OSHA Recordkeeping Form to Include Hearing Loss in 2004; MSD Decisions Delayed

Beginning Jan. 1, 2004, employers will be required to check a hearing loss column to record work-related cases meeting the new recording criteria established by OSHA. The new criteria go into effect in 2003.

"The new recordkeeping standard requires employers to record work-related hearing loss cases when an employee’s hearing test shows a marked decrease in overall hearing," said OSHA Administrator John Henshaw. Under the new criteria, employers will record 10-decibel shifts from the employee’s baseline hearing test.

OSHA is also postponing for one year three provisions related to musculoskeletal disorders (MSDs); the rule’s definition of musculoskeletal disorders (MSDs), consideration of MSDs as privacy concern cases, and requirements to check a MSD columns on the OSHA Log.

Employers will not be required to use an MSD definition to categorize cases on the OSHA Log for calendar year 2003. Instead, they must check the column for "injury" or "all other illness" depending on the circumstances of the case. (Source: OSHA, December 16, 2002).

New Law Increases Employer Penalties for Not Reporting Accidents to Cal/OSHA

Any California employer who fails to report a fatal injury or the serious injury or illness of an employee to Cal/OSHA within eight hours of its occurrence now faces a minimum penalty of $5,000.

Provisions of Assembly Bill (AB) 2837, which include the substantial increase in penalties for employers who don’t report — up from $500 — took effect Jan. 1, 2003 and are being implemented by Cal/OSHA.

"We need to investigate all serious accidents and fatalities to ensure employers are maintaining safe work sites," said Vicky Heza, Cal/OSHA’s chief of enforcement. "That’s why reporting them is so important."

A serious injury or illness is defined as amputation of a member of the body, disfigurement, or in-patient hospitalization for more than 24 hours for other than observation.

Employers must report the name and location of the injured person, the nature of the injury or illness, a description of the accident including its time and date, the employer’s name, address and telephone number and other relevant information to the nearest Cal/OSHA office by phone or fax within eight hours.

"Approximately 550 citations are issued each year to employers for failure to report accidents," said Heza. "This new law is designed to dramatically reduce this number and bring about a greater level of compliance."

AB 2837 also provides that an employer, officer, management official, or supervisor who knowingly fails to report a death to Cal/OSHA or knowingly induces another to do so is guilty of a misdemeanor and will face a penalty of up to one year in jail, a fine of up to $15,000, or both. If the violator is a corporation or a limited liability company, the fine could be up to $150,000.

Cal/OSHA offers free consultative assistance to employers. For more information call 1 (800) 963-9424 or visit the Web site at http://www.dir.ca.gov/DOSH/. (Source: Cal/OSHA, December 26, 2002)

New Pollution Controls Proposed for Off-road Diesel Engines 

Heavy construction vehicles and other large off-road machinery will have to meet tougher emissions standards and use cleaner diesel fuel under proposals being discussed by the Bush administration. Diesel-powered vehicles from huge earthmovers to farm equipment account for more pollution, especially microscopic soot linked to respiratory problems, than the trucks and buses on the nation's highways. A tentative proposal before the EPA would require diesel sulfur reduction within the next decade from the current 3,000 parts per million to 15 parts per million. The proposal also calls for new emission standards on new engines for off-road vehicles, requiring engine manufacturers to install advanced emission control technology. This will bring the off-road vehicles and the fuel they use under essentially the same requirements as large over-the-road trucks and buses under a separate set of rules already approved by the EPA.
 

Two to Serve Long Sentences 

and Millions in Fines

Barry Himes, the lead defendant in a complex multi-year, multi-million dollar conspiracy to import and sell ozone-depleting chlorofluorocarbon gases ("CFCs") by false pretenses and to avoid taxes was sentenced in January to a term of 6 1/2 years in prison. Himes was also ordered to pay $1.8 million in restitution, as well as a fine of $12,500. He had previously forfeited a $3 million dollar mansion on the Connecticut River along with other assets.

Co-conspirator John Mucha was sentenced to a term of four years in prison. Mucha, was also ordered to pay $1.2 million in restitution. A total of ten individuals have pleaded guilty to federal charges in connection with this investigation.

To date, more than 114 individuals have been convicted in numerous illegal CFC import schemes, and courts have imposed significant prison terms and several millions of dollars in fines and restitution in a number of these cases.

Man Sentenced and Fined for Disposing of Four Pounds of Fungicide

Michael A. Raasch of Brewster, Mass., was sentenced on Dec. 17, 2002 to serve six months in home confinement as part of three years probation and pay a $10,000 fine for violating the Resource Conservation and Recovery Act. Raasch was the golf course superintendent at the Chequessett Yacht and Country Club in Wellfleet, Mass. On April 4, 2000, he illegally disposed of a four pound bag of Calo-Gran ®, a mercury-based fungicide in a deserted area of the golf course.

Truck Stop Faces $48,000 Fine

The U.S. EPA has cited John Skidmore Truck Stop, Inc. in Sutton, West Virginia for failing to take appropriate measures to detect potential petroleum releases from its underground storage tanks. EPA seeks a $47,692 penalty for these alleged violations and has ordered the facility to comply immediately with applicable underground storage tank regulations. The John Skidmore Truck Stop has five underground storage tanks: two 8,000-gallon gasoline tanks and three 10,000-gallon diesel fuel tanks. EPA’s complaint alleges the facility failed to take appropriate measures to detect potential leaks in its tanks. EPA also cited the company for inadequate corrosion prevention in three of the tanks.

OSHA Fines Firm $84,500 Following Inspection of Fatal Truck Accident

In January, OSHA cited a Birmingham, Ala. company for safety violations that contributed to a temporary worker’s fatal fall from a refuse collection truck. The agency fined Environmental Waste System, also known as Waste Management, a subsidiary of Waste Away Group, Inc., $84,500 for willful and serious safety violations and failure to report a fatal accident within eight hours. The accident occurred on July 22 after an employee was picked up at a temporary agency to work as a helper on a rear loading refuse collection truck. After working for only 30 minutes collecting trash in a residential neighborhood, the employee fell backwards off the riding step, as the truck made a turn. He struck his head on the asphalt surface of the street, sustaining fatal injuries.

TRANSPORT COMPANY PLEADS TO ILLEGAL MISSISSIPPI RIVER DUMPING 

Sabine Transportation of Cedar Rapids Iowa, filed a plea agreement on Dec. 13 in U.S. District Court for the Eastern District of Louisiana for violating the Clean Water Act by dumping wastes into the Mississippi River. Between March 13 and March 19, 1998, Sabine allowed approximately two tons of rust scale, bunker fuel residue and other cargo-hold related debris to be dumped from the S.S. Trinity into the Mississippi River at Violet, La.  Sabine was not permitted to discharge wastes into the river.  The plea agreement calls for Sabine to pay a $200,000 fine, serve three years probation and develop an environmental compliance program.

TWO MARITIME COMPANIES AND SHIP'S ENGINEER PLEAD GUILTY IN WASHINGTON STATE OIL SPILL CASE 

Unix Line PTE Ltd., a Singapore Corp.; Springs Navigation, S.A., a Panamanian Corp.; and Hyeong-Bin Jeong, Chief Engineer of the M/T Kaede all plead guilty on Oct. 20 to federal crimes arising out of an Oct. 22, 2002 oil spill from the Kaede into Commencement Bay. Springs Navigation and Unix Line jointly own and operate the Kaede. Both corporations pled guilty in the U.S. District Court for the Western District of Washington in Seattle to a misdemeanor violation of the Clean Water Act for causing the oil spill.  Unix also plead guilty to a felony for making false statements to the Coast Guard.  Jeong plead guilty to a misdemeanor for the oil spill and he plead to a false statement felony for making false entries in the Kaede's Oil Record Book.  The spill came from oil that had collected in a piping system aboard the ship.  When the spill was investigated, it was learned that the Kaede regularly used the piping system to dump waste oil overboard while at sea.  These discharges were concealed by false entries in the ship's Oil Record Book.  The plea agreement calls for the companies to pay a collective fine of $750,000, develop and implement a comprehensive environmental management plan and serve four years probation. Jeong faces a maximum potential sentence of up to five years in prison and/or a fine of up to $250,000. 

New York Seeks EPA Waiver from Clean Gasoline Rules 

New York state has asked the Bush administration for a waiver from federal rules that require reformulated gasoline (RFG) to be sold in the New York City metropolitan area. Like California, New York is concerned about using reformulated gasoline containing the fuel additives MTBE, which can contaminate underground drinking water, or using ethanol, which would be expensive and difficult to transport to the Northeast.

Approval of the waiver is unlikely, as the EPA denied California’s request. Also, the Bush administration is pushing for more use of ethanol -- which is made from corn – but but made only in the Midwest corn states, pleasing the farmers and ethanol producers. Ethanol is not energy-efficient, requiring more energy to make than can be extracted from it as a fuel. New York also told the agency that using ethanol as a replacement for MTBE would produce gasoline that had a higher evaporation rate, which would put more polluting emissions into the air.

The ethanol would have to be transported by truck, barge or rail. New York said that 960 million gallons (22.9 million barrels) of ethanol a year would be needed in the Northeast, which would require 34,000 miles of barge travel and 3 million miles of tanker truck travel.

Just My Opinion

Is UN Dictating U.S. Environmental Law?

The Precautionary Principle

David M. Augenstein

Over the past ten years, the Precautionary Principle has been used more and more in environmental standard setting and policymaking. The precautionary principle, at its extreme, is summed up briefly as: If there is a perceived threat to anything, we must move to regulate to eliminate it before it becomes a real threat, even absent scientific evidence. And conversely, don’t do anything, unless you can prove there is no risk.

Few people know that the "precautionary principle" was adopted by the U.S. in 1992 at the United Nations Earth Summit held in 1992 in Rio De Janerio. More than 170 nations embraced Principle 15 of the Rio Declaration, which says:

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The use of the Precautionary Principle has now been legitimatised through the U.S. Courts in the ruling on the new standard for fine dust and ozone. This standard is estimated to cost about $50-100 billion per year. Losing a 5-year legal battle between EPA and American Trucking Associations and other business groups, a federal appeals court in March 2002 unanimously agreed that EPA was “correct” in setting a new ambient air quality standard for ozone and fine dust.

In the case, credible scientists on the industry’s side argued that the health benefit of some ground-level ozone (by reducing skin cancer due to reduced UV radiation) far exceeded the anticipated benefit of reducing it by reducing some lung irritations and early onset of respiratory problems.

This is what the court said:

"EPA must err on the side of caution, just as it did here -- setting the (air-quality standards) at whatever level it (EPA) deems necessary and sufficient to protect the public health with an adequate margin of safety, taking into account both the available evidence and the inevitable scientific uncertainties."

The court essentially reiterated Article 15 of the Rio declaration. The legal precedent that has been set is three-fold:

1.       EPA need not consider total costs of a regulation, and the court upheld this “principle”.

2.       The court was clear that EPA may create rules, no matter what the costs, even if there is only miniscule health benefits.

3.       It gives EPA and other federal agencies the signal to create rules and interpret laws however they deem necessary and without Congressional approval.