The former president of Port Arthur Chemical and Environmental Services, LLC, (PACES), has pleaded guilty in federal court to occupational safety crimes which resulted in the death of an employee, announced Ignacia S. Moreno, Assistant Attorney General of the Justice Department’s Environment and Natural Resources Division, and John M. Bales, US Attorney for the Eastern District of Texas.
Matthew Lawrence Bowman, 41, of Houston, pleaded guilty to violating the Occupational Safety and Health Act (OSH Act) and making a false statement. Bowman admitted to not properly protecting PACES employees from exposure to hydrogen sulfide, a poisonous gas resulting in the death of truck driver Joey Sutter on December 18, 2008. In addition, Bowman admitted to directing employees to falsify transportation documents to conceal that the wastewater was coming from PACES after a disposal facility put a moratorium on all wastewater shipments from PACES after received loads containing hydrogen sulfide.
“Bowman’s actions showed a preference for profit above the safety of his employees, putting them and the public in life threatening situations by not properly identifying the dangerous materials PACES was handling,” said Assistant Attorney General Moreno. “The Justice Department will continue to vigorously enforce laws enacted for the protection of human health and the environment.”
“In this day and age, it seems inconceivable that workers would be exposed to the level of danger that was routine at PACES,” said US Attorney Bales. “Mr. Bowman’s actions as the leader of the company were more than just cavalier, they were criminal and he is being held to account. We continue to grieve for the needless loss of life and the pain and suffering of Mr. Sutter’s family and friends. This investigation and prosecution is the result of an excellent combined effort of the identified agencies and I am grateful for their hard work.”
“The plea agreement reached today sends a strong signal to all who would illegally transport hazardous materials,” said Max Smith, regional Special Agent-in-Charge, US DOT, Office of Inspector General. “Working with our law enforcement and prosecutorial colleagues, we will continue our efforts to ensure safety in the transport of these materials and vigorously pursue those who violate the law.”
“Laws regarding the safe and legal handling of hazardous materials are in place for a reason—to save lives,” said Ivan Vikin, Special Agent in Charge of the US EPA’s criminal enforcement program in Texas. “The defendant admitted that his actions directly led to the death of one of his employees. This plea demonstrates that EPA and its partner agencies, the Texas Commission on Environmental Quality’s Environmental Crimes Unit and the Department of Transportation’s Office of the Inspector General, will prosecute anyone whose actions place the public at risk.”
According to information presented in court, Bowman was president and owner of PACES, located in Port Arthur, Texas, and CES Environmental Services (CES) located in Houston. PACES was in operation from November 2008 to November 2010, and was in the business of producing and selling caustic materials to paper mills. The production of caustic materials involved hydrogen sulfide, a poisonous gas. According to the National Institute for Occupational Safety and Health, hydrogen sulfide is an acute toxic substance that is the leading cause of sudden death in the workplace. OSHA requires employers to implement engineering and safety controls to prevent employees from exposure above harmful limits of hydrogen sulfide.
Bowman was responsible for approving and directing PACES production operations, the disposal of hydrogen sulfide wastewater, and ensuring implementation of employee safety precautions. In some cases, Bowman personally handled the investigation of work-related employee injuries, directed the transportation of PACES wastewater, and determined what safety equipment could be purchased or maintained. In the cases at issue, hazardous materials were transported illegally with false documents and without the required placards, with placarding being critical to ensure the safety of first responders in the event of an accident or other highway incident. Beyond these violations, PACES workers were not properly protected from exposure to hazardous gases and the exposure resulted in the deaths of two employees who were truck drivers at the PACES facility, Joey Sutter on December 18, 2008, and Charles Sittig on April 14, 2009. Bowman and PACES were indicted by a federal grand jury on July 18, 2012.
Bowman faces up to five years in federal prison and a fine of up to $250,000 at sentencing. A sentencing date has not been set. Charges remain pending against PACES with the corporation facing fines of up to $500,000 per count.
How to Implement OSHA’s Globally Harmonized Hazard Communication Standard (GHS)
OSHA has issued a final rule revising its Hazard Communication Standard, aligning it with the United Nations’ globally harmonized system (GHS) for the classification and labeling of hazardous chemicals. This means that virtually every product label, safety data sheet (formerly called “material safety data sheet” or MSDS), and written hazard communication plan must be revised to meet the new standard. Worker training must be updated so that workers can recognize and understand the symbols and pictograms on the new labels as well as the new hazard statements and precautions on SDSs.
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Sinton Dairy Foods Faces Fines of $74,610 Following Inspection Prompted by Two Federal OSHA Inspection Programs
OSHA has cited Sinton Dairy Foods Co., Inc., in Colorado Springs with 10 serious, two repeat, and two other-than-serious violations. OSHA began an inspection at the facility in November 2012 under its Site Specific Targeting Program that directs enforcement resources to high-hazard workplaces, where high injury and illness rates occur, and under the National Emphasis Program (NEP) for facilities covered under OSHA’s Process Safety Management (PSM) standard. Proposed penalties total $74,610.
The serious violations of the PSM standard include a lack of accurate process information; lack of documentation demonstrating that process equipment complies with recognized and accepted engineering practices; inadequate process hazard analysis revalidation; lack of adequate procedures for managing changes in process equipment; and deficiencies in mechanical integrity of equipment, which could lead to the release of ammonia. Other serious violations include fall hazards from elevated work areas, unguarded machinery and failing to provide properly designed electrical equipment for wet locations. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.
The two repeat violations were cited for failing to establish written procedures to maintain the ongoing integrity of the process equipment and exposing workers to live electrical parts. A repeat citation is issued when an employer has been previously cited for the same or a similar violation of a standard, regulation, or rule at any other facility in federal enforcement states within the last five years. Similar violations were cited at this same work site in 2009.
The other-than-serious violations include an ineffective evaluation for contractors working on chemical processes and for storing materials in front of electrical equipment. An other-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.
“Abating OSHA violations is a sign that an employer wants to keep its workers safe, but in this case, the employer allowed these hazards to reoccur and continued to expose workers to possible fire and electrical hazards, among other dangers,” said David Nelson, OSHA’s area director in Greenwood Village, Colorado. “OSHA will not tolerate such disregard for worker safety.”
Think Your Sunscreen’s Got You Covered?
Working outdoors should be a little easier this summer, thanks to new sunscreen regulations implemented by the US Food and Drug Administration (FDA). Dermatologists believe that the new labeling requirements will take the guesswork out of choosing an effective sunscreen with the best sun protection.
Sunscreen labels now are required to provide consumers with information about whether a sunscreen will protect against skin cancer in addition to sunburn. New labels will also indicate whether or not the product is water resistant. Makeup and moisturizers containing sunscreen that meets the FDA’s testing standards also will include this new information on their labels. All sunscreen products that do not pass the new FDA testing requirements will include warning labels specifying their sun-protective limitations.
“Sunscreen has always been an important tool in the fight against skin cancer, and these new regulations will greatly improve the consumer’s ability to make smart decisions—at a glance—about a product’s effectiveness simply by reading the label,” said board-certified dermatologist Zoe D. Draelos, MD, FAAD, consulting professor at Duke University School of Medicine, Durham, N.C. “Everyone, regardless of skin color, can get skin cancer, which is why it is important for people to properly protect themselves from the sun’s harmful rays.”
On the label, you’ll see whether the sunscreen:
- Is Broad Spectrum, which means the sunscreen protects against UVB and UVA rays and helps prevent skin cancer and sunburn
- Has a Sun Protection Factor (SPF) of 30 or higher. While SPF 15 is the FDA’s minimum recommendation for protection against skin cancer and sunburn, the American Academy of Dermatology recommends choosing a sunscreen with an SPF of at least 30.
- Has a Skin Cancer/Skin Aging Alert in the Drug Facts section of the label, which means the sunscreen will only prevent sunburn and will not reduce the risk of skin cancer and early skin aging
- Is Water Resistant for up to 40 minutes or 80 minutes, which means the sunscreen provides protection while swimming or sweating up to the time listed on the label. Sunscreen manufacturers now are banned from claiming that a sunscreen is waterproof or sweat proof, as the FDA has determined that those terms are misleading.
With the new regulations, the FDA has clearly defined the testing required for a sunscreen to be labeled as “broad-spectrum.” For a sunscreen to carry the claim that it can help prevent skin cancer and early skin aging in addition to sunburn, it must offer both broad-spectrum coverage and an SPF of 15 or higher. If not, the label will carry the Skin Cancer/Skin Aging Alert.
To reduce your risk of skin cancer and early skin aging, the American Academy of Dermatology recommends everyone choose a sunscreen that states on the label:
- Broad spectrum
- SPF 30 or higher
- Water resistant, up to either 40 or 80 minutes
At current rates, 1 in 5 Americans will be diagnosed with skin cancer in their lifetime. In addition to sunscreen, the Academy recommends wearing protective clothing, seeking shade, avoiding tanning beds. If you notice anything changing, itching or bleeding on the skin, see a board-certified dermatologist.
California Governor Brown Proposes to Reform Proposition 65
Governor Edmund G. Brown Jr. has proposed reforms to strengthen and restore the intent of Proposition 65, a three decade old law enacted to protect Californians from harmful chemicals, that the Governor says has been abused by some unscrupulous lawyers driven by profit rather than public health.
The Brown administration, through the California Environmental Protection Agency, will work closely with the Legislature and stakeholders to revamp Proposition 65 by ending frivolous “shake-down” lawsuits, improving how the public is warned about dangerous chemicals and strengthening the scientific basis for warning levels.
“Proposition 65 is a good law that’s helped many people, but it’s being abused by unscrupulous lawyers,” said Governor Brown. “This is an effort to improve the law so it can do what it was intended to do—protect Californians from harmful chemicals.”
The package of reforms will build on legislative efforts already underway, including a proposal to limit frivolous lawsuits.
“Proposition 65 serves a vital public interest. It provides the public with information about carcinogens and toxins that may be present in the products we use in our everyday lives. But for Prop 65 to be effective, this information must be clearly stated and we need to work with the Legislature to prevent groups from exploiting or misconstruing this information for their own personal gain,” said California EPA Secretary Matt Rodriquez.
Voters approved Proposition 65 in 1986. The measure requires the Governor to annually publish a list of chemicals known to the state to cause cancer or reproductive toxicity. If a business in California sells a product containing chemicals listed by the state in excess of safe levels, the business must provide a clear warning to the public. Similar provisions apply to California workplaces.
The administration, stakeholders, and the Legislature will discuss reforms to:
- Cap or limit attorney’s fees in Proposition 65 cases
- Require stronger demonstration by plaintiffs that they have information to support claims before litigation begins
- Require greater disclosure of plaintiff’s information
- Set limits on the amount of money in an enforcement case that can go into settlement funds in lieu of penalties
- Provide the State with the ability to adjust the level at which Proposition 65 warnings are needed for chemicals that cause reproductive harm
- Require more useful information to the public on what they are being exposed to and how they can protect themselves
While Proposition 65 has motivated businesses to eliminate or reduce toxic chemicals in consumer products, it is also abused by some lawyers, who bring nuisance lawsuits to extract settlements from businesses with little or no benefit to the public or the environment.
Under provisions of Proposition 65, a private attorney can bring a complaint against a business if the business knowingly exposes consumers to state-noticed chemicals.
Since 2008, nearly 2,000 complaints have been filed by these citizen enforcers. In one case, Consumer Defense Group Action brought 45 Proposition 65 notices of violation against banks based on second-hand smoke near bank entrances or ATMs. The group claimed that the banks had failed to post warnings, and alleged that the banks controlled the behavior of smokers in those areas. In responding that there was no basis for the claim and misrepresentations within the notices, the Attorney General warned that the group’s notices could “constitute unlawful business practices.”
Governor Brown’s proposed reform follows a strong record of pursuing regulatory changes to improve the state’s business climate. Since taking office in 2011, the Governor has approved legislation to improve the workers’ compensation system, the regulatory and fee structure for the timber industry, Americans with Disabilities Act (ADA) compliance requirements and the facility inspection process for the life sciences industry. In addition to these legislative actions, Brown has established the Governor’s Office of Business and Economic Development (GO-Biz) to help companies deal with regulatory red tape.
AmeriGas Propane L.P. Fined $105,000 after Fire Causes Worker Injuries and Hospitalizations
OSHA has cited AmeriGas Propane L.P., with 21 serious violations following a November 2012 fire that required three workers to be hospitalized and four workers to be treated and released. The Conroe, Texas, plant inspection was expanded to include the NEP for chemical facilities covered under OSHA’s PSM standard. Proposed penalties total $105,000.
The serious violations cited under the PSM standard include failing to compile process safety information for safety systems, such as emergency shutdowns; ensure equipment complies with recognized and good engineering practices, such as relief systems; address various elements of a process safety hazards analysis, including the use of a methodology appropriate to the complexity of the process, human factors, facility siting, and addressing action items or recommendations in a timely manner; inspect and test equipment, including vessels and piping and identify safeguards; and perform the lockout/tagout of equipment and processes and provide training for employees in the use of lockout/tagout.
“Process safety management prevents the catastrophic release of toxic, reactive or flammable liquids and gases in processes involving highly hazardous chemicals,” said David Doucet, OSHA’s area director in the Houston North office. “It is the employer’s responsibility to identify the hazard, correct the hazard and train the workers.”
OSHA’s standards contain specific requirements for the management of hazards associated with processes using dangerous chemicals.
AmeriGas is a supplier of propane throughout the US and employs more than 8,000 people.
OSHA Cites Georgia Carpet Manufacturer for 15 Serious Safety Violations
OSHA has cited Garland Sales, Inc., with 15 serious safety violations after a November 2012 inspection of the company’s Dalton, Georgia, facility. The inspection was conducted as a part of the agency’s NEP on amputations. Proposed penalties total $73,000.
The employer was cited for workers’ exposure to chemical hazards by not developing or implementing a written hazard communication program prior to using chemicals, electrical shock hazards due to improperly marked and assembled electrical control panels, caught-in and struck-by hazards related to unguarded and improperly secured machinery, and tripping and burn hazards due to obstructed fire extinguishers. Additional citations were issued for failing to establish or implement a lockout/tagout program with machine-specific procedures and allowing workers to operate forklifts without certifying they were properly trained and evaluated.
“Employers have the responsibility to identify and remove hazards from the workplace to protect workers,” said Christi Griffin, acting area director of OSHA’s Atlanta-West Area Office. “They should not wait for OSHA to conduct an inspection to identify and correct workplace hazards.”
Joel Kennedy Constructing Corp. Facing Fines Over $72,000 for Failing to Protect Workers in Trench
The inspection was initiated under OSHA’s NEP for trenching and excavation after an OSHA inspector witnessed apparent cave-in hazards at a construction site in Chicago on November 5, 2012. Proposed penalties total $72,380.
“Joel Kennedy Constructing Corp. has a responsibility to follow safety standards that protect workers from excavation hazards,” said Diane Turek, OSHA’s area director for the Chicago North Office in Des Plaines. “These types of hazards result in numerous fatalities and injuries every year. No job should put workers at risk due to an employer’s failure to properly protect and train them.”
The willful violation involves failing to provide cave-in protection to workers installing a valve vault for a water main in a trench approximately 8 feet deep. A willful violation is one committed with intentional, knowing, or voluntary disregard for the law’s requirements, or with plain indifference to worker safety and health. The company has been cited previously for failing to provide cave-in protection in May 2009 and March 2011.
Three serious violations were cited for failing to provide a means of safe access and egress during trenching and excavation work, keep excavated material away from the edge of the trench, and have a guard on a hand grinder.
One other-than-serious violation was cited for failing to provide a ground fault circuit interrupter on a portable generator used on the site.
Maine Sawmill Fined Nearly $80,000 for Repeat and Serious Workplace Safety Violations
The facility in Jefferson, Maine, faces a total of $79,310 in proposed fines following an inspection by OSHA’s Augusta office begun in December 2012.
The repeat violations include not using energy control procedures to prevent employees from being struck by a logging carriage and for a lack of barriers and warning signage to prevent entry to the logging carriage path and elevated walkways that lacked required guardrails. Similar violations were cited in 2009. Proposed penalties for the repeat violations total $53,900.
“These recurring hazards exposed employees to the hazards of falls and being struck by machinery. It’s imperative that employers take effective and ongoing action to ensure that hazards, once corrected, remain corrected,” said William Coffin, OSHA’s area director for Maine.
The serious violations include using an industrial work truck with a defective emergency brake, lack of machine guarding to prevent employee contact with the moving parts of a saw and a grinder, an ungrounded extension cord, and incomplete energy control procedures. Proposed penalties for the serious violations total $25,410.
Tenneco Automotive Operating Co. Faces $62,000 in Fines Following OSHA Inspection
Tenneco Automotive Operating Co., has been cited for 13 safety and health violations following an OSHA inspection at its manufacturing facility in Hartwell, Georgia. Proposed fines total $62,000.
One repeat safety violation, with a penalty of $22,000, involves the employer failing to reduce the pressure in a compressed air device to less than 30 lb per square inch when using it for cleaning. Tenneco was previously cited for this same violation during a 2011 inspection.
Nine serious safety and health violations, with $37,800 in penalties, include the manufacturer exposing workers to burn hazards due to the accumulation of combustible dust, and tripping hazards related to poor housekeeping in the wash area. Tenneco Automotive was also cited for failing to provide face shields and chemical goggles for employees working with corrosive materials; provide an eyewash station; not informing workers of the hazards of being exposed to noise beyond the permissible exposure limit; permitting a powered industrial truck with severely damaged tires to be utilized; allowing a worker to leave a loaded forklift unattended with the load raised; having an obstructed emergency exit; and multiple instances of inadequate machine guarding.
Three other-than-serious violations, with $2,200 in penalties, involve failing to record threshold shifts for noise hazards on the OSHA 300 log, not having workers’ hearing retested within 30 days when there was a threshold shift, and failing to properly log the number of restricted days when a worker experienced a hand contusion and another received a laceration.
“Tenneco continues to put its workers at risk of serious injury or illness by exposing them to inadequate machine guarding, burn and trip hazards,” said Bill Fulcher, director of OSHA’s Atlanta-East Area Office. “It’s imperative that management is proactive in eliminating hazards from the workplace and doesn’t rely on an OSHA inspection to identify deficiencies.”
Tenneco Automotive Co., is a division of Tenneco, a global transportation components manufacturer with more than 80 facilities on six continents. Corporate offices are in Lake Forest, Illinois.
OSHA Establishes Partnership to Protect Construction Workers at University of Chicago Research Center Project
OSHA has established a strategic partnership with the Chicago Regional Council of Carpenters and W.E. O’Neil Construction Co., to reduce workers’ exposure to hazards and the likelihood of serious injuries. The Illinois On-Site Consultation Program of the Illinois Department of Labor is also participating in the partnership, which covers the University of Chicago William Eckert Research Center Project.
“This voluntary strategic partnership is focused on identifying and controlling hazards, improving safety and health programs, promoting a cooperative relationship between labor, unions and management, and encouraging employee participation in achieving a safe and healthful workplace during the construction of this research center,” said Gary Anderson, OSHA’s area director in Calumet City, Illinois. “The agreement will require all workers to be covered by an effective employer safety and health program and to attend a project/safety orientation.”
The William Eckert Research Center project is a four-story, $170 million project, scheduled to be completed in 2015. OSHA will work with all companies and management involved in the project to promote safety programs and work methods using the latest technologies and the safest available methods.
The W.E. O’Neil Construction Co. is the general contractor on the project. The company will develop a site- specific safety program and require all prime contractors on the project to provide on-site safety representatives, conduct regular safety audits, attend a specific safety orientation given by O’Neil personnel, and conduct daily huddle and safety meetings to share safety concerns and implement best practices.
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