points that OSHA must be able to demonstrate and prove for a General Duty Clause citation to be issued:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  2. The hazard was recognized;
  3. The hazard was causing or was likely to cause death or serious physical harm; and
  4. There was a feasible and useful method to correct the hazard.

However, the importance and usefulness of the General Duty Clause can be seen from the types of violations it is used to enforce by OSHA. General Duty Clause violations are typically found when an incident occurs where employees are injured or likely would be injured from workplace conditions not covered by an already-established OSHA standard, but where guidance can be found from various other sources: consensus standards, industry-specific recognized practices, manufacturer’s recommendations of safe use of their products, or other state, local, and federal laws, etc. The more commonly found conditions that fall under possible General Duty Clause violations are:

  • Ergonomics and musculoskeletal disorders
  • Exposure to respiratory hazards not covered by a federal OSHA permissible exposure limit (but recognized through NIOSH, ACGIH, state OSHA, etc.)
  • Failing to anchor or secure industrial racking
  • Heat/cold-related injuries (heat stress, frostbite, etc.)
  • Equipment inspection and user trainings not conducted
  • Workplace violence
  • Pandemic and other infectious disease-related exposures (COVID-19)

While not every injury or unsafe condition is applicable to a General Duty Clause violation, OSHA inspectors can use them to correct conditions at a worksite that otherwise would not be enforceable through a direct standard. Knowing that these means are available to OSHA should incentivize employers to understand their obligation to provide a safe workplace for all employees.

DOT HazMat – Understanding Training Needs in Manufacturing

Transporting hazardous materials requires care, attention, and specific training certified by the Department of Transportation (DOT). It’s essential that employers understand what qualifies as a hazardous material and what this means for their employee training requirements.

Am I a Department of Transportation Hazardous Materials Employer?

If you are unsure whether your business is classified as such, you may be putting the public and environment at risk. What’s more, you could be exposing your business to significant fines. Hazardous materials employers are required to ensure that all employees performing DOT hazmat functions complete DOT hazmat training at least on a triennial basis as required by 49 CFR 172.704. Failure to provide DOT hazmat training is the only DOT hazmat regulation that carries a mandatory minimum penalty, which as of May 3, 2021, is $508 per employee per day. That may not seem like a significant amount at first glance but let’s take a look at how easily that penalty can add up.

Our hypothetical scenario is a painting business that creates small amounts of hazardous waste. There are four painters in total that add a flammable hazardous waste to a drum that is picked up for disposal by a third-party hazardous waste hauler every few months. All hazardous raw materials are received in limited quantities that do not trigger hazmat employer applicability. And so, there has been an incorrect assumption that these regulatory requirements do not apply since the waste is being picked up by a reputable company that has never mentioned anything about training requirements.

The truck carrying the waste is subjected to a DOT inspection while your load is on the truck. Due to some minor paperwork inconsistencies, this leads the DOT compliance officer to visit your plant. The compliance officer requests copies of your hazardous waste manifests, which are required to be maintained for at least three years, as well as the training records for the four painters that add hazardous waste to the waste drum. The manifests are provided as requested, but training for the painters has not been completed.

We now have a documented record of a business shipping hazardous waste for three years with four untrained painters adding hazardous waste into the drum. The penalty of $508 per employee per day times 1,095 days with 4 employees could be up to $2,225,040. Now that you have a better idea of how easily the fines can increase, let’s discuss what the DOT considers to be a hazardous material and which activities performed by your employees will classify your business as a DOT hazmat employer.

What is a Department of Transportation Hazardous Material?

The Department of Transportation defines a hazardous material as a substance or material that the Secretary of Transportation has determined is capable of posing an unreasonable risk to health, safety, and property when transported in commerce and has been so designated. This includes materials designated as hazardous in the Hazardous Materials Table (49 CFR 172.101), as well as hazardous substances, hazardous wastes, marine pollutants, and elevated temperature materials.

A hazardous substance is a material, including its mixtures or solutions, that is listed in Appendix A to 49 CFR 172.101, and is in a quantity, in one package, that equals or exceeds the reportable quantity listed in Appendix A. These are extremely hazardous substances that will require a report to be filed with the Environmental Protection Agency if the release of just one container were to occur.

A hazardous waste is any material that is subject to the Hazardous Waste Manifest Requirements of the Environmental Protection Agency specified in 40 CFR part 262. This includes flammable or ignitable wastes, corrosive wastes, reactive wastes, and toxic wastes.

A marine pollutant is a material that is listed in Appendix B to §172.101 of this subchapter (also see §171.4) and, when in a solution or mixture of one or more marine pollutants, is packaged in a concentration that equals or exceeds:

  1. Ten percent by weight of the solution or mixture for materials listed in the appendix; or
  2. One percent by weight of the solution or mixture for materials that are identified as severe marine pollutants in the appendix.

Marine pollutants transported by water, in any size packaging, are subject to all the applicable requirements. Whereas marine pollutants transported by highway, rail, or air are subject to the requirements only when transported in BULK packaging.

An elevated temperature material indicates a material that, when offered for transportation or transported in a bulk packaging:

  1. Is in a liquid phase and at a temperature at or above 100°C (212°F);
  2. Is in a liquid phase with a flashpoint at or above 38°C (100°F) that is intentionally heated and offered for transportation or transported at or above its flash point; or
  3. Is in a solid phase and at a temperature at or above 240°C (464°F).

 

What Operational Activities Will Classify My Business as a HazMat Employer?

A DOT hazmat employer is a business whose employees directly affect the safety of hazardous materials transportation. DOT hazmat training is required for all employees who perform any of the following DOT hazmat tasks:

  • Loads, unloads, or handles hazardous materials.
  • Designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs, or tests a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.
  • Prepares hazardous materials for transportation:
    • Determining the hazard class of a hazardous material.
    • Selecting a hazardous materials packaging.
    • Filling a hazardous materials packaging, including a bulk packaging.
    • Securing a closure on a filled or partially filled hazardous materials package or container or on a package or container containing a residue of a hazardous material.
    • Marking or labeling a package to indicate that it contains a hazardous material.
    • Preparing a shipping paper.
    • Providing and maintaining emergency response information.
    • Reviewing a shipping paper to verify compliance with the HMR (Hazardous Material Regulations) or international equivalents.
    • For each person importing a hazardous material into the United States, providing the shipper with timely and complete information as to the hazardous materials regulation requirements that will apply to the transportation of the material within the United States.
    • Certifying that a hazardous material is in proper condition for transportation in conformance with the requirements of the HMR.
    • Loading, blocking, and bracing a hazmat package in a freight container or transport vehicle.
    • Segregating a hazmat package in a freight container or transport vehicle from incompatible cargo.
    • Selecting, providing, or affixing placards for a freight container or transport vehicle to indicate that it contains a hazardous material.
  • Is responsible for the safety of transporting hazardous materials.
  • Operates a vehicle used to transport hazardous materials.

 

What to Do if You Discover Opportunity Areas

U.S. Compliance can help to reduce your risk if you identify gaps when it comes to your DOT hazmat training obligations. Whether it be through on-site training, or our bi-monthly webinar training, we offer a variety of solutions to train your staff on DOT hazmat regulations. This training will help keep you up to date and in compliance. Contact U.S. Compliance today to discover how we can help!

 

Temporary Workers – Preparing Your Company When Bringing in Additional Help

Hiring temporary workers has increased more than ever in today’s work environment. This can create many opportunities for staffing agencies and host employers looking to hire workers in the future. Is your company prepared to work with staffing agencies? Do you have the correct information in place when hiring a temporary employee? When a temporary employee gets hired at your company, do you know what you need to provide and what the staffing agency provides? These are just a few of the questions you need to ask yourself before hiring temporary workers.

Having good communication is key in many different aspects of business. When working with a staffing agency, this can sometimes be overlooked and forgotten until an accident happens and it’s too late.

Utilizing temporary workers, training records, emergency action planning, and personal protective equipment are things that host employers and staffing agencies need to communicate. When working with a staffing agency and a host employer, having effective communication with clear direction is very important. Creating a contractual agreement with specific safety requirements and conditions between the staffing agency and host employer is sometimes overlooked, leading to host employers not knowing what they are supposed to have when the temporary worker shows up at their facility.

Contract Agreements

When working with a staffing agency, many things need to be communicated before bringing in temporary workers. Some of the most important things to map out in the contract are employee training and emergency action planning.

Training

Temporary agencies typically provide some awareness training to their employees before sending them to a host employer. They are usually trained with a high-level overview of the type of work they will be performing or sometimes, just the job description is reviewed with them. Is that training accurate to the line of work your company does? Are there other key aspects like hazard communication or personal protective equipment that need to be covered with them before hiring? It is crucial that the host employer provides the staffing agency with an updated job description or job hazard assessment for the type of work that the temporary worker will perform.

Another area that needs to be reviewed is temporary worker training. This is something that often gets overlooked in the contract, and sometimes records are never provided. As a host employer, these records need to be available. If OSHA were to show up and request records for all employee training, not having training completed for temporary workers can lead to citations for the host employer and potentially the staffing agency if proof of training is not available.

When bringing on additional help from staffing agencies, be sure to have job hazard assessments (JHA) available to train the employees coming in for that job. These can also be shared with the staffing agency to help them recruit and train potential employees. The more training and overview that the employees have before arriving at a host employer, the better, as this can help prepare them for what type of work they will be completing. This can also help reduce employee turnover, recruiting, and time spent training employees when they show up for work. This will allow for more of an impactful hands-on training experience.

Emergency Action Plan

When it comes to worker safety, planning for an emergency is always at the top of the list, so this shouldn’t be any different for a temporary worker. The directions for dealing with a full-time employee and a temporary employee injury are very different, however. There needs to be clear directions for who the host employer is to contact at the staffing agency if the temporary worker is hurt, what clinic or care provider they are to seek, and that the temporary employee has as a 24-hour contact person. Facilities that hire temporary workers sometimes skip past a few of these important items and can find themselves in a predicament when dealing with workers’ compensation claims and contract issues.

Another key area when dealing with staffing agencies is determining whose OSHA 300 log a recordable injury at a host employer’s facility will go on. This can be determined by who is directing the means and manner of work.

If a host employer hires a supervisor from the staffing agency to direct other temporary workers of a certain process/area, the injury will fall on the staffing agency’s OSHA log. The staffing agency supervisor is directing the means of work in that area and this would be considered the staffing agency’s work even though it is performed at the host employer’s facility. If a temporary worker gets hurt on the job and the host employer is directing the work, the injury will fall on the host employer’s OSHA log. Even though the injuries can fall on either the staffing agency or the host employer, workers’ compensation will be covered for the temporary worker by the staffing agency in both instances.

In closing, when working with a staffing agency, it is very important to have clear communication and a solid understanding of who is responsible for what. When employees start work with a host employer, be sure that they have the right tools to come to work prepared. Having effective communication and correspondence with the staffing agency will ensure that all employees remain safe while on the job.

Injury Management 101

Injury management is an important part of any facility’s safety management program. Facilities should have a plan to prevent injuries from happening, as well as a plan to handle the effects of an injury on the facility and employee. Injury Management can be broken down into three portions: (1) Ways to prevent injuries from occurring, (2) mitigating the effects of an injury on the business, and (3) returning the employee to work as soon as possible. When a facility implements programs and takes the steps to minimize the effects of an injury, it can reduce the total cost and impact of the injury.

Costs of injuries can be broken down into two categories, direct and indirect costs. Direct costs of an injury are the costs that are directly associated with the injury, such as medical treatment, medicine, or physical therapy. Meanwhile, indirect costs are costs that are sometimes forgotten, such as a loss of productivity, equipment damage, retraining employees, or overtime. Indirect costs can often be more expensive than the direct costs of an injury—sometimes up to 10 times that of the direct costs. Implementing injury prevention and return to work programs can help a facility reduce the overall costs associated with workplace injuries.

Ways to Prevent Workplace Injuries From Occurring

Injury and Illness Prevention Programs

Injury and Illness Prevention (I2P2) Programs are a preventative approach to reducing workplace injuries by identifying and controlling hazards prior to injuries occurring. I2P2 programs incorporate effective injury prevention methods such as employee-run safety committees, employee safety observation/reporting opportunities, and near miss reporting. Implementation of these programs engages employees in the safety program and gives them the opportunity to participate in identifying and correcting potential safety issues. This allows for the facility to apply the necessary controls to the hazards identified prior to any injury occurring. Not only can the implementation of an I2P2 program help to reduce injuries, but it can also help to develop or improve the overall safety culture of the facility.

Job Hazard Assessments

Job Hazard Assessments (JHAs) are a method to identify and control hazards before injuries occur. JHAs are a required part of a facility’s injury prevention program. A JHA takes a detailed look at the steps required for completing an employee task while assessing it for hazards (i.e., mechanical hazards, struck-by hazards, chemical hazards, etc.). Once the hazards associated with the task are identified, then controls for each task must be implemented. This process can help to identify and control hazards associated with employee tasks to prevent injuries from occurring.

Mitigating the Effects of Workplace Injuries on the Facility

Injury Investigation

Once a workplace injury occurs, we must be prepared and know what to do next. The first step should always involve getting the injured employee the assistance they need while ensuring other employees’ safety. The next step is to complete a thorough injury investigation. Generally, the supervisor of the area where the incident occurred will lead the investigation with assistance from witnesses, the injured employee, or the safety manager. The employees involved in the incident investigation may differ depending on the severity or complexity of the incident. More complicated incidents may require collaboration from multiple departments to determine the cause. When conducting an injury investigation, it is important to identify the true root cause of the injury. Once the root cause of the injury is identified, then corrective actions must be implemented. The goal of the corrective actions should be to ensure that the same type of injury will not happen again.

Return to Work Program

Implementation of a return to work program can help to manage an employee injury and reduce the impact of the indirect costs associated with the injury. After an injury occurs, the goal should be to get the injured employee back to work as soon as possible, even if they must participate in light-duty work. Participating in light-duty work can reduce some of the indirect costs incurred by the facility and keep the employee at work on active duty rather than at home.

Steps to developing a return to work program:

  1. Analyze historical loss data:
    Review of OSHA 300 logs or injury reports to help identify injury trends or patterns in areas that may need additional controls.
  2. Develop written job descriptions:
    Simply written statements that describe the work to be performed and the essential requirements of the job. Job descriptions should include information such as tasks of the job, physical demands, environmental demands, training/educational requirements. Written job descriptions can help with planning production processes.
  3. Develop transitional jobs:
    Review tasks within the facility that could be considered as transitional duty options: data entry, cleaning, inventory controls, etc. Once the transitional duties are selected, job descriptions must be written for these tasks as well. The written transitional job descriptions can be compared to employees’ restrictions to determine if transitional work is a viable option.
  4. Select a “preferred provider” for medical treatment:
    Facilities should identify and establish relationships with medical providers that employees would visit for work-related injuries. The “preferred provider” chosen should specialize in industrial injuries and understand the type of work completed. The facility should work with the preferred provider to ensure that they understand the basic requirements of the jobs at the facility and the transitional jobs available. The preferred provider can also be invited to tour the facility to better understand the job descriptions.
  5. Ensure effective communication with the physician:
    Clear and effective communication with the providing physician after a work-related injury is imperative. The facility will need to ensure that the physician has provided a diagnosis of the injury and a detailed description of the limitations of the injured employee. Communication is also important after all follow-up visits to determine any possible changes to employees’ restrictions.

Injury management is an essential process in reducing the effect of workplace injuries on a business. Implementing I2P2 programs and return to work programs can greatly reduce the cost and impact of work-related injuries.

Stormwater Pollution Prevention Plans (SWPPPs): Keeping Your Plan Compliant

If your facility performs industrial activities outside or has outdoor storage, there is a good possibility that you are applicable to general industrial stormwater permitting. Whether you are familiar with the requirements of your industrial stormwater permit or are looking to apply for permit coverage for the first time, all general industrial stormwater permittees are required to develop a stormwater pollution prevention plan, or SWPPP as it is commonly known. This plan outlines important details about your facility and how your facility intends to comply with your stormwater permitting requirements.

Your SWPPP and its supporting documents are some of the first things that inspectors will look at when assessing your facility for compliance. It is crucial to make sure that your SWPPP meets all regulatory requirements and stays up to date. Whether you are developing your first SWPPP or reviewing your current one, below are some items you don’t want to miss including.

Common SWPPP Requirements

Pollution Prevention Team

First and foremost, your SWPPP needs to identify who at your facility will be responsible for both developing the SWPPP and carrying out the requirements of your stormwater permit. Their responsibilities include, but are not limited to, completing inspections and sampling, conducting corrective actions when permit non-compliance occurs and updating the SWPPP when changes occur onsite.

Assessment of Onsite Storage and Activities

All SWPPPs need to identify what industrial activities at your facility have the potential to impact stormwater. The EPA defines industrial materials or activities that need to be considered under 40 CFR 122.26(g). These include activities such as:

  • Material handling equipment or activities (including the storage, loading and unloading, transportation, disposal, or conveyance of any raw material, intermediate product, final product, or waste product);
  • Industrial machinery;
  • Storage and handling of raw materials;
  • Industrial production and processes; and
  • Intermediate products, by-products, final products, and waste products.

Make sure that you are considering all of your outdoor activities and storage when making this list. Everything from occasional equipment maintenance to exhaust stacks from processing areas, and something as simple as uncovered dumpsters to loading and unloading practices should be listed in your SWPPP.

Once you have identified your industrial activities and materials that take place in outdoor areas exposed to stormwater runoff, you will also need to identify what potential pollutants are associated with each. For example, a fueling station onsite would have the potential to pollute stormwater with oil and grease. Similarly, a scrap metal dumpster has the potential to pollute stormwater with various metals. Even mostly finished goods could have residual oils and chemicals on them, which have the potential to pollute stormwater.

Control Measures for Potential Pollutants

Once your industrial activities and their potential to pollute are identified, you will need to identify control measures, or best management practices (BMPs), to prevent or reduce the discharge of pollutants in stormwater. The SWPPP provides a place to outline what site-specific control measures are implemented at your facility. Below are some examples of control measures that should be addressed in your SWPPP.

  • Minimize Exposure – Anything done onsite that helps minimize the exposure of your materials to stormwater should be documented in your SWPPP. This could be finding space indoors or offsite for material previously stored outside, or covering materials with awnings or tarps to minimize exposure to runoff.
  • Good Housekeeping – The frequency and description of good housekeeping practices implemented at your facility should be covered in your SWPPP. This can be as simple as noting the frequency of trash pickups to prevent overflow or committing to keeping outdoor storage areas debris-free. Finally, include employee training on the importance of cleaning up any mishandled materials immediately to prevent them from being washed offsite during the next rain event.
  • Maintenance – Make sure maintenance programs for any outdoor industrial equipment and/or systems are referenced or outlined in your SWPPP. Most permits also require a preventative maintenance log to note when this maintenance takes place.
  • Spill Prevention and Response Procedures – Identify measures implemented onsite to minimize the potential for spills, leaks, and any other releases from material stored outdoors, or even near doorways in your building. If you have other spill plans at your facility, be sure to reference them in your SWPPP.

Consult your permit for all mandatory control measures that should be addressed in your SWPPP.

Site Maps

As you’re identifying your materials and activities stored outside, you will want to note their location for your site map. All SWPPPs include a site map that outlines where industrial materials and activities are located throughout the property. It identifies stormwater runoff features, such as the direction of flow, storm drains, and final outfalls where stormwater leaves your property. The map should be used as your road map during facility inspections. Your permit will typically list in detail what items are required for your site map. Be sure to check that list thoroughly to make sure an inspector doesn’t catch something you missed.

Sector Requirements

Not all industries will have the same industrial activities and potential pollutants onsite. The federal general stormwater permit and many state permits list additional permit requirements for different sectors of industry listed in the permit. These sectors will outline stormwater sampling specific to your industry, additional common industrial materials or activities that need to be added to your SWPPP and site map, and even additional inspection or reporting requirements. Do not forget to add these requirements to your SWPPP and follow them throughout the term of your permit.

Permit Requirements

One of the most important parts of your SWPPP is outlining the procedures you have in place to comply with your permit requirements. This typically includes, but is not limited to:

  • routine facility inspections,
  • quarterly visual assessments,
  • reporting,
  • analytical sampling, and
  • corrective action reports.

These tools help you determine if your control measures are working to minimize pollutants, give you an opportunity to review your SWPPP, and make sure that all other areas are in compliance with your permit. Most permits require at least three years of these records to be kept onsite and will definitely be reviewed should your facility be inspected.

Updating Your SWPPP

It is important to remember that your SWPPP is a living document. It should reflect any changes in personnel, outdoor storage, best management practices, and stormwater discharge from your facility throughout the term of your permit. If your SWPPP is not up to date, it could result in corrective actions or even a violation. Below are common triggers for updating your SWPPP.

Changes to Storage

If there are any major changes to outdoor storage or the industrial activities taking place at your facility, these need to be added to your SWPPP. The addition of new material needs to not only include a description of the material, but also a consideration of how that material or activity could potentially pollute stormwater and what BMPs should be implemented to minimize those pollutants.

Corrective Actions

Certain problems discovered during visual or routine site inspections, or the exceedance of your benchmark limits after an analytical sample, can trigger corrective actions. Sometimes this includes extra inspections that must be conducted and filed in your SWPPP, or even submitted to your permitting authority. If, as a result of corrective actions, you make updates to your best management practices or onsite storage, you will want to be sure to update your SWPPP with those changes.

Changes to personnel

It is important that your pollution prevention team and spill emergency contacts are up to date. If your main SWPPP contact changes, there is also a good possibility that an official change form will need to be submitted to your permitting authority. You don’t want to miss reporting reminders, inspection requests, or any other items sent by the permitting authority to an out-of-date site contact. This can lead to surprise inspections or missed violations if communications from your permitting authority are not reaching your pollution prevention team members.

Permit Renewal

And finally, while most permit renewals do not require a complete rewrite of your facility’s SWPPP, you will certainly be responsible for reviewing the new permit and updating your SWPPP with any new requirements. Below are general permits expiring in 2021 alone:

  • Michigan
  • Wisconsin
  • North Carolina
  • Louisiana
  • Nebraska
  • Texas
  • Pennsylvania
  • South Carolina
  • Connecticut
  • Kansas
  • Main
  • Utah (Group 4)

If you need help putting together your SWPPP or any of its components, contact U.S. Compliance. Our team assists hundreds of facilities with health, safety, and environmental compliance and can help you put together an effective plan.

 

Sources

https://www.epa.gov/sites/production/files/2015-11/documents/swppp_guide_industrial_2015.pdf

 

OSHA’s Regulatory Agenda, Strategy and Emphasis Programs – Setting Up Your Year for Success

OSHA’s Regulatory Agenda

Understanding OSHA’s regulatory agenda and priorities for 2021 can help your business maintain compliance and avoid costly fines. OSHA’s Regulatory Agenda and the recently published Site-Specific Targeted Inspections guidance help provide insight into regulatory areas that this year’s inspections will focus on. This information is critical for evaluating the likelihood of an OSHA inspection at your facility. More importantly, it can help you prioritize onsite health & safety initiatives for 2021 and beyond.

OSHA Inspection Strategy

OSHA has a priority hierarchy for conducting onsite inspections. The following details the criteria in order of precedence:

  1. Imminent Danger Situations – Hazards that could cause death or serious physical harm receive top priority.
  2. Severe Injuries & Illnesses – Workplace fatalities must be reported within 8 hours and hospitalizations/amputations/losses of eye must be reported within 24 hours. Failure to properly report these incidents to OSHA will likely result in an inspection.
  3. Worker Complaints – Allegations of hazards or violations receive a high priority by OSHA.
  4. Referrals – Hazards identified by other federal agencies, state/local agencies, individuals, and the media can result in inspections.
  5. Targeted Inspections – Inspections aimed at high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses.
  6. Follow-up Inspections – Checks for the abatement of violations cited during previous inspections are also conducted by OSHA in certain circumstances.

Site-Specific Targeted Inspections

On December 14, 2020, OSHA established a directive that aims for Site-Specific Targeting (SST) of non-construction businesses with 20 or more employees. OSHA will review injury and illness data from 2017-2019 and target businesses who experienced consistent injury illness rate increases over the three-year data period. The agency will review DART rates (Days Away, Restricted, or Transferred) for facilities and compare those values against the industry’s national average. Facilities with DART rates consistently above the national average can be targeted by OSHA. OSHA will also target sites that failed to electronically submit their 300A OSHA Log between 2017-2019.

You can use the formula below to calculate the DART rate for your facility:

 

This table shows a listing of DART Rates by NAICS. You can use this data to see how your facility’s DART rate compares against the industry average. OSHA also has a helpful worksheet that you can use to record Incidence Rates.

National Emphasis Program

OSHA develops National Emphasis Programs (NEPs) in order to focus efforts on specific high-hazard industries. NEPs are evaluated by using available data from sources that include NIOSH reports, injury & illness data, and inspection data, among other available information. The following list provides examples of NEPs that OSHA has published. Businesses that process and manufacture these high-hazard materials and processes may be targeted for OSHA inspections.

  • Combustible Dust​
  • Hazardous Machinery​
  • Hexavalent Chromium​
  • Lead​
  • Primary Metal Industries​
  • Process Safety Management (PSM)​
  • Respirable Crystalline Silica

You can find out more information on National Emphasis Programs specific to your industry here.

Local Emphasis Program

Similar to NEPs, Local Emphasis Programs (LEPs) are developed by OSHA to target high-hazard industries within a particular region. LEPs are created and implemented at the regional level and are aimed to help bring awareness and reduce/eliminate specific hazards in high-hazard industries within a region. Each region has a set of LEPs that OSHA has published. For example, in Region 5 (IL, IN, MI, MN, OH, WI), Local Emphasis Programs are the following:

  • Fall Hazards in Construction and General Industry ​
  • Grain Handling Facilities​
  • Powered Industrial Vehicles​
  • Wood Pallet Manufacturing Industry

You can find out more information on Local Emphasis Programs specific to your industry here.

What’s Ahead for OSHA?

With the new Administration, it is anticipated that there will be a greater focus on enforcing OSHA standards. Year-over-year, unprogrammed OSHA inspections have increased between 2017-2019. It can be expected that this trend will continue in 2021; this is especially likely considering the down year in 2020 due to the Covid-19 pandemic. As businesses move past Covid-19, OSHA will begin returning to a more normal inspection schedule.

Stay up to date with current OSHA guidance to help maintain regulatory compliance at your facility by visiting our website or contacting us.

Safety Committees – Tips for an Effective Team

Safety Committees can be a multifaceted tool within any organization’s Health and Safety program. According to an article from EHS Today by Guy Burdick, “Having one could reduce the number of workplace injuries and illnesses and workers’ compensation claims while bolstering your compliance with federal or state occupational safety and health regulations.” However, there is an even greater benefit that occurs from a committee: fostering management involvement and employee engagement. This is really what is needed for the long-term success of any workplace safety and health management program.

In some states, Safety Committees are not just a tool but also a regulatory requirement. These six states include Connecticut, Minnesota, North Carolina, Tennessee, Vermont, and West Virginia. Safety Committees are typically required to be maintained within high-hazard or high-risk workplaces.

Below are some key steps to consider for maximizing even the smallest safety committee’s potential and bringing out the best of its staff.

  • Investment and Commitment: If you want to have a truly effective safety committee, you must be prepared to invest time and energy into developing it. It is better to invest the work on the front end than to constantly make corrections on the back end.
  • Establishing a Vision: Safety committees need structure, purpose, and a vision that calibrates their long-term goals versus their actual activities and performance. “What gets inspected gets respected.” This means that after establishing goals and performance benchmarks, the committee’s effectiveness can be measured and quantified. This momentum encourages further development and more effort over time.
  • Gathering Support: Safety Committees require support from the highest levels of management in order to be successful. Without management’s “buy in” and a demonstration of their commitment, employees will not believe in the program’s efforts or potential to affect change within their work environment. In other words, management must lead by example as well as be willing to grant employees enough independence to embrace their role as part of the committee.
  • Representation is Key: Safety committees should be composed of a fair distribution of employees, leads, supervisors, and managers, with representatives from every department across every shift. In some cases, having multiple committees to accommodate each shift may be necessary. When there is equal representation, a safety committee can effectively create a bridge between all departments as well as between the lowest and highest rungs of management.

These are just a few considerations for implementing a productive and effective Safety Committee. A properly implemented Safety Committee will serve to bolster the health and safety of all employees at your facility by positively improving its safety culture through improved engagement and employee representation.

Contingency Plans & Quick Reference Guides

In order to facilitate the response to a potential emergency, all Large Quantity Generators (LQGs) are required to submit a Contingency Plan. According to Title 40 CFR §262.261, a “contingency plan must describe the actions facility personnel must take to comply with §§262.260 and 262.265 in response to fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water at the facility.” Requirements apply to all hazardous waste generators, but Large Quantity Generators (LQGs) have more requirements than Small Quantity Generators (SQGs).

Updates From Generator Improvements Rule

One key element of a Contingency Plan is the Quick Reference Guide. Beginning on October 28, 2016, the EPA introduced the Generator Improvements Rule (GIR), which has since been adopted by an increasing number of states throughout the US. As stated in this rule, the EPA replaced “the term ‘executive summary’ with the term ‘quick reference guide’ in order to more closely mirror the intended purpose of this document.” The reason for this name change is to allow emergency responders to more quickly evaluate the potential dangers of a situation and notify the proper contacts without having to find and read through a 20+ page document. The Quick Reference Guide is a primary example of the difference in requirements between LQGs and SQGs.

Elements of the Quick Reference Guide

There are three main components of an LQG Quick Reference Guide:

  1. Contingency Plan Quick Reference Guide
  2. Access Roads Map
  3. Facility Site Map

The Contingency Plan Quick Reference Guide acts as a direct summary of the Contingency Plan itself. This guide includes the names, phone numbers, and directions for contacting each of the emergency coordinators listed. As part of the GIR, the home addresses of these contacts no longer need to be listed. The guide also includes a list and description of each onsite notification system, including the type of system (i.e. intercom, facility phones, cell phones, etc.), the locations where the systems can be accessed, and directions on how to activate them. Lastly, the guide describes the types of hazardous waste(s) onsite, their associated hazards, storage locations, and the estimated maximum amount onsite. If there are any hazardous wastes that require unique or special treatment, that will also be defined in this section of the Quick Reference Guide.

The Access Roads Map is an integral part of the Quick Reference Guide as it depicts all the nearby intersections for directly accessing the facility. As is the overall purpose of the Quick Reference Guide, this is yet another element that has the potential to assist emergency personnel.

The Facility Site Map is beneficial for both emergency personnel and the people working onsite at the time of an emergency. This emergency response map includes the locations of fire extinguishers, water main supply, hazardous waste location(s), communication systems, exits, and evacuation routes.

Contingency Plans for SQGs

For an SQG, the Contingency Plan is a far simpler document. It operates primarily as an emergency contacts page. Much like the Quick Reference Guide for LQGs, the first two contacts listed are the Emergency and Alternate Emergency Coordinator who are to be contacted immediately upon discovery of a discharge or spill of hazardous material or waste. The contact information for the local police and fire departments must also be included, as well as the information for the US UPA National Response Center in the event of a release that could threaten human health outside the facility or reach surface water. Federal SQG Contingency plan requirements stipulate that this contingency plan must be posted at a phone near the hazardous waste accumulation area per §262.16(b)(9)(ii). It must also be noted that employees must be thoroughly familiar with proper waste handling and emergency procedures relevant to their responsibilities during normal facility operations and emergencies.

Keeping Contingency Plans up to Date

Per §262.263, a Contingency Plan and Quick Reference Guide must be reviewed and immediately updated whenever:

  1. Applicable regulations are revised;
  2. The plan fails in an emergency;
  3. The generator facility changes—in its design, construction, operation, maintenance, or other circumstances—in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency;
  4. The list of emergency coordinators changes; or
  5. The list of emergency equipment changes.

If any of these circumstances have occurred, US Compliance will gladly assist you in updating your Contingency Plan and Quick Reference Guide.

 

Sources

https://www.federalregister.gov/documents/2016/11/28/2016-27429/hazardous-waste-generator-improvements-rule

TRI Reporting: Lead and the “Qualified Alloys”

Background

The Toxics Release Inventory (TRI) is a national, publicly available database that summarizes toxic chemical releases reported annually by industrial and federal facilities. It is a great resource that distributes vital information to the public and is used to inform decision-making by communities, government agencies, and others. Unfortunately, completing the annual July 1 disclosure report (commonly known as the TRI Report) that contributes to the database can be quite a headache for regulated industries.

The TRI report is required for any facility that manufactures, processes, or otherwise uses a reportable chemical over applicable thresholds. There are approximately 650 chemicals and 30 chemical categories that are subject to this regulation – you can download the full list here.

U.S. Compliance has a comprehensive article summarizing who is required to report and what common pitfalls they might encounter that can be referenced in this blog post. In general, facilities with 10 or more full-time employees that process more than 25,000 pounds in aggregate, or use greater than 10,000 pounds of any one TRI chemical, are required to report annually. These reports require facilities to disclose how much of the chemical they “released” in the calendar year, including air emissions, wastes sent for recycling or disposal, and discharges to stormwater or local wastewater treatment plants.

Get Started Early

Even though TRI reports for the 2020 calendar year won’t be due until July 1, it’s important to make sure that you have a plan to collect all the information needed to prepare and submit the report. Not only must facilities track their usage or generation of TRI-reportable materials, but they must also quantify their associated releases from those operations. This requires detailed information and a thorough understanding of the regulation. Many industries may struggle to retroactively assemble this data before the deadline. If you haven’t already devised a system for tracking this information, it’s best to begin doing so now. This process will likely require consultation with both chemical/material suppliers and other parties, such as waste haulers, recyclers, etc.

This is especially true for facilities that process or use metals. The EPA’s list of toxic chemicals includes a number of elemental metals. These metals are reportable not only if they are manufactured, processed, or otherwise used in pure form, but also if they are present as a constituent of an alloy. Because of this, in order to determine if you must file a TRI report, it is essential that you track the amount of metal that you use or process in a year. In addition, you will have to acquire information regarding the composition of those metals to determine if any reportable constituents are present. This information can be found by reviewing metal certifications or safety data sheets.

Determining Lead Reportability

One prominent metal that is subject to TRI reporting is lead, which is not surprising given its known deleterious effects on human health and the environment. Due to these effects, lead is further classified as a persistent bioaccumulative toxic (or PBT). While most chemicals are subject to the 25,000/10,000-pound threshold described above, PBTs are even more tightly regulated and have lower reporting thresholds. For lead, a facility must only use or process 100 pounds in a given year in order for it to be reportable. Like all reportable metals, even if lead is present within an alloy, it must be counted toward this reporting threshold. However, unlike other metals, the type of alloy that contains the lead impacts this reporting threshold due to an exception known as “qualified alloys.” Under this exception, lead contained with the qualified alloy groups of stainless steel, brass, and bronze reverts to the traditional reporting thresholds of 25,000/10,000-pounds. Lead that is not contained in one of these alloys is subject to a 100-pound reporting threshold.

Therefore, a facility is required to complete a TRI report for lead under either of the following circumstances:

  • Facility manufactures, processes, or otherwise uses more than 100 pounds of lead NOT contained within a qualified alloy
  • Facility manufactures or processes more than 25,000 pounds or otherwise uses 10,000 pounds of lead, including lead contained within a qualified alloy

 

Lead Contained in a Non-Qualified Alloy

If lead at your facility is used in pure form or in a non-qualified alloy, it is reportable at 100 pounds of annual usage. It’s important to note that it is not necessarily uncommon for lead to be found in a non-qualified alloy. In addition, because lead is a PBT, there is no regulatory de minimis level under which it is not required to be counted toward the reporting threshold. Therefore, even a trace amount of lead could be reportable if it is identified as present within a non-qualified alloy.

Lead Contained in a Qualified Alloy

If lead is present at your facility in a qualified alloy, you must assess applicability against the 25,000/10,000-pound reporting threshold. The EPA does not provide specific definitions for the qualified alloys but instead provides the following descriptions:

  • Stainless steel – a steel with a chromium content of 4% or more
  • Bronze – an alloy consisting primarily of copper and tin
  • Brass – an alloy consisting primarily of copper and zinc

Additional information that can be used to determine if an alloy used at your facility is considered a qualified alloy can be found in Appendix A of the EPA guidance document on the topic here.

In totaling the usage of lead within these alloys, a facility may use a de minimis level of 0.1%, meaning if lead is a constituent of a qualified alloy at less than 0.1%, it need not be counted toward the threshold. However, you MUST also include lead that is not contained in one of these qualified alloys in this assessment, if it is present. Therefore, your final total should reflect all lead that is present at the facility and not just lead contained in qualified alloys.

In Summary

If a facility processes or uses lead in a metal alloy, several considerations must be taken to determine TRI reportability. If the alloy is not brass, bronze, or stainless steel, the lead is reportable at 100 pounds and no de minimis level may be claimed. If the lead is found within a qualified brass, bronze, or stainless steel alloy, the threshold is raised to the traditional 25,000/10,000-pound amount. Only qualified alloys that contain lead at more than the de minimis level of 0.1% must be included in this calculation, along with any lead that is present in a non-qualified alloy. Once one of these thresholds is exceeded, a TRI report is required. It is possible for a facility to exceed one or both reporting criteria in a single year.

DOT Hazardous Materials – Understanding the Core Requirements

The transportation of hazardous materials (HazMat) within the United States is governed by the Hazardous Materials Transportation Act, with its purpose being to “protect against the risks to life, property, and the environment that are inherent in the transportation of hazardous material.” The regulations, which were created under the passage of this act, can be found in Title 49 of the US Code of Federal Regulations (CFR). These standards set forth the requirements for material classification and labeling, provide for packaging specifications, and afford operational rules that must be followed to ensure the safe transportation of hazardous materials.

A hazardous material is defined by the Department of Transportation (DOT) as “a substance or material that the Secretary of Transportation has determined is capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and has been so designated.” This includes hazardous substances, hazardous wastes, marine pollutants, and elevated temperature materials. Common examples of DOT hazardous material include:

  • Explosives
  • Flammables
  • Compressed gases
  • Reactive materials
  • Oxidizers
  • Organic peroxides
  • Poisonous materials
  • Radioactive substances
  • Corrosives

There are many requirements that must be followed to ensure that hazardous materials are transported safely. The hazardous material must first be identified and described using a Proper Shipping Name (PSN) found in the HazMat Table (49 CFR 172.101). Proper Shipping Names are determined based on the physical state, properties, and intended uses of the material. This may be a specific-use name such as copper-based pesticide, liquid, or toxic, a chemical name such as Xylene, or it may be a more general hazard class description such as corrosive liquid, acidic, organic, or n.o.s. (not otherwise specified). Note that general hazard class descriptions will typically require additional information to be included alongside the Proper Shipping Name, like the technical names of the hazardous ingredients. Hazardous wastes will also require the word “waste” preceding the Proper Shipping Name. Once a Proper Shipping Name has been determined, the information contained for the row entry of the HazMat Table will be the guide for providing the information needed to send the HazMat on its way in a safe and compliant manner. This information includes the hazard class or division, the HazMat identification number, the packing group, label codes, special provisions, exceptions, acceptable packaging, quantity limitations, and vessel stowage information.

Following the designation of the Proper Shipping Name, the next step is to select the packaging that will be used to transport the HazMat. The hazardous materials packaging must be compatible, appropriate, and authorized for such use. Most shipments of HazMat necessitate the use of packaging that conforms to United Nations (UN) Performance Oriented Packaging (POP) requirements, indicated by a marking applied to the exterior of the package by the package manufacturer. Packaging for HazMat is subdivided into three groups:

  • Bulk packaging for large volume shipments in containers greater than 119 gallons
  • Non-bulk packaging for smaller shipments less than 119 gallons
  • Exception packaging for categorically defined small volume Limited Quantity shipments

Depending on the type of hazardous material to be shipped, these containers may be drums, pails, jerricans, boxes, bags, composite packaging, or a pressure receptacle.

Once a package has been selected, the required markings and labels will need to be applied to the exterior of the package. Markings typically found on a HazMat package include the United Nations identification number, the Proper Shipping Name, and the information communicating a responsible party. Specific hazards may also require the application of additional markings to communicate that a material is either a marine pollutant, is being shipped in a Limited Quantity, possesses an inhalation hazard, or is designated as an overpack. A label is the 3.9” square-on-point, which communicates the primary and subsidiary hazard associated with a HazMat. These labels contain the numeric hazard class or division at the bottom, are color-coded, and include a hazard class-specific symbol. When multiple labels are required, they must be applied immediately adjacent to one another to ensure effective communication.

Following the marking and labeling of the package, the shipment will need to be documented on a shipping paper. Shipping papers come in many forms but are most commonly encountered as a bill of lading or a hazardous waste manifest. Key elements of a shipping paper – which are required regardless of the type of shipping paper –  include the basic description (ID#, Proper Shipping Name, Hazard Class, and Packing Group), emergency response information, and a signed shipper certification. Other required elements that must be communicated on shipping papers include the total quantity of the material being shipped, the packaging type, and the number of packages offered for shipment.

When loading the HazMat onto the transport vehicle, it is important to consider the compatibility of the HazMat with the other hazardous materials on the vehicle. There are many incompatibilities that will prohibit transport or require the segregation of different types of hazardous materials being shipped together. To determine materials compatibility, you will need to reference the Load Segregation Table to determine how the HazMat must be stored, loaded, and transported; this is found in 49 CFR 177.848.

Before allowing the HazMat shipment vehicle to depart, the final step is to verify the application of placards, when required. Placards are larger versions of labels that are placed on the exterior of the transport vehicle. These placards will contain either the identification number or text indicating the hazards of the HazMat loaded onto the vehicle. The shipper of a HazMat is required to have placards available for the types of placardable quantity hazardous material shipments they may send out and to provide them upon request when shipping a placardable quantity of HazMat. The tables that delineate when placarding is required are found in 49 CFR 177.504.

Finally, the performance of any of these tasks classifies an employee as a DOT HazMat employee, which requires triennial training on DOT HazMat regulations. The DOT defines a HazMat employee as any person who is employed on a full-time, part-time, or temporary basis who, in the course of such employment, directly affects hazardous materials transportation safety. Specifically included are those employees who

  • Load, unload, or handle hazardous materials
  • Design, manufacture, fabricate, inspect, mark, maintain, or recondition HazMat packaging
  • Prepare hazardous materials for transportation
  • Are responsible for the safety of transporting hazardous materials
  • Operate a vehicle used to transport hazardous materials

U.S. Compliance can help if you discover opportunity areas when it comes to your DOT HazMat training obligations. Whether it be through onsite training or via our frequently held webinar trainings, we offer a variety of solutions to train your staff on DOT HazMat regulations to help keep you up to date and in compliance.